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2005 DIGILAW 152 (PNJ)

Ashwani Kumar v. Sashi Bala

2005-01-28

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is tenants petition filed under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity, the Act) challenging judgment dated 25.11.2004 passed by the Appellate Authority, Karnal reversing the view of the Rent Controller, Karnal expressed in his judgment dated 18.5.2000. The ejectment of the tenant-petitioners has been ordered by the Appellate Authority on two grounds of subletting and of personal necessity. 2. With regard to the ground of subletting, the findings given by the learned Rent Controller have been reversed by the Appellate Authority by believing three reports of the Process Servers i.e. Exs. P-2, P-4 and P-8 which were produced by the landlord-respondents. The Rent Controller had discarded those reports on the following grounds:- (a) The report Ex.P-2 dated 17.7.1998 was discarded by observing that Process Server had not seen the tenant-petitioner Ashwani Kumar earlier nor he got him identified. The address on which the tenant-petitioner was to be served was not given on the case file nor summons Ex.P-1 was issued on that address of Delhi. (b) The report Ex.P-4 dated 2.6.1998 was rejected merely on the ground that Mahesh Kumar and Amit Sharma were not examined by the landlord-respondent because these two persons were quoted by the Process Server Sanjiv Kumar PW-2 in his report, They have told the Process Server that the tenant-petitioner was residing at Delhi. (c) The report Ex.P8 dated 26.7.1998 has been made on summons sent to Karnal. On this report PW-3 Ayuodhya Kumar, Process Server has reported that he came to know from adjoining shop-keepers that the tenant-petitioner had shifted to Delhi. The Process Server did not know the name of the shop-keepers nor he mentioned his name in the report Ex.P8. For those reasons report Ex.P8 was also discarded. 3. The Appellate Authority did not agree with any of the reasons recorded by the Rent Controller for discarding three reports Exs.P-2, P-4 and P-8. Repelling the reasons at (a) above in respect of the report Ex.P-2 dated 17.7.1998, the Appellate Authority in para 36 of this judgment observed as under:- "......In this regard it may be mentioned here that Ashwani Kumar himself when had appeared in the witness box as RW-1 in his cross-examination has categorically admitted that he had received summons of the present case at Delhi. So, finding of learned Rent Controller that service was not effected on the proper person is altogether not sustainable. This finding of learned Rent Controller to the effect that the address on which Ashwani Kumar respondent was served through Ex.P-1 vide report Ex.P-2 was not given on the case file nor the summons were issued on the said address, in this regard it is pointed out that the address on the summons Ex.P-1 has been given that of Delhi and when respondent Ashwani was not found there he was later on served at the proper address where he was residing and due to admission of Ashwani Kumar in his cross-examination, above finding of learned Rent Controller carries no weight," In respect of reasons given at (b) above with regard to Ex.P-4 dated 2.6.1998 the Appellate Authority did not find any lawful and compelling reasons impelling the landlord-respondent to examine Mahesh Kumar and Amit Sharma who were quoted by the Process Server and who stated before him that ten ant-petitioner Ashwani Kumar was residing at Delhi. In para 37 of its judgment, the Appellate Authority has rejected the view of the Rent Controller which reads as under:- ".......in this regard it is mentioned here that Process Server in his report Ex.P4 has categorically stated that he had effected service on Vijay Kumar sub tenant (respondent No. 2) brother of Ashwani Kumar on the given address and in respect of Ashwani Kumar after making enquiry he came to know that he was residing at Delhi. Moreover, Mahesh Kumar and Amit Sharma have also authenticated this fact that Ashwani Kumar was residing at Delhi for many years. So finding of learned Rent Controller that Process Server had not made any enquiry carries no weight. There was no necessity to examine the witnesses of report Ex.P4 by the landlords. The Process Server had acted in the discharge of his official duties and his report cannot be disbelieved that it was not authenticated by the aforesaid two persons. If the tenant and sub tenant (respondent) had any grudge against those persons, they could summons those persons in their evidence. ..." The Appellate Authority also did not approve the reasons at (c) above recorded by the Rent Controller for discarding the report Ex.P8 dated 26.7.1998. If the tenant and sub tenant (respondent) had any grudge against those persons, they could summons those persons in their evidence. ..." The Appellate Authority also did not approve the reasons at (c) above recorded by the Rent