Shri Kundan Lal vs Shri Sona Ram and another

Naresh Chander Jain, J.—The present revision petition has been directed against the orders of the authorities below by which the application of the petitioner landlord for eviction of the respondents has been dismissed.

The brief facts giving rise to the revision petition are that the petitioner filed an application u/s 13 of the Haryana Urban Control of Rent and Eviction) Act, 1973 (for short ''the Act'') on the ground that Sona Ram, respondent No. 1 took two khans of the demised premises on rent from the petitioner initially vide a rent rote dated 4.10.1954 at an annual rent of Rs. 325/-. The rent was enhanced on 5.12.1957 to Rs. 450/- per annum, at the time of execution of the fresh rent note on 15.12.1957 by respondent No. 1. On 5.12.63, another rent note was executed by respondent No. 1 Sona Ram. At the time of execution of the third rent note the accommodation of tenanted premises was increased by addition of one khan and at the same time, the rent was also enhanced to Rs. 725/- per annum. The above mentioned rent notes are Exhibits A.1 to A. 3. The eviction of the two respondents i.e. respondent No. 1 Sona Ram and respondent No. 2 Kashmir Chand has been sought on the ground that respondent'' No. 1 was in arrear of rent after 6.6.1973 and that he has sublet the demised premises to respondent No. 2 without the written consent of the petitioner-landlord.

Both the respondents filed separate written statements. Respondent No. 1 pleaded that he was never a tenant of the shop in dispute and that he executed the afore-mentioned rent notes as surety on behalf of respondent No. 2 who was alleged to be the original tenant from the very inception of the tenancy. It was the case of respondent No. 1 that right from 5.10.1954, it was respondent No. 2 who was the direct tenant of the petitioner-landlord. It has been specifically pleaded that the petitioner-landlord was not agreeable for renting out the shop to respondent No. 2 and wanted some surety for payment of rent and, therefore, the rent notes were got executed from him. It is further averred that respondent No. 1 was a cloth merchant running a separate shop in Chandni Chowk Bazar, Sirsa for more than two decades and that he never occupied the tenanted premises and never paid its rent to him Respondent No. 2 the son-in-law of respondent No. 1 pleaded that he was in occupation of the shop in dispute from 5.10.1954 and that he had been paying the rent directly to the petitioner-landlord and making entires of the payment of rent in his account-books. In other words, he pleaded direct tenancy and denied the allegation of subletting.

The short questions which arise for determination before this Court are:-

i) Whether it is respondent No. 1 who is the tenant of the petitioner as is evidenced by the execution of the three rent notes Exhibits A.1, A.2 and A.3?

ii) Whether respondent No. 2 is the direct tenant of the petitioner?

The other questions which arise are ancillary to the above mentioned two questions. In fact both the questions which arise for determination are over-lapping each other. In case, it is found by this Court that the stand regarding direct tenancy of respondent No. 2 is not legally proved, it will have to be held that respondent No. 1 has either sublet the demised premises in favour of respondent No. 2 or transferred his right under the lease.

Shri Balraj Behal, learned counsel for the petitioner has vehemently argued that the defence of the respondents is apparently false and legally unsustainable in view of the execution of the three rent notes. It is further argued that there is no legal evidence to sustain the findings of the authorities below regarding direct tenancy of the respondent No. 2 under the petitioner-landlord. Yet another argument has been advanced by the petitioner''s counsel that the Appellate Authority has omitted from consideration Exhibit A.6 Property Tax Assessment Form and the statement of AW.6 Dharam Pal has been wrongly discarded by misreading Exhibit A-6 a document produced by him. The learned counsel for the petitioner is support of his argument has cited two judicial pronouncements, namely, Ram Chander Vs. Mangal Singh and Another, and Niranjan Kumar and Others Vs. Dhyan Singh and Another, The counsel argues that production of the account-books evidencing the payment of rent from 1966 onwards by respondent No. 2 is not sufficient in law to make him the direct tenant under the petitioner-landlord and the non-production of account-books from 1954 is in itself a circumstance that the respondent has been inducted in the shop somewhere before 1966 and that since best evidence of account-books from the year 1954 has been withheld, it cannot legally be held that respondent No. 2 is a direct tenant under the petitioner landlord. As regards non-production of account-books by the petitioner is concerned, Mr. Behal argued that since the payment of rent has been entered in the three rent notes, the landlord was not under any legal obligation to prove the payment of rent by respondent No. 1 to the petitioner and, therefore, non-production of account books could not be held to be a circumstance going against the petitioner.

