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2005 DIGILAW 670 (PNJ)

Yash Pal v. Brij Lal

2005-05-31

VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. Tenant, Yashpal, is the petitioner before this Court. He has assailed the order dated April 24, 1986 passed by the learned Appellate Authority, whereby an ejectment order has been passed against him. 2. Landlord, Brij Lal, filed an ejectment petition on January 20, 1978 against the tenant, Yashpal. Ejectment of the tenant was sought on the ground of non-payment of arrears of rent with effect from April 21, 1986 and also on the ground that the tenant had ceased to occupy the premises in question for a period of more than 4 months, without sufficient cause with effect from April 21, 1976. It was pleaded by the landlord that the premises in question had been taken on rent by the tenant with effect from July 21, 1969 at the rate of Rs. 80/- per month and a rent note in this regard was executed on February 21, 1970. 3. The grounds of ejectment were contested by the tenant, in his reply field before the Rent Controller. The arrears of rent along with costs and interest were paid by the tenant on the first date of hearing. The tenant, however, denied that he had ceased to occupy the premises in question as was alleged by the landlord. He claimed that the premises was being used, as usual, by him. The landlord, in his replication, claimed that the aforesaid tender of rent was not legal and valid. 4. During the course of proceedings before the learned Rent Controller, the ground of arrears of rent was not pressed by the landlord. Vide order dated February 27, 1979, learned Rent Controller ordered the ejectment of the tenant. It was held that the tenant had ceased to occupy the premises in question for a period of more than four months and, as such, had made himself liable for ejectment. 5. An appeal was filed by the tenant before the Appellate Authority. In appeal, a grievance was made by him that he had not been given sufficient opportunity to lead evidence. Accordingly, vide order dated April 23, 1982, the Appellate Authority, directed the Rent Controller to provide further opportunity to lead evidence to the tenant and in rebuttal to the landlord and to submit a report to the Appellate Authority, thereafter. 6. Learned Rent Controller, accordingly, provided an opportunity to lead evidence to the landlord. Accordingly, vide order dated April 23, 1982, the Appellate Authority, directed the Rent Controller to provide further opportunity to lead evidence to the tenant and in rebuttal to the landlord and to submit a report to the Appellate Authority, thereafter. 6. Learned Rent Controller, accordingly, provided an opportunity to lead evidence to the landlord. However, no opportunity to lead any further evidence was allowed to the tenant by observing that since there was no issue of which the onus was upon the tenant, therefore, the landlord had no right to lead any evidence in rebuttal. Accordingly, no opportunity was granted to the landlord to produce any further evidence. A report dated September 22, 1984 was submitted by the learned Rent Controller to the Appellate Authority. In proceedings before the Appellate Authority, the landlord made a grievance that he had not been provided any opportunity to lead further evidence to rebut the evidence of the tenant. The matter was subsequently taken to this Court by way of revision petition and this Court remitted the matter to Rent Controller, directing the Rent Controller to permit the landlord to lead evidence and thereafter submit a fresh report to the Appellate Authority. 7. Accordingly, on directions of this Court, the landlord was also permitted to lead further evidence. A report dated January 25, 1986 was submitted by the Rent Controller before the Appellate Authority. In the aforesaid report, it has held that the- tenant had not ceased to occupy the premises, as was alleged by the landlord. The landlord filed objections against the aforesaid report before the Appellate Authority. Reply to the aforesaid objections was also filed by the tenant. After taking into consideration, the entire material available on the record, including the evidence led by the parties, the learned Appellate Authority came to the conclusion that the tenant had indeed ceased to occupy the premises for a period of more than four months and as such had made himself liable for ejectment. Accordingly, vide order dated March 24, 1986, an ejectment order was passed against the tenant. The aforesaid order passed by the learned Appellate Authority has been assailed by the tenant before this Court through the present revision petition. 8. Accordingly, vide order dated March 24, 1986, an ejectment order was passed against the tenant. The aforesaid order passed by the learned Appellate Authority has been assailed by the tenant before this Court through the present revision petition. 8. I have heard Shri J.K. Sibal, learned Senior Counsel appearing for the tenant-petitioner and Shri Akshay Bhan, learned counsel appearing for the landlord-respondent at some length and with their assistance have also gone through the record of the case. 9. Shri J.K. Sibal, learned Senior counsel appearing for the tenant-petitioner has vehemently argued that the order of ejectment passed by the Appellate Authority was wholly based upon conjectures and surmises and the evidence available on the record led by the tenant had not been taken into consideration. According to the learned Senior counsel, the evidence on the record clearly proved that the tenant had, at no point of time, ceased to occupy the premises for a period of more than four months and, as such, his ejectment could not have been ordered. 