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2005 DIGILAW 1063 (PNJ)

Ashok Kumar v. Balraj Kaushal

2005-10-04

AJAY K.MITTAL

body2005
Judgment Ajay Kumar Mittal, J. 1. This revision petition filed by the unsucessful tenant challenges order of ejectment passed by the Rent Controller on 27-11-2001 which has been affirmed on appeal by the Appellate Authority vide judgment dated 11.12.2002 whereby the tenant has been ordered to be evicted on the ground of sub-letting. 2. The facts leading to the filing of this revision petition are that Piara Singh son of Gurbachan Singh, resident of Adarsh Nagar, Hoshiarpur was the owner of the demised shop. The tenant-petitioner took the disputed shop on a monthly rent of Rs. 60/- and executed a rent note dated 4.3.1986 in favour of the landlord Piara Singh. The demised shop was sold to respondent No. 1 - Balraj Kaushal on 11.11.1999 for a sale consideration of Rs. 1,65,000/- vide registered sale deed and the original rent note was also given to the landlord-respondent No. 1. The landlord-respondent No. 1 filed ejectment petition against the tenant-petitioners on account of non-payment of rent and that the shop in dispute had been sublet to respondents Nos. 2 and 3 therein who were doing their business at the shop. 3. Respondents Nos. 3 and 4 in their separate written statements took various objections and averred that originally one Parkash son of Jaisi Ram father of respondent No. 1 was running a barber shop as tenant in the demised shop and the respondents who are the sons were assisting him in his business. It was further alleged that the respondents have been doing the business of barber in the disputed shop with their father as they were joint in mess and residence with him and constituted a joint Hindu family. Similar written statement was filed by tenant Ashok Kumar. Respondent No. 2 did not appear and was proceeded against ex parte. In the separate replications, the landlord controverted the averments of the tenant made in the written statement. On the pleadings of the parties the Rent Controller framed the following issues : "1. Whether the respondent No. 1 is in arrears of rent ? OPA. 2. Whether the respondent No. 1 has sublet the premises in dispute to the respondents Nos. 2 to 4 ? OPA. 3. Whether the application is bad for non-joinder and mis-joinder of necessary parties ? OPR. 4. Whether the site plan filed by the applicant is incorrect ? If so, its effect ? OPR. 5. OPA. 2. Whether the respondent No. 1 has sublet the premises in dispute to the respondents Nos. 2 to 4 ? OPA. 3. Whether the application is bad for non-joinder and mis-joinder of necessary parties ? OPR. 4. Whether the site plan filed by the applicant is incorrect ? If so, its effect ? OPR. 5. Whether the applicant has no locus standi to file the present applicant ? OPR. 6. Whether the applicant is estopped by his act and conduct from filing the application ? OPR. 7. Relief." 4. In view of findings on issues Nos. 2 to 6, the ejectment petition was allowed and the tenant-respondents were directed to be evicted on the ground of sub-letting. The appeal filed by them before the Appellate Authority having been failed, they have approached this Court by way of present revision petition. 5. Learned counsel for the petitioner submitted that the finding recorded by the Courts below on issue No. 2 is perverse and against the record. He argued that the demised premises had never been sublet by the tenant - Ashok Kumar to his sons, present petitioners Nos. 2 and 3 as he had never transferred the exclusive possession to them. It was further submitted that tenant - Ashok Kumar had been living as a joint family in an ancestral house and have a common mess and ration card with petitioners Nos. 2 and 3. According to the learned counsel, the law in Rajinder Parshad and another v. Parveen Kumar, 1992(2) RCR 150 (P&H), Mangat Raz Gupta v. Basheshar Nath, 1999(2) RCR 302 (P&H) and Rajendra Kumar v. P.V. Krishnam Raju, 2004(1) RCR 572 (A.P.), clearly pronounced that there cannot be said to be any sub-letting where the father and son were living in same house and having joint mess and allowed his son to run the business after joining the service. It was further argued that Ashok Kumar is still in legal possession of the demised premises and exercised control over his sons being `Karta of his joint family and moreover, the sons are living with him as a joint family in an ancestral house and have a common mess and a ration card. The petitioners had been jointly working as barbers in the shop in dispute and continue to do so as joint family business. 6. The petitioners had been jointly working as barbers in the shop in dispute and continue to do so as joint family business. 6. Learned counsel for respondent No. 1 strongly opposed the arguments of the petitioners and supported the orders passed by the courts below. He submitted that both the courts on appreciation of evidence have concurrently recorded a finding of fact that the demised premises have been sublet by tenant Ashok Kumar in favour of his sons petitioners Nos. 2 and 3 and this Court in revisional jurisdiction shall not interfere in the said findings of fact. He relied upon decisions of this Court in cases reported in Kishan Chand v. Banarsi Dass and others, 1989(2) RCR 676, Charan Singh and another v. Pat Ram, 1991(1) RCR 504 and Ravi Parkash v. Dewan Chand, 1999(1) RCR 148 to contend that where the father was the original lessee and he had given the demised premises to his son, it was held to be subletting. He further submitted that the judgments relied upon by the learned counsel for the petitioners are not attracted to the facts of the present case as in all those cases, the landlord had failed to establish parting of possession for valuable consideration and exclusive possession of son and joint Hindu family was accepted as a fact between the father and son whereas in the present case the finding has been recorded by both the courts below that the exclusive possession is that of his sons. 7. I have heard the learned counsel for the parties and with their assistance have perused the record. 