On the other hand, Shri H.L. Sarin, Senior Advocate, learned counsel for the respondents has vehemently argued that the petitioner has admitted in the witness-box that he had been keeping account-books. According to the counsel, the account-books have not been produced by him and, therefore, he is guilty of withholding best evidence and, therefore, adverse inference must be drawn against him. In this connection my attention has been drawn to the ratio of law laid down by the Hon''ble Supreme Court in Gopal Krishnaji Ketkar v. Mohammed Haji Latif A.T.R. 1986 S.C. 1413. It has further been argued that the entry Exhibit A.6 is in admissible as it has been held by the Court in Jagan Nath v. Smt. Shanti Devi 1976 C.L.J. 312. The learned counsel further argued that the findings of fact recorded by the authorities below are borne out from the evidence on the record of the case and that the same are binding upon this Court. The learned counsel thus argued that the findings of fact cannot be interfered with and for this several rulings have been cited, namely, Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, , Vinod Kumar v. Harbans Singh Azad (1977) 79 P.L.R. 144, (Full Bench), Charan Dass v. Sheelwant Parkash Kapi 1980 C.L.J. 381, Siri Ram v. Air Com. Mahabir Chand 1981 C .L.J. 270.

On a perusal of the entire record and after giving my thoughtful consideration to the entire matter, I am of the view that the revision petition merits acceptance. Once the execution of the three rent notes is admitted by the respondents and the petitioner has stepped into the witness-box to state on oath that respondent No. 1 was his tenant on the basis of as many as three rent notes, the initial burden of proof upon him stands discharged. The moment the respondents take up the plea of direct tenancy of respondent No. 2 under the petitioner it is for them to prove by strict legal evidence that it was respondent No. 2 who was direct tenant of the petitioner In Ram Chander''s case (supra) it has been held that where a shop has been occupied by a person without the consent of the landlord on the basis of rent note executed by another person, the actual occupant as well as the ostensible tenant are liable to be evicted. The facts in the reported case and in the case in hand are by and large similar. In the reported case Ram Chander landlord filed eviction petition against Mangal Singh tenant pleading that he had sublet the premises to Balbir Singh. The execution of the rent note by Mangal Singh was admitted as is the factual position in the case before me. In the reported case also the case set up was that the landlord was not willing to let out the shop to balbir Singh sub-tenant. Therefore, rent note was executed by Mangal Singh. The case having been decided by the Appellate Authority against the landlord, it was held by this Court by referring to Section 92 of the Indian Evidence Act that the premises were rented out to Mangal Singh and that Balbir Singh could not be held to be direct tenant. The following observations of this Court may be reproduced with advantage:

In this context, the provisions of Section 92 of the Evidence Act have been ignored by the Appellate Authority, according to which when the terms of contract or other disposition of property had been reduced into writing, oral evidence to vary such terms is barred. Of course, if the case had been brought under any of the provisos in Section 92, the bar in this respect could be waived. This, however, is not the case on behalf of the tenants. On the other hand, they have persisted in their stand that the rent note was a sham transaction. Be that as it may, even though the subtenant i.e. Balbir Singh chose to occupy the shop in dispute on the basis of rent note executed by Mangal Singh as a tenant, he is presumed to be alive to the risk of his eviction on the ground of sub-tenancy and he cannot turn round and take the plea that the Rent Note was a sham transaction. The ground of sub-letting, therefore, stands amply proved and the Rent Controller was quite justified in ordering the eviction of the tenant on that score.

