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2003 DIGILAW 198 (PNJ)

Hans Raj Aggarwal v. Lachhman Dass

2003-02-03

K.C.GUPTA

body2003
Judgment K.C.Gupta, J. 1. This revision petition is directed by the legal representatives of Hans Raj Aggarwal against the order dated 24.9.1984 passed by the Appellate Authority Faridkot vide which their appeal was dismissed and the order dated 17.10.1981 passed by the Rent Controller, Faridkot, vide which the petition filed by their predecessor Hans Raj Aggarwal (now deceased) for ejectment of Lachhman Dass and Darshan Lal Jindal from the demised shop was dismissed. 2. Briefly stated, the facts are that Hans Raj Aggarwal (now deceased) was the owner of the demised shop consisting of one Khan as detailed in the heading of the petition. He had leased it out to Lachhman Dass respondent No-1 on 1.12.1973 at the rate of Rs. 225/- per month vide rent note executed in his favpur by Lachhman Dass. However, Lachhman Dass respondent No. 1 on 7.12.1973 sub let the demised premises to Darshan Lal Jindal respondent No. 2 vide rent note Ex.A1 at monthly rent of Rs. 275/-and handed over the exclusive possession of the demised shop to him. Thereafter, respondent No. 2 started carrying on the profession of a Dentist into he said shop. 3. Hans Raj Aggarwal filed an ejectment petition against Lachhman Dass as his tenant and Darshan Lal Jindal as sub tenant on the ground that Lachhman Dass has sub let the demised shop to Darshan Lal Jindal respondent No. 2 without his written consent and as such, was liable to be evicted from the demised shop. 4. The respondents filed separate written statements. Lachhman Dass respondent No. 1 in his written statement admitted most of the assertions made by Hans Raj Aggarwal in his petition. He admitted that he had sub let the demised shop to Darshan Lal Jindal respondent No. 2 with effect from 7.12.1973 vide rent note Ex.A1 which was executed by Darshan Lal Jindal in his favour. However, he asserted that after 2/3 months of sub letting, he had reported the matter to the landlord and the latter did not object to it. 5. Respondent No. 2 in his written statement denied the allegations of Hans Raj Aggrwal and stated that he was a direct tenant under him as he was never inducted as sub tenant by Lachhman Dass and no memorandum of lease was executed by Lachhman Dass in favour of Hans Raj Aggarwal. 5. Respondent No. 2 in his written statement denied the allegations of Hans Raj Aggrwal and stated that he was a direct tenant under him as he was never inducted as sub tenant by Lachhman Dass and no memorandum of lease was executed by Lachhman Dass in favour of Hans Raj Aggarwal. He next stated that the memorandum of lease dated 1.12.1973 was a sham transaction brought into existence by Hans Raj Aggarwal in connivance with Lachhman Dass. He further stated that Hans Raj Aggarwal and Lachhman Dass were near relatives and had been carrying on business together. He further stated that he was in need of the shop and approached Hans Raj Aggarwal in the last days of November 1973 for taking the premises on lease. At that time there was a general shortage of commercial premises. However, Hans Raj Aggarwal wanted to ensure his right of eviction. Although he agreed to let out the demised premises to him at a monthly rent of Rs. 275/-, yet he devised a novel method and stated that he would execute the rent note in favour of Lachhman Dass respondent No. 1, so that he (Hans Raj Aggarwal) could remain, safe and could avoid rigours of East Punjab Urban Rent Restriction Act. He further stated that he had been paying the rent direct to Hans Raj Aggarwal and not to Lachhman Dass but Hans Raj Aggarwal landlord never issued any receipt in his favour. He also took the plea that Hans Raj Aggarwal was estopped by his act and conduct to file the ejectment petition. 6. Accordingly, the following issues were struck:- 1. Whether the respondent No. 1 has sub let premises to the respondent No. 2? OPA 2. Whether respondent No. 2 is direct tenant of the petitioner? OPR-2 3. Whether the petitioner is estopped from filing this application by his act and conduct? OPR-2 4. Whether the complicated questions of fact and law are involved and this Court has no jurisdiction? 5. Relief. 7. The parties adduced their evidence. OPA 2. Whether respondent No. 2 is direct tenant of the petitioner? OPR-2 3. Whether the petitioner is estopped from filing this application by his act and conduct? OPR-2 4. Whether the complicated questions of fact and law are involved and this Court has no jurisdiction? 