8. I find considerable force in the submissions of the learned counsel for Respondent No. 1. The Rent Controller after appreciating the evidence on record came to the conclusion that subletting stands proved by tenant Ashok Kumar in favor of his sons petitioners Nos. 2 and 3. The findings recorded by the Rent Controller in paras 17 and 18 are material and are reproduced as under : "In the present case, the court is to come to the conclusion as to whether the respondents Nos. 3 and 4 are doing the business in the shop in question independently or they are doing business under the supervision of respondent No. 1. Respondent himself has appeared in this case as RW2. 3 and 4 are doing the business in the shop in question independently or they are doing business under the supervision of respondent No. 1. Respondent himself has appeared in this case as RW2. He has admitted in his cross-examination that he never worked in the shop in dispute after getting his job. On the one hand, the respondent is saying that after joining the police department, he never went to the shop in question but on the other hand, he is claiming that he has been supervising the work of respondents Nos. 3 and 4 after office hours after 5 PM. The respondent has not taken this plea in the pleadings that after his office hours, he has been duly visiting the shop in question and he has been supervising the business of respondents Nos. 3 and 4, who are his real sons. The actual tenant is respondent No. 1 and the rent note is in favour of respondent No. 1. He has stated that he used to pay rent in his own name. During his cross-examination, he has stated that he did not know if the rent from April, 1997 was due towards him. If the respondent was visiting the spot daily for supervising the business of respondents Nos. 3 and 4, then he must know that he was in arrears of rent since April, 1997. He could not produce any rent receipt in the names of respondents Nos. 3 and 4. During his cross-examination, the respondent while appearing as RW2 could not tell daily income of respondents Nos. 3 and 4 from the business done in the demised premises. If respondent No. 1 has been supervising the business of respondents Nos. 3 and 4 daily, then he must know the daily income of respondents Nos. 3 and 4 from the business run by them in the shop in question. RW3 Varinder Kumar has admitted in his cross-examination that Ashok Kumar was permanent employee of Punjab Government and he did not work in the disputed shop, after his appointment in the police department, meaning thereby that shop in question was in exclusive possession of respondents Nos. 3 and 4 who were admittedly running the business in the same. RW3 Varinder Kumar is own witness of the respondent and he has stated that at present respondents Nos. 3 and 4 who were admittedly running the business in the same. RW3 Varinder Kumar is own witness of the respondent and he has stated that at present respondents Nos. 3 and 4 were running the business in the demised premises exclusively and respondent No. 2 is running a different shop at Krishna Nagar. RW4 Karam Singh again own witness of the respondent has stated that respondents Nos. 3 and 4 are running the barber shop in the shop in dispute and no other person except respondents Nos. 3 and 4 was running the business in the shop in question. So, from the cross-examination of RW4 Karam Singh, it is again clear that respondents Nos. 3 and 4 are in exclusive possession of the shop in question and they are running the barber business in the same independently and exclusively without any supervision and assistance of respondent No. 1. RW4 has not denied this suggestion that respondent No. 1 has sublet the demised premises to respondents Nos. 3 and 4, rather he has stated that he did not know about the subletting. It is settled law that first the fact is to be pleaded in the pleadings, then the evidence is led to prove that fact and finally that fact can be read into arguments. It has no where been pleaded that he has been supervising the business of respondents Nos. 3 and 4 after office hours and now no evidence can be led by the respondents in order to prove this fact on the file, rather the evidence led in order to prove this fact on the file is beyond pleadings and the same cannot be considered by the court. The respondent No. 1 is permanent employee in the police department and as per service rules, he cannot run the shop along with his job. During the enquiry which was initiated against the respondent, the statement of respondent Ex.A1, was recorded in which he has stated that he is not running the shop in question, rather the respondents Nos. 3 and 4 and his younger brother were running the shop in question. In the report Ex.A.2, it was observed by the Enquiry Officer that respondent No. 1 was not running the shop in question, rather respondents Nos. 3 and 4 sons of respondent No. 1 were running the barber shop in the shop in question. 3 and 4 and his younger brother were running the shop in question. In the report Ex.A.2, it was observed by the Enquiry Officer that respondent No. 1 was not running the shop in question, rather respondents Nos. 3 and 4 sons of respondent No. 1 were running the barber shop in the shop in question. The enquiry report and the statement of the respondent goes in favour of the plea of the applicant that respondent No. 1 has sublet the demised premises to respondents Nos. 3 and 4. 