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2004 DIGILAW 478 (PNJ)

Harbans Kaur v. Matta Ram

2004-04-27

VINEY MITTAL

body2004
Judgment Viney Mittal, J. 1. Tenants are the petitioners before this Court. They are aggrieved against the order of ejectment dated March 4, 1992 passed by the learned Rent Controller and Order dated April 28, 1994 passed by the learned Appellate Authority, vide which the appeal filed by them was dismissed. 2. The ejectment of the tenant-petitioners was sought by respondent-landlord, Malta Ram, on the grounds that the tenant was in arrears of rent with effect from January 1, 1989; that he had sublet the shop in question without the written consent of the landlord; there was change of user of the shop; and that the tenant had ceased to occupy the shop in question for a period of more than four months prior to the filing of the petition. Originally, Om Parkash, was the tenant in the shop in question. He died on February 12, 1989. He was carrying on the business of radio mechanic in the shop prior to his death. In the statement petition, his widow and children were impleaded as the respondents. It was claimed by the landlord that the shop in question was being used for ready-made garments. 3. The ejectment petition was contested by the legal representatives of the tenant. All the grounds of ejectment were contested. The arrears of rent were tendered on the first date of hearing and, as such, the aforesaid ground, did not survive any further. The learned Rent Controller found that there was no subletting of the shop in question. It was also held that there was no change of user inasmuch as the shop in question had not been let out for any specific purpose. However, the ejectment of the tenants was ordered on the ground that the shop in question had remained closed for a period of more than four months. It was held that the tenant had died on February 12, 1989 and the shop in question had remained closed till July 22, 1989. 4. The tenants took up the matter in appeal before the learned Appellate Authority. The learned Appellate Authority also upheld the findings recorded by the learned Rent Controller that the shop in question had remained closed for a period of more than four months. Accordingly, the appeal filed by the tenants was dismissed. The tenants have now approached this Court through the present petition. 5. The learned Appellate Authority also upheld the findings recorded by the learned Rent Controller that the shop in question had remained closed for a period of more than four months. Accordingly, the appeal filed by the tenants was dismissed. The tenants have now approached this Court through the present petition. 5. I have heard Shri G.S. Jaswal, learned counsel appearing for the tenant-petitioners and Shri Vinod Sharma, learned counsel appearing for the respondent-landlord and with their assistance have also gone through the record of the case. 6. Shri G.S. Jaswal, learned counsel for the petitioners has assailed the findings recorded by the authorities below on the ground that the evidence on the record has been completely misconstrued and misread by the authorities below and, as such, the finding with regard to non-user of the shop in question was completely vitiated. It has further been argued by the learned counsel that the landlord could seek the ejectment of the tenants on the ground of ceased to occupy the premises only, if it was proved that the tenants had ceased to occupy the premises in question for a period of more than 4 months, without sufficient cause. Accordingly, it has been maintained that in a case where the period of four months had not elapsed or where the tenant was able to show sufficient cause for such a non-occupation, the landlord could not seek ejectment. The learned counsel has vehemently submitted that in the present case neither of the facts could be proved by the landlord. 7. On the other hand, Shri Vinod Sharma, learned counsel appearing for the landlord has supported the order passed by the authorities below and it has been contended that a Local Commissioner was appointed by the learned Rent Controller who visited the shop on July 27, 1989 and at that point of time also it was found that the shop in question was lying closed. The learned counsel has argued that the evidence led by the landlord had clearly proved that the shop in question had remained closed and that the tenants had ceased to occupy the same for a period of more than four months. 8. I have duly considered the rival contentions raised by the learned counsel for the parties and have also gone through the record of the case. 9. 8. I have duly considered the rival contentions raised by the learned counsel for the parties and have also gone through the record of the case. 9. It is not in dispute that Om Parkash, original tenant, had died on February 12, 1989. The present ejectment petition was filed on July 20, 1989. A Local Commissioner was appointed by the learned Rent Controller, who visited the shop on July 27, 1989 and reported that the shop was closed at the time of his visit. However, in my considered view, no inference with regard to the shop having remained closed for a period of more than four months can be drawn from the aforesaid report of the Local Commissioner. Landlord, Matta Ram, had himself appeared as AW2. In his statement Matta Ram has stated that the shop in question had remained closed after the death of Om Parkash in February, 1989. It has further been stated by Matta Ram that the shop in question remained closed for about 3/4 months. It has not been stated by the landlord at all in his statement that the shop in question had remained closed for a period of more than four months. Once even the landlord has not stated that the tenants had ceased to occupy the shop for a period of more than four months but had remained satisfied by stating that the shop remained closed for about 3/4 months, then obviously the said ground of ejectment was not available to the landlord. Even otherwise, the circumstances of the case show that the original tenant, Om Parkash, had died on February 12, 1989. The present ejectment petition was filed on July 20, 1989. Obviously after the death of Om Parkash his family would have taken some time to settle and restart some business in the shop, which was earlier being run by Om Parkash. It was, in these circumstances, that his widow Harbans Kaur started running the business of ready-made garments. The landlord himself admitted that the shop remained closed 3/4 months and, thereafter, his widow started running the shop. Accordingly, it is apparent that the landlord has not been able to prove at all that the shop in question had remained closed or that the tenants had ceased to occupy the shop for a period of more than four months without sufficient cause. Accordingly, it is apparent that the landlord has not been able to prove at all that the shop in question had remained closed or that the tenants had ceased to occupy the shop for a period of more than four months without sufficient cause. Obviously, the closure of shop on account of death of Om Parkash was a sufficient cause for his legal representatives. The authorities below have completely ignored the aforesaid fact and, as such, completely fallen into an error of law, when they have not adverted to the requirement of law. Every closure of the shop cannot be treated to be sufficient to provide a ground for ejectment. 10. In view, of the aforesaid discussion, I find that the findings recorded by the authorities below suffer from infirmity and the aforesaid findings are completely vitiated and improper under the facts and circumstances of the case. The said findings are liable to be set aside. 11. Consequently, the present revision petition is allowed and after setting aside the orders passed by the authorities below, the ejectment petition filed by the landlord is dismissed.