C.R. No.3794 of 1991 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.3794 of 1991 (O&M) Date of Decision:06.05.2009 Vimal Kumar .......Petitioner Versus Avinash Chander ....Respondent Present: Mr. Amit Jain, Advocate for the petitioner. None for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? -.- K. KANNAN J.(ORAL) 1. The landlord's action for eviction on the ground that the tenant had ceased to occupy the premises was rejected by both the Courts below. The landlord is in revision before this Court. 2. The cessation of occupation of the premises by the tenant was sought to be proved by the landlord by saying: (i) that the business had been closed and even the postman who ought to have known if the business had been carried on, had been examined and he reported that notice sent by the landlord could not be served because the shop had remained closed at all times; (ii) a meter reader from the Electricity Board had been examined to show that the units of consumption had gradually fallen down and it was as low as three or four units, which was evidence of the fact that business was not being run; (iii) an official from the Tax Department had been examined as C.R. No.3794 of 1991 (O&M) -2- PW-7, who gave evidence to the fact that a certificate of registration as a taxing entity of the respondent's business had been cancelled and he had not paid any sales tax during the relevant period when the landlord had complained that the tenant had closed down his business; (iv) the respondent had admitted that he had closed his bank account even in the year 1983 and he had not opened an account for the business thereafter. He had also admitted that there were account books in relation to the conduct of the business but he had not further filed them in Court. 3. Learned counsel appearing for the petitioner submits that the burden of proof though is always on the landlord in a case where it is contended that the tenant had ceased to occupy the premises, but by the nature of fact that it is negative in character, it could only mean that the landlord cannot say anything more than the fact that the tenant had ceased to occupy the premises and the onus of proof will thereafter be shifted to the tenant to join issues on every aspect that could indicate that the business was being run. Citing the judgment of this Court in Shivshanker Mal (dead) through his LRs Vs. Kishan Chand 2003 (1) RCR 584, learned counsel for the petitioner submitted that a case of cessation of the tenant occupying the premises for more than four months could be established by a landlord proving: (i) there was no electricity consumption for six months; (ii) the employees of Electricity Board found the business premises locked; (iii) there had been no sale or purchase of goods from the shop in question and (iv) no account books had been produced. The attempt was to show an immediate parallel to the circumstances that were C.R. No.3794 of 1991 (O&M) -3- available in a case at hand where each one of the parameters applied by the Court to find that the tenant had ceased to occupy were available also in this case. The approach of the trial Court and the Appellate Court had been to take up each one of the factors independently and give an explanation as to how each one of the factors cannot prove anything. Rejecting the evidence of the postman, the authorities below had stated that the postman himself had noted that only on some of his visits, the business premises had been found closed and on some occasion, had also seen the shop opened. Adverting to the evidence of the meter reader, the authorities below found that the mere fact that the electricity connection was low could not establish conclusively that the business was not being run. They further discounted the evidentiary value of a person from the Tax Department that there had been a cancellation of the certificate of assessment and the Courts relied on statements made in the cross- examination by PW-7 that only the payment of tax had been not made but the assessment still remained and the tenant had been filing returns. They said that the fact that returns were submitted showed that he had not completely shut down the business in premises. The Courts, however, did not refer to the consequences of the admission that the bank account had been closed or that the bill books were available but not produced. 4. The orders of the Courts below are vitiated by the fact that the evidence of proof of closure could have been best demolished by the tenant by offering positive evidence on each one of the factors held out against him. The conspectus of the entire evidence relating C.R. No.3794 of 1991 (O&M) -4- to the closure of business as adverted to by the landlord must have been taken together and an explanation must have been sought from the tenant himself to explain the situations that had showed that most of the time shop had remained closed or that the electricity consumption had been the bare minimum and that he had not even paid the tax and how it came to happen that even the account books that had been maintained were not produced before Court. The approach of the Courts below in appreciating the nature of evidence adduced betrays a lack of proper approach to sift evidence in the manner it ought to have been done, which has resulted in the miscarriage of justice. The orders of the Courts below are clearly vitiated and the dismissal of the petition for eviction is erroneous. 5. The orders of the Rent Controller and the Appellate Authority are set aside and the civil revision is allowed in the above terms. (K. KANNAN) JUDGE May 06, 2009 Pankaj*