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2002 DIGILAW 190 (HP)

KRISHNA DEVI v. PRAGO DEVI

2002-07-06

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The petitioner, who is the landlady, having failed in the two forums below in obtaining the ejectment of the respondent No. 1 (tenant) has approached this Court by way of the present revision petition under Section 24(5), H.P. Urban Rent Control Act, 1987 (for short the Rent Act) assailing the orders of the two forums below. 2. The tenanted premises are non-residential. It consists of ground floor shop No. 16, Upper Kaithu, Simla. The tenanted premises were initially let out to Shri Shonkia Ram, the husband of respondent No. 1, on an annual rent of Rs. 300. After the death of her husband, respondent No. 1 became a tenant under the petitioner. 3. The petitioner on 3.12.1986 preferred a petition under Section 14 of the Rent Act being Rent Petition No. 43/2 of 1987/86 for the ejectment of the tenant on the following grounds:— (a) Non-payment of rent with effect from 1.3.1982 to 31.10.1986 at the rate of Rs. 300 per annum; (b) The tenant respondent No. 1 having sub-let and parted with possession of a part of the tenanted premises to respondent No. 2 Messrs. Dharam Pal Tirath Ram; and (c) The tenant respondent No. 1 having committed such acts and conduct as are nuisance to the occupiers of the buildings in the neighbourhood. 4. On 16.1.1998, the petitioner filed another petition under Section 14 of the Rent Act, being Rent Petition No. 46/2 of 1988, for the ejectment of tenant-respondent No.1 on the following grounds:— (i) Non-payment of rent for the period 1.11.1986 to 31.12.1987 at the rate of Rs. 300 per annum; and (ii) The tenant-respondent No.1 having ceased to occupy the tenanted premises for a continuous period of more than twelve months preceding the filing of the eviction petition, without a reasonable or sufficient cause. 5. Both the petitions were resisted and contested by the respondents. Arrears of rent as claimed were denied. The respondents also denied the sub-letting or that they have ceased to occupy the tenanted premises as claimed by the petitioner. They further denied having committed such acts so as to cause nuisance to the occupiers of the buildings in the neighbourhood. The case put forth by the respondent No. 2 was that they are the tenant under the petitioner having been so inducted by husband of respondent No. 1 acting as attorney for the petitioner. 6. They further denied having committed such acts so as to cause nuisance to the occupiers of the buildings in the neighbourhood. The case put forth by the respondent No. 2 was that they are the tenant under the petitioner having been so inducted by husband of respondent No. 1 acting as attorney for the petitioner. 6. Following issues were framed in Rent Petition No. 43/2 of 1987/ 86 on 7.11.1988, 6.9.1989 and 14.9.1993:— 1. Whether the respondent No. 1 is in arrears of rent as alleged, if so, to what amount? OPP 2. Whether the disputed premises have been sub-let and transferred by respondent No. 1 to respondent No. 2 as alleged without the written consent of the petitioner? OPP 3. Whether respondent No.1 has committed such acts and is guilty of such acts and conduct as are nuisance to the occupiers of the buildings in the neighbourhood as alleged? OPP 4 Whether respondents 3 and 4 are tenants in respect of the disputed premises? OPR 5. Whether the present petition is not maintainable? OPR 3 and 4 5-A. Whether respondent No. 2 is occupying the premises as a tenant? If so, to what effect? OPR 6. Whether the applicant is estopped to file the petition by her act and conduct? OPR 7. Whether the petitioner has waived her right to get the premises vacated? OPR 7. In Rent Petition No. 46/2 of 1988, the following issues were framed by the learned Rent Controller on 21.12.1992 :— 1. Whether the respondent is in arrears of rent as claimed? OPA. 2. Whether the respondent No. 1 has ceased to occupy the suit premises for a continuous period of more than twelve months prior to the filing of the petition as alleged? OPA. 3. Whether the other respondents are tenants qua the suit premises as alleged? OPR. 4. Relief. 8. The two eviction petitions preferred by the petitioner, on an application having been made by the respondents, were consolidated for being disposed of together vide order dated 13.11.1992 of the learned Rent Controller. 9. The learned Rent Controller vide order dated 24.11.1994 allowed both the petitions partly by ordering the ejectment of the tenant respondent No. 1 only on the ground of non-payment of rent. 9. The learned Rent Controller vide order dated 24.11.1994 allowed both the petitions partly by ordering the ejectment of the tenant respondent No. 1 only on the ground of non-payment of rent. It was directed that the tenant-respondent No. 1 shall not be evicted in pursuance of such order if the entire arrears of rent along with cost and interest are paid by her within 30 days from the date of the order. The ejectment petitions insofar as other grounds were concerned were dismissed. The findings recorded by the learned Rent Controller were as under:— (a) Respondent No. 1 was the tenant under the petitioner; (b) The tenanted premises were sub-let by Shonkia Ram, the husband of tenant-respondent No. 1 to respondents 2 to 4 in the year 1976; (c) No default within the meaning of Section 14(2)(ii) of the Rent Act was committed by the tenant-respondent No. 1 so as to entitle the petitioner to claim her eviction; (d) The respondent No. 1 is not guilty of any act or conduct so as to cause nuisance to the occupiers of the buildings in the neighbourhood; (e) The tenant-respondent No. 1 has not ceased to occupy the tenanted premises for a continuous period of twelve months preceding the filing of the ejectment petition. 