Devinder vs Ram Dass

This Judgment has been overruled by : Ram Dass Vs. Davinder, AIR 2004 SC 2162 : (2004) 4 JT 9 : (2004) 3 SCALE 659 : (2004) 3 SCC 684 : (2004) 3 SCR 518 : (2004) AIRSCW 2078

V.S. Aggarwal, J.—The present revision petition has been filed by Davinder (hereinafter described as "the petitioner) directed against the judgment of the learned Rent Controller, Rohtak, dated 26.4.1995 and that of the Appellate Authority, Rohtak, dated 1.4.1997, affirming the findings of the learned Rent Controller. By virtue of the impugned judgment of the learned Rent Controller had passed an order of eviction against the petitioner holding that he is ceased to occupy the demised premises for a continuous period of four months without reasonable cause.

The relevant facts are that respondent Ram Dass had filed a petition for eviction against the petitioner u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short "the Act"). It was with respect to shop bearing No. 390 in Ward No. 16, Delhi Gate, Rohtak, the grounds of eviction were taken that the petitioner has failed to pay the arrears of rent for a period of 39 months and has impaired the value and utility of the shop. Further that petitioner is a nuisance and quarrels with the landlords-respondent whenever he goes to make the demand of rent. These grounds of eviction do not survive the consideration. The solitary other ground regarding which the adjudication required is that the petitioner ceased to occupy the demised property since February, 1990, till filing of the petition i.e. 13.6.1991.

Needless to state that in the reply filed the petitioner contested the eviction application. It was denied that the shop is lying closed since February 1990 or that he has ceased to occupy the said property. According to him he is opening his shop every day for few hours.

The learned Rent Controller as well as the Appellate Authority on appraisal and consideration of evidence held that the respondent had successfully proved in terms that petitioners was not in occupation of the shop in controversy since February, 1990. In this regard reliance has been placed on the evidence of Clerk of Haryana State Electricity Board, P.W.I Ram Bhagat, Postman, Kartar Singh who appeared as P.W.2, Sukhpal P.W.3, the process server, the photographer P.W. 6 besides the statement of respondent.

Aggrieved by the same, the present revision petition is filed.

The Court is aware that there is concurrent findings of fact by the Rent Controller and the Appellate Authority and, therefore, this Court in exercise of its revisional jurisdiction will not upset the same. There is no controversy that in exercise of the revisional jurisdiction only legality and propriety of the findings can be looked into. If there is misreading of evidence, the findings are absurd or without any logic or reasons, the same can certainly be set aside. The Supreme Court in the case of Damadi Lal and Ors. v. Paras Ram and Ors., 1976 Rent Control Reporter 584 while considering analogous provisions of Madhya Pradesh Accommodation Control Act held that if the findings of the lower Appellate Court have been arrived at ignoring important and relevant evidence, it would be bad in law. In other words, if the findings have been arrived at which are misreading of the evidence, the same also can easily be set aside. In the event the provisions of the Act will not be an embargo on the High Court in setting aside such findings so arrived at.

The learned Rent Controller and the Appellate Authority have strongly relied on the reports made by the postman. He is alleged to have visited the shop with the notices of the respondent and found it closed. According to petitioner''s learned counsel the postman had never visited the shop. The said argument indeed cannot be ignored because the endorsements on the envelops of shop being closed also refers to the visit of the postman on 24.2.1991, 10.3.1991 and 19.5.1991. The learned counsel had drawn the attention of the Court towards the calendar of the year 1991. All these three days were Sundays. It is common knowledge that Sunday is a closed day for the postal authorities. There was no occasion thus for the postman to visit the shop in question on Sundays. When such is the position, there is no hesitation in holding that the said endorsements and conclusions based on it that shop was closed is without any substance. The same necessarily has to be rejected.

Further more reliance has been placed on the statement and report of the process server in terms that he had visited the said shop. The same was closed. Even in this regard there is much left to be desired. Ex.PW5/D, is the report of the process server which even refers to the fact that he had visited the shop of the petitioner namely Shop No. 1538/21 Chakki, the petitioner refused the summons but in the same breath he adds that one summon and copy of the petition has been handed over to him. The process server had also been making the report about the shop being closed. Even in this regard firstly the above said report clearly shows that process server was determined to make inconsistent and unreliable reports. At best the visit of the process server would only establish that on the day he visited, the shop was closed. But it is not a proof that it was closed for all those four months. Otherwise also the nature of the report that has been made clearly establishes that there was a determined bid to get false reports to show that petitioner is not in occupation of the shop in controversy for a continuous period of four months without valid reasons. It is unknown that person would refuse the summon and take the copy of the petition and still his signatures are not obtained.

In line with the same reasoning reliance has been placed on the fact that electricity of the shop had been disconnected and this shows that there was no occupation by the petitioner of the said shop. This could have been an important piece of evidence. But it transpired in the statement of Ram Bhagat P.W.I a Clerk in Haryana State Electricity Board that shop had been opened in October, 1990. Once the shop was opened in October, 1990, then the factum and thrust of the argument that it was lying closed for a period of four months and that electricity was disconnected because of that reason losses much of its significance. This backdrop the bald statement of the respondent-landlord in support of his version which was self serving could not have been relied upon. It was obvious that there was no proper appreciation of evidence and evidence in fact was misread permitting this Court to interfere in the revision petition. The neighbour of the petitioner Narinder who appeared as R.W.I and another person Vijay Kumar Gandhi, R.W.3 clearly support his claim that the shop was not lying closed for period of four months without valid reasons. In this view of the matter, the findings of the Courts below cannot be sustained.

For these reasons, the revision petition is allowed and the impugned orders are set aside. Instead the petition for eviction is dismissed.