IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.154/2010 Reserved on: 21.4.2011 Decided on: 25.5. 2011 _____________________________________________ Smt. Janak Devi and another. …Petitioners. Versus Roop Bani. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the petitioners : Mr. H.S. Upadhyay, Advocate. For the Respondent : Mr. Ajay Sharma, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 1.10.2010 passed by the Appellate Authority, Una in Rent Appeal No. 1 of 2010. 2. Material facts necessary for the adjudication of this petition are that respondent-landlady (hereinafter referred to as ‘landlady’ for convenience sake) instituted a petition against the petitioners-respondents No.1 and 2 (hereinafter referred to as ‘respondent No.1 and 2’, respectively, for 1 Whether reporters of the local papers may be allowed to see the judgment? 2 convenience) under section 14 (2) (i) and 2 (ii) (a) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as ‘the Act’ for brevity sake) on the allegations that she was owner of the non-residential premises (shop) as per site plan Ex.PW-3/A in Old Hospital Bazaar, Near Rotary Chowk within the jurisdiction of Municipal Council, Una. She had rented out the premises in favour of Jiwan Kumar on rent of ` 375/- per month through a duly constituted rent note dated 14.7.1978. Sh. Jiwan Kumar died somewhere in the year 2004. Respondent No.1 became tenant in possession of the demised premises under the landlady. The rent of Rs. 375/- per month was liable to be revised at the rate of 10% after every five years under section 5 of the Act. The rent stood revised to Rs. 412/- per month with effect from 20.10.1987. Thereafter, it stood revised to Rs. 453/- on 20.10.1992, Rs. 498/- on 20.10.1997 and Rs. 548/- on 20.10.2002. Respondent No.1 had been in arrears of rent with effect from 1.6.2005. It was also stated that respondent No.1 without the consent of the landlady had sub-let the demised premises to respondent No.2. A legal notice was served upon respondent No.1 on 7.8.2006, which was received by her on 8.8.2006. The same was not replied by respondent No.1. According to the landlady, she was entitled 3 to evict respondents on the ground of non-payment of rent and sub-letting under section 14 (2) (i) and 2(ii) (a) of the Act. 3. The rent petition was resisted by the respondent No.1. According to respondent No.1 she was regularly paying the rent. The landlady was not entitled to increase the rent under section 5 of the Act. Charge of sub-letting the demised premises by respondent No.1 in favour of respondent No.2 was denied. 4. The Rent Controller found respondent No.1 in arrears of rent @ ` 475/- per month with effect from 1.5.2005. The issue of sub-letting the premises to respondent No.1 was answered against the landlady vide order dated 27.2.2010. The landlady preferred an appeal before the learned Appellate Authority. The learned Appellate Authority allowed the appeal. According to the Appellate Authority, respondent No.1 had sublet the demised premises to respondent No.2. The landlady was held entitled to evict the respondents on the ground of subletting under section 14 (2) (ii) (a) of the Act. Respondent No.1 was also held liable to be evicted on the ground of non-payment of rent @ ` 412/- per month, with effect from 20.10.1987, ` 453/- per month, with effect from 20.10.1992, ` 498/- per month with effect from 4 20.10.1997, ` 548/- per, with effect from 20.10.2002 and ` 602/- per month, with effect from 20.10.2007 with interest @ 9% per annum and cost was assessed at ` 5,000/-. However, it was ordered that if the outstanding amount of rent alongwith interest at the rate of 9% per annum and cost assessed at Rs. 5,000/- was deposited within 30 days from the date of passing the judgment, respondent No.1 was not to be evicted on the ground of non-payment of rent. Hence, this petition. 5. Mr. H.S. Upadhyay has strenuously argued that the landlady has failed to prove the ground of sub-letting. According to him, the findings recorded by the Appellate Authority are contrary to law as far as the payment of arrears of rent is concerned. 6. Mr. Ajay Sharma has supported the judgment passed by the Appellate Authority dated 1.10.2010. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. PW-1 Kiran Sharma has deposed that she visited the demised premises on 7.5.2008. According to her, respondent No.2 had been doing the business of photography in the demised premises. She had requested him to click 25 PP size photographs. He clicked her photographs and supplied 5 the same in envelop Ex.PW-1/B. He also issued bill Ex.PW- 1/A of ` 160/-. 9. PW-2 Sukhwant Singh has deposed that he knew the parties. According to him, respondent No.1 had sub-let the demised premises to respondent No.2. He has seen respondent No.2 in exclusive possession of demised premises. 10. Ganesh Lal Sharma has appeared as PW-3. He has prepared site plan Ex.PW-3/A of the demised premises. 11. Jagdish Lal Saini has appeared as PW-4. The landlady had executed power of attorney in his favour on 13.1.2006. He has supported the landlady. According to him, the landlady was also entitled to revise the rent under the Act. He has also proved Ex.PW-4/B whereby notice was served upon respondent No.1 on 7.8.2006. The same was sent through registered post as per postal receipt Ex.PW-4/C. It was received by respondent No.1 on 8.8.2006. 12. Suresh Kumar has appeared as RW-1. He has deposed that he had been doing the business of photography in old hospital bazaar. He is brother of the husband of respondent No.1. He has deposed that PW-1 had visited him for clicking his photograph. He clicked the photograph and supplied the same in envelop Ex.PW-1/B. 6 13. Janak Devi has appeared as RW-1. According to her, she was in possession of the demised premises after the death of her husband. She had been paying the rent regularly. She had not sub-let the premises to respondent No.2. 14. Sanjeev has appeared as RW-3. He has supported the evidence of respondent No.1. According to him, he was not in possession of the demised premises as sub-tenant or otherwise. RW-3 is the brother of the husband of respondent No.1. This is the evidence led by the parties. 15. PW-1 has visited the demised premises on 7.5.2008. RW-2 has taken his photographs and receipt Ex.PW-1/A was also issued. PW-2 has seen respondent No.2 in exclusive possession of the suit premises. The version of RW-1 that he has clicked the photograph of PW-1 is not reliable. RW-1 has stated that bill Ex.PW-1/A has been issued by RW-2. There is variance in the statements of RW-1 and RW-2. A bare perusal of envelop Ex.PW-1/B makes it abundantly clear that on it, ‘Rajan Digital Studio’ has been written. The mobile number has also been printed on Ex.PW- 1/B. Respondent No.1 has also deposed that her son was supporting her in running the business. The son has neither been cited nor produced as witness. 7 16. Mr. H.S. Upadhyay has also argued that in rent petition instead of Sanjay Dogra, Sanjeev Dogra has been written, as sub-tenant. It will not make any difference. The parties knew the status of respondent No.2. In the reply to the petition, respondents have not stated that there was error in the name of respondent No.2. Respondent No.2 in her cross-examination has admitted that Sanjeev was her brother- in-law. 17. What emerges from the evidence discussed hereinabove is that respondent No.1 has parted possession of the demised premises with respondent No.2, who was running the shop exclusively. 18. Now, the Court will advert to the findings recorded by the Appellate Authority with regard to arrears of rent. It is not in dispute that the rent was required to be revised after five years under section 5 of the Act. Premises were let out by the landlady to the husband of respondent No.1 on 14.7.1978. She was entitled to get revised rent @ 10% after five years. Accordingly, the rent was to be revised from ` 375 to ` 412/- per month, with effect from 20.10.1987, ` 453/- per month, with effect from 20.10.1992, ` 498/- per month with effect from 20.10.1997, ` 548/- per, with effect from 20.10.2002 and ` 602/- per month, with effect from 8 20.10.2007. There is no error in the manner in which the arrears of rent have been calculated by the Appellate Authority. The landlady had served the notice upon respondent No.1 on 7.8.2006. The same was received by her on 8.8.2006. She has not replied the same. 19. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs. (Justice Rajiv Sharma), Judge 25.5. 2011. *awasthi*