10. No appeal(s) was filed by the tenant respondent No. 1 against the findings of the learned Rent Controller. Two appeals, being Civil Misc. Appeal Nos. 7-S/14 of 1995 and 6-S/14 of 1995 were preferred by the petitioner assailing the findings of the learned Rent Controller declining the ejectment of the tenant respondent No. 1 on the grounds of sub-letting, ceasing to occupy and commission of such act and conduct so as to cause nuisance to the occupiers of the buildings in the neighbour. Similarly, two appeals, being Civil Misc. Appeal Nos. 13-S/14 of 1995 and 14-S/14 of 1995 were preferred by respondents 2 to 4 assailing the findings of the learned Rent Controller to be the sub-tenants under tenant respondent No. 1 and not the tenants under the petitioner. 11. All the four appeals were disposed of by the learned Appellate Authority vide a single judgment dated 12.3.1998. The two appeals preterred by the petitioner were dismissed. 11. All the four appeals were disposed of by the learned Appellate Authority vide a single judgment dated 12.3.1998. The two appeals preterred by the petitioner were dismissed. In so far as the appeals of the respondents No. 2 to 4 are concerned, the learned Appellate Authority though agreed With the findings of the learned Rent Controller holding them to be sub-tenants under tenant-respondent No. 1, came to the conclusion that the sub-letting had taken place prior to the coming into force the Rent Act, therefore, the ground of eviction on account of sub-letting was not available to the petitioner. The two appeals of respondents No. 2 to 4 were, thus, allowed to that extent. 12. Aggrieved, the petitioner is before this Court by way of the present revision petition. 13. There is no denying that the ground of ejectment on account of non-payment of rent does not survive since the arrears of rent in terms of the order dated 24.11.1994 of the learned Rent Controller stand paid/ deposited by the tenant-respondent No. 1. 14. The first ground put forth by the petitioner for seeking ejectment of the tenant respondent No. 1 is that a part of the tenanted premises has been sub-let by the tenant-respondent No.l after the coming into force of the Rent Act and without the written consent of the petitioners in favour of respondent No. 2 Messrs. Dharampal Tirath Ram belonging to respondents 3 to 7 before this Court. 15. Section 14(2)(ii)(a) of the Rent Act provides: "A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied— (i)...............................................................................................; (ii) that the tenant has after the commencement of this Act without the written consent of the landlord— (a) transferred his rights under the lease or sub-let the entire building or rented land or any portion thereof, or (b)..................................................................................." 16. In claiming ejectment the tenant-respondent No. 1 from the tenanted premises on the above mentioned ground of sub-letting, the petitioner in para 18(a)(2) of her petition has averred as under:— "That the respondent No. 1 has sub-let and transferred her rights under the lease in respect of portion of the shop to respondent No. 2 without the written consent of the petitioner. It may further be submitted here that act of sub-letting was in fact committed by the husband of respondent No. 1 during her life-time after the commencement of H.P. Urban Rent Control Act, 1971 for valuable consideration and which act of sub-letting is still continuing." (Emphasis supplied) 17. It is, thus, the admitted case of the petitioner that the act of subletting was committed by the deceased Shonkia Ram during his life time. Respondent No. 1, who is the widow of the said deceased, succeeded to the tenancy rights qua the premises in dispute after the death of her husband. Therefore, proceeding on the assumption that such sub-letting by the deceased, which was without the written consent of the petitioner, was affected after the coming into force of the Rent Act, the question arising for determination is whether such sub-letting by the deceased can be pressed into service against respondent No. 1 as a ground for seeking her ejectment from the tenanted premises. 18. A similar question arose before the Honble Supreme Court in A.S. Sidochana v. C. Dharamalingam, AIR 1987 SC 242, a case arising under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10(2) (ii)(a) of the said Act, which provides for sub-letting by a tenant as a ground for his eviction, which provisions are pari materia to the provisions contained in Section 14(2)(ii)(a) of the Rent Act, reads : "A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied— (i).................................................................................................; (ii) that the tenant after the 23rd October, 1945 without the written consent of the landlord— (a) transferred his rights under the lease or sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so; or (b) ..................................................................................................." 19. In the case before the Honble Supreme Court, father of one C was the tenant. He had sub-let the tenanted premises to one X in the year 1952. After the death of his father in the year 1968, C succeeded to the tenanted premises as a tenant. A petition for eviction of O was filed by the landlord in the year 1970 on the ground of sub-letting under Section 10(2)(ii)(a) of the Tamil Nadu Act, quoted above. After the death of his father in the year 1968, C succeeded to the tenanted premises as a tenant. A petition for eviction of O was filed by the landlord in the year 1970 on the ground of sub-letting under Section 10(2)(ii)(a) of the Tamil Nadu Act, quoted above. The High Court of Madras, while disallowing the relief of ejectment of the tenant, held that a tenant sought to be evicted on the ground of sub-letting must himself have been guilty of contravention and that the alleged contravention by his father, when he was a tenant, can be of no avail for evicting him. 20. Upholding the findings