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2003 DIGILAW 841 (PNJ)

Balraj Bhandari v. M/s Muni Lal Sudhwant Rai

2003-05-29

J.S.NARANG

body2003
Judgment J.S.Narang, J. 1. The landlord filed a petition under Section 13 of the Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Act"). The facts to be noticed read as under :- 2. One Mool Chand Bhandari was the owner of the demised premises and the same had been let out to the respondent-tenants in the year 1952 for the purpose of carrying on Ahrat business (Commission Agent) at a monthly tenancy of Rs. 37.50. The owner died on 28.5.1972. Petitioners No. 1 to 5 being the legal heirs, claimed the ownership of the demised premises as natural successors by operation of law and, therefore, the relationship of landlord and tenant exists between the parties. The afore-stated petition had been filed by the petitioners for seeking ejectment of the respondents on the following grounds :- (a) the respondent has not paid the rent since Ist of April, 1975; (b) the respondent has not paid the house tax as the rate of 10%; and (c) the respondent have ceased to occupy the shop i.e. the demised premises since October 1976 and continuously for a period of four months without reasonable cause. The tenants have shifted their business of Commission Agents to new grain market and, therefore, the shop remains closed." 3. The petition had been filed against the tenants i.e. Muni Lal describing him as respondent No. 1. He died during the pendency of the petition and the legal heirs namely Darbari Lal, Jai Kishan Dass and Sukhwant Rai were impleaded as a party by virtue of the order passed by the Rent Controller. Subsequently, one of them, Darbari Lal also died and his legal heirs Janak Dulari (wife), Ashok Kumar, Satish Kumar (sons), Rita Rani, Samita Rani, Meena Rani, Saloni Rani and Sushma Rani (daughters) had been impleaded to avoid future complications but in fact the relationship of landlord and tenant does not exist qua them. However, after notice of the petition, respondents No. 1 and 2 had filed written statement and that respondents No. 3 to 11 filed a separate written statement. The pleas taken in the petition have been emphatically denied and that in fact it has not been accepted that the present petitioners are the legal heirs of Mool Raj i.e. the previous owner of the property. Resultantly, the relationship of landlord and tenant has been denied. The pleas taken in the petition have been emphatically denied and that in fact it has not been accepted that the present petitioners are the legal heirs of Mool Raj i.e. the previous owner of the property. Resultantly, the relationship of landlord and tenant has been denied. It has also been pleaded that the petitioners had received excess rent from the respondents and that the respondents are not liable to pay any house tax. It has also been denied that the respondents have ceased to occupy the demised premises since October 1976. It has been further pleaded that the demised premises are still in actual physical occupation and possession of the respondents for the business. Upon the pleadings of the parties, the issues had been struck. The Rent Controller categorically held that the relationship of landlord and tenant does exist between the parties. So far as the respondents having ceased to occupy the shop in question since October 1976, is concerned, the finding has been returned against the petitioner-landlords. Resultantly, the Rent Controller dismissed the application of the petitioners vide order dated August 17, 1981. 4. Being dissatisfied the appeal had been filed before the Appellate Authority. It has been observed by the Appellate Authority that the respondents conceded the finding on issue No. 1 i.e. regarding relationship of landlord and tenant as the said finding of learned Rent Controller has not been challenged by the respondents. Thus, the only question which remained to be determined before the Appellate Authority was: whether the respondent- tenants have ceased to occupy the demised premises for a period of four months before the filing of the petition ? In support of the argument, reliance has been placed upon a document exhibited as Ex. A7, whereby, the change of place of business is stated to have taken place with effect from 14.4.1977. This document is of no consequence as the petition is stated to have been filed on June 2, 1977, whereas, the date described in the afore-stated document is 14.4.1977. A number of documents have been placed on record but the thrust is only to the effect that the respondent-tenants have not done any Ahrat business in the shop, i.e. demised premises since 1976. However, the registration certificate has been produced and has been exhibited as Ex. A number of documents have been placed on record but the thrust is only to the effect that the respondent-tenants have not done any Ahrat business in the shop, i.e. demised premises since 1976. However, the registration certificate has been produced and has been exhibited as Ex. R1, which spells out that apart from the activity of Ahrat business, there is some other business such as sale of Gur, Bardana, Khal, coconut, drums, tyres, Soda, Cotton, Oil seeds, machinery spare parts, electric goods and timber etc. which was also being carried on in the demised premises. Another plea has been set out in support of the aforesaid argument that no electricity had been consumed in the demised premises with effect from December 1976 to September 1977. A letter Ex. A6 and bills Ex. A8 to Ex. A12, have been produced. It has been argued before the Appellate Authority that by virtue of the documents and the evidence brought on record, it has been proved that the respondents are carrying on some other business under the name and style of