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2000 DIGILAW 225 (HP)

SOHAN LAL KHANNA v. AMAR SINGH

2000-08-24

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, J. :- This petition is filed by the petitioner-tenant being aggrieved and dis-satisfied with the order of eviction passed by Rent Controller (2), Shimla on November 26, 1994 in case No. 36/2 of 1991/90 and confirmed by the appellate authority (2) Shimla on September 25, 1997 in CMA No. I22-S/14of 1994. 2. Petitioner before the Rent Controller (respondent herein) is the owner of a house consisting of two rooms, one pantry, one kitchen, a bath and one common latrine with open verandah and compound in Cordel Cottage, Jakhoo, Shimla. The petitioner herein was the tenant of the said premises. They will be referred to as landlord and tenant, respectively. The landlord filed an applicaton before the Rent Controller under Clause (v) of sub section (2) of Section 14 of the Himachal Pradesh Urban Rent control Act, 1987 (hereinafter referred to as the Act) on October 27, 1990 alleging that the tenant had ceased to occupy the rented premises for a continuous period of twelve months from the date of institution of the petition without reasonable cause and hence, he was liable to be evicted. 3. The tenant filed his reply raising preliminary objections against the maintainability of the petition as also objecting on merits. It was inter alia, contended that the landlord had no locus standi to file the petition as he was one of the co-owners and other co-owners were not joined; that the landlord was estopped by his own acts, deeds and conduct from filing the petition; that the pleadings were not verified in accordance sith law and, hence, the petition was not tenable; that the petition lacked material particulars as required by law; that the eviction was sought on surmises and conjectures and that the petition was filed with mala fide intention/oblique motive only to harass the tenant. 4. On merits, it was contended that it was not true that the tenant had left Shimla or had ceased to occupy the premises for a continuous period of twelve months without reasonable cause. The case of the tenant was that he along with his wife was staying in the suit premises. Since the case was not covered by Clause (v) of sub-section (2) of Section 14 of the Act, the tenant was not liable to be evicted. 5. On the basis of the pleadings of the parties the Rent Controller framed issues. The case of the tenant was that he along with his wife was staying in the suit premises. Since the case was not covered by Clause (v) of sub-section (2) of Section 14 of the Act, the tenant was not liable to be evicted. 5. On the basis of the pleadings of the parties the Rent Controller framed issues. On maintainability of petition, the Rent Controller held that the petition was maintainable as the petitioner had a right to file such petition. He also held that the petitioner was not estopped from filing the petition; the petition was verified in accordance with of law and did not lack material particulars, as contended by the tenant. 6. It was strongly contended before the Rent Controller that it was not true that the tenant had not stayed in the suit premises for a continuous period of twelve months. For that reliance was placed on certain circumstances. Strong reliance was, however, placed on the fact that from the meter reading, it was clear that though there was no electricity consumption in the months of August, 1989, September, 1989, December, 1989toJune, 1990but in October, 1999, there was electric consumption to the extent of 10 units. Similarly, in November, 1989, 5 units were consumed by the tenant. Likewise in July and August, 1990,. 10 electricity units were consumed. It was also stated that the tenant was residing with his wife in the suit premises and the tenant got himself medically treated in Government Dispensary, Jakhoo, Shimla and documentary evidence was also produced to that effect. In the light of these circumstances, it was urged that the case did not fall within the mischief of provisions of law and the petition was liable to be dismissed. 7. The Rent Controller held that looking to the evidence as a whole, it was proved by the landlord that the tenant had ceased to occupy the suit premise-, for a continuous period of twelve months without reasonable cause. In coming to that conclusion, the Rent Controller relied upon certain facts. According to the Rent Controller, from the totality of the facts and circumstances, it was proved that the tenant had ceased to occupy the rented premises as alleged by the landlord. In coming to that conclusion, the Rent Controller relied upon certain facts. According to the Rent Controller, from the totality of the facts and circumstances, it was proved that the tenant had ceased to occupy the rented premises as alleged by the landlord. In this connection, the Rent Controller relied upon the evidence of Tax Inspector of Municipal Corporation, Election Kanungo, Meter Reader of the Electricity Authority and deposition of Smt. Shyama Sharma. An additional factor was also considered by the Rent Controller that summons and other communications were served upon the tenant at his Faridabad address. 