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2001 DIGILAW 241 (HP)

BRIJ MOHAN v. BRAHMA NAND

2001-09-14

A.K.GOEL

body2001
JUDGMENT Arun Kumar Goel, J: - This revision petition under Section 24 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the "Act") has been preferred by the petitioner-tenant against the judgment dated 3.10.1997 passed by the learned Appellate Authority (District Judge), Una in CM.A. No.29 of 1993. 2. By Means of impugned judgment, order passed by the learned Rent Controller, Una has been set aside and while allowing the appeal of the landlord, he has directed the tenant to hand over the possession of the shop in question to the respondent-landlord on or before 31. 12.1997. 3. Madan Mohan, Joginder Pal and Brahma Nand landlords filed an eviction petition against Brij Mohan admitting and accepting him to be the tenant of a two roomed shop, situated in MairrBazar, Near Gherian Di Hatti, Santokhgarh.- According to them, the shop was let out by them to Musaffru, grand father of the tenant. After his death, tenancy devolved upon his son Ronak Lal i.e. father of the tenant and thereafter on the petitioner. Tenant was stated to be in arrears of rent for the period 1.1.1985 till date at the rate of Rs. 18/-per month and he has also ceased to occupy the demised premises. 4. So far first ground was concerned, it was found in favour of the landlord and against the tenant. However, the other ground was negatived and the petition was allowed by the learned Rent Controller holding that the tenant would pay arrears of ret from 1.1.1985 to 22.8.1989 at the rate of Rs.18/ per month with interest at the rate of 9% per annum within a period of 30 days from the date of order failing which he shall be liable to be evicted from the demised premises. Besides this cost of the petition was assessed at Rs.50/- was also made payable by the tenant. 5. Landlord was dissatisfied with this order of the learned Rent Controller; as such he filed an appeal under Section 24 of the Act. It may be noted here that the appeal was filed by only one of the landlords, namely, Brahma Nand. What is the effect of non-joinder of other two landlords will be dealt with as a plea was raised on behalf of the landlord at the time of hearing of this revision petition. 6. It may be noted here that the appeal was filed by only one of the landlords, namely, Brahma Nand. What is the effect of non-joinder of other two landlords will be dealt with as a plea was raised on behalf of the landlord at the time of hearing of this revision petition. 6. After hearing of the appeal by the learned Appellate Authority, findings on second ground recorded by the learned Rent Controller were set aside and thus, eviction of the tenant has been ordered. 7. At the time of hearing, learned Senior Counsel appearing for the tenant contended that appeal as framed was incompetent. According to him, appeal was filed by Brahma Nand alone without impleading the other two landlords as co-petitioners. Thus, it was bad for non- joinder of necessar parties. With a view to advance this plea, he referred to reply filed by his client to an application of the landlords filed for amendment of the eviction petition during the course of appeal. It was specifically pleaed by the tenant in reply to this application that the appeal by one of the landlords is not maintainable. It is a different matter that this application was not pressed as is evident from the order dated 3.10.1997 passed by the learned Appellate Authority. 8. In addition to this, another plea urged was that the findings recorded by the Appellate Authority below are self-contradictory and mutually destructive. Reason being that in paragraph 23, a finding i s recorded in the following terms:- "In view of the above the learned Rent Controller has erred in concluding that the respondent inherited the tenancy of his father. The tenancy of the disputed shop could not go through inheritance beyond Raunak Lal, father of the respondent. He has never been acknowledged as tenant of the premises by the appellant or his brothers." 9. At the same time, he has allowed the appeal of the landlord against the order of the Rent Controller. Thus, he has prayed for allowing this revision petition, and according to him, the judgment of the Appellate Authority is not only illegal, incorrect and improper but it cannot be sustained by any stretch of imagination. 10. On the other hand, learned counsel for the landlords has submitted that the appeal filed by one of the landlord was competent. Thus, he has prayed for allowing this revision petition, and according to him, the judgment of the Appellate Authority is not only illegal, incorrect and improper but it cannot be sustained by any stretch of imagination. 10. On the other hand, learned counsel for the landlords has submitted that the appeal filed by one of the landlord was competent. Reason being that Order 41 Rule 4 C.P.C. permits that to be filed in a case where order appealed proceeds from the grounds which were common to all of them. Therefore, according to him, there is nothing wrong in the appeal in question. Thus, the appeal was not bad for non-joinder of other two landlords. 