Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 1033 (PNJ)

Manohar Singh v. Rattan Kaur

2004-09-10

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is tenants petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act) challenging concurrent findings of facts recorded by both the Courts below holding that the tenant-petitioner is liable to be ejected from the demised shop on the ground that he has parted with exclusive possession of a portion of the demised shop to the sub tenant without the consent of the landlady-respondent. The other grounds regarding non-payment of rent and material impairment in the value and utility of the demised shop do not survive for consideration as the findings recorded on those issues against the landlady-respondent have not been challenged. 2. Under Section 13(2)(ii) of the Act, a specific provision has been made that if a tenant sublet the entire building or any portion thereof without the written consent of the landlord, then, the Rent Controller is competent to direct the tenant to put the landlord in possession of the demised building. Landlady-respondent Smt. Rattan Kaur sought the ejectment of tenant-petitioner, Manohar Singh (now represented by his LRs) from the demised premises inter-alia on the ground of subletting. The Rent Controller placed reliance on the statement made by Balwant Singh, PW-1, Gurnam Singh, PW-2, Lak- hvinder Singh, PW-3 and Shiv Dayal, PW-4 as well as the photographs Marks C and D to record the finding that on one portion of the shop, another rolling shutter has been fixed and a sub-tenant who is a cycle repairer is running a cycle repair shop under the name and style of M/s. Popular Cycle Store. It has also been found that the cycle re- pairer himself used to open and close that portion of the shop which has been separated by a partition in the building. There are two shutters placed on the building and the shop behind the small shutter has been let out to the cycle repairer after effecting partition. The Rent Controller also relied upon the statement of Dr. Joginder Mohan, RW-2 admit- ting that there were two shutters of the shop and that the wife and daughter of the ten- ant-petitioner could be seen in photographs C and D. The aforementioned fact has also been accepted by Manohar Singh, who appeared as RW-4. He also stated that the name of the sub lessee was Roshan. Joginder Mohan, RW-2 admit- ting that there were two shutters of the shop and that the wife and daughter of the ten- ant-petitioner could be seen in photographs C and D. The aforementioned fact has also been accepted by Manohar Singh, who appeared as RW-4. He also stated that the name of the sub lessee was Roshan. It is not the case of the tenant-petitioner ever that he ever started the cycle repair shop. On the basis of the aforementioned evidence, the Rent Controller concluded that a sub tenant is proved to be in exclusive possession of a portion of the demised premises and the burden to explain the possession of IIIrd party is on the tenant-petitioner. No explanation having been tendered, the Rent Controller had ordered eviction of the tenant-petitioner vide his order dated 21.11.1984. 3. On appeal filed by the tenant-petitioner, the argument raised was that neither the negatives of the photographs Marks C and D were brought on record nor the photographer was produced, and in the absence of the proof of photographs Marks C and D, no reliance could be placed on the aforementioned evidence. The learned Appellate Authority held, relying on the statement of Lakhvinder Singh, PW-3 who is the son of land-lady-respondent, Smt. Rattan Kaur, that he got the photographs clicked from a photographer and the tenant-petitioner got the negatives torn under threat. Although the fact was disputed by the tenant-petitioner as is evident from his cross-examination. However, when the tenant-petitioner (RW-4) himself appeared as a witness, he did not even allege that the negatives were never got torn. On the aforementioned basis, the Appellate Authority, held that no adverse inference can be drawn against the landlady-respondent for not producing the negatives. While rejecting the contention arising from non-production of the photographer, the Appellate Authority observed as under :- "In the present case, it is no doubt true that the landlord has not examined the photographer who took the photographs. Though on that score an adverse inference can be drawn against the landlord but due to certain admissions coming in the evidence of the tenant, no such adverse inference can be drawn. The photographs were confronted to the tenant. He admitted in cross that his wife and daughter are visible in the photo. The name of the tenants shop is also there on the center-lever of the shop. The photographs were confronted to the tenant. He admitted in cross that his wife and daughter are visible in the photo. The name of the tenants shop is also there on the center-lever of the shop. One of the witness of the tenant, RW2 Dr. Joginder Mohan admitted that the board of the respondent is there in the photo marked D. Shri Jagjit Singh Chadha, RW3, also admitted that there are two shutters of the shop; that the daughter and wife of the tenant are shown in the photographs marks C and D. Shri