Chaudhary Sunder Lal vs Ram Sarup

R.L. Anand, J.—This is a rent revision filed by Ch. Sunder Singh, landlord, against the tenant Ram Sarup, and it has been directed against the order dated 3.3.1983 passed by the Court of the appellate authority, Narnaul, under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called ''the Act''), who affirmed the order the Rent Controller dated 23.4.1982, who dismissed the application of the landlord u/s 13 of the Act.

The pleadings of the parties can be summarised in the following manner:-

The landlord filed, a petition seeking ejectment of the demised premises which is in the shape of a shop and it was pleaded by the landlord that the shop in dispute was given to the respondent on rent vide rent note dated 23.8.1972 on a monthly rental of Rs. 200/-. The respondent has neither paid the rent nor tendered the arrears of rent w.e.f. from 2.1.1977 to 22.4.1977 amounting to Rs. 600/-. The fair rent was fixed by the Rent Controller at the rate of Rs. 205/- per month and, thus, an amount of Rs. 161.60 are due to the landlord from the tenant on account of the enhanced rent from 13.8.1974 to 22.4.1977 at the rate of Rs. 5/- per month. It is alleged by the landlord that respondent is a statutory tenant as the period of tenancy has expired. Further grounds highlighted by the landlord while seeking the eviction of the respondent is that the respondent tenant has closed the shop for a period of 5/6 months prior to the filing of the petition and that the respondent had materially impaired the value and utility of the property.

Notice of the petition was given to the respondent, who admitted the arrears of rent as alleged and pleaded that he has always been ready to pay the amount but the petitioner was never prepared to issue the receipt. The petitioner wanted to harass the tenant. The tenant, however, denied that he has materially impaired the value and utility of the property or that he had closed the shop for 5/6 months as alleged by the landlord.

On the above pleadings of the parties, the learned Rent Controller framed the following issues for the disposal of the petition:-

"1) Whether the respondent has materially impaired the value and utility of the shop? OPA.

(2) Whether the respondent has closed the disputed shop for the last 5/6 months? OPA.

(3) Relief."

The parties led oral and documentary evidence in support of their case and on the conclusion of the proceedings, the Rent Controller for the reasons given in para 9 to 12 of the order dismissed the petition of the landlord.

Aggrieved by the order of the Rent Controller, the landlord filed a rent appeal in the Court of the appellant authority at Narnaul, who vide the impugned judgment dated 3.3.1983 and for the reasons given in para 10 sub Paras (i) to (vii), dismissed the appeal and aggrieved by the orders of the Court below, the present revision by the landlord.

I have heard the counsel for the petitioner. No assistance was given to me from the side of the respondent. With the assistance of the counsel for the petitioner, I have gone through the record of this case.

Before I deal with the submissions raised by the counsel for the petitioner, it will be useful for me to reproduce para 10 sub Paras (i) to (vii) of the judgment dated 3.3.1983 given by the appellate authority, which read as under:-

"10. I am of the view that the findings of learned lower Court on this issue should also be confirmed against the appellant and his appeal should be dismissed. My reasons for coming to the above conclusion are as under:-

(i) It is not disputed that according to Section 13(2)(v) of Haryana Urban (Control of Rent and Eviction) Act, 1973, if a tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, he is liable to be ejected. In this petition for ejectment, the petitioner had simply stated that for about 5-6 months the shop was kept closed. In this petition, he does not state that for a continuous period of four months without reasonable cause the shop was kept closed. So, the pleading of the petitioner is not in accordance with the law required as mentioned above in which it should have been mentioned that for a continuous period of four months without reasonable cause the shop was kept closed. Further, as already stated, it was alleged that the shop was lying closed for about 5-6 months. It means that this petitioner does not know the exact period since when the shop was closed.

(ii) I may refer to 1977 R.C.R. 327 (Karam Chand Joshi v. Kartar Singh and Ors.) in which it was held by our own High Court that specific period of non-occupation should be stated in the plaint. It was held by their Lordship that:-

".......As earlier observed, in the ground no period has been specified by the landlords during which the petitioner allowed the premises to remain unoccupied without reasonable cause. This by itself shows that the petitioner did not know as to what definite case he had to put in the pleadings and he was groping in the dark .... "

This ruling is fully applicable to the facts of the present case and so the petitioner has no case.

