IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No. 90/2010 Decided on:23.8.2010 _____________________________________________ Vipin Kumar. …Petitioner. Versus Raj Kumar. …Respondent. _____________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Subhash Sharma, Advocate. For the Respondent : Nemo. __________________________________________________ Rajiv Sharma, Judge (oral). This revision petition is directed against the order dated 19.5.2010 of the Appellate Authority (II), Una in Rent Appeal No. 3/2009. 2. Material facts necessary for the adjudication of this petition are that the respondent-landlord (hereinafter referred to as ‘the landlord’ for convenience sake) filed the eviction petition against the petitioner-tenant (hereinafter referred to as the tenant for convenience sake) on the following grounds: 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 1. “That the respondent is in arrears of rent from June, 2002 till date @ Rs. 1065/- per month. 2. That applicant is also entitled for 10% increase after every five years from the date of commencement of tenancy i.e. 1.8.1988, in following manner:- I. 1.8.1993 to 31.7.1988 @ 10% i.e. Rs. 88. Enhancement 88/-=60x80=0048000. II. 1.8.1998 to 31.7.2003 @ 10% i.e. 968/- Enhancement 168x60=10,080/-. III. 1.8.2003 to 28.2.06 @ 10% Rs. 1065/- Enhancement 265x31=Rs. 8215/- with interest @ 9% P.A. on arrears of rent. 3. That the tenant/respondent has ceased to occupy the rented shop for a continuous period of twelve months without reasonable cause i.e. from 1st September, 2004.” 3. The tenant filed detailed reply controverting the averments made in the petition. He has pleaded that the rent was increased to Rs. 880/- per month in the year 1995 on the request of the landlord. He has denied that he was in arrears of rent. According to him, rent was paid upto October, 2005 and the rate of rent was not Rs. 1065/-, as landlord never claimed the enhancement of rent after 1995. He has further averred that he is running the business of selling of cloth in the shop in question under the name and style of Ram Nath and Sons. The marriage of the daughter of the petitioner was solemnized in the month of December, 2005 and the landlord purchased the cloth worth Rs. 7730/- from the shop on 29.11.2005 and 4.12.2005. The landlord promised to adjust the amount towards the rent. The Rent Controller framed the 3 issues on 18.6.2007. The Rent Controller found the tenant in arrears of rent and the landlord was held entitled to enhanced rent, arrears of which came to Rs. 105714/- alongwith rent due till the final realization of amount. The tenant was found liable to be evicted from the premises on the ground that tenant has ceased to occupy the premises. This order was passed by the learned Rent Controller on 4.7.2009. The tenant preferred an appeal before the learned Appellate Authority. It was pleaded before the learned Appellate Authority that as far as the arrears of rent was concerned, the same stood deposited by the tenant as per order dated 4.7.2009. The only point, which was framed by the learned Appellate Authority, was as under: “Whether the respondent/tenant has ceased to occupy the rented premises from 1st September, 2004 onwards i.e. a continuous period of more than 12 months immediately preceding the filing of the petition without any reasonable cause?” 4. The learned Appellate Authority dismissed the appeal on 19.5.2010. Hence, this appeal by the tenant. 5. Mr. Subhash Sharma has strenuously argued that orders passed by both the courts below are not sustainable. He then contended that the learned courts below have returned a wrong finding that the tenant has ceased to occupy the shop without reasonable cause. According to him, the tenant has led ample evidence to prove that he has not ceased to occupy the shop in question. 4 6. I have heard Mr. Subhash Sharma at length. 7. Section 14 (2) (v) of the Himachal Pradesh Urban Rent Control Act, 1987 reads thus: “14 (2) (v) : That the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause.” 8. The landlord submitted affidavit under order 18 rule 4 of the Code of Civil Procedure and appeared as PW-2. According to him, the shop in dispute was closed/locked by the tenant from 1.9.2004 onwards without any reasonable cause. In his cross-examination, he deposed that the shop in question is near to his shop. Electric meter was installed in the shop. He denied the suggestion that the tenant was running the business in the demised premises and he has given a false statement. 9. PW-3 Om Parkash, one of the neighbourers, has supported the version of the landlord. PW-1 is Ganesh Dutt. He is a Draftsman. He went to the shop and prepared the map Ex. P-1. He also deposed that when he prepared the map, the shop was closed. 