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2001 DIGILAW 390 (HP)

DR. GULSHAN KUMAR v. SUDERSHAN KUMAR

2001-12-14

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The petitioner before this Court is the tenant. Aggrieved by the order of ejectment passed against him by the two forums below, he has approached this Court by way of the present revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (for short the Act). 2. The tenanted premises comprise of a shop located in House No. 288 in Ward No. 4 of the Municipal Area of Palampur. The respondent landlord sought the ejectment of the tenant under Section 14(2)(v) of the Act on the ground that the tenant has ceased to occupy the tenanted premises for a continuous period of twelve months. According to the landlord, the tenant on having joined Government service has ceased to occupy the tenanted premises and that such premises are lying vacant since 12.12.1991. 3. The tenant while resisting the petition admitted that he had joined Government service. He, however, denied that he has ceased to occupy the tenanted premises. It was pleaded that the business under the name and stye of Messrs. Sharma Medical Store was being initially run by him and his mother Smt. Kaushalya Devi and that on his joining Government service, the business in the tenanted premises continues to be run by his mother Smt. Kaushalya Devi and his sons. Objections as to petition being bad for non-joinder of necessary parties, estoppel, absence of cause of action and the petition being barred under principle of res judicata as also under Order 2 Rule 2, Code of Civil Procedure, were further raised. 4. On the pleadings of the parties, following issues were framed by the learned Rent Controller (II), Palampur:— 1. Whether the respondent has joined the Government service and has ceased to occupy the suit premises for a period of one year continuously, as alleged? OPA 2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled for the relief of eviction as claimed? OPA 3. Whether the petitioner is estopped by his act and conduct to file the petition, as alleged? OPR 4. Whether the petitioner has got no cause of action, as alleged? OPR 5. Whether the petition is barred by principle of res judicata and also under Order 2 Rule 2 CPC, as alleged? OPR 6. Whether the petition is bad for non-joinder of necessary parties, as alleged? OPR 7. Relief. 5. OPR 4. Whether the petitioner has got no cause of action, as alleged? OPR 5. Whether the petition is barred by principle of res judicata and also under Order 2 Rule 2 CPC, as alleged? OPR 6. Whether the petition is bad for non-joinder of necessary parties, as alleged? OPR 7. Relief. 5. The learned Rent Controller found issues No. 1 and 2 in favour of the landlord and issues No. 3 to 6 against the tenant. Consequent upon such findings, an order of ejectment came to be passed against the tenant. 6. The appeal preferred by the tenant before the Appellate Authority, Kangra at Dharamshala was dismissed on 21.12.2000. The Appellate Authority agreed with the findings of the Rent Controller on all the issues and affirmed the ejectment order. Hence the present revision petition at the instance of the tenant. 7. At the very outset, it was contended on behalf of the landlord that revisional powers of this Court are limited and in exercise of revisional powers, this court cannot reappreciate the evidence in order to interfere with the concurrent findings of the two forums below on a question of fact. In support reliance was placed on the decision of the Honble Supreme Court in Dr. Gyan Prakash v. Som Nath and others, 1996 (1) RCR 342, wherein it was held that on questions of fact, the findings recorded by the authorities below must be accepted and the High Court has no jurisdiction to interfere with such findings in exercise of limited scope and ambit of revisional jurisdiction under Rent Act. The High Court is not exercising the powers of a Court of appeal and as such, is not expected to re-appreciate the entire evidence on record and to come to a contrary finding. 8. Section 24(5) of the Act provides that the High Court may, at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under the 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. 9. This Court can thus look into the legality or propriety of the order and for this limited purpose can consider the evidence. 9. This Court can thus look into the legality or propriety of the order and for this limited purpose can consider the evidence. Interference in the concurrent findings would only be when such findings on facts are absurd and not supported by evidence. 10. The case set up by the landlord in the present case vide paras 16 and 18(a) of the petition is self contradictory. For the sake of convenience both these paras are reproduced below:— "16. Whether there are any sub-tenants and if so, the date of such sub-letting, the accommodation sub-letted whether with or without consent/written consent of the landlord and the rent charged from the sub-tenants. Yes, the tenant himself has joined Govt. job and has ceased to occupy the premises. 