Shambhu Datt and another vs Balwant Lal

R.S. Sarkaria, J.—This civil revision is directed against the order, dated 30th January, 1988, of the appellate Authority, Gurdaspur, accepting the application of Balwant Lal land lord u/s 13 of the East Punjab Urban Kent Restriction Act, 1949 (hereinafter referred to as ''the Act'' for eviction of the tenant.

The material facts are as follows:

By a rent-note, dated 26th April, 1953, Balwant Lal leased out the shop in dispute, situated, at Batala, to Shambu Dutt, petitioner before me, for a monthly rent of Rs. 28/- for a period of 11 months. Subsequently, on the application of Shambu Dutt, fair rent of the shop at Rs. 9.38 per month was fixed by the Rent Controller with effect from 9th February, 1963.

Thereafter the landlord (Balwant Lal) made the application u/s 13 of the Act for eviction of the tenant mainly on two grounds, namely, (i) that the respondent had failed to pay the rent due for about 16 months preceding the petition; and (2) that the tenant had assigned his tenancy rights in the shop in favour of his son, Jugal Kishore, Respondent, (petitioner No. 2) without the landlord''s consent in writing.

At the first hearing before the Rent Controller, the tenant deposited the arrears of rent together with interest and costs. The first ground for eviction thus ceased to exist. On the second ground the Controller held that the tenant had not assigned the tenancy rights to his son. The son came to be in possession of the shop on the partition of the joint Hindu family, and that the shop had been hired for the joint family business and not by the father for his personal business. On appeal, the Appellate Authority reversed this finding of the Controller, and held that the shop had been hired by Shambu Dutt tenant for his personal use, and that the arbitration award set up by the tenant, evidencing partition of the joint Hindu family property was merely a subterfuge, which had been brought into existence merely for the purpose of defence in this case. Hence this revision by the tenant.

The first contention of the Learned Counsel for the tenant-petitioners is, that section 92 of the Evidence Act does not debar the production of extraneous evidence of surrounding circumstances to ascertain the real meaning of certain words and expressions, used in the rentnote, Exhibit A.1. Reference in this behalf has been made to Proviso 6 of Section 92 of the Evidence Act. Such extraneous evidence was in deed led in this case. It is of two types: Firstly there are the. Oral statements of Shambhu Dutt, R.W. 1, and his son Jugal Kishore, R.W.2, in the witness-box. Secondly, there is the documentary evidence of the arbitration agreement, Exhibit A. 3, and the award, dated 13th September, 1963, Exhibit A.W.6/E, of the Arbitrator. It is urged by the counsel that the words in the rent-note, Exhibit A.I, to the effect that Shambhu Dutt was taking the shop for his own use (Barai Istimal Khud)'', should, in the light of the evidence of the surrounding circumstances, be interpreted to mean that he was taking the shop as karta of the joint Hindu family, consisting of the father and the son, for the joint family business.

On the other hand, the Learned Counsel for the landlord respondent maintains that in the first place, such extraneous evidence was not admissible under proviso 6 to section 92 of the Evidence Act. Secondly, even if the extraneous evidence produced is taken into account, then also it does not warrant the conclusion that the shop in dispute was taken by Shambhu Dutt as karta of the joint family for the business of the family. On the other hand, this evidence, says the counsel, shows that the son, Jugal Kishore, has been running his separate business in the shop.

Proviso 6 to Section 9 of the Evidence Act reads as follows:

Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to exiting facts.

This proviso is couched in general terms. It embodies an important cannon of interpretation of documents. The object of the admissibly of the evidence of surround lug circumstances under this proviso is to ascertain the real intention of the parties when there is latent ambiguity in the document, i.e. when is language is not, prima facie, consistent with the existing facts. It is difficult to define the limits of the rule of interpretation incorporated in Proviso 6, but, generally speaking, evidence of surrounding circumstances is admissible only where there is some ambiguity or doubt as to the meaning of the terms of documents. Where, however, the meanings of the words of the document are plain enough and there is no dispute as to how its contents are related to existing facts, no extrinsic evidence, inconsistent with that plain meaning, will be admitted. Under this proviso, the terms of an unambiguous document cannot be controlled by the conduct of the parties. In the rent note, Exhibit A. 1, there is no such ambiguity. In this note, Shambhu Dutt has clearly stated that he was taking the shop on a monthly rent of Rs. 28/- "for his own use". The crucial words are "Barai lstimal Khud". Further, he has stipulated that he would not admit any sub-tenant, and that if for any reason be did not use the shop himself, he would, after accounting for the rent due from him for the period of his occupation, hand over possession of the shop.

