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2008 DIGILAW 610 (PNJ)

Samunder Singh v. Chander Parkash

2008-03-03

RANJIT SINGH

body2008
Judgment Ranjit Singh, J. 1. The petitioner-tenant is ordered to be evicted from the demised shop by the Rent Controller. He has remained unsuccessful in is appeal and has now filed the present revision petition. 2. Respondent-brothers Chander Parkash and Pardeep Kumar are the landlords, a fact which is conceded by the petitioner. They had sought ejectment of the petitioner from the shop on the ground that the petitioner had sub-let the premises to his brother, Prithi Singh, who had started a x-ray laboratory therein. It is also pleaded that this will amount to diminishing the value and utility of the building in question, which has led to internal alterations without the consent of the landlord-respondents. 3. In the written statement filed, it is stated by the petitioner that his brother, Prithi Singh, sometime merely helps him in day to day work in running X-ray work and laboratory test but has no concern with the tenancy in question. On the other hand it is pleaded by the landlord-respondents that the petitioner has parted with the possession of the premises in favour of his brother Prithi Singh and had left Bhiwani to start his medical practice at Behal, Tehsil Loharu, District Bhiwani. It is further stated that the alleged Verandah is not a Verandah and instead a part of Verandah since the commencement of tenancy. The Rent Controller on the basis of the pleadings formed the following issues: (i) Whether the respondent is liable for ejectment from the shop in dispute on the grounds as mentioned in the petition? OPP (ii) Whether the respondent has defaulted to pay rent and arrears of rent for 26 months commencing from 1.10.1997 to 31.11.1997? OPP (iii) Whether the respondent No. 1 has sublet the shop in dispute to respondent No. 2? OPR (iv) Whether the respondents have demolished the value and utility of the shop in dispute? OPR (v) Whether the structure of the shop has been materially altered? OPR (vi) Whether the amount of Rs. 17,414/- received by the petitioner is in excess of rent due? OPR 4. All the issues except issue No. 1 were taken up for discussion together and held against the petitioner. The fact that petitioner had left Bhiwani or that he had started medical practice at Behal was contested with vehemence and it was pleaded that he had not left Bhiwani permanently as alleged by the landlords. OPR 4. All the issues except issue No. 1 were taken up for discussion together and held against the petitioner. The fact that petitioner had left Bhiwani or that he had started medical practice at Behal was contested with vehemence and it was pleaded that he had not left Bhiwani permanently as alleged by the landlords. It is further claimed that Behal is quite near to Bhiwani and as such, the petitioner was simultaneously doing business at Behal and was in control of two shops situated at Behal as well as at Bhiwani. During his cross-examination, he admitted that he was running a business under the name and style of Lamba X-ray, Behal, where summon in the name of the petitioner were served to him. His stand that he has residence at both the places was found to be false on the basis that his ration card was at Behal and was an old one and he was listed as voter at Behal. In fact, the petitioner had tried to project that he had not got the ration card or voter card prepared at Behal. It also came out during his cross-examination that his brother who was at Bhiwani had only studied 10+2 and sometimes used to open the shop. His brother was also found residing at Krishana Colony Bhiwani but the petitioner could not tell even the number of his house. Prithi Singh, the brother of the petitioner, during his cross-examination conceded that he was sitting in the shop in question for the last 7-8 years. He was not found to be carrying on any vocation in his life and was 30 years old. This fact was found to be one which would lend credence to the testimony of the landlord-respondents that the premises in question had been let out by the petitioner to his brothers and correspondent Prithi Singh. The distance between Behal and Bhiwani was found to be 65 K.M. which would be enough to indicate that it is not possible to run two shops at such a distance locations. Even the aspect of material altercation also stood proved on the basis of evidence and accordingly the petitioner was ordered to be ejected on both the grounds. 5. The distance between Behal and Bhiwani was found to be 65 K.M. which would be enough to indicate that it is not possible to run two shops at such a distance locations. Even the aspect of material altercation also stood proved on the basis of evidence and accordingly the petitioner was ordered to be ejected on both the grounds. 5. The learned Counsel for the petitioner on the basis of observations made in Helper Girdharhhai v. Saiyed Mohmad Mirasahed Kadri and Ors., would contend that if there is a partnership firm of which tenant of the premises in which the business of the firm was carried on was a partner, the fact of carrying on of the partnership in the premises would not amount to subletting leading to the forfeiture of the tenancy. This ratio of law would not help the cause of petitioner in the demised shop as a partner with his brother. The case set up by the petitioner is that he was himself running the business at the demised shop and his brother was occasionally present there to help him. The counsel would then refer to the case of Dipak Banerjee v. Smt. Lilabati Chakraborty, to urge that to prove tenancy or sub-tenancy two ingredients have to be established. It is firstly to be shown that the tenant must have exclusive right of possession or interest in the premises or in the part of the premises in question and secondly the right must be in lieu of some compensation or rent. In Deepak Benerjees case the court has found it as a matter of fact that there was no evidence on the aspect that the alleged sub tenant was in exclusive occupation of any part of the premises on which the tenant had not retained any control. In fact there was no pleading or evidence on this aspect. Such a situation does not arise in the present case. The Court in this case has come to a clear finding that the petitioner had been staying and shifted to Bhiwani which is located at 65 K.Ms where his brother has been found to be managing the business at the shop from the last 7 to 8 years. It can be said that the sub-tenant was in exclusive occupation of the entire demised shop for which there is sufficient evidence on record. It can be said that the sub-tenant was in exclusive occupation of the entire demised shop for which there is sufficient evidence on record. Similarly the ratio of law laid down in Delhi Stationers and Printers v. Rajendra Kumar, relied upon by the counsel for the petitioner would also not help him where it is observed that sub-letting means transfer of an exclusive right to enjoy the property in favour of a third party and the said right must be in lieu of some compensation or rent. As already observed in the present case, it can be said that petitioner had transferred exclusive right to his brother to enjoy the property in his favour, which he is doing for the last 7-8 years. It was for him to show that it is not on account of any rent or in lieu of compensation. There is, thus, no merit in the petition. The same is accordingly dismissed.