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2003 DIGILAW 33 (PNJ)

Manjit Singh v. Joginder Singh

2003-01-10

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed by Manjit Singh under sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 , challenges concurrent findings of fact recorded by both the courts below holding that the petitioner is a sub-tenant of one Amar Singh tenant-respondent-2. It has further been found that the demised premises were rented out by the landlord- respondent-1 to tenant-respondent-2. The plea of the sub-tenant-petitioner-2 that he, in fact, is a tenant directly under the landlord-respondent-1, has been repelled by both the courts below. The findings are based on cogent evidence recording the conclusion that the sub-tenant-petitioner is in exclusive possession of the demised premises which have been given to him by Amar Singh tenant-respondent-2 without any written consent by the landlord- respondent-1. The analysis of the evidence and the conclusion reached by the Appellate Authority are evident from the detailed para-10 of the judgment which reads as under :- "Now I advert to the evidence of the case. It is stated on oath by AW-3 Joginder Singh that he is the owner of the building in dispute and in this building there was the business of saw mill carried out at that time. In the year 1973, he rented out the building to respondent No. 1 and the machinery was separately rented out to him. Amar Singh was doing the business of saw mill for about three years and thereafter Manjit Singh joined the (sic) hands with him and they had been doing the business jointly with his written consent and in the year 1985 Amar Singh was completely walked out (sic) and stopped doing the business in the demised premises and settled at Village Kalyanpur near Dhariwal and since then respondent No. 1 has surrendered the possession and respondent No. 2 is in exclusive possession of the said demised premises. AW-3 Joginder Singh landlord also stated that the business carried out by respondent No. 2 is without his consent and the rent deeds Ex. A2 and A3 bear his signatures, which were read over and explained to respondent No. 1. Joginder Singh and Sardool Singh attested the said rent deeds. Joginder Singh s/o Labh Singh AW-2 stated that he had attested the rent deeds Ex. A2 and A3 and the other marginal witness was Sardool Singh. Thus the rent deeds Ex. A2 and A3 bear his signatures, which were read over and explained to respondent No. 1. Joginder Singh and Sardool Singh attested the said rent deeds. Joginder Singh s/o Labh Singh AW-2 stated that he had attested the rent deeds Ex. A2 and A3 and the other marginal witness was Sardool Singh. Thus the rent deeds Ex. A2 and A3 make it clear that the premises in dispute were rented out to Amar Singh and not to Manjit Singh respondent No. 2. AW-1 Engineer J.C. Mahajan prepared the report Ex. A1. AW-4 Gurdarshan Singh stated that Amar Singh has died about 2-3 years back. He stated that Manjit Singh is doing the business in the premises in dispute since 1984 and the respondent No. 1 has settled in village Kalyanpur. On the other hand, RW-1 Randhir Singh stated about the rate of rent as Rs. 150/- and the same was enhanced to Rs. 180/- since 1980. Amar Singh has no concern with the property in dispute. RW-2 Vidya Rattan Duggal stated that Manjit Singh is doing the business in the premises in dispute for the last 24-25 years and the building is in proper condition. RW-3 Manjit Singh respondent stated that the premises in dispute was taken on rent at the rate of Rs. 150/- and the rent was enhanced to Rs. 180/-. He had been making the payment of rent vide receipts Ex. R1 and R6. Rent deed was in the name of Amar Singh. He stated that he does not know as to why the rent deed has been written in the name of Amar Singh. He stated in cross- examination that he is in possession of the premises in dispute under Amar Singh and the receipts of rent are in his name. He admitted that the rent deeds Ex. A2 and A3 are in the name of Amar Singh. Thus this statement of Manjit Singh respondent No. 2 makes it clear that he is in exclusive possession of the premises in dispute under Amar Singh but there is no written consent given by the landlord nor the landlord has waived his right of ejectment nor he has impliedly given the consent to induct Manjit Singh as his tenant and the previous tenancy created through rent deeds Exs. A2 and A3 does not stand extinguished and it remains intact. A2 and A3 does not stand