Civil Revision No.289 of 1996 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.289 of 1996 (O&M) Date of decision:16.02.2009 2. Civil Revision No.290 of 1996 (O&M) 3. Civil Revision No.291 of 1996 (O&M) 4. Civil Revision No.3354 of 1999 (O&M) 5. Civil Revision No.6506 of 2001 (O&M) 6. Civil Revision No.1026 of 2002 (O&M) Satish Kumar and another .............. Petitioners Vs. Shri Nanu Ram Jain Charitable Trust and another ............Respondents Present: Mr. R.K. Gupta, Advocate with Mr. Ashish Gupta, Advocate for the petitioners. Mr. Rajesh Garg, Advocate with Mr. Hitesh Pandit, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K.KANNAN, J. 1. The above civil revisions arise between the same parties in respect of the same subject matter. C.R. No.289 of 1996 relates to an order of ejectment made on the grounds of non-payment and sub- letting of the premises by the first respondent to the second respondent. C.R. No.290 and 291 of 1996 relate to the claim of refund sought by the tenant on the ground that excess over the agreed Civil Revision No.289 of 1996 (O&M) -2- rent had been deposited at the first hearing to prevent summary ejectment. C.R. No.3354 of 1999 has a bearing on the fixation of fair rent on the ground that the basic rent as agreed between the parties was Rs.1200/- and C.R. No.6506 of 2001 is for the consequential enhancement of rent arising out of the situations covered under Section 5 of the Haryana Urban (Rent Control and Eviction) Act, 1973. C.R. No.1026 of 2002 is for eviction on the ground of non- payment of rent for September, 1994. 2. The bunch of cases referring to the fixation of fair rent, enhancement and refund will all depend on the issue regarding the actual rent payable by the tenant to the landlord. They shall be considered later after consideration of the claim arising in C.R. No.289 of 1996. The claim for ejectment, which is subject matter in C.R. No.289 of 1996 was based on non-payment of rent from 01.06.1990 to 31.12.1996 and 01.06.1992 to 31.03.1993. Admittedly, the rent as stated by the landlord had been paid at the first hearing and the only surviving ground for consideration was the plea of ejectment. The Rent Controller had upheld the claim of the landlord and the appeal filed by the tenant was dismissed confirming the decision of the Rent Controller. The tenant is the revision petitioner in all these cases. 3. The three points that arise for consideration in these civil revisions are: (i) the maintainability of the rent control petitions at the instance of the Secretary of Shri Nanu Ram Jain Charitable Trust; (ii) the quantum of rent payable; (iii) the case of sub tenancy. 4. Learned counsel for the revision petitioner pointed out that Civil Revision No.289 of 1996 (O&M) -3- all the petitions have been filed at the instance of a person claiming to be a Secretary of the Trust. The details of the resolution authorizing the Secretary had not been filed. The petitions also did not contain the details of other trustees and the petition filed without impleading all of them as petitioner was not competent. The learned counsel relied on the decision of a Full Bench of Gujarat High Court in Atmaram Ranchhodbhai Vs. Gulamhusein Gulam Mohiyaddin and another AIR 1973 Gujarat 113 Full Bench to bring home the point that a suit instituted without making all the Trustees as parties was not maintainable. The issue arose in an ejectment suit filed after statutory notice by one of the Trustees to a Trust and the competence of the person to pursue the litigation in the absence of all the trustees. The Full Bench ruled that one co-Trustee could not give a valid notice to quit determining the tenancy and that such notice must be given by all the co-Trustees unless the instrument of Trust otherwise provided. He also relied on another decision in Mandir Jamuna Dass Jawaharlal S. Sanatam Dharam Mahabir Dal Trust Vs. Shankar Dass 2003 (1) R.C.R. (Rent) 582 that action under the Haryana Urban (Control of Rent and Eviction) Act, 1973 for eviction of a tenant could not be filed by the Trust in its own name without impleading all the Trustees. Adverting to the recital in the trust deed the Court found that it had not provided that one of the Trustees could file a suit for ejectment. 