IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.:82/2007 Reserved on: 12.5.2011 Decided on:17.6. 2011 _____________________________________________ Arun Kumar. …Petitioner. Versus Prakash Chand Gupta. …Respondent. & Manohar Lal. …Proforma respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. For the Respondent: Mr. G.C. Gupta, Sr. Advocate with Mr. Ashish Jamalta, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner has challenged the judgment dated 3.5.2007 passed by the Appellate Authority (II), Shimla in Rent Appeal No. 10-S/13 (b) of 05/03. 2. Material facts necessary for the adjudication of this petition are that respondent-landlord (hereinafter referred to as ‘landlord’ for convenience sake) is the owner of shop No.1, Lahauri Market, building No. 142-145/1, Lahauri Market, Lower Bazar, Shimla. He purchased this 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 shop in the year 1980 by way of sale deed on 21.11.1990 Ex.PW-8/A. Petitioner-tenant, Arun Kumar, and proforma respondent-tenant, Manohar Lal were inducted as tenants in the shop in the year 1971. Rent deed was entered between the landlord and tenants on 17.11.1971 vide Ex.PW-8/B. The shop at that time was owned by Faquir Chand. The eviction of the tenants was sought on the following grounds: i) It is alleged that the tenants sublet the premises to M/s Vijay Crockery and Tent House and the tenants have parted with the possession. The possession was with Vijay Kumar and Sudershan Kumar, partners of the business concern M/s Vijay Crockery and Tent House. ii) The tenants were in arrears of rent with effect from 1.12.1980. iii) The sub-tenants were guilty of nuisance as they had been causing obstruction in the passage of the petitioner by keeping their merchandise on the passage. 3. The petition was contested by the tenants on the grounds of non-joinder, estoppel etc. It was alleged that the tenancy was created in the name of tenants and though Manohar Lal, tenant, joined Government service, but he never surrendered his tenancy rights. In the alternative, it was pleaded that the original rent note Ex.PW-8/B was never acted upon. The tenants have 3 denied that the premises have been sublet. Tenant No.1, i.e. Manohar Lal, was in full control of the premises and it was denied that the tenants were in arrears of rent. A draft of ` 648/- was sent by them to the landlord but the landlord neither enchased the draft nor returned the same. He did not issue any receipt, upon which a notice was issued to him, however, no reply was given to the notice. It was also denied that there had been any act of nuisance on the part of the tenants. As far as the alleged nuisance is concerned, an injunction suit was also pending in the civil court and in these circumstances, it was prayed that the petition deserves to be stayed under section 10 of the Code of Civil Procedure. 4. Landlord filed rejoinder to the reply filed by the tenants. Learned Rent Controller framed issues on 11.5.1993. He dismissed the petition on 30.9.2002. Thereafter the landlord preferred an appeal before the Appellate Authority (II), Shimla. He allowed the same on 3.5.2007. Hence, the present petition against the judgment dated 3.5.2007. 5. Mr. Bhupender Gupta, Senior Advocate has supported the order dated 30.9.2002 passed by the Rent Controller (3), Shimla. According to him, the landlord has failed to prove the ground of sub-letting by the tenants. He 4 then argued that the tenants were not in arrears of rent. According to him, no nuisance has ever been caused by the tenants to the landlord by placing their merchandise on the passage. 6. Mr. G.C. Gupra, Senior Advocate has supported the judgment dated 3.5.2007 passed by the Appellate Authority (II), Shimla. According to him, the landlord has proved that the premises have been sublet by the tenants to Vijay Kumar and Sudershan Kumar. According to him, the tenants have not paid the arrears of rent with effect from 1.12.1980 and the sub-tenants were also guilty of nuisance. 7. I have heard the learned counsel for the parties and have gone through the records meticulously. 8. It is not in dispute that initially the premises were owned by Faquir Chand and the landlord has purchased the same on 21.11.1990 vide sale deed Ex.PW- 8/A. The premises were rented out to Manohar Lal and Arun Kumar as per Ex.PW-8/B on 17.11.1971. The partnership deed was prepared between Manohar Lal and Arun Kumar on 26.1.1972 whereby Manohar Lal was entitled to share of 55% and Arun Kumar Kumar was entitled to share of 45% vide Ex.PX. Second partnership deed was entered between Arun Kumar and Vijay Kumar 5 on 1.4.1992 vide Ex.PY whereby the profits were to be shared in the ratio of 50:50. 