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2012 DIGILAW 455 (HP)

Shan Mohd v. Mohinder pal

2012-08-27

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. This is the landlord's petition against the order of the learned appellate authority allowing the appeal preferred by the respondent-tenant against the judgment of the learned Rent Controller ordering the ejectment of the respondent herein on the ground that he had ceased to occupy the suit premises for a continuous period of twelve months preceding the date of the ejectment order. It is undisputed that the petitioner is the landlord of the demised premises. He instituted petition for ejectment of the respondent on the ground of arrears of rent and he has ceased to occupy the premises for a period of 12 months continuously before the institution of the eviction petition. The respondent died during the Pendency of the revision and his legal heirs were substituted by the order of this Court dated 17.8.2007. 2. The learned Rent Controller on the settled issues out of which two of the issues were crucial, namely, as to whether the tenant was in arrears of rent and if so to what extent and as to whether the tenant has ceased to occupy the premises, held on the first issue that the respondent had not paid rent at Rs. 40/- per month w.e.f. 1.12.1987. The Court held: 13. If it is presumed that the rent has been paid up to 1.11.1996, this rent has not been paid to the petitioner by the respondent. No any receipt of such rent paid has been filed by the respondent in the Court. Therefore, I am of the considered view that the respondent has not paid the arrears of rent at the rate of Rs. 40/- per month to the petitioner w.e.f. 1.12.1987. So far as the rent is concerned, it is not disputed by the respondent that the rent is Rs. 40/- per month. Therefore, this issue is decided in favour of the petitioner and against the respondent. 3. Adverting to the second issue, the learned Rent Controller took into consideration the evidence on the record to the effect that there is no electricity consumed by the respondent for the period in question. Ext. PW 2/B proved on record electric meter No. BRD-266-D installed in the demised premises and that since 1994 to 7.1.1995, the meter was found locked inside the premises. Voter list Ext. PW 2/A of Sidhowal Lodge shows that the name of the tenant was not mentioned therein. Ext. PW 2/B proved on record electric meter No. BRD-266-D installed in the demised premises and that since 1994 to 7.1.1995, the meter was found locked inside the premises. Voter list Ext. PW 2/A of Sidhowal Lodge shows that the name of the tenant was not mentioned therein. PW 4 Krishan Kumar, Inspector Food and Civil Supplies, stated that no ration card was issued from his office. PW 5 Rupender Singh, Election Kanungo, Shimla stated that the name of the respondent or his son Mohinder Pal did not figure in the voters list in the year 1995, according to the survey conducted in 1994. 4. Adverting to the evidence of PW 6A Sukh Dev Chand, Inspector, Food and Civil Supplies, Malpur, District Hoshiarpur stated that the ration card had been issued at Hoshiarpur only after certification by the sarpanch and this ration card revealed a continuous drawal of ration since 1988, PW 1 Krishan Lal, an official from Election Office Hoshiarpur, who proved that the name of Kashmiri Lal and his family members was entered in the voters list at Hoshiarpur, the learned Rent Controller concluded on a conjoint reading of this evidence that the respondent deceased Kashmiri Lal did not occupy the demised premises. 5. The tenant appealed and the learned appellate authority by its judgment dated 13th March, 2000 accepted the petition and dismissed the petition filed by the landlord. 6. The learned appellate authority on consideration of this evidence holds that the officials evidence was indicative of the proof that the tenant was residing at Lusada, District Hoshiarpur and is also registered as voter but did not by itself proved that he has ceased to occupy the demised premises. The learned Court held that it was the landlord's own evidence that the premises remained un-locked only from October 1994 to February, 1995. The learned appellate authority then considers the evidence of RW 5 Mohinder Pal, son of the tenant, who stated that he had been living in the premises with his father since 1972. He stated that he was residing with his father and that he was carrying on the business of selling Chat etc. at Shimla since 1972 and that he had been paying rent (Tehbazari) to the Municipal Corporation. He stated that he was residing with his father and that he was carrying on the business of selling Chat etc. at Shimla since 1972 and that he had been paying rent (Tehbazari) to the Municipal Corporation. Looking to these receipts of payment, the learned appellate authority concluded that it would be reasonable to presume that since he was carrying on business at Shimla, therefore, the premises were occupied by the tenant. 