5. Relief. 7. The parties adduced their evidence. The Rent Controller after hearing counsel for the parties vide his order dated 17.10.1981 dismissed the petition by holding under issues No. 1 and 2 that Lachhman Dass respondent No. 1 was not a tenant of Hans Raj Aggarwal landlord and further respondent No. 1 had not sub let the demised premises to Darshan Lal Jindal and on the other hand Darshan Lal Jindal is the direct tenant of the landlord. However, issue No. 3 was decided in favour of the landlord by holding that there was no estoppel or waiver on the part of the landlord if he did not file the petition for ejectment for some period. Under issue No. 4 it was held that Rent Controller had got jurisdiction to try the petition. 8. Aggrieved by the said order, Hans Raj Aggarwal petitioner filed an appeal. 9. During pendency of the appeal Hans Raj Aggarwal died and his legal representatives namely Raj Kumar Gupta. Sham Lal Gupta sons, and Bimla Wad Daughter were brought on record. 10. After hearing learned counsel for the parties, the Appellate Authority Faridkot, vide his order dated 24.9.1984 dismissed the appeal by upholding the order of Rent Controller. 11. Still dissatisfied, the legal representatives of Hans Raj Aggarwal (now deceased) have filed the present revision petition. Raj Kumar Gupta one of the L.Rs of Hans Raj Aggrwal died on 14.9.1988. A civil misc. application bearing N6.6436-CII of 1988 was moved under Order 22 Rule 3 C.P.C. for bringing on record his legal representatives on the allegation, that Raj Kumar Gupta has died on 14.9.1988 leaving behind his widow Shanta Kumari, Sanjeev Kumar son, Lalit Mohan minor son and Sangeeta daughter. It was prayed that they be impleaded as legal representatives of Raj Kumar Gupta. That application was allowed on 20.1.1989. 12. None appeared on behalf of respondent No. 1 Lachhman Dass. He was also proceeded against ex-parte in the lower Court. 13. I have heard Mr. D.R. Mahajan, learned counsel for the petitioners, Mr. M.L. Sarin, Sr. Advocate, with Ms. It was prayed that they be impleaded as legal representatives of Raj Kumar Gupta. That application was allowed on 20.1.1989. 12. None appeared on behalf of respondent No. 1 Lachhman Dass. He was also proceeded against ex-parte in the lower Court. 13. I have heard Mr. D.R. Mahajan, learned counsel for the petitioners, Mr. M.L. Sarin, Sr. Advocate, with Ms. Sweena Pannu, Advocate, for respondent No. 2 and carefully gone through the file. 14. The only ground on which Hans Raj Aggarwal predecessor in interest of the petitioners has filed the ejectment petition against Lachhman Dass respondent No. 1 and Darshan Lal Jindal respondent No. 2 is sub letting. His allegation is that he had leased out the demised shop to Lachhman Dass respondent No. 1 on 1.12.1973 vide lease deed mark A at a monthly rent of Rs. 225/-. However, Lachhman Dass had sub let the demised shop on 7.12.1973 vide lease deed Ex.A1 to Darshan Lal Jindal respondent No. 2 at a monthly rent of Rs. 275/- without his written consent and thereafter Darshan Lal Jindal was in exclusive possession of the demised shop. On the other hand, the case of respondent No. 2 is that he is not the sub tenant of Lachhman Dass respondent No. 1 but he is direct tenant in the demised shop under Hans Raj Aggarwal the landlord and the rent notes mark A dated 1.12.1973 and Ex.A1 dated 7,12.1973 were sham and fictitious transactions. 15. Lachhman Dass respondent No. 1 in his written reply had stated that he had taken the demised shop on rent from Hans Raj Aggarwal but he could not start any business there and as such, let out the same to respondent No. 2 through rent note dated 7.12.1973 with effect from 1.1.1974 to 30.6.1974 at the rate of Rs. 275/- per month and the possession was handed over to Darshan Lal Jindal respondent No. 2 on 1.1.1974. He has further stated that after about 2/3 months of sub letting, he had brought this fact to the notice of Hans Raj Aggarwal but he did not object. 16. It was admitted by AW3 Hans Raj Aggarwal in his cross-examination that Lachhman Dass respondent No. 1 was the son of his brother-in-law (Sala). He has further stated that after about 2/3 months of sub letting, he had brought this fact to the notice of Hans Raj Aggarwal but he did not object. 