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2003 DIGILAW 259 (PNJ)

Sant Lal v. Nand Kishore

2003-02-12

JAGDISH SINGH KHEHAR

body2003
Judgment J.S.Khehar, J. 1. Nand Kishore, the original landlord of the premises in question rented out the property in dispute to Sant. Lal. In 1980, Nand Kishore, the landlord fifed an ejectment application raising three grounds. Firstly, that the tenant Sant Lal was in arrears of rent for the period from 1.7.2978 to 31.8.1980. Secondly, that Sam Lal had ceased to occupy the premises in question for a continuous period of four months w.e.f. 1.1.1979. And lastly, that he had sub-let the premises in question to his son Ved Parkash. Ved Parkash was impleaded by the landlord as respondent No. 2 in me ejectment application. 2. The issue in respect of arrears of rent came to be settled between the parties in view of the tender of arrears of rent alongwith interest and costs by the tenants before the Rent Controller. The remaining two issues were agitated between the parties. On both the grounds, the Rent Controller disagreed with the claim raised by the landlord Nand Kishore and accordingly, dismissed the ejectment application by an order dated 2.11.1981. 3. Dissatisfied with the order passed by the Rent Controller, the landlord Nand Kishore preferred an appeal before the Appellate Authority. The Appellate Authority accepted the appeal. While accepting the claim made by the landlord, the Appellate Authority was persuaded to draw his conclusions inter-alia on the basis of a written statement earlier filed by Sant Lal in an earlier ejectment application filed by Nand Kishore. In this behalf it would be pertinent to mention that in para No. 1 of the preliminary objections taken by Sant Lal in the earlier written statement, he had expressly stated that on account of his employment with the Railway Protection Force, he had been posted from time to time at Jodhpur, Delhi, Attari, Amritsar and Jalandhar. On account of the aforesaid postings, he claimed to have ceased to be a tenant under Nand Kishore. In addition to the aforesaid factual position, Sant Lal had further asserted that his son Ved Parkash was a direct tenant under Nand Kishore. The Appellate Authority bound the tenant Sant Lal to the admission made by him in preliminary objection No. 1 of the earlier written statement (which was placed on the record of Rent Controller as Ex. In addition to the aforesaid factual position, Sant Lal had further asserted that his son Ved Parkash was a direct tenant under Nand Kishore. The Appellate Authority bound the tenant Sant Lal to the admission made by him in preliminary objection No. 1 of the earlier written statement (which was placed on the record of Rent Controller as Ex. AW3/1), and thereupon concluded that Sant Lal had not been in occupation of the premises in question for a period of approximately one and a half years and, therefore, returned a finding against the tenant on the issue of having ceased to occupy the premises. Since it was acknowledged that Ved Parkash was in possession of the premises in question during the absence of Sant Lal and that Ved Parkash had been paying rent directly to the landlord Nand Kishore, the Appellate Authority concluded that the premises had been sub-let by Sant Lal to Ved Parkash. 4. Dissatisfied with the order passed by the Appellate Authority, the tenant Sant Lal has approached this Court through the instant petition. At the outset, it needs to be noticed that Sant Lal had died during the pendency of the instant petition. Whereupon, his legal heirs were impleaded in his place by an order dated 25.3.1985. It is also relevant to notice that Ved Parkash, impleaded as a sub-tenant in the original application, has been impleaded as a legal representative of the deceased Sant Lal by the aforesaid order dated 25.3.1985. 5. The only question to be considered while adjudicating upon the present controversy is whether Sant Lal or his son Ved Parkash could be bound by the admission made by Sant Lal, in preliminary objection No. 1, of Ex.AW3/1. According to the learned counsel for the petitioner, no conclusion could be drawn on the basis of the facts narrated in preliminary objection No. 1 in view of the fact that the earlier ejectment application filed by Nand Kishore in which the aforesaid preliminary objection was raised, came to be disposed of by an order dated 24.7.1980. A copy of the aforesaid order dated 24.7.1980 is available on the record of this case as Ex.R-3. Learned counsel for the petitioner emphatically submits that the factual position expressed by Sant Lal in preliminary objection No. 1 was not accepted. A copy of the aforesaid order dated 24.7.1980 is available on the record of this case as Ex.R-3. Learned counsel for the petitioner emphatically submits that the factual position expressed by Sant Lal in preliminary objection No. 1 was not accepted. In fact, a finding was recorded against the assertion made by Sant Lal in preliminary objection No. 1 of Ex.AW3/1, in the judgment/order dated 24.7.1980, the claim made by Nand Kishore, namely, that there was a subsisting relationship of landlord and tenant between Nand Kishore and Sant Lal, was upheld. 