Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 51 (HP)

MOHINDER SINGH v. KURUKSHETRA UNIVERSITY

2001-04-04

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The present revision petition under Section 24(5), H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Rent Act), has been directed against the order dated 16.10.1998 of the learned Appellate Authority (II), Shimla, affirming the order of ejectment dated 17.6.1993, passed by the learned Rent Controller (II), Shimla. 2. Respondent No. 1, Kurukshetra University (hereinafter referred to as the petitioner), is the owner/landlord of the cottage (Annexe) in Eddelwaise Estate, situated behind Kamla Nehru Hospital, Shimla. The upper floor of this cottage consisting of two rooms, kitchen, bath and a dry latrine was let out to petitioner No. 1 Shri Mohinder Singh (hereinafter referred to as respondent No. 1) sometimes in August, 1965 on an annual rental of Rs. 40 plus Rs. 18 as taxes. The petitioner filed a petition under Section 14 of the Rent Act seeking ejectment of the respondent No. 1 on the following grounds:— (a) Non-payment of rent with effect from 1.1.1979; and (b) that the respondent No. 1 has, after the coming into force of the Rent Act, without the written consent of the petitioner sub-let the tenanted premises to Shri Bhagat Ram (the predecessor-in-interest of petitioners 2(a) to 2(d) and hereinafter referred to respondent No. 3) and one Dalip Sharma, Advocate (hereinafter referred to as respondent No. 2). 3. Respondent No. 3 while resisting the petition, pleaded that he is a co-tenant of the tenanted premises alongwith respondent No. 1. Sub-letting was denied. It was pleaded that respondent No. 2 is neither living in the tenanted premises nor in possession of any part thereof. Arrears of rent as claimed were denied and it was averred that he was willing to pay/tender the rent which may be found due. 4. No separate written statement was filed either by respondent No. 1 or by respondent No. 2. The written statement filed by respondent No. 3 was adopted by respondents No. 1 and 2. 5. On the pleadings of the parties, following issues were framed on 8.11.1989 by the learned Rent Controller: 1. Whether the respondent No. 1 is in arrears of rent, if so, to what extent ? OPP 2. Whether the respondent No. 1 has sub-let the premises in dispute to respondent Nos. 2 and 3 without the consent of the landlord as alleged? OPP 3. Whether the petition has not been filed by duly authorised person? OPR 4. Relief. Whether the respondent No. 1 is in arrears of rent, if so, to what extent ? OPP 2. Whether the respondent No. 1 has sub-let the premises in dispute to respondent Nos. 2 and 3 without the consent of the landlord as alleged? OPP 3. Whether the petition has not been filed by duly authorised person? OPR 4. Relief. 6. The learned Rent Controller came to the conclusion that respondent No. 1 was in arrears of rent. He also came to the conclusion that respondent No. 1 had sub-let the tenanted premises in favour of respondent No. 3 without the written consent of the petitioner. Consequently an order of ejectment came to be passed by the learned Rent Controller on 17.6.1993 on both the grounds of non-payment of rent and sub-letting. 7. In appeal, preferred by respondents No. 1 and 3, the learned Appellate Authority on 16.10.1998 affirmed the order of ejectment passed by the learned Rent Controller on both the grounds with the only modification that respondent No. 1 was held to be in arrears of rent with effect, from 1.7.1979 instead of 1.1.1979 as held by the learned Rent Controller. 8. Feeling aggrieved, the respondents No. 1 and 3 are before this Court by virtue of the present petition. 9. Be it stated that the entire arrears of rent in terms of the orders of the learned Rent Controller and as modified by the learned Appellate Authority stand deposited within the stipulated period. Therefore, the ground of ejectment on account of non-payment of rent no more survives. The findings of the two courts below only on the question of sub-letting are being assailed before this Court. 10. The learned Counsel for the petitioner, at the very outset, contended that this Court may not interfere with the concurrent findings recorded by the two courts below in exercise of its revisional jurisdiction which is not wide enough to enable this court to examine the same as a court of appeal. It was further contended that reappraisal of evidence was not permissible nor concurrent findings of fact could be set aside by this Court in its revisional jurisdiction. It was further contended that reappraisal of evidence was not permissible nor concurrent findings of fact could be set aside by this Court in its revisional jurisdiction. Section 24(5) of the Rent Act reads:— "(5) 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 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." 