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Himachal Pradesh High Court · body

2000 DIGILAW 222 (HP)

KAMLA SHARMA v. RADHYE SHYAM

2000-08-17

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, J :-This revision is filed under sub-section (5) of Section 24 of the Himachal Pradesh Urban Rent control Act, 1987 (hereinafter referred to as the Act) against judgment and order passed by the Appellate Authority, Shimla, in CMA No. 47-S/14 of 1996 on May 1, 1998, by which the Appellate Authority reversed an order of eviction passed by the Rent Controller (2), Shimla, on June 29, 1996, in case No. 49/2 of 1994. 2. The petitioner-landlady filed an application for possession before the Rent Controller against the respondents under Section 14 (2) (ii) (a) of the Act. It was averred in the said petition that she owned a shop bearing No. 14/2, ground floor, known as Vinod Niwas, Upper Kaithu, Shimla-3 (suit shop, for short). Respondent No. 1 was her tenant since 1975 on monthly rent of Rs. 150/-. The suit shop was purely non- residential. Respondent No.l, however, after the commencement of the Act, without the written consent of the landlady, sub-let the shop to respondent No.2, before about one year of the filing of the petition. It was also her case that even though suit shop was non-residential premises, respondent No.2, without the consent of the petitioner converted the same in partially as residential premises. Her case further was that respondent No. 1 had permanently shifted to Subathu, District Solan, where he was running a shop in the name and style of "Gupta Pan Shop". She has also alleged that respondent No.l was charging higher rent of suit shop from respondent No.2. The petitioner, therefore, prayed that both the respondents were liable to be evicted. 3. The respondents resisted the petition by filing a reply. Several objections - preliminary as well as on merits - were raised by them. It was contended that the petition was filed by the landlady without there being any cause of action. It was filed with ulterior motive to get more rent. It was bad for mis-joinder of parties. The petitioner was estopped from filing a petition. On merits, it was contended that respondent No.2 was uncle of respondent No. 1 and in that capacity, he was looking after the business of respondent No. 1 ever -since respondent No.l started his new establishment at Subathu. It was bad for mis-joinder of parties. The petitioner was estopped from filing a petition. On merits, it was contended that respondent No.2 was uncle of respondent No. 1 and in that capacity, he was looking after the business of respondent No. 1 ever -since respondent No.l started his new establishment at Subathu. It was also their case that suit shop was residential as well as non-residential from the very beginning and there was no unauthorised use of the shop. Since respondent No.2 was managing the affairs of respondent No. 1 in his capactiy of uncle, there was no sub-letting as alleged by the petitioner. The allegation that respondent No. 1 was getting higher amount of rent from respondent No.2 was not correct. Since the petition was filed with a view to extract higher rent, the same was liable to be dismissed. 4. On the basis of pleadings of the parties, the Rent Controller, framed issues. The parties were then permitted to lead evidence. Appreciating the evidence led by the parties - oral as well as documentary - the Rent Controller held that it was proved by the petitioner that without her consent in writing, respondent No. 1 had sub-let the premises to respondent No.2; that the petition was not bad for mis-joinder of parties; that the petitioner was not estopped by her acts, deeds and conduct from filing the petition; and on the basis of evidence, it was proved that the case was covered by clause (a) of Section 14(2) (ii) of the Act. The respondents were, therefore, liable to be evicted. The Rent Controller, accordingly, allowed the petition filed by the petitioner-landlady and directed the respondents to hand- over vacant possession of the suit shop to the petitioner within a period of sixty days from the date of order. 5. Being aggrieved by the order of eviction passed by the Rent Controller, the respondents preferred an appeal before the Appellate Authority. The Appellate Authority, by an order, impugned in the present revision, held that it was not proved that respondent No.l had sub-let the premises to respondent No.2 and the Rent Controller had committed an error in recording a finding to that effect. On the basis of the said finding, the Appellate Authority allowed the appeal. 6. The Appellate Authority, by an order, impugned in the present revision, held that it was not proved that respondent No.l had sub-let the premises to respondent No.2 and the Rent Controller had committed an error in recording a finding to that effect. On the basis of the said finding, the Appellate Authority allowed the appeal. 6. It may be stated at this stage that an application was filed by the respondents-appellants before the Appellate Authority under order 41, Rule 27 of the code of Civil Procedure, 1908 (hereinafter referred to as the code) to allow them to lead additional evidence, which was heard along with the main matter. - The Appellate Authority, however, did not grant the prayer of leading additional evidence and the application was rejected. The appeal, however, came to be allowed and the order of eviction passed by the Rent Controller came to be set aside. 