Arjan Dass vs Krishan Kumar etc.

The tenant has come up in revision petition against the order of the Appellate Authority reversing on appeal the order of the Rent Controller, whereby the eviction application filed by the respondent/ landlord was rejected.

The facts:--

The respondent/landlord sought eviction of the petitioner/tenant on the ground that he had ceased to occupy the shop in dispute for a continuous period of four months without reasonable cause with effect from Apr. 1, 1980 and that the tenant had materially impaired the value and utility by committing illegal act keeping the shop closed.

The tenant denied the allegations made in the eviction application. He maintained that he had not ceased to occupy the demised premises and he opened it daily and sold goods worth Rs. 36,000/- from Apr. I, 1980 to Sept. 7, 1980; that he is working as Part-time Accountant at Baldev Di Hatti for two hours in a day; he is wholesale dealer of hosiery goods; he had not done any act which had resulted in diminishing the value & utility of the shop in dispute.

The Rent Controller framed the following issues from the pleadings of the parties :--

(1) whether the respondent has ceased to occupy the shop in dispute for more than four months ? If so, to what effect ? OPA.

(2) Whether the respondent has materially impaired the value and utility of the shop ? If so, to what effect ? OPA.

(3) Relief.

The Rent Controller answered both these issues in favour of the tenant and dismissed the eviction application.

On appeal, the Appellate Authority reversed the finding of the Rent Controlier on both these issues but, to say the least, on wholly illegal and improper grounds. He rejected the evidence of the tenant on erroneous grounds. Section 13 of the Hast Punjab Urban Rent Restriction Act, 1949 (for short, the Act) states the grounds of eviction of tenant. Clause (v) of sub-sec. (2) of S. 13 of the Act states that if the building is situated in a place other than a hill station and the tenant has ceased to occupy it for a continuous period of four months without reasonable cause, the Rent Controller can order eviction of the tenant after giving him reasonable opportunity to show cause against the eviction application moved by the landlord on that ground. The words "ceased to occupy" have not been defined in the Act. In the Law Lexicon by Justice T. P. Mukerjee, the word "cease" is stated to mean "to discontinue or put to an end to". In Muria''s New English Dictionary, the expression "cease" is defined to mean "to come to an end, fail, become extinxct, pass away. The expression "cease to exist" in the same dictionary means "that has come to an end." "Cease" is strictly proper word to apply to the case where the entire thing has ceased to be. Its only import is that the tenant has discontinued to occupy the demised premises once and for all. It is to be seen whether the landlord has been able to establish that the tenant has discontinued to occupy the premises once and for all.

The landlord, in support of his plea, appeared as AW 1. He examined Joginder Singh as AW 2 and Megh Raj as AW 3. AW 2 Joginder Singh deposed that the shop in dispute was closed for 10/10 1/2 months. The statement was made on Jan. 21, 1981, meaning thereby that the shop was closed since March, 1980 or Feb. 1980, which is contrary to the landlord''s case pleaded in the petition. AW 3 Megh Raj appeared on Jan. 21, 1981 and stated on oath that the shop in dispute remained closed for the last 1 1/2 years, meaning thereby that the shop was closed since July 1979. AW 4 is an Advocate, who was appoined as a Local Commissioner to inspect the demised shop on Sept 17, 1980. The eviction application was filed on Sept. 13 1980. An application for appointment of Local Commissioner was made on Sept. 16, 1980. On the following day. AW 4 was appointed as Local Commissioner to inspect and report the existing condition of the shop in dispute. He not only inspected the shop but recorded the statements of witnesses also. According to his report, Ex.A.W. 4/1, some dust was resting on the shultter of the shop and there was some dust on the tarpaulin overhanging the shutter. He admitted in his cross-examination that opposite to the shop in dispute, the shop was under construction.

The tenant himself appeared as RW 1 and examined Kalu Ram as RW 2; Trilochan Singh as RW 3 and Ram Singh as R W 4. He also produced photostat copies of the bills Exs. R. 3/1, R. 4/1, R. 5/1 and R. 6/1 and copies of ledger account, Ex. R. 1 and Ex. R. 2. The ledger entries, Exs. R. 1 and R. 2 reveal that the tenant transacted business in the financial year 1980-81. Photo copies of the bills, Exs. R. 3/1 to R. 6/1 indicate that the tenant purchased cloth from M/s. Ram Singh Weaving Factory. Ram Singh (RW 4), proprietor of the weaving factory, appeared and deposed before the Rent Controller that he had sold cloth to the tenant vide original bills Exs. R. 3 to R. 6 (photocopies of which are Exhibits R. 3/1 to R. 6/1 respectively). R W 2 Kalu Ram is a postman, in whose beat the shop in dispute falls. He had been acting as a postman in the region where the shop in dispute was for the last 13/14 years. He candidly stated that he did not see the shop in dispute closed and had been delivering Dak to Arjan Dass, tenant. RW 3 Trilochan Singh is a shop-keeper doing business in the shop adjoining the shop in dispute. He deposed that he had been seeing the shop in dispute for the last 10 years and it was never closed. He also stated that the tenant was doing business in hosiery goods. The tenant also produced electricity bills Exs. R. 9, R. 10 and R. 11.

The evidence of the tenant''s witnesses was rejected primarily on the ground that the corroborative evidence was not produced. RW 2 Kalu Ram is an independent witness. His evidence was discarded only on the ground that he could not tell the corner in which the shop in dispute is situate. Admittedly, the shop in dispute is situate in a big premises. The evidence of RW 3 was rejected on the ground that his evidence was contrary to the evidence of the tenant. According to the Appellate Authority, the tenant admittedly is doing a part time job, but the witness stated that the shop remained open from 9-15 a.m. to 8 p.m. The Appellate Authority did not read the evidence in correct legal perspective and rejected the tenant''s evidence on wholly illegal premises. The tenant by positive independent and trustworthy evidence established that he is in occupation of the shop in dispute and that during the period the shop allegedly remained closed he had transacted business. He had been purchasing cloth from Ram Singh (AW 4). RW 3 is a shop-keeper occupying the adjoining shop. He is a Saree dealer and stated that he had been seeing the shop in dispute for the last ten years and he had never seen it closed. His evidence was discarded only on the ground that the tenant was admittedly doing part time business and during that period the shop cannot remain open. The inference drawn by the Appellate Authority is conjectural. No suggestion was put to the tenant or his witnesses whether the demised shop remains closed for any time during the working business hours. The tenant may be doing a part time job, but it does not necessarily means that the shop had to be closed. His servant or any family member may be doing business during his absence. Nature of the business carried on by the tenant does not require his presence in the shop for the period during which the shop remains open. Moreover, the landlord has to establish by positive evidence that the tenant had ceased to occupy the demised shop for a continuous period of four months without reasonable cause. No such proof has been led and on the basis of the evidence produced by him, no such inference can be deduced. The entire approach of the Appellate Authority is neither supported in law nor on evidence produced on record.

For the reasons aforementioned, the revision petition succeeds and the same is allowed. The order under challenge is set aside and that of the Rent Controller is restored. There will be order as to costs.

Petition allowed.