Rajbir Kaur and Another vs Joginder Associates, Architect, Designer and Decorator and Others

V.S. Aggarwal, J.—The present revision petition has been filed by Smt. Rajbir Kaur and another, hereinafter described as "the petitioner", directed against the judgment of the Appellate Authority, Chandigarh, dated 5.10.1995. By virtue of the impugned judgment, the learned Appellate Authority allowed the appeal filed by the respondents and dismissed the petition for eviction that had been preferred by the petitioners.

The relevant facts are that the petitioners are admitted landlords. They have filed a petition for eviction contending that respondents No. 1 and 2 have taken on rent the first floor of the property in question and the rent was Rs. 1,000/- per month excluding water and electricity charges. Respondents No. 1 and 2 were alleged to have sub-let the premises to respondents No. 3 to 7 for valuable consideration after the commencement of the East Punjab Urban Rent Restriction Act, 1949, as applicable to Union Territory of Chandigarh (for short "the Act") without the written consent of the petitioners. Respondents No. 3 to 7 were stated to be in exclusive possession of 1/2 of the first floor towards back portion wherein they are running independent business and paying rent to respondent No. 1 and 2. When the petitioners came to know of this fact, they requested respondent No. 1 and 2 to vacate the property for having violated the terms and conditions of the tenancy. It was not done. Respondents No. 1 and 2 were stated to be Architects and Designer while the demised property was alleged to have been sub-let to other respondents for doing tailoring business.

The petition for eviction had been contested. It was pointed that tenancy in favour of respondent No. 1 and 2 has been created in June, 1971. Earlier, respondents No. 1 and 2 were the tenants on the second floor (half portion) at a monthly rent of Rs. 250/-. The rent of the first floor was initially settled at Rs. 650/per month. It was increased from time to time. Respondents No. 1 and 2 shifted on the first floor. They had done so with the condition that they would sub-let any portion to the tenants of their own choice because they were not in need of the entire first floor. The landlords agreed and, therefore, the rear portion was sublet to Dr. G.S. Sandhu in the month of June, 1971 and subsequently from 25.7.1971 the rear portion was sublet to M/s Raison Tailors which is a firm constituted by respondents No. 3 to 6. Ever since then, respondent No. 7 is in continuous possession of the rear portion. Devinder Singh was stated to be the attorney of the petitioners and was fully aware of this fact that M/s Raison Tailors are sub-tenants in the said portion. This fact was recorded in black and white in the month of December, 1974. Initially, M/s Raison Tailors used to book the business from the rear portion of the first floor and they had their regular workshop in Sector 22, Chandigarh. Subsequently, they had shifted a part of their workshop in the suit premises. Only a small part of it remained with South India Insurance Co. Plea was raised that though respondent No. 7 is paying rent to respondent No. 1 and 2, but it was with the consent of the landlords. Had the sub-tenancy against the consent of the petitioners, they would not have allowed respondents No. 3 to 7 to continue in the demised premises for such a long time.

Rejoinder was filed. The learned Rent Controller framed the issues and considered the evidence on the record. The learned Rent Controller held that the best evidence in possession of the respondent has not been produced, namely, their account books. Similarly, it was pointed that Joginder Singh is a practicing Architect. Reference was made to his admission made during the course of his testimony and it was held that sub-tenancy was created in the year 1973 without the consent of the petitioners. Accordingly, the order of eviction was passed.

Appeals were preferred with the learned Appellate Authority. The learned Appellate Authority recorded that the stand of the respondents consistently, is that when they were to shift on the first floor they did not require whole of the first floor and, therefore, permission was granted by the landlords to sublet the property. The Appellate Authority ignored the fact that the purported rent agreement Exhibit RW5/A was on a stamp paper meant for preparing affidavit. Relying on the said documents, it was held that respondent No. 2 to 7 were inducted as tenants under respondents No. 1 and 2 on 25.7.1971. The report of the handwriting expert of the petitioners was not believed and reliance was placed on the documents produced by the respondents, namely, the receipts to hold that subletting was with the permission of the petitioners. Accordingly, eviction application was dismissed. Hence, the present revision petition.

At the outset one can conveniently refer to sub-section (5) to Section 15 of the Act. Under the said provision, only the legality and propriety of the orders passed by the learned Rent Controller or the Appellate Authority can be challenged. Ordinarily, when there are concurrent findings of fact, this Court cannot interfere unless the same are absurd or the findings are not based on evidence. To the same effect is the decision of the Supreme Court rendered in the case of Dev Kumar (died) through LRs. v. Swaran Lata (Smt.) and Ors. 1995(2) RLR 669. Therefore, with this backdrop one can conveniently refer to the facts of the present case.

The provisions of the Act were made applicable to the Union Territory of Chandigarh w.e.f. 4.11.1972. If there is any sub-letting before that, in that event written consent of the landlord is not required. If the premises had been let after 4.11.1972 then in accordance with the provisions of Section 13 of the Act, it is mandatory that the said premises can only be sublet with the written consent of the landlord.

