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2006 DIGILAW 3033 (PNJ)

Varun Gupta v. Shree Sanatan Dharam Sabha

2006-07-27

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. The present revision petition has been filed against the order of ejectment passed under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short the Act). The landlord Shree Santan Dharam Sabha, Bhiwani had filed an ejectment petition on the ground of non- payment of rent from 1.10.1989 to 30.6.1992 as also on the ground that the tenant has failed to use the demised premises for the last 5-1/4 years without any reasonable cause and also that the petitioner has caused material damage to the property. The rent petition was contested by the petitioner herein on the ground that the landlord has no cause of action or locus standi to file the present petition. The petition was said to be mala fide and also on the ground that the landlord by its own conduct was estopped from filing the present eviction petition. The authority of Ramesh Mishra to file the present eviction petition was also challenged. 2. On merit, it was contended that the rent of the demised premises was tendered in Court along with interest and allegation of ceased to occupy was denied and it was asserted that the same was being used as a godown by the landlord (tenant ?). The petitioner herein also denied the allegation of impairment of value and utility. On the pleadings of the parties, the following issues were framed :- "1. Whether petition has been filed through duly authorised and competent person ? OPP 2. Whether the respondent has not used the tenanted premises for the last 5- 1/4 years and the same has remained closed for the said period ? If so, to what effect ? OPP 3. Whether the tenanted premises have become unfit for the purposes, for which, it was let out ? If so to what effect ? OPP 4. Whether the petition in the present form is not maintainable ? OPR 5. Whether the respondent is entitled for special costs ? OPR 6. Relief." 3. On issue No. 1, the landlord respondent examined Shri Ramesh Kumar Mishra as AW-1 and produced in the Court, the certificate of registration Ex. A-2 as also the memorandum from Registrar of Firms Ex. A-3 and a copy of resolution dated 2.10.1991 showing that he was authorised to institute and prosecute the litigation on behalf of petitioner Sabha. Relief." 3. On issue No. 1, the landlord respondent examined Shri Ramesh Kumar Mishra as AW-1 and produced in the Court, the certificate of registration Ex. A-2 as also the memorandum from Registrar of Firms Ex. A-3 and a copy of resolution dated 2.10.1991 showing that he was authorised to institute and prosecute the litigation on behalf of petitioner Sabha. The said resolution was exhibited as Ex. A-4 and in view of the documentary and material evidence produced before the Rent Controller, issue No. 1 was decided in its favour. On issue No. 2, the landlord produced Ex. PW-8/A i.e., the application moved by the petitioner-tenant to the Assessing Authority Bhiwani for cancellation of Registration Certificate of his firm. This application was moved on the ground that he had closed his business from 31.3.1989. On the said application, report Ex. PW-8/B was made by the Inspector to the effect that he had visited the spot and found the business was closed. The statement of witness was examined wherein he stated that the shop was lying closed for 3 to 4 years. Cancellation of Registration Certificate dated 12.2.1990 Ex. PW-8/D was also produced. The landlord also examined Shri Shyam Singh Bailiff as Ex. AW-7 who testified that on 4.12.1996, he had gone for execution of warrants issued from the Court of Smt. Bimlesh Tanwar, the then Additional Civil Judge (Senior Division), Siwani at Bhiwani and enquired about Bharat Bhushan and Company, wherein it was intimated that the business by the tenant was closed since long. The report was exhibited as Ex. PW-7/B. As against this documentary and oral evidence, the petitioner tenant examined Ravinder Kumar as RW-3 who stated that his shop was in front of the demised premises and he has seen the tenant running the business from the demised shop for the last 5 years. This statement was recorded on 23.10.1999, thus, he was deposing about the situation from 1994, whereas the present petition was filed on 31.7.1992. Another witness Nand Kishore RW-4 deposed that he was running the business just opposite to the disputed one and stated that he had seen the demised premises open continuously and regularly since 1989. However, in cross- examination, he also admitted that due to ill health, he had closed his shop. 4. Another witness Nand Kishore RW-4 deposed that he was running the business just opposite to the disputed one and stated that he had seen the demised