18. After going through the statements of the parties and other documents placed on the file, this court is of the considered view that respondents Nos. 3 and 4 are running the business of barber in the shop in question exclusively, independently of their own and they are in exclusive possession of the shop in question. Respondent No. 1 is permanent employee in the police department and he cannot run parellel business in the shop in question nor he is running the business in the shop in question through respondents Nos. 3 and 4 as claimed by him, rather respondents Nos. 3 and 4 are in exclusive, independently possession of the shop in question. The authority 2000(1) Rent Law Reporter 656 (supra) is not applicable to the facts of the present case because in that case it was proved that tenant was constituting a joint family with his sons and tenant was having control over the disputed shop but in the present case, respondent No. 1 is permanent employee in police department and he has no control over the shop in question, rather respondents Nos. 3 and 4 are running the shop in question independently, exclusively without any assistance or supervision of respondent No 1. The authority 1998 HRR 653 (supra) is also not applicable to the facts of the present case because in the present case, it is proved on file that respondents Nos. 3 and 4 are in exclusive, actual, physical possession of the shop in question and respondent No. 1 is having no control over the business or the shop in question. Even witnesses examined by the respondents have stated that respondents Nos. 3 and 4 were running the shop in question exclusively and independently on their own. 3 and 4 are in exclusive, actual, physical possession of the shop in question and respondent No. 1 is having no control over the business or the shop in question. Even witnesses examined by the respondents have stated that respondents Nos. 3 and 4 were running the shop in question exclusively and independently on their own. The authority 1985(2) PLR 194 (supra) relied upon by the learned counsel for the respondents is also not applicable to the facts of the present case because in the present case, it has been proved on the file that respondent No. 1 is not in occupation of the shop in question, rather the respondent has himself admitted in his cross-examination that since his joining the police department, he has never gone to the shop in question and so is the stand of witnesses examined by the respondent. So, in the present case exclusive and independent possession of respondents Nos. 3 and 4 over the shop in question is fully proved on the file. The authority relied upon by the learned counsel for the respondents 1985 HRR 646 (supra) is also having different facts from the present case. In the present case, it has been proved on file that respondents Nos. 3 and 4 are running barber business in the shop in question on their independently and respondent No. 1 is a permanent employee in police department and as per service rules he cannot run parallel business. So subletting in the present case is fully proved on the file from the oral as well as documentary evidence. The 1999(2) Rent Law Reporter 712 (supra) is also not applicable to the facts of the present case because in the present case it has been proved on file that respondents Nos. 3 and 4 are in actual, physical exclusive possession of the shop in question and he is not running the business in the shop in question through respondents Nos. 3 and 4 as claimed by him, rather the witnesses examined by the respondents have stated that respondents Nos. 3 and 4 were in exclusive possession of the shop in question. The authority relied upon by the petitioner 1991(1) Rent Control Reporter 504 (supra) is fully applicable to the facts of the present case because in the present case, it is proved on file that respondents Nos. 3 and 4 were in exclusive possession of the shop in question. The authority relied upon by the petitioner 1991(1) Rent Control Reporter 504 (supra) is fully applicable to the facts of the present case because in the present case, it is proved on file that respondents Nos. 3 and 4 sons of respondent No. 1 are in exclusive possession of the shop in question. Both of them are running independent business of barber in the shop in question which is in their exclusive possession and respondent No. 1 is not running any business joint with them, rather he is permanent employee in police department, so subletting of demised premises of respondent No. 1 through respondents Nos. 3 and 4 stands fully established on the file and it is proved on the file that respondent No. 1 has sublet the demised premises to respondents Nos. 3 and 4 who are running the business in the shop in question independently and exclusively, without any assistance or supervision of respondent No. 1. Respondent No. 1 has no control over the shop in question, nor he is in possession of the same. Accordingly, issue No. 2 is decided in favour of the applicant and against the respondents." 9. The said findings have been affirmed on appeal in paras Nos. 14 and 15 by the Appellate Authority. 10. In view of above findings recorded by both the Courts below, the case law relied upon by the petitioners is of no assistance to them as these cases are distinguishable and are not applicable to the facts of the present case. 11. Finding merit in this revision petition, the same is accordingly dismissed.