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2003 DIGILAW 625 (PNJ)

Sewa Samiti, Sirsa v. Bihari Lal

2003-04-30

V.M.JAIN

body2003
Judgment V.M.Jain, J. 1. This revision petition has been filed by the landlord against the judgment dated 27.11.1980, passed by the Appellate Authority, whereby the appeal, filed by the tenants, was accepted, the order of ejectment, passed by the Rent Controller, was set aside and the ejectment petition, filed by the landlord, was dismissed. 2. The facts, in brief, are that the present petitioner, M/s. Sewa Samiti, Sirsa, had filed a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, for the eviction of the respondents from the shop in question, on the ground that respondent Nos. 1 and 2 were inducted as tenants in Shop Nos. 14 and 15, owned by the petitioner, on a monthly rent of Rs. 45/- in respect of each shop and that the respondents were liable to be evicted from the shop in question on the ground that the respondents had not paid the rent for the period from 1.11.1976 and that they were also liable to pay house tax. It was further alleged that respondent Nos. 1 and 2, without any written consent of the landlord had sublet the shop in question to respondent No. 3, namely Ghisa Ram. It was accordingly prayed that an order of eviction be passed against the respondents from shop No. 15. In the written statement, filed by respondent Nos. 1 and 2, namely Bihari Lal and Kishan Lal Sharma, the allegations of sub-letting of the shop in question by respondent Nos. 1 and 2 in favour of respondent No. 3, had not been denied. On the other hand, it was alleged that the shop in question was being used by the answering respondents as godown from the very beginning and it was not correct to say that the said shop was lying closed for the last two years. Subsequently, during the pendency of the rent petition, respondent No. 1 and 2 namely Bihari Lal and Kishan Lal, filed an application for amendment of the written statement so as to take up the plea that the shop in question was constructed after 1972 and as such, it was not a new construction and that the Rent Controller had no jurisdiction to entertain the ejectment petition. It was accordingly prayed that a preliminary objection may be allowed to be taken in this regard. The learned Rent Controller allowed respondent Nos. It was accordingly prayed that a preliminary objection may be allowed to be taken in this regard. The learned Rent Controller allowed respondent Nos. 1 and 2 to amend the written statement. The amended written statement filed by respondent Nos. 1 and 2 was taken on the record. In the amended written statement, an additional line was added to the effect that respondent Nos. 1 and 2 had never given the possession of the said shop to respondent No. 3. This amendment was made by these respondents in the amended written statement without any authority of law inasmuch as in the original written statement, this plea was not taken and while filing the application for amendment of the written statement, no prayer was made to allow them to amend the written statement to take up this plea as well. On the other hand, only preliminary objection was sought to be taken regarding the jurisdiction of the Rent Controller. On the pleadings of the parties, the Rent Controller had framed an issue as to whether respondent Nos. 1 and 2 had sub-let the premises in dispute in favour of the respondent No. 3 without the written consent of landlord. After recording the evidence and hearing both the sides, the learned Rent Controller held that sub-letting of the shop in question by respondent Nos. 1 and 2 in favour of respondent No. 3, was proved on the record. Accordingly, on the ground of sub-letting, the order of ejectment was passed by the Rent Controller. Aggrieved against the same, Bihari Lal and Kishan Lal, tenants, filed appeal before the Appellate Authority, impleading M/s Sewa Samiti, landlord as respondent No. 1 and Ghisa Ram, alleged sub- tenant, as respondent No. 2. During the pendency of the appeal, an application under Order 6 Rule 17 CPC, for amendment of the ejectment petition, was filed on behalf of the landlord, M/s Sewa Samiti, with regard to the description of the shop regarding which the ejectment was sought. The said application was contested by the tenants namely Bihari Lal and Kishan Lal. After hearing both the sides, the Appellate Authority allowed the landlord to amend the petition. The amended ejectment petition was filed. Thereupon, Bihari Lal and Kishan Lal again filed written statement to the amended petition. The said application was contested by the tenants namely Bihari Lal and Kishan Lal. After hearing both the sides, the Appellate Authority allowed the landlord to amend the petition. The amended ejectment petition was filed. Thereupon, Bihari Lal and Kishan Lal again filed written statement to the amended petition. In the said written statement, the plea, which was earlier taken by the tenants in the first written statement, was taken inasmuch as there was no denial about the sub-letting by the tenants, namely Bihari Lal and Kishan Lal in favour of the Ghisa Ram (the plea which was at one stage, taken by them in the amended written statement, though without any permission from the Rent Controller). 3. After hearing both the sides, the learned Appellate Authority accepted the appeal of the tenants, set aside the order of the Rent Controller and dismissed the ejectment petition, holding that the sub-letting was not proved. Aggrieved against the same, the present revision petition was filed by the landlord in this Court. 4. I have heard learned counsel for the parties and have gone through the record carefully. 