IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2060 of 1991 Date of decision: 29.05.2009 Kuldip Chand ...Petitioner versus Kishori Lal ...Respondent CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.C.B.Goel, Advocate with Mr. Sanjiv Gupta,Advocate with Mr. Nitin Jain, Advocate for the petitioner. Mr. Kanwaljit Singh, Senior Advocate with Mr. Harminder Singh, Advocate for the respondent --- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J. I. The tenant had 'ceased to occupy' - his only ground for consideration. 1. The landlord's application for eviction of the tenant was required to be considered on the only issue whether the tenant had ceased to occupy the premises for a period of four months prior to the filing of the petition. The landlord had admittedly filed a petition earlier taking up the same plea for earlier years and the petition had been dismissed on 09.10.1982. The present petition for eviction was sought on the ground that the tenant had ceased to occupy the premises since January 1983. The contention was found favour with both the Rent Civil Revision No.2060 of 1991 - 2 - Controller and the Appellate Authority who held, inter alia, that the landlord was not entitled to urge the very same ground for the period which was rejected in an earlier round of litigation. The Rent Controller also found himself unable to agree with the contention of the landlord that for the only reason of non-consumption of electricity, it was not possible to conclude that the tenant had ceased to occupy the premises. The Appellate Authority had adopted an additional line of reasoning, referring to the Trading Account, Profit and Loss Account and Balance- sheet upto 31.03.1985 (Ex.R-1 to R-3) and similar Account for the succeeding years in 1982-83, 1983-84, 1985-86 and 1986-87 to come to the conclusion that the tenant had been carrying on the business and the landlord was not entitled to obtain eviction on the said ground. II. The Local Commissioner's report-extent of relevance. 2. At the time when the revision was admitted, this Court was pleased to appoint Local Commissioner by its order dated 22.10.1991, to visit the spot and report if the shop was lying closed. Shri H.S.Sethi, Advocate, present in the Court, had been appointed as the Commissioner and it was received by the Court on 28.10.1991 recording the fact that the shop was found closed. 3. The Commissioner was reported to have visited the property on 23.10.1991, when he found the shop to be locked. The Local Commissioner had availed the services of a photographer to take photographs of the shop at 12.30 P.M. and the two photographs showing the shop door as closed had also been filed along with the report. The Commissioner had also collected local evidence of witnesses in the Civil Revision No.2060 of 1991 - 3 - vicinity who were alleged to have stated that the shop had been remaining closed since long. In my view, the report of the Commissioner cannot be used for the purpose other than the physical examination whether the shop was closed or not. It would be too difficult to make an inference of whether the tenant had ceased to occupy the building by the only fact that the door of the shop was found closed at the time of visit. The Commissioner did not have any authority to collect evidence at the spot and the observations in the report that the local witnesses had said that the shop had remained closed for long, cannot be used for any purpose, since they were not merely outside the scope of the warrant but also of weak evidentiary value, having been collected without affording to the party affected by to explain the same. I discard the entire report of the Local Commissioner except his physical verification that the shop was closed at the time of his visit at 12.30 P.M. on 23.10.1991. In my view, the reliance on the report of the Commissioner is also be risky for, the fact to be found in this case was not the status of the property at the time when the petition was filed before the Court in revision but completely a different fact namely the alleged cessation of the business for four months prior to the filing of the petition which was done on 23.07.1985. III. Cessation to occupy-not merely a physical act. 4. The cessation to occupy should not merely be a matter of fact but shall also be without reasonable cause. It is therefore permissible for a tenant to even contend that business was seasonal in character or that there was some other supervening reasons as illness that Civil Revision No.2060 of 1991 - 4 - necessitated the closure of the premises. The above two circumstances are merely illustrative of the fact that the mere closure of the shop itself will not be proof of the cessation of business and the landlord would succeed only by proving the stoppage of business by a tenant accompanied by a conduct which would show its cessation. In a given situation where the shop was shown to be closed, the burden would be deemed light for then the onus will shift on the tenant to explain the circumstances under which the business premises had remained closed. 