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2003 DIGILAW 245 (PNJ)

Surat Chander Oberoi v. Darshan Singh Sokhi

2003-02-10

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under sub-Section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity `the Act) challenge the judgment dated 28.1.1985 passed by the Appellate Authority, Gurdaspur, whereby the tenant-petitioner has been ordered to be ejected from the demised premises and a period of three months from the date of order i.e. 28.1.1985 had been granted. The Ld. appellate Authority reversed the judgment of the Rent Controller dated 21.4.1984 on the important issue as to whether the tenant-petitioner has ceased to occupy the shop in dispute for a continuous period of about three years. 2. The landlord-respondent filed an application under Section 13 of the Act on 24.3.1983 seeking ejectment of the tenant-petitioner on the grounds of non- payment of rent, failure of the tenant-petitioner to occupy the shop for a continuous period of about three years and that the shop had become unfit and unsafe for human inhabitation. On the pleadings of the parties the following issues were framed : "1. Whether the tender made on 16.5.1983 was valid ? OPR. 2. Whether the respondent has ceased to occupy the shop in dispute for a continuous period of about three years as alleged ? OPA 3. Whether the condition of the shop has deteriorated as alleged and is in danger of failing ? OPA 4. Relief." 3. Issue No. 1 regarding payment of rent was rendered infructuous as the arrears of rent alongwith costs and interest were paid by the tenant- petitioner. Similarly, on issue no. 3 the finding recorded by the Rent Controller had gone against the landlord-respondent. On appeal, no argument was addressed on this issue. Therefore, issue No. 3 as to whether the condition of the shop has deteriorated and is in danger of falling would also be deemed to have been decided against the landlord-respondent. 4. On Issue No. 2, the finding recorded by the Rent Controller is that the landlord-respondent has not produced adequate evidence to show that the shop in dispute has not been occupied by the tenant-petitioner for a continuous period of three years. The statements of the witnesses produced by the landlord-respondent like AW 2 Jagjit Pal Singh, Sarpanch of village Khunda and AW 3 Harbhajan Singh, Lambardar of the same village have been discarded on the ground that village Khunda is at a short distance of 2-3 kms. The statements of the witnesses produced by the landlord-respondent like AW 2 Jagjit Pal Singh, Sarpanch of village Khunda and AW 3 Harbhajan Singh, Lambardar of the same village have been discarded on the ground that village Khunda is at a short distance of 2-3 kms. from Dhariwal and it must be believed that the tenant-petitioner was running his medical practice at Dhariwal in the shop in the dispute as well as at village Khunda. Another reason given by the Rent Controller was that since AW 2 Jagjit Pal Singh and AW 3 Harbhajan Singh belonging to village Khunda have not ever visited the tenant-petitioner for consultation, it was not possible to believe their statement that he was doing medical practice at Khunda throughout the day. The Rent Controller believed that the tenant-petitioner must be running his medical practice for some period at village Khunda also in order to supplement his income. Even the statement of Tarsem Singh from the Electricity Board has been discarded by the Rent Controller on the ground that the landlord-respondent was not able to prove that the meter with connection No. S 598 was in the name of Vijay Kumar son of Rattan Chand who happens to be the brother of the tenant-petitioner is infact installed in the shop in dispute. 5. On appeal, the Appellate Authority while re-appreciating the evidence expressed its views which read as under : "Darshan Singh applicant (Appellant) (AW 1) stated that the respondent has started medical practice in village Khunda shop in dispute is lying closed. Jagjit Pal Singh Sarpanch of village Khunda (AW 2) stated taht he has seen the disputed shop situated at Dhariwal-Khunda road. Surat Chander respondent is a registered medical practitioner. He is carrying on medical practice at village Khunda for the last about three years. He opens his shop in village Khunda at about 8 AM and closes the same at about 6/7 PM. Shop in dispute is lying locked for the last about three years. To the same effect goes the statement of Harbhajan Singh (AW 3). He is resident of village Khunda. According to him, respondent is carrying on medical practice in village Khunda for the last 3/4 years and the shop in dispute is lying closed for the last three years. Shop in