11. The Honble Supreme Court in Dev Kumar (Died) through LRs v. Swaran Lata (Smt), 1996 (1) RCR 40, had the occasion of examining the scope and extent of revisional power of the High Court under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, which provision is analogous and similar to the provision contained in Section 24(5) of the Rent Act. It was held:— “......The jurisdiction of the High Court under sub-section (5) of Section 15 of the Act, therefore, would entitle the Court to examine the legality and propriety of a conclusion of the Appellate Authority and is thus much wider than the revisional jurisdiction under Section 115 of the Code of Civil Procedure. But it has to be exercised subject to the well known limitations inherent in all revisional jurisdictions and cannot be equated with an Appellate jurisdiction. This being the position, unless there is a perversity in the matter of appreciation of evidence by the Appellate Authority or unless the Appellate Authority has arrived at a conclusion which on the materials, no reasonable man can come, the High Court will not interfere with the same” 12. In Dr. Gyan Parkash v. Som Nath and others, 1996 (1) RCR 342, the landlord therein had filed a petition for ejectment of the tenant under Section 14 of the Rent Act on the ground of subletting besides other grounds. The learned Rent Controller while rejecting other grounds passed an order of ejectment against the tenant on the ground of sub-letting. The learned Appellate Authority upheld the order of ejectment as passed by the learned Rent Controller. The tenant approached this Court by way of a revision petition under Section 24(5) of the Rent Act. A learned Single Judge of this Court allowed the revision petition. The learned Appellate Authority upheld the order of ejectment as passed by the learned Rent Controller. The tenant approached this Court by way of a revision petition under Section 24(5) of the Rent Act. A learned Single Judge of this Court allowed the revision petition. While reappreciating the evidence it was held that an important piece of evidence, namely, payment of rent by cheque by the alleged sub-tenant to the agent of the landlord had not been taken into consideration and as such concurrent findings of fact by the two courts below were not justified. It was further held that the alleged sub-tenant having paid the rent to the agent of the landlord who had accepted the same with knowledge and consent, he should be treated as tenant. On the matter being carried before the Honble Supreme Court, the order passed in revision by a learned Single Judge of this Court was set aside. It was held that the revisional jurisdiction under Section 24(5) of the Rent Act was improperly exercised by this Court. It was observed as under: "After giving our anxious consideration of the facts and circumstances of the case and contentions made by the learned Counsel for the parties, it appears to us that in the facts of the case, the High Court had quite improperly exercised its jurisdiction for revision under Section 24(5) of the Rent Act. It appears to us that the trial Court had considered the case of payment of rent by the respondent No. 3 by cheques but such payment has not been accepted by the trial Court as constituting creation of new tenancy in favour of respondent No. 3. The Court of appeal has not made any specific discussion of such payment. As the judgment of the appellate authority is a judgment of affirmance, we do not think that any elaborate discussion on the said aspect was required. It appears to us that the High Court being oblivious of the limited scope and ambit of Section 24(5) of the Rent Act, has exercised the power of a court of appeal and having reappreciated the entire evidence come to a contrary finding. Such exercise as a court of appeal should not have been done by the High Court in the facts of the case." 13. Such exercise as a court of appeal should not have been done by the High Court in the facts of the case." 13. Dealing with similar provision contained in Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, the Honble Supreme Court in Vaneet Jain v. Jagjit Singh, (2000) 5 SCC 1, has held :— "Sub-section (6) of Section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222, held, that the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja v. United India Insurance Co. Ltd., (1998) 8 SCC 119, it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact finding court is wholly unreasonable. A perusal of sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 115 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the court below........" 14. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the court below........" 14. In Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201, the Honble Supreme Court, while dealing with the provisions contained in the Haryana Urban (Control of Rent and Eviction) Act, 1973, has drawn the distinction between "an appeal" and "a revision" as under:— "The distinction between an appeal and revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right to appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law." It was further held:— "In the present case sub-section (6) of Section 15 of the Act confers revisional power on the High. Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceeding taken under the Act and empowers the High Court to pass such order in relation thereto as it may deem fit. The High Court will be justified in interfering with the order in revision if it finds that the order of the appellate authority suffers from a material impropriety or illegality. From the use of the expression Legality or propriety of such order or proceedings occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent findings of fact properly arrived at without recording & finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well recognized principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference....." 15. Bearing the above limitations in mind and also the fact that the jurisdiction of this court is wider in revisions under the Rent Act as compared to the revisional jurisdiction under Section 115 of the Code of Civil Procedure, this court proceeds to examine the matter with reference to the evidence on record. 