Joginder Lal Munjal and another vs Ram Sarup Gupta

Jai Singh Sekhon, J.—The tenant has directed this revision petition under the provisions of Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act. 1973 (Hereinafter called the Act), against the order of the Appellate Authority, Karnal, affirming the order of the Rent Controller ordering the ejectment of the tenant from the shop in dispute on the ground of sub-letting.

In brief, the facts are that Ram Sarup Gupta is the owner of shop No. 4, located outside Cotton Factory, Novelty Road, Karnal. He allegedly rented out the said shop to Joginder Lal Munjal at the monthly rent of Rs. 250/ besides house-tex etc. The ejectment of the tenant was sought on the ground of non-payment of rent since 1st July, 1976, besides on the ground of sub letting of the premises to Respondent No 2-Munjal Brothers. This application was resisted by Joginder Lal tenant contending that he was not the tenant of the shop in dispute and never occupied the same. On the other hand it was contended that Respondent No 2 is a partnership business concern and is being carried out in the name of Munjal Brothers. It is further maintained that Jagdish Lal brother of Joginder Lal and Smt. Lakshmi Bai mother of the latter are partners of this concern and are occupying the shop as tenants at monthly rent of Rs 150/-. Smt. Lakshmi Bai tendered the arrears of rent at the rate of Rs. 150/-per month etc., which were accepted by the landlord under protest. In the replication the landlord again reiterated his own stand regarding the rate of rent and subletting.

The learned Rent Controller, Karnal, vide his order dated 3rd March. 1983 ordered the ejectment of Joginder Lal tenant from the shop in dispute by holding that he had sublet the same to Respondent No 2, i e. Munjal Brothers. The tender was held to be valid as the landlord did not stress the rent to be Rs 250/ per month. The appeal filled by the tenant was also dismissed by the Appellate Authority, Karnal, vide impugned order dated 27th August, 1984.

I have heard the learned Counsel for the parties besides perusing the record. The basic controversy in this case is whether the shop was rented out to Joginder Lal tenant or it was taken on rent by his father Dayal Dass on behalf of the firm M/s Munjal Brothers. Unfortunately, no rent note was executed by the landlord or the tenant at the inception of the tenancy which came into existence with effect from 10th December,, 1970 Thus, the landlord relied upon the entries in the Rokar Bahi, extract whereof is Exhibit P-1, besides examining himself and his Munims Sat Parkash P.W 2 and Kuldip P.W 3. Sham Dass P.W.4 photographer also deposed of being present at the time of creation of tenancy in favour of Joginder Lal, Respondent No 1. The landlord also tendered certified copy. Exhibit P. 3 of the relevant entry in the house tax register of Municipal Commitee, Karnal. On the other hand, Joginder Lal appeared as his own witness, besides examining his brother Jagdish Lal, R.W.8 and seven other witnesses.

