IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.220 of 2002. Date of decision: 19.5.2008. Smt.Sanehru Devi and others ….Petitioners. -Versus- Smt.Usha Rani ….Respondent Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioners: Mr.Bhupinder Gupta, Sr.Advocate with Mr.Janesh Gupta, Advocate. For Respondent: Mr.Tarun Vaid, Advocate. Deepak Gupta,J.(oral) The short question which arises in this petition is whether the relationship of landlord and tenant exist between the parties. The petitioners (hereinafter referred as the Landlords) filed a petition under Section 14(2)(3) of the H.P. Urban Rent Control Act, 1971 (hereinafter referred to as the Act) for eviction of the respondent Usha Rani from house No.134, Raura Sector No.2 (New Nos.463 to 466), New Bilaspur Township. The grounds of eviction were that the premises are bonafide required for the personal use of the landlady; that the premises were given/licenced to the respondent only for a period of six months on humanitarian grounds on monthly licence fee of Rs.1000/- but the respondent had sublet the premises and had not vacated the premises after the agreed period of six 2 months. Other ground raised was that the licencee had committed such acts as are likely to impair the value and utility of the building. The eviction petition was contested by Smt.Usha Rani. The main plea taken by her was that she is neither a tenant nor the licencee in the said premises. According to her she and her children are living with her husband Tarsem Lal who is a tenant in the said premises for a number of years. Smt. Usha Rani stated that she had been coerced into signing an agreement wherein she was shown as the tenant of the premises in question. On the pleadings of the parties the learned Rent Controller framed the following issues: “1.Whether the relationship of landlord and tenant exist between the parties? OPP. 2.Whether the respondent is in arrears of rent, if so to what extent? OPP. 3.Whether the premises are required by the petitioners for her occupation and that of family? OPP. 4.Whether the respondent has caused damage to windows, window panes, doors, glasses, iron rods, boundary wall and plaster of the walls, if so, to what effect? OPP. 5.Whether this court has no jurisdiction to try the present petition? OPR 6.Whether the agreement in question is void and prohibited under the provisions of perpetual lease deed? OPR. 7.Relief.” After recording evidence the learned Rent Controller held that the relationship of the landlord and tenant existed between the parties. He only allowed the eviction petition on the ground that the tenant was in arrears of rent @ Rs.1000/- per month w.e.f. 1.7.1994 the date when she had been inducted in the premises. None of the other grounds were held to be proved. 3 The landlady did not file any appeal against the order of the learned Rent Controller. However, the tenant filed an appeal in which again, the main ground raised was that she is not the tenant in the premises in question. The learned Appellate Authority has come to the conclusion that no relationship of landlord and tenant exists between the parties. He has not decided the question as to whether it is Usha Rani or her husband who is the tenant or the licencee in the premises. He has held that in fact no tenancy was created vide document Ext.P-1 and only a licence was created and therefore the Rent Controller had no jurisdiction to entertain or decide the matter. The landlord has filed the present petition challenging this finding of the learned Appellate Authority. I have heard Sh.Bhupinder Gupta, learned Senior Advocate for the Landlord and Sh.Tarun Vaid, learned counsel for the respondent Usha Rani. Despite having gone through the judgment of the Appellate Authority more than once I have been unable to comprehend and understand the reasoning given by the learned Appellate Authority. The simple question which was raised by Usha Rani was that she is not the tenant in the premises and that it is her husband Tarsem Lal who was inducted as a tenant. The learned Appellate Authority totally went off on a tangent. He came to the conclusion that the document Ext.P-1 only made Usha Rani a licencee. This in fact was not what had been urged by her in the trial Court. According to her she was neither a licencee nor a tenant. 4 Agreement dated 29.6.1994 was entered into between Sanehru Devi and Usha Rani. Usha Rani has not denied her signatures on the said document and in her statement has specifically admitted her signatures. However, according to her these signatures were obtained by coercion. No report was made either with the police or any other authority that the signatures had been obtained by fraud or coercion. A suit was filed by Tarsem Lal and Usha Rani which was numbered as 243/1 of 1994. The said suit was instituted on 29.12.1994. In this suit it had been pleaded that Tarsem Lal was the tenant in the premises and the agreement dated 24th June, 1994 was got executed under undue influence and coercion and has no value in the eyes of law. The prayer made in the suit that the defendants, i.e. the landlords herein be restrained from interfering in any manner in the ground floor of House No.134, Raura Sector, Bilaspur which is in the possession of the plaintiffs as tenants. Therefore, it is apparent that even in the said suit in the prayer clause it was claimed that the plaintiff i.e. Tarsem Lal and his wife Usha Rani were tenants. This suit was later withdrawn by the tenants. Heavy reliance was placed by the respondent on the ration card, voter list etc. to show that the respondent Usha Rani, her husband Tarsem Lal and children have been residing in the premises prior to the year 1994. This may be true, but none of these documents in any manner show that it was Tarsem Lal who was the tenant and not Usha Rani. No such inference can be drawn from a perusal of these documents as to who was the tenant in the premises in question. 5 The only document evidencing the creation of the tenancy is the agreement dated 29th June, 1994 which was signed by respondent Usha Rani. Since the learned Appellate Authority has held that the said agreement does not create a tenancy but only creates a licence it would be pertinent to quote the relevant portion of the agreement which reads as follows: “Whereas the first party has agreed to lease out three room set alongwith one kitchen, one bath and one latrine of H.No.134 to the second party for a period of six months commencing from 1.7.1994 to 31.12.1994 at the rate of Rs.1000/- (Rupees one thousand only per month as rent and the second party has agreed to pay the rent at the rate of Rs.1000/- per month to the first party and further agreed that the above said premises will be vacated on 31.12.1994and possession will be given to the first party on 1.1.1995.” A perusal of the aforesaid clause of the agreement clearly shows that the landlady had agreed to lease out the three room set alongwith kitchen, bath room and latrine to Usha Rani for a period of six months. What was agreed to be paid was rent and not licence fee. In fact a perusal of the agreement shows that the words “licence fee” originally typed had been struck off and the word “rent” has been incorporated. This clearly shows that the intention was to create a tenancy and not a licence. Even otherwise when the respondent was put in exclusive possession of the premises on payment of rent and in terms of the agreement the landlords had no control over the premises, it is obvious that the respondent was inducted as a tenant. The learned Appellate Authority has totally erred in deciding this question. He has completely misread the agreement and mis-applied the authority cited before it. 6 I have also been unable to comprehend as to what benefit the landlord would derive by showing the wife as tenant instead of the husband. The tenancy would remain in the family. The plea of Usha Rani that she is not the tenant and it is her husband who is the tenant does not appear to be correct and has been raised only with a view to delay the proceedings. Keeping in view the aforesaid discussion, I am of the considered opinion that the order of the learned Appellate Authority is perverse, not in accordance with law and the learned Appellate Authority has failed to exercise jurisdiction vested in it by law. The order of the learned Appellate Authority in case Civil Misc.Appeal No.4 of 2000 dated 1.5.2002 titled Smt.Usha Rani vs. Smt.Sanehru Devi and others is set-aside and the order of the Rent Controller in case No.6-2 of 1997 titled Smt.Sanehru Devi and others vs. Smt.Usha Rani is confirmed. The petition is allowed in the aforesaid terms with no order as to costs. May 19, 2008. ( Deepak Gupta ), PV Judge