5. Learned counsel for the petitioner-landlord submitted before me that the specific plea, taken by the landlord in the ejectment petition that the tenants namely Bihari Lal and Kishan Lal, had sub-let the premises in question to Ghisa Ram, without the consent of the landlord, had not been denied by the tenants at all in the written statement and that in the amended written statement, filed by the tenants, there was a vague denial in this regard of the Rent Controller and the same could not be looked into. In any case, in the reply to the amended petition, filed before the Appellate Authority, again the tenants had not taken this plea denying the allegations of sub-letting. It was submitted that in this view of the matter, the allegations of sub-letting stand proved on the record, inasmuch as there is no denial in the written statement to the said allegation of the landlord. On the other hand, learned counsel for the respondent-tenant submitted before me that even if there is no denial in the written statement, still evidence has been led by both the parties regarding sub-letting and as such, the landlord was required to prove the sub-letting. On the other hand, learned counsel for the respondent-tenant submitted before me that even if there is no denial in the written statement, still evidence has been led by both the parties regarding sub-letting and as such, the landlord was required to prove the sub-letting. It was further submitted that in any case, even if there is no denial to the allegations, still the landlord was required to prove the allegations of sub-letting. 6. After hearing counsel for the parties and perusing the record, in my opinion, the present revision petition must succeed and the judgment, passed by the learned Appellate Authority, must be set aside and the order, passed by the Rent Controller, must be upheld. As referred to above, the landlord, in the ejectment petition, had specifically taken the plea that the tenants namely Bihari Lal and Kishan Lal had sub-let the shop in question to Ghisa Ram. In the written reply, filed by these respondents, there was absolutely no denial to this allegation of the landlord. Subsequently, the amended written statement was filed so as to take up the plea regarding the jurisdiction of the Rent Controller. In the amended written statement, un- authorisedly, the tenants had taken the plea denying the allegations of sub- letting. However, this amendment to the written statement was un-authorised, inasmuch as no permission of the Rent Controller was sought to amend the written statement. In any case, when the landlord amended the petition during the pendency of the appeal, before the Appellate Authority, the tenants again filed a written statement to the amended petition. This time again, the tenants had not denied the allegations of sub-letting, raised by the landlord in the ejectment petition. Thus, it would be clear that the allegations of sub-letting, raised by the landlord in the ejectment petition, had not been denied at all by the tenants in the joint written statement, filed by them. Thus, the allegations regarding sub-letting had gone un-controverted on behalf of the tenants in the written statement. Thus, it would be clear that the allegations of sub-letting, raised by the landlord in the ejectment petition, had not been denied at all by the tenants in the joint written statement, filed by them. Thus, the allegations regarding sub-letting had gone un-controverted on behalf of the tenants in the written statement. Once it is found that the landlord had made a specific allegations of sub-letting with regard to the shop in question by the tenants namely Bihari Lal and Kishan Lal in favour of Ghisa Ram and once it is found that the tenants in the written statement, had not denied the sub-letting and no written statement was filed by Ghisa Ram, in my opinion, no amount of evidence, led by the tenants that they had not sub-let the premises to Ghisa Ram, could be looked into by the Court especially when no such plea was taken by the tenants in the written statement. Merely because the tenants had produced evidence in this regard, in my opinion, would be no ground to look into the said evidence, led by the tenants, especially when the said evidence, led by the tenants, was beyond the pleadings, inasmuch as the tenants had not denied the allegations of the landlord that the tenants had sub-let the premises to Ghisa Ram. In my opinion, both the Courts below had failed to consider this aspect of the matter. In any case, the Appellate Authority had erred in law in holding that the landlord had failed to prove the allegations of sub-letting by placing reliance on the evidence, led by the tenants even though the said evidence of the tenants was beyond the case set up by the tenants in the written statement. As referred to above, the tenants had failed to deny the allegations of the landlord about sub-letting. In this view of the matter, in my opinion, no case was made out for dismissing the ejectment petition, filed by the landlord. I am further of the opinion that the learned Appellate Authority erred in law in accepting the appeal of the tenants and setting aside the order of the Rent Controller and dismissing the ejectment petition of the landlord. 7. I am further of the opinion that the learned Appellate Authority erred in law in accepting the appeal of the tenants and setting aside the order of the Rent Controller and dismissing the ejectment petition of the landlord. 7. Once the evidence, led by the tenants regarding sub-letting is ignored, in my opinion, from the evidence led by the landlord it stands proved on the record that the tenants namely Bihari Lal and Kishan Lal had sub-let the shop in question to Ghisa Ram. In the view of the matter, in my opinion, the respondent are liable to be ejected from the shop in question on the ground of sub-letting. For the reasons recorded above, the present revision petition is allowed, the judgment dated 27.11.1980, passed by the Appellate Authority, is set aside, whereas the order dated 24.12.1979, passed by the Rent Controller, is upheld and order of ejectment is passed in favour of the landlord against the respondents in respect of the shop in question. However, the respondents are allowed three months from today time to vacate the premises.