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Himachal Pradesh High Court · body

2002 DIGILAW 115 (HP)

RANVIR KUTHIALA v. DEVI DASS

2002-04-23

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The petitioners are the landlords. They are aggrieved by the order dated 18.11.1998 of the learned Appellate Authority setting aside the order dated 10.1.1995 of the learned Rent Controller and holding respondent No. 1 Devi Dass to be a tenant under the landlords in respect of the tenanted premises comprising of one servant quarter of the building known as Franklin Cottage, Shimla. 2. Briefly, the facts of the case giving rise to the present petition may be thus stated. The landlords on 18.11.1989 filed a petition, being petition No. 8/2 of 1991/89 before the learned Rent Controller (4), Shimla under Section 14 of the H.P. Urban Rent Control Act, 1987 (for short the Rent Act) for the ejectment of respondent No. 2 Messrs. Hakim Mal Tani Mal on the ground of non-payment of rent. It was pleaded that the tenanted premises were let out to respondent No.2 on payment of rent of Rs. 15 per month for residential purposes. In para 19 of the petition it was averred as under:— That the respondent was appointed as an agent to look after the properties of the petitioners and their predecessor-in-interest and by reasons of their being in employment of the petitioners, the premises in question were given to the respondent for use as a residence." 3. It was further pleaded that respondent No. 2 had failed to pay the rent since 1.1.1985. Respondent No. 1 Devi Dass, who was not initially a party to the eviction petition, approached the learned Rent Controller under Order 1 Rule 10, Code of Civil Procedure, for being impleaded as a party. It was claimed that in fact he is in possession of the tenanted premises as a tenant under the landlords. Such application, with the consent of the landlords and responded No. 2 was allowed by the learned Rent Controller on 28.11.1990 and respondent No. 1 Devi Dass came to be impleaded as a respondent. 4. Respondent No. 1 on having been impleaded as a party, filed his reply dated 10.9.1991 to the eviction petition. He claimed himself to be the tenant qua the tenanted premises having been so inducted in the year 1964 by Prem Dass, the predecessor-in-interest of the landlords. Tenancy of respondent No.2 as denied. It was pleaded that the petition was filed by the landlords in collusion with respondent No. 2. He claimed himself to be the tenant qua the tenanted premises having been so inducted in the year 1964 by Prem Dass, the predecessor-in-interest of the landlords. Tenancy of respondent No.2 as denied. It was pleaded that the petition was filed by the landlords in collusion with respondent No. 2. It was further pleaded that rent was offered to the landlords on various occasions but the landlords have been refusing to accept the same and that the petition had been filed only to force and coerce respondent No. 1 to enhance the rent to Rs. 500 per month. 5. Respondent No. 2 vide his reply dated 20.5.1991 admitted the relationship of landlord and tenant between him and the landlords. Arrears of rent were also admitted. He, however, denied his liability to be evicted from the tenanted premises on the ground of non-payment of rent. He pleaded that rent was tendered to the landlords many times but the landlords have been refusing to accept the same and they have been demanding increased rent. Insofar as respondent No. 1 is concerned, respondent No. 2 pleaded that the tenanted premises were given by him to respondent No. 1 for residence since he was in the employment of respondent No. 2. It was further pleaded that since respondent No. 1 ceased to be in the employment of respondent No. 2 appropriate steps for his eviction in accordance with law would be taken. An objection was raised that respondent No. 1 was not a necessary party and, as such, the eviction petitioner was bad on account of misjoinder of respondent No. 1. 6. The learned Rent Controller on the basis of evidence coming on record came to the conclusion that respondent No. 2 was a tenant in respect of the tenanted premises. Respondent No. 2 was further found to be in arrears of rent since 1.1.1985. Consequently, an order of ejectment came to be passed against respondent No. 2 on the ground of non-payment of rent. 7. Respondent No. 2 neither assailed the findings of the learned Rent Controller nor he deposited the rent in terms of the order of the learned Rent Controller. 8. Respondent No. l feeling aggrieved by the findings of the learned Rent Controller holding respondent No. 2 to the tenant in respect of the tenanted premises preferred an appeal before the learned Appellate Authority (II), Shimla. 8. Respondent No. l feeling aggrieved by the findings of the learned Rent Controller holding respondent No. 2 to the tenant in respect of the tenanted premises preferred an appeal before the learned Appellate Authority (II), Shimla. The learned Appellate Authority on 18.11.1998 allowed the appeal, set aside the findings of the learned Rent Controller holding respondent No. 2 to be the tenant in respect of the tenanted premises. The learned Appellate Authority held that respondent No. 1 was the tenant and he was in arrears of rent since 1.1.1985. The eviction petition was further held to have been filed by the landlords in collusion with respondent No. 2. 