C.R. NO. 3297 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. NO. 3297 of 2003 DECIDED ON : 20.01.2009 Vijay Kumar and others ...Petitioners versus Ishri Devi and others ...Respondents CORAM : HON'BLE MR. JUSTICE K. KANNAN Present : Mr. M. L. Sarin, Senior Advocate with Ms. Himani Sarin, Advocate and Ms. Alka Sarin, Advocate, for the petitioners. Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate, for the respondents K. KANNAN, J. I. Scope : 1. The tenant, who had been ordered to be evicted by the Rent Controller and the Appellate Authority, assails the findings of the authorities below that have maintained the order of eviction on the grounds of different user and subletting of the premises. II. The rival contentions : 2. The landlord's contention as regards the different user was that the property had been let out only for a non-residential purpose for running a laundry shop but the tenant had allowed C.R. NO. 3297 of 2003 -2- the property to be used also for a residential purpose by letting his son to carry on his living along with his wife and children. The ground floor of the shop bearing No. 42 Sector – 28/C, Chandigarh had given on rent for Rs.490/- per month and that the second respondent had been using the back portion of the shop for the purpose of denting, painting and welding of motor cars. This constituted not merely a change of user but an act of subletting that entitled the landlord to obtain eviction. 3. The tenant had not specifically denied the averment in the petition regarding occupation of some of the petitioners for residential purpose but denied the plea of subletting urged by the landlord. His contention was that he had no concern with the second respondent and that he had taken the premises for running a business but not for any specific trade. According to him, the first respondent himself did not remain in exclusive possession of the courtyard, but he mainly used only the bathroom and latrine occasionally. The courtyard was, according to him, used only by the petitioner and he never objected to “sitting of respondent No.2 by the petitioner”.(sic) III. The raison d'tre for eviction 4. The Rent Controller and the Appellate Court found, on an elaborate consideration of oral and documentary evidence, that the son Vijay Kumar had actually been using the property for his residential purpose. The case had been filed on 16.08.1993 and an Advocate Commissioner had also been appointed to note C.R. NO. 3297 of 2003 -3- down the physical features of the property. The Commissioner had filed a report stating that the son had been using a cot at the back portion of the shop and was living with his wife. The Rent Controller, as well as, the Appellate Court found the contention of the landlord regarding the residential use of the son by the fact that apart from their oral evidence of an adjacent shop owner, who spoke about the continued living of the son at the premises, the copy of ration card had also been produced through a revenue official who had been summoned to produce the documents which contained reference to Vijay Kumar and other family members as being residents of the petition mentioned premises. The Courts below also found that the tenant had sublet the premises and had let out the courtyard to another person. It transpired that the second respondent had vacated the premises subsequent to the filing of the petition. IV. Basis of challenge for different user” 5. The decisions of the Rent Controller and the Appellate Authority are impugned by the learned Senior counsel for the revision-petitioner, as regards the different user, on the following grounds : a) An Advocate Commissioner's report could not have been relied to find out the possession of his son; b) the original ration card had not been produced and a copy of it produced by an official, which though marked but not exhibited, could not be relied on; C.R. NO. 3297 of 2003 -4- c ) The predominant purpose of the building for a non-residential purpose had not been lost by merely allowing his son to use a portion of the premises for a residential purpose. V. Basis of challenge against subletting : 6. As regards the contention of subletting, the contention was that the alleged sub-tenant had himself vacated the premises admittedly, subsequent to the filing of the petition and therefore, the ground of eviction did not subsist. Even if the possession as on the date of filing of the petitioner alone was to be taken, even then the possession of the second respondent was not attributable to him but the landlord himself had allowed the second respondent to be in possession of the property. The second respondent, according to him, was not his sub-tenant but a direct tenant of the landlord himself. VI. Commissioner cannot 'find ' possession : 7. I have no hesitation in rejecting the documentary value of the Commissioner's report, in so far as it makes a reference in the report that the first respondent's son was found in possession of back portion of the shop. An Advocate Commissioner appointed by the Court could at best assist the Court by his ministerial acts in gathering evidence relating to the physical features and the issue of who is in possession could never be delegated by a direction for a finding through an Advocate Commissioner. The finding of possession