IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.5836 of 2010 (O&M) Date of Decision : 14.9.2010 Nasib Kaur and others ....Petitioners Versus Sham Lal and another ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.K.K.Garg, Advocate for the petitioners. ..... MAHESH GROVER, J. Delay in re-filing the petition is condoned. This revision petition is directed against the orders of the Rent Controller as also the Appellate Authority vide which the petitioners, who are legal heirs of original tenant Gurdial Singh, have been ordered to be evicted from the demised premises. The respondent-landlord preferred a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') alleging that the shop measuring 15' x 10' consisting of one room was let out to one Gurdial Singh. The tenancy was supported by a rent note dated 18.10.1968 @ Rs.50/- per month and was to subsist only for one year. The present respondent-landlord stepped into the shoes of the owner/landlord in the year 1974 and has been receiving rent thereafter. The rate of rent was enhanced from Rs.600/- per annum to Rs.660/- per annum. The ejectment of the C.R.No.5836 of 2010 (O&M) -2- petitioners was sought on the grounds that they were in arrears of rent w.e.f. 1.4.2004 and that the premises had been further let out to one Teja Singh and that there was a change of use of the premises, and material impairment as well. The petitioners contested the proceedings and denied the averments made in the rent petition. It was pleaded that the premises had not been sublet to Teja Singh, who has been arrayed as respondent No.2 in the rent petition, but admitted his possession on the ground that he was brother of Gurdial Singh, and was old, unmarried and issueless, and was thus merely whiling away the time at the shop. The change of use as also the allegations of material impairment were denied. The Rent Controller framed the following issues:- 1. Whether the tender of rent is valid tender?OPR 2. Whether the respondent no.1 has sub-letted the demised property in favour of respondent no.2 without the consent of landlord/petitioner?OPA 3. Whether the respondent no.2 has converted the demised property from non-residential building into a residential one?OPA 4. Whether respondent no.2 has materially impaired the value and utility of demised property?OPA 4A. Whether respondent is source of nuisance to petitioner and neighbourers?OPA 4B. Whether petition is not maintainable?OPR 4C. Whether petitioner has no locus standi or cause of C.R.No.5836 of 2010 (O&M) -3- action to file the present petition? OPR 5. Relief. The Rent Controller and the Appellate Authority concluded that Teja Singh, the present proforma respondent, was in exclusive possession of the premises in question, and since the arrangement was without the consent of the landlord, subletting was inferred and thus ordered the eviction of the petitioners, which has resulted in filing of the instant revision petition, wherein learned counsel for the petitioners contended that his averments regarding the shop being in possession of Teja Singh as a relative, who was merely whiling away his time has not been appreciated by the courts below. He further contended that the passing of the possession of the premises in lieu of consideration was neither pleaded nor proved and, therefore, the sub-tenancy in favour of Teja singh was not established. Reliance was placed on Satish Kumar and another v. Shri Nanu Ram Jain Charitable Trust and another 2009(2) RCR (Rent) 133. Likewise, he contended that merely because the brother of the Gurdial Singh used to sit on the shop should not be taken a conclusive proof of sub-tenancy, as it is always proper that a relation might be using the shop as an internal arrangement. Reliance was placed on Nirmal Kanta (Dead) through L.Rs. v. Ashok Kumar & Anr. 2008(2) RCR (Civil) 632. I have heard learned counsel for the petitioners and have perused the impugned orders. There is no doubt that the possession of the premises was given to Teja Singh even though the premises was let out to Gurdial C.R.No.5836 of 2010 (O&M) -4- Singh. The respondent-landlord alleged sub-tenancy in favour of said Teja Singh which fact was denied by the petitioners. It was thus for the petitioners to substantiate the plea that Teja Singh was the brother of Gurdial Singh, who was old and infirm and was not in exclusive occupation of the shop, but was rather merely assisting the tenant or was merely present on the premises. No such evidence has come on record. To a pointed question by this Court learned counsel for the petitioners could not refer to any material evidence except the evidence of RW1 who has categorically stated that Gurdial Singh used to be helped by said Teja Singh. This by itself does not prove the averment that the petitioners have made in the written statement. He has also stated that he had been working at the asking of Gurdial Singh but this by no stretch of imagination proves the plea as set up by the petitioners. The dishonesty of the petitioners is further evident from the fact that Gurdial Singh moved an application under Order 41 Rule 27 CPC to set up a plea that Teja Singh has purchased the shop from one Bhola Singh on 22.3.2005. If this fact is weighed and examined in the backdrop of the plea taken by the petitioners, it only implies that the petitioners are merely trying to defeat the rights of the landlord vis-a-vis the original tenancy which was created in favour of Gurdial Singh. It is also a settled proposition of law that the sub-tenancy is an internal arrangement between the tenant and the sub-tenant and in this view of the matter the respondent-landlord if his plea is proved that the possession was not with the tenant and is with someone else other than the tenant and such arrangement is without his express or implied consent, this is sufficient to establish C.R.No.5836 of 2010 (O&M) -5- the sub-tenancy. Thus, I do not find any infirmity in the impugned orders. At this stage, learned counsel for the petitioners, on instruction from his clients, states that he is willing to withdraw the revision petition if one year's time is granted to him to vacate the premises. Having regard to the prayer, which does not seem to be unjustified, considering that they are in occupation of the demised premises for some time, I deem it appropriate to dispose of this petition as not pressed by accepting the prayer of the petitioners subject to the following conditions :- i) That the petitioners shall furnish an affidavit before the Rent Controller at Barnala within a period of three weeks from today undertaking to vacate the premises in question and hand over the physical possession of the same to the respondent/landlord within one year, i.e. till 14.9.2011. ii) That the petitioners shall restore the possession of the premises in question to the respondent/landlord without damage to the property and they shall not make any alteration or addition to the property and also continue to pay the rent at the agreed rate by the 7th of each month and shall also pay all the arrears, if any, on account of rent or any other terms of the tenancy while furnishing the undertaking, i.e. within three weeks. iii) That the petitioners shall also record in the undertaking that they would be bound by the terms of such an C.R.No.5836 of 2010 (O&M) -6- undertaking and shall not make any attempt to wriggle out of the same. 14.9.2010 (MAHESH GROVER) JUDGE dss