(iii) Even otherwise, the evidence of the petitioner is not convincing regarding the closure of the shop for about 5-6 months. AW-1 Hari Ram Clerk, Food and Civil Supplies, Narnaul has only stated that the respondent did not get renewed his food grain licence from 31.3.1976. AW-2 Raghbir Parshad, Supervisor, Market Committee, Narnaul had stated that the respondent did no business from 1.10.1976 to 30.4.1977. There may be many factors as to why the respondent did not get renewed his licence or did not did the business. These documents were not put to the respondent who appeared as RW-1. Another witness of the petitioner SW-3 Jagdish Parshad is also not a trust worthy witness. This witness had stated that the shop remained closed for 6-7 months. In cross-examination he stated that from Kartik 1976 to Cahitra 1976 the shop remained closed (It was inconsistent with the petitioner''s case filed on 26.4.1976 wherein he had stated that the shop was lying closed for about 5-6 months). Then this witness stated that the shop remained closed since March, 1977 while the petitioner''s case as AW-4 is that it remained closed upto April, 1977.

(iv) I may also add that the plea of respondent in his written statement regarding closure was that the shop was never closed for four months and that sometimes due to illness or on account of death of his father for a few days the shop was kept closed. Now, this witness AW-3 Jagdish Parshad could not say as to whether due to illness in the family of Ramsarup the shop could not be opened sometimes. He cannot see the shop of the respondent from his shop. So, evidence of the petitioner is not convincing to hold that without any reasonable cause, the shop in dispute remained closed continuously for four months.

(v) On the other hand, the evidence of the respondent consisting of RW-1 Ram Sarup respondent, RW-2 Ramesh Kumar, and RW-3 Shyam Sunder shows that the shop was never closed continuously and that because of holidays or illness it would be closed. RW-3 Shyam Sunder has denied specifically that in 1977 the shop remained closed for four months. RW-1 Ram Sarup respondent has also stated that he usually opens his shop and never kept it closed. He also stated that at the time of death of his father sometimes the shop would be closed. So, taking the evidence as a whole of the respondent also, it is not proved that the shop was closed for a continuous period of four months without reasonable cause.

(vi) Learned counsel for the appellant has relied upon Amar Singh and Another Vs. Ram Rakha, wherein it was held that actual user of building is essential to constitute occupation. It was also held that a tenant not opening his shop for 17 months has "ceased to occupy" it even if he had locked it with some articles inside. There is no dispute with the principle laid down in the above authority but this authority has no application to the facts of the present case.

(vii) Learned counsel for the appellant also relied upon 1967 Current Law Journal 487 (Kimti Lal v. Seth Nanak Chand) wherein it has been held that:-

"Occupation means occupation in the sense of actual user, and in support of this conclusion specifically the exemption granted to houses situated in a hill station are noticeable which normally remain unoccupied by owners or tenants from October to April, although their furniture remains there. In view of this, it is idle to suggest that the work "occupation" should be given a wider meaning."

Again, there is no dispute with the principle laid down in this authority but it has no application to the facts of the present case."

The learned counsel for the petitioner has attacked the findings of the Courts below on issue No. 2 only and I too shall confine my discussion on this issue. The counsel submitted it is proved on the record that the tenant had ceased to occupy the premises for a period of about 5/6 months immediately before the filing of the rent petition without any sufficient case and, as such, he is liable to be evicted. In support of his contention, counsel for the petitioner has taken me to the evidence of the parties and the documents which have been relied upon by the petitioner. It may be mentioned here that the ejectment petition was instituted on 26.4.1977 in the Court of the Rent Controller and; under these circumstances, the relevant period for adjudication would be whether the tenant had stopped the business with effect from November/December, 1976 onwards and whether the ground of ejectment as claimed by the landlord stands proved or not.