extinguished and it remains intact. Therefore, the exclusive possession of respondent Manjit Singh as admitted by Manjit Singh fortify the case of the petitioner as alleged in the application and also fortified by Joginder Singh A-3 and Gurdarshan Singh AW-4. Therefore, I hold that Manjit Singh is in possession of the premises in dispute as sublettee and the point of subletting stands proved and decided against the tenant." (Emphasis added) 2. Mr. Rajesh Garg, learned counsel for the sub-tenant-petitioner has argued that tenant-respondent-2 Amar Singh has never been served in the proceedings undertaken by the Rent Controller. According to the learned counsel, in the absence of the presence of tenant-respondent-2, the findings of fact recorded by both the courts below cannot be sustained because the right of the sub- tenant-petitioner has been prejudiced. He further submitted that had be been served and come before the Rent Controller, then this statement would have been recorded and in case of his hostile deposition by him, the sub-tenant- petitioner could have cross-examined the defendant-respondent-2. The learned counsel urged that once a sub-tenant stakes his claim asserting direct tenancy under the landlord, then in the absence of evidence showing that the original tenant surrendered the tenancy to the sub-tenant no inference of sub-tenancy could be raised. He has further argued that in any case, the sub-tenant- petitioner has been paying rent to the landlord-respondent-1 directly at the rate of Rs. 150/- and then at the rate of Rs. 180/-. 3. Mr. Rajesh Garg, learned counsel for the petitioner has further argued that no steps were taken by the landlord-respondent-1 to evict the petitioner for more than 10 years and it should be inferred that there was, in fact, no sub-tenancy. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Subhash Chander v. Surinder Singh, 1994(2) RCR(Rent) 465 (P&H) : 1994(3) P.L.R. 351. The learned counsel has also argued that the receipts of rent have also been issued to the tenant-petitioner which would suggest that the landlord-respondent-I had acknowledged the petitioner, (the so-called sub-tenant) as a tenant directly under him. In support of his submission, the learned counsel has placed reliance on another judgment of this Court in the case of Piara Lal v. Rajinder Kumar, 1999(2) RCR(Rent) 447 (P&H) : 2000(1) PLR 441. Mr. In support of his submission, the learned counsel has placed reliance on another judgment of this Court in the case of Piara Lal v. Rajinder Kumar, 1999(2) RCR(Rent) 447 (P&H) : 2000(1) PLR 441. Mr. Kanwaljit Singh, learned counsel, for the landlord-respondent-1 has submitted that the Rent Notes Exhibits A2 and A3 dated 3.3.1973 have been proved on record by producing cogent evidence and both the documents show that the demised premises as well as the machinery were rented out to tenant- respondent-2 separately. The learned counsel has further pointed out that the sub-tenant-petitioner has himself admitted in his cross-examination that he was put in possession to him by Amar Singh which is taken to mean that Amar Singh had sublet the demised premises to the sub-tenant-petitioner. According to the learned counsel, it must be held that the findings recorded by the courts below do not suffer from any legal infirmity. It has been rightly held that the possession of the demised premises was handed over by defendant- respondent-2 to the sub-tenant-petitioner. The learned counsel has further pointed out that it is incorrect on the part of the sub-tenant-petitioner to urge that tenant-respondent-2 was not served or given the opportunity. In this regard, he has drawn my attention to the findings recorded on issue No. 3 showing that opportunity was given and tenant-respondent-2 had appeared in person on 10.3.1995 and on earlier date, the power of attorney dated 6.2.1992 of Rakesh Prashar, Advocate was also filed. 4. The learned counsel also placed reliance on the judgment in the case of Dr. Gyan Parkash v. Som Nath and others, 1996(1) RCR 342, to argue that in any case, there is no necessity to prove the surrendering of possession by the original tenant to the sub-tenant. Once it is held that the sub-tenant is in exclusive possession of the demised premises, it is for him to show as to how he has come in possession of the demised premises. The mere payment of rent by the sub-tenant to the landlord-respondent-1 would not be sufficient to create direct tenancy under the landlord-respondent-1 as has been held by the Supreme Court in Dr. Gyan Parkashs case (supra). 