IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3953 of 2007 Date of decision: 10th November, 2008 Dev Samaj Society … Petitioner Versus Sudhir Kumar and another … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jagdish Manchanda, Advocate for the petitioner. Mr. D.K. Singal, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. Dev Samaj Society registered under the Societies Registration Act, through Sudarshan Kumar, Principal, Dev Samaj Senior Model School, Ambala City preferred a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 for eviction of respondent No.1 – tenant. In the eviction petition, it was stated that the petitioner – society, being a registered society, vide appropriate resolution passed, was competent to file eviction petition through Sudarshan Kumar, Principal, Dev Samaj Senior Model School, Ambala City. It was stated that the petitioner – society was owner and landlord of the demised premises. It was further stated that respondent No.1 Sudhir Kumar was tenant of the shop since April, 1987 and was paying monthly rent @ Rs.2345/-. Following grounds were pleaded for seeking ejectment of the tenant: (a) Respondent No.1 has failed to pay or tender the rent for the shop to the landlord since 1st October, 2000 to 31st July, 2001. Therefore, arrears of rent had become due; Civil Revision No.3953 of 2007 (b) Respondent No.1 Sudhir Kumar has inducted his father Parduman Kumar Jain respondent No.2 as sub-tenant without the written consent of the petitioner-landlord. It was stated that respondent No.1 has shifted to Ludhiana, has started business there and has sub-let the shop to his father respondent No.2; (c) That the respondents, without the written consent of the landlord, by affixing iron flexible gate on the entrance of the shop has raised the level of the floor of the shop by breaking the original floor and has constructed a pucca chabutra platform in front of the shop. This act of the tenant- respondents has impaired the value and utility of the demised premises. Therefore on this ground also, eviction was sought. Notice was issued by the Court. Respondents caused their appearance. Written statement was submitted. In the same, it was stated that Society had not authorized Sudarshan Kumar to file the present petition, therefore, there is a defect in the institution of the petition and same is liable to be dismissed. All averments and pleadings made in the eviction petition, on merit were denied. However, rate of rent being Rs.2345/- was admitted. Non-acceptance of the rent on the part of the landlord was pleaded. Since the demanded rent along with interest was tendered in the Court and was accepted by the counsel for the petitioner, therefore the ground stands waived off. Respondent No.1 denied that he has shifted to Ludhiana. It was stated that respondent No.2 is none else but his father, therefore, ground of sub-letting is not made out. It was further stated that the alleged chabutra was in existence from the very beginning. Since there were frequent thefts in the market, in order to safeguard the same, respondents 2 Civil Revision No.3953 of 2007 and other shopkeepers had affixed iron flexible gate, which was allowed by the petitioner-landlord. Replication to the written statement was filed. Averments made in the eviction petition were reiterated. The Court had drawn following issues: 1. Whether respondent is liable to be evicted from the premises in question on the grounds mentioned in the petition? OPP 2. Whether present petition has not been filed through duly authorized person? OPR 3. Relief. Sudarshan Kumar appeared as PW-1. He tendered registration certificate (Ex.P-1), photocopy of resolution (Ex.P-2), photocopy of proceedings book (Ex.P-3), memorandum of association (Ex.P-4) and rules and regulations of Dev Samaj Education Society (Ex.P- 5). Tenant examined three witnesses. He himself appeared as DW-3. He also tendered documentary evidence, R-1 certificate of Chaman Vatika School, R-2 certificate of Chaman Vatika School in the name of Rajat Jain son of respondent No.1. RW-1/A admission form of Rajat Jain and Akshat Jain sons of respondent No.1 were tendered to show that they are studying at Ambala and to negate plea of the landlord that he has shifted to Ludhiana. Ex.R-3 is the voter list for the year 2004 was also relied to prove these facts. Petitioner had led no evidence in rebuttal. Rent Controller examined the documents and came to the conclusion that Sudarshan Kumar was duly authorized person to prefer the eviction petition. It was urged before the Rent Controller by the landlord that the studying of the children of respondent no.1 at Ambala is not sufficient to 3 Civil Revision No.3953 of 2007 hold that respondent No.1 has not shifted to Ludhiana, as he has failed to prove that he is still residing at Ambala. It was further canvassed before the Rent Controller that affixing the iron gate and constructing the chabutra has impaired the value and utility of the property in dispute. Adverse inference should be drawn against the respondent No.1 due to non-appearance of his father respondent no.2. Counsel for the respondent before the Rent Controller, submitted that no evidence has been led by the petitioner-landlord to prove that respondent No.1 has shifted to Ludhiana. Only bald oral assertion has been made. It was further submitted that PW-1 Sudarshan Kumar had admitted in cross-examination that the chabutra was constructed on the land of committee. It was further pleaded that fixation of flexible iron gate, in no way impair the value and utility of the property. Rent Controller further held that bald statement of Sudarshan Kumar PW-1 could not be relied to hold that there is a sub-letting by respondent No.1 in favour of respondent no.2. It also took into consideration relationship of son and father and stated that sitting of father on the shop managed by son cannot be taken as creation of sub-tenancy. In view of the documentary evidence produced and the evidence led, ground of sub-letting was rejected. Regarding fixation of the flexible iron gate and raising of chabutra, Rent Controller has held as under: “20. Now coming to the question, “whether the petitioner has proved on the record his second ground”. It is the case of the petitioner that the respondent has affixed the iron gate and has constructed a platform in front of the shop. I am of the view that it was upon the landlord to prove by cogent evidence, as to how the construction or the act of the tenant has impaired the value and utility of the shop. PW- Sudarshan Kumar Jain has admitted in his testimony that the platform has been constructed by the respondent on the land of Municipal Committee. So by this testimony it is categorically 4 Civil Revision No.3953 of 2007 established on the record that nothing has been done by the respondent in the land of the suit shop. The affixing of iron gate for proper safety of the shop is also not a sufficient ground to prove that the value and utility of the property has been diminished. There is no expert opinion on the record by virtue of which it could be inferred that by the acts of the tenant, the value of the shop has been impaired. The evidence of the PW-1 is beyond pleadings about the construction of another roof in the petition, it has been nowhere pleaded that any roof has been constructed by the respondents so therefore, as a cumulative effect of my above discussion, I am of the view that this ground has also not been proved by the petitioner. Therefore, the Issue No.2 is hereby decided in favour of petitioner against the respondents and the Issue No.1 is hereby decided against the petitioner in favour of the respondents.” Aggrieved against the same, landlord filed an appeal before the Appellate Authority. The Appellate Authority examined the various judgments relied upon by the landlord, discussed their ratio and on facts, affirmed the findings of the Rent Controller and held as under: “15. … … … … Tenant Sudhir Kumar Jain has successfully proved on record that he is running his exclusive business in which his father used to assist him. If the father of the tenant Sudhir Kumar Jain is living jointly with him and is coming regularly at his shop then it may at the maximum can be treated there joint family, but their business cannot be termed as a Joint Hindu Family business.” Appellate Authority also noticed that the counsel for the appellant admitted that no evidence has come on record on behalf of the petitioner-landlord “to establish that platform was constructed by the respondents in front of the shop on the land belonging to petitioner impairing the value and utility of the shop and that the iron flexible gate affixed on the entrance have also materially damaged the shop.” 5 Civil Revision No.3953 of 2007 I have heard Mr.Jagdish Manchanda, counsel for the petitioner. He has urged before me that ground of sub-letting is proved in the present case. He has stated that once landlord had stated that the tenant had shifted to Ludhiana then tenant should prove that he is running a business. He has stated that evidence of School Authorities to show that the children of respondent No.1 are studying at Ambala, is not sufficient to hold that respondent No.1 has not shifted to Ludhiana. However, Mr.Manchanda admitted that the respondent No.1 and 2 are related as son and father. Two courts below have given concurrent finding of fact that Sudhir Kumar had not shifted to Ludhiana and running and managing his business. The fact that his father is looking after the business, as an aid to his son, has been proved from the evidence led by respondents by examining RW-2 Sundar Lal as the demised shop was situated in front of the shop of the witness RW-2. Concurrent findings of two courts below, based upon documentary and oral evidence, cannot be said to be perverse. Therefore, I have no reason to disturb the findings of the two courts below. Hence, there is no merit in the present petition and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 10, 2008 rps 6