Controller for discarding the report Ex.P8 dated 26.7.1998. Referring to the consistency of reports, the Appellate Authority rejected those reasons in para 37 of its judgment by observing as under:- ".....Similarly report Ex.P8 of PW3 Ayodhya Kumar, Process Server, on the summons Ex.P7 issued for 26.7.1996 reveals that Ashwani Kumar had left the demised premises and had settled at Delhi. It may be mentioned here that report Ex.P6 is dated 30.4.1996 on summons Ex.P7 and later on report Ex.P4 is dated 2.6.1998 on summons Ex.P3. So on both these reports consistently it has come that Ashwani Kumar had left for Delhi and later on service of Ashwani Kumar was effected at Delhi as per report Ex.P2. So, this clearly established that Ashwani Kumar was not residing at Karnal and was residing at Delhi....." 4. The aforementioned inference has further been supported by the cross-examination of tenant-petitioner Ashwani Kumar when he failed to disclose the details of goods which he was selling at the demised shop. No bill book showing the sale of the goods was produced by him and he was unable to show from where he was purchasing the goods which he was to sell at the demised shop, He was not aware about the name of Municipal Councilor of his ward at Kamal nor he could place on record even a copy of his ration card. On the aforementioned basis, the Appellate Authority concluded that the tenant-petitioner has parted with the possession of the demised shop. A finding has been recorded with regard to parting of possession. 5. The ground of personal necessity asserted by the landlord-respondents was also repelled by the Rent Controller. The reasons given by the Rent Controller are that the pleadings of the landlord-respondent are vague with regard to nature of business and they had failed to prove their means of well as capability to do such business. 5. The ground of personal necessity asserted by the landlord-respondents was also repelled by the Rent Controller. The reasons given by the Rent Controller are that the pleadings of the landlord-respondent are vague with regard to nature of business and they had failed to prove their means of well as capability to do such business. According to the Rent Controller, there is only a bald statement of Remli Bai PW-5 on record: The Appellate Authority rejected the reasoning of the Rent Controller by placing reliance on a judgment of this Court in the case of Balwant Singh Chaudhary v. Hindustan Petroleum Corporation Ltd Co., 1 (2004-2)137 P.L.R. 198 which lays down that there was no requirement of law to plead and prove the specific business which a landlord wishes to set up and observed as under:- ".....PW5 Smt. Remli Bai when had appeared in the witness box has categorically stated that the demised premises is required by her for running the business because they are having no source of income. There are pleadings of the landlords in this regard also and specific issue has been framed in this regard. There was no necessity of pleadings and giving evidence to the effect that what business the landlords intended to do in the demised premises. To support this view, reliance can be placed on the latest case of Balwant Singh Chaudhary (supra) wherein it has been held by Hon ble Punjab and Haryana High Court that it is not necessary for the landlord to plead and prove the specific business which he wants to set up in non-residential premises in respect of which eviction is sought. It may also be mentioned here that Smt. Remli Bai is widow and even during pendency of the petition Darshan Kumar died and the present petition is being pursued by his legal heirs including widow of Darshan Kumar and it has beep specifically pleaded by PW5 Smt. Remli Bai that she has no source of income and therefore she requires the demised premises for personal necessity. In these circumstances, bonafide requirement of the landlords is duly proved as they have no source of income and. they can easily run some business at the spot. What business they intended to do was not at all required to be pleaded and proved in view of Balwant Singh Chaudharys case (supra). In these circumstances, bonafide requirement of the landlords is duly proved as they have no source of income and. they can easily run some business at the spot. What business they intended to do was not at all required to be pleaded and proved in view of Balwant Singh Chaudharys case (supra). So, the above findings pf learned Rent Controller are not sustainable at all," 6. Rejecting the contention that the landlord-respondents have another shop rented to another tenant and no proceedings were initiated against the other tenant, the learned Appellate Authority held that the availability of another shop which is rented cannot constitute a valid ground to reject the claim of the landlord-respondents. In this regard reliance has been rightly placed on the view taken by the Supreme Court in Akhileshwar Kumar and Ors. v. Mustaqim and Ors., 2 A.J.R. 2003 S.C. 532. 