IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.R. No.211 of 2007. Judgment reserved on :16.8.2010. Date of decision: October 7,2010. Jitender Kalra. …. Petitioner. Versus Harish Kumar. …. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Petitioner : Mr. Sunil Mohan Goel, Advocate, vice Mr. Ajay Mohan Goel, Advocate. For the respondent : Mr. Sanjeev Kuthiala, Advocate. Surinder Singh, J : 1. Instant revision petition has been directed by the petitioner-tenant under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1988, in short ‘the Act’, against the judgment dated 4.12.2006 passed by the learned Appellate Authority (II), Shimla in Rent Appeal No.38-S/13(b) of 05/02, whereby the appeal filed by the respondent-landlord was accepted and the 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - petitioner-tenant was evicted from the demised premises. 2. In short, the facts giving rise to the present petition are that the predecessor-in-interest of Harish Kumar named Balwant Rai had filed a petition under Section 14 of the Act, seeking eviction of the petitioner-tenant on the ground that he without his written consent, after commencement of the Act aforesaid, in the month of April, 2001, had started using the tenanted commercial premises for the purpose other than for which it was leased out to the tenant. 3. In fact, the premises in question was rented out to the petitioner for running an office. He opened his office under the head and style of ‘M/s Sialkot Hardware and Furniture House’, but it was allegedly sublet to one Shri Atul Sood and changed its user by opening a chemist shop in the name of ‘M/s Kalra Marketing Company’, as such, the landlord prayed for eviction of tenant from the premises aforesaid. 4. The petitioner resisted and contested the petition, took up the plea of maintainability in his reply and alleged malafide against the landlord by using the pressurized tactics for the enhancing the rent. On - 3 - merits, denied the allegations of subletting, as alleged. It was also averred that the premises in dispute were a non-residential building and being used for non- residential purpose. Its user was never changed at any point out time, thus the respondent-landlord has no cause of action to file the petition for eviction. It was specifically denied that Shri Atul Sood was running a chemist shop in the tenanted premises, as alleged. 5. In rejoinder, the preliminary objections were denied and even paras of the petition were reasserted. 6. The learned Rent Controller, on the pleadings of the parties framed the following issues:- 1. Whether the respondent (tenant) has changed the user of the demised premises without the consent of the landlord, as alleged? …OPP. 2. Whether the respondent (tenant) has sublet the entire shop premises to one Sh. Atul Sood, as alleged? …OPP. 3. Whether the petition of the petitioner (tenant) is not maintainable? …OPR. 4. Whether the petition is malafide only with a purpose to pressurize the respondent (tenant) to enhance the rent of the premises? OPR. - 4 - 5. Relief. 7. The learned Rent Controller after full inquiry, answered issues No.1, 2 and 4 in negative and issue No.3 in affirmative, hence dismissed the petition as not maintainable being an insignificant change of user by the tenant by which the interest of landlord was not prejudiced. 8. Against the impugned order of the learned Rent Controller, an appeal was filed by the landlord before the Appellate Authority (II). On reappraising the material on record, it held that Shri Atul Sood was a stranger in exclusive possession of the demised premises. It was for the petitioner herein to prove the terms and conditions on which Shri Atul Sood, who was in possession of the premises was handed over the possession to him. Further that it was not a case of the respondent-landlord that he had employed Shri Atul Sood as Pharmacist on wages to which he tried to prove, whereas his case was of complete denial of keeping Shri Atul Sood in any capacity. It was also observed that the Chemist business was being done in the demised premises at Shimla and the photographs were on record, which make it clear that there had - 5 - been ample medicines in the shop which indicated that the business was being conducted in the shop on a large scale. Therefore, in such a situation, the services of a Pharmacist could not have been obtained by the respondent on the meager wages of ` 3,500/- per month. Said Shri Atul Sood, who is a stranger, went to indicate that he was not working as a servant in the said premises, but as a sub-tenant, thus the appeal was accepted and the order of eviction of the petitioner-tenant was passed on the ground of subletting. The petitioner-tenant pursuant to the eviction order/ judgment was evicted on 9.10.2007, from the demised premises in execution proceedings and the possession was handed over to the respondent-landlord. Instant revision petition was filed against the judgment of eviction after limitation had expired but the delay was condoned and it was admitted for hearing. 