Mangat Rai Gupta vs Basheshar Nath and Others

R.L. Anand, J.—This is a landlord''s rent revision and has been directed against the order dated 19.1.1983 passed by the Appellate Authority Rupnagar (Ropar) under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act) vide which learned Appellate Authority set aside the order dated 28.5.1982 passed by the Rent Controller under the said Act vide which the petition u/s 13 of the said Act of the landlord was allowed and the tenant and his sub tenants were directed to vacate the demised premises.

The brief facts of the case can be taken in the following manner:

Shri Mohan Lal filed an ejectment petition seeking eviction of Basheshar Nath and his sons Naresh Kumar and Thakur Dass with respect to the vacant plot measuring 41-1/2ft x 36-1/2 ft situated in Kurali fully described in the heading of the application by making allegations that he rented out the same to Basheshar Nath on rent of Rs. 400/- per year in the year 1969. Respondent No. 1 Shri Basheshar Nath has neither paid nor tendered arrears of rent since 1974 and in addition to that he is liable to house tax. It is further alleged that respondent No. 1 has sublet the demised premises to respondents No. 2 and 3 without his oral or written consent. The petitioner now requires the said plot for his personal use and occupation as he himself does not own any residential house at Kurali and he wanted to construct a house for his residence as he is not having any business places in the urban area.

Notice of the rent petition was given to the tenant and the alleged subtenants who filed reply. So far as ownership is concerned, it was admitted. Rest of the allegations were denied. According to the respondent, the rate of rent in the beginning was Rs. 200/- per year. It was increased to Rs. 300/- per year and later on Rs. 360/- per year. According to respondent No. 1, he took this property and started his business under the name and style M/s Naresh Kumar and Brothers. Respondents No. 2 and 3 are his sons and they constitute Joint Hindu Family. Asserting his rights, the respondent stated that rate of. rent is Rs. 360/-per year. They had already paid rent upto June, 1979 and the arrears which was due to the landlord are from 1.7.1979. However, in order to avid ejectment, the respondent tendered rent as claimed by the landlord alongwith interest and costs. Respondent No. 1 did not sub-let the demised plot but respondents No. 2 and 3 are carrying on the business of coal alongwith respondent No. 1 since 1969. Respondents No. 2 and 3 are working with him since then. They sit on the business premises which is in the knowledge of the landlord who never objected to it and as such landlord is estopped by his act and conduct to raise objection. The plot in question was let out for commercial purpose and as such it could not be got vacated for residential purpose.

Landlord filed rejoinder to the written statement filed by the respondents in which he denied factum of Joint Hindu Family as pleaded by the respondents.

On the pleadings of the parties, learned Rent Controller framed the following issues:-

Whether the tender made is valid? OPR.

Whether there is a subletting by respondent No. 1 to the other respondents? OPA.

Whether the applicant requires the demised plot for his personal use and occupation? OPA.

3-A. Whether the demised premises were it out for commercial purposes and cannot be vacated for residential purposes as alleged in para 2(iii) of the reply? OPR.

Whether the respondents are running a joint Hindu Family business in the demised premises? if so, its effect? OPR.

4-A. Whether the petitioner is estopped by his act and conduct to take the plea of sub-letting the demised premises as alleged in para 2(ii) of the reply? OPR.

Whether the respondents are liable to be ejected? OPA.

Relief.

The parties led oral and documentary evidence in support of their case and the learned Rent Controller on the conclusion of the proceedings decided issue No. 1 in favour of the landlord by stating that the tender made by the tenant was illegal. Rent Controller also held that respondent No. 1 Basheshar Nath had sublet the premises to his sons Naresh Kumar and Thakur Dass. The Rent Controller further held on issue No. 3 that the landlord requires the demised plot for his personal use and occupation. Issue No. 3-A was also decided in favour of the landlord and issue No. 4 was decided against the tenant. Issue No. 4-A was decided against the respondent-tenants. Issue No. 5 and 6 were decided in favour of the landlord and ejectment order was passed. The reasons given by the Rent Controller under the various issues are given in paras No. 2, 3, 4, 5, 6, 7, 8 and 9 of the order dated 28.5.1982. Since the judgment of the Appellate Authority was a judgment of reversal, therefore, it has become necessary for me to reproduce the reasons it has become necessary for me to reproduce the reasons which were given by the Rent Controller as contained in paras Nos.2 to 9 as under:-

