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2003 DIGILAW 827 (PNJ)

Brij Lal v. Harnam Singh (Died) Through Lrs.

2003-05-28

VINEY MITTAL

body2003
Judgment Viney Mittal, J. 1. The tenant, Brij Lal (since dead-now represented by his legal representatives) has approached this Court through the present revision petition. The grievance made is against the order dated November 20, 1987 passed by the learned Appellate Authority, Faridkot, whereby the tenant was ordered to be evicted from the tenanted shops. 2. The landlords, Harnam Singh (also since dead-now represented by his legal representatives) and others filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) seeking ejectment of the tenant, Brij Lal, from the two shops, which were stated to have been given on rent to him ten years prior to the filing of the ejectment petition. The ejectment was sought on the ground of non-payment of rent; the tenant having committed such acts, which had materially impaired the value and utility of the shops; the tenant having ceased to occupy the shops for a period of more than four months from January 2, 1983 to August 2, 1983 and even till the date of filing of the petition without any reasonable cause. 3. The landlords pleaded that the aforesaid two shops had been given on rent by them to the tenant, Brij Lal, about ten years prior to the filing of the ejectment petition at the rate of Rs. 200/- per month i.e. Rs. 100/- per month for each shop, but the tenant had failed to pay the rent after August, 1980. It was further pleaded by the landlords that the tenant had committed such acts, which had materially impaired the value and utility of the shops. In fact, he had opened a door in between the common wall of both the shops and he had installed a water works in one of the shops without the consent in writing of the landlords. It was further claimed that the tenant had ceased to occupy the shops for a period of more than four months from January 2, 1983 to August 2, 1982 and till the date of filing of the petition without any reasonable excuse. Even prior to the aforesaid dates, the shops remained closed. It was further claimed that the tenant had ceased to occupy the shops for a period of more than four months from January 2, 1983 to August 2, 1982 and till the date of filing of the petition without any reasonable excuse. Even prior to the aforesaid dates, the shops remained closed. The landlords maintained that on account of the installation of the water tap, some cracks had appeared in the wall of the shop and the condition of the shop had become unsafe and unfit and the same could collapse at any time. 4. The tenant put in appearance before the learned Rent Controller and filed a reply to the ejectment petition. All the grounds of ejectment were contested. The tenant claimed that in fact, the two tenanted shops were given on rent at the rate of Rs. 30/- per month each and therefore, the two shops together were on total rent of Rs. 60/- per month. It was further claimed that in fact, the shops had been taken about 14 years prior to the filing of the ejectment petition. Although the rate of rent was disputed, but in order to avoid the eviction, the arrears of rent were tendered on the first date of hearing as claimed by the landlords. The tenant further denied that he had committed any such acts, which had impaired the value and utility of the shops in dispute. He maintained that in fact, the shops were rented out for installation of a Soda water machine and that the door intervening the shops was in existence from the inception ever had remained closed. 5. The learned Rent Controller, on the basis of the evidence on the record, found that the rate of rent was Rs. 60/- per month for both the shops i.e. Rs. 30/- per month for each shop. On that basis, the tender made by the tenant on the first date of hearing was held to be valid. The learned Rent Controller further held that the door intervening the two shops was not opened subsequently to the inception of tenancy and therefore, it could not be held that the tenant had impaired the value and utility of the demised premises. Even the claim of the landlords that the tenant had ceased to occupy the shops for a period of more than four months was also negatived by the learned Rent Controller. 6. Even the claim of the landlords that the tenant had ceased to occupy the shops for a period of more than four months was also negatived by the learned Rent Controller. 6. Accordingly, the learned Rent Controller dismissed the ejectment petition filed by the landlords. 7. The landlords filed an appeal before the learned Appellate Authority. The findings recorded by the learned Rent Controller were challenged. 8. The learned Appellate Authority also affirmed the finding with regard to the rate of rent being Rs. 30/- per month for each shop i.e. Rs. 60/- per month for both the shops. Accordingly, the tender of the arrears of rent made by the tenant on the first date of hearing was held to be valid. 9. However, the learned Appellate Authority found that there was no evidence that the door in question or opening between the wall of the two shops existed at the time of the commencement of the tenancy. The learned Appellate Authority relied upon document Ex. AX/1, which is a copy of the sanctioned plan of the building, in which the shops are situated and that plan was sanctioned by the Municipal Committee, Moga on August 27, 1959. On the basis of the aforesaid plan, the learned Appellate Authority found that there was no evidence that there was any door or opening in between the two shops, which are the tenanted premises with the tenant. On that basis, the learned Appellate Authority found that the door having been opened between the common wall of the two shops by the tenant without any consent of the landlords had materially impaired the value and utility of the shops in question. 10. The learned Appellate Authority also found that the shops in question had remained closed continuously from January 2, 1983 to August 2, 1983 and since the tenant had failed to show any sufficient cause for being ceased to occupy the aforesaid premises for a period of more than four months, therefore, even the said ground taken by the landlords for seeking ejectment of the tenant was up-held. 11. In view of the aforesaid findings recorded by the learned Appellate Authority, the order of the learned Rent Controller was set aside and the ejectment petition filed by the landlords was allowed. The tenant was ordered to be evicted. 