9. Learned counsel for the petitioner vehemently argued that the impugned judgment passed by the Appellate Court is based upon conjecture and surmises. The ground of subletting stands not proved and further that the observations made in para-24 of - 6 - the impugned judgment were also incorrect. The petitioner was in fact condemned unheard. He has placed on record copy of cause list dated 4.12.2006 and also of the previous date that is of 30.11.2006 (Annexure P-3). It is also ventilated that the shop of Chemist as alleged was in the name of the petitioner- tenant. This was a commercial premises, thus he raised a loan for establishing the said business. 10. Shri Sanjeev Kuthiala, learned counsel for the respondent-landlord vehemently argued that the contention raised for non-hearing of the parties is absolutely wrong and incorrect. To substantiate his plea, he referred to the judgment of Appellate Authority where the arguments of the learned counsel for the tenant have been referred and discussed. It was also argued that had it been wrongly mentioned the learned counsel for the petitioner should have filed his objection before the Appellate Authority to which he did not file. He also ventilated that non-mentioning of the case by mistake in the cause list did not debar the court to call for the record of the case when it was otherwise fixed for the day aforesaid, therefore, this objection is superfluous and deserves to be dismissed. - 7 - He further argued that on merits it stood proved that it was a clandestine arrangement inter-se the petitioner- tenant with Shri Atul Sood for subletting the premises and the respondent landlord has discharged his onus which ultimately shifted upon the petitioner-tenant to which he failed to discharge and explain. It was also argued that the petitioner-tenant had suppressed the material facts from the record, therefore, the impugned judgment being legally and factually sustainable may not be disturbed. 11. I have considered the rival contentions of the parties and have carefully examined the record of the learned Rent Controller as well as that of the learned Appellate Authority. 12. Insofar as the non-hearing of the petitioner or his counsel on 4.12.2006 is concerned on the face of it, appears to be incorrect. It shall be relevant here to refer to the zimini orders dated 4.12.2006 passed by the said Authority in the appeal pending before him, the perusal of which clearly shows that the Advocates for the parties were present on that date and in their presence the case was fixed for arguments on 4.12.2006. It reads as under: - 8 - “04.12.2006 Present:- Sh.S.V. Sharma, Advocate, for the appellant. Sh. Satyen Vaidya, Advocate for the respondent. Arguments heard. For order put up after lunch. sd/- (D.K. Sharma) Appellate Authority (II), Shimla, H.P. 04.12.2006 Present:- Sh.S.V. Sharma, Advocate, for the appellant. Sh. Satyen Vaidya, Advocate for the respondent. Vide separate judgment, the appeal is allowed. File after due completion be consigned to record room. sd/- (D.K. Sharma) Appellate Authority (II), Shimla, H.P.” 13. The order previous to the above, clearly shows that in the presence of the parties, the appeal was fixed for hearing on 4.12.2006. The order dated 4.12.2006 and reference with respect to submissions made by the respective counsel clearly reflect that the counsel for the parties were present and the matter was argued before the Appellate Authority and the judgment was announced after lunch on the same day. There is conclusive presumption to the zimni orders and its reference made in the judgment, therefore, non-mentioning of the case in the cause list would not prove the fact that it was never taken up for hearing on 4.12.2006. Thus, it cannot be allowed to - 9 - raise it in appeal or revision by any party that the zimini orders or its reference in judgment did not correctly reflect the position or lay any attack on the judgment on that ground. 14. The facts recorded in the zimni orders are conclusive proof. Party taking a different view/ stand should have promptly call the attention of the same Judge, who made the order, but it cannot be challenged either in appeal or in revision before the court superior to it for making an inquiry as to what was the correct position. Therefore, this objection raised by the petitioner is without any merit, hence rejected. 15. Further, the revisional powers vested with the High Court under Section 24(5) of the Act is to enable it to satisfy itself as to the legality or propriety of the order made by the Rent Controller or the proceedings before him or the Appellate Authority, but it cannot re- appreciate the evidence merely with an inclination to take a different view of the facts as if it were the Court of facts. However, a conclusion arrived at which is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available, ignoring the weight of - 10 - evidence, proceeding on a wrong premises of law or deriving such conclusions from the established facts as betray a lack of reason and/ or objectivity would certainly render the finding calling for an interference in revision. 