M/s Amar Ginning and Oil Mills at some other premises, which are almost opposite the demised premises. However, Sukhwant Rai respondent has appeared as RW1 and has categorically stated that he attends to the business in the shop i.e. the demised premises as well as the business of the afore-stated mill. It is obvious that it has not been denied that the respondents are carrying on some other business as well but this would not prove that the business is not being carried on in the demised premises and that they have ceased to occupy the same. It has also been clarified that so far as consumption of electricity is concerned, the shop remains open during the day time and that no electricity was required to be used but this would not mean that the shop remains closed. The petitioners have not produced the Meter Reader from PSEB alleged to be visiting the demised premises for noting the meter reading. The person who has been produced is of no consequence as he has not been able to spell out as to when he had come to note the meter reading and when he did not, as such, the Rent Controller has not placed reliance upon his testimony. 5. The person who has been produced is of no consequence as he has not been able to spell out as to when he had come to note the meter reading and when he did not, as such, the Rent Controller has not placed reliance upon his testimony. 5. The Local Commissioner was also appointed and that report dated April 8, 1981, has been placed on record. The report has been disbelieved on the premises that it is an ex-parte report made by the Local Commissioner as the respondents had not been given notice of execution of the commission, therefore, no one could come present on the date of execution of the commission. In any case, the Local Commissioner has made a report that there were many bundles of old empty and heavily dust infested gunny bags which were seen and there were many spider webs formed under the roof of the verandah and upon the walls and also in the visible portion of the two rooms. There was no other article inside the disputed premises and the shop was closed when he visited at 5 p.m. The report has not been formally tendered and resultantly has not been exhibited, no objections have been invited from the respondents nor the Local Commissioner has been examined to prove the report. The Local Commissioner has categorically stated that he could only peep through the door fixed with iron rods, which was locked and, therefore, he did not get the right of ingress and egress, therefore, has not submitted positive report in respect of the articles lying inside the shop. Thus, the report has been rejected by the Rent Controller and the finding of the Rent Controller has been affirmed by the Appellate Authority vide judgment dated April 13, 1984. 6. Dissatisfied with the aforesaid judgment of the Rent Controller and so also the Appellate Authority, the present petition has been filed. 7. Learned counsel for the petitioner has argued that the Courts below have not appreciated the evidence and the finding is based on conjectures and surmises. 6. Dissatisfied with the aforesaid judgment of the Rent Controller and so also the Appellate Authority, the present petition has been filed. 7. Learned counsel for the petitioner has argued that the Courts below have not appreciated the evidence and the finding is based on conjectures and surmises. Learned counsel has fairly admitted that the report has not been exhibited and admittedly had not been executed after notice to the respondents and as per the disclosure of the Local Commissioner, he had visited the shop at 5 p.m.; which according to him was lying closed at that time and he could only peep through the door/see through the door as the rods had been found in the frame of the door. He saw only old empty and dust infested gunny bags. He also saw the spider webs and that no other article could be seen, resultantly, the factum of possession could not be rightly ascertained. 8. My attention has been drawn to the statement of Sukhwant Rai RW1 where in his cross-examination, he has stated that the employee by the name of Khushi Ram works only in the shop in the new Mandi, whereas, he has also stated that the demised premises are opened and closed by Khushi Ram etc. He has also stated that they sit on the shop i.e. the demised premised for about two hours and that the light is not switched on and resultantly the electricity is not consumed. He has further stated that the sitting in the demised premises has been reduced to only two hours after the business of retail had been shifted to the shop in the new Grain Market. He has admitted that the old Mandi has been denotified for the sale and purchase of agricultural produce. He has categorically denied that the entire business has been shifted to the shop in the new Mandi. However, he has stated that the sale and purchase of the Articles such as oil etc. takes place but no retail sale is made in the demised premises. He has also produced books of accounts reflecting the debit entries relating to electricity consumption in the year 1977 and so also 1978. He has categorically stated that he does sit in the shop i.e. the demised premises and he also looks after the business in the new shop in the New Mandi. He has also produced books of accounts reflecting the debit entries relating to electricity consumption in the year 1977 and so also 1978. He has categorically stated that he does sit in the shop i.e. the demised premises and he also looks after the business in the new shop in the New Mandi. He has also corroborated that in the sale tax number, it has been mentioned that the firm Muni Lal Sukhwant Rai can also carry on the business of steel etc. though the same has not been mentioned on the pad but mentioning of the same on the pad is not necessary. 