6. Learned counsel for the respondent-landlord, however, vehemently contents that the admission made in preliminary objection No. 31 in the written statement earlier filed by Sant Lal (in Ex.AW3/1) was binding on him and he could not be permitted to change his stance to suit his convenience at the present juncture. It is not possible for me to accept the aforesaid contention of the learned counsel for the respondents. There can be no doubt that Sant Lal admittedly asserted in preliminary objection No. 1 of the written statement earlier filed by him in response to the earlier ejectment application filed by the landlord that he himself was not the tenant under Nand Kishore; and also that there was a direct tenancy between Nand Kishore and Ved Parkash (son of Sant Lal). Since the aforesaid factual position was not accepted by the Rent Controller in his order dated 24.7.1980 (Ex.R-3), it is not possible for me to accept the aforesaid claim. In case the instant argument of the learned counsel for the respondents is accepted, the assertion made by Sant Lal in preliminary objection No. 1 of the written statement filed in response to an earlier ejectment application, will be preferred over the judgment rendered by the Rent Controller (Ex.R-3): In my considered view, the petitioner -tenant cannot be bound by the statement of fact depicted in preliminary objection No. 1 of the written statement filed in response to the earlier ejectment application preferred by the landlord, after the factual position depicted therein had been rejected by a judicial order. 7. Despite the aforesaid conclusion, learned counsel for the respondent-land lord contends that there is an acknowledgement on the part of Sant Lal even during the course of the present proceedings that he was not in occupation of the premises in question for a period of more than one year. 7. Despite the aforesaid conclusion, learned counsel for the respondent-land lord contends that there is an acknowledgement on the part of Sant Lal even during the course of the present proceedings that he was not in occupation of the premises in question for a period of more than one year. On the basis of the aforesaid undisputed factual position, learned counsel for the respondent-landlord relying on a decision rendered by this Court in Jai Chand v. Shri Sohan Lal and Anr., (1974)76 P.L.R. 742, vehemently contends that no further material is required to support his contention based on the ground of having ceased to occupy the premises. In this behalf, learned counsel for the respondent-landlord has placed reliance on the following observations made in the aforesaid judgment:- "It is not in dispute that the building in question is not situate at a hill-station, but is situate at Ambala Cantt. The finding of fact recorded by the two Tribunals about the tenant having ceased to occupy the building for a continuous period of four months without reasonable cause cannot be questioned before me. Nor has it been shown how that finding is either improper or illegal in contradistinction to Clause (d) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 , (wherein it is provided that protection against eviction would not be available to a tenant to whom premises were let for residence and who has neither himself resided therein nor any member of his family has resided in the premises for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof), the provision in Clause (v) of Sub-section (2) of Section 13 of the Act takes away the statutory protection against eviction from a tenant who has himself failed to occupy the building for a continuous period of four months without reasonable cause notwithstanding that his family members may have been occupying the same during the relevant period. In this view of the matter it is not necessary to determine whether the tenants younger brother can or cannot on the record of this case be considered to be a member of the tenants family. In this view of the matter it is not necessary to determine whether the tenants younger brother can or cannot on the record of this case be considered to be a member of the