The words in the rent-note, referred to above, together with its general tenor leave no doubt that the shop was hired by Shambhu Dutt for has own personal use and occupation. The language of this rent-note is clear enough, and the rule as to surrounding circumstances could not be extended to enable Shambhu Dutt to prove that when he wrote ''that he was hiring the shop for his (personal) own use'', he meant something totally different, that he was hiring the shop for the use of his joint family business.

Be that as it may, the oral and documentary evidence produced by the tenant, instead of showing that the shop was hired by Shambhu Dutt as karta of the joint family for the business of the family, rather shows that the son was running his separate business in his own name in the shop eversince the execution of the rent-note.

The evidence of Shambhu Dutt, R.W. 1, who was the best informed person about his case, is conspicuous by the absence of any averment that he had hired this shop for the joint family business to be turn in this shop. It will be useful to reproduce what he said in examination in chief:

Jugal Kisbor is my son. Eversince I hired this shop, Jugal Kishore, my son, alone has been runing the shop. The petitioner (landlord) has been residing at this station. Jugal Kishore was a member of our joint Hindu family. He has been doing the business of selling bocks in the shop under the style of "Jugal Kishore Di Hatti". Only book selling business has been carried on in the shop up to the present day. We have not admitted any sub-tenant. Jugal Ktshore sits at this shop as before We had previously made an application for fixation of fair rent. Exhibit D. 1, dated 18th February, 1964, is a copy of the order of the Rent Controller on that application.

There is not a word in the statement of Shambhu Dutt that he had hired this shop as karta of the joint Hindu family for any joint family business. A plain reading of Shambhu Dutt''s statement as a whole, leaves the impression that the son Jugal Kishore, was running his own separate business of selling books in this shop eversince it was hired by Shambhu Dutt. In cross-examination, Sbambhu Dutt admitted this fact in categorical terms. He also said that he was acquainted with the Urdu language in which the rent rote was written. It was correctly incorporated in the rent-note that the witness had taken the shop "for his own use", because the witness and his son were not two persons, but one. Cross-examined further Shambhu Dutt stated that the son had separated from him only after the arbitration award.

The son, Jugal Kishore, R.W.2, said something which was diametrically opposed to the statement of the father. He deposed that the book selling business, which was being run by him in the shop in dispute, was the sole property of his father. All the profits earned by him were appropriated by him alone. However, in case of need he drew money from his father.

The arbitration agreement, dated 12th September, 1963, is also conspicuous by the non-mention of any particulars of the so-called dispute between the son and the father, which was required to be referred to arbitration. All that is mentioned there, is, that the father and the son constituted a joint Hindu family and the son wanted to separate. It is not stated there that the business run in the shop was joint family business, and there was any dispute with regard to the same. This award only reproduces the vague nature of the dispute mentioned m the arbitration agreement. It does not recite the particulars of the dispute or disputes that had arisen between the parties. It says: ''that the tenancy rights in the shop, which has been mud in the name of Shambhu Dutt and in which the son, Jugal Kishore, runs bock selling business under the style of "Jugal Kishore Di Hatti", shall be the separate property of the son, and the father has given a further sum of R.-. 1500/. in cash to the son, and thus the joint Hindu family has come to an end. The son has no right or interest left in the property of his father.

The following circumstances go to show that the arbitration agreement and the award were merely sham transactions, which were brought into existence for the purpose of setting up a defence to the landlord''s charge that the tenant had assigned his tenancy rights in favour of his son:

The application for fixation of fair rent of the shop was made on 9th February, 1962, while the so called arbitration agreement, Exhibit A. 3, came into being on 12th September, 1963, and the award, Exhibit A.W. 6/E on 13th September, 1963 That is to say, this evidence came into existence daring the pendancy of this litigation.

