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2001 DIGILAW 1178 (PNJ)

Gainda Ram Etc. v. L. C. Narula

2001-10-22

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. This is a landlords revision and has been directed against the judgment dated 22.10.1982, passed by the Appellate Authority, Ambala, who, reversed the order of ejectment dated 25.11.1981 passed by the learned Rent Controller, Ambala Cantt, who had ordered the eviction of Shri Om Parkash holding that he is a sub-tenant of Shri L.C. Narula and moreover, the demised premises are required for personal necessity of the petitioners-landlords. 2. The brief facts of the case are that petitioners S/Shri Gainda Ram, Ved Parkash, Vijay Kumar, Dr. Dalip Chand and Shri K.K. Gupta, who were trustees of Hargolal Trust Society, Ambala Cantt, though Shri Ved Parkash, General Attorney, filed the ejectment petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 against Shri L.C. Narula and Shri Om Parkash, seeking their ejectment from the demised premises bearing No. 5309/35 situated in, Punjabi Mohalla, Ambala Cantt. It was alleged by the petitioners that Shri L.C. Narula, respondent No. 1 was a tenant under them in the premises bearing No. 5309/35 situated in Punjabi Mohalla, Ambala Cantt on payment of Rs. 7/- as rent besides water tax at the rate of rupee one per month. The tenancy of respondent No. 1 was terminated by serving him a legal notice dated 7.2.1977 which was received by him on 9.2.1977. Respondents No. 1 and 2 are liable to be ejected from the demised premises on the grounds; that respondent No. 1 has neither paid nor tendered the arrears of rent with effect from 1.1.1977 to 31.3.1977 amounting to Rs. 56/- beside water tax of Rs. 8/-; that the respondent No. 1 has sublet the demised premises in favour of respondent No. 2 without the written consent of the petitioners after the commencement of the Act of and that the tenanted premises are required by the petitioners trustees for its institution namely Hargolal Girls High School Punjabi Mohalla Ambala Cantt as the present accommodation in the school is insufficient to meet its present requirements. 3. Notice of the petition was given to the respondents. Respondent No. 2 appeared in the trial Court but respondent No. 1 Shri L.C. Narula did not appear and as a result of that he was proceeded ex parte on 10.10.1978. 3. Notice of the petition was given to the respondents. Respondent No. 2 appeared in the trial Court but respondent No. 1 Shri L.C. Narula did not appear and as a result of that he was proceeded ex parte on 10.10.1978. The ejectment petition was contested by respondent No. 2 mainly on the ground that Hargolal Trust Society is not a registered body under the Registration Act and as such the present petition is not maintainable. It was also pleaded by respondent No. 2 that the petitioners are not the trustees. Respondent No. 2 took the stand on merits that respondent No. 1 was never inducted as a tenant by the petitioners. In fact, M/s Shiv Parshad Om Parkash of which the respondent No. 2 is a proprietor, was a tenant in the premises in question. The nature of the tenanted premises is godown. Respondent No. 2 is using the demised premises as godown for the last 30 years and, therefore, no question of sub-tenancy arises. It was also alleged by respondent No. 2 that respondent No. 1 is the real brother of the Headmistress of Hargolal Girls High School. The tenancy has been fictitiously shown in favour of respondent No. 1 just to create false ground of ejectment of respondent No. 2. Petitioners and respondent No. 1 are colluding with each other. Shri Ved Parkash who filed the present ejectment petition has not been authorised by the trustees to file the ejectment application. It was also pleaded by the respondent No. 2 that the demised premises are non-residential, therefore, the ground of personal necessity is not available. 4. The petitioners filed a rejoinder to the written statement of respondent No. 2 in which they denied the allegations by reiterating those made in the petition. Resultantly, the learned Rent Controller framed the following issues :- 1. Whether the respondents are liable to ejectment on the ground of non- payment of rent by respondent No. 1 ? OPR 2. Whether the respondents are liable to ejectment on the grounds of subletting the tenancy premises ? OPR 3. What is the nature of tenancy premises ? OPR 4. Whether the petitioners require the tenancy premises for their personal use and occupation ? OPA 5. Whether the petition is not maintainable on account of preliminary objection in the written reply ? OPR 6. Relief. 5. OPR 3. What is the nature of tenancy premises ? OPR 4. Whether the petitioners require the tenancy premises for their personal use and occupation ? OPA 5. Whether the petition is not maintainable on account of preliminary objection in the written reply ? OPR 6. Relief. 