Civil Revision No.1115 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1115 of 2008 Date of Decision: March 05, 2008 Mohd.Sharif Azhar ...Petitioner VERSUS Navdeep Jain & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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? Present: Mr.Kanwaljit Singh, Senior Advocate with Mr.I.S.Gill, Advocate, for the petitioner. ***** RANJIT SINGH, J. The tenant-petitioner has impugned the orders of ejectment passed by the Rent Controller and upheld by the Appellate Court. The case has bit of a history. The ejectment petition is filed by respondent No.1-landlord against respondent No.2 Mohd.Irshad and Civil Revision No.1115 of 2008 : 2 : respondent No.3 Mohd.Ashraf. The case set up by the landlord was that the demised shop was under the tenancy of respondent Nos.2 and 3 and was let out to them on payment of Rs.3,000/- per mensum as a rent. This was by virtue of a rent note dated 27.12.1997. Allegation is that tenant-respondent Nos.2 and 3 failed to pay rent w.e.f. 1.2.1998 and hence the petition for ejectment. Respondent No.2 Mohd.Irshad appeared in response to the notice before the Rent Controller and suffered a statement that he had no relationship of tenant and landlord and as such would not make tender of rent. Respondent No.3 Mohd.Ashraf was proceeded ex-parte. During the pendency of the ejectment petition, present petitioner, who had not been impleaded as party, filed an application under Order 1 Rule 10 CPC for being impleaded as a respondent on the ground that he was a tenant in the demised shop. He was impleaded as a party and accordingly filed a written statement. He admitted that he was a tenant on the shop besides denying that other respondents No.2 and 3 were not the tenants. Petitioner also pleaded that rent note dated 27.12.1997 was a false and frivolous document and had not been executed. As a matter of fact, this shop was originally owned by Smt.Santosh Rani, who had let it out to the petitioner at the rent of Rs.1,000/- per month. About 3,3/4 years prior to filing of the petition/reply, Santosh Rani had sold the demised shop in favour of respondent Navdeep Jain and petitioner admitted himself to be a tenant under said Navdeep Jain. The plea of the petitioner further is that he had taken the shop from Smt.Santosh Rani and along with Mohd.Irshad started Civil Revision No.1115 of 2008 : 3 : business of sale of medicines under the name and style of A1 Karim Medicos. This is stated to be by virtue of a partnership deed dated 16.2.1991. The pleadings would also disclose that the petitioner claims to have filed a suit when respondent Navdeep Jain threatened to dispossess him from the demised shop forcibly and illegally. The civil court had granted interim injunction in his favour, which was confirmed on 5.2.1998. It is also claimed by the petitioner that he had tendered the rent for the period from 1.2.1998 to 31.1.2000 on 25.1.2000 at the rate of Rs.1,000/- per month along with interest, house tax and cost etc. but the tender was not accepted by the landlord-respondent. On the basis of respective pleadings of the parties, the Rent Controller framed various issues, one of which was whether respondent No.3 is tenant in the demised premises, if so, at what rate of rent ?OPR. It may be noticed that landlord-respondent No.1 and the petitioner had raised varying pleas. It is maintained by the petitioner that he was the tenant and running a business on the shop, whereas case set up by respondent No.1-landlord is that respondent Nos.2 and 3 were the tenants in view of rent note dated 27.12.1997. The plea of the petitioner before the Rent Controller was that he was the tenant and that is how the above noted issue was struck. He had further pleaded that the rent note dated 27.12.1997 was a forged or fictitious document. His plea never was that he was a tenant on the shop by virtue of the partnership deed. The Rent Controller rightly went on to decide the above noted issue at the first instance and came to conclude that petitioner was not a tenant and was not in possession of the demised shop. The Rent Civil Revision No.1115 of 2008 : 4 : Controller rightly referred to and relied upon the judgment passed in civil suit filed by the petitioner against respondent No.1, which was decided on 8.4.2003. The copy of the same has been placed on record. The suit filed by the petitioner was dismissed by holding that the petitioner was not in possession of the suit property and it was held that the shop M/s A1 Karim Medicos was run by Mohd.Irshad, respondent No.2. The petitioner had filed an appeal against the said order, which was also dismissed. Both the courts have held that the petitioner is not in possession of the demised shop. It is also noticed that the receipts produced are upto 31.12.1997 and not after scribing of the rent note dated 27.12.1997. This rent note has been relied on to hold that demised shop is proved to be in possession of respondent Nos.2 and 3. The Appellate Court further appreciated the evidence and very rightly observed that the fact of petitioner having been inducted as a tenant in the demised shop by previous landlady Smt.Santosh Rani is admitted by landlord-respondent No.1. Landlord had further admitted that he, after purchasing the shop, received rent from the petitioner