A. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 15(6) – Code of Civil Procedure, Order 9, Rule 6(1)(a), 7 – On the date fixed for service of summons the Court declared that service is complete – From the endorsement made on the summons, it is clear that the sub-tenant was not interested in contesting the case – There cannot be any other conclusion except that he was proceeded ex-parte – Merely, there is no specific order in this regard is no ground for setting aside ex-parte proceedings.

 (Para 7)

B. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 15(6) – Code of Civil Procedure, Order 1 Rule 10, Order 6 Rule 17, Order 9, Rule 6(1)(a), 7 – Ex-parte proceedings -- Ex-parte proceedings initiated against the sub-tenant – During the pendency of the case, suit property was sold – Not necessary to issue fresh notice, on application moved by Vendee under Order 1 Rule 10 and Order 6 Rule 17.

(Para 7)

Rent Control and Eviction -- Eviction – Sub-letting – Conversion of Sole Proprietorship in Partnership firm – The family of the tenant is joint and depends for its livelihood on the business run in the suit premises – Some family members entered into partnership with tenant for the purpose of carrying out the pre-existing business – Tenant not disassociated himself for business activities and so called partners are not in exclusive possession of the suit property – Conversion of Sole-Proprietorship Firm into Partnership will not amounts to sub-letting – Eviction petition dismissed – Karnataka Rent Control Act, 1961, Section 21(1)(f).

In the present case there is un-rebutted evidence available on record to show that the family of the tenant consists of sixteen members which includes cousins as well. The family is joint and depends for its livelihood on the business run in the suit premises. The tenant has not parted with possession in favour of any stranger. The brothers, a wife of one of the brothers and a cousin have entered into partnership with the tenant for the purpose of carrying on the pre-existing business in the suit premises. There is no evidence adduced and no material available on record to draw an inference that the tenant has dissociated himself from the business activity leaving for the partners alone to carry on the business or that the so-called partners are in exclusive possession of the premises having no relationship with the tenant and the partnership is nothing but a camouflage for parting with by the tenant of the possession or right to use the tenancy premises in favour of the persons in possession. The High Court was not right in holding a case of sub-letting having been made out simply because the sole propriety business was converted into a partnership business.

 (Para 17)

Rent Control and Eviction -- Eviction – Subletting – Letting out shop to the American Company – Foreign Exchange Regulation Act, 1973 came into force, the Company was required to reduce its share capital to 40% in order to carry out business in India – Tenant company merged with Indian Company – Transfer of demised premises to latter company will amounts to sub-letting -- Eviction order upheld -- Delhi Rent Control Act, 1958, Section 14(1(b).

It is not open to the Company to ask for unveiling its own cloak and examine as to who are the directors and shareholders and who are in reality controlling the affairs of the Company. This is not the case of the appellant nor could it possibly be that the corporate character is employed for the purpose of committing illegality or defrauding others. It is not open to the appellant to contend that for the purpose of FERA, the American Company has effaced itself and has ceased to exist but for the purpose of Delhi Rent Control Act, it is still in existence. Therefore, it is not possible to hold that it is the American Company which is still in existence and is in possession of the premises in question. On the contrary, the inescapable conclusion is that it is the Indian Company which is in occupation and is carrying on business in the premises in question rendering the appellant liable for eviction.

 (Para 16)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(i) – Ejectment -- Non-payment of rent -- Vacant land leased to the petitioner for a period of 50 years with a right of raising construction and right of sub-letting -- After raising construction a portion thereof was sub-let to the respondent – Respondent denied tenancy under petitioner on the plea that direct tenancy was created in his favour by the original landlord – Held, during the continuity of the lease deed the respondent could only be tenant under the petitioner not under the original owner.

The observation of the Appellate Authority that Parshotam Kishan had not placed on record any documentary evidence showing the date of inception of tenancy of Nand Kishore is of no consequence in the face of overwhelming evidence on record which clearly proved that Seth Radha Kishan and Parshotam Kishan were holding a valid lease in respect of the property in question. During the currency of lease period, Nand Kishore could only be a tenant under Seth Radha Kishan or Parshotam Kishan and not under the original owner Maharaj Kishan. Since the lease was to expire on 5.8.1985, the original owner Maharaj Chand, could not have possibly rented out the disputed property to Nand Kishore on 1.2.1977.