5. The issue relating to cessation of the business would therefore have to be proved from the point of view of materials brought out in evidence that would be relevant if the business was being run and if such materials were not available, it would be safe to conclude that the business had ceased. That was the step which the landlord attempted to do saying before the Court that the electricity connection at the premises had been disconnected which in the normal course of events would be incompatible with a condition of the business as being run by the tenant. The Rent Controller had merely set out the case laws that the disconnection by itself will not amount to proof of cessation of business. Viewed in isolation it might not, but still viewed in the light of other circumstances, it might obtain relevance. It was in evidence of the tenant, as a matter of admission, his father was running a karyana business at the very same property and that he died about 9 to 10 years before the trial and that after his father's death, the electric connection had been disconnected, and hence according to the tenant, therefore, “no question to pay the electricity charges arose ever since the death of his Civil Revision No.2060 of 1991 - 5 - father”. This, the learned counsel for the petitioner points out as a significant admission that the business run by the father was different and that if that business had stopped after his father's death and the electricity connection was also disconnected, the tenant was bound to explain how he was putting the property to use. IV. Account books- their relevance, A case of misplaced importance, under peculiar circumstances. 6. The learned counsel appearing for the petitioner sought to explain the accounts statement produced by the tenant by pointing out that the accounts entered in the letter head of the fiver had merely referred to “Pradeep Industrial Corporation” as specialist in jeep (cheap?) petrol and diesel, having its business at Railway Road Phagwara. He referred to the evidence of the tenant who had admitted that in the same road, namely, in the Railway Road Pradeep Industrial Corporation was having a business in chobara since 1969 and the chobara had electricity connection. Referring to the entries in the account statements, the learned counsel pointed out that the items of expenditure as found in the statement included telephone expenses as well as electric expenses which could not have been with reference to the property in dispute. Admittedly both the electricity and telephone charges could not have been paid for any service availed at the demised premises since both of them existed only in the chobara. As a matter of fact, it was on the sole consideration of the account statements that the Rent Controller as well as the Appellate Authority held that the business must have been carried on. Both the Rent Controller and the Appellate Authority failed to notice that the accounts statement which had been prepared on Civil Revision No.2060 of 1991 - 6 - the letter-head of Pradeep Industrial Corporation did not contain the address of the demised premises and the statements themselves contained intrinsic evidence to the fact that the some of the expenses shown could not have been with reference to any expenses incurred for the business being run at the property. V. The evidence in totality 7. Now would be the time to consider the entire gamut of evidence at one go: the father's karyana business which admittedly ceased after his death; disconnection of the electricity service soon after the death of father at the property; another business of the tenant that was begun even during the life time of the father that belonged to the tenant since 1969; the location of his business at the chobara in the same railway road; availability of electricity as well as telephone connection for the chobara and the entries of electricity and the telephone connection expenses that found reflected in the balance-sheet and the accounting entries. Added to these facts was also the instance of the actual closure of the shop as stated by the petitioner and as later found referred in the Local Commissioner's report. 8. Normally the issue relating to cessation of premises would be merely a question of fact that cannot suffer an interference in revision but in this case, the inference on a fact was done on the basis of accounts statements as proving that business was being run at the demised premises, failing to advert to the admission that the tenant had business premises in yet another property on the very same road and the fact that the entries in accounts would themselves belie the contention Civil Revision No.2060 of 1991 - 7 - that it related to the business run at the demised premises. The learned counsel for the petitioner referred me the decision of this Court in Jaswant Kaur Versus Sarla Devi-1987 HRR 613, to the effect that the High Court would be justified in interfering in findings of facts of the authorities in rent control proceedings, if the approach of the authorities were wholly wrong, illegal, misconceived and improper. The adjectives found in the judgment would well fit with the approach of the Courts below in the matter of appreciation of evidence. The learned counsel also referred to several decisions of this Court pointing out to the situation where the non-consumption of electricity and its disconnection were found to be affording sufficient proof of cessation of business. I do not find any need to refer to them since I have taken the view about the cessation of business from referring to the several factors which clearly indicated that the business had been stopped and that it should have been so, even prior to the filing of the petition for a period in excess of four months as stated in the petition, especially, with the failure of the tenant to show by appropriate materials that the business had been run at the demised property. 9. The Civil Revision is therefore allowed and the orders of the Courts below are set aside. There shall however be no directions as to costs. (K.KANNAN) JUDGE 29.05.2009 sanjeev