16. The learned counsel for the petitioner has ventilated that the Appellate Authority had given a wrong finding with respect to subletting. Subletting is a ground for eviction under Section 14(2)(ii)(a) of the Act, the perusal thereof makes it clear that if a tenant transfers his rights under lease or parts with possession of the premises, he is liable to be evicted from the premises on a petition filed by the landlord, but however the Court has to keep in mind whether there is transfer of an exclusive possession for consideration. Initially the onus to prove the fact of subletting is on the landlord and if he establishes the parting of the possession in favour of a third person, the onus would shifts upon the tenant to prove the circumstances. When the landlord establishes the parting of possession, the next requirement is whether it was for consideration within the special knowledge of the tenant and he must explain. - 11 - 17. PW5 Bhupinder Jeet Kashyap, Attorney of the original owner testified with respect to subletting of the premises without the consent of the landlord. He also stated that the Chemist shop was opened by Shri Atul Sood in the premises let out to the petitioner-tenant and this fact was corroborated by PW4 Raj Kumar, who was running a shop in the same vicinity. He further testified that it was Atul Sood, who was conducting the business throughout the day in the Chemist shop. Although, vide application Ex.PW1/A, the petitioner- tenant, informed his Bank about the change of the name from ‘M/s Sialkot Hardware & Furniture House’ to ‘M/s Kalra Marketing Company’ and all the cheques/drafts in the name of ‘M/s Sialkot Hardware & Furniture House’ were requested to be credited in the account of new establishment, but it also transpires from the evidence on record that the petitioner had filed an application on behalf of newly constituted company to the Drug Authority, mentioning therein that the sale and dispensing of the drug in the tenanted premises shall be conducted and supervised by Shri Atul Sood, Pharmacist and this application was duly supported by the affidavit Ex.PW2/B and another - 12 - affidavit Ex.PW2/C shows that said Shri Atul Sood got registered himself as a Pharmacist on 31.8.1984. Not only this, a document Ex.PW2/E i.e. site plan of the demised premises was furnished to the said authority alongwith certificate Ex.PW2/G for registration of Shri Atul Sood and issuance of the copies of licence on 29.3.2001 to sell the drugs in the demised premises, it go to show that there was an arrangement of sub tenancy inter se the petitioner and said Shri Atul Sood by parting its possession in a clandestine manner. The loan documents Exts.PW3/A to PW3/C9 regarding limit sanctioned for running the business in the premises in the name of the Company cannot dislodge the above facts to substantiate his plea that it was the petitioner- tenant who owned the chemist shop and that Shri Atul Sood was employed as a servant by him that too on a meager salary of ` 3500/- per month. The extract of register of employees Exts. R-1 to R-17 w.e.f. April, 2001 to July, 2002 though produced, but were not proved by the person i.e. Duni Singh, who had admittedly maintained it. 18. The wages of ` 3,500/- to Shri Atul Sood as a whole time employee as alleged of the petitioner- - 13 - tenant is quite too meager amount to be paid to a qualified Pharmacist for whole time work, thus, it appears to have been shown to circumvent the provision of the Act. From the above circumstances proved on record, the clandestine arrangement between the petitioner-tenant and said Shri Atul Sood cannot be ruled out. Further the petitioner-tenant has failed to prove that the rent of the demised premises was also being paid by him to the landlord. Therefore, in my considered opinion, the petitioner-tenant was rightly ordered to be evicted from the premises in question on the ground of subletting and in pursuance of the judgment/ orders of the Appellate Authority, the petitioner also stood evicted from the demised premises to the warrant of possession issued by the learned Rent Controller on 27.9.2007, which has been admitted by the petitioner-tenant in his application CMP(M) No.923 of 2007 filed under Section 5 of the Limitation Act and the said order has also not been challenged by him. 19. Therefore, in the afore stated position, I do not find any illegality in the impugned judgment passed by - 14 - the learned Appellate Authority, hence the revision petition is dismissed with costs. October 7,2010. (Surinder Singh), (Pds) Judge.