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2005 DIGILAW 862 (PNJ)

Virender Singh v. Mahabir Singh

2005-08-16

AJAY K.MITTAL

body2005
Judgment Ajay Kumar Mittal, J. 1. The tenant-petitioner has filed this revision petition under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as "the Act") assailing order dated 22.2.2005 passed by the Rent Controller and order dated 19.7.2005 passed by the Appellate Authority whereby the eviction of the petitioner from the demised premises has been ordered on the ground of "ceased to occupy". The respondent-landlord filed a petition for eviction of the petitioner-tenant from the demised premised in dispute on the following grounds :- "1. Non-payment of rent from the period 1.11.1997 to 31.8.2000 besides house tax; 2. The demised premises are lying closed since November, 1997; 3. The demised premises are required for personal necessity; 2. The written statement was filed by the tenant controverting the averments made by the landlord. It was pleaded in the written statement that the rate of rent was Rs. 500/- per month including house-tax and the landlord has wrongly claimed the rent at the rate of Rs. 1,000/- per month besides house tax. It had as further been pleaded that the tenant-petitioner had paid rent upto 30.9.2000 at the rate of Rs. 500/- per month including house-tax and that no amount was due. The landlord had not issued any rent receipt to the tenant as there was a relationship of good faith. It had been denied that the demised premises bear No. 8/562 and that no rent note was executed between the parties. It had been denied that the demised premises ever remained closed from November 1997 or for a period of four months which was statutory requirement and it was stated that the tenant had been doing his business from the demised premises. It had further been pleaded that the landlord in collusion with the Electricity Department had got the supply disconnected in the year 1998 with an ulterior motive to dispossess the tenant and that the tenant had already moved an application dated 4.6.2001 for restoration of the electricity supply. It had been denied that the landlord required the demised premises for the use and occupation of his son. 3. On the pleadings of the parties, following issues were framed by the Rent Controller on 8.8.2002 :- "1. It had been denied that the landlord required the demised premises for the use and occupation of his son. 3. On the pleadings of the parties, following issues were framed by the Rent Controller on 8.8.2002 :- "1. Whether the respondent is a statutory tenant under the petitioner on a shop bearing property No. 8/562 situated at Gohana Road and as shown in the site plan `ABCD attached with the petition at a monthly rent of Rs. 1,000/- as alleged ? OPP 2. Whether the respondent is liable to be ejected from the shop in dispute on the ground that the respondent has arrears of rent as alleged in para Nos. 3 F(a), (b), (c), (d) of the petition ? OPP 3. Whether the petitioner has not come with clean hands in the Court, as alleged in para No. 1 of the preliminary objections, as alleged, if so, to what effect ? OPP" 4. Whether the respondent is entitled for repayment of excessive amount of rent, if so to what effect, as alleged in para No. 2 of the preliminary objection ? OPR 5. Relief." Issue No. 2 was re-cast on 4.6.2004 which reads as under :- "2. Whether the respondent is liable to be ejected from the demised premises on the ground as prayed for ? OPP" 4. The Rent Controller found that the ground of non-payment of rend did not survive as the tenant has already deposited the entire arrears of rent at the time of appearing in the Court. The Rent Controller held that the tenant had "ceased to occupy" the premises continuously for much more than four months before filing of the ejectment petition and also that the demised premises were bona fide required for the personal use of the landlord. The order of ejectment was thus passed against the tenant. 5. On appeal by the tenant, the Appellate Authority affirmed the finding of the Rent Controller on the ground of eviction that the tenant has ceased to occupy the demised premises but reversed the finding recorded by the Rent Controller that the landlord requires the premises for personal use. The eviction order was thus maintained on the ground of ceasing to occupy the shop. 6. It is this finding of the Courts below that has been assailed in the present revision petition. 7. The eviction order was thus maintained on the ground of ceasing to occupy the shop. 6. It is this finding of the Courts below that has been assailed in the present revision petition. 7. Counsel for the petitioner contended that the findings recorded by the Courts below are untenable and are not passed on correct reading of evidence and are result of mis-appreciation of eviction on record. Counsel relied upon the judgments reported in M/s. Babu Ram Gopal and others v. Mathra Dass, 1990(2) RCR(Rent) 66 (SC) : 1990 HRR 294, Sh. Amar Nath v. Guru Ramdas Textile Mills and another, 2002(1) RCR(Rent) 595 (P&H) : 2002 HRR 46 and Faquir Chand (deceased) through his LRs v. Faquir Singh and another, 1993 HRR 35, to contend that the demised premises could not be held to have been "ceased to occupy" for four months immediately before the filing of the petition and the authorities have thus wrongly ordered the ejectment of the tenant-petitioner. 