CIVIL REVISION NO.3424 OF 2003 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 29, 2008 Radhey Shyam through his L.Rs .....Petitioner VERSUS Arjun Singh Kirpa Ram Charitable Trust, Rewari and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Arun Palli, Sr.Advocate with Mr. Parminder Singh, Advocate, for the petitioner. **** RANJIT SINGH, J. This revision petition is filed by a tenant who has lost before both the Courts below. His fate here also does not seem to be different. A revision filed in the year 2003 is still being heard at limine stage. On 23.9.2004, the revision petition was adjourned sine- die as the petitioner had died and application for impleading his L.Rs was required to be filed. The petition was dismissed for non- prosecution on 7.3.2006, when neither the counsel appeared nor the necessary application for impleading the L.Rs was filed. The revision was restored on 14.12.2007 and was directed to be put up for motion CIVIL REVISION NO.3424 OF 2003 :{ 2 }: hearing as per the roster. On 11.1.2008, the application for impleading the L.Rs of petitioner, Radhey Shyam, was allowed and the revision was posted for hearing the arguments on merits. Counsel for the petitioner was heard but the Court was not inclined to interfere in the impugned orders on any of the legal or factual submissions that were made. Faced with this situation, the counsel sought adjournment to see in case he can negotiate with the landlord. On the request made by Mr.A.C.Jain, the counsel for the petitioner, the case was adjourned to 29.4.2008. On the said date, Mr.Arun Yadav, appeared to represent the petitioner instead of Mr.A.C.Jain and started making submissions on merits. Noticing that the case had only been adjourned to enable the petitioner to negotiate with the landlord, the conduct of the petitioner in changing the counsel was noticed and directions were issued for Mr.A.C.Jain to appear before the court. Mr.Arun Yadav did not appear on the next date i.e. 30.4.2008. Mr.A.C.Jain, however, came present and pointed out that he had given no objection certificate, clearly indicating that time had only been granted for the purpose of negotiation and not for hearing arguments on merits. The petitioner, at that stage, appeared in person and made allegations of some demand of money against previous counsel and some other grievances. He was directed to file an affidavit in this regard, which he has done and the matter of allegation is being dealt separately. To be fair to the petitioner, the Court, by ignoring the background as noticed above, provided the services of Mr.Arun Palli, Senior counsel of this Court as Amicus-curiae despite the fact that the petitioner had been afforded full opportunity of hearing on merits CIVIL REVISION NO.3424 OF 2003 :{ 3 }: earlier. It is in this background that Mr.Palli has been heard on merits. The facts and the grounds that are pleaded in the revision petition, noticed in brief, are as under:- Radhey Shyam had taken the demised shop on a monthly rent of Rs.281.25 (Rs.250/- + House Tax 31.25). Rent note dated 18.2.1985 was executed in this regard. The ejectment of the petitioner was sought on the ground of arrears of rent and that he had ceased to occupy the demised shop without any reasonable cause. It was further pleaded that the shop has been materially impaired in value and utility because of its non-occupation. The petitioner-tenant, however, controverted all these grounds and tendered the rent and costs as assessed. He denied the allegation that he has ceased to occupy the shop. Initially, following issues were framed on 7.5.1991:- “1. Whether the shop in dispute is lying closed, if so to what effect? 2. If issue No.1 is proved, whether respondent is liable to be ejected from the demises premises? OPA 3. Relief. On 3.5.1995, the landlord was allowed to amend the petition and to take additional ground of sub-letting. The respondent- landlord alleged that the petitioner had sublet the demised shop to Mahesh son of Anant Ram, his brother. It was further brought out that respondent No.2, Mahesh was in occupation and control of the demised shop and the petitioner-tenant was running a tea stall on `Patri' i.e. footpath of Chandni Chowk, Delhi. This additional ground again was controverted by the petitioner. He admitted that Mahesh, CIVIL REVISION NO.3424 OF 2003 :{ 4 }: respondent No.2 was his real brother. The petitioner took a stand that they are having a joint family and they were doing a business in the demised shop by the name of Anant General Store. Respondent No.2, Mahesh, filed a separate reply to the amended petition, supporting the stand of the petitioner. On 23.3.1996, the following additional issue was framed:- “1-A. Whether respondent No.1 has sublet the demised premises to respondent No.2 without the written consent of the petitioner? OPA” The parties were allowed to lead evidence. The Rent Controller found that the petitioner had ceased to occupy the demised shop for considerably long period and was, thus, liable to be ejected. He also found that the shop had been sub-let to respondent No.2, Mahesh without the written consent of the landlord. Accordingly, the tenant was directed to hand over the vacant possession of the demised