IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 799 of 2007 Date of decision: 21st November, 2008 Radha Kishan and others … Petitioners Versus Sushil Kumar (died) through LRs … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Rajnish Gupta, Advocate for the petitioners. Mr. Sushil Gautam, Advocate for respondents. KANWALJIT SINGH AHLUWALIA, J. Present revision petition has been filed by Radha Kishan, Baldev Raj and Asha Rani. They were legal representatives of Ram Lal son of Sardari Lal. Ram Lal along with Radha Kishan was inducted as tenant by Bhagat Ram son of Rula Ram. Eviction petition was filed in year 1993. Bhagat Ram has also died and is now being represented by his son Shushil Kumar. Madan Lal son of Ramji Lal proforma respondent, is stated to be sub tenant of Ram Lal. In the eviction petition filed, it was stated that shop in dispute bearing New CK No.39718, details and description of which have been given in the eviction petition, was rented out by Bhagat Ram to Ram Lal on 23rd April, 1988 at a monthly rent of Rs.100/-. Later on, it is stated that rent was enhanced to Rs.150/- per month. The eviction of the tenant was sought on three grounds. Firstly, that he was in arrears of rent w.e.f. 1st April, 1998; secondly, for sub letting the tenanted premises to one Madan Civil Revision No.799 of 2007 Lal son of Ramji Lal and thirdly, the premises was required to settle his son Shushil Kumar in the shop. It was further prayed therein that the respondent tenant has got his own shop constructed after being inducted as tenant and therefore, on this ground also he is liable to be evicted. Rent Controller held that since the arrears of rent have been paid in the Court and accepted, ground of non-payment of rent is not available. It further held that the shop, according to Will, has been inherited by Shushil Kumar, therefore, his brother Sunil Kumar nowhere require the shop for personal necessity, especially when Sunil Kumar has not been examined as a witness. The Court further held that construction of a shop by the tenant cannot be taken as a ground for causing eviction as under Section 13(3)(a), above ground for seeking eviction of the tenant is available only qua residential tenanted buildings. However, Court upheld the ground of sub letting and ordered eviction of the tenant. Rent Controller, for coming to the conclusion that on the ground of sub letting, passing of ejectment order is made out, placed reliance upon photographs (Ex.A-2 to A-4) and the statement of PW-3 Siri Ram, to hold that prima facie, the possession of respondent No.3 Madan Lal son of Ramji Lal has been proved. It further held that once possession of Madan Lal is proved, it was for the tenant to show, in which capacity he was managing the shop. Rent Controller concluded as under: “20. Now so far as ground of sub-letting is concerned, I am of the view that it has been proved by the petitioner that the shop in dispute has been let out by respondents No.1 and 2 to respondent No.3. Mere fact prove the possession of sub- tenant over the tenanted premises and he was not required to prove the terms and conditions of the sub-letting, which clearly remains in the exclusive knowledge of the tenant i.e. the landlord of the sub-tenant. It is not possible for the landlord to prove sub-letting by the direct evidence and it is only by the surrounding circumstances that he can prove his 2 Civil Revision No.799 of 2007 case and the Court can consider the surrounding circumstances to draw proper inference of sub-letting. With the help of the statements of PW-3 Siri Ram and PW-4, the possession of respondent No.3 over the tenanted premises has been proved by the petitioner and once the possession of a stranger over the tenanted premises is proved by the petitioner/ landlord, it is for the respondents to explain the possession of that person. Since the possession of respondent No.3 has not been properly explained by the respondents, an inference of sub-letting will have to be drawn against them.” Rent Controller further held that account books were the best evidence available to prove that the tenant has control over the shop, but the same has been withheld. It further held that the evidence of PW-3 Siri Ram aspire confidence that Madan Lal has been occupying the shop. It also relied upon the admission of RW-1 Radha Kishan and stated that his father had expired in the year 2000 and both the sons of tenant Ram Lal are in possession of two other shops. It was admitted by Radha Kishan that his brother Baldev Raj run another shop in the name and style of M/s Akash Boot House, whereas, Radha Kishan was in possession of the shop being run in the name and style of Arjoo General Store. It also placed reliance upon the card of rasam pagri, in which names of these two shops were given, but the name of M/s Anand Boot House, where the sub tenant was carrying on business, was not given. Aggrieved against the order of the Rent Controller, legal representatives of the tenant had filed an appeal. A cross appeal was also filed by Shushil Kumar to challenge the finding, whereby it was held that shop is not required for bonafide personal need. The appellate authority affirmed the findings of the Rent Controller, upheld that the shop has been sub let, however, it also upheld the findings of Rent Controller that shop is not required for personal necessity. Appellate authority held as under: 3 Civil Revision No.799 of 2007 “Petitioner Sushil Kumar (P.W.4) and Siri Ram (P.W.3) have been cross-examined