Civil Revision No. 5474 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 5474 of 2010 Date of Decision: 14.12.2010 Chandra Mohan …Petitioner Versus Jaidev Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Mukul Aggarwal, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been preferred by the landlord. He has assailed the judgment dated 28.1.2009, rendered by the Rent Controller, Charkhi Dadri, whereby the ejectment petition was dismissed along with the judgment dated 27.2.2010, rendered by the Appellate Authority, Bhiwani, whereby the findings of fact, given by the Rent Controller were affirmed. The demised shop was rented out by father of the petitioner to Ram Pat Singh, father of Jaidev Singh. Ram Pat Singh died in the year 1995. Jaidev Singh, to the exclusion of his other relations, became tenant under the father of the petitioner. It is a case of the petitioner that respondent-Jaidev Singh has stepped into the shoes of Ram Pat Singh. The petitioner has instituted the eviction petition against respondent-Jaidev Singh on the following grounds:- Civil Revision No. 5474 of 2010 2 A) The tenant is in the arrears of rent for the period commencing from 1.1.2000 to 30.11.2003 at the rate of ` 50 per month. B) The tenant has ceased to occupy the tenanted shop for the period of more than two years as the shop is lying closed for a continuous period of more than four months without any sufficient cause. To prove this ground, it was averred that the electricity connection has been disconnected. Jaidev Singh could not be served as he was missing. His wife Smt. Nirmala Devi and son Ashwani Kumar sought permission to contest the revision petition and tender the rent. In the present revision petition, a grievance has been made that even though whereabouts of Jaidev Singh were not known, his wife and son could not be permitted to contest the eviction petition and tender of the rent made by them could not be accepted. The wife and son of Jaidev Singh pleaded that they are running the shop in dispute and earning their livelihood for the family and they had sent the rent by way of money order to the petitioner/landlord but the same was not accepted. They have tendered the rent as provisionally assessed by the Rent Controller. The wife and son of Jaidev Singh sought permission to contest the eviction petition by raising the plea which has been noticed by the Rent Controller as under:- “...It has been further pleaded that before his disappearance, Jaidev remained ill and he was also mentally disturbed. He was not in a position to Civil Revision No. 5474 of 2010 3 understand black or white and he has not returned back home for the last about two years. Report of his disappearance was also lodged in the concerned Police Station. She is blessed with two sons namely Yogesh and Ashwani and his son Yogesh is mentally retarded by birth. She has no other source of income and she is entirely dependent upon the income from the tenanted shop in dispute and the instant petition has been maliciously filed just to harass her...” After conclusion of the pleadings, the Rent Controller had formulated the following issues:- “1. Whether respondent has made default in due tender of rent of the demised shop for the period 01.01.2000 to 30.11.2003 i.e. for 47 months @ ` 50 per month amounting to arrears of Rs.2350? OPP 2. Whether respondent has ceased to occupy the demised premises i.e. shop for the last two years? OPP 3. If above issues are proved, whether petitioner is entitled for decree of eviction? OPP 4. Whether petition is not maintainable in the present form? OPR 5. Whether petition has not been filed in conformity with requirements of Rent Act? OPR Civil Revision No. 5474 of 2010 4 6. Relief”. After appreciating the evidence led by the petitioner and the respondent, the Rent Controller held that the wife of Jaidev Singh is aged about 55 years. Her husband had disappeared about six-seven years ago as he was not having a sound mental health and she has to shoulder the burden of upbringing her two sons. Her elder son is mentally retarded and the other one is still starving for his carrier. Relying upon B.P.Achala Anand v. S. Appi Reddy and Another 2005 (2) Recent Civil Reports 80, the Rent Controller held that as per the observations of the Hon’ble Apex Court, the deserted wife has a right to contest the eviction petition, therefore, the credentials of the wife of Jaidev Singh cannot be doubted to contest the eviction petition. The Rent Controller has further held that since the rent was tendered in consonance with the order whereby the provisional rent was assessed, therefore, the tender of arrears of rent is valid. It is projected by the petitioner/landlord that Jaidev Singh was running the business of repair of radios etc. in the tenanted premises. The electricity connection was disconnected and therefore, the business could not be run in the demised premises. Jaidev Singh had disappeared in the month of January 2000 and report to this effect was lodged by way of Daily Diary Report in November 2000. Thus, it should be inferred that the shop in question was lying closed. This submission was further sought to be fortified from the report of Local Commissioner. The Rent Controller held that it has been nowhere proved that the electricity was not being availed from any other source and the Local Commissioner only visited the shop in the absence of the tenant. It was Civil Revision No. 5474 of 2010 5 further held that no witness has been examined from the vicinity where the shop is situated. Furthermore reliance was placed upon the photographs Ex.R2 to Ex.R6 to hold that the business is being run by wife of Jaidev Singh. The Rent Controller, after appreciating the evidence, placed reliance upon three independent witnesses examined by Nirmala Devi and held that they lent corroboration to the testimony of Nirmala Devi wherein she stated in categoric terms that after one and a half months of the disappearance of Jaidev Singh, she stared operating from the shop in dispute. The Rent Controller further held that the Photographer examined by the petitioner/landlord also lent credence to the version set out by Nirmala Devi. Thus, there is concurrent finding of fact given by the two Courts below that the tender of rent is valid and the business is being run by Nirmala Devi in the demised shop after the disappearance of Jaidev Singh. This Court, while exercising its revisional jurisdiction, cannot tread on the path of re-appreciation and re-appraisal of the evidence. Learned counsel for the petitioner has averred that Nirmala Devi, wife of Jaidev Singh and his son can claim inheritance only in the eventuality of death of tenant Jaidev Singh. It was further urged that since the tenant Jaidev Singh could not be presumed to be dead before the expiry of seven years, therefore, son and wife of the tenant have no locus standi even to be made parties to the ejectment proceedings. Hence, they could not make the tender on behalf of tenant. It was urged that the rent could only be tendered by the tenant and by nobody else. Thus, the tender of the arrears of rent made should be held not valid and Civil Revision No. 5474 of 2010 6 illegal. Learned counsel further submitted that this Court should presume that after the disappearance of Jaidev Singh and disconnection of electricity supply sufficient to hold that the tenant has ceased to occupy the tenanted premises. The arguments raised by learned counsel for the petitioner are liable to be rejected. To reiterate the facts, Jaidev Singh/tenant was not of mental sound mind. He could not comprehend day-to-day affairs and admittedly regarding his disappearance, the Daily Diary Report has been lodged. Nirmala Devi, wife of Jaidev Singh, is having two sons. The elder son is also not mentally sound. The wife is natural guardian and next friend of the husband, who is not of sound mental health. Once it is established that the husband has disappeared and could not return to home being mentally ill, responsibility of family, home and business is to be shouldered by better half. Wife is Aardhangani. She shares liability and asset both. In the facts and circumstances of the case where the wife has come forward to fend needs of the family, her rights cannot be defeated on the technicalities of law. Hence, the findings of fact returned by both the Courts below are affirmed. There is no merit in the present petition and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge December 14, 2010 “DK”