CR No.3120 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3120 of 2011(O&M) Date of decision: 9.8.2011 Ambika ......Petitioner(s) Versus Hukma Devi Aggarwal and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Amardeep Singh Gill, Advocate for the petitioner. Mr. D.K. Bhatti, Advocate for the respondents. Rakesh Kumar Garg, J. The petitioner, who is claiming herself to be daughter of Chander Mohan (since deceased)-tenant, has filed that instant revision petition, as his legal representative, challenging the order dated 19.10.2007 of the Rent Controller, Jalandhar whereby eviction of Chander Mohan- tenant from the demised premises was ordered on the ground that he has ceased to occupy the same and further the order dated 4.1.2011 of the Appellate Authority whereby appeal filed by the petitioner-tenant was dismissed. The respondent filed petition under Section 13 of the East Punjab Urban Rent Restriction Act (for short the 'Act') for ejectment of Chander Mohan(since deceased and now represented by the petitioner) on the averments that the demised shop was let out to him at a rent of Rs.100/- per month and he was liable to be evicted on the grounds of non payment of arrears of rent; change of user of demised premises; the additions and alterations had been made in the demised shop and the petitioner has ceased to occupy the demised shop for a continuous period CR No.3120 of 2011(O&M) 2 of more than two years. The eviction application filed by the respondent was contested by Chander Mohan-tenant. Relationship of landlord and tenant was admitted. The rate of rent was also admitted. Change of user of demised shop was denied. It was further denied that the petitioner had materially impaired the value and utility of the shop in question illegally. It was also denied that the petitioner had ceased to occupy the shop in question for the continuous period of more than two years with effect from 1.3.1997 till the filing of the petition on 19.7.1999. From the pleading of the parties, following issues were framed: “1. Whether the respondent has sublet the premises? If so its effect? OPA 2. Whether respondent has made additions and alterations in the disputed property? OPA 3. Whether respondent has ceased to occupy the said property for the last more than two years? If so its effect? OPA 4. Whether the power of Attorney executed by Hukma Devi in favour of Sanjeev Kumar is the result of fraud? OPR 5. Whether the petition is liable to be rejected as neither Form A & Form C is attached with the petition? OPR 6. Whether the petitioner entitled for ejectment as prayed for? OPA 7. Relief.” After hearing learned counsel for the parties and after going through the evidence on record, the Rent Controller allowed the petition CR No.3120 of 2011(O&M) 3 with no order as to costs on the ground that the petitioner had ceased to occupy the premises in dispute with effect from 1.3.1997 upto 19.7.1999. The appeal filed by the petitioner against the aforesaid order of eviction was also dismissed by the Appellate Authority. While dismissing the appeal, the Appellate Authority observed as under:- “11. After hearing the learned counsel for the parties and also after going through the record I have arrived at the conclusion that there is no defect in the well reasoned order of ejectment passed by the learned Rent Controller against the appellant on the ground of his having ceased to occupy the premises in question from 1.3.1997 to 19.7.1999. It has been argued by the learned counsel for the appellant that it has been proved that because of suffering paralytic attack the tenant died in the year 2001. After death of Chander Mohan (tenant) his widowed daughter Ambika has started running business of cassettes and C.Ds in the shop in dispute and thus it cannot be said that the shop ever remained un-occupied. He has further argued that mere non consumption of electricity by Chander Mohan during his life could not have been made ground by the learned Rent Controller to say that he ceased to occupy the same during the aforesaid period when it has come on record that the shop in question was just being used as a Godown. In support of this contention he has relied upon the findings of the Honorable Punjab and Haryana High Court in case titled (Geeta Bhalla and others Vs. Krishan Kumar (dead) through L.R.s , 2006 (2) RCR CR No.3120 of 2011(O&M) 4 379, wherein it was held that no adverse inference can be drawn if tenant who was petty shop keeper failed to produce electricity bills and account books. Mere non consumption of electricity by itself was not sufficient to hold that the tenant has ceased to occupy the premises. 12. I have considered such submission of the learned counsel for the appellant but do not find any force in the same because the present ejectment application was filed during the life time of Chander Mohan (tenant) and Chander Mohan died only during the pendency of the ejectment petition where after his L.Rs were brought on record. So the occupation of the shop in question by RW1 Ambika daughter of Chander Mohan after his death in the year 2001 during the pendency of this petition cannot be made ground to say that such shop was also being occupied by Chander Mohan during the crucial period from 1.3.1997 to 19.7.1999. During his cross-examination it was categorically deposed by RW1 Sanjiv Kumar attorney of Hukma Devi landlady that respondent Chander Mohan ceased to occupy such shop from 1.3.1997 till filing of this petition and as such the shop was lying closed. It is also proved from the statement of PW4 Roshan Lal Clerk Excise and Taxation Department Jalandhar that earlier Chander Mohan was running business in the shop in question under the name and style of Accumake Electricals and was issued Sales-tax No.32520211. Such firm of Chander Mohan has not filed any Sales-tax return from CR No.3120 of 2011(O&M) 5 1.4.1998 onwards and, therefore such Sales-tax registration number was cancelled on 30.4.1998. This part of the statement