Civil Revision No.5221 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5221 of 2007 Date of Decision:06.11.2009 Yash Kumari Trikha .....Petitioner versus Arun Kumar .....Respondent CORAM: Hon'ble Mr.Justice Mehinder Singh Sullar. Present: Mr.Arun Jain, Senior Advocate, with Mr.Amit Jain, Advocate, for the petitioner. Mr.Kanwaljit Singh, Senior Advocate, with Mr.Ajay Singla, Advocate, for the respondent. **** Mehinder Singh Sullar, J. 1. The facts barely needed, relevant for disposal, of the present revision petition filed by Yash Kumari Tarikha widow of petitioner-Shiv Charan Dass-landlord (hereinafter to be referred as the landlord), are that the original landlord-Shiv Charan Dass (since deceased) filed an ejectment petition against respondent-Arun Kumar son of Amir Chand-tenant (hereinafter to be referred as the tenant) from the demised premises, invoking the provisions of Section 13 of the East Punjab Rent Restriction Act, 1949 (hereinafter to be referred as “the Act”), inter alia, pleading that the tenant took the demised premises at a monthly rent of Rs.250/- for showroom, printing press material and wedding cards. It was oral tenancy and no rent deed was executed but the tenant was in arrears of rent with effect from 01.04.1992 till the filing of the petition. According to the landlord, the tenant has ceased to occupy the demised shop for a Civil Revision No.5221 of 2007 2 continuous period of more than four months without any sufficient cause. He has shifted his business and showroom at Shaheed Bhagat Singh Market, near Bus Stand, Amritsar and the demised premises is lying closed and locked materially impairing its value and utility. 2. Leveling a variety of allegations in all, according to the landlord, the tenant has ceased to occupy the demised shop for the last more than four months and, thus, impaired its value and utility. On the basis of the aforesaid allegations, the landlord filed the ejectment petition against the tenant in the manner indicated hereinabove. 3. The tenant contested the ejectment petition and filed the written statement, inter alia, pleading certain preliminary objections of maintainability of the petition as the landlord has not complied with the mandatory provisions of the Act/Rules. 4. On merits, the case set-up by the tenant in brief, insofar as relevant, was that he has taken the premises as a showroom and office as he is running printing press for which the premises is used as front office. In fact, the tenant is running printing press along with other machinery which he has installed in a separate premises as the landlord did not permit him to instal the same in the shop in question. For this reason, the tenant is running business of procuring the orders and delivering the goods in the premises in dispute for facilitation of his business. As he is very actively using the shop in dispute for his business, therefore, the question of its impairing the value and utility did not arise at all. It will not be out of place to mention here that the tenant has stoutly denied all other allegations contained in the ejectment petition and prayed for its dismissal. 5. Controverting the allegations contained in the written statement and reiterating the grounds of ejectment of his petition, the landlord filed the replication. Civil Revision No.5221 of 2007 3 6. In the wake of pleadings of the parties, the Rent Controller framed the following issues for adjudication:- “1. Whether the respondent is liable to be ejected on grounds mentioned in the application?OPA 2. Whether the application is not maintainable?OPR 3. Relief”. 7. The parties produced oral as well as the documentary evidence in order to substantiate their respective pleaded cases. The Rent Controller dismissed the ejectment petition vide order dated 27.05.2003. It will not be out of place to mention here that during the pendency of the appeal, original landlord-Shiv Charan Dass died and the present landlady was substituted in his place. However, the appellate authority dismissed his appeal as well vide impugned order dated 27.07.2007. 8. Having lost the battle in both the courts below, the landlady has filed the present revision petition. That is how I am seized of the matter. 9. At the very outset, it may be added here that as the tenant had already paid/tendered the rent, therefore, it is the conceded position at the bar that only second ground, that the tenant ceases to occupy impairing the value and utility of the premises, survives for adjudication in this petition. 10. After hearing the learned counsel for the parties, after going through the evidence on record with their valuable help and after considering the matter deeply, to me, as there is no merit, therefore, the revision petition deserves to be dismissed for the reasons mentioned herein below. 11. As mentioned above, both the courts below recorded a finding of fact based on the evidence that the landlord failed to prove that the tenant has ceased to occupy which has impaired the value and utility of the shop in question. Civil Revision No.5221 of 2007 4 12. However, the solitary argument of the learned counsel for the landlady that as it stands proved on record that the tenant has ceased to occupy the shop as he has started business in other place, therefore, he (tenant) is liable to be evicted, is neither tenable nor the observation of Hon'ble the Apex Court in a case titled as Ram Dass Versus Davinder, 2004(1) HRR 619 and of this Court in Virender Singh Versus Mahabir Singh, 2005(2) RCR 534, Varun Gupta and Others Versus Shree Sanatan Dharam Sabha, 2006(2) RCR 363, Karam Nath Versus Gurbux Singh Juneja (dead) through his LRs, 2008(1) RCR 319 and of Hon'ble Kerala High Court in a case titled as Simon and Others Versus Rappai, 2008(2) RCR 130, are at all applicable to the facts of the present case. 13. Hon'ble the Apex Court in para 7 of Ram Dass's case(supra) has observed as follows:- “That the tenant is expected to make useful use of the property and subject the tenancy premises to any permissible and useful activity by actually being there. To the landlords plea of the tenant having ceased to occupy the premises it is no answer that the tenant has a right to possess the tenancy premises and he has continued in juridical possession thereof. The Act protects the tenants from eviction and enacts specifically the grounds on the availability whereof the tenant may be directed to be evicted. It is for the landlord to make out a ground for eviction. The burden of proof lies on him. However, the onus remains shifting. Once the landlord has been able to show that the tenancy premises were not being used for the purpose for which they were let out and the tenant has discontinued such activities in the tenancy premises as would have Civil Revision No.5221 of 2007 5 required the tenants actually being in the premises, the ground for eviction is made out. The availability of a reasonable cause for ceasing to occupy the premises would obviously be within the knowledge and, at times, within the exclusive knowledge of tenant. Once the premises have been shown by evidence to be not in occupation of the tenant, the pleading of the landlord that such non-user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises”. 