9. There is no denying that respondent No. 1 in pursuance of the order of the Appellate Authority has deposited the arrears of rent within the statutory period of thirty days. 10. The landlords feeling aggrieved by and being dissatisfied with the findings of the learned Appellate Authority have come up before this Court by way of the present revision petition under Section 24(5) of the Rent Act. 11. I have heard the learned Counsel for the parties and have gone through the record of the case. The only question for determination in the present case is whether respondent No. 1 or respondent No. 2 is the tenant under the landlords in respect of the tenanted premises. The learned Rent Controller has found respondent No. 2 to be the tenant while the learned Appellate Authority has held respondent No. 1 to be the tenant. The learned Appellate Authority in arriving at his conclusions holding respondent No. 1 to be a tenant, has relied upon the entries in the Municipal record comprising of inspection lists prepared by the Tax Department of Municipal Corporation, Shimla, the copies of which are Ex. RW2/B to RW2/J for the period 1983-84 to 1990-91 wherein the name of respondent No. 1 is recorded as one of the tenants in respect of the building known as Franklin Cottage. 12. It was contended on behalf of the landlords that the learned Appellate Authority has gravely erred in law in holding respondent No.l to be the tenant in respect of the tenanted premises primarily on the basis of the Municipal record comprising of Ex. RW2/B to RW 2/J. It was further contended that the entries of assessment register like Ex. RW 2/B to Ex. RW2/B to RW 2/J. It was further contended that the entries of assessment register like Ex. RW 2/B to Ex. RW 2/}, maintained by the Municipal authorities cannot be considered sufficient to prove affirmatively that relationship of landlord and tenant exists between the parties. In support of his contention the learned Counsel for the landlords placed reliance on the decision of the Punjab and Haryana High Court in Shanti Ram v. Sagli Ram and another, 1981 (1) Rent L.R. 346; Amar Nath (deceased) represented by L.Rs. v. Som Nath (deceased) represented by L.Rs., 1982 (1) Rent L.R. 217; Subhash Singh v. Haryana Pinjra Pole Gaushala, 1984 (1) Rent L.R. 545; Lakhbir Singh v. Ram Parkash, 1991 (1) Rent L.R. 139, and in Balbir Singh v. Balkar Singh and another, 1992 (2). Rent L.R. 654. 13. The learned Counsel for respondent No. 1 while not disputing the above proposition of law, contended that even if the Municipal record Ex. RW 2/B to Ex. RW 2/J is ignored, there is sufficient evidence coming on the record to prove the relationship of landlord and tenant between the landlords and respondent No. 1. It was further contended that the findings of the learned Appellate Authority holding respondent No. 1 to be the tenant are purely on a question of fact and this Court in exercise of revisional powers cannot reappreciate the evidence for coming to a different conclusion. 14. The power of this Court in exercise of the revisional jurisdiction under Section 24(5) of the Rent Act is limited in seeing whether any illegality or impropriety has been committed by the Forums below in exercise of the powers under the Rent Act. 15. Dealing with the similar provision contained in Section 21(5) of the H.P. Urban Rent Control Act, 1971 (as then in force) which provision is pari materia to Section 24(5) of the present Rent Act, the Honble Supreme Court in Dr. Gyan Parkash v. Som Nath and others, 1996 (1) RCR 342 (SC), has 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 finding in exercise of limited scope and ambit of revisional jurisdiction under the Rent Act. Gyan Parkash v. Som Nath and others, 1996 (1) RCR 342 (SC), has 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 finding in exercise of limited scope and ambit of revisional jurisdiction under the 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 coming on record and to come to a contrary finding. In Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201, the Honble Supreme Court considered the revisional jurisdiction of the High Court under the Haryana Urban (Control of Rent and Eviction) Act, 1973. It was held that where a statute provides for a right of appeal as well as revision, discretionary jurisdiction of revision can be invoked only when appellate order suffers from illegality, impropriety or perversity. The two jurisdictions (appellate and revisional) are different from each other in scope and content. The use of the expression legality or propriety of such orders or proceedings" makes the revisional powers of the High Court wider than powers under Section 115 of the Code of Civil Procedure, nonetheless it is not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb findings of fact arrived at by the courts below without recording a finding that the conclusions arrived at were perverse or based on "no evidence" or were arrived at on a superficial or perfunctory approach. It was further observed:— "If the High Court proceeds to interfere with such concurrent findings of fact ignoring the above mentioned 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." 