Kedar Nath vs Shri Rattan Chand

R.L. Anand, J.—This revision was filed on behalf of the landlord by Mr. Puran Chand, Advocate, who has since expired and as a result of that vide order dated 6.8.1999 notice was ordered to be issued to petitioner Kedar Nath to appear in person or engage a counsel, failing which the petition shall be disposed of on merits. As per the report of the Registry petitioner Kedar Nath has been served. Today nobody has given the appearance on behalf of the petitioner and in these circumstances I am disposing of this Civil Revision with the assistance rendered by the learned counsel for the respondent.

This Civil Revision has been field by Kedar Nath and has been directed against the judgment dated 23.10.1982 passed by the Appellate Authority u/s 15 of the, East Punjab Urban Rent Restriction Act, vide which the learned Appellate Authority confirmed the order of the Rent Controller dated 25.1.1980, who dismissed the application of the landlord u/s 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as ''the Act'').

The brief facts of the case are that an ejectment petition u/s 13 of the Act was filed by Kedar Nath against Rattan Chand tenant seeking his eviction from the demised premises i.e. shop on the grounds that he had given the shop on a monthly rent of Rs. 7/- w.e.f. 4.11.1970 and that the tenant has failed to pay the rent since 4.11.1973 along with house-tax and that the tenant has ceased to occupy the premises for more than one year before the filing of the ejectment petition without any sufficient cause and, therefore, the tenant is liable to be evicted.

Notice of the petition was given to the tenant, who filed the reply and denied the allegations levelled by the landlord. According to the tenant-respondent, the ejectment petition has been filed on the mala fide grounds. The tender was made on the very first date of hearing and on the small pleadings of the parties, the Rent Controller framed the following issues:-

Whether the present petition has been filed with mala fide intention as alleged? OPR

Whether the tenancy of the respondent has been terminated by a valid notice? OPA

Whether the tender made on 8.6.1979 is a valid tender? OPR.

Whether the shop in dispute has remained closed for more than 4 months which is one of sufficient cause as alleged? OPA

Relief.

The parties led oral and documentary evidence in support of their respective cases and for the reasons given in paras Nos. 7. to 10 of the order, the Rent Controller dismissed the petition vide order dated 25.1.1980.

Aggrieved by the order of the learned Rent Controller, the landlord filed the appeal u/s 15 of the Act which met with the same fate for the reasons given in para No. 7 of the judgment of the appellate authority, which read as under:-

"7. Mr. M.L. Jhanji, learned counsel for the appellant, was unable to find any fault with the correctness of the finding recorded by the learned Rent Controller, on issue No. 3 where under it was held that the tender made by the tenant-respondent in the ejectment proceedings was valid. This Court unreservedly endorses this finding recorded by the learned Rent Controller. Mr. M.L. Jhanji, espousing the cause of his client-landlord-appellant brought to the light the sworn statements made by Kidar Nath appellant A.W.1, Pargat Singh A.W.2 and Kukam Chand A.W.3 and Mani Singh A.W.5 who deposed that the tenanted shop was all along seen lying closed for the last 5-6 years and according to him the case put forth by the landlord-appellant is covered under the provisions of Section 13(2)(v) of the Act and the tenant-respondent was thus contended to have incurred the liability of being ejected from the demised shop. Mr. S.R. Wadhera, learned counsel for the tenant-respondent, not only successfully met this argument pressed in service by his legal rival, Mr. M.L. Jhanji but also completely exposed the hollowness of the case set up by the landlord-appellant by bringing into sharp focus the circumstances of no plea having been taken up by the landlord-appellant of the respondent having ceased to occupy the tenanted shop for the continuous period of four months or more without any reasonable cause. The landlord-appellant having later become conscious of his fatal infirmity in his application u/s 13 of the Act, brought forth an application under Order 6 Rule 17 C.P.C. before the Appellate Authority with a prayer of he being allowed to add that "the respondent has ceased to occupy the premises in dispute without any sufficient cause for the last 5 years". This application was disallowed by Mr. O.P. Saini, learned Appellate Authority, Ludhiana vide his order dated 9.10.1980. Mr. Wadhera very legitimately submitted that there is thus no allegation against the respondent of he having ceased to occupy the shop in question. He highlighted the sworn statement made by Rattan Chand, tenant-respondent R.W.1 who very positively and categorically stated that the demised shop is used by him for preparing sweets which he sells at other shop on Samrala-Chandigarh Road. He further deposed that the shop in question has all along been used by him and his brother lives and sleeps there. Both of them are stated to be joint in their business in the shop. He very legitimately and stoutly denied the suggestion put to him that the tenanted shop has been lying closed for the last about 4-5 years. Pargat Singh A.W.2, Clerk in the Municipal Committee, Samrala, admitted the factum of Rattan Chand, tenant respondent R.W.1 having got a licence for running his another tenanted shop situated at Samrala-Chandigarh road. Mr. Wadhera by correctly relying upon this part of the sworn statement made by Rattan Chand, R.W.1, tenant-respondent, submitted that the shop in question has all along been used by his client whose brother, Nand Lal, lives and sleeps in it and the sweets are also prepared at this very shop for the reason of another tenanted shop at Samrala-Chandigarh road being small in size. Even if Rattan Chand R.W.1, tenant-respondent, be deemed to have remained absent from the tenanted shop for some time, his mere absence would not attract the provisions of Section 13(2)(v) of the Act. This contention correctly supported by Rattan Chand W.R.1 that the shop in question is being used by his brother, Nand Lal, who sleeps there would be found to have not been controverted and falsified by Kidar Nath, landlord-appellant, A.W.1 Kuldip Kumar A.W.6 would be found to have admitted the hard and harsh fact of some articles valued at Rs. 200/- to Rs. 300/- having been found lying in the tenanted shop. Mr. Wadhera also correctly brought to light the discrepant statements made by the AWs. with regard to the period for which the demised shop was alleged to have remained lying closed. Learned Rent Controller in such state of evidence on the record would be found to have correctly decided issue No. 4 repugnant to the landlord-appellant and this Court upholds this finding."