The present application was submitted in the Court on 13.9.1980. A perusal of the file reveals that after the registration of the application on 13.9.1980, the presence of the counsel for the parties has been marked. It is mentioned therein that copy of the application was given to the counsel for the respondent on that'' day and the case was fixed for tendering of rent and filing of the reply for 4.11.1980. Again the counsel for the parties were present and that a sum of Rs. 2,400/- as arrears of rent alongwith interest and costs were tendered which were accepted under protest. Section 13 of the East Punjab Urban Rent Restriction Act (Act No. 13 of 1949) lays down that a tenant in possession of a building or rented land shall not evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy except in accordance with the provisions of this section. Sub-section 2 of Section 13 of (Act No. 3 of 1949) reads as under:-

"A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf, if the Controller, after giving the tenant reasonable opportunity of showing cause against the application, is satisfied."

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last date of the month following that for which the rent is payable;

Provided that if the tenant on the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest at six per cent per annum, on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have dully paid or tendered the rent within the time aforesaid."

Thus in the instant case there is no escape but to hold that the respondents who appeared on 14.10.1980 but tendered rent on 4.11.1980 are guilty of non payment of rent and even the present tender of rent is not valid under the proviso of Section 13(2) of Act No. 3 of 1949. Thus the tender was not made on the first hearing of the application i.e. 14.10.1980. This issue is thus decided against the respondent and in favour of the applicant.

ISSUE No. 2.

There is no doubt that the respondent Nos. 2 and 3 are the sons of respondent No. 1. So much so Basheshar Nath (RW1) submitted that it was taken by him on rent for his sons. However, no rent note or receipt was prepared. He obtained a license to deal in the coal business from the Food and Supply department in the name of Naresh Kumar Thakur Dass in the year 1969, there was no control over the sale of coal. However, with the issue of Coal Control Order in 1973 it was got registered in the name of Naresh Kumar and Brothers which consisted of Naresh Kumar and Thakur Dass partners. A Sales Tax return used to be submitted in their name. Roop Chand (RW2) also stated that the sons of Bisheshar Nath used to work at the shop. He is a neighbour and has been seeing the working of the Coal Depot where Thakur Dass and Naresh Kumar used to work. No doubt Bisheshar Nath also owns a shop of general merchant nearby. Yog Raj (RW4) also stated that Bisheshar Nath is engaged in the business of coal for the last 10/12 years. Jagdish Chander tax clerk (RW5) brought the record relating to the payment of tax for the year 1973-74 to 1978-79. According to him the firm is run by Surinder Kumar who sells coal and the license is in the name of Naresh Kumar and brothers. The first assessment relates to the year 1973-74. Later on the same assessment has been adopted. Ramesheshar Nath while appearing as his own witness deposed that his sons are working at the coal depot since 1968. In the first instance, he stated that he himself is not a partner but later on he stated that he is partner and the proprietor of the firm Naresh Kumar Thakur Dass. According to him it might be possible that before the sales tax authorities he has not been shown as a partner. Suraj Parkash (AW5) a clerk of Excise and Taxation Office, Rupnagar brought the record. According to him Central Sales Tax number in the business of coal was issued on 11.6.1973 and the licence under the Punjab General Sales Tax was issued to the firm M/s Naresh Kumar and brothers, Kurali on 15.1.1970 in which Naresh Kumar and Thakur Dass have been shown to be the partners of the firm M/s Naresh Kumar and Brothers. So much so Ish Kumar (AW2) admitted in cross-examination that for the last 7/8 years he sits at the shop and denied the allegations that his sons run his depot. Mohan Lal (AW.8) stated that for the last 5/6 years the sons of Basheshar Nath are working on the coal depot, that is the demised premises. He denied the suggestion that sons of Basheshar Nath also reside with him. From these facts it is clear that sales tax number under the Punjab General Sales Tax Act was issued as early as in 1970 and according to the allegation, the premises were let out in 1969. The exact date of letting out the premises has not been given and as such it can safely be presumed that the premises were let out either to respondent No. 1 as a head of the family or to the firm as a whole, of which respondent No. 1 was the head. Thus in such circumstances it is held that the demised premises have not been sub-let by respondent No. 1 to other respondents. This issue is thus decided against the applicant and in favour of the respondents.