I have considered the submission of the counsel for the petitioner and I am of the considered opinion that this revision should meet with the same fate as the ejectment petition and the appeal had met in the courts below.

Section 13 of the Act deals with the eviction of the tenant and as per section 13(2)(v) of the Act, the landlord is entitled to seek the ejectment of a tenant as follows:-

"that where the building is situated, in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause."

Now, it is to be seen that the landlord has pleaded and what he has tried to prove. He is no where pleaded in his claim petition that the tenant had ceased to occupy the premises in question for a continuous period of 4 months without reasonable cause. His allegations are very vague. He simply alleged that the respondent has closed the shop for the last about 5/6 months. He has not specified from which date the respondent has stopped the business nor there is any allegation that the business has been stopped by the respondent without any sufficient cause. The oral evidence which has been relied upon by the landlord is the statements of Hari Ram, Clerk, Food and Supplies Department, Narnaul, AW-1 who simply deposed that the respondent did not get renewed his foodgrains licence from 31.3.1976. Similarly, Raghbir Parshad, AW-2, deposed that the respondent had not conducted any business w.e.f. 1.10.1976 to 30.4.1977. The question which survives is whether the evidence of these two witnesses relied upon by the landlord, is sufficient so as to conclude that the respondent had ceased to occupy the premises.

In this regard, we will have to see the stand of the respondent. The respondent has stated that sometimes he could not attend to his business because of holidays or on account of illness. Even if it is assumed for the sake of arguments that the respondent did not do any business of food grains w.e.f. 1.10.1976 to 30.4.1977, would it be enough to draw a presumption in favour of the landlord that the respondent had ceased to occupy the premises and the answer of this Court is in the negative. The learned appellate authority has rightly held that there can be several factors as to why the respondent did not get his licence renewed. Even the statement of Jagdish Parshad, AW-3, is not reliable. As per this witness, the shop remained closed for 6/7 months from Kartik 1976 to Chet 1976. These months are not in consonance with the pleadings of the petitioner. We all know that in the Desi Calendar, Chetra is the first month of the year and, thereafter, the month of Baisakh comes. Kattak is the 8th month followed by Maghar, Poh, Magh and Phaggan. Assuming for the sake of arguments that there is a slip of tongue on the part of AW-3 Jagdish Parshad and that he wanted to say that the shop in question remained closed from Kattak, 1975 to Chetra 1976, still this is not a case pleaded by the landlord. I have already stated above that the relevant period of this case would be November/December, 1976 onwards till the petition was instituted on 26.4.1977. Even the witness Jagdish Parshad admitted that he cannot say whether due to illness in the family of Ram Sarup, the shop remained open or not. Further, he stated the he could not see the shop in question from his shop and, in these circumstances, this witness could not say as to whether the shop in question remained closed or otherwise. The onus to prove that the tenant had ceased to occupy the premises for a continuous period of 4 months without any reasonable cause is upon the petitioner at the first instance. He could lead more convincing evidence to show that the tenant had ceased to occupy the premises for a continuous period. He could examined the Postman, he could produce the record of the Electricity Department. He could even call upon the respondent to produce his account books, cash memos, vouchers, etc, so as to raise an adverse inference against the tenant. He has not done so. In these circumstances, it is not open to the landlord to say that the tenant should have produced the best evidence in his favour so as to rebut the case of the petitioner. The initial onus is upon the petitioner to show that the shop in question remained closed and that the tenant ceased to occupy the property for a continuous period of 4 months. Once this aspect of the case is proved by the landlord, then, the onus will shift upon the tenant that he had not ceased to occupy the property for a sufficient cause. The landlord cannot take the advantage of any possible lapse on the part of the tenant. He has to discharge the onus. He has to stand on his own legs and cannot depend upon the weakness of the tenant.

As against the evidence of the petitioner, there is consistent statement of the respondent in consonance with his stand that the premises in question were not opened either because of holidays or on account of his illness. Even otherwise, in order to constitute the ground ''ceased to occupy'', it is imperative on the part of the landlord to establish that not only the business was closed, etc., but also to show on the part of the tenant that he had withdrawn from the business activity with the intention to stop the business for all times to come. Till this is established, it cannot be said that the tenant has ceased to occupy the premises. A casual closure of the shop or building on the part of the tenant for certain exigencies would not amount that he had ceased or abandoned his tenancy rights with the intention that he was no longer interested to occupy the shop/building in question.