No doubt, presumption of truth is attached to the entries in the account books regularly maintained, but is a rebuttable presumption and its evidentiary value depends upon the circumstances of each case In the present case apart from the factum that these entries are admissions of a party in its own favour, the perusal of translation Ex. P-1 of the relevant entry in the Rokar Bahi of the landlord made by his Munim Sat Parkash P W 2 reveals that since 9th December, 1970 the day the tenancy was created with effect from 10th December, 1970, the rent of the shop was being received from Joginder Lal S/o Dayal Dass i e. Respondent No. 1. The learned Rent Controller as well as the Appellate Authority had made this documentary evidence as basis of their respective orders in coming to the conclusion that the shop was rented out to Joginder Lal, Respondent No. 1. The perusal of entry dated 9th December, 1970 in Exhibit P-1 shows that rent for one month at the rate of Rs. 150/-was received by the landlord through Prem Chand son of Baru Mal from Joginder Lal son of Dayal Dass. According to the testimony of Ram Sarup Gupta landlord as well as of Sat Parkash P.W.2 Kuldip P.W.3, Joginder Lal tenant had taken the shop on rent while sitting in the office of the nearby Cotton Factory of the landlord. It is also stated by Ram Sarup Gupta landlord that the rent of one month was paid by the tenant there and then. If that has been so, then after the name and parentage of Joginder Lal the word ''tenant'' would have figured but strange enough in none of these entries Joginder Lal has been described as tenant of the shop in dispute but it is simply mentioned that the rent of the shop in dispute has been received from Joginder Lal, mostly through Sham Lal, examined as P.W 4. Moreover, in that case the receipt of rent through Prem Chand would not have figured as on 9th December, 1970, the alleged tenant himself was present and had paid the rent of one month to the landlord. None of the entries were got signed from Joginder Lal, alleged tenant Admittedly, these entries are in the handwriting of Sat Parkash P.W 2 who is working as Munim with the landlord for the last 32 years The landlord happened to be an Advocate. It is not disputed that aforesaid Joginder Lal was employed as Draftsman in the P W.D. Department at Karnal during those days. It appears that the entries were not being reguarly made in the Rokar as according to Sham Dass some time entries were nude by Sat Parkash Munim after one or two days of his collecting the rent. The other documentary evidence like the Cash-Memo of the relevant period could not be produced by Sham Dass P.W 4 even though he had produced the Cash Memos, of the other period. The landlord during his testimony stated that he owns 21 Shops near the shop in dispute near his factory and that he used to issue receipts to his tenants regarding the payment of rent and retain the counterfoils of some of these receipts. He, however, stated that no receipt was issued regarding the payment of rent to Joginder Lal and that aforesaid Prem Chand was the previous tenant of the shop in dispute. It is also alleged that Prem Chand had helped in creating the present tenancy and Prem Chand himself had vacated the shop in dispute. If that is so, then the non-examination of aforesaid Prem Chand would certainly militate and reflect upon the version of the landlord. On the other hand, the factum that Joginder Lal was in Government service during those days, it sounds more probable that he would not take the shop on rent in his own name because he could not run any business as per service rules during his Government service. Under these circumstances, the possibility of the landlord having manipulated these entries regarding the payment of rent by Joginder Lal since the inception of tenancy cannot be ruled out as he intended to use the same for ousting the tenant from the shop in dispute in case he felt like doing so. This conclusion is further fortified from the factum that he has not filed any return u/s 21 of the Act read with Rule 6 (2) of the Rules framed under the Haryana Urban (Control of Rent and Evidence Act, 1973 under the said Act. It is specially provided in Section 21 that every landlord and every tenant of a building or rented land shall be bound to furnish to the Controller, or any person authorised by him in that behalf, such particulars in respect of such building or rented land as may be prescribed. Rule 6(2) farmed under the Act provides the filling of such return within a period of 60 days from the commencement of the Rules in case of existing tenancies and in case of creation of a new tenancy after the commencement of the Rules, the information is required to be furnished within 30 days of the creation of the tenancy. The matter does not rest here as the landlord is admittedly an income tax payee and had allegedly reflected his rental income from the shops in the re-turn, but has not given the name of the tenant therein.

Kuldip (P W.3) a Photographer, examined by the landonerd in order to prove the creation of tenancy was a young boy hardly 18 years of age at that time. Thus, his version that Joginder Lal tenant had approached him to help him in taking the shop in dispute on rent is not acceptable. The landlord tried to prove the positive print of photograph marked ''A'' from him allegedly depicting the presence of Joginder Lal tenant, Ram Sarup Gupta landlord, Sat Parkash Munim and others while the taking of the shop on rent. He further alleged that the negative prints have been misplaced by him somewhere. There was hardly any occasion to take such photographs at the instance of the landlord for creating any documentary evidence because in that case the landlord being an Advocate would have asked the tenant to execute the rent note. Thus, the evidence of this witness is not of much consequence to prove that Joginder Lal, Respondent No. 1 had taken the shop on rent. Similarly, the entries in Ex. P3, i. e., the house-tax register depicting Joginder Lal as tenant of the property are not sufficient to prove Such relationship.

The matter does not rest here as in the notices Exhibits P-4 and P-7 dated 8th August, 1978 addressed to Joginder Lal tenant at the address of the shop in dispute as well as on his official address simply reveal that non-payment of rent at the rate of Rs. 250/- was alleged and not the ground of subletting, even though the landlord frankly admitted during cross-examination that he had learnt about the subletting after four or five months of the inception of the tenancy. The present application was filed on 19th July, 1979, i. e. hardly 11 months after giving of those notices. The Landlord was bound to allege the factum of subletting, especially when this fact was already in his notice. This fact coupled with the conduct of the landlord in not filling any application on the ground of subletting for a period of about 9 years of his knowledge of the same, clearly reveals that this ground of ejectment took the final shape in the mind of the land-lord only at the time of filing the application on 19th July, 1979, as otherwise it could have figured in the above referred notices dated 8th August, 1978, specifically mentioning the rate of rent to be Rs. 250/- per month alleging that the tenant had failed to pay the same since 1st July, 1976. Thus, under these circumstances, it appears that the landlord wanted to enhance the rent from Rs. 150/- to 250/- per month, but when the tenant failed to oblige him in this regard, he had thought of using the already existing entries in the Rokar Bahi and taking steps for ejectment of the tanant on the ground of subletting. The conduct of the landlord in not proving the rate of rent to be Rs 250/- also gives an oblique inkling that he wanted to enhance the rent besides inferring that he can go to the extent of depicting the excessive amount of rent in order to get the tenant ejected from the shop in dispute. It is noteworthy that in the original application for ejectment, the landlord had not alleged the original rent being at Rs. 150/ per month, what to say of giving the date and circumstances under which the tenant had agreed to enhance the rent at the rate of Rs. 250/-per month. Thus, this circumstance of outstanding nature would certainly militate against the testimony of the landlord, having Tented out the shop to Joginder Lal tenant.