9. Now, the Court will advert to the oral as well as documentary evidence led by the landlord and tenants. 10. PW-1 Ramesh Chand has produced the record of M/s Vijay Crockery and Tent House. He has brought copy of partnership deed 1972-73, according to which Arun Kumar had share of 55% and Manohar Lal 45%. In 1972- 73, income tax return was signed by Manohar Lal, as partner. Sh. Vijay Kumar has signed the income tax returns for the financial years 1975-76, 1976-77, 1977-78 and 1978-1979. The income tax returns pertaining to the financial year 1981-82 and 1983-84 were signed by Arun Kumar, as partner. The income tax return for the financial year 1982-83 was signed by Vijay Kumar. Similarly, the income tax returns for the financial year 1993-94 were signed by Vijay Kumar. 11. PW-2 Sanjay Verma has deposed that according to the record, in the year 1972-73, the assessee has filed with the department copy of partnership deed dated 26.1.1972. He has brought the original of the same. Photocopy of the same is Ex.PX. The assessee has also produced copy of partnership deed dated 1.4.1992 with the department vide Ex.PY. He further deposed that M/s Vijay 6 Crockery and Tent House were registered in the year 1972. Alongwith application form, there was partnership deed also, according to which Manohar Lal and Arun Kumar were partners. He has also deposed that the firm paid the income tax after the date of recording his statement, i.e. 19.7.1998. He has also brought the income tax return for the year 1996-97, according to which, Vijay Kumar and Arun Kumar were the partners. In his cross-examination, he stated that Arun Kumar was partner and the income tax returns were being filed regularly in the name of firm. 12. According to Vimal Kumar, Vijay Kumar and Sudershan Kumar were running the business in the name and style of M/s Vijay Crockery and Tent House. They had been doing this business for the last 4-5 years. One of the partners, i.e. Manohar Lal joined service in the Bank in 1977-78. Thereafter he was posted at Chandigarh. Arun Kumar was running a shop at Shimla. He further stated that Sudershan Kumar and Vijay Kumar used to open and lock the premises. He had seen the business being run in the premises in the name and style of M/s Vijay Crockery and Tent House since 1972. He has seen Vijay Kumar running the shop for the year 5-6 years. According to him, initially, Manohar Lal and Arun Kumar were running the business in the name and style of M/s Vijay Crockery and 7 Tent House. He has denied the suggestion that Vijay Kumar and Arun Kumar are doing the business. 13. Arun Kumar has deposed that the shop is being run by Vijay Kumar and Sudershan Kumar in the name and style of M/s Vijay Crockery and Tent House. He has not seen the tenants on the shop after 1989-90. The shop is opened by Vijay Kumar and Sudershan Kumar. Arun Kumar is running shop in Ganj Bazar since 1990. Manohar Lal has joined Bank’s service. He could not say in his cross-examination that who was sitting in the shop before 1990. 14. According to Megh Ram M/s Vijay Crockery and Tent House, Lower Bazar, Shimla was assessee with the Excise and Taxation Department since 4.2.1972. This firm was registered as SIM-111-2761 G.S.T. and SIM-CST-1071. According to the records, the same status was in existence till date. According to him, as per record, Manohar Lal was holder of Ration Depot of Upper Kaithu. 15. Landlord has appeared as PW-8. He has produced the sale deed Ex.PW-8/A on the basis of which shop was purchased by him from Faquir Chand in the year 1980. At that time, Arun Kumar and Manohar Lal were the tenants. He has produced the copy of the rent deed entered into between Arun Kumar, Manohar Lal and Faquir 8 Chand vide Ex.PW-8/B. According to him, Manohar Lal joined service in the State Bank of India in the year 1974. Arun Kumar used to sit in the shop occasionally till 1989. Thereafter the shop was sub let to Vijay Kumar and Sudershan Kumar. This was done without his permission. Vijay Kumar and Sudershan Kumar were running the business in the name and style of M/s Vijay Crockery and Tent House. He stated that Arun Kumar was having his separate business at Kaithu and as of today he was running shop in Ganj Bazar. According