Roshan Lal and Others vs Raj Kumar and Another

D.V. Sehgal, J.—This revision petition u/s 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called ''the Act''), filed by the landlord-Petitioners is directed against the order dated 31-7-1976 passed by the learned Appellant Authority, Gurgaon, whereby an appeal by tenant-Respondent No. 1 and firm M/s Nathu Ram Raj Kumar Respondent No. 2 was accepted and the order of the learned Rent Controller dated 6-8-1974 ordering eviction of tenant-Respondent No. 1 was set aside.

The landlord-Petitioner No. 1 on the following application against tenant Respondent No. 1 on the following two grounds:

(i) That the tenant Respondent No. 1 without the written consent of the landlords had opened a door 5'' high and 3'' wide in the shop in question connecting it with the adjoining shop which has diminished the value and utility of the property in dispute

(ii) That tenant-Respondent No. 1 had without the written consent of the landlords sub-let the shop in dispute to M/s Nathu Ram Raj Kumar Respondent No. 2, that tenant-Respondent No. 1 himself had no connection with the said firm Nathu Ram Raj Kumar; and that he was running his business in a separate shop under the name and style of M/s Arya Trading Corporation.

The tenant Respondent No. 1 disputed the aforesaid allegations. He asserted that the door in between the shop in dispute and the adjoining shop had not been opened by him and at any rate the said door did not diminish the value or utility of the disputed property. He also asserted that he bad not sub-let the shop in dispute to M/s Nathu Ram Raj Kumar; and that he, his father Nathuram and his brother were working jointly. While in the shop in dispute the business was being carried on in the name of M/s Nathu Ram Raj Kumar, in the adjoining shop, which was also under the occupation of tenant Respondent No. 1, business was being carried on in the name of M/s Arya Trading Corporation.

The learned Rent Controller arrived at the conclusion that the door in question was already in existence, i.e. before tenant-Respondent No. 1 was inducted as a tenant. He further held that the said door did not impair materially the value or utility of the building, i.e. the shop in dispute However, on the ground of subletting, the learned Rent Controller concluded that tenant Respondent No. 1 himself was carrying on business under the name and style of M/s Arya Trading Corporation in the shop adjacent to the shop in dispute with a separate Sales Tax number and that the business in the disputed shop was being carried on by the father and brother of tenant-Respondent No. 1 under the name and style of M/s Nathu Ram Raj Kumar. Therefore, tenant-Respondent No. 1 was held liable for eviction on the ground of having transferred his right under the lease or for having sub let the shop in dispute to his father and brother. On appeal by tenant-Respondent No. 1, the learned Appellate Authority while affirming the finding of the learned Rent Controller on the first point, set aside the finding of the learned Rent Controller with regard to transfer of right by the tenant or subletting of the shop by him to his father and brother. Consequently, the learned Appellate Authority set aside the order of eviction passed by the learned Rent Controller and dismissed the ejectment application of the landlord-Petitioner.

The learned Counsel for the landlord-Petitioners has urged that the finding that the door 5''high and 3'' wide in the side wall of the verandah so as to make passage to the adjacent shop was already in existence before Raj Kumar Respondent No. 1 was inducted as a tenant arrived at by the authorities below was not in consonance with the evidence on the record. 1 am afraid, this concurrent finding of foot of the authorities below cannot be disturbed in the present revision petition. The learned Counsel for the landlord-Petitioners has relied on a Division Bench judgment of this Court in Narain Singh v. Bakson Laboratories etc. 1981 C.L.J. (Civil) 414, to press his contention that any structural change in the building, which is likely to impair materially the value and utility of the demised premises attracts the provisions of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949. In the context of the facts en record in the present ease, the ratio of the Division Bench judgment in Narain Singh''s ease (supra) is not applicable. The Division Bench has held that any material structural alteration which tend to change the nature and the character of the building would come within the mischief of the statute. The use of the word "material" only effectuates the hallowed rule of the law that it does not take account of trifles and consequently both the impairing of its value or its utility must be of substantial and not inconsequential nature. There is no evidence on the record worth mentioning which may bear out that any substantial structural change has been brought about by the opening of the door in question, and whether it impairs materially the value or utility of the demised shop. It has further not been shown that the opening of the said door has done any appreciable damage to the structure of the building. In fact, in almost a similar situation, it was held by Chief Justice Mehar Singh (as his Lordship then was) in Civil Revision No. 504 of 1966 Bhagmal v. Ajudhya Parshad Civil Revision No. 504 of 1966, decided on 26-11-1968, that the opening of a small door by the tenant to make use of a part of the premises which were previously with him without causing any material impairment to the value and utility of the building does not attract the provisions of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949, which provision is analogous to the corresponding provision of the Act.

As regards subletting, the learned Counsel for the landlord-Petitioners has canvassed that from the evidence it is borne cut that tenant-Respondent No. 1 had parted with the possession of the shop in dispute; that the shop in question is in possession of the father and brother of the said tenant; and that the tenant himself is carrying en business in the adjoining shop under the name and style of M/s Arya Trading Corporation He, therefore, urges that in view of this the onus shifts to the tenant to prove the nature of possession of his father and brother in respect of the shop in dispute, failing which the only inference would be that the shop had been sub-let by the tenant. He has placed reliance on Smt. Sita Devi v. Chaman Lal and Anr. 1984 (2) R.C.R. 635. The law laid down in this judgment is well settled. However, in the present case as observed by the learned Appellate Authority, the tenant, his father and brother are working together. The tenant no doubt has separate business also in the adjoining shop in the name of M/s Arya Trading Corporation, but at the same time he is carrying, on business in the shop in dispute with his father and brother in the name of M/s Nathu Ram Raj Kumar Another indication to show that exclusive possession of the shop has not been parted, with by the tenant is the door in dispute in between the two adjacent shops in which the business in two different names is being carried on. The learned Counsel for the landlord-Petitioners has further stressed that from the very fact that the business in each of the two shops is styled under different-names having different Sales Tax numbers, it is to be concluded that tenant-Respondent No. 1 has nothing to do with the business of M/s Nathu Ram Raj Kumar being carried on in the shop in dispute. No such conclusion can be safely drawn on the, basis of these two features. I an, therefore, in agreement with the learned Appellate Authority that the landlord-Petitioners have failed to prove that the tenant has transferred his right under the lease or has sublet the shop in dispute to his father and brother.

Consequently, I find no force in this revision petition and dismiss the same. There shall be no order as to costs.