This evidence of the arbitration agreement and the award stood falsified by the statement of Shmbhu Dutt himself, who, in cross-examination, admitted in unequivocal terms that the business, which was being run by the son in this shop was his separate business, and he (Shambhu Dutt) had no share in it.

The so called arbitration agreement was made on 12th September, 1963, while the award was made on the following day, which indicated that there was undue haste in making the award.

In view of the above circumstances, it was not extravagant for the Appellate Authority to conclude that the award was a mere subterfuge and a sham transaction. In any case, it had little evidentiary value when Shabhu Dutt himself did not vouch that the shop had been hired by him as karta of the joint family business run in this shop, or that there was any dispute with regard to any joint business between the father and the son.

Next contention of the Learned Counsel for the appellant is, that the landlord was estopped by his own acquiescence and conduct from saying that the shop had been rented out for the exclusive use of Shambhu Dutt. It is stressed that the landlord did not raise this objection of subletting or assignment in the earlier litigation between the parties; that he had been seeing the son in occupation of the shop eversince it had been let out in the name of the father; and that the landlord had been accepting the rent from the son without any objection. In support of his contention, the Learned Counsel has referred to certain decisions of this Court, namely, Messrs New Gangs Ltd. v. Sardar Khushwant Singh (1951) 58 P.L.R. 136, Dr. Gopal Das Verma v. Dr. S. K. Bharawaj (1957) 59 P.L.R. 355, Civil Revision 566 of 1959 (Mathra Dass v. Master Vir Bhan C.R. 566 of 1959) decided on 14th December, 1930; Civil Revision 93 of 1959 (Parkash Chand v. Sat Parkash C.R. 93 of 1959), decided on 21st October, 1959 : Civil Revision 674 of 1961 (Pandit Bindra Ram v. Sohan Lal C.R. 6 4 of 1961) decided on 31st August, 1962 by Dulat A C J.

As regards Pandit Bindra Ram''s case, it may be mentioned that the rule laid down by Dulat A.C.J, is not applicable to the facts of the present case. In that case, it was found as a fact that Sohan Lal tenant had hired the shop on behalf of the entire joint Hindu family, and all the three brothers, who constituted that joint family, had been working in that shop. Subsequently, the brothers, separated. In the case before me, however, it has not been found that the shop was hired by Shambhu Dutt on behalf of the entire family for the joint business of the family.

The next ruling Messrs New Garage Ltd v. Sardar Khuhwant Singh, decided by a Division Bench of this Court proceeds on the inter pretation of Delhi and Aimer Rent Control Act, 1952. In that case, the tenant bad used the demised premises for a purpose other than the one for which it was hired. In the Delhi and Ajmer Rent Control Act, 1952, there was no provision corresponding to the one in Section 13(2)(ii) of the Act, which required that such change in the user of the rented building or land could be made only with the written consent of the landlord. The rule in Mean Nest Garage''s case, therefore, does not apply to the facts of the present case.

Similarly, Dr. S.K. Bhardwajs case2, was a case under the Delhi and Ajmer Rent Control Act, 1952, Section l3(1)(e) of which was not in pan materia, with Section l3(2)(ii) of the Act.

Civil Revision 93 of 1959 (Parkash Chand''s case)4 decided by Bhandari C. J., on 11st October. 1959, was certainly a case under the Punjab Act 3 of 1949. In that case, one of the grounds on which eviction was sought, was that the premises had been diverted to the use which was not authorised by the agreement between the parties. It was found as a fact that the rent deed concerned did not indicate that the premises were to be used by the tenant for the purposes of residence only. The landlord had acquiesced to this diversion of user of the Ihata for the purposes of business. Bhandari C. J., held that this acquiescence by the landlord estopped him from raising the question that the premises were not to be used for the business. This is whit the learned Chief Justice has said on the point:

Assuming for the sake of argument that there was some kind of a tacit understanding between the parties that the tenant would come and reside in the Ihata, even then it seems to me that there has been an acquiescence on the part of the landlord for a period of several years. It is common ground that the premises were taken on rent as long ago as the 5th July. 1951. It is also admitted that the land lord himself is residing in a portion of the building which is immediately above the shops and the Ihata. Not an iota of evidence has been produced on the file to show that on any single occasion during these several years he had ever objected to the tenant using the Ihata for the purpose of his business

...It seems to me that this Ihata can be used only for purposes of a godown or for some other similarly purpose. If the statement of the tenant is to be believed and I have no reason for not believing it, there can be little doubt that the tenant has never resided in this portion of the premises and that the landlord has never objected to the tenant using these premises for purposes of business. In 1957 P. L. R. 355.

