IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5631 of 2003 Date of decision: 5th November, 2008 Ajit Kumar Jain (deceased, through LRs) … Petitioner Versus Atul Kumar Jain … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Mani Ram Verma, Advocate for the petitioner. Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Ajit Kumar Jain petitioner was inducted as tenant in a shop situated at Jind. Petitioner has been unsuccessful in both the courts below and aggrieved against the same, he has filed present revision petition. In the present case, eviction petition was preferred on 12th January, 1990 and after 18 years, this Court is deciding the revision petition as this case has a chequered history. Earlier, the tenant was proceeded ex-parte. He filed a revision, in which he succeeded and against that, an SLP was preferred, where order of this Court was maintained, which is evident from the fact that replication to the plaint was filed after 11 years. Eviction petition has been attached with the present revision petition as Annexure P-4. This petition was filed by the landlord through his Attorney, who is none else, but his son Prem Chand. It was pleaded in the eviction petition that vide Rent Deed dated 11th February, 1984 @ Rs.450/- Civil Revision No. 5631 of 2003 per month, the petitioner was inducted as tenant for a period of two months and subsequently, he became a statutory tenant. It was also stated that on 15th October, 1988, Rent Controller had assessed fair rent to be Rs.550/- per month. Eviction petition was filed on two grounds. Firstly, that there has been default in payment of rent and the second ground pleaded was that tenant has ceased to occupy and run his business in the demised shop and same was lying closed since 17th August, 1989, which is more than four months and that being continuous, tenant, on this ground is liable to be evicted. A reference can be made to Section 13(2)(5) of the Haryana Rent Restriction Act, wherein a condition has been laid that in case tenant has ceased to occupy the premises for a period of four months continuously, he is liable to be evicted. A written statement was filed to the eviction petition. Written statement has been attached with the present petition as Annexure P-5. In reply to relevant para, regarding the fact that tenant has ceased to occupy the premises, it has been averred as under: “4. (b) that in reply to sub para (b) of the petition it is submitted that the respondent never ceased to occupy the shop in dispute for a continuous period of 4 months or more or from 17.8.89 till the date of eviction petition that the shop never remained lying locked as alleged in this para. The respondent has been doing his business regularly/ continuously in the shop in question. However, it is submitted that the shop might be closed for 2/3 days on four or five occasions for the illness of the respondent or on account of the pendency of the litigation between the respondent and his brothers over the ancestral property, since 1983 the respondent had to attend the Court or to look after and prepare his cases. Thus the absence of the respondent for 2/3 days in a row was sufficient reason and not otherwise. The contents of sub para (b) of the petition are wrong hence denied.” 2 Civil Revision No. 5631 of 2003 Mr.Mani Ram Verma appearing for the petitioner has laid much emphasis and has read the replication to this portion of the written statement. Averment made in the replication reads as under: “4. (b) that in reply to sub para 4(b) of the written statement it is submitted that the respondent is not doing any business in the premises in dispute nor he is in possession of the same. Rather his one son has installed & running S.T.D. in the premises in dispute and one son namely Deepak Jain has placed his sign board upon the premises i.e. “DEEPAK JAIN FINGER PRINT AND HAND WRITING EXPERT’ which clearly shows that the respondent is not in physical possession of the premises in dispute. However, respondent also changed the original condition and shape of the premises and material impaired its value and utility, because the respondent has removed the WOODEN DOORS from the premises and also paced the shutter on it forcibly and illegally and without the consent and permission of the petitioner and he also increased the Floor level of the shop/ premises in question, which is also clearly violation of the orders of the Hon'ble High Court. Para No.4 (b) of the petition is correct and re-affirmed. Hence the respondent is liable to be ejected from the shop in question on the grounds mentioned in this paras of the re-joinder/ replication.” It will be pertinent to mention here that Mr.Arun Jain appearing for the respondent has stated that this replication was filed on 15th February, 2001, after more than 11 years. In this way, he has tried to explain these pleadings in the replication in the course of arguments to say that change in occupation of shop took subsequently but before filing eviction petition shop continuously remained closed for four months. After the pleadings were completed, following issues were drawn by the Rent Controller: 