10. Specific reliance has been placed by the learned senior counsel on the statements of RW4 Charan Dass, Postman, DW5 Amar Singh, Accountant, RW6 Clerk of Income Tax Department, Sham Sunder RW7, RW8 Clerk Sales Tax Department, RW9 Hari Charan, RW10 Tarlochan Singh and RW11 Raj Kumar. The specific document relied upon by the tenant is certified copy of electricity meter reading book Ex.AW7/l. It has also been maintained on behalf of the tenant that he had produced on the record Income Tax Returns, bill books, Accounts Book of M/s Hira Singh and Company and Sales Tax Returns which clearly showed that business was being run regularly in the demised premises. 11. In contrast, Shri Akshay Bhan, learned counsel appearing for the landlord has vehemently argued that the evidence led by the parties, clearly leads to an inference that the tenant had ceased to occupy the premises in question for a period of more than four months. Learned counsel has specifically pointed out to the respective pleas of the parties, in their ejectment petition and the reply thereto as well as the Rent Note Ex.AX. Learned counsel has specifically pointed out to the respective pleas of the parties, in their ejectment petition and the reply thereto as well as the Rent Note Ex.AX. On that basis it has been contended that the Rent Note showed that the premises in question had been taken on rent by the tenant for the purpose of running an office and the plea taken by the tenant in his written statement was also that he was carrying on the business in the shop as usual. On that basis, it has been maintained by the learned counsel that the plea raised by the tenant coupled with the purpose of tenancy as mentioned in the rent note would show that the tenant had taken the premises in question for running an office in the said shop and, therefore, the entire evidence now sought to be produced by him by trying to show that regular business of sale and purchase was being carried out in the demised premises was contrary to the pleadings and, therefore, no reliance could be placed upon the same. Learned counsel has further pointed out that Om Parkash, Meter Reader AW7, has specifically indicated that for a period of 22 months, the premises in question were found locked continuously. An entry in this regard was made by him in the meter reading book. My pointed attention has been drawn, by the learned counsel, to the document Ex.AW7/l which is a certified copy of the meter reading book and which has been duly proved by the aforesaid witness Om Parkash. Besides the aforesaid fact, reliance has been placed upon the statement of AW1 Brij Lal, who is a neighbour living in the adjacent house, AW4 Ramesh Chander, another neighbour, AW 5 Kewal Krishan who also lives opposite the shop in question, AW6 Kamal Netter, working at a distance of about 100 yards from the disputed shop. On the basis of the statements of the aforesaid witnesses and on account of the fact that the meter reader Om Parkash had, in fact, found the shop in question repeatedly locked and also on account of the fact that there was no consumption of electricity during the aforesaid period, learned counsel has argued that the order of ejectment passed by the Appellate Authority was absolutely in conformity with the record of the case. 12. 12. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. 13. Firstly, the landlord has specifically pleaded that the shop in question had been taken on rent by the tenant with effect from July 21, 1969. A rent note dated February 21, 1970, Ex.AX, was executed by the tenant in this regard. A perusal of the aforesaid rent note shows that the shop in question had been taken for running an office by the tenant. Even while appearing as a witness on April 23, 1984, the tenant Yashpal admitted that he used the premises only for office and for no other purpose. However, on an earlier occasion when Yashpal appeared as his own witness, prior to the seeking of report by the Appellate authority, he had taken an inconsistent stand and maintained that he was carrying on business in the premises in question. The aforesaid stand was neither consistent with the stand taken by him in the written statement nor in consonance with the rent note and also discrepant to his subsequent statement before the Rent Controller, dated April 23, 1984. 14. AW1 Brij Lal, the landlord, appeared as his own witness. He specifically stated that the shop in question was lying closed for the past about two years. His statement was recorded on April 28, 1976. In cross-examination, a suggestion was even put to him on behalf of the tenant that the premises in question had been taken on rent for the purpose of office and that the tenant was merely working as a broker. AW3 is Brij Mohan. He lives in a house adjacent to the demised premises. The said witness has stated that the shop in question had remained closed for the last about two years and that he had not seen the same being opened, at all, during that period. He specifically stated that he had not seen any goods being sold or purchased in the shop. Ramesh Chander, AW4, who had a shop at a distance of 3 or 4 shops