Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 98 (HP)

OM PARKASH v. SUBHASH CHAND

2003-05-07

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J,: —This revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereafter referred to as the Act) has been preferred by the landlord /petitioner (hereafter referred to as the landlord) against the judgment dated 20.12.2000 passed by the learned Appellate Authority, Una whereby the order dated 23.1.1995 whereby the eviction petition filed by the landlord for eviction of the respondent/tenant (hereafter referred to as the tenant) from a shop on Una-Amb Road, Municipal Ward No. 1, Una (hereafter referred to as the tenanted premises) was allowed by the learned Rent Controller, Una on the ground of the tenant having ceased to occupy the said premises and for being in arrears of rent has been set aside. 2. The facts relevant for the purpose of disposal of the present petition are that the landlord filed a petition under Section 14 of the Act for eviction of the tenant from the tenanted premises on the grounds that the tenant was in arrears of rent from 1.9.1988 to 31.8.1991, that the tenant has ceased to occupy the tenanted premises for a continuous period of more than 12 months before the institution of the petition, that the tenant had changed the nature of the business and the tenanted premises were bonafide required by the landlord for personal use. 3. The petition was resisted by the tenant, who, in his reply, raised the preliminary objection that the petition was not maintainable in view of the contradictory pleas taken therein. On merits, all the grounds of eviction, as taken in the petition, were denied and it was claimed that the eviction petition had been filed to harass the tenant, who had demanded a sum of Rs. 500 from the landlord on account of repair of the roof of the tenanted premises in August, 1991. 4. On the pleadings of the parties, the learned Rent Controller framed the following issues: 1. Whether the respondent is in arrears of rent, if so, to what extent? OPP 2. Whether the respondent has ceased to occupy the premises in dispute for a continuous period of more than 12 months without any reasonable excuse? OPP 3. Whether the respondent has changed the nature of the business in the premises in dispute without the consent of the landlord? OPP 4. OPP 2. Whether the respondent has ceased to occupy the premises in dispute for a continuous period of more than 12 months without any reasonable excuse? OPP 3. Whether the respondent has changed the nature of the business in the premises in dispute without the consent of the landlord? OPP 4. Whether the premises in dispute are bonafide required by the petitioner for his own use and occupation? OPP 5. Whether the petition is not maintainable on the grounds mentioned in the preliminary objections? OPR 6. Relief. 5. On consideration of the evidence brought on record by the parties, the learned Rent Controller vide his order dated 23.6.1995 held Issue Nos. 1 and 2 in favour of the landlord whereas Issue Nos. 3 and 4 were decided against the landlord and Issue No. 5 was decided against the tenant and in view of the findings on Issue Nos. 1 and 2 the eviction petition was allowed. 6. Aggrieved by the order of the learned Rent Controller, the tenant preferred an appeal before the learned Appellate Authority Una. By the time the appeal came up for hearing the arrears of rent etc. had been tendered by the tenant, therefore, the order of eviction on the ground of the tenant being in arrears of rent had been rendered in executable. The surviving order of eviction on the ground of the tenant having ceased to occupy the tenanted premises was set aside by the learned Appellate Authority by the impugned judgment. Hence, this petition by the landlord. 7. I had heard the learned Counsel for the parties and have also gone through the records. 8. It was contended by the learned Counsel for the landlord that on appreciation of the material on record, the learned Rent Controller had rightly concluded that the tenant had ceased to occupy the tenanted premises for more than 12 months immediately before the institution of the petition. 8. It was contended by the learned Counsel for the landlord that on appreciation of the material on record, the learned Rent Controller had rightly concluded that the tenant had ceased to occupy the tenanted premises for more than 12 months immediately before the institution of the petition. It was further contended that non-use of electricity in the shop during the said period was a relevant and material piece of evidence to substantiate the findings of the learned Rent Controller and the learned Appellate Authority illegally and contrary to the ratio in Joginder Nath Sood v. Jagat Ram Sood, AIR 1990 HP 79, wrongly declined to accept this piece of evidence in support of the case of the landlord particularly when there was no explanation from the tenant as to how he used the tenanted premises for business purpose without consumption of electricity. Therefore, in the absence of such explanation and in view of the ratio in Joginder Nath Soods case (supra) findings of the Appellate Authority are not sustainable. In support of this contention, the learned Counsel for the landlord relied on Parmatma Kaur v. HUF Rajinder Parshad and Sons, 1999 (2) RLR 703 and Harinder Singh v. M/s. Bali Ram Sansari Lal, 2000 (2) RLR 395.. 