12. 11. In view of the aforesaid findings recorded by the learned Appellate Authority, the order of the learned Rent Controller was set aside and the ejectment petition filed by the landlords was allowed. The tenant was ordered to be evicted. 12. It is against the aforesaid order passed by the learned Appellate Authority that the tenant had approached this Court through the present revision petition. 13. I have heard Shri T.N. Gupta, the learned counsel appearing for the tenant-petitioner and Shri Swaran Singh, the learned senior counsel appearing for the landlord-respondents and with their assistance, have also gone through the record of the case. 14. Shri T.N. Gupta, the learned counsel for the tenant-petitioner, has submitted that in fact, the findings recorded by the learned Appellate Authority with regard to the door having been opened in the common wall of the two shops by the tenant was absolutely erroneous and contrary to the record. It has further been submitted by the learned counsel that the said door existed at the time of the commencement of the tenancy. It is further maintained by Shri Gupta that even if it be taken that the said door had been opened by the tenant, still, it could not be taken to be such act which could be held to be a material impairment of value and utility of the premises in question. 15. On the other hand, Shri Swaran Singh, the learned senior counsel for the landlord-respondents, has submitted that the reliance placed by the learned Appellate Authority upon the document, Ex. AX/1, which was a copy of the sanctioned plan of the building in dispute, clearly showed that the aforesaid door never existed in the year 1959. It was on that basis, the learned counsel has maintained that since there was no evidence that the door was in existence at the time of inception of the tenancy, then it could be presumed that the said opening had been made by the tenant himself without the consent of the landlords and therefore, apparently the act of the tenant had caused material impairment of the value and utility of the premises in dispute. 16. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. 17. In my considered view, the reliance placed by the learned Appellate Authority, upon the document, Ex. 16. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. 17. In my considered view, the reliance placed by the learned Appellate Authority, upon the document, Ex. AX/1, could not be taken to mean that the door was not in existence at the time of the commencement of the tenancy. In fact, the said plan is merely a sanctioned building plan by the Municipal Committee, Moga. It was sanctioned on August 27, 1959. However, from a perusal of the aforesaid plan, it cannot be suggested that even the construction at the spot had been actually carried out in terms of the sanctioned plan. The said plan could not be taken to be an evidence with regard to the fact that no door was even opened subsequently to the said construction of the shops and prior to the same being given on rent to the tenant, Brij Lal. In fact, the onus to prove that any such door had been constructed by the tenant, Brij Lal, was clearly upon the landlords. The evidence on the record placed by them does not show that the tenant had actually opened the said door. On the other hand, the fact that the two adjacent shops had been given on rent by the landlords to the tenant for carrying out the business of Soda water manufacturing shows that in fact, the two shops were to be used jointly by the tenant for the aforesaid purpose. In these circumstances, it is most probable that the door was already in existence or was opened at the time of letting out the said shops to the tenant. 18. Even if, it be taken that the tenant had made an opening after the commencement of the tenancy, still, in my considered view that act by itself could not be taken to be such an act which could be held to be a material impairment of the value and utility of the shops in dispute. Nothing has been shown that by opening of the aforesaid door, any damage has been caused to the common wall between the two shops or that the construction of the shops has, in any other manner, been affected. If the door had been opened by removing certain bricks, then the same could always be closed by putting the bricks back. Nothing has been shown that by opening of the aforesaid door, any damage has been caused to the common wall between the two shops or that the construction of the shops has, in any other manner, been affected. If the door had been opened by removing certain bricks, then the same could always be closed by putting the bricks back. Accordingly, the said act of the tenant was only an act to use the tenanted premises more effectively and conveniently. Another complaint, which was made by the landlords, was that the tenant had got installed water works in the shops. It has come in evidence that the water pipes were laid in the city in the year 1975-76. Accordingly, the water connection was also given to the shops in question. A water tap was got affixed in the year 1976. The aforesaid installation of a water tap by any stretch of imagination could not be treated to be an act of an impairment by the tenant causing any decrease in the value and utility of the premises in dispute. 19. In view of the aforesaid discussion, it is apparent that the ground of ejectment taken by the landlords that the tenant had committed such acts, which had materially impaired the value and utility of the shops in dispute is without any basis. 20. This brings us to the next ground of ejectment taken by the landlords. The landlords have pleaded that in fact, the tenant had ceased to occupy the tenanted portion for a period of more than for months, namely from January 2, 1983 to August 2, 1983 and even till the date of filing of the eviction petition. The eviction petition was filed on August 30, 1983. 