Sunita Rani vs Subhash Chander and Others

D.V. Sehgal, J.—Sunita Rani Petitioner is the landlady qua the premises in dispute, which it a shozp, Subhash Chander Respondent No. 1 is a tenant under her She filed an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ''the Act'') alleging, inter alia, that Subhash Chander had sublet the demised premises in favour of his brother Surinder Kumar Respondent No. 2, without her written consent, and that the tenant himself had given up possession and started business as a stamp vendor The learned Rent Controller vide order dated 79th September, 1977, reached at the conclusion that subletting of the demised premises by Subhash Chander in favour of Surinder Kumar without the written consent of the Petitioner had been proved and consequently aliened the eviction application and ordered the ejectment of the Respondents from the demised shop. On appeal filed by Subhash Chander and Surinder Kumar Respondents u/s 13 of the Act, the learned District Judge, Kapurthala (exercising the powers of the Appellate Authority under the Act) set aside the finding of the Rent Controller, accepted their appeal and dismissed the eviction application of the Petitioner. Thus, the Petitioner has approached this Court through this revision petition

Having heard the learned Counsel for the parties at length, I am of the view that the learned Appellate Authority went wrong in setting aside the well considered finding of the Rent Controller. The following facts stand out clearly which go to prove subletting of the demised premises by Subhash Chander to his brother Surinder Kumar:-

(1) Till the year 1972 Subhash Chander was working on the shop The work he was carrying on was that of a tea-vendor.

(2) In the year 1972 Subhash Chander started the business of a stamp vendor in the tehsil premises at Kapurthala. It is not disputed and is rather admitted that he works as stamp vendor from 10 A M. to 4 00 P. M.

(3) Surinder Kumar started working on the shop in dispute as a tea vendor. Licenses for running the shop were applied for and obtained by Surinder Kumar in the year 1973-74, 1974-75 and 1975-76 It was only after the application for eviction *as filed on August 12, 1976, and Subhash Chander got notice of it, that he applied for license in respect of the shop in his favour on November 3, 1976. This leaves no doubt for the fact that it was Surinder Kumar who was carrying on the business as tea-vendor on the shop.

(4) Subhash Chander has one sou and three daughters, Surinder Kumar has two sons and a daughter. Both of them are living in separate houses

(5) la view of the above facts, the contention of Subhash Chander that Surinder Kumar was only helping him in the carrying on of the business as a tea vendor cannot be believed

The view taken by the learned Appellate Authority that the onus was on the Petitioner-landlady to prove that Subhash Chander had given up the possession of the demised premises and had sublet the same to Surinder Kumar, which onus, according to the Appellate Authority, the Petitioner could not discharge does not take into account the above circumstances. The moment the facts stated above are taken into account, it becomes clear that Subhash Chander had parted with possession of the shop in favour of Surinder Kumar. When the parting of possession is proved, the onus would shift on Subhash Chander to establish how Surinder Kumar was in possession of the shop. No. evidence in this regard has been produced. The mere ipse dixit of Subhash Chander that after 4 p.m. he had been working on the shop where Surinder Kumar was helping him is of no avail, Surinder Kumar was clearly conducting the business as tea vendor of his own and secured licenses for this business from the Municipal Committee for three years. Surinder Kumar did not choose to appear before the Rent Controller and was proceeded against exparte He was not produced in the witness box even by Subhash Chander, so as to shew in what circumstances Surinder Kumar was occupying the same. Thus, in my view Subhash Chander failed to discharge the onus which shifted on him on proof of the fact that Surinder Kumar was in occupation of the shop.

Consequently, this revision petition is allowed the judgment of the Appellate Authority dated August 26, 1978, is set aside and the order of the Rent Controller dated September 29, 1977 is restored. The tenant-Respondent is directed to vacate the shop and to hand over the vacant possession of the same to the Petitioner He is, however, allowed three months'' time to comply with this order, en the condition that he shall either pay to the Petitioner or deposit in the Court of the Rent Controller the entire amount of arrears of rent including the rent for the period of three months, within one month from today, failing which the Petitioner shall be at liberty to execute the order of ejectment and take possession of the premises. There shall be no order as to costs.