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2014 DIGILAW 1705 (PNJ)

Pushpa Sharma v. Sat Pal

2014-12-10

G.S.SANDHAWALIA

body2014
JUDGMENT Mr. G.S. Sandhawalia, J.: - The present revision petition filed under Section 15(5) of the East Punjab Urban Rent Restrict Act, 1949 (as applicable to Chandigarh) (in short ‘the Act’) has been filed by the petitioner-landlord against the judgment dated 26.07.2010 of the Appellate Authority, Chandigarh which had allowed the appeal of the tenant and dismissed the eviction petition. The reason for dismissal was that the ground of eviction that the tenant had ceased to occupy could not be proved since there was no proof that there was no electricity consumption in the premises in question. It was accordingly held that since the landlord had not proved the factum of ceasing to occupy the building for a continuous period of four months without reasonable cause which was the requirement of the provision, the findings recorded by the Rent Controller were not justified and were accordingly reversed. 2. A perusal of the paper book would go on to show that the petitioner-landlord filed the eviction petition under Section 13 of the Act on the ground of non-payment of arrears of rent, the tenant had ceased to occupy the demised premises continuously for a period of more than 4 months and that the premises were required for own use and occupation. 3. The case of the landlord was that he was the owner of the premises consisting of a drawing room-cum-dining room which had been converted into two rooms by means of a wooden partition and one kitchen and toilet of H.No. 2886, Sector 38-C, Chandigarh, which was a single storey house. The premises had been let out @ Rs.1,250/- per month after excluding electricity and water charges which were to be borne equally by the parties and that premises could not be sub-let and landlord had provided one sofa set, two fans. The arrears were claimed from March, 1997 till the date of filing i.e. 04.02.1999 @ Rs.1,250/- and @ Rs.750/- per month for earlier period from 01.01.1996 to 02.02.1997 as tender had been made short in the earlier proceedings. 4. The arrears were claimed from March, 1997 till the date of filing i.e. 04.02.1999 @ Rs.1,250/- and @ Rs.750/- per month for earlier period from 01.01.1996 to 02.02.1997 as tender had been made short in the earlier proceedings. 4. The tenant contested the petition by taking the plea that earlier a similar petition was pending and the tenancy was oral and not executed in the presence of the alleged persons and the rate of rent was @ Rs.500/- per month and he had already paid and tendered rent upto February, 1997 and had never been given the receipt and from 01.03.1997 to 22.02.1998 @ Rs.500/- per month which had been tendered on 07.03.2011. The premises had not been vacated as such and the tenant was in use and occupation and neither that the landlord required it for his personal use and occupation. The following issues were framed by the Rent Controller:- “(1) Whether the respondent is liable to be evicted from the demised premises on the ground of non payment of arrears of rent? OPP. (2) Whether the respondent is liable to be evicted from the demised premises as he has ceased to occupy the demised premises for a period of more than four months? OPP (3) Whether the respondent is liable to be evicted from the demises premises as premises is bonafidely required by the petitioner for his own use and occupation and also for son? OPP (4) Whether the rate of rent is Rs. 500/- per month and not Rs. 500/- per month and not Rs. 1250/- per month? OPR (5) Relief.” 5. The Rent Controller, taking into consideration the statement of Kuldip Singh as PW-1 and Madan Mohan Sharma, the deceased-landlord as PW-2 and Sohan Lal, Process Server and Gulshan Sharma as PW-3 and PW-4, came to the conclusion that the rate of rent was Rs.500/- per month and decided the issue no. 1 against the petitioner and issue no. 4 in favour of the tenant. A finding was recorded on the issue no. 2 of ceasing to occupy on the basis of the statements of the witnesses that RW-5, the tenant, had failed to prove that he was still living in the demised premises since it was the case of the landlord that the tenant had shifted to H.No. 1473, Sector 20, Chandigarh and thereafter to H.No. 741, Sector 41, Chandigarh. 2 of ceasing to occupy on the basis of the statements of the witnesses that RW-5, the tenant, had failed to prove that he was still living in the demised premises since it was the case of the landlord that the tenant had shifted to H.No. 1473, Sector 20, Chandigarh and thereafter to H.No. 741, Sector 41, Chandigarh. The statements of RW-2 Shiv Kumar, RW-3 Naresh Pal, the nephew and one scooter mechanic were rejected. Similar was the case pertaining to the statement of Sanjay Srivastava RW-4 on account of the fact that though they were interested witnesses but they did not know the background of the parties. It was noticed that even the ration card was not produced by the tenant and in his cross examination, he could not tell the name of the tenant living on the first floor. Accordingly, the issue was decided in favour of the landlord. The issue of bona fide necessity was decided against the landlord on the ground that construction had been raised on the first floor and the requirement was just a mere desire since the construction which had been raised was of two rooms, drawing-cum-dining room, two kitchens, latrine and a store and accordingly, eviction was ordered on the ground of ceasing to occupy. 