from the demised premises also made a statement to the similar effect and specifically stated that the shop in question had been kept closed and no business had been transacted for the last 2-1/4 years. Kewal Krishan who lives opposite the aforesaid shop, appeared as AW5 and made a similar statement. Kewal Krishan who lives opposite the aforesaid shop, appeared as AW5 and made a similar statement. Kamal Netter was produced as AW6 by the landlord. He also stated that the shop in question had been lying closed for about two years and that the tenant had started opening the same for the last about three months only. The statement of the aforesaid witness was recorded on September 18, 1978. This witness was not cross-examined by the tenant, inspite of an opportunity being granted to him. 15. The most important evidence is of Om Parkash, Meter Reader, who had appeared as AW7. The said witness was the Meter Reader of the electricity department. He has stated that he had been visiting the shop in question and every time when he visited the shop, the same was found locked. Accordingly, an entry in that regard was made by him in the record. Another important fact which has been stated by the said witness is that on two occasions there were some charges with regard to electricity consumption reflected in the bills but it has been explained by the witness that the aforesaid charges were reflected on the basis of average consumption of electricity, which was being consumed by the tenant on earlier occasion. Thus, the categorical stand taken by the said witness is that for a period of about 22 months, the shop in question was found to be locked and as such, he was not in a position to take the actual meter reading. 16. After the tenant was permitted to lead fresh evidence, he produced Amar Singh RW5. The said witness was a tenant of M/s Hira Singh and Company and proved various bills Ex.RW5/2. Ex.RW5/3 and Ex.RW5/4. Additionally, a copy of account statement of the aforesaid firm was produced at Ex.RW5/l. The said documents merely show that certain purchases had been made by the tenant from the aforesaid firm M/s Hira Singh and Company. However, the said witness and the documents produced by him do not advance the case of the tenant, in any manner. It cannot be inferred from the said documents that any business was being transacted by the tenant in the premises. However, the said witness and the documents produced by him do not advance the case of the tenant, in any manner. It cannot be inferred from the said documents that any business was being transacted by the tenant in the premises. Moreover, if the effort of the tenants is to prove that some business was being transacted in the premises in question, then the same would be contrary to the specific stand taken by the tenant himself when he appeared as his own witness on April 23, 1984, when he stated that the premises in question was being used only for office and for no other purpose. A Clerk of the Income Tax Department was produced as RW6. He merely stated that the Income Tax Returns had been filed by the tenant for the assessment year 1978-79 and that the first return was filed on March 30, 1979. Accordingly, it is apparent that the aforesaid returns were filed by the tenant after the order of ejectment had originally been passed by the Rent Controller. 17. Two bills Ex.RW7/l and Ex.RW7/2 have also been produced by Sham Sunder, RW7. The said two bills also do not show the address of the tenant nor pertain to the period in question i.e. April 1, 1976 onwards. Even the statement of RW8, Clerk of Sales Tax Department, does not advance the case of the tenant at all. The aforesaid statement merely pertains to the year 1978-79 i.e. much after the relevant period involved in the present controversy. RW9 Hari Charan has stated that he had purchased certain napkins from the shop in dispute, from the tenant. When the case of the tenant himself is that no purchase or sale has been carried on in the shop in question, then obviously the statement of Hari Charan can not be accepted. Even RW10 Tarlochan Singh is a procured witness. He has not been able to give any relevant details of the customers and other persons visiting the shop nor the details etc. of the property in question. Similar is the position of RW11 Raj Kumar. He has sought to produce certain bills but it is apparent that in the year 1976 he was a school going child. 18. He has not been able to give any relevant details of the customers and other persons visiting the shop nor the details etc. of the property in question. Similar is the position of RW11 Raj Kumar. He has sought to produce certain bills but it is apparent that in the year 1976 he was a school going child. 