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Himachal Pradesh High Court · body

2017 DIGILAW 589 (HP)

Rajinder Kumar v. Kusum Goel

2017-05-25

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this revision petition filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987, the petitioner herein has challenged the judgment passed by the learned Appellate Authority (II), Shimla in Rent Appeal No. 8-S/13(b) of 2007, dated 09.08.2011, vide which, learned Appellate Authority has dismissed an appeal filed by the present petitioner against order passed by learned Rent Controller (2), Shimla in Rent Petition No. 17/2 of 97/96, dated 26.03.2007, whereby learned Rent Controller while allowing an application for eviction filed under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 by the present respondents, ordered the eviction of the present petitioners from the premises in dispute on the ground of arrears of rent, sub-letting and re-building and re-construction. 2. Brief facts necessary for the adjudication of the present case are that present respondents (hereinafter referred to as “the landlords”) filed an application for eviction of the present petitioner and respondent No. 4 under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as “the 1987 Act”) in the Court of learned Rent Controller-(II), Shimla on the pleadings that the landlords were owners of shop No. 49, First Floor, Lower Bazaar, Shimla and that the premises were in exclusive possession and control of respondent No. 2 therein, i.e., present petitioner as sub-tenant. The suit property comprised of two rooms including kitchen and latrine and as per the landlords, the annual rent of the same was Rs. 1200/- per annum besides taxes. It was further mentioned in the petition that respondent No. 1 therein was tenant in respect of the demised premises prior to the purchase of the property by the landlords from their predecessors-in-interest and they were not aware as to whether any agreement was executed in this regard as no copy of the same had been supplied to them by the previous landlords except a list of tenants. In para 18 of the eviction petition, which pertains to grounds on which the eviction was sought, the grounds mentioned therein were: “(i) That the respondent No.1 has miserably failed to make the payment of arrears of rent in respect of the premises in question @1200/- per annum besides 8% taxes w.e.f. 18.4.94 today despite petitioners’ repeated requests and demands and as willful default has been committed by the respondent No. 1 in the payment of arrears of rent, hence the respondent No. 1 is also liable to pay statutory interest @ 9% per annum besides the cost of the petition. (ii) That the premises under the occupation of the respondent No. 1 alongwith the premises under the occupation of another tenant Sh. Mani Ram are bonafide required by the petitioners for carrying out re-construction work in the building including the premises in question on old lines and which re-construction work cannot be carried out without getting the building/premises vacated by respondent No. 1. The building of which the premises in question are part and parcel is situated in the Main Bazaar and has its commercial value and the petitioners want to carry on re-construction work in the said building on old lines by way of replacing existing structure by providing RCC columns, beams and slabs etc. including brick work etc. and which work cannot be carried out without getting the vacant possession of the premises in question. It may be stated here that the building is stated to be more than 90 years old and material used for the construction of the building has also outlived its life and utility and keeping in view the fact that the reconstruction work is to be carried out in the said building including the premises in question, the said work will definitely increase the value and utility of the building and can be put to better use and keeping in view its location and commercial value and also for argument its income. It may be submitted that except two tenants against whom the petitions have been filed the entire possession of the building is with the petitioners. If the petitioners are able to get the eviction of the respondents and as well as another tenant against whom the petitions stood already filed, the petitioners will be able to re-construct the building expeditiously. It may be submitted that except two tenants against whom the petitions have been filed the entire possession of the building is with the petitioners. If the petitioners are able to get the eviction of the respondents and as well as another tenant against whom the petitions stood already filed, the petitioners will be able to re-construct the building expeditiously. The petitioners have already intimated the process for taking permission from the competent authorities and they are hopeful to get the same in due course of time. The petitioners have enough resources at their disposal to re-construct the building including the premises in question on old lines. After getting the re-construction work done, the petitioners will be able to put their building to maximum utility keeping in view the commercial value of the same and also location of the building. (iii) That the respondent No. 1 has after commencement of H.P. Urban Rent Control Act, 1987 transferred his rights under the lease in favour of respondent No. 2 for valuable consideration and at present the respondent No. 2 is in exclusive possession and control of the premises in question. The said act of sub-letting has been done by the respondent No. 1 without the written consent of the petitioners or their predecessors-in-interest.” 3. Records demonstrate that no reply was filed to the eviction petition by respondent No. 1, though the eviction petition was resisted and contested by respondent No. 2 therein, i.e., the present petitioner. 4. Records demonstrate that after service, appearance was put in on behalf of respondent No. 1 in the eviction petition also through their counsel, who had filed Power of Attorney on behalf of both the respondents, but reply was filed to the eviction petition by respondent No. 2 only. In the reply, the stand taken by the present petitioner therein was that respondent No. 1 therein had no concern whatsoever with the premises in question and it was he (present petitioner) who was tenant in the premises in issue in his own capacity. A preliminary objection was also taken that eviction petition lacked material particulars in para 18(a)(ii). On merits, it was stated in the reply that respondent No. 2 in the eviction petition was tenant in the premises in his own right. A preliminary objection was also taken that eviction petition lacked material particulars in para 18(a)(ii). On merits, it was stated in the reply that respondent No. 2 in the eviction petition was tenant in the premises in his own right. Respondent No. 1 had no concern whatsoever with the premises and rent stood paid by him up to August, 1994 to Shri Sunil Kuthiala, the previous owner of the premises and subsequently, rent was also sent to the new landlords, who refused to receive the same. Arrears of rent were denied, it was also denied that the premises were bonafidely required by the landlords for additions or alterations in the building or that the building was 80 years old. In reply to para 18(a)(iii) of the eviction petition, it was stated by respondent No. 2 therein that respondent No. 1 in the eviction petition had no concern with the premises in question and it was the answering respondent who was tenant in his own right, however, in the alternative, in case the learned Court comes to the conclusion that status of respondent No. 2 therein was to that of a sub-tenant, then in that event, the alleged subletting took place before the commencement of 1987 Act and as such, the petition was not maintainable. Another ground taken in alternative in reply to said para of the eviction petition was that as respondent No. 2 was occupying the premises openly to the knowledge of the predecessor-in-interest of the new landlords, who had also received rent from respondent No. 2, as such, respondent No. 2 had acquired status of a tenant by way of adverse possession. It was also mentioned in the reply that respondent No. 2 had been paying rent to the predecessor-in-interest of the landlords and was occupying the premises to the knowledge and implied consent of previous landlord, namely, Shri Sunil Kuthiala. 5. By way of rejoinder, the stand so taken by respondent No. 2 in the eviction petition was denied by the landlords, who reiterated the contentions raised in the eviction petition. 6. On the basis of pleadings of the parties, learned Rent Controller framed the following issues on 27.05.1997 and 25.11.2002: “1. Whether the respondent is in arrears of rent, as alleged? OPP 2. Whether premises in question is required by the petitioner for bonafidely for additions and alternations, as alleged? OPP 3. 6. On the basis of pleadings of the parties, learned Rent Controller framed the following issues on 27.05.1997 and 25.11.2002: “1. Whether the respondent is in arrears of rent, as alleged? OPP 2. Whether premises in question is required by the petitioner for bonafidely for additions and alternations, as alleged? OPP 3. Whether the premises in question has been sublet by the respondent No. 1 to the respondent No. 2, as alleged? OPP 3-A Whether the premises in question are required bonafidely by the petitioners for the purpose of re-building and reconstruction, as alleged? OPP 4. Whether the petition is bad for mis-joinder of necessary party, as alleged? OPR 2 5. Whether the petition is not maintainable in the present form? OPR 2 6. Relief.” 7. On the basis of evidence produced on record by the respective parties, the following findings were returned to the issues so framed by the learned Rent Controller: “Issue No. 1: Yes. Issue No. 2 : No. Issue No. 3 : Yes. Issue No. 4 : No. Issue No. 5: No. Issue No. 6:(Relief) Petition of the petitioner is allowed with costs vide my operative part of the order. 8. Learned Rent Controller allowed the eviction petition on the grounds of arrears of rent, sub-letting and re-building and re-construction issues, however, it declined the eviction petition on the ground of additions and alterations. Learned Rent Controller ordered the eviction of respondents on the ground of arrears of rent as respondent No. 1 therein had failed to pay the arrears of rent to the petitioner therein @ 1200/- per annum since 18.04.1994. It also ordered the eviction of respondent No. 1 therein on the ground that said respondent had sublet the premises to respondent No. 2 (present petitioner) without the written consent of the landlord for a valuable consideration. Learned Rent Controller also ordered the eviction of respondents therein on the ground of re-building and re-construction by holding that the premises were bonafidely required by the petitioners for the purpose of re-building and re-construction, for which the plan had already been sanctioned by the Municipal Corporation. 9. Order so passed by the learned Rent Controller was assailed by way of an appeal by present petitioner before the learned Rent Controller. Respondent No. 1 before the learned Rent Controller did not challenge the order of eviction so passed by the learned Rent Controller. 10. 9. Order so passed by the learned Rent Controller was assailed by way of an appeal by present petitioner before the learned Rent Controller. Respondent No. 1 before the learned Rent Controller did not challenge the order of eviction so passed by the learned Rent Controller. 10. On 28.12.2010, learned Appellate Authority allowed the appeal and remanded the case back to the learned Rent Controller with a direction to frame additional issues as were mentioned in judgment dated 28.12.2010 and further directed the learned Rent Controller to give opportunity to respondent No. 2 therein to lead evidence on additional issues framed and then give opportunity to petitioners/landlords to rebut the same and thereafter decide the case. 11. Judgment dated 28.12.2010 was challenged before this Court by way of Civil Revision No. 02 of 2011. Vide order dated 10th March, 2011, this Court with the consent of the parties, set aside the judgment so passed in appeal dated 28.12.2010 and appellate authority was directed to decide the matter afresh in accordance with law. 12. Learned Appellate Authority (II), Shimla vide judgment dated 09.08.2011 while affirming the order passed by the learned Rent Controller, dated 26.03.2007, dismissed the appeal filed against it by the present petitioner. 13. It was held by the learned appellate Court that as respondent No. 2 in the eviction petition did not mention as to when he was inducted in possession of the premises as a tenant and by whom and further as it was evident that respondent No. 2 was not in possession of the premises in his capacity as a tenant and it was respondent No. 1 who in fact was tenant in the premises, the same demonstrated that respondent No.2 was inducted into possession of the premises by respondent No. 1 as a tenant after commencement of the 1987 Act and not by the previous landlord. Learned appellate Court also held that as respondent No. 2 was a stranger and was in exclusive possession of the premises, onus thus shifted upon respondent No. 1 to prove terms and conditions on which the respondent No. 2 was kept in possession. Learned appellate Court also held that as respondent No. 2 was a stranger and was in exclusive possession of the premises, onus thus shifted upon respondent No. 1 to prove terms and conditions on which the respondent No. 2 was kept in possession. It was further held by the learned appellate Court that respondent No. 1 had not produced any evidence to substantiate the terms and conditions on which respondent No. 2 was put in possession and in these circumstances, inference which thus had to be drawn was that either subletting or parting with possession took place in favour of respondent No. 2 or respondent No. 1 had created sub-tenancy and transferred his rights in favour of respondent No. 2 for consideration. It was thus held by the learned appellate Court that as landlords had proved that respondent No. 1 was tenant in the premises and he had sublet or parted with the possession of the premises in favour of respondent No. 2, therefore, findings of the learned Rent Controller to this effect were sustainable. It was further held by the learned appellate Court that the statement of the landlord that rent was not paid w.e.f. 18.04.1994 by the respondents remained un-controverted and un-rebutted, which demonstrated that respondent No. 1 was in arrears of rent from 18.04.1994 onwards. It was also held by the learned appellate Court that petitioners/landlords came to acquire the property on 10th May, 1994 and 13th May, 1994 to the extent of their respective shares and records demonstrated that respondent No. 1 had not paid any rent to the petitioners after they acquired the property. It was also held by the learned appellate Court that receipt produced by respondent No. 2 was not a genuine document and the same did not prove his status as that of a tenant. On these bases, it was held by the learned appellate Court that petitioners/landlords were entitled to recover arrears of rent due alongwith interest from the respondent and findings to this effect returned by the learned Rent Controller were sustainable. It was further held by the learned appellate Court that totality of circumstances substantiated that age and condition of the building was such that the landlords intended to reconstruct the building and they had also got the plan sanctioned in this regard. It was further held by the learned appellate Court that totality of circumstances substantiated that age and condition of the building was such that the landlords intended to reconstruct the building and they had also got the plan sanctioned in this regard. Learned appellate Court also held that the petitioners had capacity to mobilize finances for reconstruction of the building and building would result in modernization and would make additional space available and would augment the earning of the landlords. On these bases, it was held by the learned appellate Court that requirement of the petitioners/landlords of the building for the purpose of re-building the same which also included the premises in dispute was bonafide. On these bases, learned appellate Court while affirming the findings returned by the learned Rent Controller, dismissed the appeal so filed before it by the present petitioner/respondent No. 2 before the learned Rent Controller. 14. One more fact which is pertinent to mention at this stage is that during the pendency of the appeal before the learned appellate Court, on the basis of directions issued in this regard by this Court in CMPMO No. 222 of 2010, decided on 28th July, 2010, Identity Card of the present petitioner was permitted to be exhibited and the said document is Ex. AW2/A and Sh. Sunil Kuthiala was examined as AW-1. 15. Feeling aggrieved by the order so passed by the learned Rent Controller as well as the judgment in appeal so passed by the learned Appellate Authority, the petitioner/respondent No. 2 has filed the present revision petition. 16. Mr. Bhupender Gupta, learned senior counsel appearing for the petitioner/respondent No. 2 has assailed the order and judgment so passed by both the learned Courts below on the following grounds: (A) Mr. Gupta has argued that the judgment passed by the learned appellate Court is not sustainable in the eyes of law as the additional issues which were previously framed by the said Court vide judgment dated 28.12.2010 were not decided by the learned appellate Court and which according to Mr. Gupta was perversity on the face of it as far as the impugned judgment was concerned. (B) According to Mr. Gupta was perversity on the face of it as far as the impugned judgment was concerned. (B) According to Mr. Gupta, both the learned Courts below erred in not appreciating that the landlords had failed to prove that the present petitioner was not inducted as a tenant of the demised premises in his own capacity and further that the landlords had failed to prove that the present petitioner was not in possession of the demised premises before the 1987 Act came into force. (C) The judgment passed by the learned Courts below were otherwise also not sustainable in the eyes of law as both the learned Courts below erred in not appreciating that the pleadings contained in the rent petition qua subletting were vague, cryptic and not proved on record and this very important aspect of the matter had been ignored by both the learned Courts below. (D) Both the learned Courts below had erred in not appreciating that the best evidence was concealed by the petitioners/landlords. 17. In support of his contentions, Mr. Gupta has relied upon the following judgments: “1. Dharam Pal Vs. Durga Dass, Indian Law Reports (H.P. Series) Vol. X 1981 521. 2. Sham Sunder Mehra Vs. Mastan Singh and others, 1994 (1) Sim. L.C. 171” No other point was urged. 18. On the other hand, Mr. Vinay Kuthiala, learned senior counsel appearing for the respondents has argued that there was neither any illegality nor any perversity either with the order passed by the learned Rent Controller or with the judgment passed by the learned Appellate Authority. Mr. Kuthiala argued that it stood proved on record that the premises in dispute were let out by the previous landlords to respondent No. 1 in the rent petition, who had sublet the property in issue to respondent No. 2 therein after coming into force of the 1987 Act without the consent of the landlord. Mr. Kuthiala further argued that neither the pleadings were cryptic or vague as alleged nor learned Courts below had erred in coming to the conclusion that respondent No. 2 (before the learned Rent Controller) was inducted into the premises in issue as a sub-tenant by respondent No. 1 without the consent of the landlord. It was further argued by Mr. Mr. Kuthiala further argued that neither the pleadings were cryptic or vague as alleged nor learned Courts below had erred in coming to the conclusion that respondent No. 2 (before the learned Rent Controller) was inducted into the premises in issue as a sub-tenant by respondent No. 1 without the consent of the landlord. It was further argued by Mr. Vinay Kuthiala that the factum of respondent No. 1 not filing any reply to the eviction petition meant that they had conceded and admitted the averments made in the eviction petition. It was further argued by Mr. Kuthiala that there was no merit in the contention of Mr. Gupta that there was perversity in the judgment passed by the learned appellate Court on the ground that the issues previously framed by the learned appellate Court vide judgment dated 28.12.2010 were not decided by the Appellate Authority, because once the judgment vide which the said issues were framed, was set aside by this Court in Civil Revision No. 02 of 2011, the issues which were so framed vide the said judgment set aside, also stood set aside. Mr. Kuthiala further argued that even otherwise learned counsel for the petitioner wanted this Court to re-appreciate the entire evidence again, which was not permissible in exercise of its revisional jurisdiction by this Court, because at this stage, this Court was not to re-appreciate the entire evidence, but it was only to satisfy its judicial conscience as to whether the order and judgment passed by the learned Rent Controller and learned Appellate Authority, respectively were passed on the basis of material on record and the same were not perverse. In support of his contention, Mr. Vinay Kuthiala has relied upon the following judgments: “1. Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh (2014) 9 Supreme Court Cases 78. 2. Dr. Pushap Lata Sharma Vs. Ramesh Kumari, 2001(1) RCR 269 3. Vallampati Kalavathi Vs. Haji Ismail, 2001(1) RCR 375. 4. Dr. Gyan Parkash Vs. Som Nath and others, 1996(1) RCR 342. 19. I have heard the learned counsel for the parties and have also gone through the records as well as the judgments passed by the learned Rent Controller and learned Appellate Authority. 20. Firstly, I will deal with the contention of Mr. Haji Ismail, 2001(1) RCR 375. 4. Dr. Gyan Parkash Vs. Som Nath and others, 1996(1) RCR 342. 19. I have heard the learned counsel for the parties and have also gone through the records as well as the judgments passed by the learned Rent Controller and learned Appellate Authority. 20. Firstly, I will deal with the contention of Mr. Gupta that there is perversity with the judgment rendered in appeal by the learned appellate Court as the appellate Court did not adjudicate upon the issues which were framed by the said Court as was evident from judgment dated 28.12.2010. The contention of Mr. Gupta is that after the learned Appellate Authority had framed additional issues, it ordered the remand back of the case to the learned Rent Controller for adjudication of the said issues and said judgment of remand was set aside by this Court to this effect only that the matter was not to be re-heard by the learned Rent Controller, but there was no order passed by this Court to the effect that the issues so framed vide judgment dated 28.12.2010 were also not to be heard and decided by the learned Appellate Authority. 21. I am afraid the said contention of the learned counsel for the petitioner does not has any merit. Judgment dated 28.12.2010 demonstrates that the learned appellate Court in its wisdom vide said judgment framed additional issues and thereafter went on to allow the appeal so filed against the order passed by the learned Rent Controller and remanded the case back to the Court of learned Rent Controller with a direction to the learned Rent Controller to frame additional issues as stated in the said judgment by first giving an opportunity to respondent No. 2 therein to lead evidence on additional issues so framed and thereafter providing opportunity to the petitioners/landlords to rebut the same. It is a matter of record that the judgment so passed by the learned appellate Court dated 28.12.2010 was set aside by this Court vide judgment dated 10th March, 2011 passed in Civil Revision No. 02 of 2011, which reads as under: “With the consent of parties, the impugned order dated 28.12.2010, rendered in Rent Controller’s Case No. 17-2 of 1997/96, Rent Appeal No. 8-S/13(B) of 2007, is set aside. The Appellate Authority (II), Shimla, H.P. is directed to decide the matter afresh in accordance with law, within a period of four months from today. While taking the decision, the Appellate Authority (II), Shimla, H.P. shall also take into consideration the law laid down by this Court in Smt. Surinder Kaur Vs. Mohinder Pal Singh, Indian Law Reports (Himachal Series) (1976), 620, H.P. The parties are directed to appear before the learned Appellate Authority (II), Shimla, H.P. on 28th March, 2011. The petition stands disposed of.” 22. In my considered view, when the judgment vide which learned appellate Court had directed the learned trial Court to frame additional issues and thereafter decide the same was set aside by the Court in Civil Revision No. 02 of 2011, though by a consent order, the judgment so passed by the learned appellate Court was rendered ineffective in toto, which means that the additional issues which were so framed vide the said judgment were also set at naught with the said judgment being set aside by this Court. Now, in this background, it cannot be said that setting aside of the judgment passed by the learned appellate Court dated 28.12.2010 would not mean that additional issues which were so framed by the learned appellate Court on the said date still subsisted. At the cost of repetition, in my considered view, once the judgment passed by the learned appellate Court was set aside, everything contained in the said judgment went away, including the additional issues, which were so framed by the learned appellate Court. Even otherwise, it is not the case of the present petitioner that the additional issues were independently thereafter also framed by the learned appellate Court, but after framing of the same it did not went on to adjudicate upon the additional issues so framed. The judgment which was passed by this Court in Civil Revision vide which it set aside the judgment passed by the learned appellate Court dated 10th March, 2011 is clear and unambiguous. Vide said order, the entire judgment passed by the learned appellate Court was set aside and it is not as if the judgment so passed by the learned appellate Court was only partly set aside and the part of the judgment wherein it had framed the additional issues was not set aside by this Court. 23. Vide said order, the entire judgment passed by the learned appellate Court was set aside and it is not as if the judgment so passed by the learned appellate Court was only partly set aside and the part of the judgment wherein it had framed the additional issues was not set aside by this Court. 23. Therefore, in view of the above discussion, the submission of the learned counsel for the petitioner that there is perversity in the judgment passed by the learned appellate Court that it had failed to decide the additional issues previously framed by it vide judgment dated 28.12.2010 is without any merit and the said contention is thus rejected. 24. Now, I will touch the second contention raised by the learned counsel for the petitioner, which is to the effect that there was perversity with the findings returned by both the learned Courts below as both the learned Courts below erred in not appreciating that respondent No. 1 was the tenant of the demised premises in own capacity, that too for the last more than 30 years and there was no subletting of the demises premises to him by respondent No. 1 without the consent of the original landlord, as alleged. 25. It is a matter of record that respondent No. 1, who as per the landlords was the original tenant inducted as such in the demised premises by the predecessor-in-interest of the rent petitioners chose not to file any reply to the rent petition. It is also a matter of record that in his reply so filed to the rent petition, respondent No. 2 therein, i.e., the present petitioner took a specific stand that he stood inducted as a tenant in the demised premises by the previous landlord, i.e., Sh. Sunil Kuthiala and therefore, he was not in possession of the demised premises as sub-tenant, but he was in possession of the same in his capacity as a tenant. It is also a matter of record that the present landlords/rent petitioners purchased the building in which the demised premises is situated from its previous landlords vide sale deeds dated 10.05.1994 and 13.05.1994, respectively. There is also on record Ex. PX, a list of the tenants which was handed over to the rent petitioners by Sh. It is also a matter of record that the present landlords/rent petitioners purchased the building in which the demised premises is situated from its previous landlords vide sale deeds dated 10.05.1994 and 13.05.1994, respectively. There is also on record Ex. PX, a list of the tenants which was handed over to the rent petitioners by Sh. Sunil