to him, Manohar Lal and Arun Kumar had no concern with the business run in the shop and Vijay Kumar and Sudarshan Kumar were in possession and control of the business. They used to open and close the shop. The shop was let out to the tenants @ ` 100/- per month. The tenants were also bound to pay Municipal taxes @ 8%. He has not received any rent after 8.12.1980. He has also deposed that the shop was sub let to M/s Vijay Crockery and Tent House and Sudershan and Vijay Kumar are causing obstruction in his passage by placing merchandise on the same. He had seen Vijay Kumar working in the shop since 1980 and Sudershan Kumar from 1985. Before 1980 Arun Kumar, Vijay Kumar and Des Raj were running the shop. He has admitted that he has not issued any written notice to the 9 tenants and has received the draft issued to him in the year 1981, but he did not encash the draft. He has denied the suggestion that Arun Kumar used to open and close the shop. He has admitted in his cross-examination that at one side of the passage, he has constructed Almirah and on the other side there is Almirah of Electric Centre. 16. Tenants have produced 8 witnesses. RW-1 Rajinder Singh, Shop Inspector, has deposed that M/s Vijay Crockery and Tent House were registered under the Shops and Establishment Act, 1969 on 28.3.1977. Sh. Arun Kumar has been shown proprietor of the same. This entry is recorded till 1999-2000. In his cross-examination, he has admitted that at Sr. No. 1114, name of Arun Kumar has not been written as proprietor. He has also admitted that in the record, which he has brought, there is no separate column for proprietor. The entries are made on the basis of the application and it is not verified whether the applicant is proprietor or not. 17. RW-2 S.R. Rana has deposed that he has seen the shop being run in the name and style of M/s Vijay Crockery and Tent House for the last 18-20 years. The shop is situated in Lahori Market. He has seen Arun Kumar and Vijay Kumar working in the shop. According to him, there was no obstruction caused to the passage by the 10 tenants. In his cross-examination, he has admitted that Manohar Lal was working in the bank for the last 15 years and Arun Kumar had been running the shop in Ganj Bazar. However, volunteered that he sits in the disputed premises. He further stated that Arun Kumar is running general provisional shop. According to him, Arun Kumar had no depot at Kaithu. 18. According to RW-3 Gian Chand Kashyap, the records of statement of account for the years 1972 to 1980 has been destroyed and he has issued certificate Ex.RW- 2/A to this effect. 19. RW-4 Yog Raj has deposed that Manohar Lal and Arun Kumar were running the shop. Manohar Lal left the business and thereafter he has seen Arun Kumar and Vijay Kumar doing the business. He has stated that Manohar Lal used to sit in the shop and thereafter he went to Chandigarh. 20. RW-5 Kapil Devi Sood has deposed that he has seen Arun Kumar and Vijay Kumar sitting in the shop. According to him, he knew Arun Kumar since 1971 but he has no relations with him. However, he has stated that Arun Kumar was brother of his brother-in-law. Arun Kumar was running general store in Ganj area for the last 11 8-10 years. He did not know whether Arun Kumar was running shop at Kaithu. 21. RW-6 Vijay Kumar has stated that the shop in question was taken on rent from Faquir Chand in the year 1971. He has stated that Manohar Lal has left the partnership in the year 1973 since he had joined the job in the State Bank of India. He further stated that the business in the premises was being run in the name and style of M/s Vijay Crockery and Tent House. He has also stated that he and Arun Kumar were partners of M/s Vijay Crockery and Tent House. He further stated that they were assessee of income tax qua their business firm. He further stated that the shop in question was being opened and closed by them. According to him, the accounts of this business were written at times by him and at times by Arun Kumar. A draft amounting to ` 648/- was sent to the landlord but they did not receive any intimation. They were ready and willing to pay rent as per the admission made in the cross-examination. Sudershan Kumar is his brother and he was employed in the shop since 1974-75. The shop was registered under the Shop and Establishment Act and the shop was registered for the sales tax since 1972 as per sales tax No. 2781 and C.S.T. No. 1070 dated 7.2.1972. According to him, at