at the rate of Rs.1,000/- per month and also admitted his signatures on receipt, Exh.R-17 dated 10.7.1996. The landlord, however, deposed that the petitioner vacated the shop in August, 1996. It is, at this stage, that the suggestion was put to the landlord on behalf of the petitioner that before vacating the shop, petitioner was working together with respondent Nos.2 and 3 at the demised shop. It is observed by the Appellate Court that the manner in which the suggestion was put to landlord-respondent No.1 would Civil Revision No.1115 of 2008 : 5 : amount to implied admission on the part of the petitioner that he had vacated the shop. The Appellate Court has further observed that the petitioner has not led any evidence in regard to any business, which he had run in partnership with respondent No.2 during the period of four years that he concededly remained away to Delhi in connection with his studies in Diploma in Pharmacy. This has been taken into consideration by the Appellate Court to say that there would not be any reason to disbelieve the statement made by the landlord that the petitioner had delivered vacant possession of the shop in August, 1996. The petitioner had not produced any books of accounts, which were bound to be maintained in case he was running the business at the shop in partnership with respondent No.2 while he was studying at Delhi. This would further indicate that in fact the petitioner had vacated the demised shop while proceeding to study Diploma in Pharmacy at Delhi. Mr.Kanwaljit Singh, the learned Senior counsel at the outset, was asked to clarify his stand, if the petitioner was claiming his right on the basis of a partnership or on the ground that he alone was the tenant in the demised shop. During the course of arguments, Mr.Kanwaljit Singh made conscious efforts to urge that the petitioner was a tenant on the shop on account of partnership deed with respondent Nos.2 and 3. In fact he had taken time to place on record the partnership deed. He was further granted adjournment to show if the demised shop could be treated under tenancy of partnership in the background that initially the same was taken on rent by the petitioner alone. Though the counsel at that stage also Civil Revision No.1115 of 2008 : 6 : made an attempt to show that even if it is construed that shop was under the tenancy of the petitioner, his case would be on a better pedestal as than he was bound to be given opportunity to deposit the arrears of rent in terms of the law laid down in the case of Rakesh Wadhawan and others v. M/s Jagdamba Industrial Corporation and others, (2002) 5 SCC 440. He would refer to Harshavardhan Chokkani Versus Bhupendra N.Patel and others, AIR 2002 Supreme Court 1373 to say that tenancy was that of the partnership concern. In the case of Harshavardhan Chokkani (supra), it is observed that when rent is paid by firm and not by appellant, then eviction petition filed against appellant was dismissed on the ground that firm is tenant not the appellant. The varying stand taken by the petitioner cannot be appreciated. It can be noticed that the petitioner took a clear and categorical stand before the Rent Controller that he was the tenant on the demised shop. On the basis of this pleading specially in the background of the stand taken by the landlord that respondent Nos.2 and 3 were the tenants in view of rent note dated 27.12.1997, issue No.2, as reproduced, was formulated. At that stage, the petitioner did not seek any additional issue on the basis of he being a tenant in terms of the partnership deed. The Rent Controller clearly found that petitioner has not been able to establish that he was tenant having vacated the shop in the year 1996. The detailed reasoning given in support of this finding has been referred to above. Now it would not lie in the mouth of the petitioner to claim that he was a tenant on the demised premises in terms of the partnership deed. The petitioner Civil Revision No.1115 of 2008 : 7 : cannot be permitted to take any stand according to his convenience and change stance when he finds that the stand taken by him has not found favour with the court on the basis of appreciation of evidence. The learned counsel for the petitioner was not able to point out anything before me against the finding recorded by the courts that the petitioner had surrendered possession of the shop in the year 1996 when he had gone to do D.Pharmacy Course at Delhi. Nothing has further been pointed out before me which would show that the rent note dated 27.12.1997 was a fake or fictitious document except for baldly asserting that this rent note was prepared on account of a collusion between the landlord and respondent Nos.2 and 3. This fact was required to be established by the petitioner which he was not able to do. The effort of the petitioner to rely upon the written statement filed by him showing that he had taken a stand on the basis of partnership deed also would not be of a much avail to him. Even if true, the petitioner never sought for any issue to be framed other than issue No.2 as referred above, which was only to the effect that the petitioner was the tenant in the demised shop not on the basis of partnership. There is no merit in the petition and the same is dismissed. March 05, 2008 ( RANJIT SINGH ) ramesh JUDGE