Yad Ram vs Jai Dayal

N.K. Kapoor, J.—This is tenant''s revision petition against the order of the appellate authority ordering his eviction from the premises in dispute.

The landlord sought eviction of the tenant petitioner on the ground of non payment of rent; that he has ceased to occupy the disputed shop for a period of more than 4 months during the last two years without any sufficient reason and that he has caused damage to the disputed shop and tin shed due to which the value and utility of the disputed shop has been diminished.

Pursuant to the notice issued, tenant put in appearance and filed reply controverting the claim of the landlord on various grounds. The tenant denied that he has ceased to occupy the disputed shop continuously for a period of more than 4 months during the last two years or that he has caused any damage to the disputed shop as alleged. As regards the arrears of rent, the same was tendered along with interest and costs which has already been accepted by the landlord.

On the pleadings of the parties, following issues were framed:-

Whether the respondent is liable to be ejected from the demised premises on the grounds as mentioned in the petition ?

Relief.

The Rent Controller came to the conclusion that the landlord has failed to prove that the tenant has ceased to occupy the disputed shop for a period of four months without any sufficient reason. Similarly, the Rent Controller came to the conclusion that there is no proof on record that the tenant has caused damage to the shop in dispute from inside and outside and so impaired its value and utility. Resultantly, the application was dismissed by the Rent Controller vide order dated 28.4.1989.

The appellate authority once again examined the matter in all its details. Relying upon the statement of AW2 Heera Ram and report of the Local Commissioner AW3 Sh. Sunil Rao, Advocate, as well as taking support from the statement of Hardwari, one of the witnesses examined by the tenant, the appellate authority came to the conclusion that the premises remained locked for a period exceeding four months and so decided this issue in favour of the landlord. Since no arguments were addressed by the counsel for the parties with regard to finding of the Rent Controller regarding impairment of value and utility of the premises in question, the finding of the Rent Controller was consequently affirmed in this regard. The appellate authority in view of its finding that the tenant has ceased to occupy the shop in dispute for a period exceeding four months, ordered eviction of the tenant.

Learned counsel for the petitioner states that the order of the appellate authority per se is illegal, arbitrary and so unsustainable in law. According to the learned counsel, the appellate authority has erred in law in setting aside the well considered order of the Rent Controller and that too for no cogent reasons. According to the counsel, the appellate authority erred in law in relying upon the report of the Local Commissioner for ordering eviction of the petitioner. Similarly, the appellate authority placed undue reliance on the non consumption of electricity during the same period. Had the appellate authority kept in view the nature of the business of the petitioner and also the fact that his wife had been suffering from tuberculosis which invariably impelled the petitioner to close his business so as to take care of her ailment has been simply glossed over or side-tracked. Even otherwise, it was for the landlord to prove beyond any manner of doubt that the disputed premises had remained locked i.e. not being put to use for a period exceeding four months at a stretch. This precisely is the requirement of Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short ''the Act'') and in the instant case this clinching evidence is lacking.

Supporting the order of eviction passed by the appellate authority, counsel for the respondent read in extenso the report of the Local Commissioner, statement of Hira Lal as well as statement of Hardwari Lal and urged that the conclusion arrived at by the appellate authority is perfectly legal and just in the circumstances of the case. Referring to the statement of Mr. Sunil Rao, AW3, the counsel urged that the Local Commissioner visited the spot on two occasions i.e. on 13.1.1984 without issuing any notice to the respondent and on which it was found that the shop was locked and the main door was completely covered with dust thereby giving unmistakable look of not having touched since long. Thereafter the Local Commissioner visited the spot on 23.1.1984 after serving notice upon the parties. On this date the shop was open. The Local Commissioner found at the spot that the walls had been just white-washed as these were damp giving an indication that white wash had been done a day or the earlier to the date of inspection. Referring to the statement of Hardwari Lal, one of the witnesses examined by the tenant, the counsel highlighted the fact that the witness has admitted that the shop has remained closed from 1982 to 1984. According to the counsel, this witness has supported the version set up by the landlord. Referring to the statement of AW1 Bhagwan Singh, an employee of the Haryana State Electricity Board, who deposed that the supply of electricity was disconnected way back on March 5, 1981 on account of no payment of outstanding dues and the meter too was removed in the month of April, 1981 gives credence to the version of the landlord that the tenant had ceased to make use of the property in dispute for a pretty long time i.e. not more than the statutory period.

Having heard learned counsel for the parties and after going through the order of the Rent Controller as well as the appellate authority and on perusal of the report of the Local Commissioner and statements of during their submission, I am of the view that the petition deserves to be dismissed. It is the case of the landlord that the tenant ceased to occupy the disputed shop continuously for a period of more than four months during the last two years. To prove it, the landlord examined Bhagwan Singh, AW1, a functionary of the Haryana State Electricity Board, who deposed that supply of the electricity was disconnected on March 5, 1981 on account of non payment of outstanding dues. Hira Lal, a resident of the locality, was examined to support the plea of the landlord that the shop in dispute had remained closed for many years. To give support to this version, the petitioner in all fairness sought help of the Court for appointment of the Local Commissioner and pursuance to the direction of the Court one Mr. Sunil Rao, Advocate, visited the premises in dispute on two separate occasions. On the first date i.e. on 13.1.1984 he visited the spot without issuing any notice to the tenant and the Local Commissioner found as a fact that the shop was locked and the main door was completely covered with dust. On his next visit, he found that the shop has been opened and freshly white-washed. Mr. Sunil Rao, Advocate, appeared as AW3. Even if some objection is to be raised with regard to the report of the Local Commissioner, his statement on oath cannot be brushed aside. Mr. Sunil Rao has deposed that the shop was found locked on 13.1.1984 and a look at the main door gave an impression that the same remained closed for a pretty long time. The appellate authority while reversing the finding of the Rent Controller has rightly highlighted this aspect of the matter. Besides this, one cannot lose sight of the fact that the electric connection of the disputed premises was disconnected way back in the month of April, 1981 and during all these years no steps were taken by the tenant to get the electric connection restored. This too lends to the version set up by the landlord. The solitary explanation set up by the tenant is that on account of prolonged illness of his wife, he had to close the shop at times so as to be of some assistance in her ailment. There is not prescription on record that his wife suffered from any such ailment and so till which period. His own witness Mr. Hardwari Lal admitted that the shop in dispute remained closed from 1982 to 1984. The findings recorded by the appellate authority are not vitiated in any manner.

Thus finding no merit in the revision petition, the same is dismissed. However, the petitioner is granted two months time to deliver back the vacant possession of the shop in dispute subject to his paying all the arrears of rent including the rent for the next two months within a period of 15 days.