Jai Chand, RWl, also admitted that the shutter shown in the photographs marked C and D are of the same shop that the front cante-lever meant for the Board is also of the same shop. When the photographs are read with the above evidence, they clearly show that these photographs pertained to the period when the bigger portion of the shop was in possession of the tenant. A perusal of the photographs also shows that one portion is being used for the cycle repair shop under the name and style of Popular Cycle Store. There is no plea raised by the tenant either in the written statement or in his statement as RW4 that the person doing the business in the above portion was his licensee. So, once the photographs are relied upon, then it will be held that the tenant has parted with a part of the premises in favour of the Sub tenant. The contention of the tenants counsel to the effect that the photographs be not relied upon, cannot be accepted in the face of the facts detailed above." 4. Mr. Kanwaljit Singh, learned counsel for the tenant-petitioner has argued that in the absence of any proof of photographs Marked C and D, either by producing the negatives or the Photographer, the same could not be relied upon as has been done by both the Courts below. Referring to the contention of the tenant-petitioner before the Appellate Authority in paragraphs 8 and 9 of its judgment coupled with the plea raised by him in para No. 3 (iii) of the written statement, the learned counsel has argued that no sublet ting has been proved in law or fact. Referring to the contention of the tenant-petitioner before the Appellate Authority in paragraphs 8 and 9 of its judgment coupled with the plea raised by him in para No. 3 (iii) of the written statement, the learned counsel has argued that no sublet ting has been proved in law or fact. In support of his submission, the learned counsel has placed reliance on a judgment of the Bombay High Court in the case of Laxman Ganpati Khot and Ors. v. Anusuyabai and Anr., 1 A.I.R. 1976 Bombay 264. He has pointed that this Court in exercise of revisional jurisdiction under Section 15(5) of the Act could interfere in the findings of facts if such findings are perverse or not possible to be accepted on the basis of the material placed on record. For the aforementioned proposition, the learned counsel has relied upon two judgments of this Court in the cases of Walaiti Ram and Anr. v. Harbans Lal (Died) through his LRs2, (2003-3)135 P.L.R. 323 and Manmohan Sharma v. Smt. Swaran Kaur and Anr., (2003-1)133 P.L.R. 300 The learned counsel has also cited a judgment of the Supreme Court in the case of Resham Singh v. Raghbir Singh4, (1999)7 S.C.C. 263 and submitted that the question of subletting is a question of law and this Court has ample power under Section 15(5) of the Act to satisfy itself about the legality and propriety of the orders passed by the Courts below. 5. The learned counsel has then argued that the sub tenant who is alleged to be in possession of a portion of the demised premises was a necessary party and in his absence, no order of ejectment could be passed. In support of his submission, the learned counsel has placed reliance on a judgment of Delhi High Court in the case of Uttam Singh and Ors. v. Raghubir Singh and Ors.5, (1998-2)119 P.L.R. 12. He has also submitted that in any case mere possession of a portion of the demised premises would not necessarily lead to an inference that there is a subletting warranting ejectment of the tenant-petitioner. For the aforementioned proposition, the learned counsel has placed reliance on the judgments of this Court in the cases of Dharampal v. Vinod Kumar Mathra Wala6, (2000-2)125 P.L.R.685, S. Gurmukh Singh v. Sukhcharanjit Kaur7, (2000-3)126 P.L.R. 304 and Amar Nath v. Guru Ram Dass Textile Mills and Anr., (2001-2)128 P.L.R. 480. For the aforementioned proposition, the learned counsel has placed reliance on the judgments of this Court in the cases of Dharampal v. Vinod Kumar Mathra Wala6, (2000-2)125 P.L.R.685, S. Gurmukh Singh v. Sukhcharanjit Kaur7, (2000-3)126 P.L.R. 304 and Amar Nath v. Guru Ram Dass Textile Mills and Anr., (2001-2)128 P.L.R. 480. 6. Mr. R.C.Setia, learned counsel for the landlady-respondent has argued that once there are concurrent findings of facts recorded by both the Courts then this Court is not to re-open the findings by re-appreciating the entire evidence and to record a conclusion different than the one reached by the Courts below. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Dr. Gyan Parkash v. Som Nath and Ors.9, 1996(1) R.C.R. 342. The learned counsel has then argued that even if the photographs are omitted from the consideration, there is ample evidence on record to sustain the findings that the tenant-petitioner has parted with exclusive posses- sion of a portion of the demised premises and the findings are well founded. 