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2006 DIGILAW 3096 (PNJ)

Sandeep Rathi v. Joga Singh Pal

2006-08-02

HEMANT GUPTA

body2006
Judgment Hemant Gupta, J. 1. The challenge in the present revision petition is to the order of ejectment passed by the Courts below on the ground of sub-letting in favour of Ramesh Kumar. 2. Joga Singh respondent herein, has inducted one Madan Lal Rathi as tenant at the monthly rent of Rs.500/- somewhere in the year 1968. Earlier, an ejectment petition was filed on the ground of sub-letting alleged to one Shri Narinder Pal Singh and to Shri P. D. Rathi. The said ejectment petition was dismissed by the learned Rent Controller vide order dated 1.1.1981. The appeal was also dismissed. Subsequently, the land-lord sought ejectment of the petitioner on the ground of sub-letting inter-alia to Narinder Pal Singh, Shri P. D. Rathi and one Ramesh Kumar. The landlord has alleged sub-letting of one room situated behind the drawing room at first floor of House No.242, Sector 21-A, Chandigarh and that he has booked one gas cylinder with Bhatia Gas Agency on 29.3.1985. It is alleged that sub-letting is without the knowledge and consent of the landlord. In the written statement filed on behalf of respondent Nos.1 to 5 i. e. present petitioners, it was pleaded that Ramesh Kumar is distant relation and is a friend and he has given his gas connection to the respondent. It was pleaded that Ramesh Kumar was not having any gas cylinder in his residential house and it is the respondent who is having gas cylinder of the gas licensed by Ramesh Kumar. 3. In proof of sub-letting, the landlord has examined AW-2 Ajay Gupta, an employee of Bhatia Gas Company. He has deposed that Ramesh Kumar is getting refill the gas from the said Company from 10.9.1984. The original history card is produced as Exhibit A-1. He has proved the affidavit Exhibit A-2 and A-3 allegedly given by Ramesh Kumar and M. L. Rathi. AW-3 is Gian Chand who has brought the register containing form D-4 and application of Ramesh Kumar in D-1 form, Exhibit A-6. He has deposed that this application was verified by one M. L. Mahajan, Inspector Food and Supplies and on his recommendation, ration card No.12160 for 5 members was issued. The initial of M. L. Mahajan is identified as Exhibit A-6/a. 4. Apart from the said evidence, the landlord has examined his Attorney Ujjaggar Singh. He has deposed that this application was verified by one M. L. Mahajan, Inspector Food and Supplies and on his recommendation, ration card No.12160 for 5 members was issued. The initial of M. L. Mahajan is identified as Exhibit A-6/a. 4. Apart from the said evidence, the landlord has examined his Attorney Ujjaggar Singh. To controvert the stand of the landlord, one Rakesh Chander son of Tulsi Ram, r/o Gali Purani, Sirsa, has been examined as RW-1, Krishan Lal Lakhotia as RW-2 and P. D. Rathi as R. W-3. The learned Counsel for the petitioners has vehemently argued that the landlord has not proved parting of any part of exclusive possession of the tenanted premises to the sub-tenant Ramesh Kumar. In the absence of such proof, the petitioners can not be ordered to be evicted on the ground of subletting. 5. However, I do not find any merit in the said argument. It is well settled that subletting is a secret arrangement between the tenant and the sub-tenant. The allegations of the landlord are clear and categorical to the effect that one room behind the drawing room was sub-let to Ramesh Kumar. To prove said fact, the landlord has relied upon the gas delivery vouchers exhibits A-1 to A-3 and application form for delivery of ration card exhibit A-6, apart from the affidavit exhibit A-4. The affidavit admits the possession of kitchen with Ramesh Kumar and that it has sufficient space to accommodate the second gas cylinder. There is another affidavit filed by Mr. M. L. Rathi, the original tenant, to the effect that he needs second cylinder and kitchen is available to accommodate the said cylinder. It means that M. L. Rathi and Ramesh Kumar have separate kitchens which can accommodate the second cylinder each. Such documents do prove that one Ramesh Kumar is in possession having a kitchen in his possession. One Rakesh Chander son of Tulsi Ram has been examined by the tenant. Said Rakesh Chander has deposed that he lived in Delhi upto 1965. Thereafter, he shifted from Delhi to Sirsa, but there was no gas agency at Sirsa at that time. Madan Lal was his friend and he loaned his gas connection to Madan Lal. He deposed that he never resided in House No.242, Sector 21-A, Chandigarh. However, he has two sons