According to Harbhagwan R. W 6, a clerk of the Sales Tax Department, Karnal. Sushil Kumar executed surety Ex. R W 6 B on 28th January 19(sic)2 on behalf of M/s Munjal Brothers Respondent No 2, while he was residing jointly with his faather but he moved the application for withdrawing his surety and Sushil Kumar while appearing as R. W. 7 admitted this fact but maintained that he had withdrawn bis surety vide application dated 24th July, 19(sic)8 when he leant about the same having been got executed by Joginder Lal in the name of M/s Munjal Brothers by misrepresentation. This also shows the awareness of the close relation of the landlord that the shop had been rented out to M/s Munjal Brothers and that the withdrawal of the surety was made by the son only a few moths before the giving of the notices. Exhibits P-4 and P-7 by the landlord to the tenant terminating his tenancy on the basis of nonpayment of rent i. e. when the relations of the landlord and the tenant became strained on the ground of enhancement of rent No doubt, it is not an admission on the part of the landlord himself and is a remote circumstance but all the same in view of the above referred circumstances there is no option but to conclude that the shop in dispute was rented out to M/s Munjal Brothers through Dayal Dass father of Joginder Lal R. W 8 one of the partners of the said firm and husband of Lakshmi Bai widow of the other partner.

No doubt, the conduct of the landlord in not asking for the ejectment of the tenant for a number of years on the ground of nonpayment of rent cannot operate as estoppel, as held by this Court in Kasturi Lal v. Chanan Ram and Ors. 1978 (2) R. L. R. 364. as well as in Sarup Krishan and Ors. v. Shri Chhajju Ram and Anr. 1981 (1) R. L. R. 635., but it is a circumstance which can be taken into consideration whether the tenancy was created in favour of Joginder Lal Respondent No. 1. or in favour of M/s Munjal Brothers Respondent No. 2.

It is an almost admitted case of the parties that no receipt of rent was issued by the landlord to the tenant. Thus, the non-production of any receipt by the tenant is also of no consequence.

The learned Appellate Authority had discarded the oral evidence of Bal Kishan R W. 1, Zile Singh R. W. 2. Manohar Lal R. W. 3, Sita Ram R. W. 4, Darshan Singh R. W. 5, and Joginder Lal R W. 8 on the ground that their version regarding the shop having taken on rent by Dayal Dass being beyond the pleadings, cannot be taken into consideration, but the perusal of the evidence of these witnesses clearly shows that Dayal Dass had taken the shop on rent for the above referred firm and before his death he used to run the business of selling oil on this shop. The mere factum that the name of Dayal Dass was not mentioned in the written statement in connection with the taking of the shop on rent by the Petitioner is not of much consequence, especially when aforesaid Dayal Dass was the husband of Lakshmi Bai and father of Joginder Lal. the present two partners of the firm.

The non production of the accunt books mentioned in the list of reliance by the tenant regarding the payment of rent is not of much consequence, especially when the business was being run by Smt Lakshmi Bai through the sons of her sister as her other partners and son Jagdish Lal had started residing at Srinagar, since 1955 and the possibility of not maintaining accounts seems probable.

There is no dispute with the legal proposition that creation of sub tenancy is a secretive act and the onus no prove the same lies on the tenant and the alleged sub-tenant, but in the present case no such controversy arises as the shop was rented out initially by the landlord to M/s Munjal Brothers.

No doubt, ordinarily on the revisional side the concurrent findings of fact of the Rent Controller and the Appellate Authority are not required to be disturbed, but all the same where the wrong appraisal of evidence has resulted in miscarriage of justice, there is no option but to do so

For the foregoing reasons, the impugned orders of the Appellate Authority as well as the Rent Controller being not legally sustainable are hereby set aside by accepting this revision petition. The parties are, however, left to bear their own costs. In view of the peculiar circumstances of the case.