of the High Court of Madras, the Honble Supreme Court held : "Examining the profile of the view taken by the High Court that the offending sub-letting must be by the tenant sought to be evicted himself, and not by his predecessor, is concerned, it appears to be blemishless. Section 10(2) opens with the words "A landlord how seeks to evict his tenant" and provides that if the tenant has created a sub-tenancy without the written consent of the landlord, he will be liable to be evicted. Pray, who is the tenant whom the landlord wants to evict? That tenant is the respondent. Did he violate Section 10(2)(ii)(a) and sub-let the rented premises? The answer is no. It is of little use to give the answer, not he, but his predecessor, his late father, had sub-let the premises. When the statute says the tenant who is sought to be evicted must be guilty of the contravention, the Court cannot say, will suffice guilt of his predecessor in interest. The flouting of the law, the sin under the Rent Act must be the sin of the tenant sought to be evicted, and not that of his father or predecessor in interest. Respondent inherited the tenancy, not the sin, if any, of his father. The law in its wisdom seeks to punish the guilty who commits the sin, and not his son who is innocent of the rent law offence. It being a penal provision in the sense that it visits the violator with the punishment of eviction, it must be strictly construed, for it causes less misery to be sheltered in a jail, than to be shelterless without. Be that as it may, the conclusion recorded by the High Court is fault-free." 21. It being a penal provision in the sense that it visits the violator with the punishment of eviction, it must be strictly construed, for it causes less misery to be sheltered in a jail, than to be shelterless without. Be that as it may, the conclusion recorded by the High Court is fault-free." 21. In Parmnder Singh v. Renu Gautam, 1998 (2) RCR 581, a learned Single Judge of this Court while dealing with the provisions contained in Section 14(2)(ii)(a) of the Rent Act, where the act of sub-letting complained of was committed by the deceased tenant and an action was brought against his widow and son, who had succeeded to the tenancy, has held that a landlord, who seeks eviction of his tenant on the ground that he has created sub-tenancy without his written consent, has to prove that the tenant against whom the petition has been filed, has sub-let the premises and it is his ejectment that is being sought on that ground. If the premises had been sub-let by the predecessor of the tenant, the tenant against whom the Us has been brought and who is the successor-in-interest, cannot be said to have violated the provisions so as to make him liable for eviction. In coming to the said conclusion; the learned Single Judge had followed and applied the dictum of the Honble Supreme Court in A.S. Sulochanas case (supra). 22. In the present case as well, as stated above, it is the admitted case of the petitioner that a part of the tenanted premises was sub-let by the deceased Shonkia Ram, the husband of the present tenant respondent No.l, after the coming into force of the Rent Act without her written consent. The facts of the present case are exactly similar to the facts in Parvinder Singhs case (supra), therefore, the ratio laid down in the above referred to two cases applies to the present case on all fours. The two forums below as such have rightly declined the ejectment of the tenant-respondent No. 1 on the ground of sub-letting. Such findings do not call for any interference. 23. The two forums below as such have rightly declined the ejectment of the tenant-respondent No. 1 on the ground of sub-letting. Such findings do not call for any interference. 23. In so far as the other two grounds of eviction, namely, the tenant-respondent No. 1 is guilty of such acts and conduct as are a nuisance to the occupiers of the buildings in the neighbourhood, and that the tenant-respondent No. 1 has ceased to occupy the tenanted premises for a continuous period of twelve months without a reasonable cause, are concerned, it may be noticed that the two forums below have concurrently found both the grounds against the petitioner. Such concurrent findings of the two forums below are purely on a question of fact, which cannot be interfered with by this Court in exercise of the revisional powers. Though the powers of revision under the Rent Act are wider than the revisional powers under Section 115, Code of Civil Procedure, such revisional powers under the Rent Act cannot be confined to in seeing the legality or impropriety of the orders passed by the authorities below constituted under the Rent Act. 24. Dealing with the extent of revisional powers under the Rent Act, the Honble Supreme Court in Dr. Gyan Parkash v. Som Nath and others, 1996 (1) RCR 342, has held that on a question 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 the 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 appreciate and re-assess the entire evidence on record and to come to a contrary finding. 25. I have gone through the evidence coming on record and it can be safely said that there has been neither misreading nor mis-appreciation of evidence by the two forums below in arriving at the concurrent findings. There is neither perversity in the approach of the two forums below nor it is a case of findings based on no evidence. The findings of the two forums below do not suffer from any illegality or impropriety and as such no interference therewith is called for. 26. There is neither perversity in the approach of the two forums below nor it is a case of findings based on no evidence. The findings of the two forums below do not suffer from any illegality or impropriety and as such no interference therewith is called for. 26. As a result, the present petition fails and the same is accordingly dismissed leaving the parties to bear their own costs. Revision fails.-