 (Para 13)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 15(6) -- Registration Act, 1908, Section 17(1)(d), 49 – Unregistered lease deed -- Lease deed executed for 5 years but not registered -- Landlord allows tenant to remain in possession, tenant becomes statutory tenant under the landlord -- An unregistered document is admissible in evidence under Section 49 of the Registration Act for collateral purpose – Unregistered leases deed allowed to be exhibited.

It is well settled that a document would be admissible in evidence under Section 49 of the Registration Act for a collateral purpose. In this regard, reliance can be placed on a judgment of the Supreme Court in Rana Vidya Bhushan Singh Vs Rati Ram, 1969 Unreported Judgment (S.C.) 86. The reliance of the Rent Controller on the judgment of the Supreme Court in Satish Kumar’s case (supra) is wholly misplaced and improper at this stage of the proceedings because it is too early to throw a document out of consideration. No one can imagine what type of evidence would be adduced by the parties. Moreover in the present case, admittedly the Haryana Rent Act is applicable and the tenant-respondent is a statutory tenant. There is no defence set up in the written statement by the tenant-respondent showing that there is dispute concerning relationship of landlord and tenant. In para No. 1 of the reply, it has been specifically admitted that the demised shop earlier was owned by one Dev Raj then by Mrs. Sunita Jain and then by the present petitioner-landlord. Once the provisions of Rent Act are applicable then the ratio of the judgment in Anthony Vs K.C. Ittoop and Sons, 2000 (6) S.C.C. 394 would be applicable.

The order dated 3.1.2003 passed by the Rent Controller is set aside and the document dated 12.9.1997 is allowed to be exhibited subject to objection of the tenant-respondent which may be decided at the stage of arguments.

 (Paras 6, 8)

A.  East Punjab Rent and Restriction Act, 1949 (III of 1949), Section 13(2)(i) -- Arrears of rent – Tender of -- Court allowed 30 days i.e. upto 23.02.2004 for tender of arrears of rent but tenant failed to tender the same, within stipulated time -- Application for extension of time filed on 15.03.2004, dismissed for not giving reasonable explanation for delay – Eviction order against tenant upheld.

Appellate Authority concluded that the rate of rent was Rs. 300/- p. m. and as the tenant-petitioner had tendered the rent at the rate of Rs. 110/- p.m., he was liable to tender the rent along with interest and costs. For the aforementioned purpose, he was given 30 days time from the date of order i.e. 24.1.2004 but he failed to comply with the order within the stipulated period of 30 days which expired on 23.2.2004. He filed an application for extension of time on 15.3.2004 which was also dismissed on 6.4.2004 because no reasonable and sufficient explanation was tendered by him in making payment of arrears of rent. Therefore, the view taken by the Appellate Authority does not merit interference.

(Para 9)

B.  East Punjab Rent and Restriction Act, 1949 (III of 1949), Section 13(2)(v) -- Cease to occupy – Adequate evidence on record showing the demised shop has been kept closed by the tenant for years together -- Electricity connection remained disconnected -- No evidence produced by the tenant showing sufficient and reasonable cause as the onus to prove this fact was on him – Eviction order upheld.

In the present case, the Courts below have found that the tenant-petitioner has kept the demised shop closed for a number of years. Reliance has been placed on the fact that there is no consumption of electricity and argument that the tenant petitioner takes electricity from the shop of Baldev Singh RW-2 has not been accepted because when Baldev Singh appeared as RW-2, he did not make any statement to that effect. The landlord-respondent has discharged the burden by producing adequate evidence showing that the demised shop has been kept closed by the tenant-petitioner for years together. However, no evidence has been produced by the tenant-petitioner showing sufficient and reasonable cause as the onus to prove this fact was on him. Following the view taken by the Supreme Court in Shiv Lal’s case (supra), I am of the view that the ground contemplated by Section 13 (2) (v) of the Act that the tenant-petitioner has ceased to occupy the premises for a continuous period of four months without a sufficient cause has also been proved.

 (Para 11)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(i) – Arrears of Rent – Tender of – Rent Controller not framed provisional order of assessment granting opportunity to the tenant for payment of rent, costs & interest – Ejectment order set aside.

(Para 2)

A. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 (3) (a) -- Bona fide requirement – Residential building – Non-residential Building -- For the purposes of ejectment on the ground of personal necessity, no distinction between “residential” and “non-residential” building could be drawn -- Harbilas Rai Bansal Versus State of Punjab 1996 (1) P.L.R. 227(SC), Ved Parkash Gupta Versus State of Haryana and Another, 1997 (2) P.L.R. 775 (P&H H.C.) relied.