7. Being aggrieved by the order passed by the Appellate Authority, the petitioner-landlady has approached this Court by filing the present revision. It was admitted on June 2, 1998. It was heard on August 11, 2000, as also today. 8. I have, heard Mr. K.D. Sood, learned counsel for the petitioner and Mr. R.K. Bawa, learned counsel for the respondents. 9. Mr. Sood, learned counsel for the petitioner contended that the Appellate Authority committed an error of law and of jurisdiction in allowing the appeal filed by the respondents. He submitted that on the basis of the evidence on record, it was established that respondent No.l was tenant of the petitioner. He had, without the prior written consent of the landlady, sub-let the suit shop to respondent No.2 and respondent No.2 was put in exclusive possession thereof. The Rent Controller was, therefore, right in recording a finding that it was proved by the landlady that there was sub-letting by respondent No. 1 in favour of respondent No.2 and hence, both the respondents were liable to be evicted. The Appellate Authority was not right in reversing the said finding and in allowing the appeal. He, therefore, submitted that the order passed by the Appellate Authority deserves to be set aside by restoring the order of eviction passed by the Rent Controller. 10. Mr. Bawa, learned counsel for the respondents, on the other hand, supported the order passed by the Appellate Authority. He, therefore, submitted that the order passed by the Appellate Authority deserves to be set aside by restoring the order of eviction passed by the Rent Controller. 10. Mr. Bawa, learned counsel for the respondents, on the other hand, supported the order passed by the Appellate Authority. He submitted that the findings recorded by the Rent Controller were not based on proper appreciation of evidence. The Appellate Authority, after considering the relevant material on record in the light of the submissions made on behalf of the respondents, reached a finding that it was not proved that respondent No. 1 had parted with exclusive possession in favour of respondent No.2 and the case was not was covered by Section 14 (2) (ii) (a) of the Act. He also submitted that respondent No.2 was uncle of respondent No.l and in that capacity in absence of respondent No. 1, he was merely looking after the business of respondent No. 1, and the case was of sub-letting. 11. My attention was invited by the learned counsel for the parties to documentary as well as oral evidence adduced before the Rent Controller. Now, PW1 Smt. Kamla sharma, had stated that in 1975, she let the suit property to respondent No. 1. It was a shop. A petition for eviction of the shop was filed by her on April 7, 1994. In the said application, her case was that respondent No. 1 had sub-let the suit shop to respondent No. 2 about one year prior to the filing of the petition. Thus, in or about 1993, respondent No. 1 sub-let the suit shop to respondent No. 2. In her evidence, which was recorded in March 1995, she has stated that before 5 to 6 years, that is, somewhere in 1989-90 respondent No. 1 sub-let the suit shop to respondent No. 2. It was, therefore, contended by Mr. Bawa that the petitioner was not sure as to when the alleged sub-letting was made by respondent No. 1. In my opinion, however, that is not material. Her positive case was the tenant, without the consent of the landlady, sub-let the suit shop in favour of respondent No. 2. She also stated the respondent No. 1 used to pay Rs.150/- per month as rent but he used to collect an amount of Rs.1000/- from respondent No. 2. In my opinion, however, that is not material. Her positive case was the tenant, without the consent of the landlady, sub-let the suit shop in favour of respondent No. 2. She also stated the respondent No. 1 used to pay Rs.150/- per month as rent but he used to collect an amount of Rs.1000/- from respondent No. 2. Thus, allegation of the landlady was the respondent No. 1 was doing profiteering business by earning an amount of Rs.85O/- per month. She had categorically stated both in the petition as well as in her substantive evidence that she had not given written consent to respondent No. 1 to sub-let the suit shop to respondent No. 2. No such consent in writting was even produced by the respondents. 12. In cross-examination of the petitioner, it was alleged that a false case was filed against the respondents with a view to get the rent enhanced, but it was denied by her. She also denied that respondent No. 2 was uncle of respondent No. 1 and in that capacity he was looking after the business of respondent No. 1. She had denied that a shop run by respondent No. 1 in Subathu belonged to his wife. She had stated that respondent No. 1 had shifted with his family to Subathu; that he was running his business at Subathu, and that his children were also studying there. She was asked whether it was true that the rent was offered by respondent No. 1 with his own hands. In reply she stated that it was true that respondent No. 1 (tenant) had approached her and offered an amount of rent. She, however, refused to accept the amount as in the meanwhile a petition for eviction was already filed by her. She had also stated that respondent No. 1 told her that he would vacate the shop if she would pay an amount of Rs.50, 00(V- to him. She admitted that the licence as well as electricity meter were in the name of respondent No. 1. All bills were also issued in the name of respondent No. 1. But she asserted that it was respondent No. 2 who was doing die business and respondent No. 1 had not interest therein. 