shop within a period of two months. The appeal against the said order was filed only by Radhey Shyam. It was pleaded that plea of ceasing to occupy and subletting are self contradictory besides raising other pleas that subletting was not established as to prove the same, the landlord was required to show that the possession had been parted with by the tenant. The Appellate Court, did not accept the contention raised by the petitioner and up-held the findings returned by the Rent Controllers on both grounds i.e. ceasing to occupy and subletting. While challenging the findings of the Rent Controller and the Appellate Authority, Mr.Palli would point out that heavy reliance is placed on the report of a Local Commissioner for deciding the ground CIVIL REVISION NO.3424 OF 2003 :{ 5 }: relating to ceasing to occupy whereas subletting is alleged to be a period subsequent thereto. It has been rightly noticed by the Courts that the relevant period for determining the allegations of ceasing to occupy would be from 5.2.1989 to 5.6.1989 as the petition was filed on 6.6.1989. Kalyan Singh, AW9, one of the Trustees, testified that the shop in question was lying closed for the last 16 months continuously prior to the date of filing of the petition. His statement received support from the version of Om Parkash, AW3, Hari Gupta AW4. AW3 runs a Rehri adjoining the wall, which is in front of the demised shop whereas AW4 is a Property Dealer in the area. A Local Commissioner was also appointed, who visited the shop with due notice to the parties. He submitted his report in regard to inspection of the shop, which he had carried out in the presence of neighbouring shop-keepers and the landlord. Nobody was found present on behalf of the tenant and the shop was found closed. As per the report of Local Commissioner, he peeped through the gap in the door and noticed that dust had settled, giving an appearance that the same had not been opened for a long time. As per the report, there were webs of spiders. The Local Commissioner also recorded statements of some persons, who stated that the shop had not been opened for 6 to 7 months. Reliance is also placed on the evidence of an electric disconnection from August 1988 to August 1990, when the meter was re-connected in August 1990. Radhey Shyam himself appeared in the witness box and in his support, examined 3 to 4 witnesses to show that he had never closed the shop and this fact was proved from the bills, which would indicate that he was conducting the business. His statement was CIVIL REVISION NO.3424 OF 2003 :{ 6 }: found to be general and vague in nature with no specific details as to for which period he had occupied the shop. Remaining witnesses produced by him were to prove the bills to show that certain articles were sold on different periods like in October and December 1988, May 1989 and December 1988 to March 1989. The production of bills to show occupancy of the shop by the tenant was objected to on the ground that these documents were never relied upon at the time of filing the reply. It is accordingly submitted that these bills were prepared to help out the tenant. The bills did not bear the signatures of tenant, Radhey Shyam. Sunder Dass, RW5, gave an evidence that tenant, Radhey Shyam, always purchased articles on credit and he issued receipts to him, whenever payments was made. However, no such payment receipts were either proved or produced by petitioner, Radhey Shyam. No fault or infirmity, thus, can be noticed in the action of the Court in discarding these bills and material from consideration. As could be seen, the main thrust and attack of Mr.Palli was on the ground of subletting. In this regard, he has referred to the case of Badri Nath Garg Vs. Sheo Prasad Tandon, 1990 (1) RCR 201. In this case, brother of the tenant was found doing business in the tenanted shop and it was held that it is no subletting as the profits were going to joint family. Reliance is also made on M/s Bentool Steel Products Private Limited Vs. O.M.A. Mohammed Omar 2001 (2) RCR 599 to urge that landlord is required to prove that third party was in exclusive possession of the premises or portion of the premises and paid rent to the tenant and that tenant had no control over the part of premises, which was in occupation of sub-tenant. In CIVIL REVISION NO.3424 OF 2003 :{ 7 }: the absence of this evidence, sub-tenancy can not be said to have been proved. Reference is also made to Pala Ram and another Vs. Om Dutt, 1993 SLJ (2) 1265 to say that onus to prove the sub- tenancy is always on the landlord and mere presence of another person or his own brother within the premises, sub-letting can not be proved. There would not be any dispute with the proposition of law as laid down in the afore-mentioned judgments and others that may have been cited in this regard but the facts in this case are required to be appreciated. The landlord was able to establish that Radhey Shyam was running a tea stall in Chandni Chowk and got his photographs taken running the tea-stall at Delhi. These photographs were clicked by Raj Kumar, who was examined as AW5 and he proved these photographs with reasonable satisfaction. In addition, Mata Din (AW6) was produced as a witness. He