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2012 DIGILAW 137 (PNJ)

Ajit Singh v. Ram Lila Sabha

2012-01-24

RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The tenant is in revision against order of the learned Appellate Authority by which order of the learned Rent Controller has been reversed and the petition filed by the landlord for his eviction has been allowed. 2. In short, the tenant is in possession of a single storey shop along with the land behind two shops situated at Railway Road, Karnal on a monthly rent of Rs.65/- besides house tax. The landlord filed the eviction petition on the ground of non-payment of arrears of rent from 01.06.1984 to 31.05.1985 amounting to Rs.780/- and house tax amounting to Rs.98/- and that the tenant has ceased to occupy the demised premises from 01.11.1984 till 31.05.1984 for a continuous period of seven months without reasonable cause. 3. After appearance, the tenant tendered the rent in Court. In the written statement, he has denied that he has ever ceased to occupy the demised premises rather it was alleged that he was in the business of scooter repair from the date the shop was taken on rent. The learned Rent Controller framed the issues on 13.03.1986. Both the parties led their evidence; the landlord had filed an application for amendment of the eviction petition to allege that the tenant had ceased to occupy the demised premises till the filing of the eviction petition but the said application was dismissed. The learned Rent Controller dismissed the eviction petition solely on the ground that the landlord has averred in its petition that the shop remained closed only upto 31.05.1985 which is contrary to the decision of the Supreme Court in the case of M/s. Babu Ram Gopal v. Matu, AIR 1990 (Supreme Court) 879 in which it was observed that the landlord must allege and prove the closure of the demised premises on the date of filing of the eviction petition. 4. Aggrieved against the order of the learned Rent Controller, the landlord filed the statutory appeal. It also filed an application for amendment of the eviction petition to take the plea that the demised premises remained closed continuously upto the date of filing of the eviction petition. The said amendment was allowed by the learned Appellate Authority on 07.12.1990. 4. Aggrieved against the order of the learned Rent Controller, the landlord filed the statutory appeal. It also filed an application for amendment of the eviction petition to take the plea that the demised premises remained closed continuously upto the date of filing of the eviction petition. The said amendment was allowed by the learned Appellate Authority on 07.12.1990. The tenant had challenged that order by way of CR-75-1991 before this Court in which notice of motion was issued on 09.01.1991 and the proceedings before the Appellate Authority was stayed but ultimately the revision petition was dismissed on 16.04.1991. Meaning thereby, the order of the Appellate Authority by which amendment was granted, was upheld. The learned Appellate Authority allowed the eviction petition by taking into account the oral as well as documentary evidence. In this regard, it has taken into consideration the fact that the tenant was served at the address of Hoshiarpur and the report of service was exhibited as Ex.P4. It was also observed that the issue of his fleeing from Karnal in the wake of riots in November, 1984 because of the death of Smt. Indira Gandhi was never pleaded in the written statement. It was also observed that the tenant had even sent a money order of Rs.400/- from Hoshiarpur although the office of the landlord was at a distance of 50'-60' yards from the demised premises. The Appellate Authority had also taken into consideration the report of the Meter Reader according to which the demised premises was lying locked. Ultimately, the following finding was recorded by the learned Appellate Authority: “In this case, the respondent-tenant has not placed on record his account books to show that business was actually run in the premises in dispute during the period in question. With-holding of best evidence by the respondent coupled with his own admission regarding the non-availability of electricity consumption bills, dispatch of rent through money orders from Hoshiarpur clearly proves that the tenant was not residing and he was not carrying on any business at Karnal during the period in question.” 5. Learned counsel for the petitioner has vehemently argued that the finding of the learned Appellate Authority, which is based upon the report of the Meter Reader and non-production of the account books etc. by the tenant, is no ground to pass the order of eviction. Learned counsel for the petitioner has vehemently argued that the finding of the learned Appellate Authority, which is based upon the report of the Meter Reader and non-production of the account books etc. by the tenant, is no ground to pass the order of eviction. She has also submitted that the learned Appellate Authority has committed palpable error in allowing amendment of the eviction petition to overcome the finding of the learned Rent Controller who had dismissed the eviction petition of the landlord while disallowing the same amendment against which no revision was filed by the tenant, therefore, the Appellate Authority had no occasion to allow the amendment. She further submits that even if the amendment has been allowed and upheld by the High Court in revision, the same still can be challenged under Order 43 Rule 1-A of the Code of Civil Procedure, 1908 [for short “CPC”]. 6. No one has put in appearance on behalf of the respondent. 7. I have heard learned counsel for the petitioner in detail and perused the record. 8. The only issue involved in this case is with regard to the order of eviction of learned Appellate Authority on the ground of “ceased to occupy” the demised premises for a continuous period of 4 months. The learned Rent Controller had observed that the tenant had to leave Karnal in November, 1984 due to communal riots and that the eviction petition is not in accordance with law in view of the decision of the Supreme Court in Babu Lal’s case (supra) in which it has been held that the eviction petition must state that the tenant has ceased to occupy the demised premises till the filing of the eviction petition and since it was not so averred and the amendment sought in this regard was declined by the learned Rent Controller, therefore, the learned Appellate Authority has committed a patent error in allowing the amendment sought by the landlord. 9. 9. In my considered opinion, once the revision petition filed by the tenant assailing the order of amendment passed by the learned Appellate Authority was declined by this Court and that matter became final as it was not further challenged before the Apex Court, the same order cannot be re-agitated before this Court in the present case as there would be conflicting orders and this Court can not review the order passed in CR-75-1991 dated 16.04.1991. It was in the wisdom of this Court that the order of amendment passed by the learned Appellate Authority was approved. The tenant must have brought to the notice of this Court all these facts that earlier the Rent Controller had declined the amendment which order became final as it was not challenged by way of revision by the landlord and still the Appellate Authority had granted the amendment which has been approved by this Court. Hence, the said order cannot be re-opened even under Order 43 Rule 1-A CPC. Once the technical plea of the tenant is over in respect of the eviction petition by making an averment that the demised premises was continuously closed till the filing of the eviction petition, the question arises is as to “whether there is enough evidence on record to prove that the tenant had ceased to occupy the demised premises till the filing of the eviction petition without any reasonable cause”? The requirement of law is that a tenant, who ceased to occupy the demised premises continuously for a period of 4 months without any reasonable cause, can be ordered to be evicted. Since the tenant has failed to aver in the written statement that he had to leave Karnal in the wake of communal riots in the month of November, 1984, therefore, no evidence beyond the pleadings can be looked into. Moreover, there is positive oral as well as documentary evidence to show that the tenant had paid the rent through money order sent from Hoshiarpur and was also served at the address of Hoshiarpur although the office of the landlord was at a stone’s throw distance from the demised premises. 10. In view of the above discussion, I am of the considered opinion that the impugned order does not deserve any interference as it has been passed in accordance with law and hence, the present revision petition is hereby dismissed. --------------