IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 48 of 2003. Reserved on : 19.11.2010. Decided on 29.11.2010. Keshav Sood and others. …Petitioners. -Versus- Surinder Nath and others. .…Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioners : Mr. K.D. Sood, Advocate. For respondents No. 1 (a) and 1(b) : Mr. Suneet Goel, Advocate. For respondents No. 2, 3 (a) to 3 (f) : Mr. Rajnish K. Lall, Advocate. Rajiv Sharma, Judge: This is tenant’s petition against the judgment dated 09.01.2003, rendered by the learned Appellate Authority (II), Shimla, H.P. in Civil Miscellaneous Appeal No. 39-S/14 of 1999. 2. The material facts necessary for adjudication of this Civil Revision Petition are that the predecessor-in-interest of the respondents (hereinafter referred to as “the landlord” for convenience sake) had filed an eviction petition, seeking eviction of petitioners-tenants (hereinafter referred to as “the tenants” for convenience sake), on the ground of ceased to occupy, arrears of rent, impaired material value and utility of the building. The allegations contained in the petition are that father of the tenants, late Shri Chiranji Lal had permanently shifted to Delhi and had 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - ceased to occupy the premises for the last more than 15 years and had no intention to come back in the said premises, which were lying locked. After the death of Shri Chiranji Lal, the tenants who have inherited the tenancy right have also permanently shifted to Delhi and were carrying their business at Delhi. Accordingly, the tenants had ceased to occupy the premises without any sufficient and reasonable cause and were liable to be evicted. The landlord has also sought eviction of the tenants on the ground that the tenants were in arrears of rent w.e.f. 01.01.1986 till the date of filing the petition. The petition was allowed by the learned Rent Controller (2), Shimla on 30.06.1995. The said order was affirmed by the learned Appellate Authority on 01.12.1995. The tenants approached this Court by was of Revision Petition against the judgment dated 01.12.1995. This Court set aside the order of the appellate authority dated 01.12.1995 on 16.09.1998. 3. In sequel to the judgment dated 16.09.1998, the tenants filed reply to the petition. According to them, the demised premises never remained locked. It was also alleged that Shri Ramesh Chand was tenant at his own right after the death of Chiranji Lal. The learned Rent Controller framed the issues on 12.01.1999. The learned Rent Controller partly allowed the petition to the effect that tenants had ceased to occupy the demised premises known as House No. 124/2, Lower Bazaar Shimla before 12 months of filing the petition and they were liable to be evicted from the same. The learned Rent Controller dismissed the petition on the ground of arrears of rent and impairing of value and utility of the building. - 3 - 4. The landlord filed a separate appeal against the dismissal of the petition on the grounds of arrears of rent bearing Civil Misc. Appeal No. 39-S/14 of 1999. The learned Appellate Authority allowed the appeal on 09.01.2003 and the order of the learned Rent Controller to the effect that tenants were not in arrears of rent was set aside and it was held that the tenants were in arrears of rent w.e.f. 01.01.1986 @ Rs.400/- per annum. The eviction of the tenants was ordered on the ground of arrears of rent as well. 5. The tenants also preferred an appeal against the order passed by the learned Rent Controller on 21.06.1999, assailing their eviction on the ground of ‘ceased to occupy’ by way of C.M.A. No. 38-S/14 of 1999. The appeal was dismissed by the learned Appellate Authority on 09.01.2003. It is in these circumstances that the tenants have filed the present Civil Revision Petition against the judgments dated 09.01.2003, rendered in C.M.A. No. 38-S/14 of 1999 and C.M.A. No. 39-S/14 of 1999. 6. Mr. K. D. Sood, learned counsel for the petitioners has strenuously argued that the judgment dated 9.1.2003, rendered by the learned Appellate Authority (II), Shimla is not in conformity with the principles of law. According to him, the learned Appellate Authority has mis-red and mis-construed the oral as well as documentary evidence. According to him, his clients were not in arrears of rent. He has also argued that the findings recorded by the learned Courts below that his clients have ceased to occupy the demised premises, are contrary to the evidence led by the parties. - 4 - 7. Mr. Suneet Goel, learned counsel for respondent No. 1 has supported the judgments passed by the learned Courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. The landlord has made a specific averment in paragraph No. 11 of the petition that the tenants were inducted @ Rs.400/- per annum. It is clarified that though inadvertently Rs.400/- per month was mentioned, however, it is apparent from the records that it was Rs.400/- per annum. Moreover, in paragraph No. 13, the rent has been mentioned as Rs.400/- per annum. The statement of the landlord was recorded twice, i.e., on 30.06. 