ISSUE NO.3

Section 13(3) of (Act No. 3 of 1949) lays down that a landlord may apply to the controller- for an order directing the tenant to put the landlord in possession in the case of rented land if he requires it for his own use and he is not keeping in the urban area concerned for the purpose of his business and other such rented land and he has not vacated such rented land without sufficient cause after the commencement of this Act in the urban area concerned. In the instant case Mohan Lal (AW3) has stated that he does not possess any other piece of land in Kurali other than then demised premises. Moreover, he has also not got any other land vacant in that urban area, the house in Ward No. 9 in which he resides belongs to Madan Gopal who has asked him to vacate the same several times. He needs the demised premises for his own use. In cross-examination the credit of Mohan Lal (AW3) could not impeached. He stated that he has only one son but no other place which might be in possession of the applicant has been suggested to him. He has stated that Madan Gopal wants to get the premises vacated from him. This deposition remains un-rebutted. Basheshar Nath (RW3) did not state any thing in his examination in chief to indicate if the premises are not required for these and occupation of the applicant. On the other hand Ish Kumar (AW2) also stated that he requires the premises for his self occupation. No question was even put to this witness in cross-examination. Thus evidence led by him also remains unrebutted. He has specifically stated that Madan Gopal asked Mohan Lal to vacate the premises. Neeti Chand (AW1) a clerk of the Municipal Committee, Kurali who brought the record, stated that Mohan Lal does not possess any property other than the demised premises in Kurali. From the evidence led by the applicant it is clear that he has no other property in Kurali other than the demised premises. It was held in Kedar Nath v. Dharam Paul 1978(1) R.C.R. 49 that a landlord is the final judge to decide as to what accommodation he needs for his family. So much so Bisheshar Nath (RW1) did not state anything to prove that Mohan Lal does not require it for personal use. Statement of Madan Gopal (RW3) that his house was mortgaged with Belo Devi, sister of Mohan Lal in which the applicant resides is of no help to Bisheshar Nath. In this view of the matter it is held that the demised premises are required by the applicant for personal use. This issue is thus decided in favour of the applicant and against the respondent.

ISSUE NO. 3-A.

The respondent have taken a plea that the plot has been let out for commercial purposes, it cannot be vacated for residential purpose. No rent note was prepared at the time of taking plot on rent. However, from the oral evidence it is clear that the coal business was started by Bisheshar Nath and his sons are engaged in the sale of coal on the demised premises. However, they have a different residential house besides another shop. Otherwise, too the evidence led by Bisheshar Nath (RW1) that he sells coal since 1979-80 and got a licence in 1973 remains un-rebutted. In this behalf he has been corroborated by documentary evidence produced by Jagdish Grander (RW5) who has brought the record relating to the assessment of these premises. So much so Basheshar Nath when re-appeared as his own witness on 4.5.1982 stated that Mohan Lal has been seeing his sons sitting on the shop doing the business. Thus it is proved that the premises were let out for commercial purposes.

Mohan Lal (AW3) has stated he is now residing in a rented house and he wants the premises for his own use. Learned counsel for the applicant has placed reliance on Kedar Nath v. Dharam Pal 1979(1) R.C.R. 49 wherein para 4 it was held as under: -

"It is now well settled that so far as the requirement and need of the landlord is concerned, the latter is the final judge. If he considers the existing accommodation in-sufficient and he is in need of better and more accommodation premises the Court cannot go into the same and arrive at the conclusion that alleged need is in fact for extraneous consideration."

Learned counsel for the respondents has not cited any authority that a premises let out for commercial purpose cannot be vacated for residential purposes.

A non-residential building has been defined in Section 2(d) of Act No. 3 of 1949 as a building being used solely for the purpose of business or trade. A rented land has been defined in Section 2(f) as any land let separately for the purposes of being used principally for business or trade. Section 13(3)(ii) of Act No. 3 of 1949 lays down that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession if he requires it for his own use. Thus there is no bar for a landlord to get the premises already let out for commercial purposes vacated for residential purpose. In this view of the matter, it is held that the premises can be vacated even for residential purpose. A person may choose to construct a house on a vacant piece of land in an urban area. There is no bar to convert an open plot used for commercial purpose as a residential one. This issue is thus decided in favour of the applicant and against the respondents.

ISSUE NO. 4.