(Para 7)

B. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 (3) (a) (ii) -- Bona fide requirement – Personal necessity – The provision (3)(a)(ii) of Section 13 of the Act is to be liberally construed and the expression ‘for his own use’ has to be interpreted to include the requirement of wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew etc. etc., Joginder Pal Versus Naval Kishore Behal, 2002 (5) S.C.C. 397, relied.

(Para 8)

C. Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13 (3) (a) (ii) -- Bona fide requirement – Personal necessity – Seeking ejectment on the ground of personal necessity -- Need of son is need of landlord -- Joginder Pal Versus Naval Kishore Behal, 2002 (5) S.C.C. 397, relied.

(Para 8,9,10)

East Punjab urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(v) – Ceased to occupy – Demised premises was sealed by the bank and it remained open for some time during the period in question – Meter reading shows consumption of 64 unit of electricity -- Area remained disturbed during that period – It cannot be said that the premises remained closed for a continuous period for four months without a sufficient reason – Eviction petition dismissed.

It has been shown that on 17.3.1984, the meter reading was recorded by Ravinder Kumar, Meter Reader of the Punjab State Electricity Board showing the consumption of 64 units. The meter reading was taken earlier on 19.1.1984. It becomes obvious that the meter consumed electricity which would show that the demised premises were under use. It has also been found that from 16.4.1984 till 31.7.1984, although a lock was put on the premises by the State Bank of Patiala but the demised premises remained open in between. A perusal of para 3 of the judgment passed by the Rent Controller shows that goods were sold on 20.6.1984, 2.7.1984, 3.7.1984, 28.7.1984 and 30.7.1984. It has thus become absolutely clear that the shop has remained open between the period from 16.4.1984 to 30.7.1984 and the tenant-respondent did not cease to occupy the premises for a continuous period of four months. It has also been found that the conditions in Punjab during the relevant period, remained disturbed and the city of Ferozepur where the demised premises are situated remained under curfew off and on. Therefore, by no stretch of imagination, it could be concluded that firstly the demised premises remained closed for a continuous period of four months without a sufficient reason; secondly, it was not a voluntary act on the part of the tenant-respondent.

The basic object for making provision under Section 13(2)(v) of the Act was that no tenant should be able to occupy the tenanted premises without using the same because it would be depriving the landlord or any other person interested in using the premises. The object does not seem to be to throw away a tenant in the circumstances where by a third intervention the demised premises has been sealed. Even otherwise, both the Courts below have concurrently found the absence of evidence showing ceasing of occupation of the premises for a continuous period of four months. In any case, there is sufficient justification proved by the tenant-respondent in support of the contention that there was reasonable cause for the tenant-respondent not to occupy the demised premises in respect of the period which is far less than, four months.

 (Para 7, 8)

            Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13(2)(iii) – Material alteration – Impairing the value & utility – Tin shed – Tin Shed erected by tenant – No evidence to conclude that it become part of the building permanently – Case of landlord would not covered u/s 13(2)(iii) of the Act – Vipin Kumar’s case, 1993(2)SCC 614 and Gurbachan’s Case 1996(2) SCC 398 and Waryam’s Case 2003(1) SCC 59 relied.

Although there is a tin shed erected by tenant-respondent 1, yet there is no evidence to conclude that it is of such a nature as to have become part of the building permanently. It is generally seen that tin sheds are erected for the purposes of protecting the building from rain and sun and such sheds do not constitute permanent alteration or as such cause material impairment to the demises premises. Such like tin sheds can easily be dismantled without causing any material damage to the demised premises. The case of the landlord-petitioner would not be covered by Section 13(2)(iii) of the Act as interpreted by the Supreme Court in the cases of Vipin Kumar v. Roshan Lal Anand, (1993)2 SCC 614; Gurbachan Singh v. Shivalak Rubber Industries, (1996)2 SCC 626 and Waryam Singh v. Baldev Singh, (2003)1 SCC 59. Therefore, no interference by this Court is warranted.

(Para 9)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 (2)(ii)(a) – Sub-letting – To whom the subletting of the demised premises has been alleged is an adopted son of the tenant -- No question of subletting arises.