1995 and 24.05.1999. The landlord has deposed that the tenants have not led any tangible evidence that they had paid the rent to the landlord. It has also not come in the statements of Shri Keshav Sood (RW-1) and other witnesses that they have paid any rent to the landlord @ Rs. 400/- per annum. Accordingly, the findings recorded by the learned 1st Appellate Court that the tenants were in arrears of rent, are not required to be interfered with. 10. Now, the Court will advert to the question whether the findings recorded by both the Courts below that tenants have ceased to occupy the premises are based on correct appreciation of oral and documentary evidence or not? 11. PW-1, Shri Lekh Raj has produced the record from the electricity department belonging to electricity meter No. 20 ED- 650-D installed in the demised premises. According to him, the consumption of electricity from 01.08.1989 to 01.01.1990 was found nill. A bare perusal of electricity bills Ex. P-1 to P-21 makes - 5 - it abundantly clear that the meter reading remained static, i.e., 8518 from 1985 till 27th August, 1989. Thereafter, it remained static w.e.f. 27th November, 1989 till 27th October, 1993 as 8848 and thereafter, it remained 9098. No electricity was consumed in the premises w.e.f. 1985 onwards. In case the tenants were residing in the premises, they were bound to use electricity. In Ex.P-35, the words “died and locked” are mentioned. 12. AW-2, Shri Kedar Nath has stated that late Chiranji Lal was inducted as tenant on the rent of Rs. 400/- per annum. The tenants’ children also went to Delhi. The premises remained locked for the last 15-20 years. The premises were also locked one year before the filing of the petition. In cross-examination, he stated that Shri Chiranji Lal has gone to Delhi in 50’s and it could be that he had shifted to Delhi in 1955. He also stated that he did not know who was residing in the premises after 1958. According to him, in the Municipal record, Chiranji Lal was inducted as tenant and it was wrong to suggest that name of Ramesh Chand was entered as tenant. 13. Shri Keshav Sood has appeared as RW-1. According to him, he was staying in the demised premises since his child- hood. His grand-father stayed in the house till 1955. He went to Delhi in 1955 to practice. His father was also in possession of one shop, which he vacated in 1955. This shop was handed over to the landlord. However, the house was retained. Thereafter, his father remained as tenant in his own right. His father died on 09.07.1990. The electricity meter was installed in the name of his father. He has proved Ex.P-1 to P-29. He has also produced Ex. P- 30 to Ex. P-35 to prove that the name of his father was entered as - 6 - tenant in the Municipal record. According to him, he was employed in 1971 and thereafter, he remained posted at Kanpur, Sitapur and Shimla. However, he used to come in vacations to Shimla. According to him, the house was never locked for 6-12 months. His father and sister used to stay in the house. In his cross-examination, he admitted that he could not produce the electricity bills w.e.f. 1st August, 1988 to 31st August, 1989. He also admitted that in Ex. P-6, the meter reading was 8518. He volunteered to state that they used to stay with their relations since the repairs were being carried out in the demised premises. According to him, the landlord has not issued them any rent receipt. According to him, the rent receipts were in the name of his grand father Shri Chiranji Lal till 4th August, 1981. Thereafter, he could not produce any receipt. He has also admitted that in Ex.P- 35, the words “dead and locked” are written. In 1973, he was posted at Kanpur. He also remained posted at Sitapur and Lakhnow between 1974 to 1976. Thereafter, he remained posted at Ambala in 1976-78 and in 1978 to 1981 at Shimla. He went to Rohtak in 1981. He also admitted that his children were staying with him at Rohtak and thereafter, they stayed at Delhi. They never stayed at Shimla. He denied the suggestion that the premises were locked w.e.f. 1st April, 1988 till 10th August, 1989. He also denied that the premises were ever locked for 15 years. 14. What emerges from the evidence discussed hereinabove, is that Shri Chiranji Lal has shifted to Delhi in 1955, where he worked as Medical Practitioner. Shri Keshav Sood also remained out of Shimla and remained posted at the stations mentioned hereinabove. His children have not stayed at Shimla, - 7 - since initially they were staying at Rohtak and thereafter they went to Delhi. No electricity was consumed in the locked premises from 1st August, 1988 to 31st August, 1989. The meter reading remained 8518 from 27.12.1985 (Ex. P-1) till 27.08.1989 ( Ex. P- 9). Thereafter also, it remained static at 8848 w.e.f. 1989 till 1993 and from 1993 onwards, it remained 9098. In Ex. P-35, Shri Keshav Sood has admitted that words “died and locked” have been written. The explanation given by Shri Keshav Sood (RW-1) that the electricity could not be consumed, since they were carrying out repairs and were staying with their relations, cannot be accepted. No independent witness has been produced from the locality to prove that they were staying in the demised premises. 15. Their Lordships of the Hon’ble Supreme Court in Vora Rahimbhai Haji Hasanbhai Popat Versus Vora Sunderlal Nanilal and another (1985) 4 Supreme Court Cases 551 while interpreting the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, have held that even non-user of the premises for any purpose whatsoever for six months or more would make the tenant liable to eviction. In this case, the premises admittedly let out for business and that business was stopped for 4-5 years before institution of eviction suit. Their Lordships have held as under: “12. Shri Sheth also referred to Section 12 and Section 13 of the Act and contended that these are the only two sections which give protection to the tenant and unless the conditions in the two sections are satisfied the tenant cannot be evicted. What was let out by the plaintiff to the defendant- tenant was the land and not the superstructures and so Shri Sheth argues that the non-user of the - 8 - superstructures does not amount to non-user of the land. On the own showing of the defendant- respondent he had shifted his business