6. The appeal filed by the respondent-tenant was accepted on the ground that since the bailiff had visited the premises on 12.12.2001 and found them locked and the neighbours had told that Sat Pal had left the premises 2-3 years ago, therefore, the petition having been filed in February, 1999, the evidence was not of such nature to show that the tenant had ceased to occupy the premises for the last more than 4 months prior to the filing of the petition. No neighbour had been examined to prove the fact and the cause of action would arise on account of ceasing to occupy for a period of 4 months prior to the filing of the petition. It was noticed that since no sweeper, hawker or milk vendor and meter reader had been examined, therefore, there was no sufficient evidence whether the tenant had ceased to occupy. It was noticed that since no sweeper, hawker or milk vendor and meter reader had been examined, therefore, there was no sufficient evidence whether the tenant had ceased to occupy. It was also noticed that the tenant had not paid any mesne profits after the passing of the order by this Court but since no cross appeal had been filed, therefore, non-payment of mesne profits could not be a ground for dismissal of appeal. Accordingly, the present revision petition has been filed. 7. In the revision, an application was filed for early hearing and it was submitted that the respondent Sat Pal was living in his own house at 322, Govind Bihar, Baltana, Tehsil Derabassi, District SAS Nagar, Mohali and premises have been kept locked to harass the landlady since in the meantime, the original landlord had died during the pendency of the appellate proceedings. This Court, keeping in view the background of the case, appointed a Local Commissioner on 26.11.2014 namely Mr. Jagdeep Singh, Advocate, who was present in Court. He was asked to visit the premises in question and submit a report whether the premises were being kept locked or the tenant was occupying the premises. He was given liberty to find out from the immediate neighbourhood regarding the fact and he was to visit the premises on 28.11.2014. 8. His report alongwith the photographs has been placed on record wherein, he mentioned that he went to the house at 3.55 p.m. and associated four neighbours of the premises in question and found that there were two portions in the house on the first floor and the family of Gulshan Sharma S/o Madan Mohan Sharma was residing in two rooms and one kitchen on the right hand side of the house whereas the other portion of the house on the left hand side was locked. It was mentioned that he had verified from the said neighbours that no one was residing in the portion of the house since more than 10 to 15 years. Photographs of the premises lying locked were also attached. 9. Keeping in view the cumulative background of the case, this Court is of the opinion that the finding recorded by the Rent Controller was well justified regarding the factum that the tenant had ceased to occupy and the Appellate Authority was not justified in reversing the findings. Photographs of the premises lying locked were also attached. 9. Keeping in view the cumulative background of the case, this Court is of the opinion that the finding recorded by the Rent Controller was well justified regarding the factum that the tenant had ceased to occupy and the Appellate Authority was not justified in reversing the findings. This Court in, Varun Gupta and others vs. Shree Sanatan Dharam Sabha, 2007 (3) PLR 649 has held that the onus is on the landlord to prove that the tenant has ceased to occupy the demised premises for the required period and the burden then shifts to the tenant to rebut the same. 10. In the present case, as noticed, it was categorical case of the landlord that the premises were lying locked since September, 1997 on account of shifting of the tenant to another premises. The arrears of rent were also claimed for that period. The witnesses of the tenant were disbelieved and once the onus had shifted, the tenant also failed to show that he has any proof of residence thereafter and even did not produce his ration card. The Rent Controller also noticed that the names of the tenants living on the first floor on which construction had been raised could not also be told by the tenant who had appeared as RW-5. This Court in Ram Kishan vs. Dev Raj and others, 1991 (2) PLR 500 also held that the onus shifts upon the tenant to plead and prove sufficient cause. In the present case, it is also to be noticed that initially, ex parte eviction order had been passed and when execution proceedings commenced, the report was received from the bailiff that in the year 2001 when he had visited the premises, they were lying locked. Thus, there was sufficient material to show that the landlord had taken a correct plea and the onus had shifted upon the tenant. The bailiff was an independent witness alongwith the process server also who was examined as PW-3. On enquiry from the neighbours of H.No. 2885 and 2887, it was found that the premises were locked. Similarly, PW-3, the process server has also stated that munadi had been effected on 24.10.2000 and he had pasted the summons on the house which was lying locked and he had proved his report Ex.PW-3/1. On enquiry from the neighbours of H.No. 2885 and 2887, it was found that the premises were locked. Similarly, PW-3, the process server has also stated that munadi had been effected on 24.10.2000 and he had pasted the summons on the house which was lying locked and he had proved his report Ex.PW-3/1. Accordingly, there is sufficient material to show that the premises were lying locked and the Appellate Authority was not justified in holding that there was no proof. The onus having been shifted upon the tenant, it was for him to prove that he was residing in the premises, which he failed to do by producing anything on the record. 