5. In my view, the trappings of a civil action through suit that will be attracted to the provisions of Order 31 Rules 1 and 2 shall not be applicable to rent control proceedings. The Rent Controller and the Appellate Authority have approached the issue from the point of view Civil Revision No.289 of 1996 (O&M) -4- of the fact that under the Haryana Urban (Rent Control and Eviction) Act, 1973, the landlord is defined as a person, who is entitled to receive rent and adverting to the admission of the tenant that he had been paying rent only to the Secretary of the Trust, they held that petition at the instance of such Secretary was maintainable. Further the authorities below also approached the issue from the fact that the tenant had executed a rent note in favour of Secretary of the Trust. Although the document was not registered and consequently, the term of the lease deed itself could not be admitted in evidence, the fact that the document had been executed in the name of Secretary of the Trust was definitely only a collateral purpose to the transaction of lease itself. The institution of the proceedings by the Secretary of the Trust when such a person had been admitted to be the landlord was, therefore, definitely maintainable. The orders of the Courts below upholding the maintainability of the petitions at the instance of the Secretary of Trust are, therefore, maintained. 6. As regards the issue of sub-tenancy, the contention of the first respondent was that there had been no form of sub tenancy with the second respondent. The second respondent was only his blood brother and he had been associated in the business along with him. He had not lost his exclusive possession to the second respondent. The authorities below, however, found sub tenancy from the fact that the tenant had been engaged in a cloth business at another premises and therefore, rejected his claim that his brother was associated in the disputed property in his business in running a fruit stall. Both the authorities drew an adverse inference from the fact that the father Civil Revision No.289 of 1996 (O&M) -5- whose business, the tenant was claiming to be carrying on had not been examined. Learned counsel for the revision petitioner submitted that he was not denying that he was carrying on business with his father in cloth at Shop No.G-12, Palika Bazar, Jind but that did mean that he was not carrying on fruit business at the demised premises. The learned counsel also relied on the decision in Labhu Ram Vs. Om Parkash Maheshwari and Ors. 1984 HRR 589 that when a tenant was still in occupation of the premises and when it was shown that his brother, the alleged sub-tenant, was also living with him, it could not be inferred that there was any sub-letting. To the similar effect was the decision in Kishan Lal Vig Vs. Sunder Lal and others 1987 HRR 710 where a brother who was looking after the business in the shop in dispute when the tenant himself was carrying on the business of wine shop at another place was found by the court as not proving any sub-tenancy. The Court was rejecting the contention of the landlord that it was always difficult to prove by positive evidence to establish the fact of sub-tenancy and said that the contention was virtually begging the question when the landlord was bound to prove that the tenant had parted with the possession of the premises in dispute and it was in the exclusive possession of sub tenants. The Hon'ble Supreme Court had ruled in Shri Sri Chand Gupta Vs. Shri Culzar Singh and Anr. 1992 HRR 204 that even a statement by a so- called sub tenant to Income-Tax Authorities that he was in exclusive possession could not constitute an admission against the interest of the main tenant. The Hon'ble Supreme Court was rejecting the case of sub-letting sought to be proved by the landlord by a statement made Civil Revision No.289 of 1996 (O&M) -6- by an alleged sub tenant before the Income Tax Authorities. The Hon'ble Supreme Court was further confirming the principles enunciated earlier in Nirmal Kanta (dead) through LRs Vs. Ashok Kumar and another (2008) 7 SCC 722 that if facts did not indicate that the tenant had parted with exclusive possession of the shop room and had only allowed the alleged sub tenant to operate his feet driven sewing machine from a portion of the shop room, the main ingredient of sub tenancy was lacking. In this case, the fact that second respondent was a brother and associated with the first respondent must have been taken in its usual social setting that a younger brother could be always associated with elder brother in the business. It was irrelevant that the elder brother had another business in the same town. The Rent Controller and the Appellate Authority took the fact that the tenant had another business to conclusively establish that the tenant could not have been running also the fruit stall at the suit premises. If the property had been in the hand of a total stranger to the family, a different inference may have been possible. The association of a brother in the business ought to be taken in a different light consistent with the social moorings of this country and particularly on the basis of tenant's evidence. I set aside the findings of the Courts below that there was any form of sub tenancy between the first respondent and the second respondent. 7. The order of eviction made in the case, which is the subject matter in C.R. No.289 of 1996 is accordingly set aside. 