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Himachal Pradesh High Court · body

2016 DIGILAW 897 (HP)

Adarsh Kumar v. Dheeraj Khanna

2016-05-24

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present Civil revision petition is directed against the order dated 30.11.2012, passed by learned Appellate Authority, Chamba Division in Civil Misc. Appeal (Rent) No.10/2010, affirming the order passed by learned Rent Controller, Dalhousie, District Chamba, H.P, whereby petition filed by the respondent was allowed. 2. Briefly stated facts necessary for the adjudication of the present case are that the petitioner (in short “ Respondent”) filed petition under Section 14 of the H.P. Urban Rent Control Act,1987 for eviction of respondent (in short “petitioner”) from the demised premises (in short “premises”) on the ground of arrears of rent as well as the tenant ceased to occupy the premises in question. Learned trial Court on the Whether reporters of the local papers may be allowed to see the judgment? basis of the material on record, allowed the petition and held that the respondent is in arrears of rent at the rate of 4000/-per annum from 30.6.2003 to 31.3.2004 for nine months and from 1.4.2004 to till date @ Rs.5000/- per annum. The petitioner has been further held entitled to the statutory interest at the rate of 9%, and in case the respondent pays the rent within 30 days of the order, the respondent is not to be evicted on that ground only. However, he has been held to be evicted on the ground of “ceased to occupy the premise” continuously for 12 months immediately preceding the institution of the petition. 3. Feeling aggrieved and dissatisfied with the aforesaid order passed by learned Rent Controller, present petitioner filed an appeal under Section 24(1)(b) of the H.P. Urban Rent Control Act, 1987 before the learned Appellate Authority, which was dismissed by the learned Appellate Authority and findings returned by the Rent Controller were upheld. The petitioner aggrieved and dissatisfied with the impugned judgment, passed by learned Appellate Authority, preferred the instant revision petition. 4. Mr. Paresh Sharma, learned counsel for the petitioner vehemently argued that the order/judgment passed by both the Courts below are not sustainable as the same are not based on correct appreciation of evidence available on record. He contended that learned Courts below has not specifically dealt with the pleas and arguments raised by the present petitioner. He also contended that learned Appellate Authority while deciding the case at hand have miserably failed to appreciate the evidence available on record in its right perspective. He contended that learned Courts below has not specifically dealt with the pleas and arguments raised by the present petitioner. He also contended that learned Appellate Authority while deciding the case at hand have miserably failed to appreciate the evidence available on record in its right perspective. During arguments, he invited attention of the court to the statements made by the parties, wherein respondent No.1 stated that he had been continuously running the shop in question since 1988 and had specifically denied that the premises in question remained closed from 20.12.2004 to May, 2006. Mr. Paresh Sharma, learned counsel forcibly contended that undue credence has been lent to the statement given by PW-2, Vijay Kumar, who was an official of Electricity Department, Dalhousie by the Court below because as per his statement there was a consumption of 20 units of electricity in December, 2004, 10 units in January, 2005 and premises was found locked in February, 2005. Thereafter, as per his statement 20 units in March, 2005 and premises were found locked from April, 2005 to November, 2005, 20 units in December, 2005 and premises were also found locked from January to March, 2006 and electricity was consumed in April, 2006, meaning thereby that the premises in question were not closed continuously 12 months, as has been concluded by both the Courts below. 5. Mr. Paresh Sharma, learned counsel also stated that the Court has failed to acknowledge the fact that PW-2, in his statement categorically admitted that at the time of delivering electricity bill it is not mentioned that the “premises found locked” and, as such, certainly inference could be drawn that the electricity bill was never issued during the relevant period. Moreover, Courts below have also relied upon the statement of PW-3, Hem Raj, who was unable to give identification of the premises and, as such, his version with regard to the property being closed could not be taken into consideration by both the Courts below. He also invited the attention of the Court to the statement given by RW-2, who has stated that the food licence of the petitioner was renewed for the period 2004-05 to 2006-07, which was sufficient enough to prove that the premises were never remained closed for a continuous period of 12 months. He also invited the attention of the Court to the statement given by RW-2, who has stated that the food licence of the petitioner was renewed for the period 2004-05 to 2006-07, which was sufficient enough to prove that the premises were never remained closed for a continuous period of 12 months. He also contended that there is ample evidence on record to suggest that petitioner never ceased to occupy the premises, rather during this period he had been continuously doing his business in the demised shop. He prayed that the present petition may be allowed and impugned judgment dated 30.11.2012 be quashed and setaside. 