Civil Revision No. 5428 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5428 of 2008 Date of decision: 11.5.2010 Rajesh ...Petitioner Versus Rahul Nirwania and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Rajinder Goyal, Advocate for the petitioner Mr. Harkesh Manuja, Advocate for the respondents. S.D.ANAND, J. The respondents-landlords filed a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “the Act”) to obtain the ejectment of the petitioner-tenant from the premises under his tenancy. The averment, made in the context, was that the petitioner-tenant had ceased to occupy the premises for the statutory period. The plea was negatived by the learned Rent Controller. It, however, came to be allowed by the learned Appellate Authority. In obtaining the view aforementioned, the learned Appellate Authority drew sustenance from the record-based testimony of AW-1 Brij Lal, an official of U.H.B.V.N.L. It is vehemently argued by the learned counsel for the Civil Revision No. 5428 of 2008 -2- **** petitioner that impugned finding is not sustainable in view of the fact that it is not supported by any material obtaining on the record. Reliance, placed by the learned Rent Controller upon the statement of AW-1 Brij Lal, is assailed by pointing out that the learned Rent Controller ignored the real import of the statement of that witness from consideration. The plea raised deserved to be negatived. The reasons therefor are as under:- AW-1-Brij Lal, an official in the employment of UHBVNL, categorically testified on the basis of record that the meter reader had recorded the reading as 9402 in the month of April, 1998 and the premises had been noticed in the record as locked for the period thereafter upto June, 1999. The witness did say, in the course of cross-examination, that the record ought to otherwise contain entry of expression 'L', if the premises are found by the meter reader to be locked. He also stated that the record does not contain such entry. This aspect has been appropriately dealt with by the learned Appellate Authority in the course of para 15 of the judgment which is extracted hereunder for facility of reference:- “The counsel for the appellant has argued that on the tenanted premises electrical connection remain closed since 1.1.1998 till November, 1999 without any sufficient cause. To prove this issue petitioners have examined AW-1 Brij Lal, LDC of UHBVN Department and himself Civil Revision No. 5428 of 2008 -3- **** appeared as AW-2. AW-1 Brij Lal, LDC, UHBVN Department has specifically stated that as per meter reading record, the disputed premises were lying closed as there was no reading in the electric meter since 1998 till November, 1999. The counsel for the appellant has placed reliance on the authority laid down in case Gian Devi versus Narinder Kumar Ahuja 2007(2) HRR 53 (P&H) in which it was held by our own Hon'ble High Court under section 13(2)(v) of Haryana Urban Control of (Rent and Eviction)Act, 1973 that when the premises remain closed as per report of meter reader and no electricity was consumed for period of thirteen months when shop remained closed, nor any reason was given for keeping the shop closed for a long period, hence, tenant was ordered to be evicted. Further support can also be taken from the authority laid down in case Mohinder Singhversus Surinder Kaur and others, 2007(1) HRR 298 (P&H) in which it was held that when there is no consumption of electricity proving the facts that the shop remained closed for more than four months and no reasonable explanation was given by the tenant in this regard, then tenant was held to be liable on the ground of ceased to occupy the shop in question. Further support can also be taken from another case authority laid down in case Harinder Singh versus M/s Balli Ram Sansari Lal Civil Revision No. 5428 of 2008 -4- **** 2002 (2) RCR 89 (P&H) in which it was held that non consumption of electricity by tenant, then presumption can be incurred that shop was not used and it was for the tenant to explain that the shop was used. There is no electricity consumption specially in summer season. The witness to tenant namely Topan Dass has stated that there is no electricity connection in the tenanted premises but it is admitted fact that the tenanted premises is having electricity supply. Hence, statement of Topan Dass is of no avail. Nothing has been provided to rebut trustworthy evidence of meter reader because in the reading of meter NDS/3600-P, there is writing “L” which means lock. Entry of lock is entered till June, 1999. AW-1 Brij Lal, LDC of UHBVN Department has also stated this that in the report NDS/3600-P meter it has been written “L” which means the premises are locked. In Ex. A3 in the record of meter the premises is written to be locked. In Ex. A2 there is no reading recorded in front of meter No.NDS/3600-P. Regarding consumption of electricity, there is no meter reading further Some receipts/Bills have been proved on record which are Ex.R5 to Ex.R45.” I fully concur with the line of reasoning adopted by the learned Appellate Authority. That part of the evidence is cemented by the fact that the petitioner-tenant could not produce any account books, production thereof would have enabled him to prove that Civil Revision No. 5428 of 2008 -5- **** commercial premises under his occupation were in a functional mode during that period. In the context of the above facts, learned counsel for the petitioner argues that there is lot of documentation which would go a long way to prove that there was functional business-related activity in the tenanted premises throughout the relevant period. In that context, the attention of this Court is invited to Ex. R/3 to Ex.R/5, Ex. R/6 to Ex. R/21 and Ex. Ex. R/22 to Ex. R/44. The first documentation (Ex. R/3 to Ex. R/5) purports to be certain receipts issued by the Weights and Measurement Department. Ex. R/6 to Ex. R/21 are certain bills which had been issued by the firm being run by the petitioner-tenant. Ex. R/22 to Ex. R/44 are bills` issued by the various transporters regarding carriage of certain articles from a 3rd party to the petitioner-tenant. This documentation, the argument proceeds, is adequate enough to outweigh the presumption which had been drawn by the learned Appellate Authority from the fact of non-consumption of electricity at the tenanted premises. Learned counsel is not on a firmer footing when he so argues. The person who issued this documentation were not produced at the trial. This documentation came to be mentioned in the course of the affidavit which was tendered by the petitioner- tenant in lieu of the examination-in-chief. The mere mention of this documentation in the affidavit would not suggest that the formal mode of proof thereof had been dispensed with. These documents cannot be of any assistance to the petitioner-tenant to prove that Civil Revision No. 5428 of 2008 -6- **** averment, for want of proper proof. In the light of foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed. However, the learned counsel, appearing on behalf of the petitioner-tenant, requests that a little extra large time may be afforded to the petitioner-tenant to vacate the tenanted premises in view of the fact that the grant thereof would enable the tenant to look for an appropriate alternate accommodation which would enable him to keep on earning bread and butter for his family. It is ordered, in the circumstances of the case, that the petitioner herein shall have one year time from today to vacate the premises aforementioned. Further, the petitioner-tenant shall keep on paying rent regularly. The petitioner shall file an undertaking to the above effect within fifteen from today before the Registry of this Court. In case of a default, the petitioner-tenant shall be liable to eviction forthwith from the premises aforementioned. Disposed of accordingly. May 11, 2010 (S.D.Anand) Pka Judge