11. So far challenge to the findings based on paragraph 23 is concerned, it was submitted by Mr. Naresh Thakur, learned counsel for the respondents that since his clients have admitted and conceded the existance of tenancy . between the parties, therefore, such findings are non-event and no benefit can be derived by the tenant therefrom. He, however, supported the findings recorded by the Appellate Authority below on second ground i.e. tenant having ceased to occupy the premises in question for a continuous period of 12 months before the filing of the petition without sufficient cause and has thus prayed for dismissal of the revision petition. 12. Another plea put up for defeating the claim of the tenant was that this Court would not re-appraise the evidence and thus, come to a different conclusion than the one as recorded by the Appellate Authority below. There is neither any illegality nor impropriety committed by the Appellate Authority while passing the impugned order as the same is based on enough evidence available in that behalf on the record of the trial Court. This position is controverted by Shri Gupta. As according to him, this is a fit case for allowing the revision petition. 13. Brahma Nand appeared as PW-1. He has stated that Ronak Lal & after the death of Musaffru, was his tenant, who died in 1988. During his fathers life time and then after his death, Brij Mohan was working with his father. According to him, Brij Mohan has locked the premises for the last 5/6 years as he is doing his business in shop No.52, Jawahar Market, Nangal under the name and style of M/s. Ronak Lal Brij Mohan. During his fathers life time and then after his death, Brij Mohan was working with his father. According to him, Brij Mohan has locked the premises for the last 5/6 years as he is doing his business in shop No.52, Jawahar Market, Nangal under the name and style of M/s. Ronak Lal Brij Mohan. Tena has no brother nor is his mother alive. He has not tendered rent from 1.1.1985. 14. A reference to his statement suggests that he has not said a word regarding the tenant having ceased to occupy the premises in question for a continuous period of 12 months without sufficient cause before the filing of the .petition. His statement is general in nature. In his cross examination, he has stated that the shop was closed for 2/3 years prior to his death. He also denied that the tenant is carrying on Karyana business in the shop. 15. PW-2 is the Clerk from the H.P. State electricity Board, Shri Kamal Kumar. What comes out from his examination-in-chief is that till 1987, there was electricity consumption. In January, 1988 shop was locked and lock notice was issued. He again stated t lat from January, 1987 to February, 1988, reading was nil meaning thereby that no electricity was consumed. From 27.7.1987 to January, 1989, meter reading was the same which was in July, 1987 at 2621 and in January, 1989 it was 2621. It was 2641 in June, 1989. In May, 1986, report was "premises locked". This was followed by a similar report in January, 1988. Again in March, May, September, 1988, February, 1989 to June, 1989 and August, September and October, 1989 the report of premises being locked is entered in the register. As per record, Musaffru Mull was issued a notice regarding premises being locked. In his cross- examination, he has specifically stated that in January, 1989, 20 units were consumed, in July, 1989 15 units were consumed and in September 1989, 10 units were consumed as per the ledger. Meter had not been disconnected till date. 16. In this context, it may be appropriate to observe that the petition was presented on 22.8.1989, period relevant to see that the tenant ceased to occupy the shop in question for a continuous period of 12 months is from 1.8.1988 to 31.7.1989. 17. Meter had not been disconnected till date. 16. In this context, it may be appropriate to observe that the petition was presented on 22.8.1989, period relevant to see that the tenant ceased to occupy the shop in question for a continuous period of 12 months is from 1.8.1988 to 31.7.1989. 17. Another witness examined by the landlord is Rajan Kumar, who has stated that the shop in question is closed for five years. Brij Mohan, according to him, is earring on his shop in Jawahar Market, Nangal. He never saw Brij Mohan running the shop in question. 