5. In order to prove their case, the petitioners have examined Ved Parkash AW1 and Shri Madan Lal Gupta AW2. They produced some documentary evidence in the shape of counterfoils of three receipts and account books of the trust. In rebuttal Shri Om Parkash respondent No. 2 appeared as his own witness as RW1 and he examined Shri Gian Chand RW2 and Shri Khushi Ram RW3. 6. After hearing the learned Counsel for the parties, the learned Rent Controller decided issue No. 1 in favour of the petitioners and against the respondents by holding that respondent No. 1 was a tenant and since he has not paid the arrears of rent, therefore, he is liable to be ejected. Issue No. 2 was also decided in favour of the petitioners holding that respondent No. 2 was inducted as a sub-tenant by respondent No. 1. Issue No. 3 was decided against the respondents holding that the nature of the tenancy was residential. Issue No. 4 was decided in favour of the petitioners declaring that petitioners required the demised premises for their personal use and occupation and lastly issue No. 5 was decided against the respondents by declaring that petition is legally maintainable. Finally, the ejectment order was passed vide the impugned order dated 25.11.1981. 7. Shri Om Parkash respondent No. 2 was not satisfied with the order of the learned Rent Controller. He filed an appeal before the Appellate Authority, Ambala, who, allowed the appeal of Shri Om Parkash for the reasons given in para No. 4 of the judgment dated 22.10.1982. It will be appropriate on my part if I reproduce the contents of para No. 4 of the impugned judgment in order to appreciate whether the reasons given by the first appellate Court are in conformity with the law or not and the aforesaid para is reproduced as under :- "The learned Counsel for the appellant has argued that Shri L.C. Narula is a convenient man of the trustees as he is the real brother of Miss Sarla Narula who is working as Headmistress in the school being run by Hargolal Trust. The evidence on the file shows that Shri L.C. Narula had been residing with his sister Sarla Narula, who has been serving in the said school for the last 39 years. It is further in evidence as admitted by Madan Lal an employee of the Hargolal Girls High School, that L.C. Narula, was also let out two more properties bearing Nos. 5309/32 and 5313, which are separately situated. There is no evidence on the file if L.C. Narula had ever occupied the premises in question. Out of the two witnesses examined by the petitioners Ved Parkash through whom the petition has been filed admits that L.C. Narula has been residing with his sister in the school premises and now he has shifted to other premises in his neighbourhood. The other witness Madan Lal also stated the same thing. It is a very important factor in this case that the alleged tenant had never examined in occupation of the premises. He is a real brother of a very devoted employee of the petitioners and two more properties are also entered in the petitioners record showing L.C. Narula as a tenant. The evidence in rebuttal convincingly show that Om Parkash is in occupation of the premises for the last more than 30 years. The petitioners do not state at all as to when the premises had been orally let out to L.C. Narula. Om Parkash has examined his neighbour. Gian Chand who has deposed that he has never seen L.C. Narula in occupation of the premises and that Om Parkash is running a godown in the premises in question since 1948. The petitioners have tendered in evidence Counter-foils Ex.A2/1 to Ex.A2/3 showing issue of rent receipts in the name of L.C. Narula. The first counter-foil Ex.A.2/1 discloses payment of Rs. 98.31 in May, 1974, counter- foil Ex.A.2/2 with respect to the receipt issued on 25.3.1976 discloses payment of Rs. 711.10 for the period 1.4.1974 to 31.3.1976 and counter-foil Ex.A.2/3 disclosed payment of Rs. 75/- with respect to receipt issued on 11.1.1970 for the period 1.4.1976 to 31.12.1976. These counter-foils and the account statement Ex.AW2/4 are not convincing evidence when appreciated in the light of all other facts and circumstances of the case. L.C. Narula seems to have been introduced so as to create a ground for ejectment of the appellant. 75/- with respect to receipt issued on 11.1.1970 for the period 1.4.1976 to 31.12.1976. These counter-foils and the account statement Ex.AW2/4 are not convincing evidence when appreciated in the light of all other facts and circumstances of the case. L.C. Narula seems to have been introduced so as to create a ground for ejectment of the appellant. When he had never occupied the premises in question, it cannot be accepted that he was a tenant therein. The Rent Controller had thus erred in finding him to be the tenant and accepting the plea of subletting. Since L.C. Narula is not the tenant is the premises, the non-payment of rent has no bearing on the eviction petition. The premises in question are being used as a godown by Om Parkash for the last more than 30 years as evident from his unrebutted testimony and that of his witness Gian Chand on this point. Even Ved Parkash attorney of the petitioners had at one state described the premises as godown during his examination-in-chief. The premises in question fall within the definition of non-residential building and as such cannot be got vacated on the ground of personal necessity. The claim of the petitioners, therefore, falls on all fronts. The appeal is, therefore, accepted with costs throughout. Counsel fee is assessed at Rs. 200/-." 