at length. However, there is no material in the cross-examination which could shake the testimony of these witnesses. Their statement inspire confidence. Moreover, the photographs Ex.A.2, Ex.A.3 and Ex.A.4 further corroborate the statement of these witnesses. It is proved from the testimony of P.W.2 that the photographs were taken on 16.9.1998. P.W.3 and P.W.4 have testified that the shop shown in these photographs is the disputed premises and the person sitting in the shop is Madan Lal, respondent No.3.” It further took into consideration card of rasam pagri and held that omission of name of Anand Boot House on the card is one of material circumstance. I have heard Mr.Rajnish Gupta appearing for the applicant petitioner and Mr.Shushil Gautam, appearing for the respondents. Mr.Rajnish Gupta appearing for the tenant has vehemently assailed the findings of two courts below holding that no reliance can be placed upon the photographs (Ex.A-2 to A-4), as the negatives have not been proved and it was stated that until the photographer proves the negatives, photographs are not per-se admissible. He has placed reliance upon ‘Vinit Kumar Behl v. Ruchi’ 2003 (3) Civil Court Cases 4 in support of his argument. He has also placed reliance upon ‘Joyita Saha v. Rajesh Kumar Pandey’ 2000 (2) Civil Court Cases 15, wherein it was held that no reliance can be placed upon the photographs, whose negatives were not on record. Counsel appearing for the petitioner has read the evidence of PW-2 Jagdish Photographer. His testimony, when translated, reads as under: “Stated that I do the work of Photographer. Photographs (Ex.A-2 to A-4) have been taken by me. 4 Civil Revision No.799 of 2007 Negatives of the same are Ex.A-5 to A-7 and the Bill is Ex.A- 8. These photographs, I had taken after going at the spot.” To assail this part, the counsel has referred to the cross- examination, wherein it has been stated as under: “These photographs have not been developed by me. I have also not made positives from the negatives. These were got prepared from Delhi.” The counsel, relying upon this part of the cross examination has stated that since photographs have not been developed by the Photographer himself, therefore, even though the negatives have been placed on record, no reliance can be placed upon the photographs (Ex.A- 2 to A-4) and negatives (Ex.A-5 to A-7). This contention of Mr.Gupta cannot be accepted. With the advent of time, technology has grown. Photo Laboratories have been set up, whereby through an automated process, camera reels are developed. Therefore, even though the Photographer himself had not developed positives from the negatives and had got the same prepared from Delhi, it cannot be said that photographs and negatives are to be ruled out of consideration. Negative of the photograph is primary evidence. Once the same is on record, the courts have rightly placed reliance upon the photographs. Mr.Gupta has further urged that sub letting cannot be proved, unless exclusive possession is with the sub-tenant. He has placed reliance upon ‘Bhagat Matu Ram (died) through his LRs and another v. Basati Ram Bhola’ 2005 (2) HRR 531. Reliance placed upon this judgment is misplaced. In the present case, tenants have nowhere taken the stand that sub-tenant Madan Lal was in possession of the shop due to some arrangement. They have simply denied his presence. Landlord, from the photographs and oral evidence, has proved that Madan Lal was in 5 Civil Revision No.799 of 2007 possession of the shop. Therefore, it was for the tenant to prove and show, in which capacity, Madan Lal was holding possession over the shop. Further reliance has been placed upon a judgment rendered in ‘Ram Chand Sharma v. Thakur Dass’ 2006 (1) Shimla Law Journal 286, to say that in case of petty shopkeeper, account books are not necessary to be produced and no adverse inference can be drawn. In the present case, two courts below have mainly relied upon oral testimony, photographs and the card of rasam pagri. Account books was one of the considerations and was not only consideration. Therefore, this judgment is also of no help to the petitioner. Learned counsel has further placed reliance upon ‘Kirpal Singh v. Sardha Ram’ 2003 (2) RCR (Rent) 324, to say that there is no limitation on the tenant to expand his business and he can taken any shop on rent, either for himself or for his family members. Therefore, it has been stated that the finding of two courts below that both the legal representatives, i.e. Radha Kishan and Baldev Raj are having their separate shops and are running business therefrom, cannot be construed to say that they are not in possession of the tenanted premises. A tenant can always expand but in the present case, tenant has denied the presence of Madan Lal in the shop. No explanation is coming forwarded as to how Madan Lal son of Ramji Lal was in possession of the shop. Therefore, this judgment also, in no way, come to the rescue of the petitioner. In the present case, concurrent findings of fact have been recorded by two courts below that premises have been sub-let to Madan Lal, therefore, there is nothing, on the facts and circumstances and on law, with the Counsel to dislodge the concurrent findings of fact. The view 6 Civil Revision No.799 of 2007 taken by two courts below is one view, which is possible. Same is neither perverse nor perfunctory. Therefore, I find no merit in the present revision petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 21, 2008 rps 7