times he and at times Arun Kumar sit 12 in the shop and Sudershan, his brother, sits in the shop as employee. They used to pay rent to Faquir Chand @ ` 125/- for godown and ` 108/- for shop. He has denied that the premises were sub let. According to him, Arun Kumar as of today was running the shop. They have never stopped the passage of the shop. The salary paid to Sudarshan Kumar was entered in the accounts book, but he has not produced the salary accounts of his brother Sudarshan Kumar. He has admitted in his cross- examination that in the partnership made in the year 1972, Arun Kumar and Manohar Lal were the partners. Manohar Lal got employment in 1972-73. Arun Kumar has not been running business at Kaithu. Arun Kumar opened shop in Ganj Bazar in the year 1989. This shop is in exclusive possession of Arun Kumar. Arun Kumar is income tax assessee. He had been paying income tax since 1972-73 and in his income tax returns; he has shown the income tax of M/s Vijay Crockery and Tent House. According to him, he was partner since 1973 and he was also partner in the years 1996-97 of M/s Vijay Crockery and Tent House. He did not know that any dissolution deed was prepared when Manohar Lal had left the business. He was drawing salary @ ` 24,000/- per annum and Arun Kumar was drawing the salary of ` 16,000/- per annum. The salary 13 was being drawn in cash. Sudershan Kumar was being paid ` 30,000/- per annum. He has further admitted that the rent deed was made when the shop was taken on rent and the same was let out to Manohar Lal and Arun Kumar. However, he has stated that the rent deed was never acted upon. He could not disclose the month when he became partner. According to him, he was partner before Ex.PY dated 1.4.1992. He could not produce the copy of partnership deed of 1972, according to which, he became the partner. He could not produce any record to substantiate that he has shown in income tax returns his income from M/s Vijay Crockery and Tent House since 1972. He has denied that Arun Kumar and Manohar Lal have not paid the rent with effect from 1.12.1980. He has admitted that Manohar Lal has no concerned with the business. He has denied that Arun Kumar has also no concern with the business. He has denied the suggestion that the business was being run by him and Sudershan Kumar. According to him, Arun Kumar has written the accounts of the years 1973-74 and 1974-75. He volunteered that the accounts were written under his supervision. 22. RW-7 Sudershan Kumar has deposed that he was in service since 1975. According to him, his brother 14 Vijay Kumar and Arun Kumar are sitting in the shop. The shop in question is being opened at times by Vijay Kumar and at times by Arun Kumar, however, most of the time the shop is opened by Arun Kumar. In his cross-examination, he has admitted that Arun Kumar has his shop in Ganj Bazar since 1992. 23. RW-8 Arun Sood has deposed that they were running the business in the premises under the name and style of M/s Vijay Crockery and Tent House from the very beginning. The shop was taken from Faquir Chand. He and Manohar Lal were the partners. Manohar Lal remained partner for one year. Thereafter he joined job in the State Bank of India. He and Vijay Kumar were the partners. He has stated that before he entered into partnership with Vijay Kumar, earlier partnership with Manohar Lal was dissolved. Sudershan Kumar was working as employee in the firm. He alongwith Vijay Kumar sits in the shop and Manohar Lal has also not surrendered his tenancy. Initially, accounts books were written by Manohar Lal and thereafter Vijay Kumar used to write the accounts books under his supervision. He has denied that he and Manohar Lal have sub let the premises. He has admitted that initially the rent deed was between him and his brother Manohar Lal, but added that the same 15 was not acted upon. He has admitted that he is also running business in Anaj Mandi. He was the sole proprietor of the business concern. He has denied the suggestion that he had been running the business at Kaithu. He has stated that he has control over the same. However, in his further cross-examination, he has admitted that he was tenant in Kaithu and Mr. M.C. Kuthiala was the earlier owner and later on Anand Kuthiala became the owner. He has further admitted that eviction petition was filed against him and his eviction was ordered on the ground of “ceased to occupy”. He has admitted that no application has ever been moved before the Rent Controller to deposit the rent. Initially, he denied the suggestion that Madan Lal alone was the tenant, but volunteered that Madan Lal and he were the tenants. 