Faced, with this difficulty, the counsel for the petitioner relied upon Dr. Dewan Chand and Ors. v. Mohinder Singh Arora 1980(2) R.C.J. 764.

In the opinion of this Court, rather the above cited judgment goes against the petitioner. In this case, it was proved that the shop in question remained closed for sufficient long time and the electricity reading for several months showed that the building was locked. In the present case, the landlord has not been able to bring this type of evidence so as to draw any inference in his favour. In Dr. Dewan Chand''s case (supra), it was further held that if a landlord calls upon a tenant to produce his account books concerning his business and the tenant refused to produce the same, an adverse presumption should be drawn against the tenant. I have already stated above that best evidence could be made available or it was easily available to the landlord. He ought to have served a notice upon the tenant under Order 12 Rule 8, C.P.C., calling upon him to produce his account books, etc., so as to show that the tenant has ceased to occupy the building with the intention to abandon his tenancy rights. The landlord has not tried to avail this evidence in this case. He has simply banked upon the statements of two witnesses, who deposed that the tenant did not renew his foodgrains licence. This circumstances is not so strong from which a preponderance of probability tilts in favour of the landlord.

The counsel for the petitioner also relied upon Braham Parkash v. Shri Shital Parshad 1982(1) R.L.R. 131, and submitted that the pleadings of the ejectment petition should be construed liberally and if the landlord in the ejectment petition has not stated the period from which the tenant was not occupying the premises, such a defect or omission may not be held fatal to the landlord, when such landlord has specifically urged that the tenant has ceased to occupy the building continuously for a period of more than 4 months and had left the possession thereof and the shop is closed without any reason. The counsel submitted that since no prejudice has been caused to the tenant for want of specific period in the pleadings, therefore, no adverse inference should be drawn against the landlord.

The argument is not acceptable to the Court. The judgment in Braham Parkash''s case (supra) can be safely distinguished. Right from the very beginning, the landlord is not clear in his mind as to from which date the tenant had ceased to occupy the building. He had not given the date or the approximate date from which it may be inferred that the tenant had ceased to occupy the building or a part of it. Moreover, there is no such statement by the landlord in this case that the tenant had left the possession thereof or that the shop is closed without any sufficient cause.

Lastly, reliance was placed on Hari Dev Vs. Mandir Bhagwan Dwarka Nath Ji and Others, . In this citation, it was held that it is for the landlord to prove that the premises remained unoccupied by the tenant for a requisite period. Thereafter, the burden of proof shifts on the tenant to establish that it was not so without any reasonable cause. It is for the tenant to explain as to under what circumstances he ceased to occupy the premises because these facts can only be in the knowledge of the tenant. This judgment, too, is not helpful to the petitioner. As I have stated above, the initial onus is on the petitioner. In this case, the landlord has not been able to show that the tenant had ceased to occupy the building and, in these circumstances, the onus will not shift upon the tenant.

This is a revision. Both the Courts below have gone against the landlord and, in these circumstances, the interference by the revisional Court would only be when this Court comes to the conclusion that there is a wrong appreciation of evidence by the Courts below. I have already discussed the evidence recorded by the Rent Controller. Further, I have gone through the reasons given by the Rent Controller as well as by the first appellate authority in dismissing the rent petition. It is the settled principle of law that the revisional jurisdiction cannot be equated with the appellate jurisdiction and this Court can interfere only there is a perversity in the matter of appreciation of evidence by the appellate authority under the Act or unless the authority had arrived at the conclusion which on the materials, no reasonable man can come. The counsel for the petitioner has not been able to convince me how the conclusion arrived at by the Courts below were perverse.

Resultantly, I am of the opinion that this revision is without any merit and the same deserves to be dismissed and I order accordingly with no order as to costs.