G.C. Bhatia vs R.L. Seth

V.P. Bhatnagar, J.—Shri G. C. Bhatia is the tenant whose eviction from the rented building had been sought by the landlord Shri R. L. Seth on the ground that Shri Bhatia had ceased to occupy the said premises for a continuous period of 12 months without reasonable cause. The learned Rent Controller, accepting the ground on which the eviction had been sought, ordered the eviction of the tenant by his judgment dt. Aug. 19, 1982. The learned Appellate Authority, Shimla dismissed the appeal of the tenant vide judgment dt. Aug. 27, 1983 aggrieved from which the present revision petition has been preferred.

In para 18(a) of the application for eviction filed before the learned Rent Controller, Shimla, the following ground for eviction was raised :

The respondent has ceased tooccupy the premises for a continuous period of 12 months without reasonable cause. As already stated above since the respondent has already been transferred out of Simla since more than 5 years and his family members have also shifted along with him, no one is residing in the premises and they are being kept locked since the fast 5 years. To be more specific the respondent has ceased to occupy the premises continuously for the last 12 months prior to the filling of this petition."

Reply to the above averment runs :

"The premises are in use and occupation of the respondent and his family members. The respondent is on deputation and his present deputation will coincide with his retirement in 1982, after which he intends to settle down permanently, at Simla, as he has no house of his own, any where throughout: India."

It has to be determined in the background of the above pleadings and the evidence led by both the parties as to whether the respondent (Shri R. L. Seth) in this petition has succeeded in proving that the petitioner (Shri G. C Bhatia) had ceased to occupy the tenanted premises for a continuous period of 12 months without any reasonable cause. It may also be stated here that the period of 12 months during which the petitioner was stated to have ceased to occupy the premises was indicated in para 18(a) itself and the said 12 months were prior to the filing of the petition. The petition was instituted on Mar. 31, 1980. Therefore, the relevant period during which the occupation of the petitioner has to be seen would be from April. 1,1979 to i Mar. 31, 1980. ''.

The respondent has examined PW 2 B. K. Khanna and PW 3 Ashok Rawal in addition to stepping himself into the witness box as PW 1 in support of his case. His own testimony cannot be of much assistance to him inasmuch as he has admitted during the cross-examination that he visited the premises in dispute 3/4 times during the relevant period. His personal knowledge, therefore, extends only to said occasions and the remaining part of his testimony to the effect that he had been informed by other tenants and the sweepress constitutes hear-say evidence and, therefore, inadmissible.

PW 2 B. K. Khanna has stated in the examination-in-Chief itself that the petitioner has not been mostly staying in Shimla during the iast 5 years. It is implicit in his above statement that the petitioner has been staying every now and then in the disputed premises. To the same effect is the testimony of PW 3 Ashok Rawal who has deposed in his cross-examination that petitioner''s family has been staying for 10-15 days in the tenanted premises during every summer.

It is clear from the statement of Shri G. C, Bhatia, petitioner, that he along with his family had to shift out of Shimla after Dec. 1975 and further that he along with his family members had been visiting Shimla off and on, specially during the summer months. His family members stayed in Shimla during the months of May and June, 1979 and he had also joined them from the period from end of May to June 24, 1979. The perusal of the certificate of medical reimbursement, Ex.R-19, shows that the petitioner had been under medical treatment at Shimla from June 19 to June 23, 1979. The electricity consumption bills Exs R.I to R. 16 have also been placed on record. The perusal of the bill Ex.R-9 shows that 86 units of electricity were consumed for the period from May 17, 1979 to June 20, 1979. Fourteen units were similarly consumed during the next month. RW 2 R. K. Gupta has also supported the petitioner''s case that he along with the members of his family came to Shimla every summer and stayed in the premises in question.

On the above evidence, it is not possible to hold that the petitioner had ceased to occupy the premises continuously for a period of 12 months. Undoubtedly, he was not in regular occupation of the premises after Dec. 1975. This was because his office had since been shifted to Chandigarh from where he had gone on deputation to the office of Comptroller and Auditor General of India, New Delhi. The petitioner has, however, pleaded at the very first opportunity while filing his reply that he had no house of his own anywhere in the country and that he had intended to come back to Shimla in the year 1982 on attaining the age of superannuation and, therefore, had no intention whatsoever of giving up these premises. This part of his case, also stated in the witness box, has not been rebutted at all and has to be accepted. Not only that, he had filed an application on Aug. 3, 1983 before the learned Appellate Authority, Shimla that he had retired on Dec. 31,1982 and had thereafter shifted to Shimla permanently in the tenanted premises. It appears no action was taken on this application by the learned Appellate Authority which proceeded to dismiss the appeal as stated above. It is now well-settled law that subsequent events can be taken into consideration even at the stage of deciding the revision petition. The parties, therefore, could have been directed to state by way of affidavits their respective positions in the matter after Dec. 31, 1982. This I do not consider necessary now on the facts of this case due to the reason that this revision petition deserves to be allowed on the short ground that the respondent cannot be held to have proved his case otherwise within the four-corners of law inasmuch as the continuous cessation of occupation by the petitioner for a period of 12 months does not stand established.

Whether a tenant has ceased to occupy the tenanted premises for a continuous period of twelve months without reasonable cause withinin the ambit of sub-section (2)(v) of S. 14 of the Himachal Pradesh Urban Rent Control Act, 1971 is essentially a question of fact and has to be determined on the merits of each case.

The learned Appellate Authority, Shimala has heavily banked upon two cases decided by this Court to support his finding that visiting the disputed premises along with the members of the family to reside therein occasionally would not constitute occupation of the premises. Those cases are S. Gurbux Singh v. Kali Dass (1980) 2 RCR 47 : ILR (1980) H P 176 and Mohinder Singh v. Mohd. Ibrahim ILR (1982) H P 268. I have gone through both these judgments and find that in both the cases a clear and firm finding had been returned that the tenant had not used the premises for a continuous period of 12 months without any reasonable cause. The effect of occasional visits was not construed therein. It is, therefore, not correct to say that Gurbux Singh''s case (supra) lays down that an occasional visit by tenant amounts to non-occupation of the building.

If a tenant uses the rented building occasionally, it may or may not amount to its non-occupation. The nature and extent of the occasional visits, the animus deserendi and the totality of circumstances of each case will have to be considered for the purpose of determining whether the tenant has ceased to occupy the building for a continuous period of twelve months without reasonable cause.

So far as the case in hand is concerned it is simply not possible to hold that the petitioner ceased to occupy the premises for a continuous period of 12 months. He has been positively using the premises as he and the members of his family have been staying therein during each summer and particularly in the months of May and June, 1979. At no poinl of time, he had the animus to give up the premises.

The law laid down in smt. Shakuntla Bawa v. Ram Parshad (1963) 65 P LR 10.1 can also be of no assistance to the respondent because facts in that case were totally different. In that case, all that the tenant had done was to keep some articles of furniture in the premises and had kept on paying the rent. She had been found not to have slept there for a single night even during her occasional visits to that city where the property was situate.

Por the foregoing reasons, I accept this revision petition and set aside the impugned order. The parties are, however, on the facts of this case, left to bear their own costs.