tenants family. Right to evict a tenant and to obtain possession of ones own property from a tenant is fundamental right of a landlord on which reasonable restrictions have been imposed by the Rent Restriction Acts. Those restrictions have to be interpreted strictly. The protection afforded to tenants by the Rent Restriction Acts has to be contained within the circumscribed limits of the relevant statute. In so far as no protection against eviction is available to a tenant under the Act, who has himself ceased to occupy the building for a continuous period of four months without any reasonable cause, without any other condition being satisfied. I am bound to allow this petition for eviction against the tenant as the above mentioned ground for his eviction has been proved." While controverting the claim of the respondent-landlord based on the aforesaid submissions, learned counsel for the petitioner-tenant has placed reliance on a decision rendered by this Court in Puran Singh Tailor Master v. Ram Murti, 1981 (2) Rent Control Reporter, 343. While interpreting the provisions of Section 13(2)(v), this Court made the following observations in the aforesaid judgment:- "That where the building is situated in the place other than a hill station, the tenant has cased to occupy the building for a continuous period of four months without reasonable cause". That language is quite suggestive that the tenant must cease to occupy the premises without any reasonable cause. When the family members of the tenant who have been living with him from the very beginning and are dependent upon him, are in occupation of the premises in dispute, it cannot be held that the tenant has ceased to occupy the premises without any reasonable cause in addition to the aforesaid judgment, reliance has also been placed on a judgment rendered by the Himachal Pradesh High Court in Ram Ashra Hari Chand v. Shri Tara Chand and Anr., 1983(2) Rent Control Reporter, 102 wherein, in paragraphs 21 and 22, it was observed as under:- "21. Hari Chand tenant/respondent No. 1 appeared as RW 1. He stated that he is in possession of the shop and he never ceased to occupy the same. Hari Chand tenant/respondent No. 1 appeared as RW 1. He stated that he is in possession of the shop and he never ceased to occupy the same. Gurcharan Dass (RW2) also states that the respondent No. 1 never ceased to occupy the same. Prithi Chand (RW3) states that the tenant/respondent No. 1 is in possession of the same and he never ceased to occupy the same. Hari Chand (RW1) again appeared on 6th August, 1980 and gave the version. Kamal Khanna (RW1) corroborates the statement of Hari Chand. Besides the aforesaid oral evidence, there is no other evidence regarding the fact that the tenant/respondent No. 1 ceased to occupy the disputed premises for a period of more than twelve month without reasonable cause. 22. The intention of the Legislature is that the building should remain open and in continuous use and should not remain closed for a longer period. The obvious reason is that the condition of a building deteriorates if it remains closed and out of use. Section 14(2) (v) of the Act, in fact, covers a case where the premises are kept locked and are not used for a period of more than twelve months, without reasonable cause. Thus the landlord should prove (a) that the premises were out of use or remained locked for a period of more than twelve months and (b) such non-user/non-occupation of the premises was not due to any reasonable cause." It is not a matter of dispute that at the time of inception of the tenancy in question, Sant Lal and Ved Parkash resided in the premises in question. Whereafter, Sant Lal on account of his employment with the Railway Protection Force was transferred from time to time to Jodhpur, Delhi, Attari, Amritsar and Jalandhar. During this period his son Ved Parkash along with the members of his family continued to reside in the premises in question. That being so, it is clear that the premises never remained unoccupied. Whereafter, Sant Lal on account of his employment with the Railway Protection Force was transferred from time to time to Jodhpur, Delhi, Attari, Amritsar and Jalandhar. During this period his son Ved Parkash along with the members of his family continued to reside in the premises in question. That being so, it is clear that the premises never remained unoccupied. It was either occupied by Sant Lal himself or by his son Ved Parkash In such circumstances, in view of the judgments relied upon by the learned counsel for the petitioner, it is not possible for me to arrive at a conclusion against the petitioner since the premises in question remained in occupation at all points of time and also on account of the fact that the temporary absence of Sant Lal was fully explained with appropriate justification. 