A rent note has not been produced in the instant case. The whole case hinges on the circumstantial evidence. Bisheshar Nath (RW1) stated that Naresh Kumar and Thakur Dass worked with him and the business is carried on in the name of Naresh Kumar and brothers. Moreover, licence has been obtained in the name of Naresh Kumar and Brothers. Section 106 th of the Evidence Act lays down that when any fact is especially within the knowledge of any person, the burden of proving that is upon him. Thus Basheshar Nath (RW1) has made it clear that he started in the coal business in 1969 but at that time there was no control on the sale of coal. As such licence was obtained for the first time from the Food and Supply Deptt. in 1973. No doubt, Bisheshar Nath also owns another shop of general merchant. Roop Chand (RW2) made it clear that some time Bisheshar Nath sits on the shop of general merchant and sometimes his sons sit there. It has also come in evidence that the coal is not a regularly supplied and sometimes coal remains out of stock. Thus, Naresh Kumar and Thakur Dass are members of the Joint Hindu Family. The statement of the Ish Kumar (AW2) that Basheshar Nath simply sits at the shop on Morinda road is not sufficient to take a different view. He has been seeing Basheshar Nath sitting on the demised premises for the last 7/8 years. So much so Mohan Lal (AW3) has admitted in cross-examination that Basheshar Nath resides alongwith his sons in the same house but he added that they reside separately in the same house and so much so Naresh Kumar has not been seen for the last two years and Thakur Dass is joint in mess with his father Basheshar Nath. From these facts the only irresistible conclusion would be that the respondents were running a joint Hindu Family business in the demise premises. Thus, its effect would be that it cannot be taken as a cause of sub-letting. The ratio of the decision in "Charan Dass v. Mohinder Nath and Ors.," 1978(1) R.C.R. 69, "Kartar Sigh v. Vijay Kumar" 1978(1) R.C.R. 283, "Gurcharan Singh v. V.K. Kaushal," 1978(1) R.C.R. 324 and "Banarsi Dass v. Surinder Kumar," 1975 R.C.R. 567 are not applicable to the case in hand and as such I need not discuss. Respondents 2 and 3 are not outsiders. This type of tenant thus need not prove that there was no sub-letting. Every father starts looking for the business for his sons right from their childhood and it is not something new that Basheshar Nath in addition to the shop being run by him also started the coal business in the name of his sons. Even if it is registered in the name of respondents No. 2 and 3, in my view, that is immaterial. They are not separate entity. He also himself occasionally sits on the premises. Similarly the ratio of the decision in "Parkash Chand v. Muni Lal and Ors.," 1979(1) R.C.R. 90 is not applicable to the case in hand. This issue is thus, decided in favour of the respondents and against the applicant.

ISSUE NO. 4-A.

In para 2(ii) of the reply filed by the respondents it is alleged that respondents No. 2 and 3 have been carrying on the business of a coal depot alongwith respondent No. 1 where respondents No. 2 and 3 have been working. Applicant never objected. As such he is estopped by his act and conduct to raise this objection. No doubt, Mohan Lal (AW3) has denied to grant of permission to respondent Nos. 2 and 3 to work with respondent No. 1 yet he admitted that for the last 5-6 years Bisheshar Nath does not work but his sons worked on the shop. Ish Kumar (AW2) also stated that for the last 6/7 years respondents No. 2 and 3 worked at the premises. So much so Need Chand (AW1) stated that Surinder Kumar has been shown as occupier in the municipal record and according to him Surinder Kumar is the brother of Bisheshar Nath. Suraj Parkash (AW5), however, proved from the record maintained by the Excise and Taxation Office that licence under the Punjab General Sales Tax was issued to this firm M/s Naresh Kumar and Brothers on 15.1.1970. It is a matter of common experience that such like premises which are controlled by Government in the matter of carrying on their business also placed a sign board which indicate the name of the first in the name of which the business is being carried out for such a long time in the name of Naresh Kumar and Brothers that indicates that either the applicant did not care to enquire about the person in whose name the business after the premises were let out was carried on or if he was having the knowledge of it he acquainceased it. A person is supposed to be in touch with such like matters. So much so, the licence issued by Municipal Committee, Kharar, for 1974 Ex.R.7, 1975 Ex.R.6, 1976 Ex.R.5, 1977 Ex.R.4, 1978-79 Ex.R.3, 1979-80 Ex.R.2 and 1980-81 Ex.R.l indicates that M/s Naresh Kumar and Brothers New Mandi, Kharar, has been carrying on the business. Section 115 of the Evidence Act lays down that when any person has, by his act, or commission, intentionally caused or permitted another person to believe a thing to be true and to act upon the belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and such person or his representative, to deny the truth of that thing. Mohan Lal (AW3) has admitted the receipt of rent upto 31.12.1974. That would mean that atleast in 1973-74 when the respondents got a licence from Municipal Committee, Kharar, in the name of M/s Naresh Kumar and Brothers, Ex.R.7 he had the knowledge that the business is being carried out in the name of M/s Naresh Kumar and Brothers. So much so the assessment order Ex.R.8 for 1969-70 indicates that M/s Naresh Kumar and Brothers was represented by Surinder Kumar brothers of Basheshar Nath and the firm was carrying on business in coal and firewood fuel etc. Assessment order of 1971-72, Ex.R.9 shows that Bisheshar Nath appeared before the assessing authority. It also relates to the business of coal depot of M/s Naresh Kumar and Brothers. Again in 1972-73 Surinder Kumar, uncle of the proprietor was present before the assessing authority copy Ex.R.10. However, from 1973-74 Naresh Kumar himself appeared before the assessing authority and in 1975 cE.R.11 Bisheshar Nath appeared. All these facts indicate that the business is being carried out not by Bisheshar Nath alone and it was in the knowledge of Mohan Lal. That his sons also work with him. He is now estopped by the act and conduct, to take the plea of sub-letting of the demised premises. This issue is decided in favour of the respondents and against the applicant.