is invariably a C.R. NO. 3297 of 2003 -5- judicial act to be undertaken by a Court or a Rent Controller and such a power cannot be abdicated to an Advocate Commissioner. I eschew the report in reference to the Commissioner's report or his evidence regarding possession. VII. Consideration regarding issue of different user 8. The Courts below have considered the fact that the landlord had specifically adverted to the fact that the first respondent's son Vijay Kumar has been in possession of the back portion of the shop in the petition in the following words : “Vijay Kumar son of respondent No.1 has also started living in the back room, behind the shop”. There was also a direct evidence of PW-1 relating to the very same averment. The respondent has not controverted the averment in the written statement, nor has he utilized the occasion of the cross examination of PW-1, to elicit that he was not living there but was using the portion temporarily. The counsel for the revision petitioner sought to further explain the inadequacy of the pleadings regarding want of denial, by stating that there was definite statement in evidence that his son was living in another sector in Chandigarh in a rented premises along with his wife and in view of such evidence, he shall be deemed to have refuted the landlord's contention regarding the change of user of the portion of the tenanted premises for the residential purpose of the tenant's son. This contention does not appear to be correct and a definite finding of the fact referred by the Courts C.R. NO. 3297 of 2003 -6- below taking into account the nature of the pleadings and the definite evidence, I am not inclined to interfere with the findings that the first respondent's son Vijay Kumar was not occupying the portion of the building for residential purpose. 9. The learned Senior counsel for the revision petitioner would still contend that even if the son of the tenant is found to be in occupation of the portion of the premises, it cannot qualify for an actionable change of user, so long as the change of user had not caused any prejudice to the landlord. According to him there had been written document of lease and there was consequently no stipulation regarding the mode of user. He relies also on the decision of this Court and the Supreme Court which have held that the basic idea of Clause-(b) of Section 13(2)(i) of the East Punjab Urban Rent Restriction Act is that the tenant should not be allowed to use the property for the purpose for which the landlord may not have agreed. He also stated that the issue whether the landlord and tenant agreed to the purpose for which the building has to be used must be considered in the context of expressions used in the lease deed. In “Telu Ram vs. Om Parkash Garg” 1971 PLR (1) , a Division Bench of this Court held while considering the affect of Section 13 (2)(ii)(b) of the Act that “change of use of building made in small part of the building would not automatically render the tenant to be ejected under this Clause”. The Bench interpreted the expression used in 13 (2)(ii) of the Act, while referring to the issue of subletting or C.R. NO. 3297 of 2003 -7- transfer of the “building” but had not used the expression “entire building”. Consequently, a conversion of a small portion of the building would not attract the scope of the Section to result in eviction. A similar reasoning was adopted in “Mohinder Kaur vs. Baldev Singh” 1999 (2) All India Rent Control Journal 593 that “if a property was taken for a residential purpose, still it has to be seen whether the dominant purpose remains the same or not”. The letting of building for residential purpose but if the tenant had allowed a portion of the building for non-residential purpose by installing a hand loom in a room, the Court said that using of a small portion for the purpose different from the purpose of letting, does not amount to change of user. Similar is the position in case “Dharam Chand vs. Mathura Dass” 1982 AIR 224 that “use of a small portion of shop for a residential purpose would not amount to change of user”. The Supreme Court in “Atul Castings Ltd. Vs. Bawa Gurvachan Singh” (2001) 5 Supreme Court Cases 133 held that “property let for residential purpose could not be said to have been used for non- residential purpose to be susceptible for ejectment for a tenant who used one room as an office for disposal of official work at home”. There, the Supreme Court said, by reasoning that if there was no regular commercial activity or business carried on including interaction with the public and customers etc., the change of user could not be attributed to the tenant under the East Punjab Urban Rent Restriction Act, 1949. C.R. NO. 3297 of 2003 -8- 10. The conspectus of all the rulings seem to clearly dis- favour an action of eviction merely on the ground that a portion of the building used for any purpose by either the tenant or any one from the family members of his family, so long there was no prejudice caused to the landlord. While declining to interfere with the findings of the fact regarding the user of the son of back portion of the shop for residential purpose, I find that the user of the property is not such as to cause any prejudice to the landlord and does not enable him to secure an eviction on the said ground. I