16. The conclusion on the question of sub-letting is not a conclusion on a question of fact. It has been held by the Honble Supreme Court in Dev Kumars case (supra) that conclusion on the question of sub-letting is a conclusion on a question of law derived from the findings on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. 17. Following the above ratio, this court in Sat Pal v. Dharam Pal and others, C.R. No. 287 of 1994, decided on 4.4.1996, has also held that the conclusion on the question of sub-letting is not a conclusion on a question of fact but a conclusion on a question of law. 18. The ratio laid down in Dev Kumars case (supra) has been reiterated in Resham Singh v. Raghbir Singh and another, (1999) 7 SCC 263. 19. It is well settled that in the case of eviction of a tenant on the ground of sub-letting, the initial onus always lies on the landlord to prove that the tenant, has sub-let, assigned or otherwise parted with or transferred his rights under the lease in favour of the alleged sub-tenant. 20. While considering the nature of the onus placed upon the landlord, the courts should not, however, overlook the fact that it is by no means an easy task since direct evidence of sub-letting is seldom available. 20. While considering the nature of the onus placed upon the landlord, the courts should not, however, overlook the fact that it is by no means an easy task since direct evidence of sub-letting is seldom available. A sub-lease is a creation of an agreement between the tenant and the sub-tenant to which agreement the landlord, for obvious reasons is a complete stranger. The tenant and subtenant in order to safeguard their interests usually agree to throw a cloak over the transaction and the same is kept a guarded secret and no trace of evidence reflecting the same is allowed to leak out thereby exposing themselves to the risk of being evicted from the tenanted premises. No prudent tenant would, therefore, either enter into an agreement creating sub-tenancy or receive rent from his sub-tenant or pass receipt therefore in the presence of others. Placed in such a situation, the landlord can only prove the attending circumstances which would raise inference of such sub-letting or assignment or parting with possession by the tenant in favour of a third party. 21. The expression "sub-letting" has not been defined in the Rent Act. As to the meaning of the expression "sub-letting" the Honble Supreme Court in Jagdish Prashad v. Angoori Devi, (1984) 3 SCR 216, in the proceedings under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, had considered the same. It was held that merely from the presence of the person other than the tenant in the shop, sub-letting cannot be presumed and as long as control over the premises is kept by the tenant, sub-letting flowing from the presence of the person other than the tenant in the premises cannot be assumed. It was further held that in an application for eviction of a tenant from premises which is based on the allegation that the premises have been sub-let, the allegation has to be proved. 22. Again in Messrs Shalimar Tar Products Ltd. v. H.C. Sharma, 1987 (2) Rent C.R. 671 (SC), it has been held that in order to construe sub-letting there must be parting of legal possession by the lessee and parting of legal possession means "possession with right to include and also right to exclude others. 23. 22. Again in Messrs Shalimar Tar Products Ltd. v. H.C. Sharma, 1987 (2) Rent C.R. 671 (SC), it has been held that in order to construe sub-letting there must be parting of legal possession by the lessee and parting of legal possession means "possession with right to include and also right to exclude others. 23. The approach to be adopted in the case of sub-letting has been indicated by I.D. Dua, J. (as his Lordship then was) in Kishan Chand v. Kundan Lai, 1967 PLR (SN) 57, as under: ".....a landlord is almost a stranger to agreements of sub-letting between his tenant and sub-lessee and he has generally to rely on attending circumstances to establish sub-letting by necessary inference. It must be very rarely that direct evidence of sub-letting without the landlords consent whether in the form of lease deed or of testimony of witness to whose presence the sub-lease is created, can come to the hands of the landlord. The proof of sub-letting thus depends upon the probability of the premises having been sub-let and all that is required is material on which the court can, like a prudent person guided by his own experience and judgment, regard being has to the ordinary course of human conduct, reasonably act upon the, supposition that the premises have been sub-let." 24. The landlord, therefore, would be deemed to have discharged the initial burden placed upon him, if he succeeds in showing that someone else, other than the tenant, was in possession of the tenanted premises. It is, therefore, for the tenant to prove and explain the circumstances leading to such transfer of possession, since the circumstances under and the terms on which the possession was transferred by the tenant are within his special knowledge and burden of proving the same would legitimately lie on him. It, therefore, follows that in a situation of this kind, the onus would shift on to the tenant to show that the transfer of possession was not by way of sub-letting or assignment and that despite such transfer of possession, the