3 Civil Revision No. 5631 of 2003 “1. Whether the respondent is in arrears of rent since 11.1.89 to 11.2.90 at the rate of Rs.550/- per month as alleged? OPP 2. Whether the respondent has ceased to occupy the premises in dispute for more than 4 months continuously witout any reasonable cause? OPP 3. Whether the rent tendered is a short and late? OPP 4. Relief.” PW-1 Dharam Singh Clerk from the Record Room proved the litigation, in which the petitioner was impleaded by one Raj Kumar. Therefore, an eviction petition (Ex.P-1) ‘Raj Kumar v. Ajit Kumar’ has been proved. Mr. R.S.Sindwani, PW-2 was examined to prove that he had preferred a rent petition on behalf of Raj Kumar Anand against Ajit Kumar Jain, present petitioner. PW-3 Chand Ram, Advocate was appointed as Local Commissioner and he has proved his report (Ex.P-3). PW-4 Raj Kumar Anand is another landlord qua petitioner and he has proved eviction petition (Ex.P-1) filed by him. PW-5 Jai Singh is a Lower Divisional Clerk of Haryana State Electricity Board. He testified that from August 1989 to April 1991, the demised shop was reported to be closed and from a meter reader it has been report that premises has been locked. PW-5 has further stated that the electric connection of the premises was disconnected in August 1989 and was restored in April 1991. PW-6 Vinay Goel stated that he is a resident of Ashri Gate and he has seen the shop having remained closed. PW-7 Kamal Rai Sharma was another Advocate. He was also examined as Local Commissioner and he has proved his report Ex.P-4. Ram Chand son of the landlord being Attorney, appeared as PW-8. Besides this, various documents were tendered by the landlord, to which a reference has been made by the two courts below. 4 Civil Revision No. 5631 of 2003 Petitioner also led his evidence and examined Karam Singh Lathar Clerk RW-1 to show that on the date when Local Commissioner had visited, he was present in the Court. Petitioner tenant himself appeared as RW-2. Jai Parkash RW-3 was examined. He has proved the Bank Account record (Ex.R-2) of M/s Jain Saree & Readymade Corner, a shop which was being run by the petitioner from the premises in dispute. RW-4 Ravinder Sharma has stated that He was operating a Rehri in front of the shop. RW- 5 Madhav Sharma has stated that his house is in Ashri Gate and he has seen the shop to be open during the relevant time. Thereafter, the evidence was closed. Two courts below have ordered eviction of the petitioner on both grounds, i.e. firstly, there has been default in payment of the rent and secondly, petitioner tenant has ceased to occupy the premises continuously for four months before filing of the eviction petition. During course of arguments, Mr.Mani Ram Verma, relying upon the chart (Ex.R-4 and Mark-X), has stated that rent in excess was paid including the house tax. But Sh.Jain, counsel for the respondent has very fairly stated that even though the courts below have held that tender of payment was short and it is a fact that under protest tender of the rent and house tax was accepted, therefore, he will not press this ground in view of the judgment rendered by Hon'ble Apex Court in ‘Rakesh Wadhawan and another v. Jagdamba Industries Corporation and others’ (2002) 5 Supreme Court Cases 440. Mr. Verma, to dislodge the concurrent finding of fact recorded by two courts below that the tenant has ceased to occupy the premises, has made following submissions. He has stated that no reliance can be placed upon Ex.P-3 and P-4, the reports submitted by the Local Commissioners, PW-3 Chand Ram and PW-7 Kamal Rai Sharma, as they had visited the premises after the 5 Civil Revision No. 5631 of 2003 filing of the petition and their opinion is only regarding duration, after which the petition has been filed. He has further stated that as per law, the period before filing of the petition is to be taken into consideration and not the subsequent events. He has further stated that as per report (Ex.P-4) submitted by Kamal Rai Sharma, petitioner was present at the spot on 16th January, 1990. Even though, it was noticed therein that he was not present on 13th January, 1990 and 15th January, 1990. He has also stated that in this context, report of Chand Ram, Local Commissioner PW-3 will pale into significance when he stated that petitioner was not present on 24th January, 1990 and 8th March, 1990. Therefore, two-fold submission has been made that as per the law subsequent reports cannot be relied, and even if relied, it was established that the petitioner was present on 16th January, 1990. It has been next submitted that no implicit reliance can be placed on the testimony of Jai Singh PW-5, as during cross-examination he has stated that it was found by the meter reader that the premises were closed and he has no personal knowledge regarding this fact. Mr. Verma has also highlighted the testimony of Jai Singh, when he stated that since he has no personal knowledge, therefore neither he could admit nor deny as to whether the shop was closed or not. A second submission has been made that even if the electric connection was disconnected, this can only be taken as one