CR No.4268 of 2009 - 1 - ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4268 of 2009 Date of decision:04.07.2011. M/s Som Nath Harish Chand through Harish Chander ...Petitioner Versus Vidya Sagar and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. M.L.Sarin, Senior Advocate, with Ms. Hemani Sarin, Advocate, for the petitioner. Mr. Sumeet Mahajan, Senior Advocate, with Mr. Vaibhav Sehgal, Advocate, for the respondents. ***** Rakesh Kumar Jain, J. The tenant is in revision against orders of the Courts below by which eviction petition filed by the landlord under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] has been allowed. In brief, the case set up by the landlord is that he had let out one room, being part of building No.B.VII-786, situated at Lakkar Bazar, Ludhiana to the first respondent at the monthly rent of `200/- w.e.f. 01.06.1973 after settling memorandum of terms for using it as a godown for storing bardana (empty/used gunny bags). The landlord sought eviction of the first respondent alleging that he is in arrears of rent @ `200/- per month w.e.f. 01.04.1989 and has ceased to occupy the building after subletting it to the second respondent without his consent and is getting `2000/- per month from him. The first respondent filed his written statement in which he categorically denied that he had ever taken the alleged one room from the landlord on rent nor had ever entered into possession as a tenant, therefore, the question of non-payment of CR No.4268 of 2009 - 2 - ***** arrears of rent and subletting does not arise. The second respondent filed his separate written statement in which he had alleged that he is a direct tenant under the landlord. He denied that the tenancy had commenced from 01.06.1973 and any memorandum of terms was settled. It was rather averred that his father Som Nath was a tenant in the portion of the property comprising of one room, store and miani which was taken on rent at the monthly rent of `250/- which was later on increased to the tune of `300/- per month and further to the tune of `400/- per month in which his father was running the business of old gunny bags under the name and style of M/s. Som Nath Harish Chander. His father Som Nath unfortunately died on 21.07.1988 and after his death, he had inherited the tenancy rights and is carrying on the same business under the same name and style of M/s Som Nath Harish Chander. It was also alleged that he has been making payment of the rent to the landlord which stood paid @ `800/- per month up to August, 1997. He is an Income Tax Assessee and maintaining his account books. The rent so paid has been sown in the account books by him as also in the income tax returns. It was also alleged that he is ready to make the payment of rent if any due, but the landlord has not claimed any rent from him. The landlord then filed replication in respect of both the written statements. After the pleadings were over, the first respondent did not choose to appear and was proceeded against ex-parte. The learned Rent Controller framed the following issues: - “1. Whether the respondents is in arrears of rent w.e.f. 01.04.1989 as alleged?OPP. 2. Whether the respondent No.1 has ceased to occupy the building and sublet the same to respondent No.2 without the consent of the petitioner?OPP. 3. Whether the petition filed by petitioner is not maintainable?OPR. 4. Whether the petition is bad for non-joinder of necessary parties?OPR. 5. Relief.” CR No.4268 of 2009 - 3 - ***** In order to substantiate his case, the landlord examined Inderjit Singh (PW1), Raj Kumar (PW2), Chaman Singh (PW3), HC Sukhwinder Singh (PW4) and himself appeared as (PW5), whereas the second respondent examined himself as (RW1). The learned Rent Controller discussed issues Nos.1, 2 and 3 together and decided issue No.1 and 2 in favour of the landlord and against the tenants and issue No.3 against the second respondent. Issue No.4 was also decided against the second respondent and finally the eviction petition was allowed. The second respondent challenged the order of eviction by way of statutory appeal. During the pendency of appeal, he also filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 [for short “CPC”] in order to bring on record and prove the following documents: - “i) Telephone bills. ii) Letters/envelops, copies of which are attached, received by the appellant at the address of the property in dispute, much prior to 25.06.1997, which is the cut of date given by Vidya Sagar though the petition and the replication are completely silent about the date of alleged subletting. iii) License fee receipts issued by the Municipal Corporation, Ludhiana. iv) Two bill books containing various bills for the year 1987-88 and 1988-89, some of which are signed by Shri Som Nath, deceased father of the appellant. v) Copy of death certificate of Shri Som Nath. vi) Copies of the statement of account and also the concerned clerk Punjab National Bank, Kesar Ganj, Ludhiana may be allowed to be summoned and examined along with complete CR No.4268 of 2009 - 4 - ***** record of current account No.3639 (old), 0281002100036393 (new) of M/s Som Nath Harish Chander, B-VII-786, Lakkar Bazar, Ludhiana including the account opening Form, the certified copy of the statements of account duly certified under the Bankers Books Evidence Act from the date of opening of account till today.” The said application was contested by way of reply and has been dismissed by the learned Appellate Authority along with the main appeal. It is argued by the learned counsel for the second respondent/petitioner that there is no evidence on record to prove the possession of the first respondent even for a day over the demised premises who has categorically denied relationship of landlord and tenant between the parties and also the execution of document Ex.P1. The landlord, in his cross- examination, has said that “I am not in possession of any documentary proof that Waleti Ram ever occupied the property in dispute or carry on any business”. “I am not in possession of any documentary proof that Waleti Ram ever paid any rent to me at any time regarding the suit property”. “In TSI record of M.C. Ludhiana, Waleti Ram has not been shown to be tenant in the suit property”. “I am residing in this very property”. “It is correct that I am not in possession of any documentary evidence to show that I received rent from Waleti Ram from 01.06.1973 to 31.03.1989”. He has further submitted that the landlord himself had filed eviction petition in