18. On the other hand, tenant examined Khushi Ram, Labour-cum-Shop Inspector who has stated that M/s. Public Store, Main Bazar, Santokhgarh has been registered in the name of Brij Mohan son of Ronak Lal as per Registration Certificate (Ext.R-1). This was registered on 19.12.1986. Since 1986-87 till 1991-92, this licence was renewed from time to time. 19. RW-2 Brij Mohan has stated that he is running tea and Karyana business in the premises in question. During the life time of his grand father, his father was assisting him and after the death of the former Ronak Lal came into possession of the premises in question. Then his father carried on Karyana and Halwai shop and after his death, he (Brij MOhan) is running the shop. His father was paying Rs.18/- per month as tenant. Rent was received sometimes by Madan Mohan and some time by Joginder Pal. In addition to the business in the premises in question, father of the tenant was running a shop at Jawahar Market, Nangal for the last 10/12 years. He was sitting sometime at Nangal and sometime at Santokhgarh. Shop was never continuously closed. Rather he was running the business in it. It was kept locked for a longer period when his father was sick and in connection with his treatment, he had to go to Nangal, Ludhiana and chandigarh. Sometime shop was closed; sometime servant was made to look after it. Electricity was consumed and it was never disconnected. 20. With a view to advance his case, tenant also examined Roshan Lal, who stated that his shop is at a distance of 2 shops from the shop in question. Since he has attained the age of discretion, Musaffru Mull, grand father of the tenant used to sell tea etc. in the shop. 20. With a view to advance his case, tenant also examined Roshan Lal, who stated that his shop is at a distance of 2 shops from the shop in question. Since he has attained the age of discretion, Musaffru Mull, grand father of the tenant used to sell tea etc. in the shop. He was assisted by his son Ronak Lai, who took over the business after his (Musaffrus) death. Brij Mohan used to. sit with him in the shop. After his fathers death, Brij Mohan is carrying on tea aiid karyana business. He closes the shop at 5 PM and then goes to Nangal. According to him he has never seen the shop closed for 10/15 days at a stretch. 21. With a view to further show that the tenant is running the shop in the premises in question, RamChand, aMunimof the firm Nathu Ram Janki Dass, Karyana Merchants, Sanoli has been examined. He stated that since 198? he is working as Munim in the said firm and knows the tenant, who is owner of a Public Provision Store Santokhgarh and he is running the business of retail Karyana. He had been making purchases from the firm. He has proved cash memos Exts. RW-4/A to RW-4/F. He, however, stated that he does not know as to where these goods used to be taken by the tenant after purchase. 22. On an over all examination of the case and for the reasons to be recorded hereinafter, I am satisfied that the order passed by the learned Appellate Authority below cannot be sustained and. the same deserves to be set aside. 23. While exercising the powers of revision under Section 24 of the Act, this Court has the power to examine the records relating to the proceedings taken under the Act for the purpose of satisfying itself as to the legality and propriety and then to pass such order in relation and propriety and then to pass such order in relation thereto as may be deemed fit. Landlord has examined official from the H.P. State electricity Board to demonstrate that during the relevant period i.e. 1.8.1988 till 31.7.1989, there was no consumption of electricity and thus, tried to prove that the tenat had ceased to occupy the premises during this period without any sufficient cause. Firstly, the statement of PW-2 clearly shows that even during this period electricity was consumed. Firstly, the statement of PW-2 clearly shows that even during this period electricity was consumed. As such it cannot be said that the tenant ceased to occupy the premises in question as claimed in the petition. Even if this type of evidence was not there, still the fact remains that in a given case a tenant may not be running a very lucrative business and is unable to pay the electricity bills, as such it cant be said that merely on the basis of non-consumption of electricity the tenant has ceased to occupy the premises in question. For taking this view, reference can be made to a decision in the case of Faquir Chand v. Faqir Singh & Anr. 1993 PLR 159, wherein it was held that a tenant gave an explanation for non-consumption of electricity being his inability to pay the electricity consumption bills. It was held that it is not enough to conclude that the premises remained unoccupied. In this case, under Section 13(2) (v) of the East Punjab Urban Rent Restriction Act, 1949, the tenant was to be evicted when he did not occupy the premises for four months. 24. In this behalf, it may be observed that Shri Naresh Thakur, learned counsel for the landlord submitted that adverse inference be drawn regarding non-examination of the servant engaged by the tenat at his Nangal shop. Firstly, this is not the requirement and secondly it was for the landlord to have first proved the requirement of law whereafter only tenant was required to disprove something that stood proved. This is not the situation in the present case. Evidence of the landlord was not sufficient to hold that the tenant has ceased to occupy the premises during the relevant period. Not only on the basis of the PW-2, but also on the basis of the evidence examined by the respondent-tenant. 