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2011 DIGILAW 2227 (PNJ)

Manjit Kaur v. Sheela Devi w/o Milkhi Ram

2011-12-19

RAKESH KUMAR GARG

body2011
JUDGMENT Mr. Rakesh Kumar Garg, J. (Oral):- This judgment shall dispose of two Civil Revision Nos. i.e. 5538 of 2010 and 8363 of 2010 as both the revision petitions have arisen out of the same dispute between the parties. However, for brevity, the facts are being taken from Civil Revision No. 5538 of 2010. 2. This is tenant’s revision petition challenging the impugned order dated 15.3.2008 of the Rent Controller, Ludhiana, whereby her eviction has been ordered from the demised premises in dispute and the judgment dated 10.6.2010 of the Appellate Authority, Ludhiana dismissing her appeal against the aforesaid order. 3. Shorn of unnecessary details, it is suffice to say that ejectment of the petitioner has been ordered by the authorities below on the ground that petitioner has ceased to occupy the demised premises which were lying closed without any reasonable cause since 1999 till the filing of the petition on February 01, 2002. in the written statement, petitioner has denied the aforesaid ground as taken by the respondents and has taken a specific stand that previously he was carrying on the business of PCO-cum-Confectionary and stationery in the shop in dispute that as the business of PCO was not worth any cost, she has shifted the same to her residential house and has continued the business of confectionary and stationery in the shop in dispute. 4. While ordering the ejectment of the petitioner from the demised premised on the aforesaid ground the Rent Controller found that the petitioner has failed to show any evidence to support her contention that she was occupying the shop in dispute for the period w.e.f. 01st August, 1999 till the filing of the petition. While allowing the ejectment petition, it was also observed that the respondent-landlord who stepped into witness box to discharge the initial upon her to prove the aforesaid ground, has not been even cross-examined by the petitioner, with regard to the aforesaid facts. It may also be noticed that even brother of the petitioner who had appeared as RW2 has stated in his statement that petitioner had shifted the PCO from the demised premises in the year 2003 and was receiving the bills upto the year 2003 showing the renting of the PCO. However, no such record has been produced before the Court by the petitioner. However, no such record has been produced before the Court by the petitioner. It may also be noticed that the question “whether petitioner has ceased to occupy the shop in dispute for a continuous period w.e.f. 01st August, 1999 till the filing of the petition”, is essentially a question of fact. Both the authorities below, on appreciation of evidence have recorded a concurrent finding that petitioner has failed to place on record any evidence to show that she was occupying shop in dispute for the period. Even before this Court, relevant evidence could not be pointed out to support the case of the petitioner. 5. Thus, I find no merit in the contention raised by the petitioner-tenant. 6. At this stage, it is also necessary to mention that on 31st August, 2010, the following contention was made on behalf of the petitioner:- “Learned counsel for the petitioner submits that the Appellate Authority, Ludhiana, had not decided the application, under Order 41 Rule 27 CPC, to lead additional evidence. Learned counsel refer to Para No.4 of the present revision petition to fortify this submission. Issue notice to motion. Till then, dispossession of the petitioner from the demised premises is stayed.” 7. Noticing the aforesaid contention, this Court has issued notice of motion and the record of the authorities below was summoned. 8. On 18.4.2011, again the following order was passed : “Learned counsel for the petitioner has argued that the application filed by him for additional evidence has not been decided by the learned Appellate Authority. In order to find out this fact, record of the Court of learned Appellate Authority, was summoned by this Court. Learned counsel for the respondent prays for an adjournment to inspect the record in order to make submissions. On his request, adjourned to 23.5.2011.” 9. Order dated 5.7.2011 may also be noticed which reads thus:- “Counsel for the petitioner has contended before this Court and his application for leading additional evidence before the appellate authority was not decided. Record was called for. A perusal of the record shows that no such application/reply (which are attached as Annexure P-1 and P-2 with this petition) are on the record. Even zimni orders do not show filing of any such application. Let the petitioner file a specific affidavit in support of his aforesaid contention. List on 18.7.2011. Record was called for. A perusal of the record shows that no such application/reply (which are attached as Annexure P-1 and P-2 with this petition) are on the record. Even zimni orders do not show filing of any such application. Let the petitioner file a specific affidavit in support of his aforesaid contention. List on 18.7.2011. If the affidavit is not filed, the petitioner shall be present in the Court. A photocopy of this order be placed on the file of another connected case.” The order dated 18.7.2011 reads as follows :- “The contention raised by learned counsel for the petitioner before this Court is that despite filing an application for leading additional evidence, appellate authority did not pass any order on this and the same remained pending. The record was called for and it is not coming out from the record that the petitioner had filed any such application before the appellate authority. However, learned counsel for the petitioner has placed before this Court zimni orders dated 21.10.2009 and 10.11.2009 and has also placed on record the certified copy of application to lead additional evidence. Let the explanation of the District Judge, Ludhiana be asked as to why the complete record of the case was not sent. List on 10.08.2011. A photocopy of this order be placed on the file of another connected case.” 10. Thereafter, after receiving the records, it was found that the application of the petitioner for allowing him to lead additional evidence was dismissed by the Appellate Authority vide separate order dated 10.6.2010. Thus, the averments made by the petitioner before this court with regard to his plea regarding leading of additional evidence is factually incorrect. It may also be noticed that petitioner has moved an application for amendment of the grounds of revision vide civil miscellaneous application No. 24378-CII of 2011 which is dated 3.10.2011. It is also a matter of record that the petitioner has sought to lead additional evidence before the Rent Controller but remained unsuccessful and the said order was never challenged by him. Thus, application for amendment of the grounds of revision deserves to be rejected. 11. In view of the aforesaid, I find no merit in the petition filed by the tenant challenging the impugned orders of eviction dated 9.12.2010. Resultantly, revision petition 5538 of 2010 is dismissed. 12. Thus, application for amendment of the grounds of revision deserves to be rejected. 11. In view of the aforesaid, I find no merit in the petition filed by the tenant challenging the impugned orders of eviction dated 9.12.2010. Resultantly, revision petition 5538 of 2010 is dismissed. 12. It may also be noticed that in execution of the impugned orders of the authorities below the respondent-landlord had taken possession on 10.11.2010 and the execution petition filed by the respondent-landlord stood fully satisfied vide order dated 27.11.2010 which reads thus:- “Present: Counsel for the DH. Warrant of possession received back with the report that possession has been delivered. Statement of Mohinder Kumar son of Milkhi Ram recorded. Statement of Kulwant Singh Bailiff also recorded. The JD is at liberty to move application for getting the articles from the Superdar. The Superdar shall maintain these articles with him in safe custody till further orders. The execution application stands fully satisfied. File be consigned to record room.” 13. However, the Executing Court vide its order dated 09.12.2010 has restored the possession of the demised premises in favour of the tenant and has issued warrant of possession. Landlord has filed Civil Revision No.8363 of 2010 challenging the said order and vide order dated 22.12.2010 status-quto as existed on that day was ordered to be maintained by this Court. 14. It is not in dispute before this Court by the petitioner that respondent is still in possession of the demised premises. 15. Since the eviction order passed against the petitioner has been upheld by this Court in Civil Revision No. 5538 of 2010, tie order dated 09.12.2010 of the Executing Court is set aside and revision petition No. 8363 of 2010 is allowed. A photocopy of this order be placed on the file of another connected case.