ISSUE NO. 5.

As discussed above, against issue No. 1, the respondents appeared in the Court through counsel on 14.10.1980 whereas rent has been tendered on 4.11.1980. The respondents are liable to be ejected on account of non-payment of rent. Similarly, as discussed against issue No. 3 the landlord is the best judge of his personal necessity and does not possess a house of his own at Kurali for his residential purposes. He wants to construct a house on the premises. Thus, the applicant has proved the case in his favour. This issue is, thus, decided in favour of the applicant and against the respondents."

Basheshar Nath and his sons filed statutory appeal u/s 15 of the Act and the Appellate Authority for the various reasons given in paras No. 6, 7, 8, 9 and 10 differed with the reasons given by the learned Rent Controller and came to the conclusion that there was no invalid tender on the part of the tenant; that Basheshar Nath had not sublet the premises because he constituted Joint Hindu Family with his sons and that the ground of personal necessity with respect to the rented land is not available to the landlord and in these circumstances the petition of the landlord was dismissed. Aggrieved by the order of the Appellate Authority, Rupnagar dated 19.1.1983, the present revision by the landlord. The reasons recorded by the Appellate Authority in paras No. 7 to 10 are as under:-

"7. As regards the finding of Rent Controller on issue No. 1 and 3 and 3-A, Shri Tara Chand Gupta the learned counsel for the landlord respondent was very fair in conceding that he was unable to support the same in view of the well settled principles on the question relating to the said issues. It may be noticed in passing that the Rent Controller on issue No. 1 held that 14.10.1980 was the first date of hearing even though the opposite party i.e. the appellants had not been though the opposite party i.e. the appellants had not been served with copy of ejectment application for appearance for the said date and it was supplied to them for the first time on the said date in the Court itself and the case was adjourned to 4.11.1980 on which date, arrears were tendered along with costs assessed and interest. The appellants, therefore, could not be taken to have been duly served for 14.10.1980 and that date could not, therefore, be taken by the Rent Controller to be the first hearing after due service. Reference in this connection may be made to Bench decision of our High Court in Jagat Ram v. Shanti Sarup 1965 Cri.L.J. 46. As regards finding of the trial Court in issues No. 3 and 3-A, it is to be noticed that the demised premises admittedly fall under the description of ''rented land'' and are being used for business since the commencement of tenancy. Consequently the landlord in order to be successful had to allege and prove the requirement of Sub-clause (ii) of Clause (a) of Sub-section (3) of Section 13 of the Act. In view of Clauses ''a'' to ''c'' of the said Sub-clause (ii) the landlord can have the rented land vacated for his own use only for the purposes of business and if he is not occupying in the urban area concerned any other such rented land for that purpose and did not vacate any without sufficient cause after the commencement of Act. This interpretation of the said provisions were settled long back by their Lordships of the Supreme court ion Attar Singh v. Inder Kumar (1967)69 P.L.R. 83. It was clearly ruled therein that the landlord cannot get the rented land vacated for constructing residential house. In this case the landlord in the petition and in evidence led in support of the same, claimed ejectment on the ground that he wanted to construct residential house on the rented land. The Rent Controller was in error in accepting the said plea of the landlord. There is, therefore, no alternative but to reverse his finding on the said issues and to hold that the landlord cannot get the rented land in question vacated for his own use to construct a residential house thereon.