7. The petitioner applied for recording of additional evidence which permission was granted by this Court on 24.5.2010 in CMP. No. 579 of 2001 which was filed under Order 41 Rule 27 read with Section 151 C.P.C. Consequent to this order, AW 1 Mr. Pushaphas Sharma, Assistant Engineer, HPSEBL, Electrical Sub Division, Shimla was examined by the petitioner on 14.9.2011. He proved on record Ext. AW 1/1 to Ext. AW 1/24 (24 sheets) showing consumption of electricity for the period from April, 1992 to March, 1995 with respect to meter No. BRD-266/D, which was initially in the name of ashmiri Lal and now in the name of Sh. Mohinder Pal. He stated that the entries in the Consumer Ledger are made on the basis of monthly electricity consumption which is recorded by the Meter Reader. In cross-examination he stated that on 15.3.1995, consumption of 131 units of electricity were recorded in respect of the aforesaid meter and that the premises was found locked by the Meter Reader for the period from May, 1994 to 15.3.1995. He stated that he visited various premises for recording consumption of electricity once in a month during office hours i.e. 10 a.m. to 5 p.m. No evidence in rebuttal has been led. It is on the basis of the evidence including evidence recorded in this revision that the petitioner now seeks eviction of the tenant. 8. Learned Senior Counsel Sh. Bhupender Gupta instructed on behalf of the petitioner submits the fact that there is no consumption of electricity for the period immediately preceding the one year of the filing of the petition, is itself conclusive of the fact that the premises were not occupied by the tenant. Learned senior Counsel submits that merely because the son of the tenant was carrying on business at Shimla, no presumption could be legitimately raised by the learned appellate authority that he was, in fact, residing with his father deceased Kashmiri Lal and occupying the premises. Learned senior Counsel submits that merely because the son of the tenant was carrying on business at Shimla, no presumption could be legitimately raised by the learned appellate authority that he was, in fact, residing with his father deceased Kashmiri Lal and occupying the premises. Learned senior Counsel submits that the learned appellate authority having accepted the fact that the deceased Kashmiri Lal was registered as voter at Hoshiarpur and had been issued a ration card at Hoshiarpur and there was no ration card in his name at Shimla, conclusively proved non-occupation of the premises when this evidence is read in conjunction with that of non-consumption of electricity, in these circumstances, the judgment of the appellate authority requires to be set aside, more especially when during the pendency of the appeal, additional evidence was recorded and for the period of one year prior to the institution of the petition, there was no consumption of electricity. He submits that there could be only one conclusion and that is that the premises were not occupied, 9. Ms. Seema Guleria, learned Counsel appearing for the respondents submits that it is not necessary that the name of the respondents should figure in the voters list and moreover the respondents-tenants are actually drawing ration from Shimla. She further submits that during the period when the son was occupying the premises, there was no question about the possession of the premises having been vacated. 10. I have given my careful consideration to the submissions made by the learned Counsel appearing for the parties. 11. I find that the learned appellate authority was in error in assessing the evidence when it was clearly established by PW 1 Krishan Lal, official from the Election Office, Hoshiarpur that the names of the appellant, his sons Sh. Faquira Dutt and Mohinder Pal, a daughter and wife were recorded as voters in the voters list at village Lusada. PW 4 Krishan Kumar, Inspector, Food and Civil Supplies states that Kashmiri Lal had not been issued any ration card and was not drawing any ration at Shimla. Faquira Dutt and Mohinder Pal, a daughter and wife were recorded as voters in the voters list at village Lusada. PW 4 Krishan Kumar, Inspector, Food and Civil Supplies states that Kashmiri Lal had not been issued any ration card and was not drawing any ration at Shimla. PW 5 Rupinder Singh, Election Kanungo, Shimla stating that the name of the tenant was not recorded in the voters list at Shimla for the year 1995 and PW 6A Sukh Dev Chand stated that the deceased had been issued ration card for drawal of rations from village Lusada and that the ration card had been issued only after the sarpanch had certified that the deceased and his family members were residing in the said village. It is true that he can have himself registered as a voter either at the native village or in the place where he is residing permanently but if it is to be expected that the deceased did not require any ration card more especially when he got one at Hoshiarpur. There is no explanation as to why he applied for ration card as permanent resident of native village Lusada, District Hoshiarpur. There is also no explanation as to when he was registered as a voter in Hoshiarpur and why he had not chosen to be registered from Shimla. The mere fact that the son was residing at Shimla and carrying on business of a Chat vendor is by itself not sufficient to prove the occupation of the building. 