9. It has been further argued that the lower Courts have not discussed the statement of AW2 S.C. Bansal, who is the Manager of State Bank of Patiala, in the adjoining property, who has categorically stated that he has seen the shop lying closed. The fact of closure of old grain market and opening of new grain market in the year 1976 stands corroborated by ample evidence brought on record. In the old grain market, no business can be carried on as per the notification of the government and the Market Committee. Since the respondents have been statutorily injuncted to carry on the business, the question of carrying on business in the shop with effect from 1976 did not arise. 10. It has also been argued that the Courts below have not appreciated the evidence in the correct perspective and the evidence brought on record has been completely misread and apart from the misreading, some of the evidence has not been discussed at all. 11. On the other hand, learned counsel for the respondent has argued that the petitioners have not been able to establish the closure of the shop by bringing cogent evidence on record. The tenant has appeared as his own witness i.e. Sukhwant Rai, he has categorically stated that he comes to the shop for two hours and that the retail business, is not being carried on in the demised premises but the other business permissible by the market committee, is being carried on in the demised premises. The consumption of electricity has also been proved by way of production of the books of accounts. The consumption of electricity has also been proved by way of production of the books of accounts. The witness has categorically stated that the books have been written in Land as and, therefore, he has not been able to state various facts which have been spelt out in the books of accounts. No effort has been made to get the books of accounts exhibited for proving the contents by way of producing the witness, who could understand such language. It has not come on record that this language is known to the Court or interpretation has been got done in the language which could be understood by the Court. However, the witness has translated some portions in the language as understood by the Court, which has not been controverted. Therefore, the witness producing the said books has to be relied upon whatever he has stated by seeing the entries in the books of accounts. In the light of cogent evidence, the Rent Controller and the Appellate Authority have given a categoric finding that the shop was not closed since 1976 much less for a period of four months continuously. No witness has deposed that the shop was lying closed from October 1976 to October 1977, and by computing the period it would come to be beyond four months. Shri S.C. Bansal, the Manager of the Bank has been produced but he has not able to spell out that the shop remained closed continuously for a period of four months. In the absence of such corroborative evidence, it cannot be inferred that the shop remained closed continuously for a period of four months or more. Even if, there is statutory embargo upon carrying on the business in the old market that would not mean that the shop has been lying closed for a period of four months and more. It has come on record that the firm was entitled to carry on such business in respect of which there was no restraint by the government or by Market Committee. Sukhwant Rai has appeared and has deposed categorically that the business other than the one which has been stopped by the Market Committee, is being carried on in the shop. 12. Sukhwant Rai has appeared and has deposed categorically that the business other than the one which has been stopped by the Market Committee, is being carried on in the shop. 12. After hearing learned counsel for the parties and perusal of the documents and statements of the witnesses, I am of the view that the petitioners have not been able to prove that the demised premises remained closed for a period of four months or more with effect from October 1976. Not even a single witness has deposed that the shop was lying closed for a period of four months and more with effect from October 1976. The Local commissioner has submitted a report which has not been got exhibited by the petitioner for the reasons best known to them. In the absence of the same, the report could not be relied upon. De hors of this, the perusal of the report shows that the Local Commissioner has very fairly admitted that it is not possible for him to ascertain the possession of the shop. By merely noticing that the shop was lying closed and he could only see the old gunny bags infested with dust and that he could not see any other article, is not entertainable to place reliance that the shop was lying closed and there was no article lying therein. Admittedly, he did not have right of ingress and egress as no notice was given to the respondent before execution of the Commission. Thus, this evidence could not have been noticed and rightly has not been noticed by the Rent Controller and so also the Appellate Authority. 13. The only point raised before the Appellate Authority is that the shop remained closed for more than four months since October 1976, therefore, the tenant is liable to be ejected, which has not been proved by way of corroborative evidence. So far as the other plea is concerned, the same stood conceded by the petitioner. It is the settled law that if the tenant occupies or utilises the demised premises for a portion of the day, the demised shop cannot be said to be closed for the day. 14. In view of the above, I find no merit in the petition and the same is dismissed. Resultantly, the order of the appellate authority is affirmed. No costs.