Since the finding of the Rent Controller on issues No. 1, 3 and 3-A has been reversed and indeed learned counsel for the respondent had conceded about the finding of the said issues being wrong, the ejectment petition of the respondent is liable to be dismissed, the finding on the other issues being in favour of the appellants. However, the learned counsel for the respondent urged strongly that ultimate order of ejectment under appeal could be sustained because of there being sufficient evidence on record to show that the finding of the Rent Controller on the issue of sub-letting is wrong and that it was competent for the landlord to question the correctness of that finding without filing any cross objections. I am however, unable to agree with the said contention of the learned counsel for the respondent. There is no doubt that the finding of the Rent Controller on issue No. 4-A about estoppel is not correct and the learned counsel for the appellant did not seriously dispute its decision because subletting if otherwise proved cannot save the tenant from ejectment unless there is written consent of the landlord or the landlord is shown to have accepted the alleged sub-tenant as his tenants. But I find no infirmity in finding of the Rent Controller on issues No. 2 and 4.

The learned Rent Controller held that sons of tenant Basheshar Nath had been carrying on business as partners in the demised premises but they formed a joint Hindu family along with their father and are joint in mess and residence and the business was infact of the joint family and there was, therefore, no subletting.

The learned counsel for the respondent however, challenged the said reasoning of the Rent Controller and its conclusion mainly on the ground that in this case, there is sufficient evidence to show that though appellants No. 2 and 3 are the sons of appellant No. 1 to whom the premises were rented out, still the subletting can be inferred from the fact that the sons were running the business in partnership in which their father had no interest. This contention is manifestly misconceived and is not warranted by the evidence on record. Apart from the initial presumption about the family of father and sons being joint, appellant No. 1 himself came into the witness box as RW-1 to depose that he and his sons constituted Joint Hindu Family. There is no evidence in rebuttal and rather the admission made by the landlord-respondent, corroborate the said claim of the tenant. In cross-examination, the landlord- respondent Mohan Lal as AW-3 admitted that sons of Basheshar Nath were living in the same house in which their father lived, though separately but he was forced to admit in his next breath that Naresh Kumar son of Basheshar Nath has gone out for the last about two years whereas the other son is now joint in mess and residence with his father. In this situation, if Basheshar Nath permitted his son to do business in the rented land who are otherwise joint with him that would justify an inference of licence and not lease."

I have heard Shri Brij Mohal Lal and Shri Rajinder Goel, Advocate on behalf of the petitioner and Shri M.L. Sarin, Senior Advocate assisted by Ms. Sweena Pannu, Advocate on behalf of the respondents and with their assistance have gone through the record of the case.

Landlord has sought the ejectment of the tenant on three scores. The first ground was that the tenant has not paid or tendered arrears of rent for a period of six years at the rate of Rs. 400/- per annum alongwith interest and costs and therefore, the tenant alongwith the alleged sub-tenants are liable to be evicted. Second ground of ejectment was that the landlord requires the rented land for his personal necessity and the third ground was that respondent No. 1 had sublet the demised premises to respondents No. 2 and 3 who were none else but his sons.

Let me examine the records of this case in the light of the averments made by the parties and in the light of the evidence which has been adduced by the parties on the record.

Section 13(1) of the Act lays down that a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.

As per Sub-clause(2) of Section 13, a landlord who seeks to evict his tenant shall apply to the Controller for a direction In that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied:-

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the, application for ejectment after due service pays or tenders the arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.

For our purposes we have to see how the things happened before the Trial Court. The ejectment petition was filed by the landlord on 10.9.1980. On 4.11.1980 a tender of Rs. 2,400/- as rent, Rs. 440/- as interest and Rs. 30/- as costs assessed by the Rent Controller were tendered. This amount was accepted by the landlord under protest. On the same day written statement was filed. Copy of the written statement was given to the landlord who was directed to file rejoinder. On filing of the ejectment petition, notice was given to the respondents for 14.10.1980. On that day the copy of the petition u/s 13 of the Act was given to the tenant for the first time. Order V of the CPC deals with issue and service of summons. Order V Rule 2 C.P.C. lays down that every summons shall be accompanied by a copy of the plaint, or if so permitted, by a concise statement. So in these circumstances, before it can be held that there was due service, it has to be shown on the record that the tenant got copy of the petition u/s 13 of the Act alongwith the summons. The object of Order V Rule 2 C.P.C. is very clear. The defendant is called upon to answer the claim of the plaintiff. How he can answer the claim of the plaintiff if he is not informed about the allegations levelled against him. In this view of the matter, the first date of hearing would be the next date after 14.10.1980 because for the first time the tenant and the alleged sub-tenants were informed about the claim of the landlord on 14,10.1980. Prior to that there was no due service. On 14.10.1980 the case was adjourned to 4.11.1980 on which date the tender of Rs. 2,400/- as rent, Rs. 440/- as interest and costs Rs. 30/- were tendered. It is not disputed by the learned counsel appearing on behalf of the landlord that if High Court takes the date as date of first hearing on 4.10.1980 then the tender which was made by the tenant was a valid one. Even otherwise, I feel that on the date of filing of the ejectment petition rent for one year at the rate of Rs. 400/- per year was not due as the tenancy was from year to year. The rental for the year 1980 became due to the landlord on the expiry of 31.12.1980 but the present petition has been filed on 13.9.1980 itself. Thus the learned Rent Controller was totally in wrong and the Appellate Authority was right when it held that the first date of hearing was 4.11.1980 because that was the date next to the date when due service of the tenant can be held.