6. On the other hand, Mr.Nimish Gupta, learned counsel for the respondent supported the impugned judgments/order passed by both the Courts below. He strenuously argued that perusal of the order/judgment passed by both the Courts below clearly suggest that the same are based upon the correct evidence available on record. He forcibly contended that it stands duly proved that petitioner was in arrears of rent from 30.6.2003 till 31st March, 2004 to the tune of Rs. 30,000/- and thereafter 1.4.2004 to till date. 7. Mr. Gupta, strenuously argued that even the witness produced by the petitioner i.e. RW-2, Mohinder Puri categorically stated that the tenant had procured food licence for the year, 2005-06 and entry of the same had been made at page No.8 and 9. As per his statement, in the year, 2006-07 food licence was issued in favour of the petitioner but in his cross-examination he categorically admitted that the food licence was issued to respondent-tenant on 2.12.2005. 8. Mr. Gupta, learned counsel also contended that it stands duly proved on the record that the shop remained closed w.e.f. 20th December, 2006 to May, 2006 and during this period the tenant did not undertake any activity. He also argued that by leading cogent and liable evidence on record that the respondent discharged his onus to prove that the petitioner was in arrears of rent and “ceased to occupy” the premises but in the present case no evidence worth the name has been placed on record by the petitioner to suggest otherwise, rather witness produced by him has supported the case of the petitioner i.e.RW-1 where he has categorically stated that the Food Licence was issued to the respondent on 2.12.2005. He submitted that this is not the case, where interference of this Court is warranted because both the Courts below have dealt with each and every aspects of the matter meticulously. 9. I have heard the learned counsel for the parties and have also gone through the record carefully. 10. Pleadings on record suggest that the respondent landlord filed petition for eviction of the present petitioner tenant on the ground of non-payment of rent as well as “cease to occupy” the premises. Record reveals that respondent tenant took the objection that he had deposited the rent up to 30.6.2003 but same was not accepted by the landlord. He also denied that the premises were locked since December, 2004, rather he intended to prove that he was running a sweet shop in the demised premises continuously and case established by the landlord is false and frivolous and, as such, deserve to be dismissed. Record further reveals that Adrash Kumar (petitioner) had filed a Civil Revision No.48 of 2011 against the order dated 7.3.2011, passed by learned Appellate Authority, wherein this Court remanded the case back to the Appellate Authority with a direction to grant ample opportunity to the landlord as well as tenant to prove the records as referred by the witnesses i.e. PW-2 and RW-2. It was specifically ordered by Hon’ble High Court that evidence will be restricted only with respect to these witnesses only and nothing more. It appears that present petitioner being dissatisfied the order dated 7.3.20011 passed by the Appellate Authority approached Hon’ble High Court that no records either by HPSEB or by the Food and Civil Supply Department were made available while recording the statement of PW-2 and RW-2, especially they when appeared as official witnesses produced by the landlord as well as tenant respectively. Pursuant to the decision dated 19th July, 2012, matter was sent back to the Court of learned Appellate Authority for fresh decision. Accordingly, on 19.11.2012 both the witnesses namely PW-2, Vijay Kumar and RW-2, Mohinder Singh Puri were re-examined by the Appellate Authority. Learned Appellate Authority before examination of aforesaid witnesses formulated following question for adjudication:- 1. Pursuant to the decision dated 19th July, 2012, matter was sent back to the Court of learned Appellate Authority for fresh decision. Accordingly, on 19.11.2012 both the witnesses namely PW-2, Vijay Kumar and RW-2, Mohinder Singh Puri were re-examined by the Appellate Authority. Learned Appellate Authority before examination of aforesaid witnesses formulated following question for adjudication:- 1. Whether the findings returned by the learned Rent Controller, Dalhousie, that the tenant is in arrears of rent and had ceased to occupy the demise premises is legally sustainable in view of the facts and the evidence adduced before the learned Rent Controller and before this Authority or not. 2. Final order. 