25. Coming to the plea that his court would not interfere with the findings j recorded by the Appellate Authority below on the second ground noted here-1 in above, reliance was placed by Mr. Naresh Thakur on Ram Dass v. K. Thangavelu, 2000 (2) SCC 135 and KM. Abdul Razzak v. Damodharan, 2000 (5) SCC 369. 26. On the other hand, Mr. Bhupender Gupta, learned Senior Counsel with a view to controvert this plea placed reliance on M/s. Shaw Wallace & Co. Ltd. v. Govindas Purushothamdas & Anr. Naresh Thakur on Ram Dass v. K. Thangavelu, 2000 (2) SCC 135 and KM. Abdul Razzak v. Damodharan, 2000 (5) SCC 369. 26. On the other hand, Mr. Bhupender Gupta, learned Senior Counsel with a view to controvert this plea placed reliance on M/s. Shaw Wallace & Co. Ltd. v. Govindas Purushothamdas & Anr. 2000 (1) RCJ 90 (SC) and Dina Nath v. Pooran Lal, 2001 (4) SCALE 312. In the case of Ram Dass (supra) it was observed that where there was concurrent findings of lower courts that landlord-tenant relationship had been established on the basis of documentary evidence, High Court in revision erred in reassessing the evidence and holding that because the original lease deed had not been filed, the appellant had failed to establish the relationship between the landlord and tenant. This decision neither advance the case of the landlord in the revision on facts nor in law. In the present case, evidence of the landlord itself shows that electricity was being consumed in the premises in question. Besides this, tenant has appeared as his own witness stating that part of the day he was spending at Santokhgarh and in the evening he used to go to Nangal as the business there was more in the evenings. In addition to this, he has produced the registration record of his shop at Santokhgarh with the Labour Inspector. This is not a case of concurrent findings so as to attract this decision relied on behalf of the landlord. Other evidence of the landlord does not inspire confidence to accept the same. 27. Similarly, case of K.M. Abdul Razzak (supra) does not improve the case of the landlord for the reasons set out in the preceding paragraph. 28. In the case of Shaw Wallance & Co. Ltd., (supra) it was held that the scope of Seciton 25 of Tamil nadu Buildings (Lease and Rent Control) Act, 1960 is wider than Section 115 of the Code of Civil Procedure. Section 25 of this Act was in the following terms:- "25. Revision. 28. In the case of Shaw Wallance & Co. Ltd., (supra) it was held that the scope of Seciton 25 of Tamil nadu Buildings (Lease and Rent Control) Act, 1960 is wider than Section 115 of the Code of Civil Procedure. Section 25 of this Act was in the following terms:- "25. Revision. - (1) The High Court may, on the application of any person aggrieved by an order of the Appellate Authority, call for and examine the record of the Appellate Authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, iii any case, it appars to the High Court that any such decision or order shoud be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly." 29. Section 24(5) of the H.P. Urban Rent Control Act, 1987 is in the following terms:- "24. Vesting of appellate authority on officers by State Government. (2)...................... (3)................... (4)...................... (5) The High Court may, at any time, on the application of any aggrieved party or on its own motion call for an examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit." 30. In Dina Nath v. Pooran Lal (supra) the Supreme court held that the judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to the statutory rquirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/Second appeal/revision. 31. In M.S. Zahed v. K. Raghavan, 1999 (1) SCC 439, while interpreting Section 50 of the Karnataka Rent Control Act, 1961, which is part muteria to Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, it was held by the Supreme Court that it is within the scope of revisional jurisdiction of the High Court to interfere with the findings of fact, illegally or incorrectly arrived at. 32. In M/s. Babu Ram Copal & Ors. 32. In M/s. Babu Ram Copal & Ors. v, Mttthra Dass, 1990 (2) SCC 279, Supreme Court allowed tenants revision by holding that non-occupation without reasonable cause must continue till the date of filling of the application for eviction which is not proved in the present revision petition. 33. Applying the tests laid down in these cases to the present revision1 petition, I am satisfied that in its circumstances based on evidence and other materials on record, this Court is not precluded from examining the evidence I with a view to satisfy itself that in passing orders authorities under the Rent Act, act legally and at the same time do not commit any impropriety. 