24. What emerges from the evidence led by the parties is that initially Faquir Chand was the owner of the premises. Landlord has purchased the same vide sale deed Ex.PW-8/A on 21.11.1990. Rent deed was prepared between Faquir Chand and Arun Kumar and Manohar Lal vide Ex.PW-8/B. In Ex.PW-8/B, there is no recital about the shop, i.e. M/s Vijay Crockery and Tent House. The premises were let out to Manohar Lal and Arun Kumar. Manohar Lal has left the business and joined job in the 16 State Bank of India somewhere in 1973-74. The partnership between Manohar Lal and Arun Kumar was prepared on 26.1.1972 vide Ex.PX. Second partnership deed was prepared between Vijay Kumar and Arun Kumar on 1.4.1992. It has come in the evidence that Arun Kumar is running separate provisional store in Ganj Bazar. His eviction was also ordered by the Rent Controller on the ground of “ceased to occupy”. Sh. Vimal Kumar has seen Vijay Kumar and Sudarshan Kumar running the business in the shop. According to Vimal Kumar, Arun Kumar was running shop in Ganj Bazar. Arun Kumar has deposed that Vijay Kumar and Sudarshan Kumar are opening and closing the shop since 1990. According to him, Arun Kumar was running business in Ganj Bazar since 1990. PW-8 has categorically deposed that the shop in question has been sub let by the tenants to Vijay Kumar and Sudarshan Kumar without his permission. He was entitled to rent @ ` 800/- per month and the tenants were also bound to pay Municipal taxes @ 8%. According to him, the premises were in possession and control of Vijay Kumar and Sudarshan Kumar. RW-1 Rajinder Singh admitted in his cross-examination that at Sr. No. 1114, name of Arun Kumar has not been shown as proprietor. RW-2 S.R. Rana has also admitted that Arun Kumar is running shop in 17 Ganj Bazar though volunteered that he still sits in M/s Vijay Crockery and Tent House. According to him, Arun Kumar was running provisional store in Ganj Bazar. According to RW-4 Dev Raj, Arun Kumar and Vijay Kumar were running the shop. RW-5 Kapil Dev Sood has admitted that Arun Kumar is running a shop in Ganj Bazar for the last 8-10 years. RW-6 Vijay Kumar has stated that his brother Sudarshan Kumar was working as employee on the salary of ` 36,000/- per annum. He was drawing salary of ` 24,000/- per annum and Arun Kumar was drawing salary of ` 16,000/- per annum. According to him, initially the records were written for short duration by Arun Kumar and thereafter he had been writing the accounts of partnership firm under the supervision of Arun Kumar. According to him, he and Arun Kumar sit in the shop though he has claimed that he had been in the business since 1972 on the basis of partnership deed, but he could not produce the partnership deed. The partnership according to Ex.PY dated 1.4.1992 was entered between Arun Kumar and Vijay Kumar whereby they had share of profit in the ratio of 50:50. It is not believable that the brother will engage his younger brother as an employee of the firm, that too, on a partial salary of ` 3,000/- per month. This is ploy adopted by the tenant to deny the ground of sub letting. The 18 premises have been let out to Manohar Lal and Arun Kumar on the basis of rent note dated 17.11.1971. The partnership deed has only come into existence on 26.1.1972. The status of the landlord and the tenants was to be determined on the basis of rent note dated 17.11.1971 and not the partnership which has been subsequently made between Manohar Lal and Arun Kumar and thereafter Arun Kumar and Vijay Kumar. The parties were bound by rent note Ex.PW-8/B and the explanation given by the tenants that the same has not been acted will not advance their case. There is ample evidence on record to come to a conclusion that Manohar Lal has left the business after joining service in the State Bank of India. Though Arun Kumar has deposed that earlier firm was dissolved, but he has not produced any evidence to substantiate the same. Arun Kumar has also started his own business in Ganj Bazar in 1989. He has not produced any document to establish that while furnishing income tax returns, he has shown the income of Vijay Crockery and Tent House in the same. It has come in the evidence of the landlord that Vijay Kumar and Sudarshan Kumar were running the business and Arun Kumar and Manohar