16. It was further observed:— "If the High Court proceeds to interfere with such concurrent findings of fact ignoring the above mentioned 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." 16. Again, while dealing with the revisional jurisdiction of the High Court under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, in Molar Mai (dead) through LRs v. Kay Iron Works (P) Ltd., (2000) 4 SCC 285, the Honble Apex Court has held:— ".....It is to be noticed that under sub-section (6) of Section 15 of the Act, the High Court as a revisional authority has the power to 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 and is entitled to pass such order as it may deem fit. The power vested in the High Court under this provision of law is much wider than the power conferred on the High Court under Section 115 CPC. In the process of satisfying itself as to the legality or propriety of an impugned order, the High Court in given case can go into the finding of fact arrived at by the courts below and, if found necessary, reverse such a finding of fact. Of course, this Court has in many cases cautioned that this power is not to be used as a revisional court in a routine manner but to be used only when the revisional court comes to the conclusion that the last court of fact has arrived at a conclusion which is perverse or not possible to be accepted on the materials placed before it. In other words, if the High Court comes to the conclusion that the finding of the first appellate court is based on no evidence then in a given case it is open to the High Court to interfere with such finding of fact....." 17. Following the above principle, this Court proceeds to consider the evidence in order to satisfy itself if the conclusion of fact arrived at by the learned Appellate Authority is perverse or not possible to be accepted on the materials placed before it. 18. Following the above principle, this Court proceeds to consider the evidence in order to satisfy itself if the conclusion of fact arrived at by the learned Appellate Authority is perverse or not possible to be accepted on the materials placed before it. 18. The landlords in para 19 of their petition have averred that respondent No.2 Messrs. Hakam Rai Tani Mai was appointed as an agent to look after the properties of the landlords and their predecessor-in-interest and by reason of their being in employment of the landlords, the tenanted premises were given to respondent No.2 for use as a residence. In para 11 of the petition the rate of rent has been mentioned as Rs. 15 per month. 19. Admittedly, respondent No. 2 is a firm. Presently, it is shown to be a partnership firm. What was the previous status of this firm is not known since no evidence is coming on record in this behalf. Landlord Ranvir Kuthiala while appearing as PW 1 on 15.12.1992 has admitted to the following facts during his cross-examination by respondent No. 1: (i) Seth Karori Mal, a cousin of his father, was the proprietor of the firm Messrs. Hakam Mai Tani Mal; (ii) The said Karori Mal was receiving rent from various tenants of the landlords and their predecessor-in-interest and managing their estate for about 25 to 30 years; (iii) Shri Karori Mal died about 8 to 10 years back, that is, sometime during the period 1982 to 1984; (iv) Periodical accounts were being given by Shri Karori Mal to the landlords in respect of rent received from various tenants, rent due from such tenants, payment of taxes and other expenditure incurred towards repair and maintenance of the estate; (Though initially on 15.12.1992 stated that such accounts were being submitted by Shri Karori Mai in writing and that he could produce after searching out the same. However, on being directed to produce such accounts, PW 1 on 14.6.1993 took a different stand that no accounts in writing were being submitted by Shri Karori Mal and that he used to orally explain the account); (v) After Shri Karori Mal, one Shri Roshan Lal Sud was appointed as Estate Agent by the landlords who used to maintain the accounts till 1989 and thereafter such account is being maintained by PW-1 himself; and (vi) Commission of 10% was being paid to Shri Roshan Lal Sud for his services as Estate Agent. 20. It is significant to note that no accounts which were being maintained by Estate Agent Shri Roshan Lal Sud or being maintained by the landlords after 1989 have been produced to show as to who is the tenant of the tenanted premises. Such record was the most material evidence and on the failure of the landlords to produce the same, an adverse inference will have to be drawn against them. 21. Further during the course of cross-examination of respondent No. 1 while appearing as RW 4 a suggestion was put forth by the landlords that the firm respondent No. 2 was showing the payment of rent in respect of the tenanted premises in their income tax returns. Such suggestion was denied by the respondent No. 1. However, no attempt was made by the landlords to summon and prove such income tax returns either by summoning the concerned official of the Income Tax Department or by calling upon respondent No. 2 to produce the same. 22. It is pertinent to note that respondent No.2 has not stepped into the witness box