7. Mr. R.M. Singh, learned counsel for the tenant-petitioners has argued that the well reasoned findings recorded, by the Rent Controller on the issue of parting of possession have been illegally reversed. The reports of the Process Servers, Exs.P2, P4 and P8 do not deserve to be accepted because the Rent Controller had recorded sustainable reasons for discarding those reports. According to the learned counsel the landlord-respondents have failed to discharge the initial onus of showing parting of possession by tenant petitioner Ashwani Kumar in favour of his brother Vijay Kumar, sub-tenant petitioner No. 2. No consideration has been proved. The learned counsel has maintained that the tenant-petitioners were not required to, adduce negative evidence to disprove the fact of subletting. 8. With regard to the findings on the ground of personal necessity recorded by the Appellate Authority, the learned counsel has argued that in the absence of any pleadings disclosing the proposed business likely to be started by the landlord-respondents, no ejectment of the, tenant-petitioners could have been ordered because neither their capability nor their competence to do such a business could he gauged by the tenant-petitioners. On that score also, the learned counsel has pointed out that the findings recorded by the Rent Controller deserve to be restored as there was only bald statement made by PW-5 Smt. Remli Bai. 9. After hearing the learned counsel at a considerable length. I am of the view that there is no merit in the instant petition. On that score also, the learned counsel has pointed out that the findings recorded by the Rent Controller deserve to be restored as there was only bald statement made by PW-5 Smt. Remli Bai. 9. After hearing the learned counsel at a considerable length. I am of the view that there is no merit in the instant petition. The reports pf the Process Servers have been accepted by the Appellate Authority by meeting all the reasons given by the Rent Controller for discarding those reports, For example, report Ex.P2 dated, 17.7.1998 was dig-carded by the Rent Controller for two reasons, namely, that the Process Server had not seen the tenant-petitioner Ashwani Kumar earlier nor he got him identified. Secondly, the address op which the tenant-petitioner was to be served was not recorded at the case file nor summons Ex.P1 was issued on that address pf Delhi. The Appellate Authority has disagreed with the Rent Controller by recording good reasons. The foremost reason given is that Ashwani Kumar tenant-petitioner himself admitted in his cross-examination that he received the summons of the ejectment petition at Delhi. It has further been clarified that the address, of Delhi on the summons Ex. P1 was given. It is a different matter that Ashwani Kumar tenant petitioner was later on served on the proper address where he was residing. The question of getting Ashwani Kumar tenant-respondent identified would pale into insignificance, when he himself has accepted to have received the summons at Delhi. The Appellate Authority has also found it factually incorrect that address, of Delhi on the summons Ex.P1 has not been recorded, Similarly, the report Ex.P4 has been accepted in evidence by ignoring the reasons given by the Rent Controller who suggested that two persons named by the Process, Server were required to be examined in evidence by the landlord-respondents as those, two persons (Mahesh Kumar and Amit Sharma) had told the Process Server that Ashwani Kumar tenant-petitioner had been residing at Delhi. The Appellate Authority has opined that there was no necessity to examine those two persons and in case of doubt the, tenant-petitioner himself could have examined them. The necessity of not requiring those, two persons to appear for examining in the court had been mitigated on account of admission made by the tenant-petitioner himself. Similar is the position with regard to accepting the report Ex.P-8. The necessity of not requiring those, two persons to appear for examining in the court had been mitigated on account of admission made by the tenant-petitioner himself. Similar is the position with regard to accepting the report Ex.P-8. Therefore, I do not find any illegality or extra ordinary feature in the approach adopted by the Appellate Authority in accepting the three reports Exs.P-2, P-4 and P-8. In addition, there is ample evidence corroborating the inference, suggested by the three reports, The tenant-petitioner Ashwani Kumar has failed to prove on record any bill book issued to any customer in respect of the utensils sold by him. He has in fact shown complete ignorance about the sale of utensils in the demised shop. He also failed to reveal the name of the firm from where he purchased goods for further sale at the demised shop and to whom he had sold. He was not able to name the Municipal Councillor of his ward, On the basis of aforementioned evidence, the Appellate