8. Yet another contention was advanced by the learned counsel for the respondent-landlord, namely, that merely on account of the fact that Ved Parkash was the, son of Sant Lal, it could not be concluded that the two constituted a Joint Hindu Family. In the absence of Sant Lal, Ved Parkash must be treated to be in exclusive occupation of the premises in question and, therefore, Ved Parkash must be considered to have occupied the premises as a sub-tenant under Sant Lal. And, since Sant Lal had not obtained the prior permission of the landlord before inducting Ved Parkash as tenant in the premises, the ground of sub-letting should be accepted to be established, in this behalf, learned counsel for the respondents placed reliance on a decision rendered by this Court in "Santosh Devi v. Vir Chand" (1996-1) 112 P.L.R. 459. Learned counsel for the respondent supported his submissions on the basis of the factual as well as legal position noticed in paragraphs 5 and 6 of the aforesaid judgment. The aforesaid paragraphs are being extracted hereunder:- "5. So far as valuable consideration is concerned, counsel for the petitioner has cited judgment in Krishnavanti v. Hansraj, 1995 R.C.J. 164 and Ram Dhan Sharma v. Bishan Sarup Mitral and Anr., (1994-1)106 P.L.R. 492 for the proposition that there cannot be sub-letting between the tenant and sub-tenant except for valuable consideration. There is no dispute with this proposition. So far as valuable consideration is concerned, counsel for the petitioner has cited judgment in Krishnavanti v. Hansraj, 1995 R.C.J. 164 and Ram Dhan Sharma v. Bishan Sarup Mitral and Anr., (1994-1)106 P.L.R. 492 for the proposition that there cannot be sub-letting between the tenant and sub-tenant except for valuable consideration. There is no dispute with this proposition. The question then arises as to how the landlord can prove that parting of possession by the tenants is for valuable consideration in cases where the tenant and alleged sub-tenant happen to be close relations or brothers inter-se as in the present case. In such cases it is very difficult to prove the passing of valuable consideration because sub-letting is generally a secret arrangement between the tenant and sub-tenant and that is why onus is on the tenant to show as to in what capacity the alleged sub-tenant is in occupation of the premises. Therefore, where in a given case the existence of valuable consideration cannot be proved expressly, it can certainly be inferred from other circumstances. In the present case, there is one strong fact which cannot be controverted. The plea taken by the tenants in their written statement was that they form joint Hindu family business and Ramesh is one of the coparceners, but it has come in evidence that the brothers do not form Joint Hindu family, rather they are separate in residence and mess and they are carrying on separate business in separate premises. It is difficult to imaging that Hakam Rai and Mohinder Pal i.e. tenants who are carrying on separate business, one of them at Ratia and the other in Khokha on the side of the shop in dispute, would have parted with possession without any consideration. In such like circumstances, this Court in Hans Raj and Anr. v. Naval Kishore and Ors., 1986(2) R.L.R. 90 ordered ejectment of the tenant as it found that the tenant had executed a rent note in his individual capacity and not on behalf of Joint Hindu Family and was having separate residence, mess and business. 6. Learned counsel for the petitioner cannot seek assistance from the cases cited by him as they were decided on their own facts and are distinguishable. In Jagdish Chand v. Ved Parkash Puri and Anr., 1990(2) R.C.R. 372, the tenant at the time of taking shop on rent was in Army service. 6. Learned counsel for the petitioner cannot seek assistance from the cases cited by him as they were decided on their own facts and are distinguishable. In Jagdish Chand v. Ved Parkash Puri and Anr., 1990(2) R.C.R. 372, the tenant at the time of taking shop on rent was in Army service. He got the shop in dispute on rent on the assumption that he would resign from the military service, but later when he submitted his resignation, it was never accepted and therefore, he continued in the military service. His brother conducted the business in the tenanted premises on his behalf for 10 years before the petition for ejectment came to be filed. On these facts, it was held that there was no sub-letting by the tenant in favour