CR No.7148 of 2010 (O&M) - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7148 of 2010 (O&M) Date of decision:04.07.2011. Satish Chand ...Petitioner Versus Raghu Nandan Parshad ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Adarsh Jain, Advocate, for the petitioner. Mr. Naveen Kaushik, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The tenant is in revision against order of the learned Appellate Authority by which eviction petition filed by the landlord under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short “the Act”] has been allowed on the ground of material impairment of the value and utility of the demised premises. In short, the case set up by the landlord is that he had let out two shops shown in the site plan with letters `ABCD' & `BEFD', situated in Bada Mohalla, near Balmiki Park, Palwal, bearing Municipal Property Nos.494/13 and 494/14 at the monthly rent of `509.50/- & `635.50/- respectively for the purpose of running the business of fertilizer, but the tenant has neither paid the rent w.e.f. 01.10.2003 till the date of the filing of the eviction petition without any sufficient reason and had also removed the wall at point B to D in October, 2003 without permission of the landlord and effected material change in the demised premises by converting two shops into one resulting into impairment to its value and utility. In the written statement, the tenant admitted himself to CR No.7148 of 2010 (O&M) - 2 - ****** be in possession of two shops bearing Nos.494/13 & 494/14, but it was denied that there was any wall between the two shops at the time of inception of tenancy. He denied to have removed the wall from point B to D much-less in October, 2003. On 14.10.2004, the learned Rent Controller framed the issues and in order to substantiate their case, both the parties led their oral as well as documentary evidence in which the landlord examined Ajit Lamba, D.R.K. Palwal (PW1), D.D.Parashar, Advocate (PW2), Raghunandan (PW3) and tendered the documents Ex.P1 to Ex.P6, whereas the tenant examined Jodha Ram, Fieldman of office of the Deputy Director, Agriculture (RW1), Mahesh Chand Gupta, Inspector/SDO, Agriculture office, Hodal (RW2), Rambir (RW3), Prithvi Raj (RW4), Vinod Kumar (RW5) and himself appeared as ( RW6). The learned Rent Controller did not agree with the landlord and primarily relied upon the statements of the witnesses of the tenant on the ground that they are independent witnesses who have alleged that they have not seen intervening wall at point B to D in the demised premises and, thus, observed that it was not in existence since the inception of the tenancy. It was also observed that the landlord has failed to bring any evidence to prove that the alleged wall was demolished by the tenant in the month of October, 2003. It was further observed that the tenant had taken the demised premises on rent in the year 1988 and if the wall was removed at that time, the eviction petition could not be filed after a period of 15 years on the principle of acquiescence on the part of the landlord. The learned Appellate Authority, however, reversed the order of the learned Rent Controller on the ground that the landlord had filed the application for fixation of fair rent under Section 4 of the Act on 02.08.1997 in which he had alleged that he had let out two shops to the tenant which was admitted in the written statement by the tenant and the said written statement was exhibited by the landlord as Ex.P1 on the basis of which it was held that existence of two shops as admitted by the tenant would not arise until and unless they are separated by an intervening wall. The learned Appellate Authority also observed that admission is the best piece of evidence by which the tenant is bound and the bald oral evidence led by the tenant of the persons CR No.7148 of 2010 (O&M) - 3 - ****** who have alleged that there was no intervening wall cannot be relied upon because the petition for fixation of fair rent was decided on 27.09.2000 in which fair rent of both the shops were separately assessed. In view thereof, the learned Appellate Authority ordered eviction of the tenant. While assailing order of the learned Appellate Authority, learned counsel for the tenant has vehemently argued that there is no evidence brought on record by the landlord that the structural alteration has been made in the year 2003 and that both the shops were let out with the partition wall. He has also submitted that the tenancy had started in the year 1988 and the eviction petition was filed in the year 2003 and it cannot be believed that the landlord would keep quite for such a long time if there has been a structural alteration in the demised premises. On the other hand, learned counsel for the landlord has submitted that the oral evidence led by the tenant to prove that the wall at point B to D was not in existence in between the two shops is belied by his own written statement filed on 31.08.1998 in the petition filed by the landlord under Section 4 of the Act wherein he had admitted that there were two shops and a single petition for fixation of fair rent for two shops was not maintainable. It is submitted that had there been a single shop with two shutters bearing two municipal numbers, the tenant would have easily raised this plea at that time but in order to seek dismissal of the petition filed under Section 4 of the Act, he had alleged that with regard to fixation of rent for two shops, a single application is not maintainable. He also submitted that the specific case set up by the landlord is that the mischief has been committed by the tenant in October, 2003 and the eviction petition was filed in December, 2003, therefore, there is no question of acquiescence on his part. I have heard both the learned counsel for the parties and perused the record with their able assistance. The landlord has claimed that he had let out two shops shown in the site plan with letters `ABCD' & `BEDF' bearing municipal property Nos.494/13 & 494/14 respectively regarding which he had filed a petition under Section 4 of the Act for fixation of fair rent in the year 1997 alleging them to be CR No.7148 of 2010 (O&M) - 4 - ****** different shops which were let out at different point of time as shop No.494/13 was let out on 01.07.1988 and shop No.494/14 was let out on 01.07.1993, i.e. after a gap of 5 years. In the written statement to the petition filed by the landlord under Section 4 of the Act, the tenant had categorically alleged that “the present petition has been filed for fixation of fair rent with respect to the two shops. Both the shops were taken on rent by the respondent on different times”. “In this way, there are two tenancies and one petition for fair rent is not maintainable”. The tenant had admitted that two tenancies were created on different dates. However, the learned Rent Controller, vide his order dated 27.09.2000, assessed the fair rent of shop No.494/13 @ `453/- per month besides house tax and @ `565/- per month besides house tax in respect of shop No.494/14. It cannot be comprehended that there could be different tenancies of one shop No.494/13 created on 01.07.1988 and the other shop No.494/14 created on 01.07.1993 without there being any intervening wall. Had there been no intervening wall between the two shops, the tenant had no occasion to take on rent the second shop No.494/14 on 01.07.1993 as he was already enjoying the entire premises from inside even if there were two shutters put up outside for the purpose of entrance. Moreover, the tenant had admitted in the written statement (Ex.P1) filed in the proceedings of fixation of fair rent that there were two shops and in order to get it dismissed he had further alleged that they were let out on different dates and a single petition for fixation of fair rent for two shops was not maintainable. At that stage, he could have easily said that there exits only one shop because in order to create two shops they have to have four wall of its own. Thus, I do not find any error of the Appellate Authority in reversing the order of the learned Rent Controller in this regard. Insofar as the finding of the learned Rent Controller that the eviction petition has been filed after 15 years is concerned, that is also not acceptable because the oral evidence led by the tenant cannot override his own admission made in the written statement (Ex.P1) filed in the petition under Section 4 of the Act in which he had alleged that there were two shops and did not challenge the order of the learned Rent Controller of assessment of fair rent passed in the year CR No.7148 of 2010 (O&M) - 5 - ****** 2000. The landlord has categorically alleged that it is in October, 2003 the tenant has removed intervening wall which is subsequent to the order passed by the learned Rent Controller in the petition under Section 4 of the Act and is believable. In view of the aforesaid facts and circumstances of this case, the learned Appellate Authority has rightly passed the order of eviction on the ground of impairment of value and utility of the demised premises on account of material structural alteration. Hence, the present revision is hereby dismissed being denuded of any merit. No costs. July 04, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE