Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 684 (PNJ)

Raj Kumar v. Sham Sunder Mehta

2014-04-08

BHARAT BHUSHAN

body2014
JUDGMENT Dr. Bharat Bhushan, J. Landlord-Sham Sunder Mehta, had sought ejectment of the tenant interalia on the ground of subletting, material impairment in the value and utility of the premises and requirement of the premises for his own use and necessity. Despite the fact that the landlord had contested the petition only on the ground of personal bonafide necessity while leaving all other grounds of ejectment but had lost at the legal hustings even on that count. The appellate authority reversing the findings of the Rent Controller adjudicated the ground of subletting against the tenant and ordered his eviction as also of the alleged sub-tenant. 2. Tenant, Raj Kumar has come up in the revision petition claiming that the alleged sub-tenant is none else but his son who is helping him in carrying out the business in the shop in dispute. It is claimed that the appellate authority has gone far and beyond testimony of the witnesses in ordering ejectment of the tenant. 3. Counsel for the respondent-landlord on the other hand has urged that subletting is a secret arrangement for which direct and clear evidence is seldom available. It is claimed that notwithstanding the fact that sub-lessee is son of the tenant, he being in exclusive possession of the shop, is none else but sub-lessee making himself liable for ejectment. It is claimed that judgment of the appellate authority cannot be faltered on any count. 4. Counsel for the parties have been heard while going through the grounds of revision petition, impugned orders and other facts and circumstances available on the paper book. 5. Shop in dispute is under tenancy of revisionist Raj Kumar since long. Revisionist Raj Kumar is the tenant while Sham Sunder Mehta respondent No. 1 is the landlord and Vijay Kumar respondent No. 2 is son of revisionist Raj Kumar. He is alleged to be a sub-lessee under the revisionist Raj Kumar. Neither relationship of landlord and tenant between respondent No. 1 and the revisionist is questioned nor the fact of respondent No. 2 being son of the revisionist is under challenge. 6. It is strange that the appellate authority without giving any reasons revived the issue of subletting even though in clear and categorical terms, it had been given up by the landlord during decision of the petition by the Rent Controller, Rajpura. 6. It is strange that the appellate authority without giving any reasons revived the issue of subletting even though in clear and categorical terms, it had been given up by the landlord during decision of the petition by the Rent Controller, Rajpura. Acting upon, interalia, the plea of non-pressing of ground of subletting by the landlord, decision had been rendered by the Rent Controller, vide impugned judgment of 17.10.2002 against the landlord. Clearly enough, there were no circumstances to revive such plea of subletting when the same had not been assailed and pressed for by the landlord. 7. Even otherwise, when merits of this issue are examined, it turns out to be a clear case of mis-appreciation of evidence as also of ignoring of certain vital aspects resulting in miscarriage of justice let loose by the appellate authority. 8. Merely because respondent Vijay Kumar is assisting his father, revisionist Raj Kumar in running the business without any consideration, except for love and affection as also obedience to his father, there is nothing wrong in it. Employment of tenant Raj Kumar with Panchayat Department ipso facto is no ground to raise a presumption that a case of subletting of premises under tenancy with him to his son is made out. Rather, it remains a fact that revisionist Raj Kumar was in employment even at the time of filing of the petition and presumably was so even earlier. Employment of revisionist Raj Kumar cannot be construed to his prejudice to deny him status of a tenant which legitimately belongs to him. 9. Even from the averments in the petition of landlord Sham Sunder Mehta respondent No. 1 even when he was in employment, had taken the shop on tenancy to run his business. To carry on business while being in employment may entail departmental action against him by his employer but by no means this fact would be sufficient to snap the relationship of landlord and tenant between the contracting parties. 10. Presumption raised by the appellate authority that since tenant is in employment and his son had been seen working in the premises and thus, there is sub-tenancy is clearly a mis-founded approach. 10. Presumption raised by the appellate authority that since tenant is in employment and his son had been seen working in the premises and thus, there is sub-tenancy is clearly a mis-founded approach. Even if it be taken to be a case of non-existence of Joint Hindu Family business as is claimed by the tenant and notwithstanding such specific stand of the tenant taken in his written statement, raising a presumption of subletting by father to his son by the appellate authority is absolutely wrong. If by violating his allegiance to his employer, revisionist-tenant defying his presence in the office for discharge of his duties under his employer is carrying on business as a fact then there is no presumption that he is attending to his duties and is carrying on his work there and is not attending to his shop under tenancy when physically he has been proved to be running business in the shop of course being supported by his son, whenever and wherever he is available from his own business and calling he is pursuing independently. 11. Even on re-appreciation of evidence, there is no exclusivity of possession of the shop being with respondent No. 2. Subletting as a ground for eviction of a tenant is to be proved by the landlord and an adverse inference cannot be drawn against the tenant on that count. There is unassailed testimony of revisionist Raj Kumar (RW-4) that respondent Vijay Kumar is living with him in joint family. Consistent case of the revisionist Raj Kumar is that it is Joint Hindu Family business and that respondent Vijay Kumar being his son is no stranger to such Joint Hindu Family business. Statement of revisionist Raj Kumar that respondent Vijay Kumar, his unmarried son is living with him and being part of the family, is helping him in his business of Joint Hindu Family, has not been questioned much less successfully. 12. If plea of the respondent-landlord of sub-tenancy for arguments sake is considered for a while, it is found that at the time of subletting respondent Vijay Kumar son of revisionist Raj Kumar was only a school going child and even had not come of age. 12. If plea of the respondent-landlord of sub-tenancy for arguments sake is considered for a while, it is found that at the time of subletting respondent Vijay Kumar son of revisionist Raj Kumar was only a school going child and even had not come of age. There is absolutely no evidence of delivery of exclusive possession of the shop by the revisionist to respondent Vijay Kumar and there is also complete absence of evidence of payment of any consideration by the respondent son to the revisionist-tenant father. 13. Even when landlord Sham Sunder entered the witness box as AW-3, supported and sustained by Ram Dutt AW-2, there is not even a whisper in their cross- examination that Vijay Kumar is not living jointly with his father revisionist Raj Kumar. There is no reason why presumption that unmarried son is living jointly with his father till such presumption is rebutted is raised in favour of the tenant Raj Kumar. Raj Kumar with his son Vijay Kumar alleged to be a sub-lessee is living with him in joint family particularly when such categorical statement of Vijay Kumar RW-1 has not been questioned and Fakir Chand appearing as AW-1 and Ram Dutt appearing as AW-2 have not been able to make out a case of separate residence of Vijay Kumar. Even if we go by pleadings of the respondent landlord separate residence of Vijay Kumar has nowhere been depicted much less proved. 14. In view of the circumstances discussed and evaluated in detail, authority cited as Parikshant Suri & ors. v. Ashok Kohli & anr. 2010 Supplementary CCC 649 (P&H) by the counsel for the respondent-landlord in a bid to prove subletting in the interface of entirely different set of circumstances, with due deference, does not come to the help of the landlord. 15. Reversing the findings of the appellate authority interalia on the issue of subletting, this revision petition is accepted. Sequelly, the petition of the landlord for ejectment of the tenant is dismissed.