12. Learned senior Counsel appearing for the petitioner relies upon the decision of this Court in St. Michaeal's Cathedral Catholic Club Vs. Smt. Harbans Kaur Nayani, , the Court holds: 32. There is nothing in the statute that the landlord has to establish that the tenant has ceased to occupy the building for over 12 months immediately preceding the filing of the ejectment petition. In my view, a casual visit would not clothe the tenant with a status of in occupation of the premises' in order to frustrate the intention of the legislature. In my view, a casual visit would not clothe the tenant with a status of in occupation of the premises' in order to frustrate the intention of the legislature. If such an interpretation is put, then any tenant in order to avoid eviction on that ground would remain away from the premises for 11 months and then come, live for a few days and would walk out again and will come again towards the fag-end of the year to live for a few days again in order to save ejectment. The moment it is established that the tenant has as in the present case ceased to occupy the premises in question for over five years, the cause of action for seeking her ejectment accrued to the landlord under the provisions of the Act and there could be no escape from the consequences flowing therefrom. The occupation of the tenant in the present situation cannot be in any case termed as occupation with the intention to reside in the premises. Consequently, such act and conduct cannot be encouraged to frustrate the provisions contained in the Act for seeking eviction of the tenants. The provisions contained in Section 14(2)(v) of the Himachal Pradesh Urban Rent Control Act, 1987 gives the landlord a right to get possession of the tenanted premises immediately when the tenant ceases to occupy the premises for a continuous period of 12 months. By no stretch of imagination a different meaning can be given or the tenant can be permitted to raise pleas that the landlord had lost the right in case, the tenant happens to re-occupy the tenanted premises after the lapse of the requisite period as given in the statute. The landlord in such situation would not loose his right to seek the ejectment of the tenant. The tenant cannot in the given situation be permitted to defeat a valuable right which has accrued in favour of the landlord. (P. 245 & 246.) 13. He also relies upon the decision of this Court in Babu Ram v. Lalit Kumar Dulta, 1998 (2) Himachal Pradesh Cur. L.J., 321, the Court holds: 14. Cease to occupy in its ordinary sense means that the tenant who was in possession and occupation and was enjoying the tenanted premises, has ceased to have actual physical control over the said premises. L.J., 321, the Court holds: 14. Cease to occupy in its ordinary sense means that the tenant who was in possession and occupation and was enjoying the tenanted premises, has ceased to have actual physical control over the said premises. Occupation means to hold possession for the use of the tenant and the word cease, in the given situation, would mean that he has stopped to occupy the premises or the occupation by him as come to an end. 15. Looking at the language of the provision, all what required is the tenant has ceased to occupy the premises. The tenant, in the given situation, would, of course, include his family members but shall certainly not include other relations and in the present case the brother and sister of the tenant. Protection, in the given situation, is to the occupation of the tenant and not to any other person either in his independent capacity or on behalf of the tenant. The occupation by the brother and sisters by no means can be taken to be the occupation of the tenant. The Rent Controller has taken note of a certificate issued by the Gram Panchayat placed on record by the tenant and Kumari Anshubala is said to be living in Gram Panchayat, Rammi. This document on the face of it belies the version set up by the tenant as well as by RW 1. In the written statement mention has been made that the sisters and brother are living in the premises and were studying in the Colleges and strangely enough Anshubala was already in employment at Rohru prior to 1989 when she shifted to Shimla and continued to be in service. 16. So far as the occasional visits of the tenant to Shimla and occupying the premises during those visits are concerned, these can in no situation be termed as his occupation of the premises in question. The casual visits by the tenant can in no way mean confirming the status of occupying the premises from where his ejectment is being sought on the ground of "ceased to occupy". 17. In view of what has been said above, the judgment passed by the Appellate Authority is set aside and the one passed by the Rent Controller is upheld. 17. In view of what has been said above, the judgment passed by the Appellate Authority is set aside and the one passed by the Rent Controller is upheld. The respondent/tenant is ordered to be ejected from the premises in question and a period of three months is granted to him to vacate the premises. (Pp. 323 & 324) 14. Learned senior Counsel submits that non-consumption of electricity for a continuous period was sufficient to establish non-occupation of the building. He places reliance on the judgment in Om Parkash Vs. Subhash Chand, (2003) 2 ShimLC 217 , holding: 11. It is well settled that while exercising revisional jurisdiction u/s 24 of the Act, the High Court should ordinarily not interfere with the findings of facts particularly when such findings are concurrent. However, it is also well settled that in a case where the findings of fact are absurd, unreasonable and contrary to the evidence on record or based on no evidence, the High Court will have to interfere with such findings. It is so because in exercising the supervisory powers which vests in the High Court, it has to ensure that justice is done to the parties and in a case where injustice has been done to a party, it is duty of this Court to undo the same. In the case in hand, the findings of facts recorded by the learned Rent Controller had been reversed by the learned Appellate Authority, therefore, propriety of the findings recorded by the learned Appellate Authority has to be examined on the basis of the material on record. 12. In so far as the non-consumption of electricity in the tenanted shop is concerned, it is a circumstance fully proved. It is clearly and unambiguously stated by Rejinder Singh (PW 3) that the meter reading of the meter installed in the shop was 4385 units in February 1990 and it was so even in the month of May, 1993. He has further stated that as per the records maintained in the Electricity Sub Division the premises during this period remained locked. In his cross-examination, he has further clarified that as per the records even a lock-notice was issued regarding the meter in question on 10.12.1992 and the meter was disconnected in December, 1992. He has further stated that as per the records maintained in the Electricity Sub Division the premises during this period remained locked. In his cross-examination, he has further clarified that as per the records even a lock-notice was issued regarding the meter in question on 10.12.1992 and the meter was disconnected in December, 1992. He has further stated that he was the Meter Reader at the relevant time and there was no meter reading of the meter in question during the period February, 1992 to May, 1993 because the shop remained locked. He has, no doubt, admitted certain payments for different periods against the meter in question and has explained that these payments were of minimum charges. Keeping in view the amount of payments in fact such payments appear to be payment of meter rent and nothing more. It is so because the meter reading indisputably was 4385 in February, 1990 and it remained so evening May, 1993. It is not the case of the landlord that the meter was defective. Therefore, the only conclusion on the basis of the evidence of PW 3 is that no electricity was consumed in the tenanted premises during the period February, 1990 to May, 1993. It is beyond comprehension that a business is run in a shop without use of any light. It is not the case of the tenant that he used any alternate mode of light in the shop. In these circumstances, a very strong presumption arises that the shop remained unoccupied and unused during the period February, 1990 to May, 1993. Therefore, it is for the tenant to explain the no consumption of electricity and to rebut the aforesaid presumption. If there is no requisite explanation and the presumption remains un-rebutted and the cessation to occupy the premises is supported by other evidence also the non occupation of the premises will stand proved. 13. In Sohan Lal and another Vs. Gurbachan Singh (1997) 1 ShimLC 237 , the Punjab and Haryana High Court held that mere non-consumption of electricity by itself is not sufficient to hold that tenant had ceased to occupy the premises. However, it was found in that case that the Meter Reader had been visiting the shop and had been taking the reading and has not stated that at the time of his visits the premises were found locked. However, it was found in that case that the Meter Reader had been visiting the shop and had been taking the reading and has not stated that at the time of his visits the premises were found locked. Evidently, in these circumstances, it was not proved that there had been no consumption of electricity at all and the premises remained locked. 