to depose in favour of its stand taken by it in reply dated 20.5.1991. Respondent No. 2 in its reply has taken a specific stand that the tenanted premises were let out to it by the landlord and the same were given by it to respondent No.l for residence since he (respondent No. 1) was in its employment and no rent therefor was being charged from him. It was further pleaded that since respondent No. 1 has ceased to be in its employment, it would take appropriate steps against him for his eviction in accordance with law. 23. It was further pleaded that since respondent No. 1 has ceased to be in its employment, it would take appropriate steps against him for his eviction in accordance with law. 23. Admittedly since after the filing of reply dated 20.5.1991 by respondent No. 2 in the present case till date, no action has been taken by it against respondent No.2 for his eviction from the tenanted premises. 24. It is in evidence that on 30.12.1986, respondent No. 2 had filed a petition under Section 14(3)(d) of the Rent Act, 1971, as was then in force, for the ejectment of respondent No. 1 from the tenanted premises. Ex. RW I/A is the copy of such ejectment petition. The ejectment of respondent No.l from the tenanted premises was claimed on the ground that the same were given to him by virtue of his being in the employment of respondent No. 2 and since the respondent No. 1 had ceased to be in the employment of respondent No.2, he was liable to be evicted from the tenanted premises. Ex. RW 1/B is the copy of the reply filed thereto by respondent No. 1 where in the respondent No. 1 after denying the relationship of landlord and tenant between the parties, pleaded that he was inducted as a tenant qua the tenanted premises by the predecessor in interest of the present landlords. This petition was withdrawn by respondent No. 2 on 29.7.1988 with leave to bring a fresh petition on same/similar cause of action. Ex. RW 1/C is the copy of order dated 29.7.1988 of the Rent Controller permitting respondent No. 2 to withdraw his petition with liberty to bring a fresh petition. Admittedly, no fresh petition was filed by respondent No.2 against respondent No. 1 thereafter till date. 25. In the present case as well, as stated above, respondent No.2 has not stepped into the witness box to depose in support of its case. Therefore, an adverse inference has to be drawn against respondent No. 2. 26. It is the specific case of the landlords that the respondent No. 2 was appointed as its Estate Agent and the tenanted premises were given to it for residence for the reason of its being in their employment. Respondent No. 2 is a firm. Therefore, an adverse inference has to be drawn against respondent No. 2. 26. It is the specific case of the landlords that the respondent No. 2 was appointed as its Estate Agent and the tenanted premises were given to it for residence for the reason of its being in their employment. Respondent No. 2 is a firm. There is nothing either in the pleadings or in the evidence as to for whose residence the tenanted premises were given to respondent No. 2. It is not the case of the landlords that respondent No. 2 were authorised or competent to further give the tenanted premises to its employee(s) for residence. In view of the admitted fact that respondent No. 2 was the Estate Agent of the landlords and assuming that the tenanted premises were given to respondent No. 1 by respondent No. 2, respondent No. 1 would be deemed to have been given the premises in dispute by respondent No. 2 as agent of the landlords and as such he would be a tenant under the landlords. 27. Much reliance was placed by the landlords on the letter Ex. PA vide which respondent No. 2 is alleged to have remitted the rent of Rs. 180 for the period 1.1.1983 to 31.12.1983 to the landlords by cheque. No benefit can be derived by the landlords from this letter. Firstly, admittedly respondent No. 2 was the agent of the landlords. It was collecting rent from various tenants for and on behalf of the landlords. Therefore, sending of rent by respondent No. 2 to the landlords will not prove the tenancy in favour of respondent No. 2. Secondly, it is the admitted case of the parties that respondent No. 1 was in the employment of respondent No. 2. Therefore, it is possible that respondent No. 2 might have been deducting the rent from the salary of respondent No. 1, acting as agent of respondent No. 2 and then remitting the same to the landlords. Thirdly, the rent paid vide Ex. PA has not been proved to be in respect of tenanted premises, which comprises of a servant quarter of Franklin Cottage. The letter Ex. PA states about the remittance of rent in respect of Franklin Cottage. 28. Thirdly, the rent paid vide Ex. PA has not been proved to be in respect of tenanted premises, which comprises of a servant quarter of Franklin Cottage. The letter Ex. PA states about the remittance of rent in respect of Franklin Cottage. 28. On the facts and in the circumstances of the case, it cannot be said that the findings of the learned Appellate Authority suffer from any illegality or impropriety, or that such findings are based on no evidence. 29. Resultantly, the present petition fails and the same is. dismissed with costs quantified at Rs. 2,200. Petition dismissed.