8. I have heard Shri M.L. Sarin, Senior Advocate, appearing on behalf of the petitioners and with his assistance have gone through the record of the case. Nobody has appeared from the side of the respondents. 9. The first point for determination is whether the petitioners inducted Shri L.C. Narula, respondent No. 1 as a tenant in the demised premises. If this point is established in favour of the petitioners, it is the admitted fact that respondent No. 1 Shri L.C. Narula has not tendered any arrears of rent as claimed by the landlords and on this ground alone both the respondents i.e. S/Shri L.C. Narula and Om Parkash are liable to be ejected. There is no written tenancy but it is not the requirement of the law that there should be always written tenancy. Relationship of landlord and tenant can be created either by a written agreement or by oral agreement accompanied by delivery of possession. 10. There is no written tenancy but it is not the requirement of the law that there should be always written tenancy. Relationship of landlord and tenant can be created either by a written agreement or by oral agreement accompanied by delivery of possession. 10. The case set up by the petitioners is that the premises in question was let out to Shri L.C. Narula on a monthly rental of Rs. 7/- besides water tax which was fixed at the rate of rupee one per month. The petitioners are the trustees of a Trust. It has come in the evidence that the account-books of the Trust are being audited by the Chartered Accountant. In order to prove the relationship of landlord and tenant between the petitioners and respondent No. 2, the petitioners have placed on record the certified copy of the ledger pages No. 32, 49, 67, and 68 and 1974 to 1978-79. The copy of the ledger is Ex.AW2/4. The reading of the same would show that Shri L.C. Narula had been paying the rent to the petitioner-trust. Shri L.C. Narula has not come in the witness box. In these circumstances, there is evidence which is a pointer against Shri L.C. Narula and Om Parkash that in fact Shri L.C. Narula was inducted as a tenant. The things do not rest here. There is more documentary evidence on the record to show that the petitioners-trust had been issuing the receipts in favour of respondent No. 1. These receipts are Ex.AW2/1 vide which it has been established that a sum of Rs. 89.41 which included Rs. 22.20 as rent paid by Shri L.C. Narula to the petitioners. Second receipt is No. 951 for a sum of Rs. 711.10 which included Rs. 192/- having been paid by Shri L.C. Narula to the petitioners on 25.3.1976 and the third receipt Ex.AW2/3 of Rs. 274.80, which was issued on 11.1.1977, included Rs. 75/- as rent paid by Shri L.C. Narula. 11. From the above documentary evidence it is established that respondent No. 1 was inducted as a tenant. 12. Now, let us see what is the evidence in rebuttal to this issue. Firstly, Shri L.C. Narula did not contest the petition nor he appeared in the witness-box. 75/- as rent paid by Shri L.C. Narula. 11. From the above documentary evidence it is established that respondent No. 1 was inducted as a tenant. 12. Now, let us see what is the evidence in rebuttal to this issue. Firstly, Shri L.C. Narula did not contest the petition nor he appeared in the witness-box. Moreover, he was never examined by respondent No. 2 whose main defence was that Shri L.C. Narula was never inducted as a tenant and in fact he is a fictitious person whose name has been introduced as a tenant because he is the real brother of the headmistress of the school of the petitioners, and, therefore, his services have been availed to create a ground of sub- letting. The reasons advanced by the Appellate Authority which I have already reproduced above cannot be accepted and those reasons are very favourable. Assuming for the sake of argument that L.C. Narula was the real brother of the Headmistress of the school, it is no ground that a tenancy cannot be created in his favour. 