10. The tenant has appeared as RW-3. He has filed his affidavit under order 18 rule 4 of the Code of Civil Procedure. In his cross-examined, he has deposed that he was running the business in the premises from the month of August, 1988 onwards. He has got printed a bill book. The bills were being issued by him to the customers. He has 5 placed on record Ex.PA to PD, copies of the rent receipts. He denied the suggestion that the shop was lying closed from September, 2004. He also denied the suggestion that he got the meter reading recorded after opening the shutter of the shop. However, the shop was located opposite to the Central Bank of India. He further added that the proprietor of that shop is his brother, Sanjiv Kumar. He categorically admitted that he has got the licence renewed on 13.6.2008 for the years 2001- 2002 to 2007-2008 after paying the requisite fee. RW-2 Hari Om has supported the version of tenant. 11. The most material witness is RW-1 Rajinder Kumar, Clerk, Himachal Pradesh State Electricity Board. He had brought the record of meter account No. U 115-2007990. In his cross-examination, he testified that he was a Meter Reader. 20-25 shops are situated in between the disputed shop and the Central Bank. He has deposed that as and when he used to reach near the shop for meter reading, the shop keeper used to open the shutter and thereafter the meter reading was taken. He also deposed that before August, 2004, total units consumed by the tenants were more than 140 and after September, 2004, the reading came down to 10-20 or 30 units. The tenant has deposited licence fee amounting to Rs. 512/- on 13.6.2008 for the year 2001-2002 to 31.12.2012 as per mark ‘A’. Mark ‘B’ is the shop licence. It shows that the shop licence of the tenant for the years 1998-99, 1999-2000 6 and 2000-2001 was renewed on 17.5.2000. Ex.RW-1/B pertains to the bill of electricity of the meter installed in the disputed shop. It pertained to period 31.10.2007 to 31.12.2007. 12. The tenant has not produced the copy of any bill book. He has not proved that he was paying income tax or sales tax. He has got the licence of the shop in question renewed only on 13.6.2008 for the year 2001-2002 onwards. In case he was running a business, he ought to have renewed the licence regularly. It has come in the statement of RW-1 Rajinder Kumar that before August, 2004, the tenant used to consume more than 140 units, however, after September, 2004, the reading came down to 10-20 or 30 units. Tenant claimed that he was selling cloth. The Court can take judicial notice of the fact that the electricity consumed by the shop keeper running the business of cloth is more vis-à-vis other shops. The tenant has not explained the reduction of consumption of electricity. Rather his own witness RW-1 Rajinder Kumar has deposed against him. 13. Their Lordships of the Hon’ble Supreme Court in Shiv Lal versus Sat Parkash, 1994 (1) RCR 495 have laid down that the principle underlying the provisions is that if a premises are not required by the tenant, it should become available to another person who may be in need thereof. Their Lordships have held as under: 7 “4. The appeals arise out of proceedings for eviction of the respondents from the premises in question on the ground that they had ceased to occupy the building for a continuous period of more than four months without reasonable cause. The trial Court allowed the applications by orders which were affirmed on appeal by the first appellate Court. The respondents challenged the decree before the High Court by revision applications under Section 15(5) of the Rent Control Act which were allowed by the impugned judgment reversing the decree and dismissing the applications. The High Court has held that the landlord has to prove that the tenant by his conduct has brought the tenancy to an end and with that intention discontinued the occupation of the demised premises, and since this has not been done the applications have to be dismissed. The relevant clause of Section 13(2) of the Rent Control Act states that a tenant will be liable to eviction if he ceases to occupy the building for a continuous period of four months without reasonable cause. The section does not require the cession of tenancy in question. The only condition which has to be satisfied is the non-user of the building for the requisite period. The principle underlying the provisions is that if a premise is not required by the tenant, it should become available to another person who may be in need thereof. The High Court, therefore, was clearly in error in assuming that unless the cession of the tenancy is proved, eviction cannot be ordered”. 