14. In Gurbux Singh Vs. Subedar Sarwan Singh, (1994) 108 PLR 126 , the Punjab and Haryana High Court held that it was true that non-consumption of electricity alone is no proof that the tenant had ceased to occupy the premises. However, it was further held that where in addition to non-consumption of electricity the evidence establishes that the tenant is not carrying on the business for a period of more than the required period preceding the presentation of the petition then the presumption would be that the tenant has ceased to occupy the premises. 15. In later cases a slightly different view has been taken even by the Punjab and Haryana High Court in such cases where there was non-consumption of electricity in the demised premises. 16. In Parmatma Kaur and Another Vs. H.U.F. Rajinder Parshad and Sons, AIR 2000 P&H 152 the Punjab and Haryana High Court found that admittedly there was no electric meter in the demised premises, therefore, held as under: 9...The petitioner, though according to him is using the shop and is selling the electric fans etc. has admitted that there is no electric meter in the demised premises at present. He has not shown as to from where he is getting the electricity. Moreover, he has no servant or mechanic to help him and he is having another shop in the main bazzar. He cannot run both the shops alone. Moreover, the petitioner Daljit has examined himself only as his witness and has not produced any other evidence. If the petitioners are using the shop in question, they are the persons having best evidence regarding its use. If the petitioners are taking electricity from somewhere else, they could have shown the same. The petitioners could have produced their books of account and when this not done, adverse inference can also be drawn against them in view of the judgment in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, AIR 1968 SC 1413 17. In Harinder Singh Vs. The petitioners could have produced their books of account and when this not done, adverse inference can also be drawn against them in view of the judgment in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, AIR 1968 SC 1413 17. In Harinder Singh Vs. Bali Ram Sansari Lal, (2000) 126 PLR 572 , the same High Court while dealing with the plea of non-consumption of electricity by the tenant, which was found established, held as under: 13. Therefore, in addition to the oral evidence (which has been led by both the sides), the circumstance which arises regarding non-consumption shown by the electricity reading, assumes importance and the burden of proving user of the shop in question had then to be discharged by the respondent and, therefore, the presumption of non-user of the said shop can be said to has been arisen in favour of the petitioner and it was for the respondent to prove the user by explaining the presumption that has arisen. This having been not done, I find that the Courts below have not decided the case in correct interpretation of the principle of burden of proof. This being so, the petitioner can be said to have proved the non-user of the shop in question for more than four months,. as alleged. 18. Thus, in the latest case (supra) even the Punjab and Haryana High Court has taken the view that non-consumption of electricity will raise a presumption in favour of the plea of non-occupation and it is for the tenant to rebut such presumption. Therefore, non-consumption of electricity is a very material and relevant factor to decide the question of non occupation of the demised premises. 19. In Joginder Nath Sood Vs. Jagat Ram Sood, AIR 1990 HP 79 to prove non-occupation of the premises, this Court held as under: 12. Sh. Chhabil Dass, submits that non-consumption of electricity is no proof that the tenant has not been living in the disputed premises. Reference is made to 1982 (2) RCJ 440, Sh. Ram Gupta v. Jagal Kishore. This decision is not applicable to the present case since no such evidence is available on the record of this case. These premises have electricity meter right from the beginning. Reference is made to 1982 (2) RCJ 440, Sh. Ram Gupta v. Jagal Kishore. This decision is not applicable to the present case since no such evidence is available on the record of this case. These premises have electricity meter right from the beginning. The tenant had been consuming electricity and paying consumption bills regularly but during this gap of 12 months, neither any electricity was consumed nor any payment was made towards its consumption since the meter remained static. It changed only when the tenant started consuming electricity after the filing of this petition. The