16. It was admitted by AW3 Hans Raj Aggarwal in his cross-examination that Lachhman Dass respondent No. 1 was the son of his brother-in-law (Sala). It as also admitted by him that Lachhman Dass was a partner with him in a firm styled as Rajkot Trading Corporation and Lachhman Dass had a share to the extent of 8 paise per rupee and had worked in 1975-76. He also admitted that Lachhman Dass was also a partner in another firm M/s Raj Pal and Co. in which he was also a partner for three months. He next admitted that he was on good terms with Lachhman Dass and his father Lala Kundan Lal when lease deed mark A was executed on 1.12.1973. He next stated that Lachhman Dass had told him that he would run a shop of iron merchant but actually he did not start any business in the shop. He further admitted that he did not see Lachhman Dass respondent No. 1 working in the demised shop at any point of time. He further admitted that electricity connection was installed after 2/3 months of his leasing out the shop i.e. the electricity connection was installed either in the month of February or March, 1974. He next admitted that bills regarding electricity were issued in his name-It is an admitted fact that electricity connection is not released in a premises without the consent of the owner of the premises. Therefore, Hans Raj Aggarwal must have signed the form for release of electricity connection because prior to the leasing out the demised shop there was no electricity connection in the same. It was next admitted by him that there was a Chaubara on the demised shop and Darshan Lat Jindal remained as a tenant on the said Chaubara probably in the year 1974. It is in the written reply of Lachhman Dass that he had told Hans Raj Aggarwal about the fact of leasing the demised shop further to Darshan Lal Jindal. after 2/3 months. Thus, in the month of February or March, 1974 Hans Raj Aggarwa! came to know that the demised shop had been sub let. It is in the written reply of Lachhman Dass that he had told Hans Raj Aggarwal about the fact of leasing the demised shop further to Darshan Lal Jindal. after 2/3 months. Thus, in the month of February or March, 1974 Hans Raj Aggarwa! came to know that the demised shop had been sub let. -Otherwise also, the demised shop was situated near the house of Hans Raj Ag-garwal and it would not have escaped his notice that instead of Lachhman Dass respondent, some other person had started running a Dentist shop in the demised premises. He next stated that he had entered the receipt of rent from Lachhman Dass in his account books which were in his possession. However, the same had not been produced to show that the rent was actually received from Lachhman Dass and not from Darshan Lal Jindal respondent No. 2 directly. He next stated that there was another shop belonging to him adjacent to the shop in dispute which was also leased out to Lachhman Dass 5/7 days prior to the present lease i.e. in the end of November, 1973 and then with his written consent, the same was let out to Surinder Kumar Gulati. Therefore, from his statement, the following facts are deducible:- 1) That Lachhman Dass respondent No. 1 and the tandlord Hans Raj Aggarwal (now deceased) were close relatives; 2) That they were partners in at least two firms; 3) That Lachhman Dass respondent No. 1 had told Hans Raj Aggarwal about the fact of alleged sub letting of the demised premises after 2/3 months of his taking the same on lease but the landlord did not object. Otherwise also, Hans Raj Aggarwal must have come to know that instead of Lachhman Dass, Darshan Lal Jindal respondent No. 2 had occupied the demised shop and he has been running a Dentist shop because the house of Hans Raj Aggarwal was situated just nearby the shop in dispute; 4) That at the time of lease, there was no electricity connection in the demised shop. After 2/3 months the electricity connection was installed and Hans Raj Aggarwal started getting bills in his own name. The electricity connection is given only in the name of the owner of the premises when he signs the necessary papers. Therefore, Hans Raj Aggarwal must have signed the requisite papers to get electric connection. After 2/3 months the electricity connection was installed and Hans Raj Aggarwal started getting bills in his own name. The electricity connection is given only in the name of the owner of the premises when he signs the necessary papers. Therefore, Hans Raj Aggarwal must have signed the requisite papers to get electric connection. If it was a case, of sub letting, then Hans Raj Aggarwal would not have signed the papers for getting the electricity connection; 5) That Lachhman Dass respondent No. 1 did not work even for a single day in the demised shop. This means that he never occupied the demised shop; and 6) There were good relations between Lachhman Dass respondent No. 1 and Hans Raj Aggarwal (now deceased). 