of his brother. In Syed Feroze Ali Shah V. Syed Jamil Ali Shah and Anr. 1980(2) R.L.R. 549, it was alleged by the landlord that the tenant had bifurcated the shop in two parts by constructing a wall and one part had been sub-let to his brother and in the other part he was carrying on his own business. However, on a reading of the rent-note, it was found that one shop was not given on rent but two shops were given on rent and the alleged sub-tenant was also found to be in possession of the shop in his own name in some other Bazar. It was also been found that the brothers had been living jointly, whereas in this case on the showing of the tenants themselves, it stands proved that they are not living jointly, but are separate in residence, mess as well as in business. In Sri Chand Gupta v. Gulzar Singh and Anr., (1992) 1 SCC 143, to give a finding of sub-tenancy the Rent Controller as well as the Rent Tribunal relied, upon the admission of alleged sub-tenant made in an affidavit before the income-tax authorities. The High Court did not accept this finding and the Apex Court too found that the affidavit to which the tenant was not a party is inadmissible in evidence and once this is excluded, there is no other evidence worth accepting to prove that the sub-tenant was in exclusive possession". The High Court did not accept this finding and the Apex Court too found that the affidavit to which the tenant was not a party is inadmissible in evidence and once this is excluded, there is no other evidence worth accepting to prove that the sub-tenant was in exclusive possession". It is not possible for me to accept the contention of the learned counsel for the respondent even though supported by the judgment referred to above in view of the conclusion already drawn while dealing with the earlier submission of the learned counsel, namely that the father and son Sant Lal and Ved Parkash were in occupation of the premises in question since the inception of the tenancy. It is, therefore, not possible for me to accept that Sant Lal vacated the premises and handed over vacant possession thereof to Ved Parkash. This conclusion of mine is also supported by the conclusion drawn during the course of earlier litigation between the parties wherein the Rent Controller vide order dated 24.7.1980 (Ex-R-3) rejected the contention of the petitioner by returning a finding that he remained as a tenant in the premises in question despite his assertion that he ceased to be a tenant under Nand Kishore and rejected the assertion that Ved Parkash was a direct tenant under Nand Kishore. This issue, in fact, ceases to be relevant at the present juncture. As noticed in the beginning of the instant order, Sant Lal had died during the pendency of the present petition. His son Ved Parkash has been impleaded as his legal representative in the present proceedings. On the basis of the aforesaid undisputed position, learned counsel for the petitioner contends that after the death of Sant Lal, his tenancy rights must be deemed to have been inherited by Ved Parkash. In the aforesaid context, learned counsel for the petitioner has placed reliance on a decision, rendered by this Court in Ram Samp (deceased by LRs.) v. Lal Chand and Ors. AIR 1990 (Punjab and Haryana), 64. The factual position in the aforesaid judgment is substantially similar to the controversy in hand. In the aforesaid case also, an ejectment petition had been filed against a tenant on the ground that he had sub-let the premises to his son. AIR 1990 (Punjab and Haryana), 64. The factual position in the aforesaid judgment is substantially similar to the controversy in hand. In the aforesaid case also, an ejectment petition had been filed against a tenant on the ground that he had sub-let the premises to his son. The tenant died during the pendency of the proceedings, whereupon, his son Ram Sarup i.e. the alleged sub-tenant was impleaded as the legal representative of the deceased tenant. This Court relying on the judgment rendered by the Apex Court in Smt. Gian Devi Anand v. Jeevan Kumar and Ors. AIR 1985 SC 796 arrived at the conclusion that tenancy came to be inherited after the death of the original tenant and as such the son of the original tenant (who was alleged to be the sub-tenant), became a direct tenant. Even on the basis of the aforesaid factual as well as legal position, it is not possible at the present juncture to pass an order of eviction on the ground of sub-letting against Ved Parkash. 9 For the reasons recorded above, I find merit in this petition. The same is accordingly allowed. Order dated 17.9.1982 passed by the Appellate Authority is therefore, set aside.