Arjan etc. vs Jai Pal etc.

R.S. Pathak, C.J.—This is a landlord''s revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act.

The accommodation in question is a shop bearing municipal number 813 situated in Nalagarh. It was originally owned by one Babu Ram who rented the shop to the Respondent Jai Pal in August 1967. The shop was subsequently sold by Babu Ram to the Respondents Arjun, Sarwan and Budh Ram in October 1968. Jai Pal is now accepted as a tenant by them.

On March 17, 1969, the landlord applied u/s 13 of the East Punjab Urban Rent Restriction Act for the ejectment of the tenant on two grounds, that the tenant had sub-let the premises without the consent in writing of the landlord and that the tenant and the sub-tenants had damaged the property. The application was allowed by the Rent Controller, who, while finding that no damage had been proved to the shop, held the unauthorised sub-letting established, and accordingly he ordered the ejectment of the tenant and the sub-tenanats.

Jai Pal and Prem Chand, one of the alleged subtenants appealed, and the appeal has been allowed by Shri T.R. Handa, District Judge, Simla, as the Appellate authority constituted under the Act. The Appellate authority has held that the sub-letting has not been proved. The finding is based on two considerations; (1) the alleged sub-tenants were not joint tenants because there was no proof of partnership between them and (2) they were not individual tenants because there was nothing to show that they had been inducted to any specific portion of the shop. The Appellate authority also considered whether it could be said that Jai Pal had sub-let the shop to Prem Chand alone. Jai Pal and Prem Chand were brothers. It was held that as from the very date on which the shop had been taken on rent by Jai Pal it had been used for carrying on a tailoring business, a vocation of which Prem Chand had knowledge, and the inference was that the shop had been taken by Jai Pal to enable Prem Chand to carry on that business. The Appellate authority has rejected the case of the tenant that Jai Pal and Prem Chand were members of a joint family and that the tailoring business carried on was joint family business.

After hearing learned Counsel for the parties, it seems to me that the Appellate authority had failed to apply that care and attention to this case which it necessarily required. As many as four witnesses were produced by the landlords and seven witnesses were produced by the Respondents. The Rent Controller considered the testimony of all the witnesses and took into account that the oral evidence adduced by the landlords indicated that rent had been demanded by Jai Pal from the persons carrying on tailoring business in the shop and that a promise had been made by the latter that they would pay the rent. He also took into account the circumstance that Jai Pal did not live in the shop at all and indeed did not appear to have any control over the manner of its occupation. As regards the case of Jai Pal that some of the persons engaged in the tailoring business in the shop merely earned a commission and were, therefore, licensees, the Rent Controller commented on the absence of any accounts indicating the payment alleged to have been made to them. He also noticed that Jai Pal was running a typing business in another shop and was an employee in a Bank. Upon all the circumstances he came to the conclusion that Jai Pal had not started the tailoring business. The Rent Controller mentioned several other features emerging from the evidence on the record, and on a cumulative consideration of all that material he came to the conclusion that Jai Pal had sub-let the shop in question. The Appellate authority, unlike the Rent Controller, does not appear to have considered all those circumstances. It is true that it was not incumbent on the Appellate authority to reproduce the entire evidence in the judgment, but in a case where the Appellate authority reverses the findings of the Rent Controller it is necessary that he should apply his mind to the several considerations which found favour with the Rent Controller. It does not appear that the Appellate authority did so in this case. He appears to have considered it sufficient to refer to a few features of the case only and to conclude the appeal on their basis. That is not the manner in which an appeal can be properly disposed of. The entire record is before the Appellate authority. The responsibility conferred on the Appellate authority is a serious one, and having regard to the nature of the jurisdiction conferred by the statute it is desirable that the appeal should be disposed of upon as full a consideration of the material on the record and all pertinent considerations of law as is required of the Rent Controller. This is especially so when the Appellate authority takes a contrary view from the Rent Controller on material point which arise in the case. In my opinion the order of the Appellate authority is vitiated by an improper approach to the case before him and by his omission to consider all the material evidence on the record. In the circumstances the Appellate order must be set aside and the case remanded for fresh consideration.

The revision petition is allowed. The Judgment and order of the Appellate authority is set aside and the case is remanded to the Appellate authority for a fresh decision of the appeal. The application for ejectment was filed as long back as March, 1969, and the case has been pending ever since; it is necessary, therefore, that the case should be disposed of expeditiously. The Appellate authority is directed to fix an early date for the hearing of the appeal. In the circumstances, there is no order as to costs.