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2008 DIGILAW 2033 (PNJ)

Narender v. Arjan Dass

2008-12-03

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - This revision petition is directed against the orders dated 30.7.2004 and 17.1.2007 passed by the learned authorities under the Rent Act, ordering eviction of the petitioners. The respondent-landlord filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 seeking eviction of the petitioners on the ground of non-payment of rent, subletting as well as change of user. 2. The learned Rent Controller ordered eviction of the petitioners on the ground of non-payment of rent as well as change of user and nuisance. However, the ground of subletting was decided against the respondent-landlord. 3. The petitioners preferred an appeal against the judgment passed by the learned Rent Controller. The learned appellate authority held that though the tender was made but as the same was not made by the tenant, therefore, same could not be valid tender. 4. The learned appellate authority, thus, also held that the petitioners were liable to be evicted on the ground of non-payment of rent. 5. The learned authorities also held that the reliance placed by the petitioners on document dated 3rd December, 1987, was not proved on record as neither the agreement was produced on record nor the sale was proved in accordance with law and the document was only marked and not exhibited. 6. Thus, the learned authorities held that once the defence of the petitioner was to be rejected for not proving the document mark A, it has to be held that the premises have been sublet by the original tenant in favour of the petitioners as admittedly the wife of original tenant had handed over the exclusive possession of the property in favour of the petitioners herein. 7. In view of the finding of subleting having been recorded against the petitioners, the learned appellate authority held that though the tender was made, however, the same could not be accepted as the same was not made by the tenant. 8. The learned appellate authority reversed the finding of the learned Rent Controller on ground of change of user and nuisance by holding that the rent- deed permitted the tenant to use the premises for any purpose, thus change of business could not amount to change of user. 9. 8. The learned appellate authority reversed the finding of the learned Rent Controller on ground of change of user and nuisance by holding that the rent- deed permitted the tenant to use the premises for any purpose, thus change of business could not amount to change of user. 9. Learned counsel for the petitioners vehemently contends that in the present case, it was proved on record that the respondent-landlord is residing in the same premises where the shop is located and the petitioners are carrying on their business since the year 1987 in pursuance to document mark A and, therefore, presumption had to be drawn that the premises was handed over to the petitioners with the consent of the landlord. 10. In support of this contention, the learned counsel for the petitioners placed reliance on the judgment of this Court in Sh. Subhash Chander v. Sh. Surinder Singh, (1994-3) PLR 351. 11. On consideration of matter, I find no force in the contention raised by the learned counsel for the petitioners. It may be noticed that document mark A is not original document or the certified copy of the original document. 12. The petitioner had also not taken any steps to lead secondary evidence so that the document mark A could be relied in evidence. 13. It is in view of this that their application for leading additional evidence to prove mark A cannot be allowed at this stage and the document cannot be read in evidence in absence of proof of original, and existence thereof having been proved on record. Once the application for leading additional evidence is rejected, there is no evidence on record in support of the stand of the petitioners that they are in possession of the property with the consent of the landlord. The presumption, therefore, has also to be drawn that the tenant has parted with exclusive possession in favour of the petitioners for consideration. The ground of subletting, thus, stands proved. Once the subletting is decided against the petitioners, admittedly no rent has been tendered by the respondent-tenant and, thus, the petitioners have rightly been ordered to be evicted even on ground of non-payment. The order passed by the learned appellate authority does not suffer from any illegalily, which may call for any interference by this Court, in exercise of revisional jurisdiction. Dismissed.