Jagdish Chander vs Rulia (died)

Bhopinder Singh Dhillon, J.—This is a tenant''s petition challenging the order of the appellate authority, dated 28th July, 1974, whereby the petitioner had been ordered to be evicted from the shop, in question. Rulia Ram landlord-respondent, had filed an application for eviction of the petitioner and Om Parkash on the ground of subletting and non-payment of rent. He averred that the shop in question was rented out to Om Parkash at a monthly rent of Rs. 30/- as per rent-note dated 11th June. 1962. At the time of the execution of the rent-note, one years rent was paid by Om Parkash. Two-three months later, Om Parkash sublet the shop of Jagdish Chander petitioner, who stated his business of a cycle merchant under the name of "Madhok Cycle Store" in this shop. This sub-letting was done without the consent of the landlord. In the beginning, the landlord was under the impression that Jagdish Chander was employed with Om Parkash, but later on he came to know that Om Parkash had sublet the shop. He served Om Parkash with a notice dated 18th June, 1967, requiring him to vacate the shop in dispute.

The ejectment application was resisted on behalf of Om Parkash and Jagdish Chander and it was pleaded that the shop in question was actually rented out to Jagdish Chander and Om Parkash never took the shop on rent from the landlord. Jagdish Chander averred that he was running the business of a cycle-store in the shop in question from the very beginning and he had been paying the rent to Rulia Ram landlord, regularly. Om Parkash in a separate written statement pleaded that he never took the shop in question on rent from Rulia Ram, landlord. However during the course of his statement, he stated that he signed the rent notes. Exhibit A/1 dated 18th June, 1962 and Exhibit A-3 dated 17th August, 1967, in favour of the landlord with a view to oblige him so that any tenant whomsoever the shop was rented out could be ejected by the landlord.

On the pleadings of the parties, in addition to other issues, Issue No. 2 was framed as follows:�

Whether the relationship of landlord and tenant exists between the applicant and respondent No. 1 ? OPA.

The Rent Controller dismissed the application of the landlord and so did the appellate authority. The landlord came up in revision before this Court when this Court remanded the case to the appellate authority with the direction that the parties be given further opportunity to adduce evidence and then the appeal of the landlord may he decided. The parties were given an opportunity to lead evidence and consequently, on the basis of the material on record the learned appellant authority decided Issue No. 2 in favour of the landlord, thereby ordering the ejectment of the tenant.

I have heard Mr. D.R. Puri and Mr. Balraj Bahl, the Learned Counsel for the parties at a considerable length. After going through the material on record and taking into consideration the respective contentions raised by the Learned Counsel for the parties. I am of the opinion that this revision petition is liable to be dismissed. The case of Jagdish Chander petitioner, as now argued in Court, was not set up in the written statement. It was contended by Mr. D.R. Puri, the Learned Counsel for the petitioner, that Om Parkash obliged Jagdis Chander to execute the rent note, Exhibit A/1 in 1962 as the landlord was not known to Jagdish Chander and in fact the shop in question was rented out to Jagdish Chander and not to Om Parkash. This plea was not taken in the written statement. On the other hand, Om Parkash in his supplementary statement, which was recorded by the appellate authority after remand, admitted to begin with he took the shop on rent for his own business and it was subsequently that he inducted Jagdish Chander. Om Parkash earlier took the plea that he executed rent notes Exhibits A/1 and A/3 at the instance of the landlord with a view to oblige him. He did not corroborate the story of Jagdish Chander as put-forth now by the Learned Counsel for the petitioner. It cannot be disputed that Om Parkash and Jagdish Chander are near relations. This finding of fact has been recorded by the learned appellate authority and nothing could be shown by the Learned Counsel for the petitioner to say that this finding of fact is in any way vitiated. The finding of the appellate authority that if the landlord wanted to get the rent note. Exhibit A/1, executed from Om Parkash fictitiously with a view to eject the tenant, he could not have got it executed from Om Parkash, who is near relation of Jagdish Chander and on the other hand he should have got it executed from a man of his own confidence, is correctly arrived at. Furthermore, Om Parkash, who was served with a notice, Exhibit A/2 in which it was claimed that the shop was rented out to him and he sublet the same to Jagdish Chander, chose not to reply to this notice and to refute the allegations. It is further in evidence that after this notice was served on Om Parkash. Jagdish Chander''s father submitted a complaint to the Public Grievance Officer, Ferozepore Exhibit R/1 in which he complained that the shop, was rented out to Jagdish Chander, who had been paying rent to the landlord and the landlord refused to give receipt for the rent and that injustice was being done to his son Jagdish Chander. The Public Grievance Officer called the parties at Muktsar on 17th of August, 1967 and got the matter settled. According to Rulia Ram, landlord, a sum of Rs. 1350/- on account of areas of rent front 1st of July, 1963 to 30th of March 1967 was paid by Om Parkash and he executed a fresh rent note. Exhibit A/3 with a promise to vacate the shop in dispute on or before 29th of February, 1968, whereas according to Jagdish Chander the rent had earlier been paid and no rent was paid to him as a consequence of the intervention of the Public Grievance Officer. According to Jagdish Chander, Rulia Ram, landlord, agreed to permit Jagdish Chander to continue in possession of the shop. The learned appellate authority refused to rely on the entries made in the account books of Jagdish Chander and in my view for valid reasons. According to the case of Jagdish Chander himself, since the landlord was not giving the receipts, he got the same from the landlord through the intervention of the Public Grievance Officer, but curiously enough, no such receipt was produced at the trial. The position taken by him that the said receipts has been misplaced cannot be accepted, for the simple reason that when the dispute was going on between the parties, it was quite probable for Jagdish Chander to have kept the receipt in safe custody, if any such receipt had been issued on his name by the landlord. Furthermore Om Parkash executed rent note Exhibit A/3. If Rulia Ram, landlord, had given the receipt to Jagdish Chander as claimed by the petitioner, there was no question of Om Parkash to execute a fresh rent note Exhibit A/3.