(Para 3)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 (2)(ii)(b) – Change of user – Verandah which was stated to be used for purpose of business is still in the shape of verandah – Dealing in scarps in verandah at a small scale for earning livelihood cannot be held that residential building is converted into non-residential building because the dominant purpose was still the same i.e. residential – Eviction petition dismissed.

(Para 4)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Sections 2, 13 -- Landlord and tenant – Relationship of – Authorities under the Act cannot deal with the question of tile -- Once the relationship of landlord and tenant established between the original landlord and tenant, the tenant would continue to be tenant under the successors of landlord – Decision on it would not amount to decision on question of title.  

(Para 12)

A. Haryana Urban (Control of Rent and Restriction) Act, 1973 (11 of 1973), Section 13(2)(ii)(a) – Sub-letting – Ejectment of the respondents sought on the ground of subletting -- Respondent no. 1 admitted that he has parted with the possession of demised premises in favour of Ram Kumar -- No material on record to support the allegation of collusion – Nothing on record to attribute any motive on the part of respondent no.1 to collude with the petitioner – No adverse inference can be drawn.

There is no material on record to support the allegation of collusion between the petitioner and Nagar Mal. It is strange that if Nagar Mal has wanted to tell the truth by admitting the claim of the petitioner, an adverse inference has been drawn against him. There is nothing on record to attribute any motive on the part of Nagar Mal to collude with the petitioner by executing the Rent Note.

(Para 15)

B. Haryana Urban (Control of Rent and Restriction) Act, 1973 (11 of 1973), Section 13(2)(ii)(a) – Sub-letting – Onus of Proof -- Landlord is only to prove that in place of the original tenant somebody else is in occupation of the premises independently -- Once that is proved, then it is for the sublettee to show in which capacity he is occupying the Premises, Kharar Saws Mill’s case 1995 (2) Rent Law Reporter 729, relied – Sub-tenant’s claim being the owner on account of adverse possession, already stands negatived – Sub-tenancy stands proved -- Eviction petition allowed.

In Kharar Saw Mill Industry & Furniture Production, Industrial Cooperative Society Ltd & another Vs Prem Kaur (Smt.) & another 1995 (2) Rent Law Reporter 729, this Court has held that burden of proof is on the landlord initially to prove the fact of subletting. However, the landlord is only to prove that in place of the original tenant somebody else is in occupation of the premises independently. Once that is proved, then it is for the sublettee to show in which capacity he is occupying the premises. Similar view has been taken by this Court in Chaudhary Ram Vs. Liba Sood & others, 1998(2) Rent Law Reporter 260 and Dharam Pal Vs. Vinod Kumar and another 2000(2) Rent Law Reporter 80.

In the present case, Counsel for the respondents, on a specific query from the Bench, could not explain as to how Ram Kumar was in possession of the shop. His claim being the owner on account of adverse possession, already stands negatived. In this view of the matter, the statement of Nagar Mal that he had put Ram Kumar in possession of the shop in dispute and thereby sublet it stands proved.

In view of the above, I allow the civil revision and set aside order of the Rent controller dated 1.12.1986 and that of the Appellate Authority dated 26.7.1988. Consequently, the application of the petitioner under Section 13 of the Act is also allowed.

(Para 17,19,20)

C. Haryana Urban (Control of Rent and Restriction) Act, 1973 (11 of 1973), Section 15(6) – Revisional Powers – Scope of -- Normally concurrent findings of fact cannot be disturbed in revision, merely because on a re-appraisal of evidence, a different finding can be arrived at -- However, if the findings of the authorities below are perverse on account of misreading of evidence or for lack of evidence, it would give rise to a substantial question of law for consideration by this Court though the scope of the jurisdiction of this Court would be limited to that extent only.

(Para 15)

A. East Punjab Urban Rent Restriction Act, 1949 (III off 1949), Section 13(3) (i) – Bonafide need --- Personal necessity – Landlord concealing the material facts with regard to other accommodation in his possession – Petition is silent about the present address of the landlord – In the absence of significant details it could not be held that accommodation in possession of the landlord is insufficient for his need – Ground of personal necessity not made out.

The landlord has not pleaded the ingredients required in a case of personal necessity and has concealed material facts with regard to the other accommodation in his possession. It is the case of the tenant that the landlord was residing in Chug Niwas, Gali No.4, Malwia Nagar, New Basti, Bathinda and this fact had not been disclosed in the ejectment application. It is also significant that the petition is altogether silent with regard to the present address of the landlord. In the headnote to the petition, the land lord has not given his address and has simply mentioned that he was a resident of Bhatinda. In the absence of this significant detail, it is not possible to give a finding that the accommodation in his possession was insufficient for his needs.