14. Learned Single Judge of Madhya Pradesh High Court in Godharam versus Vasudev Prasad Sharma, 1994 (1) RCR 496 has held that when the landlord pleads and prove that the tenant did not use the premises for six months and was liable to ejectment, onus shifts to tenant to prove that non-user 8 was for reasonable cause. The tenant had to take defence of reasonable cause. Learned Single Judge has held as under: “11. In the instant case, the appellant/tenant did not take a defence in the pleading that the accommodation so let remained unused because of the “reasonable cause”, but his case is that his business never remained closed nor there was any non-user till the date of the institution of the suit. The tenant led evidence to prove that the accommodation was continuously in use. As after the close of hotel business, which was being looked after by his son Ramdayal, DW-4, bicycle shop was opened. To prove that the tenant did not produce any account-books, Sales-tax returns, Shops and Establishment registration or other convincing evidence that after close of hotel business, shop of bicycle was started which was continuing. On the other hand, it came in the evidence that the defendant's son, after the close of the hotel business, started fuel wood Tal at his residence. Therefore, in the opinion of this Court, the two Courts rightly recorded the finding that the accommodation so let was lying unused for a period of six months immediately preceding the date of institution of the suit. 12. During the course of evidence, the tenant also took a stand that in the period of emergency, a tin shed which was part of the accommodation and was constructed by his predecessor tenant, was demolished, therefore, he could not carry on the business. But, no evidence was led to satisfy the Court that because of the demolition of tin shed and the later construction of a water-hut, the business of hotel could not be carried on. Both the Courts disbelieved this evidence as it was having no foundation in the pleadings and have found that after the institution of the suit, the tenant started using the accommodation by opening the cycle shop, 9 which can hardly be a ground of defence as section 12(1)(d) does not envisage such a plea.” 15. Hon’ble Chief Justice, C.K. Thakker (as My Lord at that time was) of this Court in Sohan Lal Khanna versus Amar Singh, 2001 (1) RCR (Rent) 29 has held that merely on the basis of consumption of few units of electricity in some months would not mean that the person was staying in the suit premises. The Hon’ble Chief Justice has held as under: “13. Having gone through the relevant record as also the finding recorded by the authorities, in my opinion, no error of law has been committed either the Rent Controller or by the Appellate Authority. 14. Looking to the evidence of Tax Inspector, Election Kanungo, an official from the H.P. State Electricity Board and Smt. Shyama Sharma, it is clear that the suit premises was found locked. The Tax Inspector, in his evidence, stated that whenever he visited the suit premises, it was found locked. The Election kanungo said that earlier the name of the tenant appeared in the voter's list but subsequently, it was deleted. Smt. Shyama Sharma deposed that since 1988, she was staying in the neighbourhood of tenant and she had always seen the suit premises locked. Regarding Meter Reading, it is no doubt true that for few months, there was electricity consumption. In my opinion, however, both the authorities have rightly observed that merely on the basis of consumption of electricity to the extent of few units (5 or 10), it could not be said that a person is staying in the suit premises. Before the Appellate Authority, some judgment were cited in which was mentioned that the fact of non-consumption of electricity was totally irrelevant. In my opinion, however, the said fact cannot be said to be irrelevant altogether. It 10 may not be a clinching circumstance but it is one of the facts, which has to be considered by the authorities while deciding the issue as to non-user by the tenant. 16. Again, it was specifically that the tenant, which has been recorded in the judgment the Appellate Authority admitted by the tenant was served with a copy of the petition at his Faridabad address and all communications were served upon him at his Faridabad address. In the light of these circumstances, if a finding is recorded by the authorities that after retirement, the tenant had stayed at Faridabad with his children, it cannot be said that no such finding could have been arrived at and it requires to be interfered by this Court.” 