8. The other relevant issue is the quantum of rent i.e. payable in order to determine whether there was a non-payment of rent and Civil Revision No.289 of 1996 (O&M) -7- whether the fair rent as fixed by the Rent Controller and enhancement sought for by the landlord that was determined by the Rent Controller and affirmed by the Appellate Authority are correct or not. In the case which have come by means of civil revision bearing No.290 and 291 of 1996, admittedly the rent had been paid at the first hearing and therefore, no eviction could be passed. 9. Learned counsel for the revision petitioner points out to the order passed by the Appellate Authority on 07.09.1994 where it had recorded that a sum of Rs.1200/- towards rent was being paid as per the order dated 16.07.1994 and that the respondent had been paying the house tax before the Rent Controller and that he should also pay the house-tax every month as ordered. This order was passed on 07.09.1994 and therefore, the fact that the rent had been paid for September 1994 could not be denied. The learned counsel would further contend that even if the amounts were to be taken as paid for August 1994 and that the rent payable for September 1994 had not been paid, the fact that the tenant paid rent at the Appellate Court when the rent was being claimed upto December 1996, the payment made in January 1997 when the appeal was filed on 24.01.1997 must be taken as payment made for December 1994. The issue of non- payment of rent itself cannot be seriously urged by the landlord since during all the time when the several rent control petitions were being filed one after another for various periods, the tenant had been depositing the rent in Court and there was no default by the tenant to secure eviction on that ground. The order of eviction that was passed, which is subject matter in C.R. No.1026 of 2002 is, therefore, clearly Civil Revision No.289 of 1996 (O&M) -8- erroneous and hence liable for being set aside. 10. The surviving point for consideration is the fair rent that has been fixed by the Rent Controller and affirmed by the Appellate Authority and entitlement of the tenant for claiming refund for the amounts already deposited by him before the Courts. The contention of the landlord is that the rent is Rs.1200/- per month whereas it is contended that the rent is only Rs.400/- per month. The learned counsel for the revision petitioner contends that the reference Rs.1200/- in the unregistered rent deed, which is permissible in evidence, cannot form the basis for fixing the quantum of rent. The learned counsel would rely on the entry in Ex.R-1, which is an extract of the Municipal register that makes a reference to the tenant that he has paying Rs.400/- per month for the purpose of assessment of property tax. In this case the copy of the assessment register obtains less significance in view of the fact that landlord has filed rent receipts themselves to show that the rent that was being received from tenant was Rs.1200/-. The counterfoils maintained by the landlord and produced as Ex.A-2 to A-5 were denied by the counsel for the revision petitioner by contending that there are several entries in the counterfoils that contain corrections and interlineations and it was not safe to rely on the same. The counsel further contended that the receipts which were stated as having been issued to the tenant had not really been issued and the counterfoils for the receipts were fabricated for the purpose of the case. Such a contention of the learned counsel for the tenant does not appear to be sound since the counterfoils are comprised of a bunch of papers stitched as a book and maintained in Civil Revision No.289 of 1996 (O&M) -9- the regular course for the purpose of accounting for the Trust. I uphold the finding of the Courts below that rent by the property was only Rs.1200/-. Learned counsel for the revision petitioner admits that if the rent is accepted as Rs.1200/- per month, the claim for refund, which is the subject matter in C.R. No.290-291 of 1996, the fair rent which is subject matter in C.R. No.3354 of 1999 and the necessary enhancement as sought for in C.R. No.6506 of 2001 ought to fail. The decisions rendered by the Rent Controller and affirmed by the Appellate Authority being the subject matter in above civil revisions are consequently dismissed. 11. In the result, the order of ejectment passed against the tenant, which is subject matter in C.R. No.289 of 1996 is set aside and the civil revision is allowed. The order of ejectment for non-payment of rent, which is the subject matter in C.R. No.1026 of 2002 is also set aside and C.R. No.1026 of 2002 is allowed. C.R. Nos.290, 291 of 1996, C.R. No.3354 of 1999 and C.R. No.6506 of 2001 are dismissed. There shall be, however, no directions as to costs. (K. KANNAN) JUDGE February 16, 2009 Pankaj*