5. The mere payment of rent by the sub-tenant to the landlord-respondent-1 would not be sufficient to create direct tenancy under the landlord-respondent-1 as has been held by the Supreme Court in Dr. Gyan Parkashs case (supra). 5. I have given deep consideration to the rival contentions made by the learned counsel for the parties and have reached the conclusion that this petition is liable to be dismissed because both the courts below have concurrently found that the petitioner-tenant has been inducted by tenant- respondent-2 who, in fact, is his real brother. It has been cogently proved on record that Exhibits A2 and A3 are the rent notes which is proved by cogent evidence and the oral statements made by various witnesses like AW-2 and AW-4. Therefore, it is conclusively established on record that the demised premises was rented out to tenant-respondent-2 by the landlord-respondent-1. Once it is established that the sub-tenant is in exclusive possession of the demised premises, the sub-tenant must prove as to how he came in possession. In the absence of cogent evidence, it has to be concluded that the sub-tenant came into possession on the basis of some arrangements with the original tenant. It is appropriate to mention that in the instant case, the sub-tenant- peititoner has himself admitted his possession to be under the tenant- respondent-2, as is clear from para-1 of the judgment of the Rent Controller. 6. The aforementioned view has been reiterated and affirmed by the Supreme Court in Bharat Sales Ltd. v. L.I.C. of India, 1998(1) RCR(Rent) 272 (SC) : 1998(2) SCC 1. Holding that the arrangements of the sub-tenancy are always shrouded in mystery, exclusive possession with the sub-tenant could lead to an inference that the demised premises were, in fact, sublet. The observations of their Lordships read as under :- "Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about oviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. This arrangement comes about oviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub- let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lumpsum in advnce covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let." 7. Similar view has been taken by the Supreme Court in the case of Rajbir Kaur v. S. Cholkesiri and Co., 1989(2) RCR(Rent) 328 (SC) : 1989(1) SCC 19, United Bank of India v. Cooks and Kelvey Properties (P) Ltd., 1995(1) RCR(Rent) 8 (SC) : 1994(5) SCC 9. 8. The judgment of the Supreme Court in the case of Dr. Similar view has been taken by the Supreme Court in the case of Rajbir Kaur v. S. Cholkesiri and Co., 1989(2) RCR(Rent) 328 (SC) : 1989(1) SCC 19, United Bank of India v. Cooks and Kelvey Properties (P) Ltd., 1995(1) RCR(Rent) 8 (SC) : 1994(5) SCC 9. 8. The judgment of the Supreme Court in the case of Dr. Gyan Parkashs case (supra) relied upon by the learned counsel for the landlord-respondent-1 goes further on to hold that even if the payment of rent has been received by the landlord or his agent from the sub-tenant, and the courts below have recorded the finding of sub-tenancy, then the High Court in revisional jurisdiction would not re-appreciate the evidence to record a finding different than the one recorded by the courts below. In this regard, the observations made by their Lordships read as under :- "10. After giving our anxious consideration to the facts and circumstances of the case and contentions made by the learned counsel for the parties, it appears to us that in the facts of the case, the High Court had quite improperly exercised its jurisdiction for revision under Section 21(5) of the Rent Act. It appears to us that the trial Court had considered the case of payment of rent by the rspondent No. 3 by cheques but such payment had not been accepted by the trial court as constituting creation of new tenancy in favour of respondent No. 3. The court of appeal has not made any specific discussion of such payment. As the judgment of the appellate authority is a judgment of affirmance, we do not think that any elaborate discussion on the said aspect was required. It appears to us that the High Court being oblivious of the limited scope and ambit of Section 21(5) of the Rent Act, has exercised the power of a court of appeal and having reappreciated the entire evidence come to a contrary finding. Such exercise as a court of appeal should not have been done by the High Court in the facts of the case." 9. Even otherwise, it is well settled principle