The contention of the Learned Counsel for the petitioner that Jagdish Chancier got his shop registered under the Shop Act in 1962 and, there fore, it be presumed that the shop was rented out to him is without any merit. There is no evidence to hold that it was the shop in question which was got registered by Jagdish Chander. Similarly, the settlements of Dwarka Dass, R.W. 2, Surinder Kumar R.W. 3, Inder Singh, R.W. 4 and C.R. Joshi. R.W. 5 are of no avail to the petitioner as the documentary and circumstantial evidence led is the case go to belie the case of the petitioner that he had taken the shop on rent from the landlord. Rent Note Exhibit A/1, dated 18th June 1952, rent-note, Exhibit A/3 dated 17th August, 1967 and the writing Exhibit R.W. 8/1 which Om Parkash admittedly signed all go to show that Om Parkash was the tenant in the shop in dispute and not Jagdish Chander. In Exhibit RW 8/1, Om Parkash wrote to Rulia Ram, landlord, that he had already paid him a year''s rent amounting Rs. 360/- for which receipt may be issued in his name. The contention that Om Parkash is having another big shop and many other shops in Muktsar and therefore, he had no necessity to run to the shop is without any merit. Om Parkash explained that he originally took the shop on rent for business purposes but subsequently he did not start the business in this shop. The statement of Shri C.R. Joshi, R.W. 5 has been disbelieved by both the Courts below and in my opinion for valid reasons.

From what has been stated above, the finding of the learned appellate authority that the shop in question was rented out to Om Parkash in 1962 who further sublet it to Jagdish Chander in the same year has been correctly arrived at. The only other question, which requires determination is that on 17th August. 1967 when rent-note, Exhibit A/3, was executed by Om Parkash in favour of the landlord, Jagdish Chander subletee, was admittedly in possession of the shop in question. The landlord knowing this fact fully well, got rent-note, Exhibit A/3 executed from Om Parkash. The question will be that does it amount to a written consent by the landlord for subletting the shop to Jagdish Chander, I have given my careful consideration to this question and I am of the opinion that in view of the mandatory provisions of section 13 of the East Punjab Urban Rent Restriction Act, 1949 which require that if a tenant has, after the commencement of the Act without the written consent of the landlord, transferred his right under the lease or sublet the entire building or rented land or any portion thereof, shall be liable to eviction, it will be difficult to hold that the landlord consented in writing to sublet the shop in question. The case of the landlord has been consistent from the very beginning. In 1962 he rented out the shop to Om Parkash who sublet it to Jagdish Chander without his written consent. In 1967 knowing fully that Jagdish Chander was in possession of the shop the landlord still got the rent-note Exhibit A/3, executed from Om Parkash and not from Jagdish Chander. If the landlord had consented for subletting there was no difficulty to have got rent-note executed from Jagdish Chander. That shows that the landlord never gave the consent in writing to the subletting of the shop in question. It has been hold by a Bench of this Court in Shambhu Datt and another v. Balwant Lal (1968) 70 P.L.R. 796 that when, the Legislature uses the adjective "written" to specify the nature of the ''consent'' it will be presumed at that any other kind of consent i.e. merely by word of mouth, acquiescence or conduct was necessarily excluded. These observations were made regarding the provision as contained in section 13(2)(ii) of the East Punjab Urban Rent Restriction Act. I am in respectful agreement with these observations.

In this view of the matter, there in no merit in this revision petition and the same in hereby dismissed. There will be no order as to costs. The tenant shall vacate the shop in question by 3rd of October, 1977, provided he pays the arrears of the rent to the landlord within a fortnight from today up-to-date. In case he fails to pay, he shall be.