17. Similarly Hans Raj Aggarwal had let out another adjacent shop to Lachhman Dass and then with his consent, it was let out to Surinder Kumar Gulati. These facts clearly point out that rent notes mark - A and Ex.A1 were created only to fictitiously fabricate sub-tenancy and in fact Darshan Lal Jindal was the direct tenant of Hans Raj Aggarwal. Moreover, Hans Raj Aggarwal has admitted in his statement that he had been entering the receipt of rent from Lachhman Dass in the books of accounts which were in his possession. However, no copy of the same has been produced on record to prove that infact rent was received from Lachhman Dass and not directly from Darshan Lal Jindal. 18. Lachhman Dass respondent No-1 has not been examined as a witness to prove that he had taken the demised shop on rent from Hans Raj Aggarwal for doing some business and he had made efforts to start some business and for certain reasons, he could not start the same and then he sub let the demised premises to Darshan Lal Jindal. The very fact that he had not come in the witness-box suggests that he avoided to face cross-examination so that the cat may not be out of bag and he may not.be forced to admit that in fact Darshan Lal Jindal was the direct tenant of Hans Raj Aggarwal deceased. 19. RW1 Dr. Darshan Lal Jindal stated that he did his house job in January 1, 1973 to June 30, 1973 and thereafter he remained in search of a shop for 3/4 months at Farid-kot. 19. RW1 Dr. Darshan Lal Jindal stated that he did his house job in January 1, 1973 to June 30, 1973 and thereafter he remained in search of a shop for 3/4 months at Farid-kot. On 28.11.1973, he came to know that two shops in Line bazar were lying vacant and the same belonged to Lala Hans Raj who was residing at the back of said shops. He next stated that he contacted Hans Raj Aggarwal to take the shop on rent and he told him that he had already let out a shop to Mr. Gulati and showed him the shop which was lying vacant and it was approved by him and when he asked about the terms, then Hans Raj Aggarwal stated that it would be let out ,at a monthly rent of Rs. 275/- and besides it would be rented out to him through Lachhman Dass. He next stated that initially he was not agreeable to it but since there was shortage of shops in those days, so, he took the demised shop on rent at the rate of Rs. 275/- per month from 1.12.1973. He further stated that he met Hans Raj on 7.12.1973 who told him first to execute the necessary papers and then he would be given the demised shop on rent from 1.1.1974, although he would charge rent from 1.12.1973. Consequently, he executed the rent note Ex.A1 under pressure which he handed over to Lachhman Dass who handed over the same to Hans Raj and then at the shop of Hans Raj he received the keys. He further stated that in fact he had taken the shop directly from Hans Raj and was his tenant and he had been paying rent to Hans Raj but the latter never issued any receipt to him. He nextstated that he started residing as a tenant on the Chaubara of Hans Raj from 7.12.1973 and the Mahurat of the shop was performed by him on 18.12.1973. He also stated that Hans Raj got the electricity connection in the demised premises in May 1974 and water connection in January 1974. Thus, the statement of Darshan Lal Jindal respondent No. 2 corroborates the facts which have been deduced from the statement of Hans Raj Aggarwal. He also stated that Hans Raj got the electricity connection in the demised premises in May 1974 and water connection in January 1974. Thus, the statement of Darshan Lal Jindal respondent No. 2 corroborates the facts which have been deduced from the statement of Hans Raj Aggarwal. Therefore, it is categorically proved that Hans Raj landlord had beep using his brother-in-laws son namely Lachhman Dass as a tool to get out of the rigours of the East Punjab Urban Rent Restriction Act to seek subsequently the eviction of the actual tenant on the ground of alleged sub tenancy and as such, the