of law that this court while exercising jurisdiction under sub-section (5) of Section 15 cannot interfere with the concurrent findings of facts recorded by both the courts below. Such exercise as a court of appeal should not have been done by the High Court in the facts of the case." 9. Even otherwise, it is well settled principle of law that this court while exercising jurisdiction under sub-section (5) of Section 15 cannot interfere with the concurrent findings of facts recorded by both the courts below. It is true that power of revision vested in this Court under sub-section (5) of Section 15 of Act does not go to the extent of exercising appellate power. All the same, it is not restricted to the areas specified by Section 115 of the Civil Procedure Code, 1908. The provisions of sub-section (5) of Section 15 of the Act read as under :- "15. Vesting of appellate authority on offers by State Government. (1) to (4) xx xx xx (5) The High Court may, at any time, on the application of any aggrieved party or its own motion, call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying himself as to the legality or propriety of such order or proceedings and may pass such an order in relation thereto as it may deem fit." 10. A perusal of sub-section (5) of Section 15 of the Act shows that this Court is clothed with the power to satisfy itself as to the legality and propriety of any order passed by the Rent Controller or the Appellate Authority. The power of this Court in revisional jurisdiction under the Haryana Urban (Control of Rent and Eviction Act, 1973 (for brevity the Haryana Act) came up for consideration before Supreme Court in the case of Veneet Jain v. Jagjit Singh, 2000(1) RCR(Rent) 507 (SC) : 2000(3) 126 P.L.R. 263 (S.C.). Dealing with sub-section (6) of Section 15 of the Haryana Act, which is pari materia to sub-section (5) of Section 15 of the Act, their Lordships observed as under :- "Sub-section (6) of Section 15 of the Act empowers the high Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999(2) RCR(Rent) 141 (SC) : 1999(6) SCC 222, held, that the High Court cannot enter into appreciation of evidence merely because it is inclined to take a different view of the facts as it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja v. United India Assurance Co. Ltd., 1998(2) RCR(Rent) 533 (SC) : 1998(8) SCC 119 it was held that High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose of ascertaining as to whether the conclusion arrived at by the fact finding court is wholly unreasonable. A persual of sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 115 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in inferring with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of act recorded by the Court below." 11. Similar view has been taken in the case of Shiv Lal v. Sat Parkash, 1994(1) RCR(Rent) 495 (SC) : 1993 (Supple.) 2 S.C.C. 345 and Bhool Chand v. Kay Pee Cee Investments, 1990(2) RCR(Rent) 694 (SC) : 1991(1) S.C.C. 343, sub-section (6) of Section 15 of the Haryana Act also fell for consideration in the case of Lachhman Dass v. Santokh Singh, 1995(2) RCR(Rent) 480 S.C. : 1995(3) 111 P.L.R. 276 (S.C.). Placing reliance on Hari Shankar v. Rao Girdharilal Chowdhary, A.I.R. 1963 S.C. 698; State of Kerala v. K.M. Charia Abdullah and Co., A.I.R. 1965 S.C. 1585 and Neta Ram v. Jiwan Lal, A.I.R. 1963 S.C. 499, their Lordships pointed out the distinction between the revisional power under the Rent Act and the appellate power which reads as under :- "From the use of expression "Legality or propriety of such order or proceedings", occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of the Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-organised 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. That being so, unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference." 12. From the above enunciation of law down by the Supreme Court it is evident that despite wider nature of power of revision with the High Court under the Rent Act that the power of revision under Section 115 of the Code of Civil Procedure, 1908 a distinction has to be maintained between a revision and an appeal. The ground of revisions are limited and can be summed up as under :- (a) Findings are perverse; (b) Findings are bald and without evidence; (c) Findings are based on perfunctory and superficial approach; (d) Findings are wholly reasonable; (unreasonable ?) (e) Findings cannot be reversed by re-assessing evidence merely because a view different than the one recorded by the Court below is possible; (f) Powers of revision under sub-section (6) of Section 15 of the Act do not extend to power of regular appeal. 