13. She admitted that the licence as well as electricity meter were in the name of respondent No. 1. All bills were also issued in the name of respondent No. 1. But she asserted that it was respondent No. 2 who was doing die business and respondent No. 1 had not interest therein. 13. The petitioner also examined other witnesses to prove that respondent No. 2 was in exclusive possession of the suit shop though it was alleged on behalf of respondents that either they were related to the petitioner-landlady or they were of the same village and hence were supporting her. But over and above those witnesses, there is evidence of certain public offices. PW6 Ajay Kumar was working as Tax Inspector in die Tax Department of Municipal Corporation, Shimla. He had produced in his evidence Ex.PW6/A, which is a form showing payment of tax under Section 93 of the Himachal Pradesh Municipal Corporation Act, 1979. It is dated June 18, 1992. It is in the hand of respondent No. 2. Respondent No.2, in his substantive evidence, also admitted that it bears his signature. In the column of "name of tenant", his name is mentioned. In the next column, the amount paid by him (Rs.130/-) is shown and in token thereof respondent No. 2 has signed it. In Ex.PW6/B name of tenant was shown as Radhey Shyam spondent No.l, which was filled in by PW6 Ajay Kumar, Tax Inspector, and signed by landlady. 14. Thus, from the evidence of PW6 Ajay Kumar, it is clear that according to landlady, respondent No. 1 Radhey Shyam was the tenant, but the form, which was filled in and signed by respondent No. 2, which signature was even admitted by him, he has shown himself to be the tenant of the property. 15. PW7 Ishwari Nand was the Licence Inspector of Municipal Corporation, Shimla. He had produced an application farm for a licence of PFA items, which was in the name of respondent No.l Radhey Shyam, but was signed by respondent No. 2. Similarly, PW8 Sita Ram, Inspector of Food and Civil Supplies, Shimla, has produced Ex.PW-8/A wherein the name of respondent No. 2 was mentioned. PW9 Jaswant Singh was Inspector of Weights and Measures, Shimla and he had produced Ex.PW9/A wherein also name of respondent No. 2 was mentioned. Similarly, PW8 Sita Ram, Inspector of Food and Civil Supplies, Shimla, has produced Ex.PW-8/A wherein the name of respondent No. 2 was mentioned. PW9 Jaswant Singh was Inspector of Weights and Measures, Shimla and he had produced Ex.PW9/A wherein also name of respondent No. 2 was mentioned. In his cross- examination, naturally, he had .l admitted that he had no personal knowledge that respondent No. 2 was sub-tenant of respondent No. 1. He also admitted that he could not to say that the record pertains to the suit shop. 16. On behalf of the respondents four witnesses were examined. RW1 Radhe Shyam stated in his evidence that he is the tenant of the suit shop. Respondent No.2 Rampher is his uncle. In absence of Respondent No.l, Respondent No.2 used to look-after his business. He further stated that ail goods were purchased by him. Electricity meter is in his name and the relevant licences are also issued in his favour by the authorities. He further stated that respondent No.2 is staying with him as his uncle. A shop at Subathu is in his wifes name and he is staying with his family members at Subathu. In his absence, therefore, the business is being run by his uncle, respondent No.2. According to him, he has not sub-let the suit shop to respondent No.2. 17. Certain facts are, however, admitted by him e.g. since last about four years from the date of his deposition, he has left Shimla and settled in Subathu. His ration card, which was earlier at Shimla, is no longer there. His name in the Voters List, which was in existence, was subsequently deleted. He had also stated that respondent No.2 had full control over the suit shop (RAMPHER KA DUKAN MEIN PURA AKHT1AR HAI). 18. Respondent No.2 Rampher in his deposition stated that respondent No. 1 is the owner of the suit shop, who is his nephew. He further stated that with a view to assist and help his nephew, who is having a shop in Subathu, he is looking-after the suit shop. The goods are, however, purchased by respondent No. 1 and the entire accounts are also looked- after by the first respondent. The first respondent is staying at both the places - Subathu and Shimla. He categorically denied that as an owner of the shop, he has put his signatures or thumb impression any where. The goods are, however, purchased by respondent No. 1 and the entire accounts are also looked- after by the first respondent. The first respondent is staying at both the places - Subathu and Shimla. He categorically denied that as an owner of the shop, he has put his signatures or thumb impression any where. According to him, respondent No. 1 alone is responsible for profits and losses. Respondent No. 1, purchases the goods and respondent No.2 is only looking after the business. The petitioner has never accepted respondent No.2 as her tenant. 19. In cross-examination, respondent No.2 admitted that his family members are staying at Matiana and nobody is with him at Shimla. He is sitting in the shop since last about 20 years. He has admitted that respondent No.l had no ration card in Shimla and since last 5 to 6 years, it is only respondent No.2 who is doing business in the shop. He denied that he is purchasing the goods and selling them. He also denied that he is keeping books of accounts and yet not producing them in the court. He admitted his signature on document Ex.PW-6/A but he has denied that he has filled in the said form. Similarly, he admitted his signatures on document Ex.PW-7/A.and stated that an applicaton for issuing licence was made by him in his own name. He further admitted that no member of family of respondent No. 1 was staying in Shimla but denied that he is not doing business in Shimla through respondent No. 1. He also denied that respondent No. 1 is not his nephew. 