 (Para 9)

B. East Punjab Urban Rent Restriction Act, 1949 (III off 1949), Section 13(2) (iii) – Impairing the value and utility -- Construction of Parchhati – As per expert no damage has been caused by removal of the door or construction of Parchhati -- No evidence to show, by construction of Parchhati, the value of the premises had been impaired – No ground for eviction made out.

It has been urged on behalf of the landlord that the value of the demised premises had been impaired on account of major structural changes made by the tenant without the permission of the landlord. Reference has been made in particular to the addition or removal of certain doors and windows etc. I find no merit in this plea as well. It is clear from the rent note, Exh.R-1, that the landlord had permitted the tenant to make additions or alterations, which were required for the effective use of the premises. It cannot, therefore, be said that by such acts, there had been an impairment in the value and utility of the property. It has come in the evidence of the tenant that one Parchhati was already in existence when the property had been taken on rent and a second one had been constructed without making any structural changes to the walls and that this Parchhati had no adverse effect on the stability of the structure. It is also clear, and it has been so found by the Rent Controller as also the Appellate Authority, that there was no evidence that by making the Parchhatti, the value of the property had been impaired. The evidence of Sohan Lal, AW-1, who prepared the site plan, Ex.A-1, needs to be considered in this respect. I find that this site plan gives only a picture of the building and does not indicate whatsoever that there were any material change, which could be said to have impaired the value of the property.

(Para 10)

C. East Punjab Urban Rent Restriction Act, 1949 (III off 1949), Section 13(2) (ii) (b) – change of user – Plea that the demised premises were residential in nature but were being used for commercial purposes -- Rent note shows that the demised premises had been rented out to the tenant for running business or for use as a godown – No evidence to prove that the demised premises could be used for residential purposes – Plea of change of user not sustainable.

(Para 7, 9)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 (2)(ii)(a) – Sub-letting – Onus to prove – Tenant has to prove that he is direct tenant of landlord -- No rent receipt with regard to payment of rent to the landlord has been produced so as to arrive at a finding that he was not sub-tenant but was direct tenant of landlord – Eviction order upheld.

Nothing has been brought on record to show whether there was any written consent given by the landlord by which he agreed to the sub-tenancy created in favour of the petitioner. Both the Courts have rightly held that the premises in dispute were sub-let by Ved Parkash in favour of the petitioner. The stand of the petitioner-tenant is that the shop in question was rented out to him by the landlord directly. However, no receipt with regard to payment of rent has been shown by the petitioner so as to arrive at a finding that he was not sub-tenant of Ved Parkash but was the direct tenant of Brij Mohan landlord. The onus to prove whether the petitioner was a direct tenant of the landlord was on him. It was for him to prove whether he was direct tenant or not. The petitioner having failed to do so, the findings of both the Courts below on issue No.2 are also upheld.

(Para 6)

 B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 15 – Revisional Jurisdiction – Interference in the concurrent finding of fact given by the Rent Controller and the Appellate authority, in exercising the revisional jurisdiction is not justified in view of judgment rendered in Atma S. Berar's case 2003(2) SCC 3.

Both the Courts below have held that the premises in dispute have been sub-let by Ved Parkash in favour of the petitioner. The Hon’ble Apex Court in Atma S. Berar v. Mukhtiar Singh, (2003) 2 Supreme Court Cases 3, has held that the High Court was not justified in interfering with the concurrent findings of the Rent Controller and the Appellate Authority merely because it was inclined to take a different view. In view of the concurrent findings of both the Courts below, this Court is not inclined to interfere therein.

(Para 7)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(i) – Code of Civil Procedure, 1908 (5 of 1908), Section 148  -- Arrears of rent – Deposit of -- Extension of time -- Tenant not depositing  the arrears of rent as assessed by the Rent Controller on the plea that they are regularly paying the rent – Tenant failed to prove any payment of rent to the landlord – Order of eviction shall follow – Rakesh Wadhawan’s case AIR 2002 SC 2004 relied – Extending the time to deposit the arrears of rent under section 148 of the Code would defeat the very purpose of the provisions made under section 13(3)(i) of the Act.