11. The question with regard to arrears of rent is not required to be dealt with by this Court in the present proceedings as the same stands decided and duly accepted by the parties because as per para No.13 the issue has been decided, wherein it has come that the tenant had admitted having paid rent only till 30.6.2003 and thereafter tried to send the rent through money orders but the landlord had not received it. Learned counsel representing both the parties stated that they did not dispute the fact that in terms of the order passed by Rent Controller that the present petitioner is continuously depositing the rent before the Rent Controller. Now question which remains to be decided by this Court is with regard to the ground taken by the respondent “ceased to occupy the demised premises”. Admittedly, onus is always upon the landlord to prove that demised premises were not in use for the last 12 months continuously to get the demises premises vacated. 12. Evidence was again recorded by the Appellate Authority in terms of the order passed by this Court, whereby on examination it has again re-emerged that after January, 2005, only 40 units have been consumed in the shop in question. In February, 2005 there was no consumption of electricity. In March, 20 units are shown to have been consumed. From April, 2006 till November, 2005 the premises were found locked. Thereafter, December, 2005, 20 units have been shown to be consumed but thereafter till April 2006, the premises were again found locked. The meter reading in April, 2005 was 2228 and in April, 2006 it was 2248. In March, 20 units are shown to have been consumed. From April, 2006 till November, 2005 the premises were found locked. Thereafter, December, 2005, 20 units have been shown to be consumed but thereafter till April 2006, the premises were again found locked. The meter reading in April, 2005 was 2228 and in April, 2006 it was 2248. PW-2, Vijay Kumar on his re-examination again stated that he has placed on record the extract of the meter reading vide Ex.PW2/A and admitted that the “premises locked” has been not mentioned in the electricity bill. It has also come in his statement that the meter reader takes the reading on every month and on the basis of the same, billing is done. 13. On the other hand, respondent with a view to dispute the fact that the premises were not being in use continuously for the last 12 months examined Mohinder Puri as RW-2, who in his statement before the Rent Controller stated that the tenant had procured the food licence for the years, 2004-05 and the entries whereof is entered at page No.8 and 9. It has also come in his statement that in the year, 2005-06 respondent-tenants had procured food licence, which stands registered at page No.18 and 19 at Sr. No. 77 on 2.12.2005. As per his statement, food licence was issued in the name of respondent-tenant in the year, 2006-07. However, it has come in his statement that date of issuance was generally not recorded in the register. However, being re-examined before the Appellate Authority, he produced the record and stated that food licence has been issued to the respondent-tenant and the entry in this behalf has been made in the food licence register. He also placed on record the extract of the same vide Ex.PW2/A which suggest the entry has been made at page No.8 and 9 in the year, 2005-06. Food licence was issued to the respondent-tenant Adarsh Kumar, entry of the abstract whereof is placed on record vide Ex.RW2/B. Abstract Ex.RW2/C showing issuance of food licence to the respondent-tenant in the year, 2006-07 was also placed on record by RW-2. But in his reexamination aforesaid witness RW-2 categorically admitted that food licence is issued to the respondent-tenant on 2.12.2005 and he also stated that the food licence is otherwise issued in April every year. But in his reexamination aforesaid witness RW-2 categorically admitted that food licence is issued to the respondent-tenant on 2.12.2005 and he also stated that the food licence is otherwise issued in April every year. Perusal of Ex.RW2/B also suggests that same stand issued on 2.12.2005. 14. In the present case, landlord who appeared as PW- 1, categorically stated that the demised premises i.e. shop remained closed w.e.f.20.12.2004 till May, 2006 and during this period respondent-tenant did not undertake any activity during this period and as such he “ceased to occupy” the said premises. PW-3, Hem Raj also supported the version of PW-1. He categorically stated in his statement that his shop is around 100 metres away from the demised premises. Conjoint reading of the statements given by PW-1 to PW-3 and RW-2 proves it beyond reasonable doubt that the shop in question remained closed w.e.f. March,2005 to May, 2006 and during this period no activity, whatsoever, was undertaken by the respondent tenant. Respondent-tenant, who himself appeared as RW-1 stated that he runs a sweet shop in the demised premises since the year,1988 but admittedly no document worth the name is placed on record by RW-1 to substantiate the plea. But in the present case, as has been observed above, no documents of the shop are placed on record by the respondent-tenant, which could be suggestive of the fact that actually during disputed period he undertook the business