defence of the tenant that he had been using kerosene lamp or zero watt electricity bulb is rather laughable. The plea of the tenant that he was doing so since he could not afford to spend on electricity is again a factor which goes very much against his assertions qua the occupation of premises also. The cost of kerosene, as calculated by the appellate authority, goes much more than the charges for electricity consumption. This explanation rather strengthens the case of the landlord that the tenant has ceased to occupy these premises during the period of 12 months and there was no reasonable cause for the tenant to do so. The conduct of the tenant and the nature of the evidence adduced by him further indicates that he was living in the accommodation of his brother in old Butail Building since his brother appears to have shifted to Rajgarh. Keeping of luggage does not mean anything if the tenant does not come to visit or stay in the premises in question at any time during this period. See G.C. Bhatia Vs. R.L. Seth, AIR 1987 HP 69 CC. Bhatia v. R.L. Seith, but no such thing is available in the present case. (Pp. 219, 220, 221 and 222) 15. The other decision relied upon by the learned senior Counsel may be considered. In Gurbachan Singh v. Ravinder Nath Bhalla and others, Latest HLJ 2006 (HP) 177, this Court held: 12. In S. Gurbax Singh Vs. Shri Kali Dass, (1980) ShimLC 192 it was found that the tenant had only consumed 2 units of electricity and the ordinary place of residence of the tenant was Sundernager and he used to visit Shimla casually. In Gurbachan Singh v. Ravinder Nath Bhalla and others, Latest HLJ 2006 (HP) 177, this Court held: 12. In S. Gurbax Singh Vs. Shri Kali Dass, (1980) ShimLC 192 it was found that the tenant had only consumed 2 units of electricity and the ordinary place of residence of the tenant was Sundernager and he used to visit Shimla casually. It was also found that the version of the tenant that he or his family members had been residing in the disputed premises at Shimla for about 5 months in a year was definitely wrong and it was found that the tenant had not been using the premises in question for his residence purpose. It was also found that as per the Electricity Department the premises were found in locked condition as and when they had gone there for meter reading. Taking all these facts into consideration, it was found that the tenant had a ceased to occupy the premises for a continuous period of 12 months. In my opinion, the law laid down by this Court in the above mentioned authority fully applies to the facts of the present case. The law laid down in S. Gurbax Singh's case (supra) was followed by this Court in Mohinder Singh Vs. Mohd. Ibrahim and Another, AIR 1982 HP 95 . It was held that on occasional visit by the tenant amounts to non-occupation of the building and that the Tribunals below were justified in holding that the tenants had ceased to occupy the building in question for a continuous period of 12 months without reasonable cause. So far as the authority G.C. Bhatia v. R.L. Seth, 1986 Simla Law Cases 168, relied upon by the learned Counsel for the petitioner-tenant, is concerned, in my opinion, on the facts and circumstances of the present case the law laid down in the said authority would have no application to the facts of the present case. (Pp. 181 & 182) 16. To similar effect is the judgment in Amrit Lal Sehgal v. Smt. Ramawati Sahu, 2006 (2) 1366, holding: 7. As already noticed, even the tenant himself says that his brothers, sisters etc. visit the premises and stay there for sometime, which means that the premises are being used only as a tourist resort by the relatives of tenant-revision petitioner. To similar effect is the judgment in Amrit Lal Sehgal v. Smt. Ramawati Sahu, 2006 (2) 1366, holding: 7. As already noticed, even the tenant himself says that his brothers, sisters etc. visit the premises and stay there for sometime, which means that the premises are being used only as a tourist resort by the relatives of tenant-revision petitioner. It is by now well settled that occasional visit to the tenanted premises by the tenant do not amount to the tenant continuing in occupation of the premises. Reference in this behalf may be made to Sohan Lal Khanna v. Amar Singh, 2000, (2) Latest HLJ 1008, St. Michaeal's Cathedral Catholic Club Vs. Smt. Harbans Kaur Nayani, and Gurbachan Singh v. Ravinder Nath Bhalla and others Latest HLJ 2006 (HP) 177. Therefore, no fault can be found with the finding by the Appellate Authority that the tenant had ceased to occupy the premises for a period of 12 months, before the institution of the petition. (P.1368) 17. Lastly, in Vipin Kumar Vs. Raj Kumar, (2010) 3 ShimLC 168 this Court relying upon another decision of this Court in Amar Singh Vs. Sohan Lal Khanna, (1982) 11 ILR HP 592 has held that merely on the basis of consumption of few units of electricity in some months would not mean that the person was staying in the suit premises. This Court holds:-- 13. Having gone through the relevant record as also the finding recorded by the authorities, in my opinion, no error of law has been committed either the Rent Controller or by the Appellate Authority. 