Balwant Singh vs Parav Singh and Others

Anjani Kumar, J.—This writ petition was heard by this Court on 27th August, 2004 when after hearing Counsel for the parties, this Court passed the order directing the writ petition to be dismissed for the reasons to be recorded later and the petitioner was granted time to vacate the disputed accommodation till 31st December, 2004. Now here are the reasons for dismissing the writ petition.

This writ petition filed by the petitioner-tenant under Article 226 of the Constitution of India challenges the order dated 2nd December, 2002, passed by the Revisional Court, whereby the Revisional Court dismissed the revision filed by the petitioner tenant, against the decree dated 8th December, 1999, passed by the trial Court, whereby the trial Court has decreed the suit for ejectment, and arrears of rent filed by the respondent-landlord, against the petitioner-tenant on the ground that the petitioner-tenant has sub let the shop, in dispute.

Learned Counsel for the petitioner-tenant relying upon the decisions of this Court reported in 1981 ARC 332, Ajit Singh v. Naresh Chand Gupta and Ors., and 1981 ARC 448, Sri Sohan Lal v. Ist Additional District Judge, Bulandshahr and Ors. before the Trial Court has submitted that the burden to prove the sub-letting was on the landlord-plaintiff and from the material on record it is clear that the plaintiff failed to discharge his burden. The Trial Court after considering the argument advanced on behalf of the petitioner tenant decided this question in favour of the plaintiff-landlord and recorded a finding that the plaintiff-landlord has been able to prove from the oral as well as documentary evidence that the petitioner-tenant has sub let the shop. The Trial Court has relied upon a decision reported in 1994 (2) ARC 66, Smt. Savitri Devi and Ors. v. Ist Additional District Judge, Gorakhpur and Ors. wherein this Court has held that the question of subletting can be decided on the basis of possession and other circumstantial evidence where there is no direct evidence. The similar view is taken by the Apex Court in the case reported in 1995 (1) ARC 220, Harish Tandon v. Additional District Magistrate, Allahabad, U.P. and Ors. The Trial Court has further recorded a finding that there are evidence on record which are oral and documentary both, from which it is apparent that the respondent No. 2 is sub-tenant of the respondent No. 1 and that the respondent No. 1 himself is not carrying on business from the disputed shop. On the other hand, respondent No. 1-tenant is carrying on business of tyre in Transport Nagar and respondent No. 2 is carrying on business of transport from the disputed shop. These facts were found to have substantiated by oral as well as documentary evidence of registration of respondent Nos. 1 and 2 in the office of the Trade Tax Officer. |

Thus, the suit was decreed on the ground of sub-letting. This order was affirmed by the Revisional Court. Learned Counsel for the petitioner has tried to raise the same points as has been raised before the Courts below.

It is settled law that this Court under Article 226 of the Constitution of India do not sit in appeal over the findings of the trial Court and affirmed by the Revisional Court unless the same are demonstrated to be perverse. No such argument has been advanced nor the findings are demonstrated to be perversed, therefore, this writ petition has no force and is dismissed.

Lastly it is submitted that the petitioner-tenant is carrying on business from the disputed shop, therefore, he may be granted reasonable time to vacate the same.

Considering the submission made by learned Counsel for the petitioner and facts and circumstances of the present case, I direct that the petitioner shall not be evicted pursuant to the decree of eviction till 31st December, 2005 provided.

(1) petitioner furnishes as undertaking before the Prescribed Authority within one month from today that he will hand over peaceful vacant possession to the landlord on or before 31st December, 2005; and

(2) petitioner pays to the landlord or deposits the entire arrears of rent/damages, if not already paid/deposited before the Prescribed Authority at the rate of rent till date within one month from today and continues to pay or deposits the same by first week of succeeding month so long he remains in possession or till 31st December, 2005 whichever is earlier. The landlord will be entitled to withdraw the amount so deposited.

In the even of default of any of the conditions referred to above, it will be open to the respondent-landlord to get the decree executed.

In the result, the writ petition is dismissed with the above direction.