agree with the contention of the revision-petitioner that the property which is used by the son for taking rest by having a cot etc. at the back portion of the shop does not amount to actionable change of user by the tenant. VIII. Issue of subletting- finding one of fact: 11. The contention that now requires attention is regarding the alleged sub-tenancy in favour of second respondent. The contention of the revision-petitioner is that the courtyard itself is not a part of the demised premises and the occupation by the second respondent cannot be a subject of complaint. The legal submission is that there cannot be sub- tenancy so long as the tenant had not lost exclusive possession of the property to a sub-tenant. The counsel relied on decision of the Supreme Court in “Smt. Krishnawanti vs. Hans Raj” 1975 S.C 165 that “when landlord sought eviction on the ground of subletting, it is a settled law that the onus to prove subletting C.R. NO. 3297 of 2003 -9- was on the landlord and if the landlord prima facie shows that the occupant was in exclusive possession of the premises let-out, it would be then for the tenant to rebut that evidence”. In “M/S Shalimar Tar Products Ltd. vs. H. C. Sharma and others” (1988) 1 Supreme Court Cases 70, the Supreme Court said that “to constitute subletting, there must be parting of the legal possession i.e possession with the right to include and also the right to exclude others”. The Supreme Court also said that the issue, if such parting had taken place, whether there was any subletting and if so, was the same with the consent in writing of the landlord etc., are essentially questions of fact”. In “Dev Dutt Verma vs. Ajit Singh and others” 1965 Cur.L.J 341 this Court had held that “the burden which was cast on the landlord to show that there had been subletting, would not be discharged by merely showing some third party using the part of the premises”. It has also been stated that “even a false plea by a tenant cannot fill up the lacuna in the evidence for proving the issue regarding subletting, the burden of which was heavily on the landlord. In yet another judgment in “Ram Dhan Sharma vs. Bishan Sarup Mittal” 1994 (1) RCR 462 that “even a wrong defence taken up by the tenant in a case of subletting does not absolve the landlord from proving his case, as the onus lies on the landlord to prove the case of subletting”. 12. The last two decisions of this Court while laying down that the burden to prove is always upon the tenant, was on C.R. NO. 3297 of 2003 -10- consideration of instances where the exclusivity of possession of another party other than the tenant was itself a contentious issue. In this case the fact that the second respondent is in possession, is admitted. It is further admitted in evidence of the tenant that the back portion of the courtyard had been allowed to be in his exclusive possession by the landlord. In the evidence of RW-1, it is stated by maintaining that “the disputed premises consisting of shop, back one room and latrine and bathroom and courtyard are in my possession. The courtyard, latrine and bathroom are joint”. If the possession had been with him at the time of letting and if it is shown subsequently and that the second respondent was in possession, it would be most artificial to contend that he had ceded possession to the second respondent at the mere wish of the landlord subsequently. Finding this admission inconvenient, the learned Senior counsel sought to contend that this evidence was wrongly recorded and in the context in which the evidence comes in the cross examination, a suggestion has been wrongly recorded as though admitted when his witness must have denied the suggestion. According to him whole of the evidence is to be read, this single admission seems incongruous. I have read through the evidence and the admission seems categoric and not any mistake in recording of the evidence. Even if there had been a mistake, it ought to have been pointed out before the Rent Controller himself and the correct recording must have been made by an C.R. NO. 3297 of 2003 -11- application for review and it cannot be urged in the revision petition for the first time and what is must, even taking it as a ground of revision that the evidence has been recorded wrongly. 13. The plea of subletting had been found by both the Rent Controller and the Appellate Authority as having been established by reference to the oral evidence adduced by the landlord, the evidence of adjoining shop owner and the admissions of the tenant. This aspect is essentially a pure question of fact and the findings have been rendered on proper appreciation of evidence. There is no illegality in the matter in appreciation of the evidence and there would be no warrant for interference in the finding of eviction on the ground of subletting. IX. Conclusion : 14. Under the circumstances, the order of eviction is maintained on the ground of subletting alone and the revision petition is dismissed. There shall, however, be no order as to costs. 15. At the time of passing of the orders, learned counsel for the revision petitioner states that he has been running the business for the last many years and he seeks time to vacate the same. Two month's time is granted to vacate the premises. JANUARY 20, 2009 (K. KANNAN) shalini JUDGE