8. Being aggrieved by the order passed by the Rent Controller, the tenant approached the appellate authority. The appellate authority, once again considered the entire evidence on record and in paragraph 17 of the order, observed as under: "I have carefully examined the oral as well as documentary evidence brought on record by the parties. The case of the petitioner was that the respondent is not residing in the demised premises for a period of more than twelve months preceding the filing of the petitioner is satisfactorily proved on record from the cogent, reliable and convincing evidence led by the petitioner. In this regard the version of PW-2 Sh. Charan Dass Tax Inspector, PW-3 Shri Rajinder Singh Election Kanungo and PW-4 Shri Suran Ram Meter Reader, HPSEB, Shimla is relevant. The testimonies of PW-2 Sh. Charan Dass amply demonstrated that during the year 1989-90 when he had gone to the demised premises for the assessment of hosue tax, he found the demised premises having been locked. According to him, even prior to that he noticed the demised premises locked. Shri Rajinder Singh election Kanungo has also stated on the basis of record that in the year 1989 the respondent was not entered in the voter list. Shri Surat Ram meter reader has also stated on the basis of record that during the period from August, 1989 to November, 1990 the consumption of electricity pertaining to the meter installed in the name of the respondent is ten units in the month of October, 1989, five units in the month of November, 1989, where as ten units each during the months of July and August, 1990. If the version of PW-5 Smt. Shyama Sharma is seen, she has stated that right from the year 1988; she always found the demised premises locked. If the version of PW-5 Smt. Shyama Sharma is seen, she has stated that right from the year 1988; she always found the demised premises locked. In rebuttal of such evidence, the respondent himself has stepped in the witness box as PW-1 and examined Sh. Liaq Ram as RW-2. No doubt that the respondent has come forward with the plea that he has been making the payment of electricity charges regularly, however, as noticed hereinabove during the period August, 1989 to October, 1989 the electricity consumption as per the record produced by PW-4 Sh. Surat Ram is only during the months October and November, 1989 as well as July and August, 1990. Such consumption is also nominal. Such material available on record no doubt establishes the occasional visits of the respondent to the demised premises, however, it cannot be said in view of the same that he is residing regularly therein particularly when the respondent has failed to produce the record pertaining to the consumption of gas as well as some articles having purchased by him on his ration and during the period in question. Not only this, the respondent in his examination-in-chief has admitted that he never remained outside the demised premises for a period of more than 11 months. The respondent has also admitted that his children are settled at Faridabad and he used to visit there occasionally. He has also admitted that he has been served in all the cases filed against him at his Faridabad address. This much material available on record leads to the only conclusion that the respondent had ceased to occupy the premises in question for a period more than 12 months on the day of filing of the present petition. This petition was filed before the trial court on 27.10.1990. It is thus the period prior to 27.10.1990 and 12 months in all has to be taken into consideration. The petitioner thus had to prove that the respondent has not stayed in the premises in question during the period August, 1989 to September, 1990. The evidence discussed here-In above revealed that the petitioner has satisfactorily discharged the onus upon him in this regard. The factum of there being electricity consumption for few months and that is also very meager alone is not sufficient to beliette case of the petitioner. The evidence discussed here-In above revealed that the petitioner has satisfactorily discharged the onus upon him in this regard. The factum of there being electricity consumption for few months and that is also very meager alone is not sufficient to beliette case of the petitioner. The respondent may have visited the premises in question occasionally during the such period, however, it cannot be said on this score along that the respondent is residing regularly in the building in question and never ceased to occupy the same." 9. I have heard Mr. S.V. Sharma for the tenant and Mr. H.K. Bhardwaj, for the landlord. 10. It was contended on behalf of the tenant that both the authorities have committed an error of law and of jurisdiction in passing an order of eviction against the tenant. It was submitted that two ingredients were required to be taken into account before passing an order of eviction under Section 14(2)(v), namely, (i) animus and (ii) possidendi. So far as animus is concerned, the counsel submitted that the tenant never intended to leave Shimla or not to stay in the suit premises. It was his consistent case that all throughout he was staying with his wife in the suit premises. Since his two sons were settled in Faridabad and Panipat, he used to visit those places. But his permanent residence was in Shimla in the suit premises. The first ingredient which was required to be proved against the tenant by the landlord, therefore, was not established. 