20. From the evidence of contesting patties, referred to herein above, it is clear that respondent No. 1 has shifted to Subathu with all his family members. It is also clear from his substantive evidence that since last four years he is doing his own business at Subathu. No doubt, according to him, a shop at Subathu is in the name of his wife but the fact remains that it is respondent No. 1 who is doing business in that shop. He had also to admit that his ration card, which was earlier at Shimla, is no longer there at the time of his deposition. Similarly, his name from the Voters List is deleted. He had also to admit that his ration card, which was earlier at Shimla, is no longer there at the time of his deposition. Similarly, his name from the Voters List is deleted. He had also admitted in his evidence that respondent No. 2 has complete control over the business in the suit shop. 21. No doubt, Mr. Bawa, learned counsel for the respondents, strenuously urged that the said statement cannot be taken in its isolation and must be read along with entire evidence. According to him, the statement made by the witness shows respect towards his uncle who is an elderly person of the family and it does not mean that respondent No. 1 has sub-let the suit shop in favour of respondent No. 2. I am afraid, the submission of the learned counsel cannot be upheld. I am taking the statement in the light of all the facts and attending circumstances. If a person has left the town since four to five years; his name has been cancelled from the Voters List as also his ration card has not been renewed and such person has his own independent business at other place, who is also staying with his family members at that place and his children are also studying there, it cannot be said that he is in exclusive possession of the suit shop. 22. In my opinion, therefore, considering all the circumstances of the case, respondent No. 1 was right in stating that the control of the shop is with respondent No. 2. It is also to be appreciated that a form under the Himachal Pradesh Municipal Corporation Act is filled in by respondent No. 2, showing himself to be the tenant of the property and is signed by him. It, therefore, cannot be said that the petitioner was not able to prove that respondent No.l has parted with exclusive possession in favour of respondent No. 2. 23. Once it is held that respondent No. 1 has, without the prior consent of the landlady, parted with exclusive possession in favour of respondent No. 2, it is for the respondents as to how respondent No. 2 came to be in exclusive possession of the property. 23. Once it is held that respondent No. 1 has, without the prior consent of the landlady, parted with exclusive possession in favour of respondent No. 2, it is for the respondents as to how respondent No. 2 came to be in exclusive possession of the property. As held by the Supreme Court in Smt. Rajbir Kaur and another v. M/s. S. Chokesiri and Co., 1989(1) SCC 19, and reiterated in several decisions, it is for the tenant to show as to how "a stranger" is found to be in exclusive possession of the property let out to the tenant. It was held by the Apex Court that once the landlord succeeds in estbalishing that possession of the demised premises by the tenant was handed over to the third party in breach of the provisions of a Rent Act, in absence of any explanation and rebuttal material by the tenant, it is open to a court of law to infer that such transfer would be with monetary consideration as ordinarily, such agreement is between tenant and so called sub-tenant and landlord is seldom made a party to an agreement. 24. In the instant case, apart from the fact that there is no reasonable explanation by any of the respondents, their specific case is that no exclusive possession was handed over by respondent No.l to respondent No.2 and, hence, there was no question of sub-letting. Once it is proved that respondent No.2 is in exclusive possession of the shop, it is expected on the part of respondent No.l or respondent No. 2 as to how respondent No. 2 came to be in possession of the shop. In absence of any explanation, in my opinion, the Rent Controller was right in holding that it was proved by the landlady that respondent No. 1 had sub-let the suit shop in favour of respondent No. 2. As there was no written consent as contemplated by Section 14 of the Act, the respondents were liable to be evicted. 25. The matter can be looked at from another angle as well. After the order of eviction was passed by the Rent Controller, an application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was made by the respondents before the Appellate Authority. 25. The matter can be looked at from another angle as well. After the order of eviction was passed by the Rent Controller, an application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was made by the respondents before the Appellate Authority. In the said application, the respondents stated that there was no sub- letting by respondent No.l in favour of respondent No. 2. In paragraph 3, it was stated that respondent No. 1 was maintaining cursory accounts of business which was run with the help of respondent No. 2 right from the year 1975, i.e. inception of tenancy. It was further their case that at the end of each year, both the respondents used to settle accounts and "share the profits in equal shares". Accoridng to the respondents, the register could not be produced earlier as the Rent Controller failed to frame proper issues on the pleadings of the parties. Moreover, the respondents being semi- literate and illiterate could not understand the importance of the documents and, as such, they could not be shown even to their counsel. Now, if we read the substantive evidence of both the witnesses, respondent No. 1 Radhey Shyam as well as respondent No.2 Rampher, before the Rent Controller, it was never the case of any of them that the business was being run jointly and the profit was being shared between them equally. On the contrary, the positive case of both the respondents was that it was respondent No. 1 alone who was doing business in the suit shop and respondent No.2 had no interest whatsoever in it. It was their specific case that only in absence of respondent No. 1, respondent No. 2 used to look-after the shop. Respondent No. had also gone to the extent in saying that entire profits or losses from the business were of respondent No. 1 alone. It was only at the appellate stage that the entire case was sought to be changed by introducing a totally new and inconsistent version. The Appellate Authority, in my opinion, was wholly right in not allowing an application for additional evidence but then it has committed an error of law as well as of jurisdiction in ignoring admissions made by both the witnesses in their depositions and in ignoring material evidence and in reversing the finding recorded by the Rent Controller. 26. The Appellate Authority, in my opinion, was wholly right in not allowing an application for additional evidence but then it has committed an error of law as well as of jurisdiction in ignoring admissions made by both the witnesses in their depositions and in ignoring material evidence and in reversing the finding recorded by the Rent Controller. 26. My attention was invited by the learned counsel to decisions in Rameshchandra K. Patwa and others v. Titthaldas Chimanlal & Ors. 1993(2) RCJ 27 (Gujarat); Associated Hotels of India Ltd., v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933); Dipak Banerjee v. Smt. Lilabati Chakraborty, AIR 1987 SC 2055; and M/s. Delhi Stationers and Printers v. Rajendra Kumar, AIR 1990 SC 1208. In the above decisions, it has been made clear that initial burden is on the landlord to prove that the tenant has parted with exclusive possession in favour of a stranger. That is a sine qua non or condition precedent. If the factum of transfer of exclusive possession in favour of someone else is not established the matter must necessarily come to an end and a suit or petition should be dismissed. But once that ingredient is established, it is open to a Court or a Rent Controller to draw an inference that such transfer is with monetary consideration in absence of reasonable explanation by the other side. 27. In the instant case, in my opinion, the Rent Controller was fully justified in recording a finding of fact on the basis of evidence on record - oral and documentary - that respondent No.l has transferred exclusive possession in favour of respondent No.2. Though said finding was based on evidence and hence, could not have been disturbed, the Appellate Authority interfered with it and thereby committed grave error of law. The finding recorded by the Appellate Court, therefore, cannot be said to be a finding in law and. such a purported finding is not sustainable... 28. I am mindful of the fact that the power of this Court while exercising revisional jurisdiction are limited. But where a finding recorded by the authority is not supported by evidence and it is contrary to the material on record, such finding cannot be said a finding and this court will be justified in interfering with an order. 29. 28. I am mindful of the fact that the power of this Court while exercising revisional jurisdiction are limited. But where a finding recorded by the authority is not supported by evidence and it is contrary to the material on record, such finding cannot be said a finding and this court will be justified in interfering with an order. 29. In this connection my attention was invited by the learned counsel for the petitioner to two decisions of the Supreme Court in Lachhman Dass v. Santokh Singh 1995(4) SCC 201 and Kala and another v. Madho Parshad Vaidya, AIR 1998 SC 2773. In both the cases, it was observed by the Apex Court that the jurisdiction under the relevant Rent Act may be limited, but it is not in the nature of jurisdiction under Section 115 of the Code of Civil Procedure, 1908. In case an error of law, therefore, it is open to a High Court to interfere with a finding which is contrary to law, unwarranted or perverse. In the instant case, as the finding cannot be said to be finding based on evidence on record, the Appellate Authority ought not to have recorded that finding and this court has power to interfere with it. 30. For the foregoing reasons, in my opinion, civil revision petition deserves to be allowed and is accordingly allowed. The order passed by the Appellate Authority is hereby quashed and set-aside and the order passed by the Rent Controller are restored. In the facts and circumstances, there shall be no order as to costs.