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2003 DIGILAW 406 (PNJ)

Vishwanath v. Sumitra Devi

2003-03-11

J.S.NARANG

body2003
Judgment J.S.Narang, J. 1. The landlady filed an application under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred `to as the Act) for seeking eviction of the respondents. It is alleged that respondent-petitioner No. 1 was inducted as a tenant in the demised premises on payment of Rs. 40/- P.M. as rent besides the house tax. An eviction has been sought on three grounds, i.e., (i) non-payment of arrears of rent for the last 3 years prior to the filing of the application; (ii) change of user of the premises; (iii) sub-letting the tenancy by respondent-petitioner No. 1 to respondent-petitioner No. 2. 2. The respondent-petitioner No. 2 has been impleaded as respondent No. 2 vide order dated 23.2.1988 passed by the Rent Controller upon an application filed under Order 1 Rule 10 of the Code of Civil Procedure. All the pleas have been contested by the respondent-petitioners by alleging that the rent was regularly paid but the landlady did not issue the receipts. It has been specifically controverted that no house tax was payable by the tenant and that the same was the liability of the landlady. It has been noticed that the rent has been tendered by respondent No. 1. It has also been averred that the premises had been let out for the purpose of godown and therefore, the question of change of user did not arise. So far as plea of sub-letting is concerned, the same has been controverted on the premises that the tenancy had been created in favour of M/s Bandhu Pharmacy, Noharia Bazar, Sirsa and not in favour of respondent No. 1. As on date, the tenancy continues to be in favour of the said firm which is sole proprietary concern of respondent-petitioner No. 2. He has also alleged that the rent has been tendered by the firm despite the fact that the rent stood paid but the landlady had not issued the receipts but to overcome the threat of eviction, the rent has been paid twice over. Upon the pleadings of the parties, the issues have been framed and the parties have led documentary as well as oral evidence. 3. Upon the pleadings of the parties, the issues have been framed and the parties have led documentary as well as oral evidence. 3. So far as non-payment of rent is concerned, upon tender by respondent No. 1, the same having been accepted by the counsel for the petitioner without any objection or protest and that no reservation having been made in respect of non-payment of house tax as claimed in the petition, thus, the ground of non- payment of rent stood negated and that in this regard, the finding of the Rent Controller has been further affirmed by the Appellate Authority. 4. In respect of change of user, it is admitted case between the parties that no rent note has been produced on the court file as none seems to have been executed between the parties. It is only the oral evidence which has been produced by the landlady, who have asserted that the demised premises had been initially used as a shop and lateron the said premises have been converted into a godown. This statement has been controverted by the respondent No. 2 who has stepped into the witness box and has been examined himself as RW1. He has categorically stated that the demised premises are being used as godown since the inception of tenancy. The finding in this regard has been returned by the Rent Controller in favour of the respondent-petitioners and against the landlady. This finding has been further affirmed by the Appellate Authority. 5. In respect of the ground of sub-letting by respondent-petitioner No. 1 to respondent-petitioner No. 2, the Rent Controller has returned a finding against the landlady and in favour of the respondent-petitioners. However, the Appellate Authority has reversed the finding on the premises that by looking into the evidence, the plea of the landlady that the alleged premises in question had been let out to Vishwanath, has not been demolished. The perusal of written statement filed by respondent-petitioner No. 1, as has been noticed by the Appellate Authority, it has been observed that Vishwanath had never taken the plea that the premises in question has been let out to the firm under the name and style of M/s Bandhu Pharmacy, Sirsa. The perusal of written statement filed by respondent-petitioner No. 1, as has been noticed by the Appellate Authority, it has been observed that Vishwanath had never taken the plea that the premises in question has been let out to the firm under the name and style of M/s Bandhu Pharmacy, Sirsa. It has also been noticed that at the time of tendering the rent in Court, the respondent No. 1 never made any assertion that the rent was being tendered for and on behalf of the aforesaid firm. Thus, if has been tacitly accepted that the rent stood tendered by respondent-petitioner No. 1 and not by the firm. It is for the first time, the plea has been taken by respondent-petitioner No. 2 that the demised premises had been let out to the sole proprietary firm as aforesaid and that he has claimed himself to be the sole proprietor. Placing reliance upon some judgments rendered by the trial Court vide which the firm is stated to have been dissolved and by virtue of that order, he claimed himself to be the sole proprietor. Respondent No. 2 has stated in his cross-examination that he had joined the partnership after the shop had been taken on rent, this averment negates the assertion made by him that he had himself taken the premises on rent in the name of firm at a monthly tenancy of Rs. 40/-. The perusal of the assessment register for the year 1983-84 which has been exhibited as Ex. A2 shows that the property in question has been shown to be in occupation of several persons including Vishwanath. A definite pointer is being made towards the fact that tenancy had been created in favour of Vishwanath as has been asserted by the landlady. The only question which needs to be seen is as to whether Vishwanath respondent No. 1 parted with