8. I have heard counsel for the petitioner and find myself unable to agree with the submissions made by him. 9. Section 13(2)(v) of the Act provides that a landlord can seek eviction of his tenant from the demised premises where the building is situated in a place other than a hill station and the tenant has ceased to occupy the building for a continuous period of four months without any reasonable cause. 10. The initial burden or onus of establishing the ground of ejectment is always upon the landlord by producing cogent material evidence. The landlord has thus to prove by leading positive evidence that the tenant had ceased to occupy the demised premises for a period of at least four months immediately prior to the filing of the ejectment petition. Once it is so established by the landlord, then it is the tenant who is required to prove that he ceased to occupy the demised premises due to some reasonable cause. However, where the tenant denies that he had not ceased to occupy the demised premises for the statutory period as required under the Act then the question of proving the reasonableness does not arise. The present is the case where the tenant had denied that he had not ceased to occupy the demised premises. 11. However, where the tenant denies that he had not ceased to occupy the demised premises for the statutory period as required under the Act then the question of proving the reasonableness does not arise. The present is the case where the tenant had denied that he had not ceased to occupy the demised premises. 11. In the instant case, the petition for eviction was filed on 19.9.2000 and the shop in question remained closed from November, 1997 to December, 2000 and no explanation had been furnished by the tenant for the closure of the shop for such a long period except the tenant pleading that the shop was not closed which is not believable in the light of over-whelming evidence produced by the landlord. The landlord not only established that the tenant could not have conducted his business of selling cloth from the demised premises in the absence of electricity connection he had produced evidence of postman and transporter who have also supported his case. The tenant on the other hand failed to produce any documents in the form of receipts, bills, vouchers etc. concerning his shop in support of his claim that he was doing business from the demised shop during the relevant period. 12. The Rent Controller after appreciating the evidence of the parties while rejecting the contention of the tenant had concluded in paras 19 to 22 as under :- "19. Coming to the second ground of the ejectment i.e. the demised premises remained closed for a period of more than four months, making the respondent liable to be ejected from the demised premises, it is seen from the facts and circumstances of the case that the demised premises indeed remained closed for a period of more than 4 months where there may not be direct and documentary evidence on the point but the circumstantial evidence is so strong that it can be easily inferred and concluded that the shop remained closed not only for more than a period of 4 months but also for a couple of years. The ground of closure in the Rent Act requires only a period of four months which is easily proved in the testimony of Sonu Rathee from the Electricity Department who has appeared as PW-1 and has stated that the electricity connection in the name of the petitioner was not utilized from the month of May, 1998 to July, 1998 considering that the demised premises was lying locked and the Meter Reader could not even take a reading leading to the disconnection of the electricity connection in the month of September, 1998. It is again a matter of record that the respondent applied for the reconnection of the electricity connection under Section 10 of the Rent Act, only in the year 2001 i.e. during the pendency of the present petition and it clearly shows that there was no electricity in the demised premises for nearly a period of three years. As per the case of the respondent he is running cloth business in the demised premises which is a small shop and located at a place where running of cloth business from a dark dingy place is not possible and also highly impracticable. This cogent evidence is supported from the testimony of Birjender Singh PW-2 who is from the Postal Department and has stated to be a Postman in the concerned area for the last 22 years and he knows the parties and also the demised premises of which Mahabir is the owner and Virender is the tenant and has stated in most categorical terms that the shop is lying closed for the last 5-6 years. Daya Band Dalal PW-3 is a retired Forest Officer and has stated to be knowing the parties for the last 20 years where the petitioner is a Veterinary Doctor and he had been taking his cattle for treatment. He has deposed that