in the demised shop. RW-3, Babu Ram stated that his house is about 1 KM away from Dalhousie. As per his statement, respondent-tenant runs sweets shop and he is a labourer. Though, it has come in his statement that generally he has tea in the shop of Adarsh Kumar. As has been observed above, that RW-1 has not led any evidence to establish that during the disputed period, shop in question was ever being used by him. So mere assertion of RW- 3 that he usually tea in the shop of Adarsh Kumar cannot be accepted on its face value. Moreover, if all the evidence be it ocular or documentary available on record is considered in its entirety it leaves no doubt in the mind of the Court that the demised premises remained closed w.e.f. 20.12.2004 till May, 2006. Moreover, if all the evidence be it ocular or documentary available on record is considered in its entirety it leaves no doubt in the mind of the Court that the demised premises remained closed w.e.f. 20.12.2004 till May, 2006. By way of producing PW-2, Vijay Kumar, who is an official of electricity department, petitioner has discharged his onus by proving that during this period meter reading almost remained same and it stands proved from the statement of PW-2 that during this period most of the time premises were found locked. Non-mentioning of “demised premises locked” in the electricity bill is of no consequence as it is proved on record that during this period no electricity was used by the respondent-tenant. Objection with regard to the non-examination of the meter reader is also of no consequence because Official of electricity department himself proved the meter electricity bill on record and consumption of electricity can only be ascertained from the electricity bill. Role of meter reader is only to note down the reading on which basis electricity bill is issued. In the present case, it stands proved that during the relevant period shop in question remained closed occasionally and no electricity was used by the respondent-tenant. Though, it has come in the evidence that for some time very insignificant units have been consumed, but such use of electricity itself suggest that shop remained closed, it may be another thing that during this period respondent tenant may be making causal visit to the shop but there is nothing on record to presume that during this period, he was doing business in the shop. 15. RW-2, Mohinder Puri, who proved on record issuance of the food licence also stated that generally licence was issued in April of every month but in 2005-06 respondent tenant got his food licence renewed him on 2.12.2005, which corroborates the statement of PW-2, where he stated that in the month of December, 20 units have been consumed meaning thereby in the month of December, 2005 respondent tenant himself have visited or casually visited his shop but it remained unproved that during this period respondent actually carry out the business activity in the said demised premises. 16. 16. In view of the aforesaid discussion, it duly stands proved on record that during the relevant period petitioner has been not carrying out any commercial activity in the demised premises because he has not been able to led any objective evidence on record which could suggestive of the fact that he had continued with his business in the shop in question during relevant period. 17. In the present case, this Court has been not able to lay its hand on any documents or any specific statement given by any of the witnesses produced by the respondent that the respondent-tenant was actually carrying out any business activity in the said demised premises. Moreover, no evidence worth the name has been led to suggest that actually respondent-tenant continued with the business in the shop in question. Hence, both the Courts have rightly concluded that the respondent-tenant has ceased to occupy the said demise premises. In this regard, the Hon’ble Apex Court in Dunlop India Limited versus A.A.Rahna and another; (2011) 5 Supreme Court Cases 778. The relevant para No. 21 of the judgment reproduced as under:- “ The word “ occupy” used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the court may presume that he has ceased to occupy the building or abandoned it. If the building is let out for business or commercial purpose, complete cessation of the business/commercial activity may give rise to a presumption that the tenant has ceased to occupy the premises. In either case, legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was a reasonable cause for his having ceased to occupy the building”. 18. It clearly emerges from the aforesaid judgment that if the building is let out for the business or commercial purpose, complete cessation of the business may give rise to presumption that the tenant had ceased to occupy the premises. 