tenant retains the legal right of possession with him. The landlord must be held to have established his plea if the tenant fails to satisfy the court and discharge the onus placed on him. 25, In RajbirKaurv. The landlord must be held to have established his plea if the tenant fails to satisfy the court and discharge the onus placed on him. 25, In RajbirKaurv. Messrs S. Chokesiri and Co., (1989) 1 SCC 19, while considering the question of sub-letting it was held that the burden of making a case of sub-letting is on the landlord. It was further held that transactions of sub-letting in the guise of licences are in the very nature clandestine arrangements between the tenant and the sub-tenant and it would be difficult to get direct evidence on the same. If exclusive possession of the alleged sub-letting is established then it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. 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 impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of sub-letting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the subtenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of sub-letting 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 risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish 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......." 26. The principle laid down in Rajbir Kaurs case (supra) was followed and reiterated in Nihal Chand Rameshwar Dass and another v. Vinod Rastogi and others, (1994) 4 SCC 325 and in United Bank of India v. Cooks and Kelvey Properties (Limited, (1994) 5 SCC 9. The principle laid down in Rajbir Kaurs case (supra) was followed and reiterated in Nihal Chand Rameshwar Dass and another v. Vinod Rastogi and others, (1994) 4 SCC 325 and in United Bank of India v. Cooks and Kelvey Properties (Limited, (1994) 5 SCC 9. It was observed that once it is established that the tenant had parted with exclusive possession with right7to include and exclude others in favour of a third party without the landlords consent, rebuttable inference would arise in favour of the landlord and against the tenant, that the latter had inducted third party for valuable consideration and if the tenant fails to rebut such inference by satisfactory explanation, a decree can be passed by a competent court on the ground of sub-letting. 27, Again, in Bharat Sales Ltd. v. Life Insurance Corporation of India, (1998) 3 SCC 1, in a case for ejectment on the ground of sub-letting, a contention was raised that unless payment of consideration between the tenant and sub-tenant was established, eviction could not be granted on the ground of sub-letting. Rejecting the contention and following the principle laid down in Rajbir Kaurs case (supra), the Honble Supreme Court observed:— "Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let" (Emphasis supplied) 28. In Kala and another v. Madho Parshad Vaidya, AIR 1998 SC 2773, again it was held that the onus to prove sub-letting is on the landlord and if he establishes parting of with possession in favour of a third party, the onus would shift to the tenant to explain. 29. Thus, the well settled legal position is that whenever a landlord approaches the court for the eviction of a tenant on the ground of sub-letting, such landlord has to prove to the satisfaction of the court that the tenant has parted with exclusive possession of the demised premises in favour of a third party. Once the landlord is able to establish and prove such fact, it is open to the court to draw an inference that such parting of possession by the tenant in favour of the third party is for consideration. It is then for the tenant to rebut such inference by leading evidence to show to the court that there is no sub-letting. If the tenant fails to rebut the inference, it is permissible to the court to draw an inference of subletting and to pass an order of ejectment against him on the ground of sub-letting. 30. It is then for the tenant to rebut such inference by leading evidence to show to the court that there is no sub-letting. If the tenant fails to rebut the inference, it is permissible to the court to draw an inference of subletting and to pass an order of ejectment against him on the ground of sub-letting. 30. In the present case, the two courts below on consideration of the evidence led by the parties, have concurrently found respondent No. 3 to be in exclusive possession of the tenanted premises and that respondent No. 1 has sub-let the same in favour of respondent No. 3 without the written consent of the petitioner. 31. The case set up by the respondent No. 3 is that he is a joint tenant alongwith respondent No. 1 in respect of the tenanted premises. No separate written statement was filed by respondent No. 1. He has merely adopted the written statement filed by respondent No. 3. 32. Respondent No. 1 Mohinder Singh, while appearing as RW 1 has, after stating that he and respondent No. 3 are residing in the tenanted premises as tenants, deposed that while he is residing in the tenanted premises since 1965, respondent No. 3 is residing therein since 1969. RW 2 Sham Lai, the special attorney of respondent No. 3, also while appearing as RW 2 stated that respondent No. 3 is residing in the tenanted premises since April, 1969. 