lease deeds mark- A allegedly executed by Lachhman Dass in favour of Hans Raj and Ex.A1 executed by Darshan Lal Jindal respondent No. 2 in favour of Lachhman Dass respondent No. 1 are sham transaction. In similar circumstances, this Court in Sarwan Singh Waryam Singh v. Panna Lal, 2001(2) R.C.R. 243 has held that where tenancy is created by way of written document and the tenant creates sub-tenancy in favour of a third person within 9 days charging the same rent, then it was held that the facts show that it was a sham transaction and the tenant was a man of convenience of landlord. The person inducted as a sub-tenant was infact direct tenant of the landlord and as such, the landlords petition on the ground of sub letting was dismissed. In the present case, Lachhman Dass being closely related to Hans Raj Aggarwal and having good relations with him and also having partnership with him in a couple of firms was a man of convenience of Hans Raj Aggarwal to create sham transaction. Similarly it was held in Balbir Singh v. Mohinder Singh Ahluwalia, 2001(2) R.C.R. 277 that rent note was a sham transaction because the rent note was executed by the tenant but there was no evidence that tenant was put in possession and on the other hand a third person was put in possession. The contention of the landlord that tenant had sub let the house to a third person was not substantiated and as such, the rent note was held to be the sham transaction. It was further held that it was connivance between landlord and alleged tenant to evict the person in occupation of the house. The contention of the landlord that tenant had sub let the house to a third person was not substantiated and as such, the rent note was held to be the sham transaction. It was further held that it was connivance between landlord and alleged tenant to evict the person in occupation of the house. In the present case also, Lachhman Dass respondent No. 1 never came into possession of the demised shop and in fact Darshan Lat Jindal respondent No. 2 directly came into possession of the demised shop and as such, the rent notes were created to make a case of sub letting and in fact, Darshan Lal Jindal was the direct tenant of Hans Raj Aggarwal and the rent notes are sham transactions. 20. The authorities Shri Narain Dass Kapur v. Smt. Darshana Kumari and Ors., 1984(1) R.C.R. (P&H) 329 and Sarup Krishan and Ors. v. Shri Chhajju Ram and Anr., 1981(1) R.L.R. 635, cited by the learned counsel for the petitioners are not applicable to the facts of the present case. In the above mentioned cases, it was not proved as a matter of fact that sub tenant was the direct tenant of the landlord and the alleged rent note was a sham transaction. However, in the present case, it is conclusively proved that the alleged rent note, mark- A executed by Lachhman Dass respondent No. 1 in favour of the landlord and Ex.A1 executed by Darshan Lal Jindal respondent Np.2 in favour of Lachhman Dass respondent No. 1 were sham transactions and in fact, Darshan Lal Jindal was a direct tenant of Hans Raj Aggarwal in the demised shop. It is true that no adverse inference can be drawn if Hans Raj Aggarwal had not taken any action for 6/7 years although, he came to know about sub letting of the demised shop, immediately or after 2/3 months because no amount of delay or inaction on the part of the landlord in filing the ejectment application can justify the sub letting. 21. Both the Courts below have given a concurrent finding that Darshan Lal Jindal respondent No. 2 was a direct tenant of Hans Raj Aggarwal (now deceased) and the rent note Ex.A1 executed by Darshan Lal Jindal respondent No. 2 in favour of Lachhman Dass respondent No. 1 and rent note mark A executed by Lachhman Dass in favour of Hans Raj Aggarwalwere sham transactions. !t has been observed by the Honble Apex Court in Lachhman Dass v. Santokh Singh, (1995-3)111 P.L.R. 276 (S.C.) that discretionary jurisdiction of revision can be invoked only when appellate order suffers from material impropriety, perversity and illegality. In the present case, the orders of the Appellate Authority and the Rent Controller do not suffer from any material irregularity, perversity and illegality and as such, this Court under revisional jurisdiction cannot interfere in the well reasoned orders of the Courts below. Consequently, I hold that there is no force in the revision petition and the same is, therefore, dismissed.