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2017 DIGILAW 639 (HP)

Jogeshwar Prasad v. Narender Kumar

2017-06-02

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant civil revision petition is directed against the concurrently recorded pronouncements made by both the learned Courts below, whereby the tenant/petitioner herein was ordered to be evicted from the demised premises, on his provenly falling into the arrears of rent in respect thereto besides his, without the consent of the land lord, putting it to a use, other than the use with respect whereof Ext. PW2/B was executed interse them. 2. The respondent is landlord of four storeyed building known as “Chauhan Niwas”, Ward No. 6, Mahaveer,Mohalla, Kasba Bazaar, Rampur Bushar, District Shimla. The said building is situated over the land comprised in Khata Khatauni No. 9 min 13, being Khasra No. 657/202 measuring 143-50 square meters situated in Muhal Kasba Bazaar-II, Rampur Bushahr,District Shimla, H.P. He purchased the building vide registered sale deed No. 422/2011 reference No. 815/11, dated 12.10.2011 from its previous owner Surinder Singh son of Sh. Raja Ram R/o Main Bazaar, Rampur Bushahr, District Shimla. The petitioner is a tenant with respect to two rooms and two kitchens situated in ground floor of the four storeyed building. He was inducted as tenant by the previous owner w.e.f. 1.10.2009 vide rent agreement dated 12.10.2009 on a monthly rent of Rs. 5500/- inclusive of house tax. The petitioner is residing with his family in one room and is running a tea stall/canteen in the second room. He has also changed the user of the premises from residential to commercial without the permission of the landlord. 3. The petitioner/tenant has admitted the factum of tenancy and the relationship of landlord and tenant interse the parties. However, the rate of rent @ 5500/- and the period of its non-payment has been denied and disputed. It is submitted that the petitioner is a tenant over the demised premises since 1992 on a monthly rent of Rs. 3,000/- inducted as tenant by the previous owner and that he has paid up to date rent @ 3,000/- per month. The petitioner has further denied the change of user of the premises from residential to non-residential/commercial. He has submitted that he is running a canteen since 1992 in one room and is residing in other room and kitchen. The said fact was well within the knowledge of the previous landlord and now the respondent. The petitioner has further denied the change of user of the premises from residential to non-residential/commercial. He has submitted that he is running a canteen since 1992 in one room and is residing in other room and kitchen. The said fact was well within the knowledge of the previous landlord and now the respondent. He has also denied the rent agreement dated 12.10.2009 having been executed between him and the previous landlord. The petitioner with these submissions denied the claim of the respondent/landlord for being in arrears of rent and guilty of the change of user of the demised premised. 4. The petitioner/tenant filed rejoinder reasserting and reaffirming the grounds of eviction by denying of the defence set up by the respondent. 5. Out of pleadings of the parties, the following issues were settled for adjudication and determination by the learned Rent Controller, Rampur Bushahr on 3.12.2012. 1. Whether the petitioner is entitled or eviction of the premises on the ground of non-payment of arrears of rent, as alleged? OPP 2. Whether the petitioner is entitled for the eviction on the ground of change user of the premises? OPP 3. Relief. 6. On an appraisal of the evidence, adduced before the Rent Controller, the learned Rent Controller allowed the petitioner. In the appeal, preferred against the order of the learned Rent Controller by the respondent-landlord before the learned Appellate Authority, the learned Appellate Authority dismissed the appeal and affirmed the findings recorded by the learned Rent Controller. 7. Now the petitioner-tenant has instituted the instant Civil Revision before this Court, assailing the findings, recorded in the impugned judgment, by the learned Appellate Authority 8. Ext.PW2/B is a validly executed agreement interse the parties at contest. Its execution by the respective contestants herebefore remains undisputed, thereunder the demised premises were leased to the petitioner/tenant herein w.e.f. 1.10.2009, on a monthly rent of Rs. 5500/- alongwith all the statutory increases, at the rates stipulated in the H.P. Urban Rent Control Act, 1987. The evidence placed on record is reflective of the fact of the tenant/petitioner herein evidently falling into arrears of rent, in a sum quantified at Rs. 1,78,637/-, sum whereof also includes all statutory increases, being added thereon, in consonance with the statutorily prescribed rates. The evidence placed on record is reflective of the fact of the tenant/petitioner herein evidently falling into arrears of rent, in a sum quantified at Rs. 1,78,637/-, sum whereof also includes all statutory increases, being added thereon, in consonance with the statutorily prescribed rates. Evidence with respect to the tenant/petitioner herein falling into arrears of rent in the sum aforesaid with respect to the demised premises, was not concerted to be shred of its efficacy, by the tenant/petitioner herein, by his adducing before the learned Rent Controller concerned, cogent evidence for displacing its probative worth. Consequently, the conclusions concurrently recorded by both the learned Courts below qua the tenant/petitioner herein falling into arrears of rent, in the sums aforesaid, with respect to the demised premises, do not warrant any interference. 9. Be that as it may, the tenant/petitioner herein could escape his liability of his hence being coercively evicted from the demised premises, on his, within a period of one month since the pronouncement recorded by the learned Rent Controller, depositing before it, the aforesaid quantum of arrears of rent, determined by the learned Rent Controller concerned, with respect to the demised premises. However, the tenant/petitioner herein has evidently failed to adduce any evidence with respect to his, within the statutorily enjoined period of one month, since the pronouncement recorded by the learned Rent Controller, hence through a tenable mode liquidating his liability with respect to arrears of rent. Consequently, the failure of the tenant to liquidate his liability with respect to the arrears of rent determined by the learned Rent Controller qua the demised premises, entails the ill consequence of his hence suffering coercive eviction from the demised premises. 10. Both the learned Courts below had, on a appraisal of evidence, adduced with respect to the tenant/petitioner herein “begetting” without the written consent of the landlord/respondent, a change of user of demised premises, had concluded that the tenant/petitioner herein had unauthorizedly put the demised premises to commercial use. The aforesaid conclusion concurrently recorded by both the Courts below upon the tenant/petitioner herein qua his, without the written consent of the landlord putting the demised premises to commercial use, had anvilled their conclusions upon the omission of the tenant/petitioner herein, to adduce evidence in respect of the respondent/landlord purveying a written consent to him, for his putting the demised premises to commercial use comprised in his operating a canteen therefrom. Since the tenant acquiesces to the factum of his using a part of the demised premises for a commercial purpose, comprised in his operating a canteen therefrom, also with the aforesaid user, of a part of the demised premises by the tenant/petitioner herein, being evidently without the written consent of the respondent/landlord, hence the ensuing sequel therefrom, is that the tenant/petitioner herein hence proceeding to use a part of the demised premises for a purpose other than it was let out to him by the respondent/landlord. However, the impact of the aforesaid inference is concerted by learned counsel for the tenant to stand undermined by the factum of the tenant/petitioner herein, operating from the demised premises, a canteen since the year 1992 up to the date of execution of Ext. PW2/B, hence with the aforesaid factum being in the know of the respondent/landlord, thereupon in his operating a canteen in a part of the demised premises since then up to the date of institution of a petition for his eviction, hence boosting an inference that the landlord/respondent herein tacitly purveying implied consent to him to run or operate a canteen in a part of the demised premises, with a further effect of the aforesaid findings recorded on the relevant ground of eviction, warranting interference by this Court. 11. The aforesaid submission is rejected on the ground that the tenant/petitioner herein has not been able to adduce firm and cogent evidence with respect to the respondent/landlord at the time of execution of Ext.PW2/B holding knowledge with respect to the tenant/petitioner herein using a part of the demised premises for operating a canteen therefrom. In the absence of the aforesaid firm evidence, with respect to the land lord holding knowledge qua the petitioner/tenant herein at the time contemporaneous to the execution of Ext. PW2/B interse them hence using a part of the demised premises for operating a canteen therefrom obviously cannot afford any leverage to the petitioner/tenant herein to hence canvass that the respondent/landlord had, since then up to the date of institution of the apposite petition, tacitly purveyed an implied consent to him with respect to his using a part of the demised premises, for operating a canteen therefrom nor can he contend that hence on the issue apposite thereto warranting findings being returned against the respondent/landlord. 12. 12. Pre-eminently also when the recitals contained in Ext.PW2/B override besides overcome the effect if any of oral evidence in respect of permissive change of user of the demised premises by the tenant/petitioner “whereas” with Ext. PW2/B not containing any recital with respect to the demised premises being let out to the tenant/petitioner herein for his operating a canteen in a part thereof. Consequently, absence of apposite recitals in Ext. PW2/B, whereupon the tenant was permitted to use a part of the demised premises for operating a canteen therefrom also with his admitting the factum of his operating a canteen from a part of the demised premises, despite no written consent in respect thereto standing purveyed to him by the respondent/landlord, naturally begets the inevitable conclusion, that the concurrently recorded findings of both the learned Courts below that the tenant/petitioner had without the written consent of the respondent/landlord, hence altered the user of the demised premises, not warranting any interference. 13. For the reasons which have been recorded hereinabove, this Court holds that both the learned Courts below have appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned Appellate Authority does not suffer from any perversity or absurdity of mis-appreciation and non-appreciation of evidence on record, rather it has aptly appreciated the material available on record. 14. In view of the above, I find no merit in this appeal, which is accordingly dismissed. In sequel, the impugned judgments of both the learned Courts below are affirmed and maintained. Record of the learned trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.