Shrimati Shanti Devi vs Sh. Om parkash and others

J.V. Gupta, J.—This is landlady''s revision petition whose ejectment application has been dismissed by both the authorities below.

The landlady Shrimati Shanti Devi sought the ejectment of the tenant Om Parkash from the shop, in dispute, on the grounds of nonpayment of arrears of rent and subletting to Sajjan Kumar and M/s Prehlad Rai Raj Kumar, Respondent Nos. 2 and 3. According to the landlady, the shop, in dispute, was let out to Om Parkash in the year 1957 on a monthly rent of Rs. 28/- for selling utensils. Later on, in the year 1958, the rent was increased to Rs. 455/-per annum. The tenant was doing his business therein in the name and style of M/s Mahavir Parsad Bishanu Datt and was the sole proprietor thereof. Since the husband of the landlady was living outside on account of his service, on his retirement when he came back to Hissar, he found that the premises were in occupation of Sajjan Kumar and M/s Prehlad Rai Raj Kumar and that the tenant Om Parkash was no no more in occupation of the premises. The ejectment application was filed on March 5, 1973. Om Parkash, tenant, was proceeded ex parte. The ejectment application was contested by Sajjan Kumar and M/s Prehlad Rai Raj Kumar It was pleaded by them that though the premises were let out to Om Parkash initially, but later on, he left and that the same were let out to them on October 1, 1958. Since then they were in occupation of the same as tenants directly under the landlady. Arrears of rent were tendered on the first date of hearing by the alleged sub tenants, but were not accepted by the landlady. The main question before the Rent Controller was as to whether Respondents Nos. 2 and 3 were the direct tenants under the landlady or not. The Rent Controller (who was the Sub-Divisional Officer, Hissar, then), came to the conclusion that the landlady had failed to prove the allegations of sub-letting. Consequently, the ejectment application was dismissed. In appeal, the Appellate Authority, (the Collector, Hissar, at that time), affirmed the said finding of the Rent Controller. Dissatisfied with the same, the landlady filed the revision petition before the Financial Commissioner, Haryana. It was later on transferred to this Court in view of the amendment to the Haryana Urban (Control of Rent and Eviction) Act, 1973, by the Haryana Act No. 16 of 1978.

The learned Counsel for the Petitioner contended that it was the common case of the parties that the premises were let out to Om Parkash initially. According to Sajjan Kumar, later on, the premises were given to him on rent directly after Om Parkash had left in the year 1958. According to the learned Counsel, according to Sajjan Kumar, he was carrying on the business in the same name, i.e. Mahavir Parsad Bishanu Datt, but later on, in the year 1967-68, he started doing the business in the name of Sajjan Kumar Bishanu Datt, but the rent was never paid by Sajjan Kumar as such. It was always being paid in the name of Mahavir Parsad Bishanu Datt under which name the original tenant Om Parkash was doing his business. Thus, argued the learned Counsel, on the facts admitted, the subletting was proved from the statement of Sajjan Kumar who had appeared as R.W.5. According the learned Counsel, without disclosing the identity, if the rent was being paid by Sajjan Kumar, he did not become the direct tenant under the landlady. In support of the contention, the learned Counsel relied upon M/s Bhalle Singh Subhash Chand v. Ravi Dutt 1985 HRR 467. On the other hand, the learned Counsel for the tenant submitted that on the appreciation of the entire evidence, it has been concurrently found that there was no subletting and, therefore, it being a finding of fact could not be interfered with in the exercise of the revisional jurisdiction. Moreover, argued the learned Counsel, there was no evidence that Om Parkash had sublet the premises for valuable consideration. Reliance in this behalf was placed by the learned Counsel on Krishnawati v. Hans Raj A. I. R. 1974 S. C. 28.

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I am of the considered opinion that the whole approach of the authorities below was wrong, illegal and misconceived.

From the facts admitted, it is quite evident that the subletting was amply proved on the record. Admittedly, the premises were let out initially to Om Parkash who was no more in occupation thereof. According to Sajjan Kumar in the year 1958 when the rent was also enhanced, he got the premises directly from the landlady but in spite of that, it is quite surprising, there is not a single receipt for the payment of rent in his own name. Up to the year 1972, the rent was being paid in the name of Mahavir Parshad Bishanu Datt. It was the name under which Om Parkash, tenant, was doing his business. It means that Sajjan Kumar carried on the business in the same name and went on paying the rent in the said name. Not only that, it is in the statement of Sajjan Kumar himself that in the year 1967 68, he started doing the business in the name of M/s Sajjan Kumar Bishanu Datt. If Sajjan Kumar was a direct tenant under the landlady, as claimed by him, then at least, from that date, the rent should have been paid by him in the name of Sajjan Kumar Bishanu Datt. Even after that, the rent was being paid in the name of Mahavir Parshad Bishanu Datt, as is evident from the receipts, Exhibits R. 10 to R. 21. The receipt, Exhibit, R. 10 is dated September 28, 1968, whereas the receipt, Exhibit R. 21 is dated July 19, 1972. All these receipts are in the name of Mahavir Parsad Bishnu Datt. Bartanwale, Hissar. It is, therefore, quite evident that the landlady never accepted Sajjan Kumar as her tenant. Sajjan Kumar never disclosed his identity while paying the rent and, therefore, under the circumstances, he could not claim himself to be a direct tenant under her. It appears that the tenant Om Parkash left the country in the year 1958 and handed over possession to Sajjan Kumar who carried on the business earlier in the name of Mahavir Parsad Bishnu Datt and went on paying the rent in the same name as was being paid by Om Parkash. Later on, though he changed the firm''s name to Sajjan Kumar Bishnu Datt yet the rent was being paid in the earlier name. Thus, from the facts and circumstances as brought on the record, the only conclusion possible is that the premises were let out to Om Parkash who, without the written consent of the landlady, handed over the possession to Sajjan Kumar and Prehlad Rai Raj Kumar who went on paying the rent in the name of Mahavir Parshad Bishnu Datt which was under the sole proprietorship of Om Parkash, tenant.

Consequently, this revision petition succeeds and is allowed. The impugned orders are set aside and the eviction order is passed against the Respondents. However, they are allowed three months'' time to vacate the premises: provided all the arrears of rent, if any, are paid within one month from today along with an undertaking, in writing before the Rent Controller that after the expiry of the said period, the premises would be vacated and the vacant possession thereof would be handed over to the landlady and future rent will be paid regularly in advance by the tenth of every month.