18. (a) The grounds on which the eviction of the tenant is sought. The respondent has himself joined the Govt. job and has ceased to occupy the premises for the continuous period of one year." 11. A combined reading of the abovesaid paras show that the case set up by the landlord on the one hand is that the tenant has sub-let the tenanted premises on his joining Government service and on the other hand that the tenant has ceased to occupy the tenanted premises for a continuous period of one year. The tenant can be said to have either sub-let the tenanted premises or ceased to occupy the tenanted premises. Both situations cannot co-exist being self contradictory 12. In M/s. Ram Asra Hart Chand v. Tarn Chand and another, AIR 1983 HP 65, where the landlord in his petition had at one place averred that the tenant had ceased to occupy the tenanted premises for more than twelve months and at another place had averred that the tenant had sub-let the tenanted premises, it was held that the two pleas taken were self contradictory. 13. The present petition was filed on 22.1.1993. During the pendency of the present petition another petition, being R. RA No. 12 of 1994 was filed by the landlord for the ejectment of the tenant on 27.7.1994 on the ground of non-payment of rent. Ex. Al is the copy of such eviction petition. In para 16 of this petition also the tenant has averred that there has been sub-letting by the tenant and that he (tenant) has joined Government service. Ex. Al is the copy of such eviction petition. In para 16 of this petition also the tenant has averred that there has been sub-letting by the tenant and that he (tenant) has joined Government service. However, it has not been pleaded that the tenant had ceased to occupy the tenanted premises as alleged in the present petition. It has also been admitted on behalf of the landlord that in March 1992 a petition for ejectment of the tenant was filed on the ground of sub-letting. The present petition has been filed during the pendency of the said petition. Thus, as per the landlord own showing he has been taking contradictory stand. The two forums below have failed to notice this aspect, of the case, therefore, the orders of the two forums below on the face of it suffers from illegality and impropriety. 14. In Ram Asra Hart Chand v. Tara Chand (supra), it has been held that the intention of the legislature in enacting Section 14(2)(v) of the Act is that the building should remain open and in continuous use and should not remain closed for a longer period. The obvious reason is that the condition of the building deteriorates if it remains closed and out of use. Section 14(2)(v) of the Act in fact, covers a case where the premises are kept locked and are not used for a period of more than twelve months without reasonable cause. Thus, the landlord should prove— (a) that the premises were out of use or remained locked for a period of more than twelve months; and (b) such non-user/non-occupation of the premises was not due to any reasonable cause. 15. A landlord who seeks eviction of the tenant has to prove his allegations and cannot rely merely on his own statement or the weakness of the tenants evidence. Admittedly, the tenant had joined Government service on 27.11.1991. He had retired from service on 30.11.1995.4The two forums below were mainly influenced by the fact that the tenant had joined Government service and as such could not have run the business. It is in evidence that the licence for running the shop which was earlier in the name of the tenant was transferred in the name of his son on 16.6.1992 and was being renewed from time to time till 1998-2000. It is in evidence that the licence for running the shop which was earlier in the name of the tenant was transferred in the name of his son on 16.6.1992 and was being renewed from time to time till 1998-2000. There is also evidence that electricity was being consumed in the premises in dispute during the relevant period which fact goes to show that the tenanted premises were in actual use and were not locked. Sale tax returns in respect of the business transactions of M/s. Sharma Medical Store also show that business was being carried on in the tenanted premises. From the evidence coming on record, it is established that the landlord has not been able to establish that the tenanted premises were out of use or remained locked for a continuous period of twelve months. The findings of the two forums below, which are to the contrary are not supportable by evidence. They being perverse are liable to be set-aside. 16. As a result, the present revision is allowed. The order of the Rent Controller and that of the Appellate Authority are set-aside and the eviction petition of the landlord is dismissed leaving the parties to bear their own costs. Revision allowed.