respect of one room, whereas the Courts below have passed the order of eviction in respect of other two portions as well, namely, store and miani, which were allegedly forcibly occupied by the second respondent. He further submitted that the learned Rent Controller has no jurisdiction in respect of a property which is forcibly occupied because in that matter, the only remedy lies with the Civil Court by way of suit for possession and not by way of eviction petition which could be filed only in respect of a tenanted premises. He further submitted that the document Ex.P1 is only a license and not a lease deed. He has produced on CR No.4268 of 2009 - 5 - ***** record a translated copy (in Hindi) of Ex.P1. It is submitted by him that if it is a license, then question of sub-tenancy does not arise because the possession always remain with the licensor. It is further argued that the landlord did not give any date in his eviction petition or replication of entering the possession by the second respondent but he has disclosed it in his cross-examination while appearing as PW5 that “for the first time, respondent No.2 came into the room in dispute on 25.06.1997”. Simultaneously, he has also stated in his cross- examination that “I had seen the father of respondent Harish Chander. He was in occupation of property in dispute and running his business”. These two statements run contrary to each other because the second respondent has submitted that the case set up by him is that his father Som Nath was the tenant and in possession of the demised premises. He died in the year 1988 and thereafter, he is running the business of bardana in his place, whereas the case set up by the landlord is that the possession has been delivered to the second respondent by the first respondent. In this regard, learned counsel for the petitioner has submitted that the learned Appellate Authority has committed a serious error while dismissing his application for additional evidence despite the fact that the contents of the documents, which were sought to be produced on record, have been discussed. In this background, at the first instance, it is submitted by him that the application filed by the second respondent/petitioner under Order 41 Rule 27 of CPC may be allowed and the matter may be remanded back to the learned Appellate Authority to give an opportunity to the second respondent/petitioner to prove the documents out of which some documents are the documents of judicial record and some are of the official record. In reply, learned counsel for the landlord has submitted that both the first and the second respondent are in collusion with each other, otherwise the first respondent is alive and could have been produced by the second respondent in his defence. He has submitted that the document Ex.P1 is a lease deed and not a license. He has also submitted that the second respondent has categorically alleged that he has been paying rent to the landlord as a direct tenant, maintaining account books and has been showing the rent paid in his CR No.4268 of 2009 - 6 - ***** income tax returns but nothing has been produced on record because of which the Courts below have rightly took an adverse inference. He has further submitted that even if the landlord has alleged that the first respondent is in occupation of one room but second respondent himself has alleged that he is in occupation of the store and miani as well, therefore, the Courts below have not committed any error in ordering his eviction on the ground of subletting and non-payment of arrears of rent. In respect of additional evidence, it is submitted that the application has been rejected by the learned Appellate Authority because the application has been filed only to delay the proceedings. I have heard both the learned counsel for the parties and perused the record with their able assistance. At this stage without making any observations in respect of the merits of the case, I would first take up the issue of dismissal of the application for additional evidence raised by learned counsel for the petitioner. As observed here-in-above, the basic dispute between the parties is as to whether the first respondent has sublet the demised premises to the second respondent. Admittedly, there is no averment in the eviction petition as well as in the replication filed by the landlord about the date on which the second respondent/petitioner was allegedly inducted as a tenant by the first respondent. Only in his cross-examination, while appearing as PW5, the landlord has alleged that the second respondent/petitioner had entered the room in dispute on 25.06.1997, meaning thereby prior to this date the first respondent was in occupation, whereas the case of the second respondent is that his father was in occupation and possession of the demised premises and after his death in the year 1988 he entered into his shoes. The second respondent/petitioner has referred to the statement of the landlord (PW5) who had categorically stated that he had seen father of the second respondent in occupation of the demised premises and running his business. Thus, in order to help the Court to arrive at a just conclusion about the fact as to whether he entered the demised premises on 25.06.1997 or was already there, the second respondent/petitioner had tried to place on record the documents by way of additional evidence which has been declined by the learned Appellate Authority only on the ground that he is trying CR No.4268 of 2009 - 7 - ***** to delay the proceedings otherwise some of the documents are not self created but are of real importance like the records of the bank, telephone department and order of the Civil Court etc. In this view of the matter, I allow the application for additional evidence filed by the second respondent/petitioner and set aside the order of the learned Appellate Authority. The matter is remanded back to the learned Appellate Authority to decide the appeal afresh after taking into account the additional evidence which has been sought to be produced on record by the second respondent/petitioner. The entire exercise is directed to be concluded by the learned Appellate Authority within a period of 3 months from the date of appearance of the parties and receipt of certified copy of this order. The Registry is directed to send the record of this case back to the learned Appellate Authority, Ludhiana forthwith and parties are directed to appear before it on 25.07.2011. July 04, 2011. (Rakesh Kumar Jain ) vinod* Judge