13. 13. If the facts of the present case are examined in the light of the principles summed above, it becomes evident that the findings recorded by the Appellate Authority are not perfunctory in nature. There is cogent evidence to prove that the demised premises were rented out to tenant-respondent-2 vide rent note dated 3.3.1973 Ex. A3 and subsequently, the possession of the demised premises has been surrendered by the tenant-respondent-2 to sub-tenant petitioner. The rent deed has been proved by cogent evidence as has already been indicated in the paras above. This fact has also been admitted in his cross-examination by the tenant-petitioner as is evident from para-11 of the judgment of the Rent Controller. Therefore, I do not find any legal infirmity in the findings of facts recorded by both the courts below. 14. The argument of Mr. Rajesh Garg based on the judgment of this Court in Piara Lals case (supra) holding that the issuance of receipt alone in favour of the sub-tenant-petitioner must be considered sufficient for recording a finding that the sub-tenant-petitioner has become direct tenant of the landlord-respondent-1, is absolutely misconceived because of the observations of the Supreme Court in Dr. Gyan Parkashs case (supra). Moreover, in Piara Lals case (supra), the Appellate Authority had recorded a finding of fact that the sub-tenant, in fact, had become the tenant of the landlord directly. In the present case, however, the findings of facts are contrary. Therefore, I have no hesitation in rejecting the submission made by the learned counsel for the sub-tenant-petitioner. 15. The other submission based on the judgment of this Court in Subhash Chanders case (supra) would also not require any serious consideration because in that case, no evidence was produced to show that the original tenant was ever put in possession as is evident from para-11 of the judgment in Subhash Chanders case (supra). On the contrary, in the present case, there is overwhelming evidence to show that the demised premises was rented out to tenant-respondent-2 vide rent note dated 3.3.1973 which has been proved on record by cogent evidence. Therefore, the mere fact that the landlord- respondent-1 did not file ejectment application earlier, would not necessarily lead to an inference that he accepted the sub-tenant-petitioner as his tenant. Therefore, there is no merit in this argument of the learned counsel for the sub-tenant-petitioner. 16. Therefore, the mere fact that the landlord- respondent-1 did not file ejectment application earlier, would not necessarily lead to an inference that he accepted the sub-tenant-petitioner as his tenant. Therefore, there is no merit in this argument of the learned counsel for the sub-tenant-petitioner. 16. Another argument advanced by the learned counsel for the sub-tenant- petitioner is that the presence of tenant-respondent-2 was essential. This argument is absolutely misconceived because the tenant-respondent-2 was given ample opportunity and the findings recorded by the courts below on issue No. 3 in para-8 show that the tenant-respondent-2 Amar Singh was present and power of attorney on his behalf was filed by Mr. Rakesh Prashar, Advocate on 6.1.1992. On 10.3.1995, the tenant-respondent-2 was present in person. The observations of the learned Appellate Authority in this regard read as under :- "Therefore, the contention of the counsel for the appellant that the respondent No. 1 has not been given opportunity to file written statement has no legs to stand because the respondent had appeared on 12.11.1991 and has also filed power of attorney by Shri Rakesh Prashar Advocate, which bears the dated 6.2.1992 and thereafter the interim orders dated 10.3.1995 reveal the presence of Amar Singh in person. The presence of Shri Rakesh Prashar, Advocate is also mentioned in the interim order dated 10.4.1997. Therefore, it is not a case where the respondent No. 1 has not been given opportunity to file written statement." 17. For the reasons recorded above, this petition fails and the same is dismissed. The sub-tenant-petitioner shall hand over the vacant possession of the demised premises to the landlord-respondent-1 within a period of two months from the date a copy of this order is served upon him by the landlord- respondent-1. Copies of this order be given Dasti to the parties.