14. The observations in Virender Singh, Varun Gupta, Karam Nath and Simon 's cases(supra) are also to that effect. 15. Possibly, no one can dispute about the aforesaid observations but the same would not come to the rescue of the landlord because he filed the petition under Section 13(v) of the Act which postulates that where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, the Rent Controller has the jurisdiction to eject him. Meaning thereby, a heavy burden of proof was on the landlord to prove that the tenant has actually ceased to occupy the building for a continuous period of four months without reasonable cause. 16. Having regard to the rival contentions of the learned counsel for the parties, to my mind, the landlord has utterly failed to prove this ground of ejectment that the tenant has ceased to occupy the premises without any reasonable cause. 17. Inviting the attention to the statement of AW2-Rajneesh, Clerk, PSEB, the vehement argument of the learned counsel for the landlord that since the tenant has obtained the electric connection on 12.03.1998 so it Civil Revision No.5221 of 2007 6 should be presumed that he ceased to occupy the shop prior to it, has again no force. Because, to me, the fact of obtaining an electric connection by the tenant in the disputed shop ipso facto is not sufficient to assume that he has ceased to occupy the premises. Sequelly, non- production of account-books, bills and list of employees would not disentitle the tenant in this regard in view of the law laid down by this Court in the case of Geeta Bhalla and Others Versus Krishan Kumar (dead) thorugh LRs, 2006(2) RCR(Rent) 379. This judgment is complete answer to the problem in hand, particularly when there is a positive evidence on record which has rightly been believed by the courts below that the tenant is still using the premises in dispute, as such, for which it was rented out to him. The original landlord-Shiv Charan Dass while appearing as AW4 has stated that the shop was let out to the tenant orally with effect from 01.11.1987. However, the terms and conditions were settled orally and later on scribed on the rent note dated 17.11.1987, copy of which is exhibited as AW3/1. It was let out to the tenant for showroom, printing press material and wedding cards etc. and after the inception of tenancy, the tenant opened the shop very rarely and after December 1992, completely closed the shop and shifted his business in other market. But, to me, no implicit reliance can be placed on his statement because the landlord has himself produced one Narinder Pal Sharma son of Sat Pal Sharma-AW3, who has maintained that the terms and conditions of the tenancy were settled in his presence which were scribed on rent note on 17.11.1987. It bears his signatures. Moreover, AW3 has categorically admitted that the shop remained closed earlier now the tenant visits the shop some time in the morning and evening . In his cross-examination, he has categorically admitted that since 1990, the tenant was running the shop till today and from the period 1990 to till date. The tenant is opening the shop which was not closed after 1990. In other words, the witness Civil Revision No.5221 of 2007 7 examined by the landlord instead of supporting, has totally demolished his case in this connection and maintained that the tenant is using the shop. 18. Not only that the tenant has filed his affidavit (Exhibit R1) while appearing as his own witness as RW1 which is to the effect that he is running business in the demised shop and it never remained closed, he has also examined RW2-Jeewan Parbhat and RW3-Satpal. The tenant has also examined his father Amir Chand-RW4, who has filed his affidavit (Exhibit RZ/1), conveyance deed (Exhibit RW4/2), site plan (Exhibit RW4/1), copy of form 'F' (Exhibit RW4/3), bill and receipt of house-tax (Exhibit RW4/5), bill of water consumption and electricity consumption (Exhibits RW4/6 and RW4/8) respectively. All these witnesses have corroborated the statement of the tenant on all vital counts. The tenant has duly explained that since the landlord did not permit him to instal the machinery/printing press in the demised premises, so he has to instal it in some portion in the Bhagat Singh Market. He reiterated that he is actively using the demised premises for taking the orders and delivery of greetings and the wedding cards etc. 19. Thus, it would be seen that if the entire oral as well as the documentary evidence brought on record by the parties as discussed hereinabove, is put together, then to me, a conclusion is inescapable that the landlord has miserably failed to prove that the tenant has ceased to occupy which has impaired the value and utility of the shop in question. It is also proved on record that the tenant is using the demised premises for the same purpose for which it was let out to him. 20. Moreover, in the wake of appraisal and appreciation of oral as well as the documentary evidence brought on record by the parties, the Rent Controller as well as the appellate authority have recorded a finding of fact to that effect and have rightly dismissed the ejectment petition of the landlord. Hence, the contrary arguments of the learned counsel for the Civil Revision No.5221 of 2007 8 landlord 'stricto-sensu' deserve to be and are hereby repelled. No fault could be pointed out in the impugned orders by the learned counsel for the landlord and such orders cannot possible be set aside while exercising the revisional jurisdiction by this Court. It is neigh well settled that this Court cannot appreciate or re-appreciate the evidence dictated by mere inclination to take a different view of the facts. It is not the province of this Court to dislodge the concurrent findings recorded by the courts below unless the same are perverse and without jurisdiction. No such irregularity or patent illegality has been pointed out by the learned counsel for the landlord. Therefore, the impugned orders deserve to be and are hereby affirmed in the obtaining circumstances of the case. 21. No other point worth consideration has been urged or pressed by the learned counsel for the parties. 22. In the light of aforesaid reasons, as there is no merit, therefore, the revision petition is hereby dismissed with no order as to costs. November 06, 2009 ( Mehinder Singh Sullar) seema Judge