the petitioner had given the demised premises on rent to the respondent in the year 1990 and both the parties had signed the rent note Ex. P-1 after understanding the contents and implications thereof and is an attesting witness on the rent note Ex. P-1. He has also identified the signatures and stamp of Om Parkash Deed Writer. P-1 after understanding the contents and implications thereof and is an attesting witness on the rent note Ex. P-1. He has also identified the signatures and stamp of Om Parkash Deed Writer. Surender son of Om Parkash has appeared as PW-4 and has stated the respondent to be a tenant in the demises premises for the last 12-13 years and that his occupation is that of a Transporter where the route is Sonepat to Farmana. They have made the bus-stop on the Gohana road in front of the shop from where the passengers mount and dismount. Thus, he has been able to identify the shop in question for a very long time as all the passengers get up and get down from that point. He has stated in a most categorical manner that the shop in question remained closed from November, 1997 to December, 2000 i.e. for at least a period of three years. He has also stated that the Postman and the Meter Reader from Electricity Department used to come and return back considering there was nobody there at the shop for long years. Mahabir the petitioner himself has appeared as PW-5 and had reiterated the pleading in the petition and has described as to how the demised premises remained closed from November, 1997 to December, 2000 i.e. for a period of three years. Vikramjit Singh son of the petitioner has appeared as PW-6 but not stated on the point of closure of the demised premises and has harped upon the point to his unemployment and his dependency on the petitioner. 20. Against this overwhelming evidence on the point that the respondent had ceased to occupy the demised premises for a period of more than four months required by statute, there is only a vague denial by the respondent Virender Singh RW-1 who has stated that he had never closed the shop more than 2-3 days at a stretch and has not been able to describe as to why did he keep quiet for a period of three years to get restored the electricity supply and has not explained as to how he continued to work in the demised premises without the help of electricity when this basic amenity could have been provided to him within a week had he approached the Court of the Rent Controller. In absence of any justification or explanation forthcoming, it can only be presumed that the self-serving statement of RW-1 does not find support from the testimony of Ashok RW-2 who has merely stated that he has been purchasing clothes from the shop of the respondent for the last 10-12 years and is very clearly seen to be evidence of a friend who is trying to support the case of the respondent without any basis or justification. 21. The respondent rallied yet another witness like RW-2 in the form of Om Parkash RW-3 who has also stated to be knowing both the parties and that he has been purchasing clothes from the shop of the respondent and that the respondent is regularly running his shop of clothes since the year 1990. 22. None of the witnesses who have appeared including the respondent himself have been able to explain and justify as regards the factum of there being no electricity supply in the shop and in light of non-explanation as to how the business continued without the electricity supply which very easily could have been restored at the instance of the respondent which becomes very difficult to believe that the shop did not remain closed and in light of the supportive evidence of a Postman and Transporter who have no reason to state falsely on oath, it is seen that the statutory requirement of four months is very easily completed in the present case and it is concluded that the respondent ceased to occupy the demised premises for a period of much more than four months, making it a ground of ejectment of the respondent from the demised premises." 13. The reliance of the counsel for the petitioner on the authorities M/s. Babu Ram Gopal and others, Amar Nath and Faquir Chand (deceased) through his LRss case (supra) is of no assistance to him as the facts of the present case are clearly distinguishable. 14. The concurrent findings of fact recorded are unassailable and have been recorded after appreciating the evidence produced by the parties. No illegality or infirmity could be found in the aforesaid findings of fact recorded by both the Courts below. The High Court in the revisional jurisdiction shall not interfere in the concurrent findings of fact which are based on proper appreciation of evidence on record. Finding no merit in this revision petition, the same is hereby dismissed. No illegality or infirmity could be found in the aforesaid findings of fact recorded by both the Courts below. The High Court in the revisional jurisdiction shall not interfere in the concurrent findings of fact which are based on proper appreciation of evidence on record. Finding no merit in this revision petition, the same is hereby dismissed. Petition dismissed.