11. It is important to note that the premises in question are part of the house and only one common drawing and dining room had been let out which had been partitioned by wooden partition and even the electricity and water charges were to be borne equally by the parties. Thus, there was no independent electricity connection in the premises which could have shown that the premises were not being used by the tenant and in such circumstances finding of the Appellate Authority that no witness from the said department had been examined by the landlord was without any basis. Lastly, it is also to be noticed that in view of the categorical stand taken, a Local Commissioner was appointed who visited the premises on 28.11.2014 immediately two days later from his date of appointment and he also found that the premises were lying locked. Counsel for the respondent, at the time of appointment of Local Commissioner, had also admitted that the tenant was not in touch with him and was not responding to the correspondence and accordingly, the Local Commissioner was appointed vide order dated 26.11.2014. No objection have also been filed against the report of the Local Commissioner. In similar circumstances, this Court in Jaswant Kaur vs. Sarla Devi, 1987 (2) PLR 145 relied upon the report of the Local Commissioner and held that it would be proper and reliable evidence and allowed the revision petition and set aside the orders of the Courts below and directed ejectment. In similar circumstances, this Court in Jaswant Kaur vs. Sarla Devi, 1987 (2) PLR 145 relied upon the report of the Local Commissioner and held that it would be proper and reliable evidence and allowed the revision petition and set aside the orders of the Courts below and directed ejectment. The relevant observations read thus:- “8.........As a matter of fact, in view of the said report of the local commissioner, no meaningful argument could be raised on behalf of the tenant-respondent except that the said report could not be relied upon. In such like cases, the report of the local commissioner appointed by the authorities will be proper and reliable evidence. Thus, from the facts and circumstances of the case, the only conclusion from the evidence on the record is that the tenant has ceased to occupy the premises for more than four months without any sufficient cause. The approach of the authorities below in this behalf was wholly wrong, illegal and misconceived and the findings arrived at are improper. The observations made by the Appellate Authority- “Thus in my opinion the accounts books were the best evidence to prove whether the shop in dispute is lying closed or not and non-production of these accounts does not in any way adversely affect the case of the respondent.” are wholly erroneous. As observed earlier the positive evidence, i.e. the tenant was occupying the premises in dispute, could only be produced by the tenant herself and one of the modes of proving that would have been to produce the accounts which are admitted to be maintained, by the tenant. Having failed to produce any cogent evidence in regard to the occupation of the demised premises by the tenant, further, whether she had ceased to occupy the premises without any reasonable cause or not could be proved by her alone. It was not the case of the tenant that she had ceased to occupy the premises for any sufficient cause; rather the case set up by her was that he never failed to occupy the premises, which she failed to prove by any 9. For the reasons recorded above, this revision petition succeeds and is allowed. The impugned orders of the authorities below are set aside and the eviction application filed against the tenant is allowed. For the reasons recorded above, this revision petition succeeds and is allowed. The impugned orders of the authorities below are set aside and the eviction application filed against the tenant is allowed. However, the tenant is allowed three months’ time to vacate the premises; provided all the arrears of rent, if any, are paid within one month from today alongwith an undertaking, in writing, that after the expiry of the said period, the premises would be vacated and the vacant possession thereof would be handed over to the landlady and the rent will be paid regularly in advance by the tenth of every month.” 12. Accordingly, keeping in view the above discussion, this Court is of the opinion that the order dated 26.07.2010 passed by the Appellate Authority, Chandigarh is not justified and the same is set aside and the order of the Rent Controller directing eviction on the issue of ceasing to occupy is restored. The revision petition stands allowed accordingly. Since the premises have already been found to be locked by the Local Commissioner, this Court is of the opinion that no further time is required to be given to the tenant to vacate. The petitioner-landlady is entitled to take possession of the premises in question in accordance with law. ---------0.B.S.0------------ —————————