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2004 DIGILAW 67 (PNJ)

Shashi Bala v. Ishwar Dayal

2004-01-21

SWATANTER KUMAR

body2004
Judgment Swatanter Kumar, J. 1. As per report of the Registry, the service upon the respondents was complete. Despite service no body appeared on behalf of the respondents on number of previous dates of hearing. Even today, no body was present on behalf of the respondents. Consequently, I direct exparte proceedings be taken against the respondents. In any case, there is no other alternative for this Court, but to proceed with the matter in accordance with law. 2. I have heard the learned counsel for the petitioner at some length. 3. The present petitioner-landlady had filed a petition for eviction against one Ishwar Dayal and another in relation to the tenanted premises, which was rented out to the tenant at a monthly rent of Rs. 150/-. According to the landlady, the premises had been sublet to respondent No. 2. Without the consent of the petitioner, who was also impleaded as a party. It was also stated that the tenants had not occupied the premises under tenancy without any sufficient cause for a continuous period of more than four months. Change of user was also pleaded to be one of the grounds for eviction. 4. Eviction petition was contested by the tenants, who denied that there was any relationship of landlord and tenants between the parties. 5. Upon the pleadings of the parties, the following issues were framed by the learned Rent Controller, Jalandhar:- 1. Whether there exists relationship of tenant and landlord between the parties ? OPA 2. Whether the tender is invalid ? OPA 3. Whether the respondent has ceased to occupy the premises in dispute for a period of more than four months? OPA Additional Issue No. 1. Whether the respondents are liable for ejectment from the premises in dispute on the ground of subletting? OPA Additional Issue No. 2. Whether the petition is bad for non joinder of necessary parties? OPD 6. Except issue No. 1, all other issues were answered against the landlady and the petition for ejectment filed by the petitioner was dismissed, vide judgment and order dated August 19, 1987. 7. The landlady preferred an appeal against the said judgment, which too, was dismissed by the learned Appellate Authority, vide judgment dated, October 01, 1988. 8. Dis-satisfied from the concurrent judgments against her, the landlady has preferred the present petition. 9. 7. The landlady preferred an appeal against the said judgment, which too, was dismissed by the learned Appellate Authority, vide judgment dated, October 01, 1988. 8. Dis-satisfied from the concurrent judgments against her, the landlady has preferred the present petition. 9. The learned counsel for the petitioner, while challenging the impugned judgments, mainly contends that once the issue with regard to relationship of landlord and tenant was answered in favour of the present petitioner, the Courts ought to have passed a decree for ejectment against the respondent on that very ground dehorse the merits or otherwise on other grounds of eviction. For this purpose, the learned counsel has placed reliance on a judgment of the Apex Court in the case reported as Majati Subbarao v. P.V.K. Krishna Rao (Deceased), 1992(2) Rent Law Reporter (S.C.) 422 and a judgment of this Court in the case of Gurbux Singh v. Sardara Singh, 1994(1) Rent Control Reporter 561. 10. I am unable to accept the contention raised on behalf of the petitioner. It is a well settled principle of law that the learned Rent Controller or the learned Appellate Authority has to record to its satisfaction one or more of existence and proof of ground of eviction as specified under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as Act). Ground of eviction can hardly be inferred much less, it would be deemed to be existing by fiction of law. Ground of eviction must be specifically pleaded, evidence led and the decision of the competent authority on that issue before the findings recorded could be interfered by the higher Court. Under the Act, there is no ground available to a landlord to ask for ejectment of the tenant on the ground that he had denied title of the landlady. Pleaded grounds taken up by the landlady were not proved and consequently, issues framed for ejectment of the tenant were answered against the landlady. It cannot be understood under what provision of law, the learned Rent Controller or the learned Appellate Authority could not pass an order of ejectment mainly because the relationship of landlord and tenant was proved to be existing between the parties in terms of its order. Onus of the relevant issues was upon the landlady and it was for her to discharge this onus. Onus of the relevant issues was upon the landlady and it was for her to discharge this onus. Having failed to do so, the landlady cannot be permitted to take any advantage of the factum that finding on issue No. 1 has been recorded in her favour. 11. As far as the judgment of the Apex Court in the case of Majati Subbarao (supra), is concerned, it has no application to the facts and circumstances of the present case. That was a case of acquiescence, where additional ground for ejectment without denial of title of the landlord was claimed within the ambit and scope of the provisions of Andhra Pradesh Buildings (Lease, Rent and Evidence), Control Act, 1960. Their Lordships held that as the ground was added in view of denial by tenant in his written statement, petition was amended, the issue was framed, the parties with complete awareness led evidence and the issue was answered by the Court in favour of the landlord. The tenant could not, in appeal, before the Apex Court, raise the plea that the learned Rent Controller had no jurisdiction to decide the said issue. The principle of acquiescence was applied and their Lordships held that it was not open in the appeal before the Supreme Court for the tenant to say that eviction of appellant could not be based on the ground of denial of title. 12. As far as the judgment of this Court in the case of Gurbux Singh (supra) is concerned, the principle enunciated therein can hardly be disputed, but again, it has no application to the facts and circumstances of the present case. In that case, the Court held that the tenant cannot escape the liability of eviction on the plea of non-registration of the lease deed, if other relevant facts and ground of ejectment were proved by the landlord in the facts and circumstances of the present case. 13. Both the above judgments have no application to the facts and circumstances of the case in hand and the petitioner cannot derive any benefit there-from. 14. In view of my above discussion. I find no merit in this petition. The same is dismissed leaving the parties to beer their own costs.