premises open continuously and regularly since 1989. However, in cross- examination, he also admitted that due to ill health, he had closed his shop. 4. The petitioner tenant himself appeared in the witness box as RW-6 and disposed that the shop was being used as a godown. He stated that initially the shop was in the name of Bharat Bhushan and Company and now he was running the business in the name of M/s Amba Ji Traders. However, the account books with regard to period prior to 1995 was not placed on record with the plea that they were lost in the flood. However, he admitted the cancellation of his registration certificate. He had produced Madan Lal as RW-7 who deposed that he worked with the petitioner tenant for a period from 1980 to 1991-92. He claimed that the income of Bharat Bhushan and Company is Rs. 30,000/- to Rs. 40,000/-. However, no income tax return was produced on record. Thus on appreciation of evidence, the learned Rent Controller came to the conclusion that the shop was lying closed. Learned Rent Controller also drew adverse inference against the petitioner tenant for suppressing the material evidence and for said purpose, placed reliance in Shri Gobind Ram Chhabra v. Smt. Panna Devi, 1990(2) Rent Law Reporter 429 and Prem Sagar v. Darbari Lal, 1999(2) Rent Control Reporter 710. The contention of the petitioner-tenant that allegation regarding ceased to occupy mentioned in the petition was vague and therefore, no reliance can be placed on them was rejected by holding that non-mentioning of specific date in pleadings could not be treated to be vague, thus denying the right of ejectment. The contention of the petitioner-tenant that essential ingredients of Clause 5 of Section 13(2) of the Act were not pleaded as it was not mentioned without reasonable cause and also rejected by holding that the pleadings are to be read as a whole and the Courts should not merely took to the form of pleadings. The Court further held that it is for tenant to prove that the closure was for reasonable cause. 5. The Court further held that it is for tenant to prove that the closure was for reasonable cause. 5. The petitioner tenant thereafter had contended that as the earlier petition filed by the landlord-respondent was dismissed as withdrawn, the second petition was not competent. This was also rejected by the learned Rent Controller by holding that ground of cease to occupy is a continuous and recurring cause of action and therefore, fresh petition was competent. It was also held that this objection was beyond the pleadings. It was also the contention of the petitioner-tenant that non-occupation of premises under tenancy must continue till the date of filing of application for eviction. This contention was rejected by holding that evidence available on record shows that the premises was closed in 1989 and thereafter, the premises was open in only in 1992. The Court held that there was no evidence to show that the petitioner was doing any business at the time of filing of the petition. 6. In view of the findings recorded above, issue No. 2 was decided against the petitioner-tenant and ejectment was ordered as other issues were not pressed. The petitioner-tenant filed an appeal. 7. Before the Appellate Authority, the contention raised was that as per the resolution filed by the landlord only authority given to the Secretary was to recover the rent and therefore, it was contended that he was not entitled to file application for ejectment. This contention was rejected by the learned Appellate Authority by interpreting the resolution passed, wherein the authority was given to Shri Ramesh Kumar Mishra. The contention of the petitioner-tenant that the demised premises was not a building was also rejected by making reference to Section 2(a) of the Act. This contention was rejected by the learned Appellate Authority by interpreting the resolution passed, wherein the authority was given to Shri Ramesh Kumar Mishra. The contention of the petitioner-tenant that the demised premises was not a building was also rejected by making reference to Section 2(a) of the Act. The contention of the petitioner that the landlord has failed to satisfy two conditions i.e., `cease to occupy and `without reasonable cause were not proved was also rejected by relying upon a judgment of this Court in Ram Dass v. Devinder, 2004(1) Haryana Rent Reporter 619; Sohinder Singh v. Barinder Singh, 1988(1) Rent Control Reporter 675; Prem Sagar v. Darbari Lal, 1999(2) Rent Control Reporter 710 and Dayal Chand v. Smt. Chandi, 2004(1) RCR(Rent) 141 : 2003 Haryana Rent Reporter 879, wherein it was held that once the landlord proves that the tenant has ceased to occupy the demised premises for required period, then the burden shifts to the tenant to rebut the same. Thus, the