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2017 DIGILAW 1111 (HP)

Krishna Kumari Suri v. Gulzari Lal

2017-09-21

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. - The judgment dated 11.01.2006, passed by learned Appellate Authority, Solan, H.P., in an appeal under Section 24 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as Act in short), in Rent Appeal No.11-S/14 of 2005, is under challenge in the present appeal. The learned appellate authority while dismissing the appeal vide judgment dated 11.01.2005, has affirmed the order dated 02.09.2005, passed by learned Rent Controller, Kandaghat, District Solan, H.P., in case No.14-S/2 of 2000/98. 2. The petitioner, admittedly, is the owner of Krishna Bhawan, Ward No.6, Shop No.10, The Mall Solan, situated towards Arya Samaj Building, which has been rented out to respondent No.1-tenant. Respondent No.2 is the son of respondent No.1. The complaint is that respondent No.1 has sub-letted the demised premises to respondent No.2 and thereby rendered himself liable to be evicted therefrom. As per further case of petitioner-landlady, respondent No.1 has sub-letted the demised premises to his son respondent No.2 without her written consent and permission. Respondent No.2 being the subtenant in the demised premises, is liable to be evicted from the demised premises. 3. The respondent-tenant has contested the rent petition on the grounds, inter-alia, that the petitioner has estopped from seeking his eviction on the ground of subletting as respondent No.1 only sub-letted the same to respondent No.2. It is respondent No.1 who is the proprietor of the shop, "New Gift Shoppe". The entire business being run in the demised premises is under his control. Respondent No.2 stated to be not in possession of the premises in question nor respondent No.1 has parted with the possession thereof in any manner whatsoever. Respondent No.2 being the son of respondent No.1, they are living in one house near Railway Station as well as enjoying one kitchen. 4. Rejoinder to the reply was also filed. 5. On such pleadings of the parties, learned rent controller, has proceeded to frame the following issues:- 1. Whether the respondents no.1 has sub-letted the demise shop to respondent no.2 as alleged? OPP. 2. Whether the petition is not maintainable in the present form? OPR. 3. Whether the ground of sub letting stood waived by the petitioner as alleged? OPP. 4. Relief. 6. On behalf of petitioner, PW-1, Shri Vinod Suri, has stepped into the witness-box. Whether the respondents no.1 has sub-letted the demise shop to respondent no.2 as alleged? OPP. 2. Whether the petition is not maintainable in the present form? OPR. 3. Whether the ground of sub letting stood waived by the petitioner as alleged? OPP. 4. Relief. 6. On behalf of petitioner, PW-1, Shri Vinod Suri, has stepped into the witness-box. PW-2 O.P. Gandhi, is Clerk-cum- Cashier in Punjab National Bank, Solan, whereas PW-3 Kuldeep Kumar, is Junior Assistant in the office of Assistant Excise and Taxation Commissioner, Solan. 7. On the other hand, respondent No.1 has appeared in the witness box as DW-1 and Respondent No.2 as DW-2. 8. Learned Rent Controller, on appreciation of the evidence available on record, has concluded that respondent No.1 is Karta of Hindu Undivided Family and respondent is the son of respondent No.1. It is Hindu Undivided Family running the business in the demised premises under the overall control of its Karta respondent No.1. The ground that respondent No.1 has sub-letted the demised premises to respondent No.2 and that the said respondent is subtenant being not legally tenable has been rejected. Consequently, the rent petition was dismissed. 9. Learned appellate Court has also dismissed the appeal and affirmed the order passed by learned Rent Controller. The legality and validity of the impugned judgment has been sought to be quashed on the grounds, inter-alia, that the same is highly illegal, unjust and contrary to the facts of the case as well as law applicable. While deciding the issues framed in the rent petition, both the Courts below have failed to appreciate the evidence available on record in its right perspective. The petitioner-landlady with the help of oral as well as documentary evidence, has satisfactorily proved that the demised premises was sub-letted by respondent No.1 to respondent No.2 for all intents and purposes and as such, the order of their eviction should have been passed. Respondent No.2 as per the evidence available on record, is the sole proprietor of "New Gift Shoppe". He has opened bank account in his own name. The registration of shop with the Sales Tax Department, is also in his name. It is he who was managing the entire affairs of the business being run in the demised premises. Therefore, both the Courts below have erred while dismissing the eviction petition and declining the relief sought by the petitioner-landlady. 10. Mr. The registration of shop with the Sales Tax Department, is also in his name. It is he who was managing the entire affairs of the business being run in the demised premises. Therefore, both the Courts below have erred while dismissing the eviction petition and declining the relief sought by the petitioner-landlady. 10. Mr. Neeraj Gupta, learned counsel representing the petitioner-landlady, has strenuously contended that not only the demised premises has been sub-letted by respondent No.1 to respondent No.2 but change of user thereof also stand established. The variance in the pleadings of the respondent-tenant and the proof, is fatal to there case. 11. On the other hand, Mr. B.C. Verma, learned counsel representing the respondent No.2, has supported the impugned judgment, as according to him respondent No.1 has never parted with the possession of the demised premises and the business is still being run under his supervision and control in the premises in question. 12. Interestingly enough, the petition was filed by the landlady through her attorney Mr. Pardeep Kumar Suri, the Special Power of Attorney. However, neither the petitioner nor said Pardeep Kumar Suri stepped into the witness-box to substantiate the averments made in the eviction petition. It is Vinod Suri, the another son of petitioner-landlady, who appeared in the witness-box as PW-1. The petitioner either should have stepped into the witness-box herself or her attorney Pardeep Kumar Suri through whom she had filed the eviction petition would have appeared as witness because it is either she or said Sh. Pardeep Kumar Suri, would have been in a position to substantiate the claim as laid in the petition for eviction of respondent-tenant. Their failure to step into the witness-box renders the claim in the rent petition highly doubtful because PW-1 though son of the petitioner-landlady, being not concerned with the institution of the petition, was not in a position to substantiate grounds taken in the petition qua eviction of respondent-tenant. Otherwise also, his testimony goes to show that both respondents are residing together. Also that he came to know about the demised premises sub-letted to respondent No.2 in the year 1997, he was failed to name the person who imparted such information to him. His admission that even before 1997, also respondent No.2 used to open and close the shop. Otherwise also, his testimony goes to show that both respondents are residing together. Also that he came to know about the demised premises sub-letted to respondent No.2 in the year 1997, he was failed to name the person who imparted such information to him. His admission that even before 1997, also respondent No.2 used to open and close the shop. He, however, never asked the said respondent as to how and under what capacity he used to open and close the shop and was under impression that being son of respondent No.1, the proprietor of the shop, he had been opening and closing the shop. Not only this but as per the version of DW-1 Gulzari Lal, respondent No.1 also sits in the shop. The suggestion that he had earlier filed an eviction petition to evict the respondent-tenant on the ground of ceased to occupy, stand decided well before he had lodged the complaint against respondent No.1 in connection with causing damage to the wall of the shop by making hole thereon. Therefore, the lose scrutiny of testimony of PW-1 Vinod Kumar, reveals that respondent No.1 also sits in the shop in question. 13. Now coming to the testimony of PW-2 O.P. Gandhi and PW-3 Kuldip Kumar, true it is that cash credit limit was sanctioned in favour of respondent No.2 by Punjab National Bank, Solan, however, the same as per the testimony of PW-2 O.P. Gandhi, in his cross-examination, was concerning with the stock lying inside the shop and the opening of such account does not confirm as to who was the proprietor of the shop. As per registration of New Gift Shoppe with Excise and Taxation Department though name of its proprietor was Ramesh Kumar and respondent No.2, however, as per testimony of PW-3, the business M/s New Gift Shoppe, was that of Undivided Hindu Family. The firm M/s New Gift Shoppe was constituted by Hindu Undivided Family and father of Shri Harmesh Jaggi, respondent No.2 and Gulzari Lal respondent No.1 was also Member of Hindu Undivided Family Firm. Not only this but as per the version of PW-3 Kuldip Kumar, the possession of the demised premises as per their record was that of Undivided Hindu Family Firm. Therefore, the record was not suggestive of that respondent No.1 had delivered the possession of the demised premises to her son Shri Harmesh Jaggi, respondent No.2. Not only this but as per the version of PW-3 Kuldip Kumar, the possession of the demised premises as per their record was that of Undivided Hindu Family Firm. Therefore, the record was not suggestive of that respondent No.1 had delivered the possession of the demised premises to her son Shri Harmesh Jaggi, respondent No.2. The suggestion that till date it is Gulzari Lal who had been doing business in the shop has been admitted as correct by PW-3 Kuldeep Kumar. 14. Therefore, the own evidence of the petitioner-landlady discussed hereinabove, is suggestive of that respondent No.1 never sub-letted the demised premises to his son respondent No.2 and rather firm M/s New Gift Shoppe of Hindu Undivided Family of which respondent No.1 is also a member, is still running its business there. Not only this, but such business in the shop is being run under the supervision and control of respondent No.1. Both Courts below, therefore, have rightly appreciated the evidence available on record. The eviction petition filed by the petitioner-landlady, as such, has rightly been dismissed by both Courts below. The impugned judgment, as such, cannot be said to be legally and factually unsustainable and the same is accordingly affirmed. 15. In view of what has said hereinabove, this petition fails and the same is accordingly dismissed. No orders so as to costs. The pending application(s), if any, shall also stand disposed of.