18. The aforesaid evidence, thus, leads to an irresistible inference that the shop in question had been kept closed by the tenant, for a period of more than four months after April, 1976. The oral evidence led by the landlord coupled with the statement of Om Parkash, Meter Reader and Ex.AW7/l do point out towards the aforesaid fact. 19. This Court in the case of Dayal Chand V/s. Smt. Chandi, 2004 1 RCR 141 had held that once the landlord had showed that tenant had ceased to occupy the shop as there was no consumption of electricity, then the onus shifted to the tenant to prove that there was business activity in the shop and that he had not ceased to occupy. The following observations made by this Court may be noticed. "I do not find any merit in the only contention of the petitioner, as referred to above. It has specifically been mentioned in paragraph 10 of the judgment passed by learned Appellate Authority that by passing an order of eviction reliance is not being placed only upon the fact that the disputed premises had remained without any electricity for August, September, October and November, 1984 but also upon the statements of PW1, PW2 and PW3. This is not a case where eviction order has been passed on the sole ground that here was no consumption of electricity for a continuous period of our months. THAT apart, to a specific question put to learned counsel representing the petitioners to whether the petitioner led any evidence to show that any business has since been transacted in the premises in dispute, which, concededly is a shop the forthright and candid answer is No. This Court is of the considered view that in the kind of case in hand, the positive evidence could be led only by the tenant. In the other words if the shop had been occupied or the tenant has not ceased to occupy it, he had to led positive evidence to show the contrary. In the other words if the shop had been occupied or the tenant has not ceased to occupy it, he had to led positive evidence to show the contrary. In so far as the landlord is concerned, he cannot show the non-acts of occupancy, and therefore, the burden that is upon the landlord to prove the non-occupancy of premises, is discharged when he leads reliable evidence even though oral, that the tenant had ceased to occupy the shop. I may reiterate here that it is not possible for landlord to lead evidence in negative." 20. To the similar effect is the judgment of this Court in Gurjeet Singh and Ors. V/s. Dr. Harcharan Singh Sidhi and Ors., 2004 2 RCR 543, wherein it was observed, that when no explanation was rendered by the tenant for non consumption of electricity then a presumption was liable to be dawn that the tenant had ceased to occupy. Similar is the law laid down in the case of Nawal Kishore V/s. Smt. Padma Sharma, 2003 2 RCR 345. I the case of Dr. Surat Chander Oberoi V/s. Darshan Singh Sokhi, 2003 1 RCR 722, this Court had held that when the oral evidence led by the landlord showed that the shop in question had remained locked for a period of three years and it was also proved that there was no consumption of electricity for the aforesaid period, then the oral evidence stood duly corroborated and it was liable to be held that the tenant had ceased to occupy the premises for a period more than four months and as such was liable to be ejected. 21. A similar presumption was drawn by me against the tenant in the case of Brij Lal V/s. Harnam Singh, 2003 2 RCR 223. 22. The law laid down in all the above said authorities clearly leads to an unequivocal inference that the tenant had closed the shop in question with effect from April, 1976 and accordingly had ceased to occupy the same for a period of more than 4 months and was, thus, liable to be ejected. 23. At this stage, an argument raised by Shri J.K. Sibal, learned senior counsel for the tenant may also be noticed. Shri Sibal has pointed out that a reading of the meter reading book Ex.AW7/l shows that on some occasions some units of electricity were shown to be consumed. 23. At this stage, an argument raised by Shri J.K. Sibal, learned senior counsel for the tenant may also be noticed. Shri Sibal has pointed out that a reading of the meter reading book Ex.AW7/l shows that on some occasions some units of electricity were shown to be consumed. On that basis, it has been argued that the aforesaid fact would itself completely demolish the case of the landlord. 24. I have given my due consideration to the aforesaid contention but find myself unable to agree with the same. The consumption of certain units of electricity at some points of time reflected in the meter reading book Ex.AW7/l has been duly explained by the Meter Reader, AW7 Om Parkash. It has been categorically stated by the said witness that when on several occasions he went there, the shop in question was found locked and the consumption of electricity on three occasions was shown merely on the basis of the average consumption, i.e., the consumption of electricity which the tenant was using prior to the closer of the shop. In these circumstances, no advantage whatsoever can be taken by the tenant of the aforesaid reflection of charges in the meter reading book. 25. Once the landlord had proved by leading cogent evidence, in the shops of oral evidence as well as the documents that the shop in question had remained closed for a period of more than four months then obviously the onus had shifted upon the tenant. It was for him to have proved that the shop in question had been regularly used by him. The said fact could have been proved by leading cogent evidence. No such evidence has been produced by the tenant so as to enable the court to come to the conclusion that the shop in question was being regularly used by the tenant. Inference, thus, is inevitable. It has to be inferred that the shop in question was closed with effect from April, 1976 and, therefore, the tenant having ceased to occupy the shop for a period of more than four months has made himself liable for ejectment. 26. In view of the aforesaid discussion, I do not find any merit in the present revision petition. The same is accordingly dismissed.