dispute is lying locked for the last about three years. To the same effect goes the statement of Harbhajan Singh (AW 3). He is resident of village Khunda. According to him, respondent is carrying on medical practice in village Khunda for the last 3/4 years and the shop in dispute is lying closed for the last three years. So far as Surat Chander respondent (RW 1) is concerned his case is that he is in occupation of the shop in question. He is in occupation of a shop at village Khunda also. He is carrying on medical practice both at Dhariwal and at village Khunda. He attends to his patients in the shop in question from 9 AM to 1 PM and then from 6 PM to 8 PM. He attends to his patient at village Khunda from 2 PM to 5 PM. According to him, he carries on medical practice in the shop in question in two shifts i.e. from 9 AM to 1 PM and then from 6 PM to 8 PM. Between 2 PM to 5 PM he carries on medical practice in the shop at village Khunda. He earns Rs. 40/- to Rs. 50/- a day by practising at Dhariwal Rs. 25/- to Rs. 30/- daily by practising at village Khunda. He earns about Rs. 2200/- or Rs. 2300/- per month. The shop is electric fitted and he is paying electric bills regularly. Tarsem Singh UDC, PSEB Dhariwal (AW 4) has stated that the meter account of this shop is S 598 in the name of Vijay Kumar son of Rattan Chand, hospital road Chemist shop, Dhariwal. This account was initiated on 13.9.1977. No reading on this account was recorded from 13.9.1977 to September, 1980 and again from July, 1981 upto date there is no reading on this account. Reading was not recorded on account of premises having been found locked as and when the meter reader visited the same to record meter reading. On 19.5.82, the consumer was given notice regarding the premises found locked. Reading was not recorded on account of premises having been found locked as and when the meter reader visited the same to record meter reading. On 19.5.82, the consumer was given notice regarding the premises found locked. If Surat Chander respondent (RW 1) is believed, in that he opens his shop at 9 AM and closes it at 1 PM and then reopen it at 6 PM and closes it at 8 PM and he has been doing like this, for the last two years, he could have produced the record of electricity consumption and the payment of electricity bills by him. He could have refuted the allegations of Darshan Singh applicant that he has not occupied the shop during the past 3 years and is keeping it locked by producing the record of the PSEB that he had been paying electricity charges and that on such and such date this was the meter reading and on such and such date, this was the meter reading. I have serious doubts about his having remained in occupation of the shop during the past 2/3 years. It is not believedable that he can attend to his patients at Dhariwal and at village Khunda. But it is not believable that he is able to fly from Dhariwal at 1 PM and reach village Khunda at 2 PM. Raj Kumar (RW 2) stated that the shop is electricity fitted, fans have also been fitted there. There is only one electric bulb. During the past 2/3 years, there have been two summer seasons and two winter seasons. During this period if the shop had really remained in his occupation, there must have been some consumption of electricity. Non-production of the record of the PSEB by Surat Chander respondent to show that he had been occupying the shop and consuming electricity leans me to infer that he had not occupied the shop during this period. His non-occupation of the shop is not attributable to any reasonable cause or excuse." 6. I have heard Shri Hemant Sarin, learned counsel for the tenant-petitioner who has raised two fold submissions before me. The learned counsel has argued that from the record of the Electricity Board, the shop in dispute could not be connected to connection No. S 598 which is produced in evidence to prove that the meter is lying closed for the last about three years. The learned counsel has argued that from the record of the Electricity Board, the shop in dispute could not be connected to connection No. S 598 which is produced in evidence to prove that the meter is lying closed for the last about three years. According to the learned counsel the meter of which record has been produced bears account No. S 598 which is in the name of Vijay Kumar brother of the tenant- petitioner. He has further argued that in any case non-consumption of electricity by the tenant-petitioner would not constitute a basis to conclude that the tenant-petitioner has ceased to occupy the premises for more than three years. In support of his submissions, the learned counsel has placed reliance on three judgments of this Court in the cases of Sohan Lal and another v. Gurbachan Singh, 1990(1) RCR (Rent) 387 (P&H) : (1989-2) PLR 478; Karam Chand Joshi v. Kartar Singh and others 1977(1) RCR (Rent) 327 (P&H) and Siri Ram Gupta v. Jugal Kishor and others 1982(1) All India Rent Control Journal 440. The learned counsel has also submitted that the Appellate Authority has completely mis-directed itself by concluding that it was impossible for the tenant-petitioner to run his practice at two places namely at Dhariwal where the disputed shop is situated as well as at village Khunda because the distance between village Khunda and Dhariwal is 2-3 Kms. as has been concluded by the Rent Controller and stated RW 1 i.e. the tenant- petitioner himself. 