11. Regarding factum of possession, the counsel submitted, it was clearly established that the tenant had not ceased to occupy the suit premises continuously for a period of twelve months without reasonable cause. Firstly, he had not ceased to occupy the suit premises continuously for a period of twelve months without reasonable cause. Firstly, he had not ceased to occupy the premises continuously for a period of twelve months. Secondly, it cannot be said that even for a short period, he ceased to occupy the premises without reasonable cause. Looking to the electricity bills as also admission in Government Dispensary at Shimla, it was proved that the tenant was very much in Shimla and the Rent Controller as well as the Appellate Authority had gravely erred in holding that the case was covered by Clause (v) of sub-section (2) of Section 14 of the Act. 12. Looking to the electricity bills as also admission in Government Dispensary at Shimla, it was proved that the tenant was very much in Shimla and the Rent Controller as well as the Appellate Authority had gravely erred in holding that the case was covered by Clause (v) of sub-section (2) of Section 14 of the Act. 12. In this connection, my attention was invited by the learned counsel to a decision of this Court in G.C. Bhatia v. R.L Sethi (ILR 1986 HP 176) and M/s. Babu Ram Gopal & Ors., v. Mathra Dass, 1990(2) RCR 66 (SC). It was also submitted that no proper opportunity was given by the Rent Controller and the order of eviction so passed deserves to be interfered. 13. Mr. H.K. Bhardwaj, learned counsel for the landlord, on the other hand, submitted that both the authorities have recorded a finding of fact against the tenant. This Court is exercising revisional jurisdiction under Section 24(5) of the Act. The scope of revision is limited. It was also submited that none of the decisions cited on behalf of the tenant would apply to the facts of the present case. It was also urged that several factors have been taken into account by both the authorities and considering cumulative effect thereof, it is not possible to contend that such a finding could not have been arrived at by the authorities. It was, therefore, submitted that the order does not required interference and the revision deserves to be dismissed. It was also submitted that reasonable opportunity was afforded to the tenant and only thereafter, the case was decided by the Rent Controller. 14. Having gone through the relevant record as also the finding recorded by the authorities, in my opinion, no error of law has been committed either the Rent Controller or by the Appellate Authority. 15. Looking to the evidence of Tax Inspector, Election Kanungo, an official from the H.P. State Electricity Board and Smt. Shyama Sharma, it is clear that the suit premises was found locked. The Tax Inspector in his evidence Stated that whenever he visited the suit premises, it was found locked. The Election Kanungo said that earlier the name of the tenant appeared in the voters list but subsequently, it was deleted. The Tax Inspector in his evidence Stated that whenever he visited the suit premises, it was found locked. The Election Kanungo said that earlier the name of the tenant appeared in the voters list but subsequently, it was deleted. Smt. Shyama Sharma deposed that since 1988, she was staying in the neighbourhood of tenant and she had always seen the suit premises locked. Regarding Meter Reading, it is no doubt true that for few months, there was electricity consumption. In my opinion, however, both the authorities have rightly observed that merely on the basis of consumption of electricity to the extent of few units (5 or 10), it could not be said that a person is staying in the suit premises. Before the Appellate Authority, some judgments were cited in which it was mentioned that the fact of non-consumption of electricity was totally irrelevant. In my opinion, however, the said fact cannot be said to be irrelevant altogether. It may not be a clinching circumstance but it is one of the facts, which has to be considered by the authorities while deciding the issue as to non-user by the tenant. 16. In my view, the learned counsel for the landlord is right in relying upon a decision of this Court in St. Michaeals Cathedral Catholic Club v. Smt. Harbans Kaur Nayani 1997(1) Sim. L.C. 237). In the said judgment, it was, inter alia, observed as under: "There is nothing in the statute that the landlord has to establish that the tenant has ceased to occupy the building for over 12 months immediately preceding the filing of the ejectment petition in my view, a casual visit would not clothe the tenant with a status of in occupation of the premises in order to frustrate the intention of the legislature. If such an interpretation is put, then any tenant in order to avoid eviction on that ground would remain away from the premises for 11 months and then come, live for a few days and would walk out again and will come again towards the fag-end of the year to live for a few days again in order to save ejectment. The moment it is established that the tenant has as in the present case ceased to occupy the premises in question for over five years, the cause of action for seeking her ejectment accrued to the landlord under the provisions of the Act and there could be no escape from the consequece flowing therefrom. The occupation of the tenant in the present situation cannot be in any case termed as occupation with the intention to reside in the premises. Consequently, such act and conduct cannot be encouraged to frustrate the provisions contained in the act for seeing eviction of the tenants. The provisions contained in Section 14(2) (v) of the H.P. Urban Rent Control Act, 1987 gives the landlord a right to get possession of the tenanted premises immediately when the tenant ceases to occupy the premises for a continuous period of 12 months. By no stretch of imagination a different meaning can be given or the tenant can be permitted to raise pleas that the landlord had lost the right in case, the tenant happens to re-occupy the tenanted premises after the lapse of the requisite period as given in the statute. The landlord in such situation would not loose his right to seek the ejectment of the tenant. The tenant can not in the given situation be permitted to defeat a valuable right which has accrued in favour of the landlord". 17. Again, it was specifically admitted by the tenant, which has been recorded in the judgment of the Appellate Authority that the tenant was served with a copy of the petition at his Faridabad address and all communications were served upon him at his Faridabad address. In the light of these circumstances, if a finding is recorded by the authorities that after retirement, the tenant had stayed at Faridabad with his children, it cannot be said that no such finding could have been arrived at and it requires to be interfered by this Court. 18. Now, this court is exercising revisional jurisdiction under sub- section (5) of Section 24 of the Act. It is no doubt true that the jurisdiction is not analogous to Section 115 of the Code of Civil Procedure, 1908. At the same time, however, it is not appellate jurisdiction also. 18. Now, this court is exercising revisional jurisdiction under sub- section (5) of Section 24 of the Act. It is no doubt true that the jurisdiction is not analogous to Section 115 of the Code of Civil Procedure, 1908. At the same time, however, it is not appellate jurisdiction also. If there is no error of law, this Court cannot reappraise the evidence on record and substitute its own finding for the finding arrived at by the authorities unless such findings is contrary to evidence on record or perverse. In my opinion, a finding arrived at by the authorities below cannot be said to be contrary to law or perverse. The finding by the Rent Controller and by the appellate authority, is in accordance with law. Hence, the order passed by the authorities below on the basis of such finding cannot be termed as illegal. 19. Regarding reasonable opportunity to the tenant, it was submitted that time was sought by the tenant before the Rent Controller, but it was not granted and hence prejudice was caused to the tenant. Looking to the Zimni order, dated November 6, 1994, it is clear that time was sought by the learned counsel for the tenant. The Rent Controller, however, refused to grant time on the ground that the matter was very old. Now, it may be re-called that the petition was filed on October 27, 1990 and the judgment was delivered on November 26, 1994. So, more than four years had passed. Moreover, after the prayer was rejected, both the parties were prepared to argue the matter and arguments were heard, hence, it cannot be said that no reasonable opportunity was afforded to the tenant. 20. Since on the basis of finding of fact, arrived at by the parties, an order of eviction had been passed, there is no reason to interfere with the same and the revision petition deserves to be dismissed. 21. In the result, the revision petition is dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs. 22. The learned counsel for the tenant states that some time may be granted so that the tenant may take suitable steps for shifting. It was objected to by the learned counsel for the landlord. In the result, the revision petition is dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs. 22. The learned counsel for the tenant states that some time may be granted so that the tenant may take suitable steps for shifting. It was objected to by the learned counsel for the landlord. In the facts and circumstances of the case, in my opinion, ends of justice would be met, if time to vacate the suit premises is granted to the tenant upto December 31, 2000 on his filing an undertaking on affidavit in this Court stating therein that he would hand over physical peaceful possession to the landlord on or before that day that he will not induct any person in the suit premises and will continue to pay the rent/mesne profits. Such an undertaking will be filed on or before September 23, 2000, a copy of which will be supplied to the learned counsel for the landlord. Ordered accordingly.