indicator and disconnection itself be interpreted to hold that the shop was closed. To counter the fact that petitioner had occupied another shop, it has been stated that law nowhere put clog on the tenant that he cannot occupy another premises. Mr.Verma has further drawn the attention of this Court to a portion of examination in-chief of the landlord, where he stated that shop remained closed after the Local Commissioner had inspected the report. Mr. Verma states that it should be construed as admission on the part of the landlord that earlier thereto, the shop was not 6 Civil Revision No. 5631 of 2003 closed. It has been further stated with force that this should also be taken into consideration that in examination in-chief no evidence has been led in support of the pleadings. Therefore, that part of the pleadings should be ignored. Mr. Verma has further stated that in the replication, it was stated that two sons of the petitioner have occupied the shop and STD booth is operating, therefore he has stated that once the shop was being operated by the sons of the petitioner, it cannot be stated that the tenant has ceased to occupy the shop. Therefore, he says that the replication portion reproduced above, demolishes the case of the landlord. Mr. Verma has referred to Ex.R-2, the Bank Account. The same reveals an interesting story. For a period of four months, only interest of Rs.1026/- has been reflected and in the relevant period, only one deposit of Rs.1000/- has been made. Mr.Arun Jain, to controvert these facts, has stated that whether the tenant is in use of the premises or has ceased to occupy, cannot be assumed from a single factor. A Court has to take into consideration the whole gamut and has to formulate a wholesome view. He has stated that tenant has admitted in his cross-examination that he has brought no record, ledger or any cash memo. He has stated that furthermore, it should be taken into consideration that vide Ex.P-1 for the very relevant period, tenant had occupied another shop and had operated the same business in another premises. He further states that this fact can also be corroborated from the written statement where it has been stated that the tenant was absent for 2-3 times. There has not been specific denial on the part of the tenant that he was occupying the shop and premises. Mr. Jain has further stated that the very fact that the electricity was disconnected in August 1989 and it was restored in April 1991, is sufficient to infer that the premises were not being occupied. Mr. Jain has 7 Civil Revision No. 5631 of 2003 stated that the conduct of the landlord should be taken into consideration that at the very first available opportunity, he requested the Court to appoint Local Commissioner and visit the premises. Two Local Commissioners have gone and they have submitted their reports. He has further stated that the tenant has furnished lame excuses in the Court when he stated that the electricity was disconnected because official of the Electricity Department was demanding Sari and refusal of the same led to disconnection of the electricity. Having heard learned counsel for the parties, I am of the view that there is no merit in the present petition and the same is dismissed. Two courts below, after appreciating the entire evidence have formulated the issues. This Court is conscious that while exercising revisional jurisdiction, the findings arrived at by the courts below, cannot be disturbed, if it is borne out by the records. If one view is possible and from the evidence, same can be formulated, that will not be discarded by the revisional Court and will not be substituted by another opinion. Even otherwise, from the accounts (Ex.R-2) it has been proved that for a period of four months only one transaction for Rs.1000/- has taken place and the electricity was disconnected and the meter reader has stated that the premises were lying closed. It is the conduct of the tenant, from which it can be safely inferred that the premises were closed and the tenant ceased to occupy the same. Furthermore, it has come in evidence that petitioner had occupied another shop and eviction petition was filed qua that shop and that pertains to the same relevant period when this shop was lying closed. Portion of the replication cannot be relied as the same was filed after eleven years and the tenant has pleaded in evidence that at present sons of the tenant are occupying the shop. A lapse here, a mistake there, is not sufficient to rake up loopholes to throw the entire case. 8 Civil Revision No. 5631 of 2003 Therefore, taking the entire evidence into consideration, I am of the view that there is no infirmity in the findings recorded by the two courts below, therefore they are hereby affirmed. At this stage, Mr.Verma states that since petitioner is running a shop, he be provided sufficient time to make an alternative arrangement. Petitioner is granted two months time to vacate the premises and to hand over the peaceful vacant possession to the landlord. For reasons stated above, present revision petition is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 05, 2008 rps 9