possession of the demised premises in favour of respondent No. 2, whose stand is that he has always been in actual physical possession of the demised premises, as the tenancy had been created in favour of the firm, which is his sole proprietary concern. Further, the stand of the respondent No. 2 is that the rent had been paid by the firm and that the entries in that regard have been made in the books of accounts maintained in the regular course of business by the firm. Further, the stand of the respondent No. 2 is that the rent had been paid by the firm and that the entries in that regard have been made in the books of accounts maintained in the regular course of business by the firm. However, this fact has not been corroborated by production of books of accounts of the firm. As such, this averment having not been corroborated by cogent piece of evidence, which is alleged to be in possession of the firm and the same having not been produced for the reasons best known to respondent No. 2, belies the plea that the tenancy had been created in favour of the firm. 6. On the other hand, the fact has been admitted that at the time of filing of the application for seeking eviction, the possession was that of the firm and that the averment of the landlady that the possession had been taken by the firm about 5/6 years ago stands corroborated tacitly. The possession had been given to the firm without her written consent. However, plea has been taken by respondent No. 2 that occupying the premises along with the father would not amount to sub-letting of the premises. In support of this contention, reliance has been placed on the judgments of this Court in re : Kulwant Singh and another v. Kharaiti Lal, 1988 Simla Law Journal 469 : 1989(1) RCR(Rent) 645 (P&H) and also a judgment rendered in re : Sohan Lal and another v. Kamlesh Rani and another, 1990 Haryana Rent Reporter 48 : 1989(1) RCR(Rent) 626 (P&H). Both these cases have been distinguished by the Appellate Authority on the premises that, the aged father was being assisted by his son in the business and therefore, the plea of parting with possession in favour of the son has been negated. In the case at hand, the plea of the son is that the tenancy had been created in his favour i.e., the firm M/s Bandhu Pharmacy, Sirsa. Since the stand which has been taken by respondent No. 2 is distinct from the stand taken in the aforesaid judgments, the dicta is not applicable. 7. Yet another argument has been advanced that the landlady could not take up the plea of sub-letting of the premises as she had conceded the possession having been taken over by respondent No. 2. 7. Yet another argument has been advanced that the landlady could not take up the plea of sub-letting of the premises as she had conceded the possession having been taken over by respondent No. 2. As pert her own admission, the firm had come into existence for the last more than 5/6 years. On this premises, adverse inference can be drawn against the landlady and that no case of sub-letting can be said to be made out against the son. Reliance has been placed upon a judgment rendered in Re: Joginder Lal Munjal and others v. Ram Sarup Gupta, 1989 SLJ 286 : 1989(1) RCR(Rent) 507 (P&H). This has also been negated by the Appellate Authority on the premises that the plea taken in the present case is entirely different than the plea taken in the case cited. In the case at hand, respondent No. 2 has taken the plea that the tenancy had been created in favour of the firm right from inception and that the rent had been paid by the firm which has been reflected in the books of accounts kept in regular course of business, which have not been produced. Thus, the plea is not at all sustainable. Rather, the plea taken is that respondent is the sole proprietor of the firm and that the father is not the proprietor thereof. The perusal of the written statement filed by Vishwanath respondent No. 1 corroborates the fact that tenancy had been created in his favour and that if the firm had been incorporated by him and the respondent No. 2 had been associated by him, something could have been said and some support could be available in view of the dicta of this Court noticed above. Instead, the respondent No. 2 has categorically stated that his father was not the proprietor of the firm and that he is the sole proprietor and that the tenancy had been created in favour of the firm. The fact of creation of tenancy in favour of the firm has not been corroborated by cogent piece of evidence. It is strange that no partnership deed or the deed of incorporation of the firm has been produced on record. Neither the books of account of the firm have been produced from where the true and correct facts alleged to be in favour of respondent-petitioners could be inferred. 8. It is strange that no partnership deed or the deed of incorporation of the firm has been produced on record. Neither the books of account of the firm have been produced from where the true and correct facts alleged to be in favour of respondent-petitioners could be inferred. 8. Another argument which has been reiterated and which has also been noticed by the Appellate Authority is, that the landlady has not produced any evidence to establish the payment of rent by the alleged sub-tenant i.e., respondent No. 2 to respondent No. 1, thus, the sub-letting cannot be said to have been established. This argument has been negated by the Appellate Authority by perusing the provision, i.e., Section 13(2) sub-para 2 clause (a) of the Act. The mere transfer of right to possess was enough to incur liability for eviction on the ground of sub-letting, no further proof of paying rent to the tenant is necessary. 9. After hearing learned counsel for the parties and perusal of the facts averred, I find that no interference is called for in the judgment dated 2.3.1990 rendered by the Appellate Authority. Ground of sub-letting has been succinctly established by the landlady. Resultantly, the revision is without any merit and the same is dismissed with no order as to costs.