9. On the other hand, the learned Counsel for the tenant contended that the question whether the tenant has ceased to occupy the rented premises or not is a question of fact and the Appellate Authority has already decided that question against the landlord. Therefore, no interference with such findings by this Court in exercise of its revisional jurisdiction is warranted. 10. It was further contended that non-consumption of electricity by itself is no proof of non-occupation. Even otherwise it clearly emerges from evidence on record that the tenant had been paying the electricity bills for minimum consumption during the relevant period and the tenant had been in occupation of the tenanted premises is a fact duly proved in view of the evidence led by the tenant, particularly the statements of Vijay Kumar (PW-4) and Karam Chand (PW-5) and admission by Khushi Ram (PW-2) that on the day before the date he made his statement, he had seen the tenanted shop open. It was further contended that there is nothing on the record from which animus deserendi on the part of the tenant maybe inferred. It was further contended that there is nothing on the record from which animus deserendi on the part of the tenant maybe inferred. In view of these circumstances, the learned Counsel urged that the findings of the facts recorded by the learned Appellate Authority being based on material on record, do not call for interference. To support his contention, the learned Counsel relied on G.C. Bhatia v. R.L. Seth, 1986 SLC 168; Sohan Lai and another v. Gurbachan Singh, 1990 (1) RCR 387 and Gurbax Singh v. Subedar Sarwan Singh, 1994 (2) RCR 351. 11. It is well settled that while exercising revisional jurisdiction under Section 24 of the Act, the High Court should ordinarily not interfere with the findings of facts particularly when such findings are concurrent. However, it is also well settled that in a case where the findings of fact are absurd, unreasonable and contrary to the evidence on record or based on no evidence, the High Court will have to interfere with such findings. It is so because in exercising the supervisory powers which vests in the High Court, it has to ensure that justice is done to the parties and in a case where injustice has been done to a party, it is duty of this Court to undo the same. In the case in hand, the findings of facts recorded by the learned Rent Controller had been reversed by the learned Appellate Authority, therefore, propriety of the findings recorded by the learned Appellate Authority has to be examined on the basis of the material on record. 12. In so far as the non-consumption of electricity in the tenanted shop is concerned, it is a circumstance fully proved. It is clearly and unambiguously stated by Rajinder Singh (PW-3) that the meter reading of the meter installed in the shop was 4385 units in February 1990 and it was so even in the month of May, 1993. He has further stated that as per the records maintained in the Electricity Sub Division the premises during this period remained locked. In his cross-examination, he has further clarified that as per the records even a lock-notice was issued regarding the meter in question on 10.12.1992 and the meter was disconnected in December, 1992. He has further stated that as per the records maintained in the Electricity Sub Division the premises during this period remained locked. In his cross-examination, he has further clarified that as per the records even a lock-notice was issued regarding the meter in question on 10.12.1992 and the meter was disconnected in December, 1992. He has further stated that he was the Meter Reader at the relevant time and there was no meter reading of the meter in question during the period February, 1992 to May, 1993 because the shop remained locked. He has, no doubt, admitted certain payments for different periods against the meter in question and has explained that these payments were of minimum charges. Keeping in view the amount of payments infact such payments appear to be payment of meter rent and nothing more. It is so because the meter reading indisputably was 4385 in February, 1990 and it remained so even in May, 1993. It is not the case of the landlord that the meter was defective. Therefore, the only conclusion on the basis of the evidence of PW-3 is that no electricity was consumed in the tenanted premises during the period February, 1990 to May, 1993. It is beyond comprehension that a business is run in a shop without use of any light. It is not the case of the tenant that he used any alternate mode of light in the shop. In these circumstances, a very strong presumption arises that the shop remained unoccupied and unused during the period February, 1990 to May, 1993. Therefore, it is for the tenant to explain the non-consumption of electricity and to rebut the aforesaid presumption. If there is no requisite explanation and the presumption remains unrebutted and the cessation to occupy the premises is supported by other evidence also the non-occupation of the premises will stand proved. 