7. After hearing the learned counsel for the parties, I am of the view that the only question which require determination in this case is whether the photographs Marked C and D could be excluded from consideration and, if so, what is the effect on the find- ings. 8. From a perusal of paras 8 and 9 of the judgment of the Appellate Authority coupled with the discussion by the Rent Controller in paras 7 to 12, no doubt is left that there is ample evidence on record showing that partition has been effected between the demised premises which was let out to the tenant-petitioner as one shop and that there are two shutters. The witnesses have also deposed that the board of Popular Cycle Store has been installed on the portion where the small shutter is fixed. These photographs have not been denied when the tenant-petitioner was confronted and he infact admitted that his wife and daughter were visible in the photographs. It was stated by Lakhvinder Singh, PW-3, who is son of the landlady-petitioner, that he got the photographs clicked and the negatives were torn by the tenant-petitioner under threat. These photographs have not been denied when the tenant-petitioner was confronted and he infact admitted that his wife and daughter were visible in the photographs. It was stated by Lakhvinder Singh, PW-3, who is son of the landlady-petitioner, that he got the photographs clicked and the negatives were torn by the tenant-petitioner under threat. In the facts and circumstances, I am inclined to take the view that the photographs Marks C and D have been amply proved by oral evidence of the landlady-respondent as well as by admissions made by the witnesses produced by the tenant-petitioner. The photographer stand substantively authenticated by oral statements. After all the object of calling photographer in the witness box or for insisting on the production of negatives is to ensure that no doctored photographs are passed as genuine one. The absence of negatives and photographer may assume some significance in criminal cases. However, in civil cases that too before tribunal photographs authenticated by oral evidence must be treated as sufficient proof of its geniuses. In such circumstances, both the Courts below have adopted a correct approach by rejecting the argument that no photograph could be proved in the absence of negatives and photographer, and that the judgment of the Bombay High Court in Laxman Ganpati Khot s case (supra) was not applicable. 9. Even otherwise, there is ample evidence on record to prove the exclusive possession of IIIrd person who has been running a cycle repair shop under the name of Popular Cycle Store and even his name has been stated by the tenant-petitioner as Roshan. Even if the photographs are kept out of consideration, the findings of exclusive possession would continue to be infact on account of the evidence on record. Once the land- lady has proved exclusive possession of a third party without her consent of the demised shop, then, it is the duty of the tenant to explain the nature of possession of the third party. In this regard, reliance could be placed on a judgment of the Supreme Court in the case of Rajbir Kaur v. S. Chokesiri and Company10, (1989)1 S.C.C. 19, United Bank of India v. Cooks and Kelvey Properties (P.) Limited11, (1994)5 S.C.C. 9 and Bharat Sales Limited v. L.I.C. of lndia12, (1998)3 S.C.C. 1. In this regard, reliance could be placed on a judgment of the Supreme Court in the case of Rajbir Kaur v. S. Chokesiri and Company10, (1989)1 S.C.C. 19, United Bank of India v. Cooks and Kelvey Properties (P.) Limited11, (1994)5 S.C.C. 9 and Bharat Sales Limited v. L.I.C. of lndia12, (1998)3 S.C.C. 1. If the primary fact of exclusive pos session is proved by the tenant and there is no reasonable explanation tendered by the tenant-petitioner, then by operation of law, it could be assumed that there was some clandestine arrangement between the tenant and the sub tenant with regard to consideration of rent. In this regard, reliance can be placed on a judgment of the Supreme Court in the case of Kola v. Madho Parshad Vaidya13, (1998)6 S.C.C. 573. Therefore, I do not find any legal infirmity in the findings recorded by the Courts below warranting interference of this Court under Section 15(5) of the Act. 10. The argument, that the sub tenant was a necessary party, has to be rejected be- cause more than 50 years ago, the Supreme Court has held in the case of Importers and Manufactures Limited v. Pheroze Framroze Taraporewala14, A.I.R. 1953 S.C. 73 that the sub tenant is merely a proper party and not a necessary party and therefore the ejectment petition in his absence is maintainable. Therefore, absence of a proper party would not result into any damaging effect on the ejectment petition filed by the landlady-respondent. 11. It is well settled that this Court in exercise of revisional jurisdiction under Section 15(5) of the Act is not to interfere with the findings merely because on re-appreciation of evidence, it is inclined to take a view different that the view taken by the Courts below. The judgment of the Supreme Court, cited by the learned counsel for the land lady-respondent in Dr. Gyan Parkashs case (supra), fully support the aforementioned proposition and therefore, the findings have to be affirmed. 12. For the reasons stated above, this petition fails and the same is dismissed. The tenant-petitioner shall handover the vacant possession of the demises premises to the landlady-respondent within a period of three months failing which the landlady-respondent shall be entitled to execute the order of ejectment. Records be returned.