14. Looking to the evidence of Tax Inspector, Election Kanungo, an official from the Himachal Pradesh State Electricity Board and Smt. Shyama Sharma, it is clear that the suit premises was found locked. The Tax Inspector, in his evidence, stated that whenever he visited the suit premises, it was found locked. The Election kanungo said that earlier the name of the tenant appeared in the voter's list but subsequently, it was deleted. Smt. Shyama Sharma deposed that since 1988, she was staying in the neighborhood of tenant and she had always seen the suit premises locked. Regarding Meter Reading, it is no doubt true that for few months, there was electricity consumption. Smt. Shyama Sharma deposed that since 1988, she was staying in the neighborhood of tenant and she had always seen the suit premises locked. Regarding Meter Reading, it is no doubt true that for few months, there was electricity consumption. In my opinion, however, both the authorities have rightly observed that merely on the basis of consumption of electricity to the extent of few units (5 or 10), it could not be said that a person is staying in the suit premises. Before the Appellate Authority, some judgment were cited in which was mentioned that the fact of non-consumption of electricity was totally irrelevant. In my opinion, however, the said fact cannot be said to be irrelevant altogether. It may not be a clinching circumstance but it is one of the facts which has to be considered by the authorities while deciding the issue as to non-user by the tenant. 16. Again, it was specifically that the tenant, which has been recorded in the judgment the Appellate Authority admitted by the tenant was served with a copy of the petition at his Faridabad address and all communications were served upon him at his Faridabad address. In the light of these circumstances, if a finding is recorded by the authorities that after retirement, the tenant had stayed at Faridabad with his children, it cannot be said that no such finding could have been arrived at and it requires to be interfered by this Court. (P. 172 & 173) 18. Looking to the totality of the evidence as brought on record, there is no escape from the conclusion that the premises in question were not occupied at all and that the deceased tenant Sh. Kashmiri Lal had ceased to occupy the premises. I may add that these are residential premises and if as alleged by the tenant that he was in occupation since his son was carrying on business at Shimla, the normal consequence would be that he was visiting the premises at night and could not be expected to live in a dark and dingy premises. 19. The objection raised by the learned Counsel appearing for the respondents that this Court in revisional jurisdiction cannot re-appreciate the evidence is an established principle of law. 19. The objection raised by the learned Counsel appearing for the respondents that this Court in revisional jurisdiction cannot re-appreciate the evidence is an established principle of law. What I find from the facts of the present case are that despite overwhelming evidence existing on record, the learned appellate authority chooses to gloss over it and raises a "presumption of occupation of the premises merely on the ground that the son of the tenant was carrying on business of Chat vendor at Shimla and in this eventuality would be occupying the premises. This presumption has been raised as inference from the evidence on record. I find no such inference could be raised as the facts do not establish his occupation of the premises as observed supra. Three factors were totally ignored by the learned appellate Authority Viz. (a) that late Sh. Kashmiri Lal and his family members had a ration card issued at their village Lusada, District Hoshiarpur and there was no ration card issued either in the name of the deceased tenant or his son Mohinder Pal or any other persons related to him at Shimla. (b) Their names did not figure in the voters list at Shimla (c) There was no consumption of electricity by the respondent. When these facts are ignored which are a matter of proof and established on the record, there was no discretion vested with the appellate authority to assume facts which, in fact, did not exist and it is in this eventuality that the conclusion arrived at would be perverse. It is well settled that in such eventuality this Court is vested to the jurisdiction to look into the evidence. The revision petition is allowed and the order of the learned appellate authority is quashed and set aside and a decree for eviction is granted in favour of the petitioner and against the respondents.