13. In Sohan Lals case (supra), the Punjab and Haryana High Court held that mere non-consumption of electricity by itself is not sufficient to hold that tenant had ceased to occupy the premises. However, it was found in that case that the Meter Reader had been visiting the shop and had been taking the reading and has not stated that at the time of his visits the premises were found locked. However, it was found in that case that the Meter Reader had been visiting the shop and had been taking the reading and has not stated that at the time of his visits the premises were found locked. Evidently, in these circumstances, it was not proved that there had been no consumption of electricity at all and the premises remained locked. 14. In Gurbax Singhs case (supra), the Punjab and Haryana High Court held that it was true that non-consumption of electricity alone is no proof that the tenant had ceased to occupy the premises. However, it was further held that where in addition to non-consumption of electricity the evidence establishes that the tenant is not carrying on the business for a period of more than the required period preceding the presentation of the petition then the presumption would be that the tenant has ceased to occupy the premises. 15. In later cases a slightly different view has been taken even by the Punjab and Haryana High Court in such cases where there was non-consumption of electricity in the demised premises. 16. In Parmatma Kaurs case (supra), the Punjab and Haryana High Court found that admittedly there was no electric meter in the demised premises, therefore, held as under : "9.... The petitioner, though according to him is using the shop and is selling the electric fans etc. has admitted that there is no electric meter in the demised premises at present. He has not shown as to from where he is getting the electricity. Moreover, he has no servant or mechanic to help him and he is having another shop in the main bazaar. He cannot run both the shops alone. Moreover, the petitioner Daljit has examined himself only as his witness and has not produced any other evidence. If the petitioners are using the shop in question, they are the persons having best evidence regarding its use. If the petitioners are taking electricity from somewhere else, they could have shown the same. The petitioners could have produced their books of account and when this not done, adverse inference can also be drawn against them in view of the judgment in Gopal Krishanji Ketaka v. Mohammed Haji Latif and others, AIR 1968 Supreme Court 1413." 17. If the petitioners are taking electricity from somewhere else, they could have shown the same. The petitioners could have produced their books of account and when this not done, adverse inference can also be drawn against them in view of the judgment in Gopal Krishanji Ketaka v. Mohammed Haji Latif and others, AIR 1968 Supreme Court 1413." 17. In Harinder Singhs case (supra), the same High Court while dealing with the plea of non-consumption of electricity by the tenant, which was found established, held as under: "13. Therefore, in addition to the oral evidence (which has been led by both the sides), the circumstance which arises regarding non-consumption shown by the electricity reading, assumes importance and the burden of proving user of the shop in question had then to be discharged by the respondent and, therefore, the presumption of non-user of the said shop can be said to has been arisen in favour of the petitioner and it was for the respondent to prove the user by explaining the presumption that has arisen. This having been not done, I find that the Courts below have not decided the case in correct interpretation of the principle of burden of proof. This being so, the petitioner can be said to have proved the non-user of the shop in question for more than four months, as alleged." 18. Thus, in the latest case (supra) even the Punjab and Haryana High Court has taken the view that non-consumption of electricity will raise a presumption in favour of the plea of non-occupation and it is for the tenant to rebut such presumption. Therefore, non-consumption of electricity is a very material and relevant factor to decide the question of non-occupation of the demised premises. 19. In Joginder Nath Soods case (supra) to prove non-occupation of the premises, this Court held as under : "12. Shri Chhabil Dass, submits that non-consumption of electricity is no proof that the tenant has not been living in the disputed premises. Reference is made to 1982 (2) RCJ 440; Shri Ram Gupta v. Jagal Kishore. This decision is not applicable to the present case since no such evidence is available on the record of this case. These premises have electricity meter right from the beginning. Reference is made to 1982 (2) RCJ 440; Shri Ram Gupta v. Jagal Kishore. This decision is not applicable to the present case since no such evidence is available on the record of this case. These premises have electricity meter right from the beginning. The tenant had been consuming electricity and paying consumption bills regularly but during this gap of 12 months, neither any