Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 505 (PNJ)

Sushil Kumar v. Sushila Devi

2000-05-10

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. This is a civil revision filed by Sushil Kumar and his father Rattan Lal and has been directed against the order dated 1.2.2000 passed by the appellate authority, Jagadhari, who affirmed the order dated 31.8.1996, passed by the Rent Controller, Jagadhari, who allowed the petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973(hereinafter referred to as the Act) of Shushila Devi, landlady and directed the petitioners to vacate the demised premises. 2. The brief facts of the case are that Sushila Devi filed a petition under Section 13 of the Act for the ejectment of the petitioner from the residential house bearing No. 112-B/R, Model Town Yamuna Nagar, and it was alleged by the respondent landlady that she is the owner of the demised house. She let out a portion of the demised house shown in blue colour in the site plan to one Satish Kumar many years ago on. a monthly rent of Rs. 650/- plus house tax. Thereafter, some portion shown in red colour was let out to Sushil Kumar, petitioner No. 1, on a monthly rent of Rs. 800/- plus house tax. Somewhere in the month of January, 1992, Satish Kumar vacated tenanted premises in his occupation. However, Sushil Kumar forcibly occupied that portion in the absence of the landlady and without her consent. When the landlady came to know, she protested to Sushil Kumar. The landlady wanted to shift to Yamuna Nagar but at that time, her younger son Shashi Kant Mittal was planning to got to Bahrain on deputation with the company where he was employed. The landlady was required to stay with her daughter-in-law and grand children at Delhi. It was agreed upon by the petitioner No. 1 that he would vacate the whole house on return of her son from Behrain. The rent for whole of the house except the room which was already in occupation of the landlady, bathroom and the latrine, which was being used by Satish Kumar, were retained by the landlady and the remaining portion was rented out to petitioner No. 1 on a monthly rent of Rs. 1600/- per month. The said settlement was arrived at with the intervention of the respectable. The landlady has further alleged that petitioner No. 1 has failed to pay rent to her w.e.f. 1.4.1992 to 31.7.1994 amounting to Rs. 1600/- per month. The said settlement was arrived at with the intervention of the respectable. The landlady has further alleged that petitioner No. 1 has failed to pay rent to her w.e.f. 1.4.1992 to 31.7.1994 amounting to Rs. 44,800/- along with house tax and interest. As such, he is liable to be ejected from the demised premises on the ground of non payment of rent. It was also the case of the landlady that she required the premises in question for her personal necessity and for the necessity of her family members. She had only one room in her occupation besides the use of one bathroom and latrine. Her younger son Shashi Kant Mittal is married and has two children. The landlady has no other house in her possession nor she has vacated any house after the commencement of the Act. The respondent landlady has two sons and two daughters. They are married and having children. All the children of the landlady visit her and only one room is not sufficient for her needs and status. Shashi Kant Mittal, her younger son, also wants to start his own work at Yamuna Nagar. It was also pleaded by the landlady that petitioner No. 1 Sushil Kumar, without her written consent, has sub let a portion of the property to petitioner No. 2 his father Rattan Lal for the last about two years. Thus, Sushil Kumar is liable to be ejected from the premises in question on this ground also. The petitioners were requested several times to vacate the premises but to no effect. 3. Notice of the petition was given to the petitioners who appeared and filed their written statement. In the preliminary objection, it was submitted that the petition was neither tenable nor maintainable. It was admitted that the respondent is the landlady of the premises bearing municipal No. 122-B/R, Model Town, Yamuna Nagar. Some portion of the premises was given on rent to Satish and, now, for the last about 15 months, respondent No. 2 is a tenant in the premises under a separate tenancy on a monthly rent of Rs. 600/-. The room shown in blue colour was surrendered back to the landlady about 15 months ago and the rate of rent which was previously Rs. 600/- per month was reduced to Rs. 450/-. Satish Kumar vacated the premises in his possession. 600/-. The room shown in blue colour was surrendered back to the landlady about 15 months ago and the rate of rent which was previously Rs. 600/- per month was reduced to Rs. 450/-. Satish Kumar vacated the premises in his possession. Petitioner No. 1 never forcibly occupied the said portion. In fact, the said portion was let out by the landlady to petitioner No. 1 on a monthly rent of Rs. 600/- and the petitioner a separate tenant. It was denied that the petitioner No. 1 ever agreed that he would vacate the whole house. The petitioners had been paying the rent regularly in respect of the premises in their respective possession and have paid rent upto May, 1994. On account of the cordial relations no receipt was issued by the landlady. The rent claimed w.e.f. 1.6.1994 to 31.8.1994 was tendered by the petitioners but the landlady refused to accept the same. Thus, the plea taken up by the petitioners is that there are separate tenancies. One demised premises is in the possession of petitioner No. 1 who is paying a monthly rent of Rs. 450/- per month and the other premises is in the possession of petitioner No. 2 who is paying a monthly rent of Rs. 600/- and both of them had paid the rent upto 31.5.1994. These petitioners also denied the other allegations of the landlady and prayed for the dismissal of the rent petitioner. 