Shri Tarsem Lal and Another vs Smt. Bimla Gupta

V.S. Aggarwal, J.—The present revision petition has been filed by Tarsem Lal and another directed against the judgment of the learned Appellate Authority dated 13.9.1990. By virtue of the impugned judgment, learned Appellate Authority had ordered ejectment of the petitioners from the suit premises.

Relevant facts are that Smt. Bimla Gupta is the landlord of the property in question. She had filed an application for eviction seeking ejectment of the petitioner from the suit premises. It was alleged that the suit premises had been taken on rent by Tarsem Lai, petitioner No. 1, in September, 1972. Regarding it a rent note was executed on 7.12.1972. Tarsem Lal had sublet the flat portion to petitioner No. 2 M/s Noor. Tailoring about three years before the filing of petition for a valuable consideration and without the written consent of respondent-landlady. There were other grounds taken for eviction but they do not survive for consideration.

The ground of eviction that the property in dispute had been sublet by petitioner No. 1 to petitioner No. 2 had been contested. Both the petitioners had filed a joint written statement. It was not disputed that Tarsem Lal was the tenant of the respondent-landlady. It was also not disputed that petitioner No. 1 has taken the demised premises in September, 1972 but the claim set up was that petitioner No. 1 has sublet the flat portion on 1.10.1972. Since then petitioner No. 2 was stated to be in occupation of that property. The husband of the respondent-landlady had been visiting the said property and knew the presence of petitioner No. 2. The ground of eviction was alleged to be not available.

Learned Rent Controller framed the issues and held on appraisal of evidence that petitioner No. 2 had been sublet the property w.e.f. 1.10.1972. The respondent preferred an appeal. Learned Appellate Authority reversed the findings of the learned Rent Controller and held that the property had been sublet after the execution of the rent note and after the provisions of the Act were made applicable to the Union Territory of Chandigarh. The ground of eviction was, therefore, available and order of eviction was passed. Aggrieved by the same, present revision petition has been filed.

Some of the admitted facts can conveniently be relisted. The provisions of the East Punjab Urban Rent Restriction Act, 1949, had been made applicable to the Union Territory of Chandigarh w.e.f. 4.11.1972. It is not in controversy that if the property had been sublet before the said date then the ground of eviction that the same has been sublet would not be available to the respondent-landlady. The execution of the rent note Exhibit A-2 was also not disputed. Clause 11 of the rent note reads as under :-

"11. That the tenant shall not sublet or part with possession in whole or in part to any one whomsoever without the previous permission in writing."

Reliance on behalf of the petitioner with respect of the dispute was placed on the contention that petitioner No. 2 has been in occupation of the property before 4.11.1972 or in other words from 1.10.1972. Tarsem Lal, petitioner No. 1, had stepped into the witness-box and stated that the property in dispute had been let to Noor Mohammad w.e.f. 1.10.1972. Account books Exhibit RW6/1 to Exhibit RW 6/14 have been produced besides statement of accounts Exhibit RW 6/15 to Exhibit RW 6/31. Learned Rent Controller trial Court held that the entries are forged, In para No. 10 of the judgment, learned Rent Controller held as under :-

"The Ld. counsel for the Petitioner landlord has specifically referred to Ex.R.6/15 and has also referred to the statement of Tarsem Lal PW6, wherein he has admitted that this entry in this Ledger book from 4.10.1972 to 31.3.1973 are in the same ink. He has submitted that in these circumstances, this document is forged. He has also submitted that in the column of credit of this ledger Rs. 165/- each has been shown to have been received as rent on 4.10.72 and 11.12.1972. He has further stated that a sum of Rs. 2,260/- is shown to have been received as rent on 31.3.73. He has submitted that Tarsem Lal RW6 states that he had another tenant who was watch repairer and was paying rent at the rate of Rs. 200/- p.m. He '' has submitted that Tarsem Lal RW6 has further stated that Rs. 2,500/- which is mentioned in the column of credit of total rent up to 31.3.1973 is the rent for six months. He has submitted that Rs. 2,590/- cannot be the rent for six months received from Noor Hussain and watch repairer for the period of six months because total rent received from them, if the case of the petitioner landlord is believed, would be Rs. 2,670/-. He had submitted that in these circumstances, when total rent received till 31.3.1973 as Rs. 2,590/- and the rent received and that rent of Rs. 2,260/- received on 31.3.73 is not explained and the entries from 4.10.1972 to 31.3.1973 are made in the same ink there cannot be other conclusion but to conclude that these entries are forged. The submissions made by the Ld. counsel for the petitioner landlord appear to be correct and the entries in ledger Ex.R-6/15 appear to be fabricated on single day and the respondent tenants cannot take any benefit from the entries made in Ex.R-6''15."

Even before the Appellate Authority the said fact was so noted and evidence was ignored. In other words, it was held as a fact by both the Rent Controller and the Appellate Authority that these documents do not prove that petitioner No. 2 was in occupation before 4.11.1972 or in other words on 1.10.1972. The finding of fact is based on evidence. In revision petition, it would not be reappraised particularly when it is not erroneous or worthless. It cannot be described to be absurd. There is hesitation otherwise in accepting the said reasoning.

Some oral evidence have been examined, namely, Jagdish Singh R.3 and Noor Hussain RW2, to urge that it shows that there was sub-letting before the East Punjab Urban Rent Restriction Act was made applicable to Chandigarh. But the same necessarily deserves to be rejected because of the recital in the rent note. It clearly prescribes that the property was not to be sublet by petitioner No. 1. If there was already a sub tenant therein, such a recital would not be made in the rent note. The rent note is admitted and this rules out the possibility of there being a sub-tenant at the relevant time when rent note was executed. It outrightly falsifies the version of the petitioners.

The learned counsel for the petitioners in that event urged that in the written statement filed by them they have specifically taken the plea that the property in dispute was sub-let w.e.f. 1.10.1972. Replication was not filed and, therefore, the claim of the petitioners shall be taken to be correct. Reliance was placed on the Division Bench Judgment of this Court. In the case of Salig Ram and Another Vs. Shiv Shankar and Others, . The Division Bench simply held that replication is a part of the pleadings and anything which is specifically stated therein for the first time has to be controverted. There is no controversy with this proposition in the present case. The facts show that on the date when written statement was filed, the trial court framed issues and there was no occasion for filing of replication. It would not be proper to draw inference against the respondent that there was any admission about sub-tenant being in occupation on 1.10.1972.

Keeping in view the aforesaid, the finding of fact arrived at by the learned Appellate Authority must be affirmed that the sub-letting took place after the East Punjab Urban Rent Restriction Act, 1949, was made applicable to Chandigarh. There is no written consent of the landlady. Therefore, once it is admitted that there was a sub-tenant, it must follow that the ground of eviction was established. There is no ground to interfere in the impugned judgment.

For these reasons, the revision petition must fail and is dismissed. Petitioners are granted two month''s time to vacate the demised property.