13. Now let us see what was the defence of respondent No. 2 in the trial Court. His case was that he is in possession of the demised premises for the last 30 years and the name of his firm is Shiv Parshad Om Parkash. If this is so then respondent No. 2 must be paying rent to the petitioners during this period of 30 years and he must be entering the rent amount in his account books. Respondent must have got some receipts of rent from the petitioners though their attorney. Nothing has been produced by respondent No. 2. In these circumstances, an adverse inference has to be drawn against respondent No. 2 when the best evidence in the shape of account-books has not been produced by him. The documentary evidence i.e. AW2/1, AW2/2 and AW2/3 which finds corroboration from the ledger, cannot be disbelieved once it is established that respondent No. 1. Shri L.C. Narula was the tenant and that Shri L.C. Narula did not tender the arrears of rent as claimed by the petitioners. Then there is no difficulty on the part of this Court to hold that both the respondents of the ejectment application are liable to be evicted. Shri L.C. Narula was the tenant and that Shri L.C. Narula did not tender the arrears of rent as claimed by the petitioners. Then there is no difficulty on the part of this Court to hold that both the respondents of the ejectment application are liable to be evicted. The plea of respondent No. 2 that he was a direct tenant under the petitioners has not been proved for the reasons given above. The learned Rent Controller rightly appreciated the evidence led by the parties on issue No. 1 and then came to the right conclusion that respondent No. 1 Shri L.C. Narula was the tenant and that respondent No. 2 was never inducted as a tenant nor there existed any relationship of landlord and tenant between the petitioner and respondent No. 2. For the weak reasons the first appellate Court has reversed the firm and reliable findings of the learned Rent Controller and in these circumstances, I am inclined to upset the findings of the appellate Court by restoring the findings of the Rent Controller on issue No. 1 as a serious prejudice has been caused to the petitioners on account of the findings of the Appellate Authority which has not rightly appreciated or interpreted the evidence. The finding of the first Appellate Court on issue No. 1 stands reversed and the finding of the Rent Controller stands restored. 14. With the reversal of the finding of the Appellate Authority on issue No. 1, there is no difficulty in holding that respondent No. 2 in a sub-tenant of respondent No. 1. We all know that sub-tenancy is a secret arrangement between the tenant and the sub-tenant and landlord can hardly become a party to that secret arrangement. It is the case of respondent No. 2 that he is in exclusive possession of the property but not in the capacity of a tenant. We all know that sub-tenancy is a secret arrangement between the tenant and the sub-tenant and landlord can hardly become a party to that secret arrangement. It is the case of respondent No. 2 that he is in exclusive possession of the property but not in the capacity of a tenant. Once the plea of direct tenancy between the petitioners and respondent No. 2 fails, then inference has to be drawn against respondent No. 2 that he is a sub-tenant as observed by the Honble Supreme Court in 1988(2) RCR (Rent) 328 (SC) : AIR 1958 SC 1845, Smt. Rajbir Kaur and another v. M/s. Chokosiri and Co., wherein the Honble Supreme Court held as follows :- "In a suit for eviction on ground of subletting if exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the tenant to rebut this. Such transactions of subletting in the guise of licences are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not unoften a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the landlord. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to established these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the instant case the landlord having been forced by the Courts below to have established exclusive possession of the sub-tenant of a part of the demised premises and the explanation of the transaction offered by the tenant having been found by the Courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations." 15. Reliance can also be placed on 1985(1) RCR (Rent) 101 : 1994(4) JT SC 113, M/s. Nihal Chand Rameshwar Dass and another v. Vinod Rastogi and others wherein it was observed as under :- "If exclusive possession is established and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermeable for the Court to draw an inference that the transaction was entered into with monetary consideration mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature clandestine arrangements between the tenant and the sub- tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risks of non- persusion. If at the conclusion of the trial, a party has failed to establish these to the appropriate stands (standard ?), he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think that, appellants have been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the Courts below to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw or (an ?) inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found and have got to be accepted, as in this case also the appellants did not explain for what consideration they had allowed Zinda Hasan to occupy part of the tenanted premises and, on the contrary, denied to have parted with possession. This contention of the appellants, therefore, also fails." 