is a shop-keeper in Rewari. He deposed that whenever he went to Delhi for making purchases, he used to take tea at the stall run by Radhey Shyam and this process was on for the last four years. He identified Radhey Shyam in the photographs exhibited on record. The cross- examination of Mahesh, brother of Radhey Shyam, who is allegedly a sub-tenant is also highlighted to show that it is a case of sub- tenancy. Though Mahesh stated that he has a joint business with Radhey Shyam and they resided together but he could not prove this fact even through his friend, Subhash Chand (RW1). This witness could not tell if he has ever visited Mahesh and Radhey Shyam in their residence at Rewari. He was also not found to be having much friendly relations with the tenant. Somuch so, RW1 could not even CIVIL REVISION NO.3424 OF 2003 :{ 8 }: identify tenant-Radhey Shyam from the photographs. Falsity of his statement, thus, clearly surfaced. Even other witnesses were not relied upon for valid reasons. Sunder Dass (RW5), a witness produced by the tenant, admitted in his cross-examination that for the last four years, Mahesh alone was found present in the demised shop and not Radhey Shyam. Mahesh, who appeared as RW7, was also caught during his cross-examination. He admitted that he has a separate ration card, which dented his version of he being joint with Radhey Shyam. He also conceded that he was not provided any monthly expenses by his brother. When confronted with the fact that his brother was running a tea stall at footpath at Chandni Chowk, Delhi, he volunteered that Radhey Shyam ran this tea-stall during night time. This stand was contrary to the one pleaded in the written statement to the effect that his another brother, named, Shri Niwas, was running the tea stall. Radhey Shyam also could not establish that he had a joint ration card with his brother. Though he stated that he used to give pocket money to his brother, Mahesh but this was contrary to the stand taken by Mahesh, while appearing as a witness. Radhey Shyam rather admitted that he was running a tea-stall in Chandni Chowk, Delhi, as shown in photographs and even did not state that this was being run by his brother, Shri Niwas, as was the stand in the written statement. Radhey Shyam could not tell the names of the partners or employees or the firm from which he was purchasing the articles to sell at the shop run by him, as alleged. He could not show any bill showing purchase of any articles or material since June 1994. This factual matrix would clearly show that the landlord was able to establish with cogent and reliable evidence that CIVIL REVISION NO.3424 OF 2003 :{ 9 }: the shop had been sub-let by Radhey Shyam to his brother, Mahesh, and the observations in the judgments relied upon by him that brother can not be taken as a sub-tenant would not apply to the facts and circumstances of the present case. The onus having been discharged by the landlord in the manner as afore-mentioned, it was for the tenant to show and prove that they are doing the business together. They are joint in family and profits are being shared by them, which they utterly failed to show. The fact that Radhey Shyam himself conceded that he was running a tea stall at Delhi would be enough to show that he had parted with possession of the demised shop in favour of his brother, Mahesh. He could not establish that he was paying anything to Mahesh or that they were sharing profits to establish that it was a partnership and, thus, not a case of sub- letting. In this case, the landlord has been able to prove that Mahesh is in exclusive possession of the demised shop and it is not a case of mere presence of a brother to attract the ratio of law as cited by learned counsel for the petitioner. The jointness of business or brothers being partners was required to be established by the tenant. Once the landlord has prima-facie shown the alleged sub-tenant to be in exclusive possession of the premises and that the tenant had no control over any part of the premises, then it is for the tenant to rebut the evidence. In this case, the tenants did make an attempt to lead evidence and were found to be cropper. Reference can be made to the cases of Charan Dass Mahajan Vs. Mohinder Nath and another, 1978 (1) RCR 69 and Darshan Kumar and another Vs. Brij Lal, 1984 (1) RCR 209 and Prem Kumar and another Vs. Yash Paul and others, 1986 (1) RCR 299 that a brother can be a CIVIL REVISION NO.3424 OF 2003 :{ 10 }: sub-tenant of his own brother. Once the petitioner-tenant was asserting this to be a case of partnership or jointness of a family business, it was for them to prove so, burden being on them. A brother has been found to be in exclusive possession and it was for the tenant to show in what capacity, he was in occupation of the premises. The ratio laid down in the case of Pala Ram (supra) would not apply to the facts of the present case as in the said case the landlord had failed to prove that the sub-tenant was in exclusive possession of the premises in dispute. That is not the situation in the present case. Accordingly, no case for interference is made in the present revision petition and, thus, the same is dismissed. May 29 , 2008 ( RANJIT SINGH ) khurmi JUDGE