Civil Revision No.3428 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3428 of 2010 (O&M) Date of decision: 04.10.2010 Gurvinder Pal Singh ....Petitioner Versus Karamjit Kaur and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sandeep Arora, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) This is tenant's revision petition against the order dated 15.2.2008, passed by the learned Rent Controller and affirmed by the learned Appellate Authority, ordering the eviction of the petitioner on the ground of subletting. The case of the respondent-landlord was, that respondent No.1/petitioner was inducted as tenant on a monthly rent of ` 1000/- (Rupees one thousand only) as per agreement dated 11.4.1994 and was also liable to pay house tax @ 15% w.e.f. 1.1.1999 till date. The petitioner deposited the rent claimed along with house tax, interest and costs, therefore, the ground of non-payment of rent was not pressed. The respondent-landlord succeeded on the ground of subletting, as it was proved, that the petitioner left the possession of the shop and sublet the same to respondent No.2, without the consent of the landlord. Respondent No.2 was proved to be in possession of the shop, Civil Revision No.3428 of 2010 (O&M) -2- as the petitioner shifted to shop No.3, Papi Market, Basant Vihar Road, Shankar Garden, near Income Tax Colony, Jalandhar, to run his business in the name and style of Sidana Property Dealers. Respondent No.2 was doing the business of property dealer in the name and style of Friends Property Linkers in the shop in dispute for the last six months. The petition was contested by taking preliminary objections, that the petition was filed with a mala fide intention to harass the petitioner. Respondent-landlord was said to have not come to Court with clean hands and withheld the true facts. Case of the petitioner was, that respondent No.2 was his younger brother. The petition was said to have been filed as a counter-blast to the notice sent by the petitioner on 30.8.2000 asking the landlord to accept the rent and issue receipts. Execution of rent note was admitted though it was pleaded that initially the rate of rent was ` 800/- (Rupees eight hundred only) per month, which was enhanced to ` 1000/- (Rupees one thousand only). The assertion of subletting was denied. It was also denied, that the petitioner had ceased to occupy the shop and shifted to shop No.3, Papi Market, Basant Vihar Road, Shankar Garden, near Income Tax Colony, Jalandhar. The case of the petitioner was, that both the business were run by the petitioner, and respondent No.2 being his real brother was helping him whenever the petitioner was out of station. Both the business were, therefore, claimed to be run by the petitioner as sole proprietor. Learned Rent Controller, on appreciation of evidence, recorded a finding that it was established by evidence led by the landlord, that the possession was parted with by the tenant, and that Civil Revision No.3428 of 2010 (O&M) -3- respondent No.2 was in exclusive possession of the property. The learned Rent Controller held, that onus to prove subletting stood discharged, as the landlord was able to prove that sub-tenant was in exclusive possession of the property and he was enjoying the same in his independent right. The learned Rent Controller further held, that it was for the petitioner-tenant thereafter to prove that it was not for consideration. This was in view of the settled law, that subletting is a secrete arrangement between the tenant and the sub-tenant for which the landlord has got no knowledge, and when the sub-tenant and tenant are relations such as brothers, it becomes more difficult to landlord to prove the secrete arrangement with regard to the consideration. The learned Rent Controller further recorded a finding, that it was admitted by the petitioner-tenant, that they were five brothers and all were doing separate businesses. The learned Rent Controller, therefore, did not accept the plea taken in the written statement, that respondent No.2 was helping him in his business. The learned Rent Controller took note of the fact, that respondent No.2 had got shifted his telephone by moving an application Ex.PW4/A, wherein an affidavit was filed, which was proved on record as Ex.PW4/D, claiming to be sole proprietor of firm M/s Friends Property Linkers. The learned Rent Controller also took note of the fact, that it was not disputed in the written statement, that the petitioner-tenant was running his separate business in shop No.3, Papi Market, Basant Vihar Road, Shankar Garden, near Income Tax Colony, Jalandhar. Finding was recorded, that subletting was proved. In view of the findings referred to above, petitioner was ordered to be evicted. Civil Revision No.3428 of 2010 (O&M) -4- Petitioner filed an appeal. Learned Appellate Authority affirmed the findings recorded by the learned Rent Controller and disregarded the evidence created by the petitioner during the pendency of the petitioner by filing income tax returns. The petitioner failed to file returns prior to filing of the petition. While affirming the findings of the learned Rent Controller, the learned Appellate Authority recorded as under: - “17. Ex. PW4/A to Ex PW4/C have been proved on the file from office record of General Manager Telephones by PW4 Balwinder Singh Sandhu, a supervisor in that office and no doubt can be expressed against their genuineness. To top it, respondent no.1 Gurvinder Pal Singh as DW1 has admitted in his cross examination that Arvinder Pal Singh got transferred above said telephone into demised premises. As DW1 Gurvinder Pal Singh has further admitted that they are five brothers and all of them are living separately and running their separate business. No evidence has been led on file by respondents to show as to what other business is being run by respondent no.2 Arvinder Pal Singh than running Friends Property Linkers from the shop in question. 18. The respondents have withheld Books of Accounts of both of their firms perusal whereof would have enabled this court to appraise version of respondents of that respondent no.1 continues to run his business from demised premises and respondent no.2 is just but helps him in running the business or that what is the status of business concern Friends Property Linkers and the respondents in Kanta Sagar Vs. Vinod Khanna 2000(1) PLR 682 the explanation was that the alleged sub tenant is an employee but neither employee register nor books were forthcoming. Even the return of Income tax are being withheld which was the best evidence to indicate that respondent had engaged alleged sub tenant as an employee and had been paying salary to him. As best evidence was withheld sub tenancy was held to have been proved. Facts of the case in hand are also somewhat similar with the facts of case of Kanta Sagar.” Civil Revision No.3428 of 2010 (O&M) -5- Mr. Sandeep Arora, learned counsel, appearing on behalf of the petitioner, challenged the findings of the learned authorities below primarily on the ground, that respondent No.2 being real brother, could not be said to be sub-tenant, therefore, the findings by the learned authorities below could not be sustained in law. However, the learned counsel for the petitioner was unable to state the status of respondent No.2 in holding the property in dispute in his exclusive possession. The documentary evidence on record was rightly appreciated by the learned authorities below to record the finding of subletting. The concurrent finding of fact recorded by the learned authorities below is neither perverse nor outcome of misreading of evidence, which may call for interference by this Court in exercise of revisional jurisdiction. No merit. Dismissed. (Vinod K. Sharma) Judge October 04, 2010 R.S.