4. A rejoinder was filed to the written statement in which the landlady controverted the allegations of the written statement by reiterating those made in the rent petition. On the above pleadings of the parties, the learned Rent Controller framed the following issues for the disposal of the rent petition:- "1. Whether the respondent is liable to be evicted from the house in dispute on the ground alleged in para No. 3 of the petition? OPR 2. Whether the present application is not maintainable in view of preliminary objection No. 1 ? OPR 3. Relief." 5. The parties lead evidence in support of their case and under issue No. 1, it was held by the learned Rent Controller that the tenant Sushil Kumar failed to prove that he had cleared the arrears of rent as claimed by the landlady w.e.f. 1.6.1992 to 31.7.1994 and, therefore, both the petitioners are liable to be evicted. Relief." 5. The parties lead evidence in support of their case and under issue No. 1, it was held by the learned Rent Controller that the tenant Sushil Kumar failed to prove that he had cleared the arrears of rent as claimed by the landlady w.e.f. 1.6.1992 to 31.7.1994 and, therefore, both the petitioners are liable to be evicted. The Rent Controller also held that the landlady requires the premises bona fide for her personal necessity. Resultantly, Issue No. 1 was decided in favour of the respondent and against the present petitioners and vide order dated 31.8.1996, the rent petition was allowed. 6. The present petitioners jointly filed an appeal under Section 15 of the Act before the appellate authority, Jagadhari, who dismissed the appeal and the petitioners were granted two months time to vacate the demised premises: "For the foregoing reasons it is held that in respect of the demised premises there is a single tenancy and appellants No. 1 and 2 are not independent tenants of the portions in their respective possession i.e. shown in red colour with appellant No. 1 and that with respondent No. 2 in green colour in the site plan Ex.R-1 and that appellant No. 2 Rattan Lal is sub tenant of his son Sushil Kumar- appellant No. 1" 7. This Court is of the opinion that the reasons given by the courts below in holding that there was no split tenancy in possession of Sushil Kumar and Rattan Lal, are correct. In fact, some portion of the house structure was earlier in occupation of Satish Kumar, who left that house and the possession was delivered to Sushil Kumar. Ultimately, Sushil Kumar took the entire demised premises as mentioned in the earlier portion of this order at the rent of Rs. 1,600/- per month from the landlady. There was hardly any necessity on the part of the land lady to split up the tenancies in favour of Sushil Kumar and Rattan Lal who were none else but son and father. Had there been spilt of tenancies in favour of Sushil Kumar and Rattan Lal, there would have been some documentary evidence in this regard. The landlady must have issued some receipts of rent in favour of Rattan Lal also with respect of the premises over which he claims the tenancy. 8. Had there been spilt of tenancies in favour of Sushil Kumar and Rattan Lal, there would have been some documentary evidence in this regard. The landlady must have issued some receipts of rent in favour of Rattan Lal also with respect of the premises over which he claims the tenancy. 8. The case set out by the landlady before the courts below was that Sushil Kumar, petitioner No. 1. has neither paid nor tendered the arrears of rent w.e.f. 1.4.1992. On the contrary, the case set up by the present petitioners was that they had paid the rent upto 31.5.1995. They, however tendered the arrears of rent w.e.f. 1.6.1994 to 31.8.1994. There is no proof worth the name that the rent w.e.f. 1.4.1992 to 31.7.1994 has been paid to the landlady. Only a bald statement has been made which is not worth credence. 9. Counsel for the petitioners submitted that the landlady was surviving on the rental income and it is not believable that she would wait for the rent for a period of 27 months. According to the learned counsel for the petitioners, the landlady has not issued the receipt of rent w.e.f. 1.4.1992 to 31.5.1994 and now she wanted to harass the petitioners. 