Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 854 (HP)

Mian Ram Malhotra v. Sardar Tarlochan Singh

2013-09-27

DEV DARSHAN SUD

body2013
JUDGMENT : Dev Darshan Sud, J. - This rent revision has been preferred by the landlord against the judgment of the learned appellate Authority affirming the order passed by the learned Rent Controller, Mandi, dismissing the petition for eviction preferred by the petitioners herein. 2. The petitioners have sought eviction of the respondents under Sections 14(2)(ii)(a) and 14(2)(v) of the H.P. Urban Rent Control Act (hereinafter referred to as the `Act') on the pleading that the respondent Sardar Tarlochan Singh has sublet and transferred his rights under lease of the shop in dispute to the second respondent Shri Tarlok Singh, after the commencement of the Act, without the consent of the landlord and that the first respondent Tarlochan Singh ceased to occupy the premises for a continuous period of 12 months preceding to filing of the eviction petition. 3. The disputed premises are owned by the Arya Samaj Society and Shri Dharam Pal, second petitioner, is its Secretary, who has been authorised by a Resolution Ex.P-1 to file the eviction petition. The premises were let out to the first respondent Sardar Tarlochan Singh in the year 1966, but he sublet these premises in 1988 to the second respondent which are now in his exclusive possession and he has been running the business of transport etc. 4. Shri Chet Ram PW-2 stated that he was Secretary of the Arya Samaj Society in the year 1966 when these premises were rented out to the first respondent who sublet these premises to the second respondent who was carrying on his business there. In rebuttal, Sardar Tarlochan Singh examined himself as RW-1 and Kuldeep Singh as RW-2. He stated that he has taken on rent one shop and one store from Arya Samaj Society, Mandi. He has surrendered the possession of the room in the basement in the year 1980-81 to the Society. He suffered losses in the business and therefore, he disconnected the electricity meter in the shop. He has been storing medicines in the shop. He says that there is a board displaying the name of his business. He has not sublet these premises to anyone and they are under his lock and key. He states that he has his store in these premises. Ex.P-1 is a Resolution of Arya Samaj, Ex.RA is a notice and there is no other document on the record. He says that there is a board displaying the name of his business. He has not sublet these premises to anyone and they are under his lock and key. He states that he has his store in these premises. Ex.P-1 is a Resolution of Arya Samaj, Ex.RA is a notice and there is no other document on the record. Learned Rent Controller also holds that the respondent has been able to prove that he has been occupying the premises for continuous period of 12 months and infact the petitioner led no evidence that the respondent has ceased to occupy the demised premises for a continuous period of 12 months. 5. I note from the record that first respondent Tarlochan Singh was duly served and on 23.3.1991 was proceeded ex-parte. Six issues were settled on 11.4.1991. The case was also listed before the Lok Adalat for conciliation. No compromise could be arrived at. On 18.12.1991 an additional issue No. 1(a) was framed by learned Rent Controller as to whether the respondent No. 1 was still in possession of the shop in dispute. Onus of this issue was placed on the first respondent. While trying the petition, issues No. 1 and 1(a) were taken up together. On the first issue that the premises were sublet, the burden was on the landlord and on additional issue No. 1(a), as to whether first respondent was still in possession of demised premises, the burden was on the respondents. 6. I find from the analysis of the evidence that the learned Rent Controller has been remiss in determining both these issues. There is no evidence on record by the respondents to establish that the premises were in-fact in possession of the first respondent or that he had a medicines store therein. The onus or burden to prove the possession of premises being on him, some evidence, barring his statement, is required to be proved. I advert to the Court record. By order dated 17.1.1992 the Court records:- "17.1.1992 Upasthit: None Is samay vaquat 10.30 A.M. hai. Dwara pukara jayega. R.C. Dwara pukara gaya Upasthit: Shri S.K. Vaidya, Adhivakta prarthi. Shri Lalit Kapoor, Adhivakta up Shri P.P. Goel, Adhivakta, prarthi No. 1, Prarthi No. 2 swayam hazar hai. Respondent No. 2 stated that he does not want to context (sic - contest) the petition. The petition be decreed against him. Dwara pukara jayega. R.C. Dwara pukara gaya Upasthit: Shri S.K. Vaidya, Adhivakta prarthi. Shri Lalit Kapoor, Adhivakta up Shri P.P. Goel, Adhivakta, prarthi No. 1, Prarthi No. 2 swayam hazar hai. Respondent No. 2 stated that he does not want to context (sic - contest) the petition. The petition be decreed against him. Separate statement on oath has been recorded and placed on the file. PWs Tara Chand, Murari Lal and Chet Ram are present. They could not be examined as respondent No. 1 has made a request that his counsel is admitted to hospital due to accident. Adjournment as prayed for is allowed. PWs are discharged for today. The expenses are met by the respondent No. 1. Let the PWs be summoned for 7-3-92. Sd/- Sub Judge (III)" 7. Respondent No. 2 himself stated on oath as under:- "Vyan Shri Tarlok Singh S/o Shri Thakur Dass R/O H.No.15/13, Mangnau, Prop. Shimla Goods Transport, Moti Bazar, Mandi. Shshapath 17.1.92 Vyan kiya mukkadama haza se mera koi sambadh na hai na hi main is case ki pairvi karna chahta hoon tatha mere khilaf daba haza decree kiya jave." "Statement of Shri Tarlok Singh son of Shri Thakur Dass Resident of H.No. 15/13, Mangnau, Proprietor Shimla Goods Transport, Moti Bazar, Mandi. On Oath 17.1.92 Stated that I have no connection with the suit and do not want to contest the claim of the petitioner, therefore, suit may be decreed against me." 8. Respondent No. 2 stated that he does not want to contest the petition. The petition be decreed against him. Separate statement on oath has been recorded and placed on the file. An application under Order 6 Rule 17 and Order 1 Rule 8 read with Section 151 of the Code of Civil Procedure was filed for correct description of the petitioners, which was allowed. In any event, on 11.10.1993, counsel for the respondent stated that he had no objection of