I held that where the landlord does not appear to have protested against the use to which the premises were put and where he is deemed to have acquiesced in the use of the premises for purposes of business, his acquiescence estops him from raising the question that the premises were not being used for the purpose of business

No stipulation appears in the rent died that the Ihata was to be used only for purposes of residence and was not to be used for purposes of business before the tenant went into the occupation of these premises, the piemises were always described as a shop and never as a house....

Parkash Chand''s case is quite distinguishable from the facts of the case before me. In that case, it was found as a fact that the tenant had not diverted the user of demised premises for a purpose other than that for which it was hired. The above quoted observations of the learned Chief Justice, therefore, were only by way of obiter They were not necessary for the decision of the case. However, if I may say so with respect, the obiter dictum of the learned Chief Justice does not appear to lay down the correct law. He seems to have followed his earlier decision in 1957 P.L.R. 355, which was given under the Delhi and Ajmer Rent Control Act, 1952, under the mistaken belief that the relevant provisions of the Delhi Act were identical with the material provisions of the Punjab Act. The difference between the two statutes was rot brought to the notice of the learned Chief Justice

The material part of Section 13(2)(ii) of the Act reads as follows:

13(2) If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied.

(ii) that the tenant has after the commencement of this Act without the written consent of the landlord -

(a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or

(b) Used thy building or rented land for a purpose other than that for which it was leased, or.

It is a well settled cannon of construction that effect must be given, wherever possible to each and every word, clause, and sentence of a statute. When the Legislature uses the adjective ''written'' to specify the nature of the ''consent'', it will be presumed that any other kind of consent, i.e. merely by word of mouth, acquiescence or conduct was necessarily excluded The Legislature is supposed to be precise and no words in a statute are to be deemed redundant or superfluous. To fold otherwise would render the word ''written'' immediately preceding the word ''consent'' in the above-quoted clause of section 13(i)(ii), nugatory. In my opinion, therefore, there can be no estoppel against these express and clear provisions of the statute.

In the above view, I am fortified by the dictum of Dulat J., in Shri Balwant Singh v. Shri Brij Mohan C.R. 645 of 1961 Civil Revision 645 of 19S1, decided on 16th March, 1962, and Alehsr Singh C J., in Messrs Ravindra Textile Mills v. Shri Dewan Chand C.R. 733 of 1966, Civil Revision No. 733 of 1966, decided on the 6th January, 1967.

In Balwant Singh''s case (Civil Revision No. 615 of 1961), one of the allegations in the landlord''s petition was, that the tenant had, without the written consent of the landlord, used the building for the purpose other than that for which it was leased. It was contended on behalf of the tenant that the landlord stood by for nearly three years and actually accepted rent, and must be deemed to have consented. It has contention was rejected by Dulat J., in these words:

The second argument is of no avail because unless the written consent of the landlord is obtained, and not merely his oral consent, the change of user by a tenant makes him liable to eviction No question of estoppel in such circumstances can arise, as an express provision of the statute applies.

I am in respectful agreement with these observations. I have, therefore no hesitation in rejecting this contention of the petitioners that the landlord was estopped from denying that the shop had been hired for the son (Jugal Kishore) because of his acquiescence and inactive conduct, and also by accepting rent from the son.

No other point has been argued before me. The result is that the appeal fails and is hereby dismissed with costs. At the request of the tenant''s counsel, the tenant is given two months'' time from today for putting the landlord in possession of the shop, provided he deposits all the arrears of rent within 3 weeks from today to the credit of the landlord in the Court of the Rent Controller, failing which this concession granted to him shall stand automatically withdrawn.