of Roshan Lal has corroborated the statement of PW1 Sanjiv Kumar that Chander Mohan stopped running the aforesaid business on or before 1.4.1998. Had it been not so, there was no reason for him to not file Sales-Tax return and there was also no reason for him to allow cancellation of his sales tax registration. It was deposed by PW4 Roshan Lal that such registration has been cancelled due to closer of the business. The learned counsel for the appellant has not been able to satisfy this Forum as to why reliance should not be placed upon words of such official witness. There was no reason for this witness to make false statement. He was speaking from the record of his office. Even during her cross-examination RW1 Ambika could not deny that her father was issued Sales- tax number. All the electricity bills Ex.R2 to Ex.R5, proved on record by the L.Rs of the respondent, are pertaining to the period after the year 2004 and, therefore, issuance of such electricity bills in the name of RW1 Ambika are not sufficient to improve their case. The aforesaid evidence of the landlady, that the shop in question remained unused and un-occupied during his life time from 1.9.1997 to 19.7.1999 is totally un- rebutted. There is not an iota of documentary evidence from the side of the respondent to rebut the aforesaid evidence of the landlady and also to prove that during CR No.3120 of 2011(O&M) 6 this period the shop never remained un-occupied by Chander Mohan especially when it is admitted by Ambika that her father suffered paralytic attack in the year 2000 and died in the year 2001. 13. Findings of the Honourable High Court in Geeta Bhalla's case (supra) are not helpful to the appellant. Even if the aspect of non-production of electricity bills by the appellant is ignored the respondent is otherwise not able to rebut the shop remained un-used and un- occupied by respondent Chander Mohan from 1.9.1997 to 19.7.1999. Statement of RW2 was also rightly ignored by the learned Rent Controller because it seems that his examination-in-chief was prepared mechanically. He deposed in his examination-in-chief that electricity meter was installed in the name of his father for the last many years. Such averment in his examination in chief is vague because it clearly goes to show that he has no personal knowledge about the use and occupation of such shop by Chander Mohan during the disputed period. The learned Rent Controller has rightly appreciated the evidence on record while passing ejectment order against the appellant. Such well reasoned order of ejectment cannot be set aside. By affirming such ejectment order, the present appeal is dismissed with costs. Memo of costs be prepared. Trial Court record be returned along with copy of this judgment. File be consigned to the Record Room.” CR No.3120 of 2011(O&M) 7 Challenging the aforesaid orders, learned counsel for the petitioner has vehemently argued that both the Courts below have concurrently held that Chander Mohan, who was tenant in the demised premises, had not carried out any business and had ceased to occupy it because he suffered a paralytic attack, meaning thereby that the petitioner had not ceased to occupy the premises in question continuously for a period of more than four months without any reasonable cause and therefore, keeping in view the provisions of Section 13(2)(v) of the Act, the petitioner could not have been ordered to be evicted. Elaborating his argument, learned counsel for the petitioner has referred to the statement of RW1 Ambika who had stated that Chander Mohan had suffered a paralytic stroke and was not well. On the other hand, learned counsel appearing on behalf of respondents has supported the impugned order and has submitted that on appreciation of evidence a finding of fact has been recorded which cannot be interfered with. I have heard learned counsel for the parties and perused the impugned orders and the pleadings and the evidence as produced before this court with the help of the learned counsel for the parties. No doubt, it has come in evidence that Chander Mohan suffered a paralytic attack before his death in the year 2001. However, the arguments raised by the learned counsel for the petitioner cannot be sustained in view of the facts that the same is contrary to the pleadings of the petitioner itself. A perusal of the written statement filed on behalf of Chander Mohan would show that he had taken a specific stand by mentioning that he was fully in possession of the property and the same was under his use. In the written statement the petitioner-tenant has not come out with the defence that the shop in question remained closed for a reasonable cause. Thus, the argument CR No.3120 of 2011(O&M) 8 raised by the learned counsel for the petitioner which is beyond his pleadings cannot be taken into consideration. It is also well settled that any amount of evidence which is beyond pleadings cannot be looked into. Even otherwise the relevant period when the shop remained closed is w.e.f. 1.9.1997 to 19.7.1999 whereas admittedly Chander Mohan suffered paralytic attack thereafter. Moreover, both the Courts below have recorded a concurrent finding of fact on appreciation of evidence. No material has been pointed out to controvert the aforesaid findings. An effort was also made by the petitioner to establish that the shop in question never remained unoccupied as the petitioner who is the daughter of Chander Mohan-tenant was doing the business after his death in the year 2001 and during the pendency of proceedings before the Rent Controller. However, the aforesaid argument is meaningless in view of the fact that there is no evidence to controvert the finding that w.e.f. 1.9.1997 till the filing of petition on 19.7.1999 and thereafter, upto the death of Chander Mohan-tenant, the shop in dispute remained unoccupied. In this view of the matter, I find no merit in this petition. No other argument has been raised. Dismissed. August 9, 2011 (RAKESH KUMAR GARG) ps JUDGE