10. I do not subscribe to the argument of the learned counsel for the petitioner. If the landlady had not issued the receipt for several months, the petitioners should have served some legal notice upon her in order to justify their conduct. The onus was upon the petitioners to show that they had made the payment of the rent. In the absence of any cogent and reliable proof, there is no alternative for this Court but to hold that default has been committed by Sushil Kumar in the payment of the rent. 11. It was, then, submitted by the counsel for the petitioners that the landlady had taken the ground of sub-letting and she had categorically alleged in her petition that Sushil Kumar had sub let the premises in favour of Rattan Lal but no opportunity has been given by the Rent Controller to Rattan Lal to tender rent. In these circumstances, the orders of ejectment passed by the Rent Controller as well as the first appellate authority are illegal. In support of his contention, counsel for the petitioners relied upon P.C. Verma (Retd.) Lt. Col. Dr. In these circumstances, the orders of ejectment passed by the Rent Controller as well as the first appellate authority are illegal. In support of his contention, counsel for the petitioners relied upon P.C. Verma (Retd.) Lt. Col. Dr. v. Mohinder Singh and Ors., (1997-3)117 P.L.R. 857 (F.B.) a Full Bench judgment of this court, wherein in para 26, it was held as follows:- "It is clearly borne out from the record of this case and from the ejectment application itself that the landlords respondents have not taken up any of the grounds for ejectment much less the ground for non payment for rent as provided under Section 13(2)(i) against the sub-tenant who is the petitioner before us. When no demand of rent under Section 13(2)(i) is made against the sub tenant and no application as provided under Section 13(2) for demand of rent is made before the Controller specifically against the sub tenant, the sub tenant is not liable to ejectment for non payment of rent. Obviously, when no demand of rent has been made from the sub tenant (petitioner) then to eject him for non payment of rent certainly has caused a serious prejudice to him as he has not been given an opportunity of being heard by the Controller as specifically provided under Section 13 of the Act and particularly so when the landlords having failed to claim and demand the rent from the sub tenant who pleaded himself to be a direct tenant under the landlords. 12. In the opinion of this Court, counsel for the petitioners has not rightly appreciated the controversy involved in the present proceedings. The case of the landlady was that the demised premises were let out to Sushil Kumar on a monthly rental of Rs. 1,600/- per month who has not paid the rent w.e.f. 1.4.1992. Rather, he had sub let a part of the demised premises to his father Rattan Lal. The ejectment application was moved against Sushil Kumar and Rattan Lal, who filed a joint written statement and took up the plea that there were two separate tenancies; one under petitioner No. 1 and the other under petitioner No. 2. They were alleging that there were two tenancies. In these circumstances, an opportunity was afforded to Rattan Lal to establish that he was a direct tenant under the landlady. They were alleging that there were two tenancies. In these circumstances, an opportunity was afforded to Rattan Lal to establish that he was a direct tenant under the landlady. The defence of Rattan Lal itself proves that he has become a sub tenant. The moment his plea of direct tenancy under the landlady fails. There was hardly any privity of contract between the landlady and Rattan Lal. The requirement of the law is that the sub tenant must be given a chance to represent his case before the Rent Controller so that there may not be any possible collusion between the landlord and his tenant. It may be possible that at any stage, there might be a collusion between the landlord and a tenant detrimental to the interest of the sub tenant and for this reasons, an opportunity has always been granted to the sub tenant to defend himself and explain the nature of his possession. In the present case, Rattan Lal was made a party. He has come up with a destructive plea when he put up an independent tenancy. This plea failed and, in these circumstances, there was no other alternative for the courts below but to hold that Rattan Lal is not keeping the part of the demised premises in his independent right and, therefore, he becomes a sub tenant of Sushil Kumar. The moment a person is held to be a sub tenant, he has to sink and swim along with the tenant. The landlady was never under any obligation to accept the rent from Rattan Lal. The rent could only be tendered by Sushil Kumar, who could take a possible plea that Rattan Lal was residing with him but for the reasons best known to both the petitioners, they have taken a plea that there were two separate independent tenancies. This plea miserably failed. 13. The judgment relied upon by the counsel for the petitioners cannot come to the rescue of the petitioners because in the present proceedings no prejudice has been caused to them. Both the petitioners were given an opportunity of being heard by the Rent controller. Since, there was hardly any privity of contract between the landlady and Rattan Lal, therefore, it was not obligatory on the part of the landlady to claim rent from Rattan Lal. Both the petitioners were given an opportunity of being heard by the Rent controller. Since, there was hardly any privity of contract between the landlady and Rattan Lal, therefore, it was not obligatory on the part of the landlady to claim rent from Rattan Lal. She could only claim rent from Sushil Kumar being the tenant by adding Rattan Lal as a co-respondent, being the alleged sub tenant. 14. In this view of the matter. I do not see any merit in this revision, which is hereby dismissed. Both the petitioners are directed to vacate the demised premises by handing over the actual physical possession to the re spondent Sushila Devi, within one month from today, failing which it will always be open to the respondent landlady to get the premises vacated through execution.