electricity was consumed nor any payment was made towards its consumption since the meter remained static. It changed only when the tenant started consuming electricity after the filing of this petition. The defence of the tenant that he had been using kerosene lamp or zero watt electricity bulb is rather laughable. The plea of the tenant that he was doing so since he could not afford to spend on electricity is again a factor which goes very much against his assertions qua the occupation of premises also. The cost of kerosene, as calculated by the appellate authority, goes much more than the charges for electricity consumption. This explanation rather strengthens the case of the landlord that the tenant has ceased to occupy these premises during the period of 12 months and there was no reasonable cause for the tenant to do so. The conduct of the tenant and the nature of the evidence adduced by him further indicates that he was living in the accommodation of his brother in old Butail Building since his brother appears to have shifted to Rajgarh. Keeping of luggage does not mean anything if the tenant does not come to visit or stay in the premises in question at any time during this period. See ILR (1986) Him. Pra 176, C.C. Bhatia v. R.L. Seith, but no such thing is available in the present case." 20. In the case in hand, as already stated hereinabove, it is fully and firmly established that the electric meter of the tenanted premises remained static from February, 1990 to May,1993 and thus there had been no consumption of electricity is fully established and has not been controverted by the tenant in any manner whatsoever, therefore, is a most material piece of evidence to support the plea of non-occupation of the premises by the tenant. It is in the statement of Om Parkash (PW-1) that the tenanted premises are lying locked since 1989. It is in the statement of Om Parkash (PW-1) that the tenanted premises are lying locked since 1989. It also emerges from the statement of Khushi Ram (PW-2) that the registration of the business allegedly carried out in the tenanted premises was not done during the year 1987 to 1991, which, under {he law, is required to be done from year to year. Therefore, the duplicate registration certificate Ext. RW-1 /D renewing the establishment from 11.11.1993 i.e. during the pendency of the petition is of no help to the tenant. Similarly, Form No. 4-A Exts. RW-l/F to RW-l/J not concerning the relevant period are of no use and help to the tenant. Ext. R-l, a certificate about the clearance of sales tax, sales certificate Ext. R-2, Receipt No. A Income Tax Clearance Certificate Ext. R-3, Forms No. 32-A Exts. R-4 and R-5 and the copy of the Jamabandi Ext. R-6 are also not relevant for the material period and relate to the period prior to 1988. No document whatsoever relating to the tax clearance for the relevant period of any other document issued under the provisions of Income Tax Act or Himachal Pradesh Commercial Establishments Act or in the form of a bill issued by or against the establishment of the tenant during the relevant period has been produced in evidence. Thus, there is reliable evidence on record that the premises remained closed during the period February, 1990 to May, 1993 and no such business for which the premises were taken on rent by the tenant was transacted therein. 21. In rebuttal the tenant in addition to his own statement as RW-3 relied on the statements of Khushi Ram (RW-1), Vijay Kumar (RW-4) and Karam Chand (RW-5). The only conclusion which can be drawn from the examination-in-chief of RW-1 and documents produced by him is that the business premises remained unregistered, as already concluded hereinabove. No doubt while appearing as PW-2 this witness has admitted in the cross-examination that on the day preceding the day of his examination in the Court he had seen the tenanted premises open. No doubt while appearing as PW-2 this witness has admitted in the cross-examination that on the day preceding the day of his examination in the Court he had seen the tenanted premises open. However, he was examined on 24.1.1994, therefore, even if his statement is believed he might have seen the shop open on 23.1.1994 much after the institution of the eviction petition, therefore, this admission of the witness is of no help to hold that the premises did not remain locked during the material period. The oral statement of RW-3, RW-4 and RW-5 could not be believed in view of the established circumstance that no electricity was consumed in the premises, as already stated hereinabove, and want of production of documentary evidence to show that the business premises remained open during the relevant period. The tenant (RW-3) has stated in his examination in chief that presently he is doing the business of general merchant in the demised premises. However, he c6uld not produce any bill in support of his statement. Therefore, in view of the material on record, the learned Rent Controller was right in holding that the tenant had ceased to occupy the tenanted premises for the continuous period of 12 months immediately before the presentation of the petition and thereby rendered himself liable for eviction. 22. The contention of the learned Counsel for the tenant that animus deserendi is not established, therefore, it could not be held that the tenant has ceased to occupy the premises. In G.C. Bhatias case (supra) relied by the learned Counsel for the tenant to support his contention a learned Single Judge of this Court held as under : “9. If a tenant uses the rented building occasionally, it may or may not amount to its non-occupation. The nature and extent of the occasional visits, the animus deserendi and the totality of circumstances of each case will have to be considered for the purpose of determining whether the tenant has ceased to occupy the building for a continuous period of twelve months without reasonable cause." 23. Clause (v) of sub-section (2) of Section 14 of the Act which provides the cessation of the tenant to occupy the rented premises as a ground for eviction reads as under: "(v) that the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause." 24. Clause (v) of sub-section (2) of Section 14 of the Act which provides the cessation of the tenant to occupy the rented premises as a ground for eviction reads as under: "(v) that the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause." 24. On a bare reading of the aforesaid provisions, it is clear that to get eviction of the tenant on the aforesaid ground the landlord has to prove that the tenant had ceased to occupy the building for a continuous period of 12 months without reasonable cause and it does not require the landlord to prove further that the tenant has so ceased to occupy the premises with the intention not to occupy them at all at any time in future. 25. It may be pointed out that the ground to evict the tenant who has failed to occupy the building continuously for the specified period without any reasonable cause has been enacted by the legislature to ensure that the buildings which are scares in number especially in towns do not remain unused at the instance of the tenants who do not actually need them. Therefore, animus deserendi cannot be imported to the section and the landlord is not required to prove that the non-occupation of the premises by the tenant for a continuous period of months was pursuant to his intention not to occupy the premises in future. 26. In M/s. Babu Ram Gopal and others v. Mathra pass, AIR 1990 SC 879, the Honble Supreme Court held as under : "3.... The reason of including the clause (v) in Section 13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them. A tenant who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose of Section 13(2)(v); otherwise a question of his eviction as envisaged in that section would not arise. The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessation of occupation as one of the grounds. The clause, therefore, has to be interpreted in this background and it must take colour from the context. The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessation of occupation as one of the grounds. The clause, therefore, has to be interpreted in this background and it must take colour from the context. We, therefore, hold that if a tenant stops the business which he is carrying on in a shop and closes the premises continuously for a period of four months without a reasonable cause he will be liable for eviction." Therefore, animus deserendi on the part of the tenant is not an essential ingredient to be proved where the eviction of the tenant is sought on the ground of his ceasing to occupy the premises for a continuous period of 12 months. 27. Even in G.C. Bhatias case (supra), this Court has not held that animus deserendi is essential ingredient to be proved by the landlord seeking eviction of the tenant on the ground of his ceasing to occupy the rented premises but it has been held only to be one of the factors which may weigh with the Court in determining whether the tenant has ceased to occupy the building or not. Moreover, intention of a human being is his mental state regarding which direct evidence can be seldom expected. Therefore, the contention of the learned Counsel for the tenant that animus deserendi in the case is not proved, therefore, order of the learned Appellate Authority calls for no interference is not sustainable. 28. As already stated hereinabove, the conclusions arrived at by the learned Rent Controller that the tenant has ceased to occupy the premises for the relevant period and was, therefore, liable to be evicted is based on proper appreciation of evidence whereas the contrary view taken by the learned Appellate Authority is not sustainable as it ignores the most material evidence on record. Therefore, the impugned order passed by the learned Appellate Authority is liable to be set aside. 29. As a result, this petition is allowed and the impugned order passed by the learned Appellate Authority is set aside and the order of the learned Rent Controller directing eviction of the tenant from the tenanted premises on the ground of the tenant having ceased to occupy the tenanted premises for a continuous period of 12 months immediately before the presentation of the petition are restored. 30. 30. In the facts and circumstances of the case, there is no order as to costs.