21. Shri T.N. Gupta, the learned counsel appearing for the tenant-petitioner, has submitted that in fact, the landlords had not given the specific details of the period, for which the shops had remained closed nor had led any such evidence to show that the tenant had ceased to occupy the shops for a period of more than four months without any reasonable excuse. On that basis, Shri Gupta has submitted that even the aforesaid ground of ejectment was liable to be rejected. 22. On that basis, Shri Gupta has submitted that even the aforesaid ground of ejectment was liable to be rejected. 22. On the other hand, Shri Swaran Singh, the learned senior counsel appearing for the landlord-respondents has submitted that a specific plea had been raised by the landlords in their eviction petition and the said plea had not even been specifically denied by the tenant in his reply to the eviction petition. It has further been submitted by Shri Swaran Singh that the evidence on the record proved the factum of the tenant having ceased to occupy the shops in question for a period of more than four months and therefore, the tenant had made himself liable to eviction under Section 13(v) of the Act. 23. I have considered the submissions made by the learned counsel for the parties with some anxiety. 24. At this stage, it may be relevant to notice the respective pleas of the parties with regard to the aforesaid ground of ejectment. 25. The landlords, while filing the eviction petition, had stated in para 3(D) as follows :- "That the respondent has ceased to occupy the shops for a continuous period of more than four months without reasonable cause that is shops in question remained closed from 2.1.1983 to 2.8.1983. Even prior to 2.1.1983, the shops remained closed and even now the shops are closed and are locked that is to say respondent has ceased to occupy the shops in question from 2.1.1983 without any reasonable excuse." In the corresponding para of the reply, the tenant had stated as follows :- "Not admitted. Allegation is wrong. The trade and profession of the respondent is a seasonal. Allegation is wrong. The trade and profession of the respondent is a seasonal. It is only in summer season that factory is working." From a perusal of the aforesaid pleadings of the parties, it is apparent that the landlords had been very specific with regard to the ground of ejectment and has specifically stated that the tenant had ceased to occupy the shops for a continuous period of more than four months without reasonable cause and that the shops had remained closed from January 2, 1983 to August 2, 1983 and even prior to January 2, 1983, the shops had remained closed and further that even thereafter the shops had remained closed and locked, and on that basis, they had stated that the tenant had ceased to occupy the shops in question without reasonable excuse. The tenant merely felt satisfied by merely denying the allegations. He merely stated that the trade and profession of the tenant is seasonal and therefore, it is only in summer season that the factory is working. It is apparent that the factum of the closure of the premises was not specifically denied by the tenant. The plea raised by the tenant, on the other hand, was very vague. It is apparent that he never disputed the factum of closure of the shops and the factum of having ceased to occupy the shops for a period of more than four months. He merely felt satisfied by taking up the plea that the work was seasonal in nature and that the factory was working in summer season. 26 It may not be out of place to notice here that the ejectment petition was filed by the landlords on August 30, 1983 with a specific plea that from January 2, 1983 to August 2, 1983, the shops in question had remained closed and the tenant had ceased to occupy the same. Since the factum of the closure of the shops and non-occupation by the tenant was not denied by the tenant, therefore, it was also apparent that even during the sumer season, i.e. for the months of April, May, June, July and August, 1983 the shops in question were closed and no business was being carried out from there even in these months. Therefore, the plea raised by the tenant that the trade and profession in the shops in question was only being carried out in summer season was also wrong and incorrect on the face of it. 27. Even otherwise, the learned Appellate Authority has discussed the evidence led by the parties in detail. AW-1 Parminder Singh, AW-2 Karnail Singh and AW-5 Harnam Singh had categorically stated that the shops in dispute had remained closed from January 2, 1983 till August 2, 1983. Even AW-3 Parveen Kumar, who was an official of the electricity department, had stated that when that official went to the premises in dispute four times from January, 1983 to August, 1983, he found the shops locked and that there was no consumption of electricity during that period. The very fact that the shops in question were taken on rent for manufacturing of Soda water and that there was no consumption of electricity for the aforesaid period lends credence to the claim of the landlords. The tenant has also failed to prove any evidence that the business was being carried out in these shops during the aforesaid period. Some documents like sale-tax returns etc. could have been produced by him. Nothing of the kind has been produced. 28. In view of the aforesaid evidence on the record and the findings of fact recorded by the learned Appellate Authority, the said ground of ejectment that the tenant had ceased to occupy the tenanted premises for continuous period of four months without reasonable cause stands clearly proved and nothing has been shown that the said findings recorded by the learned Appellate Authority suffers from any impropriety or infirmity or is in any other manner contrary to the record. 29. In view of the aforesaid discussion, I have no hesitation in maintaining the order of eviction on the ground that the tenant had ceased to occupy the premises for a continuous period of more than four months without any reasonable cause. 30. Accordingly, the present revision petition is, hereby, dismissed. However, the tenant-petitioner is granted two months time to vacate the premises in dispute.