33. There is no denying that the tenanted premises were let out in August, 1965. If the premises were let out in August, 1965 it cannot be said that the tenancy was joint in favour of respondents No. 1 and 3 since as per the respondents own showing respondent No. 3 started living in such premises only since April 1969. Further, it is the admitted case of respondent No. 1 that he was transferred from Shimla in 1982 to Nalagarh. His wife and children are living at Ropar in Punjab. It is also admitted that since 1982 the respondent No. 1 has never been transferred back to Shimla. Further, it is the admitted case of respondent No. 1 that he was transferred from Shimla in 1982 to Nalagarh. His wife and children are living at Ropar in Punjab. It is also admitted that since 1982 the respondent No. 1 has never been transferred back to Shimla. The case set up by respondent No. 1 in his statement as RW 1 is that he is a General Secretary of the Himachal Bank Employees Union and in such capacity is visiting Shimla in connection with the work of the Union and on such visits he is staying in the tenanted premises. However, no evidence has been led by him to show as to when and for what durations he had visited Shimla and stayed in the tenanted premises since after his transfer to Nalagarh from Shimla. 34. The most important evidence in the present case which completely destroys the case set up by the respondents and supports the case of the petitioner is the letter dated 8.9.1987 (Ex. PW 2/ A) written by respondent No. 3 to the petitioner. This letter reads: “To - The Executive Engineer (Estate), Kurukshetra University, Kurukshetra, Haryana Subject : Regularisation of tenancy of the first floor of Eddie Weiss Cottage at Shimla, H.P. Dear Sir, I have to submit as under:— 1. That Eddie Weiss Cottage (first floor) has been recently in the tenancy of Sh. Mohinder Singh. Now it is in my occupation and I had been sharing these premises with Shri Mohinder Singh earlier. 2. That I am prepared to pay the arrears of rent in this behalf provided you are kind enough to regularise tenancy in my name. I assure you all co-operation in future. Expecting an early reply in the matter. Yours faithfully, Sd/- Dated 8.9.1987 (Bhagat Ram Sharma) Advocate, Mandi Town H.P” 35. A bare-reading of the above letter written by respondent No. 3 shows that he had approached the petitioner to regularise the tenancy in respect of the tenanted premises in his favour by stating that the tenanted premises, which till recently were in the tenancy of Mohinder Singh, respondent No. 1 are now in his occupation and that the tenancy be now regularised in his favour. By this letter two facts, therefore, stands admitted by respondent No. 3, namely:— (a) the tenancy was originally in favour of respondent No. 1; and (b) respondent No. 3 is now in possession of the tenanted premises. 36. The above admission, apart from belying the case of respondents regarding joint tenancy, proves that respondent No. 1 consequent upon his transfer from Shimla has parted with the legal and exclusive possession of the tenanted premises in favour of the respondent No. 3 and that presently respondent No. 3 is in exclusive possession thereof. Therefore, an inference can be raised that parting of possession by respondent No. 1 in favour of respondent No. 3 is for consideration. The respondents have not been able to rebut such inference by leading evidence in this regard. 37. There is yet another circumstance in the present case.. Respondent No. 3 has not stepped into the witness box in support of his case as set up by him in his written statement or to deny the letter Ex. PW2/A. This Court in Smt Garib Devi and others v. Mandir Thakur Nar Singh Ji Maharaj, 2000 (2) Sim. L.J. 1736 and in Union of India v. Birbal and others, 2001 (1) Sim. L.J. 463, following the ratio laid down by the Honble Supreme Court in Ishwar Bhai C. Patel @ Bachu Bhai Patel v. Harihar Behera and another, 1999 (2) Current Civil Cases 171 (SC), has held that if a defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct. 38. It was contended on behalf of the respondents that though respondent No. 3 himself has not stepped into the witness box, his special attorney has appeared as RW 2. Therefore, appearance by . the attorney is appearance by the party. 39. This Court in Gurdev Singh v. Gulaboo, Regular Second Appeal No. 302 of 1992, decided on 24.4.2000, and in Har Swamp v. Ramlok Sharma, Latest H.L. J. 2000 (HP) 776, has held that appearance of an attorney cannot be regarded as appearance of the party. The appearance of an attorney is only as a witness in his personal capacity. 40. This Court in Gurdev Singh v. Gulaboo, Regular Second Appeal No. 302 of 1992, decided on 24.4.2000, and in Har Swamp v. Ramlok Sharma, Latest H.L. J. 2000 (HP) 776, has held that appearance of an attorney cannot be regarded as appearance of the party. The appearance of an attorney is only as a witness in his personal capacity. 40. On the failure of respondent No. 3 to enter the witness box to state on oath in support of his case and to subject himself to cross-examination, an adverse inference will have to be drawn against him to the effect that the case set up by him is false. 41. On the basis of the evidence coming on record, the two courts below have rightly passed an order of ejectment in favour of the petitioner on the ground of sub-letting. Such orders of the two courts below do not suffer from any illegality or impropriety calling for interference by this Court in exercise of revisional powers. 42. As a result, the present petition fails and the same is accordingly dismissed leaving the parties to bear their own costs. 43. Interim order dated 16.3.2000 passed in CMP No. 49 of 2000 shall stand vacated. Petition dismissed.