to Baroda and, therefore, he is not using the land for any purpose whatsoever. Broadly speaking a premises can be let out either for residential or for business purposes. In the instant case on the own showing of the defendant-respondent, it had been taken for the purpose of tobacco business and that business had been stopped for a period of 4 to 5 years before the institution of the suit as the business had expanded and the defendant had shifted to Baroda. Therefore, it can be safely presumed that the land is not being used for the purpose for which it has been proved to have been let out.” 16. The Apex Court in M/s. Babu Ram Gopal and others Versus Mathra Dass, AIR 1990 Supreme Court 879 while interpreting Section 13(2)(v) of the East Punjab Urban Rent Restriction Act have held that when the business is stopped continuously for four months, the tenant is liable to be evicted. Their Lordships have held as under: “3. The grounds on which a tenant can be asked to quit are mentioned under S. 13(2) of the Act, and under clause (v) thereof the controller may pass an order for the tenant's eviction if he is satisfied, "13(2)(v) : That where the building is situated in a place other than a hill-station, the tenant has ceased to occupy the building for, a continuous period of four months without reasonable cause," Mrs. Urmila Kapoor appearing in support of the appeal contended that the appellant has all along been in possession of the shop which was never vacated and merely for the reason that the shop remained closed for a - 9 - temporary period he can not be said to have ceased to occupy the same. The argument is that the appellant's occupation of the shop was never interrupted as it was in his effective control, although closed and secured under the appellant's lock which nobody ever disturbed. We do not find ourselves in a position to accept he interpretation of the section as attempted on behalf of the appellant. The reason of including the clause (v) in S. 13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them. A tenant Who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose of S. 13(2)(v) ; otherwise a question of his eviction as envisaged in that section would not arise. The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessation of occupation as one of the grounds. The clause, therefore, has to be interpreted in this back ground and it must take colour from the context. We, therefore, hold that if a tenant stops the business which he is carrying on in a shop and closes the premises continuously for a period of four months without a reasonable, cause he will be liable for eviction.” 17. The Apex Court in Ram Dass Versus Davinder (2004) 3 Supreme Court Cases 684 have held that the burden of proof lies on the landlord but the onus remains shifting. Their Lordships have further held that once the premises have been proved to be not in occupation of the tenant, the pleading of the landlord that such non-user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenanted premises. - 10 - Their Lordships have explained the position between words “Possession” and “Occupy”. Their Lordships have held as under: “7. The terms "possession" and "occupy" are in common parlance used interchangeably. However, in law, possession over a property may amount to holding it as an owner but to occupy is to keep possession of by being present it. The Rent Control Legislations are outcome of paucity of accommodations. Most of the Rent Control Legislations, in force in different states, expect the tenant to occupy the tenancy premises. If he himself ceases to occupy and parts with possession in favour of someone else, it provides a ground for eviction. Similarly, some legislations, provide it as a ground of eviction if the tenant has just ceased to occupy the tenancy premises though he may have continued to retain possession thereof. The scheme of the Haryana Act is also to insist on the tenant remaining in occupation of the premises. Consistently with what has been mutually agreed upon the tenant is expected to make useful use of the property and subject the tenancy premises to any permissible and useful activity by actually being there. To the landlord's plea of the tenant having ceased to occupy the premises it is no answer that the tenant has a right to possess the tenancy preemies and he has continued in juridical possession thereof. The Act protects the tenants from eviction and enacts specifically the grounds on the availability whereof the tenant may be directed to be evicted. It is for the landlord to make out a ground for eviction. The burden of proof lies on him. However, the onus remains shifting. Once the landlord has been able to show that the tenancy premises were not being used for the purpose for which they were let out and the tenant has discontinued such activities in the tenancy premises - 11 - as would have required the tenant's actually being in the premises, the ground for eviction is made out. The availability of a reasonable cause for ceasing to occupy the premises would obviously be within the knowledge and, at times, within the exclusive knowledge of tenant. Once the premises have been shown by evidence to be not in occupation of the tenant, the pleading of the landlord that such non- user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises. 18. The learned Single Judge in Om Parkash versus Subhash Chand 2003(2) Shim. L.C. 217 has held that non- consumption of electricity is a very material and relevant factor to decide the question of non-occupation of demised premises. 