Smt. Uma Gupta and another vs Justice Tek Chand and others

J.V. Gupta, J.—This is tenant''s petition against whom ejectment application was dismissed by the Rent Controller but eviction order was passed in appeal.

The landlords sought ejectment of their tenant Smt. Uma Gupta who got the premises on rent vide rent note dated 15.2.1968, exhibit A2, on monthly rent of Rs. 65/-. The ejectment was sought inter alia on the ground that the tenant has sublet the premises in question to Ved Parkash Respondent No. 2 in the ejectment application, without their written consent. The stand taken by the tenant in her written statement was that Ved Parkash Respondent No. 2 was the brother of her husband and they are members of the joint Hindu family and as such are living together in the demised premises since the very inception of the tenancy and this fact is in the knowledge of the landlords Therefore, they are legally estopped by their own act and conduct to file the petition.

The learned Rent Controller found that the landlords have failed to prove the ground of subletting as alleged In view of that finding the ejectment application was dismissed vide order dated 30.4.1986. However, in appeal, the learned Appellate Authority reversed the said finding of the Rent Controller and came to the conclusion that the tenant Smt. Uma Gupta has sub let the premises in dispute to Ved Parkash Respondent No. 2 without the written consent of the landlords. The plea of the tenant that the property was rented out to the joint Hindu family was negatived with the observations that "in the present case admittedly the property was not let out to the joint Hindu family and there is nothing on the record that Respondent No. 1 had taken written consent of the land lords of subletting the property to Ved Parkash."

4 The learned Counsel for the tenant-Petitioners submitted that the whole approach of the learned Appellate Authority was wrong and illegal. The view taken by the Rent Controller was perfectly valid. He particularly referred to Exhibit D1, dated 12.2.1968 a letter written on behalf of the landlords to the Sub Divisional Officer, Haryana State Electricity Board, permitting reconnection of the electricity in the name of Ved Parkash and Exhibit D2 of the same date, by which connection was restored to Ved Parkash. to contend that Ved Parkash has been living in the demised premises from the very inception of tenancy and, therefore, could not be held to be a sub-tenant. Moreover, argued the learned Counsel, the rent note Exhibit A2 was a mere paper transaction. The house was rented out to the joint Hindu family and, therefore, the finding of Appellate Authority is wrong and illegal. He also pointed out that when the tenant Smt. Uma Gupta appeared in the witness-box as R.W. 1, no question was put to her that where she was living at present. According to the learned Counsel, there was no evidence to show that Smt. Uma Gupta was not in occupation of the demised premises.

On the other hand, the learned Counsel for the Respondent-landlords submitted that the view taken by the Appellate Authority was perfectly legal and their is no illegality or impropriety therein as to be interfered with in the revisional jurisdiction. The facts and circumstances taken into consideration by the Appellate Authority, to come to the conclusion that the demised premises were never let out to the joint Hindu family as pleaded by the tenant, was based on evidence and since the tenant Smt. Uma Gupta was no more in occupation of the demised premises, it has been rightly held that she has sublet the premises to Ved Parkash Respondent No. 2. The mere fact that Ved Parkash happens to be the brother of her husband was rot relevant particularly when Ved Parkash has his own house at Ambala, which according to the statement of Smt. Uma Gupta was being occupied by his younger brother. According to the learned Counsel, it is a pure finding of fact based on evidence and, therefore, this Court should not interfere in the same. In this behaf, he referred to Siri Ram v. Air Com. Mahabir Chand 1981 (2) R.G.J. 445.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on record. The stand taken by the learned Counsel for the Petitioners in this Court that Ved Parkash has been living even prior to the execution of the rent note was never the case pleaded Not only that even Ved Parkash while appearing in the witness-box as R.W. 2 never stated that he was in occupation of the demised premises even prior to the execution of the rent note. The stand taken in the written statement by both Ved Parkash and Uma Gupta was that "as a matter of fact the husband of Respondent No. 1 and Respondent No. 2 are real brothers. They are the members of the Joint Hindu Family and all of them have been living together in the property in dispute as members of the Joint Hindu Family, since the inception of the tenancy." This they have failed to prove by any cogent evidence. Even the learned Counsel for the Petitioners did not challenge the finding of the Appellate Authority that the house was not rented out to the joint Hindu family. The learned Appellate Authority has discussed the entire evidence in detail and has given a categorical finding that "it has been specifically stated by Babu Ram P W. 1 that Uma Gupta has started living with her husband at Chandigarh and this fact remains unrebutted as no suggestion to this effect has been put to him in cross-examination. The Respondent Uma Gupta has not produced any documentary evidence to prove that she is living in the demised premises as she has not produced any documentary evidence to prove that she is Jiving in the demised premises, as she has not produced any correspondence received by her at the demised premises or the ration card or the electric bills etc. to prove that she is living in the demised premises." It has been further found that "another circumstance which shows that Ved Parkash has been put in exclusive possession of the property is the extract from the house tax Register of the Municipal Committee Exhibit AW2/A wherein the column of occupier the names of Ved Parkash and Bhupinder Singh have been mentioned and the name of Uma Gupta does not find mention". Apart from that there was also no plea of the tenants in the written statement that subletting of Ved Parkash is with the consent of the landlords. It was, therefore, held that the property was never rented to joint Hindu family as pleaded by the tenant in her written statement.

The argument raised on behalf of the Petitioners that the rent note was a mere paper transaction and it was executed only because Uma Gupta was in service was never the case set up by her anywhere neither in her written statement nor she had stated so while appearing in the witness-box. That being so, the Petitioners cannot be allowed to set up a plea for the first time in this Court, which case was never pleaded anywhere earlier.

Since there is no illegality or impropriety in the finding of the learned Appellate Authority, no interference is called for in the revisional jurisdiction. Consequently, this petition fails and is dismissed with costs. However, the Petitioners are allowed three months time to vacate the demised premises provided all the arrears of rent, if any, with advance rent of three months is deposited with the Rent Controller within one month, with a further undertaking in writing that after the expiry of the said period vacant possession will be handed over to the landlords.