learned Appellate Authority came to the conclusion that it is for the landlord to prove that the tenant has ceased to occupy the demised premises for required period and once it is proved then burden shifts to the tenant to prove that it was for sufficient reason. The contention of the petitioner-tenant that the landlord has failed to prove that the closure was without sufficient cause was rejected in view of the law laid down that the onus was on the tenant to prove this fact. The contention that no specific date was mentioned was also rejected keeping in view the fact that premises was not used for 4 to 5 years and therefore, non- mentioning of date was not fulfilled. Finally, learned lower Appellate Court on consideration of respective contentions was pleased to hold as under :- "From the evidence produced by the landlord it has been established that appellant-tenant had closed his premises and had ceased to occupy the same for a considerable period of more than four months. The appellant-tenant could not rebut the documentary evidence produced by the landlord. The appellant himself applied for cancellation of sales tax number stating therein that he had closed his business. The appellant-tenant could not rebut the documentary evidence produced by the landlord. The appellant himself applied for cancellation of sales tax number stating therein that he had closed his business. His version of starting new business in the name of Jai Ambe Traders has not been substantiated by any documentary evidence as no bank accounts, postal receipts or any transaction was brought on record in the name of Jai Ambe Traders even of the period of pendency of the petition. The landlord has thus proved that disputed premises were not occupied by the tenant and further that the tenant had ceased to occupy the demised premises for more than four months and in these circumstances, it is observed that his eviction order was rightly passed by the learned Rent Controller." 8. Mr. C.B. Goel, learned counsel for the petitioner contended that no authority was given for filing of petition for eviction and therefore, the order could not be sustained. However, the reading of the resolution produced before this Court shows that the resolution categorically mentions that legal action be taken for recovery of rent as well as for eviction of M/s. Bharat Bhushan and Company and Vaid Devi Dutt. Therefore, there is no force in the contention. 9. It was next contended by the learned counsel for the petitioner that failure to mention that the tenant has ceased to occupy without sufficient cause was fatal to the case and therefore, the orders passed by the learned Courts below were liable to be set aside. It may be noticed here that this contention has been considered by both the Courts below and they have rightly come to the conclusion that it was tenant to show that the closure was for sufficient cause once it was proved that the tenant has ceased to occupy the building. Even otherwise, this contention cannot be accepted as the petitioner has taken a wrong stand in the Courts below to the effect that he had not closed his business rather was in possession of the premises. In view of this, it is not open to him to allege that it was for the landlord to show that the closure was without sufficient cause. 10. The contentions raised by the counsel for the petitioner therefore, are without any force and they are liable to be rejected. In view of this, it is not open to him to allege that it was for the landlord to show that the closure was without sufficient cause. 10. The contentions raised by the counsel for the petitioner therefore, are without any force and they are liable to be rejected. The Courts below by way of well reasoned judgment had ordered ejectment of the petitioner which does not call for interference in exercising the revisional jurisdiction. The learned counsel for the petitioner however submitted that he may be granted six months time to vacate the premises. Though in the facts and circumstances of the case, this plea does not carry any weight, however, in the interest of justice, it is ordered that the petitioner shall be granted six months time to vacate the premises, however, this shall be subject to the conditions that :- (a) that the petitioner shall pay all the arrears of rent till date and continue paying the rent in advance by 10th of each month during this period; (b) that the petitioner shall file an undertaking in this Court within one month from today undertaking to hand over the vacant possession of the property to the landlord-respondent. In case, any of the conditions is not fulfilled, then it would be open to the respondent-landlord to execute the eviction order. Revision Petition is dismissed with the above observations.