19. Similarly, the learned Single Judge in Gurbachan Singh Versus Ravinder Nath Bhalla and others Latest HLJ 2006 (HP) 177 has held that the occasional visits by the tenant would not amount to of occupation. No consumption of electricity in tenanted premises between July 1988 to June, 1989 except for the period January, 1989, when the consumption of 40 units shown, was a circumstance against the tenant. 20. The expression ‘reasonable Cause’ has been explained by a Division Bench of Kerala High Court in Kallullathil Sasidharan Versus Kadeesumma and Others 2010 (2) RCR (Rent) 221 as under: “9. The mooted question for consideration is as to whether in exercise of revisional jurisdiction this Court can look into or make a search as to whether there was any reasonable cause for the alleged non- - 12 - occupation, when the cessation of occupation was not at all admitted and when the specific plea and evidence was only total denial of the alleged cessation. The “reasonable cause” contemplated under Section 11(4) (v) of the Act should be a cause which is not within the control of the tenant and should prevent him from putting the tenanted premises to regular use and occupation. When it comes to the case of commercial space it should be a cause which prevents the tenant from continuing with the business activity which could not be rectified by the tenant within his control of affairs. In order to get the benefit of “reasonable cause” enumerated in Section 11(4) (v), the tenant is expected to concede that there was cessation of occupation and that such cessation was due to some reasonable cause, which was beyond his control. In a case where there is stout denial of the allegations regarding cessation, the tenant is not justified in banking upon any “reasonable cause” which was neither pleaded nor proved to contend that the cessation was justifiable. Hence, we are of the considered opinion that the arguments advanced before this Court for the first time, appealing to take judicial notice of any event as ‘reasonable cause’ for the cessation of occupation, could not be entertained in exercise of the attenuated jurisdiction, which is revisional in nature. Therefore, we find no illegality, irregularity or impropriety with respect to the concurrent findings of the courts below. Accordingly, the revision petition deserves no merit and the same is liable to be dismissed. However, considering the totality of factual circumstances, we feel that it is only just and proper to grant reasonable time for the tenant to surrender vacant possession of the building.” - 13 - 21. In Harjeet Singh Bedi Versus Ishwar Devi and another 2010(2) RCR (Rent), 310, the Learned Single Judge of Punjab and Haryana High Court has held that when electricity of shop had been disconnected for two years for non-payment of bill, which the tenant was required to pay under the agreement, it was inconceivable to expect that averred business could have been run in tenanted premises without consumption of electricity. The learned Single Judge has held as under: “8. It was in view of the tenor of the pleadings that the learned Appellate Authority recorded a finding that the tenant had not disputed that “the electricity connection of the demised shop has been disconnected for the last about years as alleged by the petitioner”. In the context of the averment made by the tenant (to the effect that it was the landlord who had got the electricity connection disconnected), the learned Appellate Authority noticed the terms and conditions of the rent note Ex. PW/B which categorically indicated that the electricity charges were required to be paid by the tenant himself. In this case, petitioner/tenant had conceded the factum of execution of the impugned rent note. When the respondent-landlord stepped into witness box, as his own witness, as PW-2, a suggestion was put to him that he did not accept the rent and electricity charges (from the tenant). That suggestion was utilized by the learned Appellate Authority to draw an inference against the petitioner-tenant in view of the proven contents of the rent note which imposed a liability upon the petitioner-tenant to pay electricity charges directly to the P.S.E.B. 9. In obtaining that finding, the learned Appellate Authority also drew sustenance from the substantive testimony of PW-4 Rajinder Pal Singh, photographer, who proved photographs Ex. PW4/1 to - 14 - Ex. PW-4/13 which (photographs) were supportive of the fact of closure of the shop. It is in testimony of photographer aforementioned that he had taken nine photographs on 28.12.2002; while he had taken other four photographs on 10.5.2003. He also proved negatives E. PW4/14 to Ex. PW4/26 and the relevant bill Ex. PW4/27 dated 8.12.2002. It would also be pertinent to notice here that petitioner-tenants had, while denying non functional aspect of the tenanted premises, averred that they have been throughout running Tent House business in those premises and there also was a cable connection and ceiling fan installed therein. It was also the plea that four migrant labourers had been engaged in the business aforementioned. Those averred four migrant labourers/workers were not examined at the trial. No documentation to prove the obtaining/running of a cable connection in the premises was adduced. The ceiling fan averred to have been installed in the tenanted premises could not have been run in the absence of electricity connection. In the totality of the circumstances of the case the learned Appellate Authority was fully justified in holding that it was inconceivable to expect that averred business could have been run in the tenanted premises without consumption of electricity.” 22. Consequently, the findings recorded by both the Courts below that the tenants have ceased to occupy the premises in question are based on correct