16. In view of the above ratio of the Honble Supreme Court, there is no difficulty on my part to hold that respondent No. 1 Shri L.C. Narula has parted with the possession of the demised premises in favour of Shri Om Parkash, respondent No. 2 who is in exclusive possession of the property and his possession is not with the written consent of the petitioners and, therefore, there is no other inference but for the one that respondent No. 2 is a sub-tenant of respondent No. 1 and in these circumstances, both the tenant and sub-tenant are liable to be ejected from the demised premises. I reverse the finding of the appellate Court on issue No. 2 and restore the finding of the Rent Controller on this issue. 17. With regard to finding on issue No. 3, after the decision of Shri Harbilass case, reported as 1995(2) RCR 672, now the ejectment can be sought by the landlord on personal necessity even with respect to non-residential premises. Considering the case of respondent No. 2 that the demised premises are non-residential, still the landlord can seek the eviction if he establishes that these premises are required for personal necessity. Considering the case of respondent No. 2 that the demised premises are non-residential, still the landlord can seek the eviction if he establishes that these premises are required for personal necessity. The case set up by respondent No. 2 in the trial Court was that the demised premises are being used as godown and it is non-residential premises, therefore, the petitioners could not seek the ejectment for the personal necessity. The submission cannot be accepted. The reason being is that the demised premises was let out to Shri L.C. Narula, respondent No. 1, for residential purpose. He handed over the possession to respondent No. 2 who started using the demised premises for non-residential purpose. Even if it is assumed for the sake of argument that the premises is non-residential, still as per the judgment of the Harbilals case (supra) the petitioners are entitled to seek eviction provided they prove their bona fides. It has been observed in 1997(2) RCR(Rent) 161 (P&H) : 1997(2) PLR 775, Shri Ved Parkash Gupta v. State of Haryana, vide which Section 13(3)(a) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, was struck down holding that the ground of ejectment made out therein, would be uniformly applicable to all categories of buildings. This judgment of the Single Bench was challenged in LPA which was also dismissed by the Division Bench vide a judgment reported in 1991(1) RLR 689, State of Haryana v. Ved Parkash. So far as the personal necessity is concerned, it is the statement of the witnesses of the petitioners that the demised premises are required by them for the extension of the school. 18. On the contrary, there is no evidence to show that the petitioners do not require the tenanted premises for the purpose of the extension of the school. Thus, I again affirm the finding of the Rent Controller on issues Nos. 3 and 4 and reverse the finding of the first appellate Court on these issues. 19. The finding of the Rent Controller on issue No. 5 was not set aside by the first appellate Court. The findings of the Rent Controller on this issue are thus affirmed. 20. In these circumstances, I am of the considered opinion that this revision must succeed. The first appellate Court had no cogent reasons with it to reverse the well reasoned findings of the learned Rent Controller. The findings of the Rent Controller on this issue are thus affirmed. 20. In these circumstances, I am of the considered opinion that this revision must succeed. The first appellate Court had no cogent reasons with it to reverse the well reasoned findings of the learned Rent Controller. It is established on the record that relationship of landlord and tenant existed between the petitioners and Shri L.C. Narula respondent No. 1 who did not pay the arrears of rent as claimed by the petitioners. Further, it is established on the record that respondent No. 1 had sub-let the demised premises in favour of respondent No. 2 Shri Om Parkash. Further I hold that the tenancy was for residential purpose. Even if it is assumed for the sake of arguments that premises were non-residential, still the landlords are entitled to get eviction of non-residential building on the ground of personal necessity. 21. The net effect of this judgment is that this revision must succeed and the same is hereby allowed. The judgment of the first appellate Court is hereby set aside while that of the Rent Controller is restored and the respondents are granted three months time to vacate the demised premises failing which it will be open too the petitioner to seek the ejectment of the respondents i.e. tenant and the sub-tenant through the Court of law by filing the execution application. There shall be no order as to costs.