To the same effect is the law laid down in Niranjian Kumar''s case (supra).

The authorities below, in my view, have committed gross legal error in drawing an inference of direct tenancy of respondent No. 2 under the petitioner by placing reliance upon the account-books from 1966 onwards. No account-books prior to 1966 have been brought on the record of the case. It appears that respondent No. 2 have been inducted in the premises in dispute somewhere in the years 1963 and 1966 and for this very precise reason the account-books evidencing payment of rent to the petitioner before 1966 are not forthcoming. For this observation, the counsel for the petitioner rightly relied upon Exhibit A.6 an entry of Property Tax Assessment Register in which the petitioner has been shown to be the owner and Sona Ram respondent has been shown to be the occupant. The relevant extract of the entry of property tax are as under:-

1 to 3 x x x x x x

Name, parentages, caste and residence of the owner

KundanLal s/o Bali Ram.

Name, parentage, caste and residence of occupier if different from the owner

Sona Ram s/o Mela Ram 450/- P.A.

Self, (sic).

x x x x x x

This document which has been proved by Dharam Pal A.W. 6 clearly shows that in the disputed shop Sona Ram was the occupant and that too at the rate of Rs. 450/- per annum. This document Exhibit A.6 related to the year (sic) and a perusal of the rent note Exhibit. A.2 executed on 5.12.1957 shows that the rent of the demised premises was Rs. 450/- per annum till it was enhanced by execution of another rent note Exhibit A.3 Exhibit A.6 has been wrongly discarded by the lower Appellate Authority by holding as follows:

Sain Dass A.W. 5 is a House tax Clerk in the Municipal Committee, Sirsa. The copy of an entry in the house tax register for the year (sic) Ex A.5 has been sought to be proved from the evidence of this witness. He has stated that the name of Kundan Lal applicant is entred in the column of ownership where the column "occupier" has been torn of from the register. His evidence is, therefore, of no avail to the applicant. For the same reason, the evidence of Dharam Pal A.W. 6 Record Keeper of Property Tax Office, Sirsa is of no avail to him.

The afore referred observation of the Appellate Authority rather clearly shows that Exhibit A.6 has not been considered at all. I am further of the view that the landlord was absolutely under no obligation to produce the account books because he has proved the payment of the rent to him from the recitals in the three rent notes. As regards the other (sic) evidence brought by the parties to prove the direct tenancy is concerned, the same is neither the nor there and in any case it has got no direct bearing in view of the tenant''s own case that (sic) did execute the rent (sic) favour of the landlord. Moreover, it is not at all difficult for a party to procure oral evidence which, in my view, cannot be looked at in view of the documentary evidence to which reference has been made above. The depositions of respondents'' witnesses about carrying on cloth business by respondent No. 1 is irrelevant as regards appreciation of rent notes Exhibits A.1 to A.3 are concerned. Once it is held that Section 91 and 92 of Indian Evidence Act are bar to the production of (sic) evidence, as has been held by this Court in Ram Chandra''s case (supra), the reference to any other evidence is meaningless. Moreover the factum of another business of Sona Ram is no bar for him to take another premises on rent. The stand of respondent in that it was only in order to ensure payment of rent, is apparently wrong because such an arrangement in that situation could be made by execution of more documents in writing (sic) the payment of rent.

Of course, it s true, that normally this court while exercising revisional jurisdiction would not ordinarily interfere with the findings of fact. However, no such general proposition can be laid down. The scope of revisional jurisdiction u/s 15 of the Act is much larger as compared to the scope u/s 115 of the Civil Procedure Code. It has been held in Mrs. Mohini Suraj Bhan v. Vinod Kumar Mittal 1986 (2) R.C.R. 30, that the powers of the High Court u/s 15(5) of the Act are wide and not confined merely to examining the legality of the orders of the authorities below nor are those powers akin to the power of the High Court u/s 115 of the Code of Civil Procedure. The apex court was dealing with Section 15(5) of the East Punjab Urban Rent Restriction Act, the wording of which is similar to the wording of the Act I am dealing with. u/s 15(6) of the Act, the High Court has been empowered to satisfy itself as to the legality or propriety of the order under challenge and can pass such order as it may deem fit. Therefore, in view of the dictum of law laid down by the Hon''ble Supreme Court, it cannot be legally maintained that the High Court under no circumstance can interfere with the finding of fact.