Still not satisfied with the judgment of the Appellate authority, the present revision by the landlord.

I have heard Mr. S.K. Pipat, Advocate, on behalf of the respondent and with his assistance I have gone through the records of this case.

The ejectment petition was filed on 8.5.1979 and in para No. 4 (iii) the landlord made the following allegation:-

"That the shop mentioned above is closed for more than one year."

It is not mentioned even by the landlord in the ejectment petition that tenant has ceased to occupy the demised premises without any sufficient cause.

The very petition itself was defective. As per Section 13(2)(v) of the Act the landlord can seek the ejectment of a tenant from a building on the plea that the tenant has ceased to occupy the building for a continuous period of four months without sufficient cause.

Faced with this difficulty the landlord submitted an application before the Appellate Authority and tried to seek an amendment by stating that the tenant has ceased to occupy the premises in dispute without any sufficient cause for the last more than five years. This application was dismissed by the Appellate Authority vide order dated 9.10.1980. This order has further not been challenged by the landlord in revision. Thus the admission made by the landlord in the application under Order 6 Rule 17 C.P.C. would show that his case is contradictory. In the main petition he alleged that the tenant has ceased to occupy the shop in question for the last one year but at the appeal stage the landlord wants to make the allegation that the respondent has ceased to occupy the premises in dispute without any sufficient cause for the last 5 years. Be that as it may, we have to see what was the stand of the tenant in this regard. In the written statement the tenant averred that the disputed shop was never closed by him and the allegations of the landlord are wrong, vague, baseless and without an iota of truth. As a matter of fact the shop is used by the respondent for his business as a Halwai (confectioner). As I have stated above that this petition was filed on 8.5.1979. We have to examine whether the tenant has ceased to occupy the shop in dispute for a continuous period of four months without any sufficient cause prior to the date of the institution of the petition. I have also stated above that it is not the case of the landlord itself that the tenant has ceased to occupy the shop in question without any sufficient cause. On this ground alone the petition is liable to be dismissed. The landlord has not even pleased the essential ingredients of the ground of ejectment. Both the courts have rightly come to the conclusion that the tenant has not ceased to occupy the premises. In order to succeed on this ground, it is obligatory on the part of the landlord not only to establish the closure of the tenanted premises by the tenant but also it has to be established that this closure of the premises was without any sufficient cause. What is a sufficient cause, it will be a question of fact. It is obligatory on the part of the landlord to establish that the tenant at all material times had conceived an intention to abandon his lessee rights and for that reason he was not interested to occupy the property. A temporary closure of the shop in question by the tenant will not make a ground for ejectment. It has come on record that respondent-tenant was carrying on the work of Halwai and he had the joint business with his brother. Further, it has come from the statement of Jagdish Lai RW5 that sweets are being prepared in the shop in dispute by the tenant along with his brother. There is no cogent or reliable evidence led by the landlord to show that the tenant had ceased to occupy the shop in question without any sufficient cause. The concurrent finding of fact has been given by the learned Rent Controller as well as by the learned Appellate Authority and hardly any interference is required for in the present revision. No merit. Dismissed.