and one daughter who are studying at Chandigarh. Thereafter, he shifted from Delhi to Sirsa, but there was no gas agency at Sirsa at that time. Madan Lal was his friend and he loaned his gas connection to Madan Lal. He deposed that he never resided in House No.242, Sector 21-A, Chandigarh. However, he has two sons and one daughter who are studying at Chandigarh. He gave the name of his wife as Sardha Mohunta and that Raj Kumari, Madhu Bala, Ravi Kant and Nikki are not his family members. He denied filing of any affidavit before Bhatia Gas Agency. Learned Counsel for the petitioner argued that RW-1 Rakesh Chander is none else, but Ramesh Kumar, alleged subtenant. There is typographical mistake in the name of Ramesh Kumar. However, identity of RW-1 is altogether different. In application for obtaining ration card, Exhibit P-6, Ramesh Kumar is shown as son of Joginder Pal with family members Raj Kumari, Madhu Bala, Ravi Kant and Nikki. RW-1 Rakesh Chander has denied that such persons are members of his family. The affidavits dated 10.9.1984 were filed by tenant M. L. Rathi and Ramesh Kumar on the same date having similar language, typed in same manner and the appears to have been prepared at the same time. The affidavit of Rakesh Kumar does not disclose his parentage in the said affidavit. The name of wife of RW-1 is Sudha, whereas the name of wife of Ramesh Kumar is Raj Kumari in Exhibit A-6. Thus, I am unable to accept the arguments raised by the learned Counsel for the petitioners that RW-1 is in fact Ramesh Kumar, the alleged sub-tenant. May be the gas connection was transferred to Chandigarh in the year 1970, but the documents on record prove that gas was delivered from the year 1984 onwards. Thus, I do not find any contradiction in the plea in the ejectment petition that the gas was booked by Ramesh Kumar in the year 1985 and in evidence which reflects delivery of gas since September, 1980. 6. Learned Counsel for the petitioner has further argued that the documents Exhibit A-1 to A-6 have not been put to any witness of the tenant and that Hans Raj, son in-law of the landlord who is staying on the ground floor of the said house, has not been examined as witness. However, I do not find any merit in this argument of the learned Counsel for the petitioners. However, I do not find any merit in this argument of the learned Counsel for the petitioners. It is proved that RW-1 Rakesh Chander is not the same person as Ramesh Kumar, the sub-tenant. Therefore, RW-1 Rakesh Chander could not be confronted with such documents as the said documents are not even alleged to be executed by said witness. It was for the tenant to rebut such documents in the manner known to law. Having failed to do so, the petitioner cannot take advantage of his own omission. It is not necessary to examine the son in-law of the landlord residing on the ground floor when the other evidence on record is sufficient to return a finding of sub-tenancy. Learned Counsel for the petitioners has relied upon an application for permission to lead additional evidence before this Court bearing CM No.1150-CII of 2003. Though the petitioner has sought to produce documents before the learned Appellate Authority as well, but it has been found that such documents have been sought to be produced after seven years of the pendency of the eviction petition. The said reasoning cannot be said to be suffering from any illegality. But still I have gone through the evidence sought to be produced and find that even such documents do not help the petitioner. Though Annexure A-1 is a voucher issued in respect of release of gas connection to one Ramesh Mohunta, House No.242, Sector 21-A, Chandigarh in the year 1970, but it does not show that the gas was being supplied from the year 1970. Annexure A-2 is a document issued on 21.7.1994, whereas, Annexure A-3 is the delivery challan in respect of gas supplied on 3.1.2003. Annexures A-2 and A-3 have been issued during the pendency of the present lis, therefore, such documents are not relevant. 7. Both the Courts below have recorded concurrent finding of fact on the basis of appreciation of evidence. I have again gone through the entire evidence and re-appreciated the same, but still find that the view taken by the Courts below is a possible view and cannot be said to be suffered from any illegality or irregularity which may warrant interference by this Court in exercise of its revisional jurisdiction. Consequently the revision petition is dismissed. 8. However, the ejectment orders would not be executed against the petitioner for the period of two months from today.