The contention of Shri H.L. Sarin, Senior, Advocate, learned counsel for the respondents that Exhibit A.6 is inadmissible is meritless. In case of Jagan Nath''s (supra) a particular figure given under colum of ''occupier'' was held not to be capable of interpretation that the relationship of landlord and tenant existed between the parties, although it was clearly observed that it could certainly be made out that a particular person was the owner in view of the entry while the other person was occupying a portion of the house. In other words, this Court held that by reading the entries of the assessment register maintained by the Municipal Committee a finding regarding relationship of landlord and tenant carrot be recorded but at the same time no embargo was put on the power of the Court to record a finding as to who was the owner of the property and who was the actual occupier. The following observations of this Court in Jagan Nath''s case (supra) are quite clear in this respect which only mean that the court after reading the relevant entry in the reported case could not record a finding about the existence of relationship of landlord and tenant hut at the same the ratio seems to be that the entry can be relied upon to the extent it records the occupation of the property by a particular person:--

The contents of the assessment register (Exhibit P. 1) maintained by the Municipal Committee, Jullundur for the period 1965 to 1970 deserve careful scrutiny. The relevant, column (sic) 5 which is headed. "Name of the person in possession with his parentage, caste and place of residence, if he is a person different from the owner". In this column appears the following entry:-

Jagan Nath 40/- 2 R plus K.

Avtar Singh 30-2 R plus Shed 70/.

The learned Appellate Authority read this entry as meaning that Jagan Nath respondent was occupying 2 rooms and a kitchen as a tenant at Rs. 40/- permonth while Avtar Singh Rs. 30/- per month and that the total rent payable in the petitioner (who is of course shown to be the owner of the premises being house No. WD (sic)) was Rs. 70/- per month. I am afraid this conclusion cannot be drawn from the entry. The official who prepared it had to mention the name and the description of the person in possession and was no part of his duty to specify the capacity of the occupant or the condition on which he held the premises. The figures "40" and "30" are, therefore, not capable of interpretation that they represented the rates of monthly rent respectively payable by the occupants in question. On the other hand, the figures may well have represented the estimated annual letting value of various portions and such value may or may not have any relation to the rent payable if at all any such rent was being paid. From the entry in the assessment register, therefore, it cannot be concluded that any relationship of landlord and tenant existed between the parties (although it can certainly be made out that the petitioner was the owner of house No. WD 156 while the respondent was occupying a portion of it). The finding arrived at by the learned Appellate Authority to the contrary is reversed.

Above mentioned observation rather supports the argument forwarded by the petitioner''s counsel that Exhibit A.6 so far it records Sona Ram as occupier of the demised premises can be looked into The finding is erroneous and I hold it to be so, in view, thereof, I am of the considered opinion that such like entry as Exhibit A.6 evidencing the occupation of person is admissible in evidence and can safely be relied upon to prove the factum of occupation of a particular person. Exhibit A.6, therefore, proves that Sona Ram was occupying the premises between 1959 to 1964.

As a consequence of the entire discussion, I am of the firm view that respondent No.1 after taking the premises in dispute on rent and after executing as many as three rent notes has either sublet the demised premises to respondent No.2 or in any case transferred his right under the lease to respondent No.2 within the meaning and ambit of section 13(2)(ii)(a) of the Act.

In view of my afore-mentioned observation, the revision petition merits acceptance, the orders of the authorities below are, therefore, set aside and the application of the petitioner for eviction of the respondents is allowed. The respondents are allowed three months'' time to vacate the premises. In view of peculiar facts and circumstances of the case, the parties are left to bear their own costs throughout.