Reliance has strongly been placed on the rent note Exhibit RS5/A dated 25.7.1971 so as to show that it clearly indicates that the demised property had been sublet before the provisions of the Act were made applicable to the Union Territory of Chandigarh. There is no controversy, raised at the higher end that this document was unregistered but it could be looked into for collateral purposes. Petitioners have examined PW4 Joginder Singh. He stated that the stamp paper on which the said rent note is purported to have been written had been sold by him and it is for the purpose of affidavit. It was sold to one Joginder Singh s/o Lachhman Singh. The Appellate Authority held that even if the stamp paper was purchased for an affidavit and rent agreement was written, this will not make much difference because a rent agreement could also be executed on such a stamp paper. In strict legal sense, there is no controversy in this regard but the fact which assumes importance and cannot be ignored is that in the writ- ten statement that was filed there is no reference of such an agreement. The relevant extract of the written statement filed reads as under :-

" . . . . Respondent No.l and 2 shifted on the first floor- with a condition that they would sublet any portion to the tenants of their choice as respondent No.l and 2 were neither in need of the entire first floor nor in a position to afford the high rent, the landlord agreed specifically to this condition and consequently the rear portion was sublet to Dr. G.S. Sandhu in the month of June, 1971 who occupied the rear portion. Subsequently, from 25.7.1971 the rear portion was sublet to M/s Rai Sons Tailors which firm is constituted by respondents No. 3 to 6 and ever since then respondent No. 7 is in continuous possession of the rear portion. It is respectfully submitted that Shri Devinder Singh, the Attorney of the applicants, is fully aware of this fact that M/s Rai Sons Tailors are sub-tenant in the rear portion of the tenanted premises much before the enforcement of the Rent Restriction Act and that he has been inducted with the consent of the petitioners which was subsequently recorded in black and white in the month of December, 1974. Initially, M/s Rai Sons Tailors respondent No. 7 used to book the business from the rear portion of the first floor and had their regular workshop in Sector 22, Chandigarh, but subsequently they had shifted a part of their workshop in the said portion. A small part of the rear side also remained with South India Insurance Co. as well in the beginning years of tenancy."

In the absence of the document having been set up in the written statement, the possibility of the said document having been subsequently manufactured cannot be ruled out particularly when the stamp paper had been purchased for an affidavit.

It is true that in the written statement it has been asserted that the property had been sublet before the commencement of the Act at Chandigarh. However, the statement of Joginder Singh RW6 knocks at the bottom of this version. The cross-examination of the witness reads as under:-

" .... I have been receiving rent nowadays from Raison Tailors @ Rs. 550/p.m., South India Insurance Company was paying rent @ Rs. 200/- p.m. South India Insurance Co. remained as tenant for 9 to 10 months. I cannoi: tell month, however, they became my sub-tenant in the year 1973."

Same fact was reiterated on further cross-examination which is also being reproduced below for the sake of facility.

" . . . . When two rooms vacated by South India Insurance Co. and the said two rooms were handed over/sublet to Raison Tailors in the year 1973 and thereafter Raison Tailors started paying rent to me @ Rs. 350/- p.m. ..."

These facts clearly reveal that Joginder Singh admitted that the other respondents who are sub-tenants were inducted in the year 1973 in the suit property. The admission runs counter to his earlier version and undoubtedly establishes that the property was sublet after the provisions of the Act were made applicable to the Union Territory of Chandigarh. In the face of the aforesaid, other oral evidence of the respondent is irrelevant.

It had further been contended that in any case consent in writing had been obtained from the Landlords and reliance in this regard was placed on the receipts purported to have been given by Mehtab Singh so as to assert that it was with the written consent that the property was sublet. The form of consent has not been prescribed in the Act. The learned Appellate Authority relied upon the said writing.

It is settled principle of law that a fact which is not pleaded cannot be allowed to be proved. In the written statement filed by the respondents, there is no plea taken that the property had been sublet with the written consent of the petitioner-landlords. The subsequent disputed receipt, therefore, Was rightly ignored by the learned Rent Controller. No reliance could be placed upon it. It could not be held, therefore, that there was consent of the landlords in writing.

On behalf of the respondents it has been urged that the respondents have been in occupation of the property and if it was not with the consent of the landlords then they would have raised the objection much earlier. It was asserted that the right, if any, had been waived.

Waiver would be conscious abandonment or giving up of a right. That is not established. Delay by itself would not defeat the provisions of the law. Therefore, this argument so much thought of is of no avail to the respondents.

There is another way of looking at the matter. As already pointed above, it has been alleged that the property had been sublet before coming into force of the provisions of the Act in Union Territory of Chandigarh. It is in evidence that accounts are being maintained. No such account books have been produced to show that for that period the payment has been made. A similar question arose before the Supreme Court in the case of Shah Phoolchand Lalchand Vs. Parvathi Bai, . Here notice had been given but the tax returns, assessment orders, account books and ledgers for the relevant period were not produced by the tenant and on that account adverse inference had been drawn against the tenant. Similar is the position in the present case. There is nothing to show that for the said period payment of rent had been made to permit the Court to come to a conclusion that the property had been sublet before the relevant date when the provisions of the Act were made applicable to the Union Territory of Chandigarh. All these factors make one to conclude that the findings of the Appellate Authority are contrary to the settled principles of law and the evidence has been misread. Therefore, the findings of the Appellate Authority cannot be sustained.

For these reasons, the revision petition is allowed and the impugned order is set aside. The order of eviction as directed by the learned Rent Controller is upheld. The respondents have been in occupation of the suit property for a very long time, therefore, they are granted six months time to vacate the demised property.