the application being allowed, it is in this backdrop that on 3.10.1994, an application was moved for impleading the legal heirs of second respondent Tarlochan Singh who died on 18.6.1994 which was allowed. The reply of the second respondent is terse and as a matter of fact is no reply at all. In para-11 of the reply, this respondent submits:- "11. Para No. 11 of the Petition is admitted. The reply of the second respondent is terse and as a matter of fact is no reply at all. In para-11 of the reply, this respondent submits:- "11. Para No. 11 of the Petition is admitted. In reply to this Para it is submitted that for the last so many years the rent is duly received by the Petitioner from Respondent No. 2 without raising any objection of his status in the said shop hence the Petitioners are estopped to file the Petition by their own act and conduct." On the other grounds there is a plain and bald denial of the allegations of the petitioners. The second respondent having conceded and accepted the claim of the petitioners on the reply in paragraph-11 there can be no doubt that the premises were in his possession but he claimed them on the basis of tenancy which he did not prove. Both the Courts below were in grave error in not considering this aspect. Having taken a different stand that he was a tenant in the demised premises, no other evidence is required to establish sub-letting as his tenancy has not been established on the record. 9. I also find that the evidence of the first respondent is incomplete to establish his possession. He says that there is a board displaying the name of his business in the premises, but there is no evidence to that effect. He then again states that there is no electricity meter installed in the premises where he stored his medicines which fact is not proved. It is difficult to believe that any person, who is carrying on business, can run it without any electricity or other facilities. 10. In Rachhpal Singh v. Chander Mohan, 1999(2) S.L.J. 1311, this Court holds:- "10. On appreciation of above evidence, along with the documentary evidence on the record, both the Rent Controller as well as the Appellate Authority have come to the conclusion that the petitioner has not been able to satisfactorily explain why he had rented another shop at Nangal Mor and also why there was non-consumption of electricity in respect of the shop in dispute. In this connection reference may be made to para 17 of the order of the Rent Controller. In this connection reference may be made to para 17 of the order of the Rent Controller. Similarly, the Appellate Authority has also come to the conclusion that had the petitioner transacted his business from the shop in dispute, there should have been consumption of electricity. This, however, is belied by the evidence produced by the landlord (respondent),namely, the statement of Charanjit (PW5), according to him, the reading in the electric meter installed there remained steady at 5640 units rights from May, 1990 till March, 1993. 11. Another circumstances which has been stressed by the Appellate Authority in paragraph 26 of its impugned order is the non-production of the accounts books or any voucher or bill even by the petitioner showing that he had transacted business from the shop in dispute. The learned counsel for the petitioner has taken this Court through the evidence of the parties and has submitted that in the eviction petition the period during which the shop in dispute was lying locked has not been stated. But this argument is untenable inasmuch as para 18 of the eviction petition containing the grounds it is categorically stated that `the tenant has ceased to occupy the shop in dispute for a continuous period of more than 12 months i.e. for the last about more than seven years without any reasonable cause'. It is also stated that the shop in dispute is locked and no business is being run by the petitioner. 12. Apart from the above submissions, the learned counsel for the petitioner has cited case law which may briefly be analysed as regards its application to the facts of the present case. In the case of M/s. Babu Ram Ram Gopal v. Mathura Dass and others, it has been laid down that the non occupation of the premises by the tenant must continue till the date of filing of the eviction petition. The test has been satisfied in the present case as would be apparent from the pleadings and evidence referred to and discussed above." (pp.1313 & 1314) 11. I need not cite the entire case law on the point, but rely upon the decision of the Supreme Court in Nagindas Ramdas v. Dalpatram Icchsram alias Brijram and others, AIR 1974 SC 471 , wherein the Court holds:- "26........................ Admissions, if true and clear, are by far the best proof of the facts admitted. I need not cite the entire case law on the point, but rely upon the decision of the Supreme Court in Nagindas Ramdas v. Dalpatram Icchsram alias Brijram and others, AIR 1974 SC 471 , wherein the Court holds:- "26........................ Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong." (p.477) I find nothing on the record to contradict the admissions made by the second respondent. 12. The learned Appellate Authority had dismissed the petition on the ground that the landlord has not been able to prove the ingredients of subletting. It also notes that the second respondent in his reply had admitted the possession of the demised premises where he had stated that this respondent had been in possession of the demised premises for the last so many years without any objection from the petitioner. I have already extracted the relevant portion of the pleading hereinabove. But, what the learned Appellate Authority holds is that since he was proceeded ex-parte by order dated 17.4.1982, the petitioner has to succeed on its own evidence. I accept this finding of the Court as I note that a positive statement was made on behalf of the second respondent that an order of eviction be passed against him, coupled with the admission in writing, there cannot be any clearer evidence. 13. It is well settled that the revisional Court will not re-appreciate evidence but what I note from the proceedings is that both the learned Rent Controller and learned Appellate Authority have not at all considered the evidence, more especially admission made by second respondent. In these circumstances, judgment of both the Courts below is quashed and set aside and order of eviction is passed against the respondent.