7. I have thoughtfully considered the submission made by the learned counsel and am of the view that the instant petition lacks merit. The Appellate Authority has made reference to the statement of AW 2 Jagjit Pal Singh who has stated that the tenant-petitioner has opened his medical practice at village Khunda where the reaches at 8.00 AM and goes back by 6/7 PM. He has further submitted that the shop in dispute is lying locked for the last about three years. To the same effect is the statement made by Harbhajan Singh AW 3 who is Lambardar of village Khunda. He has further submitted that the shop in dispute is lying locked for the last about three years. To the same effect is the statement made by Harbhajan Singh AW 3 who is Lambardar of village Khunda. It is further appropriate to mention that the Appellate Authority has referred to the statement of Tarsem Singh, UDC from the Electricity Board as AW 4 who has stated that from 13.9.1977 to September, 1980 and again from July 1981 till the date of filing the application no reading could be found in connection No. S 598 which stood in the name in Vijay Kumar. Moreover, once the allegation has been levelled for non- consumption of electricity which could have been rebutted by producing electricity bills by the tenant-petitioner and the same has not been done. It is the admitted position by RW 2 Raj Kumar that the shop in dispute is electricity fitted with fans and bulbs. It is impossible to believe that there would be no electricity consumption as there have been summer and winter seasons which would need the use of fan/cooler and also in winter season. 8. The argument of Mr. Sarin that Accounts No. S 598 is not connected with the shop in dispute as the meter stand in the name of Vijay Kumar brother of the tenant-petitioner cannot be accepted because despite opportunity having been given to the tenant-petitioner no cross examination was conducted by the tenant-petitioner on the UDC of the Electricity Board AW 4 (Tarsem Singh). Moreover, the relationship of landlord and tenant between the parties have not been disputed. It would hardly make a difference if the meter is in the name of Vijay Kumar who happens to be brother of the tenant-petitioner. Therefore, I have no hesitation in rejecting the first contention of the learned counsel. The other contention that mere non consumption of electricity would not constitute a ground to conclude that the tenant-petitioner has ceased to occupy the demised premises would also not require serious consideration because there is ample evidence in support of the submissions made by AW 4 Tarsem Singh UDC from the Electricity Board Dhariwal in the shape of statement of landlord-respondent himself as well as that of Jagjit Singh, Sarpanch and Harbhajan Singh, Lambardar. It cannot be concluded that the Appellate Authority has placed reliance on the sole statement of Tarsem Singh UDC of the Electricity Board to conclude the issue with regard to non-occupancy of the shop in dispute for about three years. Therefore, the three judgments relied upon by the learned counsel would not come to the rescue of the tenant- petitioner. The attending circumstances and the statements of various witnesses would adequately show that the tenant-petitioner has ceased to occupy the shop in dispute for a period of more than three years. 9. The last submission of the learned counsel that there is a distance of 2-3 Kms. between Dhariwal where the shop in question is situated and village Khunda would not be relevant because it may be possible for a medical practitioner to practice at two places yet it would be difficult for him to run medical practice without light and fan which fact has been proved by cogent evidence of AW 1 to AW 4 as already stated above. Therefore, it would be immaterial as to whether the tenant-petitioner could carry practice from two nearly situated areas. The revision petition thus lacks merit and is, therefore, liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed.