Mohinder Pal v. Jang Bahadur & Anr.

Mr. Ashish Rawal, Advocate, for Mr. Anupam Gupta, Advocate, for the respondents. Alok Singh, J. Tenant – revisionist has filed present revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) challenging the judgment dated 30.01.1995 passed by the C.R. No. 1562 of 2001 2 learned Rent Controller, Jalandhar, as well as, judgment dated 03.03.2001 passed by the learned Appellate Authority, Jalandhar, thereby directing the eviction of the tenant – revisionists from the tenanted premises. Landlord-respondent has filed eviction petition against Mohinder Pal Singh – revisionist and Subhash Chander (OP No.2 in the eviction petition) alleging therein that tenant is in arrears of rent from 1.8.1989 and the tenant has not paid house tax for the year 1990-91. It is further averted by the landlord that tenant has sublet the tenanted premises to O.P. No.2 – Subhash Chander without permission and consent of the landlord. Eviction petition filed by the landlord – respondent herein was resisted by the tenant – revisionist. It was contended by the revisionist – tenant that O.P. No.2 is close friend of the landlord and simply in order to seek ejectment of the tenant, he has been arrayed as OP No.2. It is also denied that O.P. No.2 is doing wholesale business in the demised premises. It is further averted by the tenant that tenant is not in arrears of rent and entire arrears along with cost and interest was paid on the first date of hearing. Learned Rent Controller found that tenant is not in arrears of rent and the entire arrears has been paid, however, learned Rent Controller found that OP No.2 is in exclusive possession of the demised shop and tenant is not in actual possession of the shop in dispute and tenant has sublet the C.R. No. 1562 of 2001 3 shop in despite to O.P. No.2 without written consent of the landlord. Having found subletting proved, learned Rent Controller vide impugned judgment dated 30.01.1995, directed eviction of the tenant. Revisionist – tenant preferred appeal before the learned Appellate Authority under the Act challenging the eviction order passed by the learned Rent Controller. Learned Appellate Authority vide judgment dated

03.03.2001 dismissed the appeal. Feeling aggrieved from the judgments of both the Courts below, only tenant – revisionist has approached this Court by way of present revision. I have heard learned counsel for the parties and perused the record. Possession of OP No.2 in the eviction petition was found in the shop in dispute on the basis of Advocate Commissioner report. Learned counsel for the tenant – revisionist vehemently argued that son of the landlord is practicing advocate and advocate commissioner who has reported possession of OP No.2 is very close friend of the practicing advocate, hence, he has submitted wrong report. He has further stated that it has not been proved on record that there is any contract between the tenant and OP No.2 regarding the sub tenancy. It has further been contended that landlord has miserably failed to prove that any consideration is being paid by OP No.2 to the tenant – revisionist. Learned C.R. No. 1562 of 2001 4 counsel for the tenant – revisionist stated that no commission can be issued to find out who is in possession, hence, report of the commissioner advocate cannot be made basis to record that OP No.2 is in possession. Learned counsel for the landlord – respondent vehemently argued that Court has every power to appoint commissioner to find out who is in possession. It has further been argued by the landlord that since possession of OP No.2 was found in the demised property, hence, both the Courts below were well within their jurisdiction to record the finding that OP No.2 is in exclusive possession. The Apex Court in the case of Resham Singh vs. Raghbir Singh, reported in 1999(3) P.L.R. 527 in paragraph nos. 5,6,7 and 8 has observed as under:- “5. The question of sub-letting is a conclusive on question of law derived from the findings on materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. While considering the said sub-section (5) the above view was also expressed by this Court in Dev Kumar (Died) Through LRs v. Swaran Lata (Smt.) and others, 1996(1) SCC 25: 1996(1) RCR 40 (SC).

6. The sub-Section (5) empowers the High Court either on application or in its own motion to call for an examination of the record for the purposes of C.R. No. 1562 of 2001 5 satisfying itself as to the legality and propriety of such orders or proceedings. In view of the above language of sub-Section (5) we find that the High Court while exercising powers under sub-Section (5) of Section 15 of the Act has got the powers to satisfy itself as to whether the question of sub-letting which is a question of law was properly decided by the courts below. From the impugned judgment of the High Court we find that the Court did not rightly find ingredients of sub-letting. We, therefore, hold that the High Court was justified in setting aside the judgments of courts below.

7. It is settled position of law that to establish sub- letting the onus is on the landlord to prove through evidence that sub-tenant was in exclusive possession of the property in question; that between the sub- tenant and the tenant there was relationship of lessee and lessor and that possession of the premises in question was parted with exclusively by the tenant in favour of the sub-tenant. (See – Kala and another v. Madhu Parshad Vaidya, 1998(6) 573: 1998(2) RCR (Rent) 279 (SC) and Benjamin Premanand Rawade (Dead) by LRs v. Anil Joseph Rawade, 1998(9) SCC 688: 1999(1) RCR (Rent) 115 (SC).

8. In the present appeal it is not disputed that both the respondents are brothers and respondent No.1 C.R. No. 1562 of 2001 6 Raghbir Singh who was the tenant was involved in some criminal proceedings and he was absconding for a considerable period. Being an absconder it does not possible for the tenant-respondent No.1 Raghbir Singh be physically present in the premises in question. It is natural to allow his brother – Kuldip Singh to look after the shop and this fact would not amount to sub-letting.” From the dictum of the Apex Court, it can safely be said that while exercising the revisional jurisdiction, this Court has every jurisdiction to upset the finding of fact recorded by Courts below if this Court finds that ingredients of subletting are missing. From the dictum of the Apex Court in the matter of Resham Singh (supra), it can further be held that to prove the sub tenancy, it has to be proved by the landlord that there was relationship of lessee and lessor between the tenant and sub-tenant and sub-tenant is paying any consideration to the tenant. There is nothing on record to prove that OP No.2 ever paid any consideration to the revisionist – tenant. I am unable to find out any material on the record that there was relationship of lessor and lessee between the tenant and OP No.2. In the opinion of this Court, a commission cannot be issued to collect the evidence. Hence, report of the commissioner advocate on the point that OP No.2 was found C.R. No. 1562 of 2001 7 in exclusive possession should have not been believed particularly in view of the fact that tenant – revisionist is alleging that advocate commissioner is close friend of practicing advocate son of the landlord. In the opinion of this Court, report of the advocate commissioner is highly doubtful and in the absence of the any agreement between the tenant and OP No.2 and in the absence of any material to prove that alleged sub lessee OP No.2 has ever paid any consideration to the tenant – revisionist, it would not be safe to hold that tenant – revisionist has sublet the demised premises to OP No.2. A person can tell lie, however circumstances do not. Undisputedly, landlord has earlier instituted first ejectment petition in 1988 against the tenant – revisionist on the ground of arrears of rent, material alteration and on the ground that tenant had ceased to occupy the premises for a period of four months. The said petition was dismissed by the learned Rent Controller vide judgment dated 30.01.1995. During the pendency of first ejectment petition, another ejectment petition was filed by the landlord against the tenant – revisionist on 12.05.1988 on the ground that shop in dispute was required for the son of the landlord who is a practicing advocate for the purpose of establishing his office. That petition was also dismissed by the learned Rent Controller vide judgment dated 24.05.1995. Appeal therefrom was also C.R. No. 1562 of 2001 8 dismissed in default vide judgment dated 21.05.1997. During the pendency of two earlier eviction petitions, landlord has filed present eviction petition alleging the ground of sub tenancy. Had there been any sub tenancy, landlord would have taken that ground in the earlier eviction petitions. Not only this, landlord has not established as to when alleged sub tenancy was created by the tenant revisionist herein in favour of OP No.2. Taking into consideration entire material, facts and circumstances of the case, in the opinion of this Court, sub tenancy is highly doubtful and is not proved. Petition is allowed. Impugned judgments dated

30.01.1995 and 03.03.2001 are set aside. Eviction petition filed by the landlord – respondent stands dismissed. No costs. September 24, 2010 ( Alok Singh ) Judge