Kuthiala, one of its previous owners at the time when agreement to sell the said property was entered into between the previous owners and the present landlords. A perusal of the said list demonstrates that name of respondent No. 1 in the rent petition, i.e., Ram Dass Salig Ram is mentioned in the said exhibit, however, the name of present petitioner is not mentioned in the same as a tenant of the building in issue. This list of tenants stands duly proved on record and furnishing of the said list by Sunil Kuthiala, who himself in fact has appeared as a witness during the pendency of the appeal on behalf of the present petitioner has not been denied by him. The explanation which has been given by him as to why the said list was issued to the present landlords was that it was due to pressure. Now, in my considered view, the justification which has been given by Sh. Sunil Kuthiala as to why this particular list was given to the present landlords is not satisfactory. It is not understood as to what compulsion or pressure was there to have had issued the said list, as has been alleged by Sh. Sunil Kuthiala at the time when agreement to sell the building in issue was being entered into between the previous owners and the present owners. 26. Another important aspect of the matter is that the factum of the present petitioner having been inducted as tenant in the demised premises in his own capacity has been tried to be established by the present petitioner primarily as per the testimony of one of its previous owners, i.e., Sunil Kuthiala, who was permitted to depose during the pendency of the appeal by this Court vide judgment dated 28th July, 2010 passed in CMPMO No. 222 of 2010. 27. 27. Now, at this stage, if we peruse the testimony of the present petitioner, who entered into the witness box before the learned Rent Controller as RW-1, a perusal of the same demonstrates that he has deposed on oath that he was inducted as tenant in the demised premises by Sh. Sunil Kuthiala about 20 years ago. The statement of this witness was recorded in the Court on 17.11.2006. Now, if we simultaneously peruse the statement of Sh. Sunil Kumar Kuthiala, who deposed in the Court as AW-1, i.e., in the appellate Court on 25.08.2010, a perusal of his deposition demonstrates that he has stated that he had never seen Ram Dass Salig Ram firm as tenants of the demised premises in the building since he gained senses and he has always seen the present petitioner as tenant of the demised premises. In my considered view, the fallacy becomes apparent herein. According to petitioner, it was Sunil Kuthiala, who inducted him as a tenant somewhere in the year 1986, but Sunil Kuthiala has not stated that the present petitioner was inducted by him as tenant over the demised premises and the stand of Sunil Kuthiala is that he has always seen the present petitioner only as a tenant in the demised premises. The remaining ocular evidence which has been produced by the present petitioner to prove that he was in possession of the demised premises as a tenant in his own capacity and his possession was prior to coming into force 1987 Act lacks any credibility. 28. Now, another important aspect of the matter which requires to be highlighted at this stage is that though the petitioner claims himself to be a tenant qua the demised premises in his own capacity, however, he has not produced on record any rent receipt etc. qua the demised premises except Ex. R-1, which pertains to the year 1993-94 and demonstrates that Sunil Kuthiala had received rent from Sh. Rajinder Kumar from 20.12.1993 to 28.02.1994. There is nothing produced on record except this Ex. R-1 from which it can be inferred that the present petitioner had paid rent qua the premises in issue to its previous owners in his capacity as a tenant. Rajinder Kumar from 20.12.1993 to 28.02.1994. There is nothing produced on record except this Ex. R-1 from which it can be inferred that the present petitioner had paid rent qua the premises in issue to its previous owners in his capacity as a tenant. The factum of his being a tenant of the demised premises in his capacity as tenant was also tried to be established by the petitioner on the strength of document Mark-A, which is a communication issued by Telecom District Engineer, Shimla and a copy of voter list Mark-B, but incidentally these documents also pertain to the year 1992-1993 only. Another document which was permitted to be placed on record by this Court during the pendency of the appeal on behalf of the present petitioner was Ex. DW2/A, which is an Identity Card issued in favour of the petitioner. On the strength of the said Identity Card, which contains the date of discharge of the present petitioner as 27.12.1969, the petitioner has emphasized to demonstrate that this document proved that he was in possession of the demised premises since the year 1969. In my considered view, the said contention of the petitioner is also totally misconceived. The date as to when this Identity Card was issued is not on record. Who issued the said Identity Card and from where the same was issued is also not on record. It simply contains the date of discharge of the petitioner alongwith address given on it. However, this alone is not sufficient to lead to the conclusion that the petitioner in fact was in possession of the demised premises since the year 1969. Incidentally, as I have also mentioned above, the petitioner in his deposition in the Court in the year 2006 stated that he was inducted as a tenant about 20 years back. Now, if that is to be believed, then even as per the petitioner, he was inducted as a tenant of the demised premises only in the year 1986. However, the Identity Card reflects his date of discharge as 27.12.1969. Therefore, there is a great mismatch in the deposition of the petitioner in the Court as compared to the inference he wants this Court to draw from Ex. AW2/A 29. However, the Identity Card reflects his date of discharge as 27.12.1969. Therefore, there is a great mismatch in the deposition of the petitioner in the Court as compared to the inference he wants this Court to draw from Ex. AW2/A 29. It was argued on behalf of the petitioner that the order and the judgment passed by both the learned Courts below were not sustainable in the eyes of law as both the learned Courts below have erred in not appreciating that the pleadings which were made by the landlords in the rent petition qua the alleged sub-tenancy of the present petitioner over the demised premises were vague and cryptic. It was further the contention of the petitioner that it was not mentioned in the said petition as to when the present petitioner was inducted as a sub-tenant over the demised premises. Further, according to the petitioner, the best evidence from which it could have been demonstrated by the landlords that it was not the present petitioner, but someone else who was the original tenant in the said property was respondent No. 1 before the learned Rent Controller and the said best evidence was concealed by the landlords from the Court, for which adverse inference had to be drawn against them. 30. In my considered view, there is no force in the said submission of the petitioner. A perusal of the rent petition (i.e. the amended petition) demonstrates that in para-16 of the same, it has been mentioned that the premises in question are in exclusive possession and control of respondent No. 2 therein in his capacity as a sub-tenant. Besides this, in para-18 of the rent petition, it has been mentioned that respondent No. 1 therein has after commencement of Himachal Pradesh Urban Rent Control Act, 1987, transferred his rights under lease in favour of respondent No. 2 for valuable consideration and at present, the respondent No. 2 was in exclusive possession and control of the premises in question. It was further mentioned that the act of subletting was done by respondent No. 1 without the written consent of the rent petitioners or their predecessors-in-interest. It was further mentioned that the act of subletting was done by respondent No. 1 without the written consent of the rent petitioners or their predecessors-in-interest. It is also pertinent to mention that in Columns No. 14 and 15 of the Rent Petition, it has been mentioned that respondent No. 1 therein was tenant in respect of the premises prior to the purchase of the same by the rent petitioners from their predecessorsin-interest and they were not aware as to whether any agreement was executed as no copy of the same had been supplied to the petitioners by the previous owners except list of tenants. 31. In my considered view, it cannot be said that the averments made in the rent petition with regard to the person being in possession of the demised premises by virtue of subletting are either cryptic or vague. A perusal of the rent petition demonstrates that it is apparent from reading of the same that the landlords therein intended to say that the demised premises were in fact let out by their predecessor-in-interest to respondent No. 1, who after coming into force 1987 Act without the written consent of the previous landlord had sublet the same to respondent No. 2. Therefore, in this view of the matter, in my considered view, there is no merit in the contention of the present petitioner that averments made with regard to subletting of the demised premises in the eviction petition were vague. 32. Now, as far as the factum of the landlords concealing the best evidence from the Court is concerned, in my considered view, there is no force in the said submission of the present petitioner also. As per the rent petitioners, the premises in issue were let out to Ram Dass Salig Ram. Ram Dass Salig Ram were duly impleaded by them as party respondent in the rent petition alongwith the present petitioner, who was impleaded as respondent No. 2 in the rent petition. It is a matter of record and was not disputed during the course of arguments that both the respondents were served before the learned Rent Controller and they had put in appearance through a common counsel and Vakalatnama of the common counsel is also on record. It is also a matter of record that no reply to the eviction petition was filed by respondent No. 1. It is also a matter of record that no reply to the eviction petition was filed by respondent No. 1. Now, in the absence of respondent No. 1 having not contested the claim as was put forth in the eviction petition after being served, the only inference which could be drawn from the same is this that the contentions which were made by the rent petitioners stood accepted by respondent No. 1. Therefore, when respondent No. 1 did not contest the claim of the landlords, there was no necessity for the landlords to have had further examined the said respondent to prove its case. Even otherwise, when the landlord had impleaded respondent No. 1 as a party respondent and the said respondent having impliedly admitted the claim of the landlords by not filing any reply to the claim petition after service, it is not understood as to what was the necessity for the landlords to have had taken the risk of calling upon the said respondent to depose in his favour in the witness box. Further, during the course of arguments, learned counsel for the petitioner could not satisfy as to what prevented the present petitioner to examine respondent No. 1 before the learned Rent Controller as his witness. 33. In my considered view, in the peculiar circumstances of the case, when the contention of the landlords stood impliedly conceded to by respondent No. 1, who as per the landlords was original landlord, then the entire onus shifted upon respondent No. 2 in the rent petition, i.e., present petitioner, to have had demonstrated that he was not inducted in the demised premises as a sub-tenant by respondent No. 1, but he stood inducted in the demised premises as a tenant in his own capacity by the original landlords. Present petitioner has miserably failed to discharge the said onus. 34. Besides this, the evidence which has been produced on record by the landlords both ocular as well as documentary, which has also been taken into consideration by both the learned Courts below, in my considered view, duly establishes the fact that before the said premises were purchased by the rent petitioners, the same were let out by their predecessors-in-interest to Ram Dass Salig Ram, who thereafter had sublet the same after coming into force 1987 Act to respondent No. 2. On the other hand, respondent No. 2 has not been able to discharge the onus that he was not inducted into the premises after coming into force the 1987 Act by respondent No. 1 by subletting and rather he was inducted as a tenant over the demised premises in his own capacity. I have already mentioned above that the statement of Sunil Kuthiala does not furthers the cause of the present petitioner, as his statement is neither credible nor reliable nor it inspires the confidence of the Court. Further, ocular evidence which the present petitioner has produced on record also in no way substantially proves that either the present petitioner was inducted as a tenant over the demised premises in his capacity by the previous owners or he was in possession thereof either as a tenant or a sub-tenant before coming into force of the 1987 Act. Not even a single document has been placed on record by the present petitioner from which it can be inferred that he was in possession of the demised premises before coming into force of the 1987 Act. The documents which he has placed on record to prove his tenancy pertains to 1992-93 or one or two years prior to the above mentioned years. In these circumstances, in my considered view, there is neither any perversity nor any illegality with the order and judgment passed against the present petitioner by both the learned Courts below. 35. Now, I will also refer to the judgments which have been relied upon by the learned counsel for the parties in support of their respective contentions. 36. In Dharam Pal Vs. Durga Dass, Indian Law Reports (H.P. Series) Vol. X 1981 P. 521, the issue involved was as to whether eviction petition for sub-letting could have been preferred under the provisions of Section 14 of the Himachal Pradesh Rent Control Act, 1971, wherein sub-letting had taken place prior to the Act of 1971 coming into force or not. It was held by this Court that eviction petition for sub-letting under the 1971 Act was maintainable only if it was proved that sub-tenancy came into existence after commencement of 1971 Act. 37. It was held by this Court that eviction petition for sub-letting under the 1971 Act was maintainable only if it was proved that sub-tenancy came into existence after commencement of 1971 Act. 37. In my considered view, this judgment has no applicability in the facts of this case, because the petitioner herein has failed to prove that he was in possession of the demised premises in any capacity before coming into force of the 1987 Act. 38. In Sham Sunder Mehra Vs. Mastan Singh and others 1994 (1) Sim. L.C. 171, it was inter alia held by this Court that for subletting, a landlord is required to allege and then prove that tenant has after the commencement of the Act, without the written consent of the landlord, transferred his rights under the lease or sublet the entire building or rented land or any portion thereof and in case there was no pleading and subletting took place after commencement of the Act, then there may be lack of cause of action. 39. In my considered view, this judgment is also of no assistance to the petitioner. There is no lack of pleading qua the factum of subletting as it has been clearly mentioned in the petition filed under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 before the learned Rent Controller that sub-tenancy was created by respondent No. 1 therein in favour of the present petitioner without the consent of the landlord after the commencement of the 1987 Act. 40. A five Judge Bench of the Hon’ble Supreme Court in Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh (2014) 9 Supreme Court Cases 78 has held: “43……………………..The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that 30 Page 31 event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 41. The tests laid down by the Hon’ble Supreme Court are squarely applicable in the facts and circumstances of this case, as this Court has not undertaken the exercise of re-appreciating the evidence, but it has gone through the evidence to satisfy its judicial conscience as to whether there was any procedural illegality or irregularity and further whether the conclusions arrived at by the learned Courts below were borne out from the records or perverse. As both the learned Courts below have returned the finding that the present petitioner being a sub-tenant was inducted in the premises by the original tenant after coming into force the 1987 Act without the consent of the landlord, these findings of fact recorded by both the learned Courts below even otherwise do not call for any interference by this Court as the said findings of fact are duly brone out from the records of the case. It cannot be said that the findings recorded by the learned Courts below have been arrived at without considering the material evidence or by misreading the same. 42. In Dr. Gyan Parkash Vs. Som Nath and others 1996(1) RCR 342, the Hon’ble Supreme Court has held: “9. The learned counsel appearing for the respondent Nos. It cannot be said that the findings recorded by the learned Courts below have been arrived at without considering the material evidence or by misreading the same. 42. In Dr. Gyan Parkash Vs. Som Nath and others 1996(1) RCR 342, the Hon’ble Supreme Court has held: “9. The learned counsel appearing for the respondent Nos. 2 and 3 has, however, submitted that the landlord is admittedly an absentee landlord in this case and the uncle of the landlord was an agent of the landlord who had been receiving rent from respondent No. 3 by cheques issued by the said respondent. No cogent explanation has been given as to why the said agent had allowed the respondent No. 3 to make payment by the cheques in respect of the said shop. Such payment of rent by the respondent No. 3 for the shop room coupled with exclusive possession of the said shop room by her and acceptance of such rent from her over the years only indicate that the landlord through his agent was fully aware that the said respondent No. 3 had been exercising her right as a tenant and in that capacity had been making payment of the rent for the said shop room. Even then, the landlords accepted such payment of rent from respondent No. 3. The landlord, therefore, cannot be permitted to contend that there had been any sub-tenancy without the knowledge and consent of the landlord in favour of the respondent No. 3 by the original tenant Som Nath or by respondent No. 2 Ashwani Kumar. The learned counsel has submitted that at least from 1973 onwards, the exercise of such right by the respondent No. 3 qua tenant has been established beyond any shadow of doubt and the implication of such payment and acceptance of rent not having been properly considered by the Courts below, the High Court was justified, in exercise of its revisional power under Section 21(5) of the Rent Act to interfere with erroneous finding of fact arrived by non-consideration of relevant material. He has submitted that in any event, in view of long possession of respondent No. 3 qua tenant with full knowledge of the landlord by accepting payment of rent from her by cheques having been established convincingly, no interference need be made by this Court in its discretionary jurisdiction under Article 136 of the Constitution because exercise of such jurisdiction will be against the equity in this case. This appeal, therefore, should be dismissed. 10. After giving our anxious consideration of the facts and circumstances of the case and contentions made by the learned counsel for the parties, it appears to us that in the facts of the case, the High Court had quite improperly exercised its jurisdiction for revision under Section 24(5) of the Rent Act. It appears to us that the trial Court had considered the case of payment of rent by the respondent No. 3 by cheques but such payment has not been accepted by the trial Court as constituting creation of new tenancy in favour of respondent No. 3. The Court of appeal has not made any specific discussion of such payment. As the judgment of the appellate authority is a judgment of affirmance, we do not think that any elaborate discussion on the said aspect was required. It appears to us that the High Court being oblivious of the limited scope and ambit of Section 24(5) of the Rent Act, has exercise the power of a Court of appeal and having reappreciated the entire evidence come to a contrary finding. Such exercise as a court of appeal should not have been done by the High Court in the facts of the case.” 43. In Lekh Raj Vs. Muni Lal, 2001(1) RCR 168, the Hon’ble Supreme Court has held: 10. The pith and substance of these authorities, to which appellant relies is that Court under its revisional jurisdiction cannot disturb finding of facts nor could it reappraise evidence on record, it can only interfere if there is impropriety and illegality in the impugned order. One of the submissions for the appellant is that the High Court in its revisional jurisdiction should not have permitted the inspection of the disputed shop by the local Commissioner while exercising its revisional jurisdiction. One of the submissions for the appellant is that the High Court in its revisional jurisdiction should not have permitted the inspection of the disputed shop by the local Commissioner while exercising its revisional jurisdiction. The submission is, the revisional court could only take into consideration the fact existing on the date of filing of the eviction petition supported by evidence on record, thus by bringing on record the aforesaid report of the local Commissioner which was called after 18 years of the pendency of the revision in the High Court cannot be said to be within the jurisdiction of the Revisional courts.” 44. In Vallampati Kalavathi Vs. Haji Ismai, 2001(1) RCR 375, the Hon’ble Supreme Court has held: “13. As the language of the section suggests, the revisional power vested in the High Court is to be used for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and if satisfied that the order/orders suffer any such vice the High Court may pass such order in reference to the proceeding as it thinks fit. The expression legality, regularity or propriety are undoubtedly wider than mere correction of jurisdictional error. But even such revisional power cannot be exercised to upset the concurrent findings of fact recorded by the Forums below merely on the ground that the High Court is inclined to take a different view on the materials on record in the case. We should not be understood to be saying that the concurrent findings of fact can in no case be interfered with in revision. For such interference it has to be shown that the findings recorded by the Forums below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the materials.” 45. In Dr. Pushap Lata Sharma Vs. Ramesh Kumari 2001(1) RCR 268, this Court has held that the finding returned by the Courts on the issue of subletting is a question of fact. Relevant paras of the judgment are quoted herein below: “26. The question which has been raised before me is: Whether the authorities below have committed an error of law and/or jurisdiction in recording a finding that Smt. Savitri Devi has parted with exclusive possession in favour of Yash Pal. Relevant paras of the judgment are quoted herein below: “26. The question which has been raised before me is: Whether the authorities below have committed an error of law and/or jurisdiction in recording a finding that Smt. Savitri Devi has parted with exclusive possession in favour of Yash Pal. Now, it is not in dispute that Smt. Savitri Devi was not the original tenant. The suit premises were let to Kishan Chand, husband of Smt. Savitri Devi, who was medical practitioner. It is in evidence that petition No. 2 Yash Pal was working with Kishan Chand. It is also not in dispute that Kishan Chand died in 1989. It is undisputed that Smt. Savitri Devi was an old lady of about 65 years of age. It was the allegation of the respondent that Smt. Savitri Devi had sublet the premises to petitioner No. 2 Yash Pal in 1990, as against the version of Smt. Savitri Devi that possession of the suit premises was with her and petitioner No. 2 was merely in her employment. According to Smt. Savitri Devi, during the life time of her husband, petitioner No. 2 used to work with Kishan Chand, and after his death, she continued to allow petitioner No. 2 as her employee and was paying salary to him. She had also stated that the relevant record was produced by her from which the fact relating to employment of petitioner No. 2 by Smt. Savitri Devi could be established. Reliance in this connection was placed by the petitioners on documentary evidence in form of returns, certificates and payment of salary. The authorities below, however, appreciating the facts and circumstances including the fact that some of them were prepared at a time with the same ink, did not believe them to be genuine and observed that they were prepared at a belated stage as an after-thought only with a view to create an impression that petitioner No. 2 was not sub-tenant but was an employee of petitioner No. 1. It was, therefore, not believed by the authorities. 27. In my opinion, such a finding can be said to be “a pure finding of fact”, which cannot be disturbed in exercise of revisional jurisdiction of this Court. …………………. 47. From the above decisions, in my considered opinion, the legal position appears to be fairly well-settled. It was, therefore, not believed by the authorities. 27. In my opinion, such a finding can be said to be “a pure finding of fact”, which cannot be disturbed in exercise of revisional jurisdiction of this Court. …………………. 47. From the above decisions, in my considered opinion, the legal position appears to be fairly well-settled. It is this: Whenever a landlord approaches a competent Court or a Rent Controller praying for eviction of tenant on the ground that he has, without the permission of the landlord sublet demised premises to a stranger, he must prove to the satisfaction of the Court or the Rent Controller, as the case may be, that he has parted with exclusive possession of the demised premises in favour of the stranger and that he had not retained possessory right or control over the demised premises. But once the landlord is able to establish that fact, it is open to a Court or Rent Controller to draw an inference that such parting of possession by the tenant in favour of a stranger is with valuable consideration. It is then for the tenant to rebut the said presumption by leading evidence and by showing to the Court or the Rent Controller that there is no subletting and the case does not fall within the mischief of the relevant provisions of law. If he is unable to rebut initial presumption, it is permissible to the Court or the Rent Controller to draw or make an order of eviction against him on the ground of sub-letting. 48. In the instant case, as observed by me hereinabove, both the authorities, on the basis of evidence adduced by the parties, held that Yash Pal, petitioner No. 2 was in exclusive possession of the suit property and that Smt. Savitri Devi, petitioner No. 1 (since deceased) had parted with possession in favour of said Yash Pal. In view of that finding, initial onus which was required to be discharged by the landlady had been discharged by her. In the light of the laid down by the Supreme Court in Rajbir Kaur and other cases, it was, therefore, open to the Rent Controller to raise a rebuttable presumption in favour of the landlady that parting of such exclusive possession by petitioner No. 1 in favour of petitioner No. 2 was with valuable consideration in the absence of rebuttal evidence by the tenant. Since there was no rebuttal evidence, the Courts below were fully justified in drawing an inference of sub-letting and in passing an order of eviction against the tenant, which cannot be said to be illegal or contrary to law and deserves no interference.” 46. Besides this, a perusal of the judgment and order under challenge by way of this revision petition also demonstrate that the findings which have been returned by the learned Courts below with regard to arrears of rent as well as re-construction of the building are also duly borne out from the records of the case and the same are not perverse. Landlords have duly substantiated that the condition of the building is such that it requires re-construction, which cannot be carried out without the same being vacated by its occupants and further arrears of rent from tenant/respondent No. 1 before the learned Rent Controller also stands duly proved on record. Therefore, findings returned to this effect also do not warrant any interference in the present revision petition. 47. In view of the discussion held above, as there is no merit in the present revision petition, the same is dismissed, so also miscellaneous applications, if any. No order as to costs.