34. Now coming to another contention urged on behalf of the tenant that the appeal as constituted before the Appellate Authority on behalf of one of the landlords was incompetent and, therefore, {he revision petition deserves to be allowed on this short ground. Provisions of Order 41 Rule 4 C.P.C. read as under. - "R.4 One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may, appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of ajl the plaintiffs or defendants, as the case may be." 35. It was not disputed at the time of hearing that this provision is neither contrary to the provisions of the Act nor to the Rules framed there under much less being repugnant to those. This matter had been attending the attention of the Supreme court and High Courts from time to time. 36. In Lal Chand (dead) by L.Rs. & Ors. v. Radha Kishan. AIR 1977 SC 789, it was held as under:- "8. This matter had been attending the attention of the Supreme court and High Courts from time to time. 36. In Lal Chand (dead) by L.Rs. & Ors. v. Radha Kishan. AIR 1977 SC 789, it was held as under:- "8. Not only was it erroneous to treat the appeal as having abated on the death of Lai Chand but the first appellate court as well as the High Court ought to have applied and provisions of Order XLI, Rule 4, Code of Civil Procedure, under which where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or defendants may appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. In the earlier suit for eviction Tiled by the espondent under the Delhi and Ajmer Rent Control Act, Lai Chand and his alleged sub-tenants were all impleaded to the suit as defendants The decree for eviction was eventually passed in that suit in favour of the respondent and against the defendants jointly. All of these defendants contested the proceedings before the competent authority under the Slum Clearance Act and they succeeded in obtaining an order therein that it was not open to the respondent to execute the decree in respect of the premises on the ground floor. In order to over conic the effect of that order respondent brought the preset suit and in the very nature of things he had to implead Kesho Ram and Jhangi Ram to that suit as party-defendants alongwith Lai Chand. On the death of Lai Chand during the pendency of the first appeal, the other appellants, who were as much interested in the success of the appeal as Lal Chand were before the court and the appeal could not have been dismissed for the mere reason that Lal chand had no longer any interest oresstale in the property. The eviction decree being joing and indivisible, the dismissal of the appeal in so far as Lal Chand was concerned could not be conceiably result in consistent decrees being passed in the event of the appeal of Kesho Ram and Jhangi Ram being allowed. The eviction decree being joing and indivisible, the dismissal of the appeal in so far as Lal Chand was concerned could not be conceiably result in consistent decrees being passed in the event of the appeal of Kesho Ram and Jhangi Ram being allowed. Therefore, the first appellate court ought to have heard the appeal on merits and decide the question whether the provisions of the Slum Clearance Act operated as a bar to the maintainability of the suit brought by the respondent." 37. In Sinduv Hari Ranchhod v. Jadev Lalji Juymal & Or.s., AIR 1997 SC 3479, it was held as under: - "9...........We may in this connection profitably refer to order 41, Rule 4 C.F.C. which provides that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any grounds common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be." 38. In Mahabir Prasad v. .luge Ram & Ors., AIR 1971 SC 742, "5......Power of appellate court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. Thai power may be exercised when other persons who were parties to the proceeding before the subordinate court and against whom a decree preceded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The view taken by the High Court cannot therefore be sustained." 39. Applying the above tests to the facts of the present case and on consideration of the whole case, what emerges is that the eviction petition was filed by three persons named herein above in this judgment being landlords. Order passed by the learned Rent Controller below proceeded on the grounds of eviction common to all of them and appeal was filed by one of the landlords. Order passed by the learned Rent Controller below proceeded on the grounds of eviction common to all of them and appeal was filed by one of the landlords. Accordingly, by applying the ratio of the decisions supra, it is held that appeal filed by one of them was competent and no exception can be taken to non-joinder of other two landlords. 40. No other point is urged. 41. In view of the aforesaid discussion, this revision petition is allowed and the impugned order passed by the Appellate Authority below is hereby set aside with no order as to costs.