Shiv Dayal Malhotra vs Harish Chandra and Sons & Ors.

R.K. Mahajan, J.—I have heard the matter after recalling the order, dated 351995 by virtue of which the revision was dismissed even though the revision was decided after going through record and a reasoned order was passed.

The revision has arisen out of the following brief facts. The dispute relates with respect to a shop situated at Jindal Bhawan, Railway Road, Aligarh. It was taken on rent at the rate of Rs. 320 per month by the tenantapplicant. The plaintiffrespondents filed a suit for recovery of arrears of rent from September, 1982 to December, 1982 at the rate of Rs. 160 per month and from January, 1983 to 31st March, 1983 for the sum of Rs. 960 as rent at the rate of Rs. 320 per month along with Rs. 32 as costs of the notice; total Rs. 1632. The plea of subletting, default in payment of rent and material alterations have also been taken. Despite the notice terminating the tenancy, the rent was not paid.

The tenantapplicant denied the allegations of subletting and material alterations and also the rent was fixed at the rate of Rs. 320 per month from 111983 to 3131983.

The trial court did not give finding in favour of the landlordrespondent regarding the material alteration but returned finding regarding subletting and arrears of rent at the rate of Rs. 320 per month and passed the eviction order.

Sri S. U. Khan, learned counsel for the applicant has attacked the order of the court below as perverse and unreasonable especially with respect to the sub letting and more emphasis has been laid down regarding the increase of rent. He has also filed an application under Order XLI, Rule 27, Code of Civil Procedure for leading additional evidence i.e. with respect to production of counterfoil showing the rent at the rate of Rs. 160 per month. He has further submitted that he would like to produce the certified copy of the registration application in the Sales Tax Department dated 1931981 of the firm Parsiddh Rana Boot House to show that the firm is a proprietorship of the sons of the applicant.

The learned counsel for the respondents has opposed the applicant and drawn my attention saying that the applicant promised to pay rent at the rate or Rs. 320 per month from January, 1983. Sri S.U. Khan, learned counsel for the applicant oposed this assertion. I am afraid to agree with the submission of the lower court has given a finding in the judgment his signature on the receipt. The submission of Sri Khan that admission made by applicant regarding payment of rent at the rate of Rs. 320 per month is of no avail as the tenant cannot make admission in his own favour and it is not admissible under the Evidence act. Sri S.U. Khan, learned counsel for the applicant has relied upon the ruling reported in AIR 1982 Supreme Court 127 Indandas v. Anant Ram Chandra Phadke in which it was held as under;

�Held, in the circumstances that the lease was from year to year. On the basis of the entries in the counterfoils of receipts, the landlord tried to make out a case of monthly tenancy but the entry in the counter foil being an admission in his own favour was not admissible against the tenant. C.A. No. 1741 of 1976 dated 18111976 (Bom) Reversed.�

This ruling is of no help as the landlord tried to make a case of monthly tenancy from counter foils of the receipts out in the present case the tenant applicant himself has signed and the signatures are undisputed and as such it is an admission under Section 18 of the Indian evidence act it can be proved and is also relevant against the maker of the admission as mentioned in Section 21 of the Indian Evidence act itself.

So in my considered view, it is not a case of additional evidence as there is sufficient material to arrive at a just conclusion and the court below after appreciating the evidence has arrived at correct conclusion regarding the rate of rent at Rs. 320 per month which was not deposited. The court below also did not accept the plea of tender under Section 20(4) read with Sec. 30 of the U.P. urban Building (Regulation of Letting, Rentand Eviction) act, 1972

Now the next question which remains to be examined is regarding the subletting.Sri S.U. Khan, learned counsel for the applicant has argued that the son of tenant applicant sits on the shop and it is not a case of subletting. The learned counsel for the respondents submitted that the shop has been let out to M/s. Prasiddh Rana Boot House and the lower court has clearly given a finding regarding subletting while deciding issue with respect of subletting and I hardly find any unreasonableness or perverseness in the finding of the court below.

It appears from the lower court finding that the applicant has a parted the possession of the shop and has lost actual control. The subletting is a matter of secret arrangement between the parties and the surrounding circumstances is only the evidence which proves a subletting but in this case besides the loss of control, there is also evidence that the shop is being run by another name and tenantapplicant has no connection with the same and, therefore, the plea of Sri Khan that there is no subletting has no force.

In view of the above discussion, the revision lacks merit and is dismissed.

Revision dismissed.