18. It clearly emerges from the aforesaid judgment that if the building is let out for the business or commercial purpose, complete cessation of the business may give rise to presumption that the tenant had ceased to occupy the premises. In this case, also there is overwhelming evidence on record, suggestive of the fact that the respondent-tenant has not been carrying out any activity in the shop for which it was taken on rent. 19. Similarly, the Bench of this Court in Amrit Lal Sehgal versus Smt. Ramawati Sahu 2007(1) Shim.L.C.55 held that animus on the part of the tenant is required to be taken into account along with other circumstances while holding him/her to occupy. Para NoS.6 and 7 of the judgment are reproduced as under:- “6. There is also statement proved by a witness from the electricity office showing the consumption of electricity through the meter installed in the demised premises. As per this statement only 60 units of electricity, 50 units as reflected in the bill for July, 1990 and 10 units as reflected in the bill for September, 1990, were consumed during the relevant period. This statement also shows that tenant-revision petitioner does not reside in the premises and that only occasionally some people visit the place and stay there”. “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 v. Smt. Harbans Kaur Nayani, 1997(1) Sim. L.C.237 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”. 20. Michaeal’s Cathedral Catholic Club v. Smt. Harbans Kaur Nayani, 1997(1) Sim. L.C.237 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”. 20. Since in the present case, it stands duly proved that during disputed period consumption of electricity was minimal, presumption can be drawn that during this period no activity, whatsoever, was carried out in the said premises by the respondent-tenant. In Vipin Kumar versus Raj Kumar Latest HLJ 2010(HP) 1201. The relevant para Nos.13 and 16 of the judgment are reproduced as under:- “13. The appeals arise out of proceedings for eviction of the respondents from the premises in question on the ground that they had ceased to occupy the building for a continuous period of more than four months without reasonable cause. The trial Court allowed the applications by orders which were affirmed on appeal by the first appellate Court. The respondents challenged the decree before the High Court by revision applications under Section 15(5) of the Rent Control Act which were allowed by the impugned judgment reversing the decree and dismissing the applications. The High Court has held that the landlord has to prove that the tenant by his conduct has brought the tenancy to an end and with that intention discontinued the occupation of the demised premises, and since this has not been done the application have to be dismissed. The relevant clause of Section 13(2) of the Rent Control Act states that a tenant will be liable to eviction if he ceases to occupy the building for a continuous period of four months without reasonable cause. The section does not require the cession of tenancy in question. The only condition which has to be satisfied is the nonuser of the building for the requisite period. The principle underlying the provisions is that if a premise is not required by the tenant, it should become available to another person who may be in need thereof. The High Court, therefore, was clearly in error in assuming that unless the cession of the tenancy is proved eviction cannot be ordered.” “16. The principle underlying the provisions is that if a premise is not required by the tenant, it should become available to another person who may be in need thereof. The High Court, therefore, was clearly in error in assuming that unless the cession of the tenancy is proved eviction cannot be ordered.” “16. We are of the view Rent Control Court and Appellate Authority have committed a grave error in taking the view that only if there is abandonment it could be said that there would be cessation of occupation. Rent Control Court and Appellate Authority used words which are not in statute. Statute has not used the word “abandonment”. The word “abandon” means to give up, to desert etc. Tenant need not abandon the building so as to attract section 11(4)(v) of the Act. Landlord is also not expected to establish that tenant has abandoned the building so as to attract section 11(4)(v). Once landlord could establish that tenant has ceased to occupy the premises continuously for six months prior to the filing of the petition he is entitled to get order of eviction under that section. The word” occupy” means to cohabit with to hld or have in possession, Tenanted premises must be in the state of being enjoyed and occupied. The word “occupy” used by the statute would show that tenanted premises be put to use. Tenant cannot be heard to contend that he is having physical possession of the premises though not in occupation. So far as this case is concerned, we are of the view landlord has discharged the burden and then the onus has shifted to the tenant and the tenant could not establish that he has not ceased to occupy the premises and even if there is cessation that was with reasonable cause.” 21. Consequently, in view of the aforesaid discussion, this Court do not find any illegality and infirmity in the order/judgment passed by both the Courts below, which are based on correct appreciation of the evidence available on record and the same are upheld. The present petition is dismissed, so also pending application(s), if any.