Authority concluded that the demised shop was given on rent to tenan-petitioner Ashwani Kumar vide rent note dated 7.4.1984. Sub-tenant - petitioner No. 2 Vijay Kumar has got nothing to do with the business initially as the business was not joint nor it belonged to the family. The parting of possession by tenant petitioner Ashwani Kumar to his brother sub-tenant - petitioner No. 2 Vijay Kumar has been proved. Once the parting of possession exclusively has been proved, then the law permits raising of an inference with regard to consideration because such transactions concerning sub-letting in the guise of license are in their very nature clandestine arrangements between the tenant and the sub-tenant. There cannot be direct evidence. In this regard reference may be made to the judgments of the Supreme Court in the cases of Rajbir Kaur v. S. Chokesiri and Co., 3 A.I.R. 1988 S.C. 1845 : (1989)1 S.C.C, 19 ; Nihal Chand Rmeshwar Dass v. Vinod Rastogi, 4 (1994)4 S.C.C. 325 and Bharat Sale Ltd. v. L.I.C. of India, 5 A.I.R. 1998 8.C. 1240 : (1998)3 S.C.C. 1. 10. Similarly, on the question of personal necessity, the Appellate Authority has rightly come to the conclusion by referring to the statement of Smt. Remli Bai PW-5 who had stated that the demised premises is required by her for opening a business as they were having no source of income. 10. Similarly, on the question of personal necessity, the Appellate Authority has rightly come to the conclusion by referring to the statement of Smt. Remli Bai PW-5 who had stated that the demised premises is required by her for opening a business as they were having no source of income. There are specific pleadings in this regard and a specific issue has been framed. The nature pf the business and the capacity to do the same was not required to be disclosed in the pleadings, as has been held by this Court in Balwant Singh Chaudharys me (supra). The bona fide requirement of the landlord has been duly proved, Therefore, no exception can be taken to the findings recorded by the learned Appellate. Authority. 11. I am further of the view that the Revisignal jurisdiction of this Court under Section 15(6) of the Act cannot be invoked for reversal of findings of facts. The only touchstone for testing the findings of fact postulated by Section 15(6) of the Act is whether the findings are legal or proper. Once the Court is satisfied with the legality or propriety of an order pf ejectment passed by the Rent Controller or the proceedings before him, then no interference is called for. In this regard reliance can be placed on the judgments of the Supreme. Court in the cases of Atma S. Berar v. Mukhtiar Singh, 6 (2003-1)133 P.L.R. 371 (S.C.): Ram Dass v. Davinder,7 (2002)3 S.C.C. 684 and Mohd Shahnawaz Akhtar v. Ist A.D.J., Varanasi,8 (2002)9 S.C.C. 375. 12. The next argument of the learned counsel is that the landlord-respondents have not discharged the initial onus of proof showing that tenant-petitioner Ashwani Kumar handed over possession of the demised shop to sub-tenant - petitioner No. 2. The argument on the first blush looks to be attractive, but on closer examination lacks complete substance, Three reports of the Process Servere Exs.P-2, P-4 and P-8 dated 17.7.1998 2.6.1998 and 16.7.1998 respectively have been proved by the landlord-respondents showing that tenant-petitioner Ashwani Kumar was served at Delhi and that the summons issued at his Karnal address have come back with the endorsement that he had shifted to Delhi. It cannot be said that the landlord-respodents, did not discharge the initial burden of proof showing that tenant-petitioner Ashwani Kumar has handed over exclusive possession of the demised shop to sub-tenant - petitioner No. 2. It cannot be said that the landlord-respodents, did not discharge the initial burden of proof showing that tenant-petitioner Ashwani Kumar has handed over exclusive possession of the demised shop to sub-tenant - petitioner No. 2. Once tenant-petitioner Ashwani Kumar is shown to be residing at Delhi, then the burden shifted on him to explain by adducing positive evident that he was continuing his business at Karnal in this regard reliance could be placed on a judgment of the Supreme Court in the case of Bala Shankar Maha shanker Bhattjee and other v. Charity Commissioner, Gujarat State,9 1995 Supp.(1) S.C.C. 485. Once the Whole evidence is before the Court, then the question of discharging burden becomes academic. The following observations of the Supreme Court in this respect may be quoted with advantage:- ",,,.,.Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. The one or the other of the contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if he failed to discharge the same, Where, however, parties joined the issue, led evidence, such evidence can be weighed in order to determine the issue; The question of burden becomes academic." 13. For the reasons stated above, this appeal foils and the same is dismissed.