16. The Division Bench of Kerala High Court in Kurian Thomas verus N. Sreedharan Menon, 2005 (1) RCR (Rent) 67 has held that tenant in physical possession of building, but not using the same for six months was liable to be evicted. The Division Bench has explained the meaning of expression “occupy” as under: “10. We are of the view Rent Control Court and Appellate Authority have committed a grave error in taking the view that only if there is abandonment it could be said that there would be cessation of occupation. Rent Control Court and Appellate Authority used words which are not in statute. Statute has not used the word “abandonment”. The word “abandon” means to give up, to desert etc. Tenant need not abandon the building so as to attract section 11 (4) (v) of the Act. Landlord is also not expected to establish that tenant has abandoned the building so as to attract section 11 (4) (v). Once landlord could establish that tenant has ceased to occupy the premises continuously for six months prior to the filing of the petition he is entitled to get order of eviction under 11 that section. The word “occupy” means to cohabit with to hold or have in possession, Tenanted premises must be in the state of being enjoyed and occupied. The word “occupy” used by the statute would show that tenanted premises be put to use. Tenant cannot be heard to contend that he is having physical possession of the premises though not in occupation. So far as this case is concerned, we are of the view landlord has discharged the burden and then the onus has shifted to the tenant and the tenant could not establish that he has not ceased to occupy the premises and even if there is cessation that was with reasonable cause.” 17. Learned Single Judge of Punjab and Haryana High Court in Virender Singh versus Mahabir Singh, 2005 (2) RCR (Rent) 534 has held that initial burden or onus of establishing the ground of ejectment is always upon the landlord by producing cogent material evidence and once it is so established by the landlord, then it is the tenant who is required to prove that he ceased to occupy the demised premises due to some reasonable cause. Learned Single Judge has held as under: “10. The initial burden or onus of establishing the ground of ejectment is always upon the landlord by producing cogent material evidence. The landlord has thus to prove by leading positive evidence that the tenant had ceased to occupy the demised premises for a period of at least four months immediately prior to the filing of the ejectment petition. Once it is so established by the landlord, then it is the tenant who is required to prove that he ceased to occupy the demised premises due to some reasonable cause. However, where the tenant 12 denies that he had not ceased to occupy the demised premises for the statutory period as required under the Act then the question of proving the reasonableness does not arise. The present is the case where the tenant had denied that he had not ceased to occupy the demised premises. 11. In the instant case, the petition for eviction was filed on 19.9.2000 and the shop in question remained closed from November, 1997 to December, 2000 and no explanation had been furnished by the tenant for the closure of the shop for such a long period except the tenant pleading that the shop was not closed which is not believable in the light of over-whelming evidence produced by the landlord. The landlord not only established that the tenant could not have conducted his business of selling cloth from the demised premises in the absence of electricity connection he had produced evidence of postman and transporter who have also supported his case. The tenant on the other hand failed to produce any documents in the form of receipts, bills, vouchers etc. concerning his shop in support of his claim that he was doing business from the demised shop during the relevant period.” 18. Accordingly, in view of the observations made hereinabove, the tenant has failed to prove that he was conducting business in the shop in question after September, 2004. He has renewed the licence only on 13.6.2008. The consumption of electricity was minimal. The tenant has not produced accounts books, register of workers, registers of sales tax and income tax, issuance of cash memos, details of the supply received from the bulk supplier etc. It has also come in the evidence that the family of the tenant is also 13 running the business in the name and style of Ram Nath and Sons opposite to the Central Bank of India though the tenant has tried to explain that his brother was running that shop. The tenant had no animus to occupy the shop for the purpose of cloth business. He, for all intents and purposes, has ceased to occupy the premises and has not explained that interruption was due to some reasonable cause. 19. Consequently, there is no merit in the petition and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 23.8.2010 *awasthi*