The second point which survives for determination is as whether landlord can seek ejectment of rented land for residential purposes. In this regard also the Rent Controller fell in error as a result of which the Appellate Authority had to interfere. Section 13[3(a)(1-a)(2-(ii)] lays down that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession..........

(ii) in the case of rented land he requires it for his own use.

b) he is not occupying in the urban area concerned for the purposes of his business any other such rented land.

c) he has not vacated such rented land without sufficient cause after the commencement of this Act, in the urban area concerned. Thus a combined reading of the above provisions would show that rented land can be got vacated by the landlord for the purpose other then residential one. The rented land has been defined in Section 2(f) which means any land let separately for the purpose of being used principally for business or trade. In these circumstances, learned Rent Controller fell in error when he ordered eviction of the tenant on the ground of personal necessity. Rather the case of the landlord throughout was that he requires the rented premises for the construction of residential house.

Now we are left with third and most contentious ground of ejectment i.e. ground of subletting. The case set up by the landlord is that respondent No. 1 Shri Basheshar Nath had sublet the premises to Naresh Kumar and Thakur Dass who admittedly are his sons without oral or written consent of the petitioner. As against this, the stand of the respondent is that respondent No. 1 took this property and started his business under the name Naresh Kumar and Brothers. Respondents No. 2 and 3 are sons of respondent No. 1. Respondent No. 1 constitute Joint Hindu Family and they were carrying on business as members of the Hindu Joint Family. More precisely, the defence of the respondent can be described as follows:-

"The respondent No. 2 and 3 are carrying the business of a coal depot alongwith the respondent No. 1 since 1969 when it was taken on rent. The respondent No. 2 and 3 have been working and are working with respondent No. 1 since 1969. The respondent No. 2 and 3 have been sitting in the property in dispute to carry out their business alongwith the respondent No. 1 and some times in the absence of respondent No. 1. The applicant never objected and the applicant has been seeing the respondent No. 2 and 3 working with him as well as sitting with the respondent No. 1, so is estopped by his act and conduct to raise this objection at this stage."

Mr. Rajinder Goel, submitted that the plea of the respondent of Joint Hindu Family is not acceptable. The counsel submitted that when there was no control over the coal Shri Basheshar Nath respondent No. 1 was getting licence in his own name but later on partnership was constituted under the name and style of Naresh Kumar and Brothers to which Naresh Kumar and Thakur Dass sons of Basheshar Nath were the only partners. Learned counsel submitted that Basheshar Nath was not partner of M/s Naresh Kumar and Brother clearly indicates that Basheshar Nath had shattered his hands from the rented land. So much so, he has started a Karyana Shop in the same vicinity and he had parted with the possession of the demised premises to the exclusive control of his sons Naresh Kumar and Thakur Dass who started doing business in the name and style of Naresh Kumar and Brothers, therefore, it can be safely inferred a case of subletting or parting of the possession on the part of Basheshar Nath. On the contrary, learned counsel for the respondent submitted that if Naresh Kumar or Thakur Dass had entered into a partnership it does not mean that the status of Joint Hindu Family has broken. So long these two persons constitute Joint Family alongwith their father Basheshar Nath and so long Basheshar Nath and sons had control and possession of rented premises, it cannot be held to be a case of subletting. In short, counsel for the respondent submitted that a concept of Joint Family and concept of partnership amongst two co-parcerners are not mutually destructive. While remaining members of the joint family the sons can also hold the status of partner and so long the business of the coal is joint with their father who has also control over the premises, there cannot be subletting. I do not subscribe to the arguments raised by the learned counsel for the petitioner. Jointness in Hindu Family in permissive. We have to examine what is the evidence led in this regard by the parties. Therefore, Basheshar Nath appeared as RW.1 and he stated that he and his sons constituted joint Hindu family. Landlord also appeared in the witness box and he had to admit in the cross-examination while appearing as AW.1 that sons of Basheshar Nath were living in the same house in which their father lived though separately but the landlord admitted that Naresh Kumar had gone out for the last two years whereas other son is joint in mess and residence with his father meaning thereby that Thakur Dass is joint with his father. In these circumstances, if Basheshar Nath had allowed the use of the premises to his sons for the purpose of running some business of coal, it will not amount to parting with the possession in favour of Thakur Dass. The triumph card of the counsel for the petitioner is various licences issued from time to time in the name of Naresh Kumar and Brothers, Ex.R.1 is for the year 1980-81, Ex.R.2 is for the year 1979-80, Ex.R.3 is upto 1979, Ex.R.4 is upto 1978. Ex.R.6 is upto 1976. Ex.R.9 is very Important document which would show that Shri Basheshar Nath has not lost control of the premises and he had an interest in the affairs of M/s Naresh Kumar and Brothers. Similarly Ex.R.11 can be read with advantage. Ex.R.8, Ex.R.9 and Ex.R.11 are various assessment orders with respect to firm M/s Naresh Kumar and Brothers. This will show that other members of the joint family such as Surinder Kumar and Basheshar Nath had been taking keen interest in the affairs of M/s Naresh Kumar and Brothers. Surinder Kumar appeared before the Income Tax Authorities when a notice was given upon Naresh Kumar and Brothers. Similarly Basheshar Nath appeared before the Assessing Authority and he produced stock register as well as Sales Tax Register etc. Again Shri Surinder Kumar appeared before the authority as is evident from Ex.R.10 and again Basheshar Nath father of the partners appeared at the time of the assessment order. Similar position has been depicted in Ex.R.11. Learned Appellate Authority rightly came to the conclusion that there is. nothing to indicate that partnership of the two sons of Shri Basheshar Nath was registered and the mere fact that for the sake of expediency, the two sons gave out themselves to be partners in the business being carried on by them would not by itself show that they became the tenants of their father. No doubt subletting is a secret arrangement between a tenant and the sub-tenant and is always held at the back of the landlord but in order to succeed on the ground of subletting it has to be shown by the landlord that the tenant had parted exclusive control and possession of the demised premises or part thereof.

Learned counsel for the petitioner relied upon Charan Singh and Another Vs. Patram, and submitted that there can be subletting between father and sons and if the tenant fails to prove that the demised premises were let out to him and his son and that his son was found in exclusive possession of the premises while father was found to be in occupation of another shop leased out to him by its proprietor. I have gone through this citation. So far as sub-tenancy between father and his son is concerned, there is no ready formula to jump to a conclusion that there can be no subletting between father and son or that there can be no subletting between close relations. But the law is that there should be cogent evidence which must be led by the landlord to establish that father had lost control over the demised premises and he had parted exclusive possession of the demised premises to his son who alone had the control over the premises or part thereof. In the case in hand, there is ample evidence on the record that right from the beginning Basheshar Nath had been doing coal business with his sons. Father had been appearing before the Taxation Authorities with the Accounts Books. With regard to separate shop allegedly being run by the father in the same locality there is no evidence to show that Shri Basheshar Nath had not been doing the business of coal. Shri Yog Raj RW.4 when appeared before the Rent Controller stated that Basheshar Nath is engaged in the business of coal for the last 10/12 years. There is no bar if a tenant occupies another shop. So long control of the tenant in the shop in question is concerned, it cannot be held that he had parted with possession. In the cited case, son was found in exclusive possession of the premises and his father was found to be in occupation of another shop. Both the persons were carrying on their business in the independent status having no connection with each other, here the facts are different. Counsel for the petitioner also relied upon (1985)87 P.LR. 113 Sita Devi v. Chaman Lal, In the cited case as per record of the Municipal Committee and register maintained under the Shops Act, the father of the tenant was found to be in occupation of the shop in dispute and the tenant was running another shop of the utensils in the locality. Subletting in these circumstances was held to be proved. Here the facts are totally different.

Learned counsel for the respondent on the contrary relied upon (1981)83 P.LR. 763, Banta v. Vishwa Nath Dogra, and Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, , and submitted that admission is best evidence that an opposite part can reply upon, the though not exclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Counsel submitted that it is case of the landlord himself that tenant and his sons constitute a joint family. In these circumstances, the presumption is of jointness. I find force in the contention raised by the learned counsel for the respondents. In this view of the matter, I do not see any merit in this revision of the landlord and affirm the judgment dated 19.1.1983 passed by the Appellate Authority. No order as to costs.