The argument that under Section 148 of the Code, this Court or the Appellate Authority could exercise the power of extending time to deposit the arrears of rent has not impressed me because the language of Section 13(2)(i) of the Act does not admit of any such extension. According to the aforementioned provisions if the tenant has not paid or tendered the rent due within 15 days after the expiry of time fixed in the rent note or he has failed to pay the rent in compliance with the order of assessment drawn by the Rent Controller in accordance with the law laid down in Rakesh Wadhawan’s case (supra) by the time fixed by the Rent Controller, the tenant is liable to be ejected. The provision has been interpreted by the Supreme Court in Rakesh Wadhawan’s case (supra) itself and it has been held that if the tenant does not comply with the provisional order of assessment made by the Controller, then nothing more is required to be done and an order of eviction shall follow. No extension could be granted to the tenant-petitioner for depositing the arrears of rent. Even otherwise, such an extension if granted would defeat the very purpose of the provisions made by Section 13(2)(i) of the Act and every tenant would dispute his liability to pay rent and then would apply for extension. Therefore, I have no hesitation in rejecting the contention raised on behalf of the tenant-petitioners.

(Para 10)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 2 (c), 13 – Landlord – Owner – Power of Attorney – Attorney of the Landlord let-out the demised premises on rent without disclosing his status – Held, power of attorney is a registered document, registration of document is a notice to all – Tenant cannot deny his relationship with landlord as tenant – Landlord is competent to file ejectment petition against the tenant.   

Still further the Power of Attorney in favour of Sham Lal is a registered power of attorney. Registration of a document is a notice to all. Therefore, it is not open to the petitioner to deny that he was not aware of Sham Lal being attorney of Mohan Lal. Still further, it may be noticed that the ownership of Mohan Lal in respect of premises is not disputed. Mohan Lal is competent to seek ejectment under Section 2(b) of the Act, as the landlord includes owner or such other person who is entitled to receive rent.

(Para 7)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(i) – Arrears of Rent – Tender of – Denial of relation ship of landlord and tenant – Effect of – Another opportunity to tender arrears of rent can be given only in the eventuality of bona fide dispute regarding rate of rent or period – Where the tenant has denied the relationship of landlord and tenant between the parties, the benefit of providing opportunity to the tenant to tender the tenant is not available.  

Learned counsel for the petitioner then referred to a judgment of the Hon’ble Supreme Court in Rakesh Wadhawan Vs. Jagdamba Industrial Corporation (2002) 5 SCC 440 and Vinod Kumar Vs. Prem Lata 2003 (2) R.L.R. 449 to contend that the petitioner is entitled to an another opportunity to tender arrears of rent so found due by the learned Appellate Authority.

Learned counsel for the respondent on the other hand has relied upon a judgment of this court in Hukma Devi Vs. Bhagwan Dass 2003(1) R.L.R. 528 wherein it has been held that the ratio of said judgment is applicable only in the eventuality of bona fide dispute regarding either rate of rent or the period but where the tenant has denied the relationship of landlord and tenant between the parties, the benefit of providing another opportunity to the tenant to tender the rent is not available.

(Para 9, 10)

Rent Control and Eviction – Bonafide Need – Landlord -- Death of landlord -- Legal Heirs – Amendment in rent petition – On the death of landlord, legal heirs brought on record, parties amended their pleadings and Ld. Lower courts decided the matter on such amendments and the evidence adduced by the parties – Now it is not open for the High Court to examine the question as to the effect of the death of the original plaintiff and thereafter to dismiss the suit on the finding that need of the original plaintiff having come to an end -- Once the amendment is allowed, the proceedings have to be decided on the basis of amended pleadings.

If the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time. There is no warrant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come.

After the case had been remanded, the plaint had been amended and the need of the sons had been set up who had all attained majority by that time. The Courts thereafter proceeded to decide the controversy on the basis of the need of the sons and the lower appellate Court, after finding their need to be bona fide, passed a decree for eviction in their favour. In the second appeal preferred by the tenant, the High Court, instead of examining the issues on the basis of which the case had been decided, went on to hold that on account of death of Girdhari Lal, the need set up by him came to an end and on that finding dismissed the suit. The parties having amended their respective pleadings and the two Courts below having decided the matter on such amended pleadings and the evidence adduced thereon, it was wholly impermissible on the part of the High Court to examine the question as to the effect of death of the original plaintiff and thereafter to dismiss the suit on the finding that his need having come to an end, the suit ought to have been dismissed. It is well settled that when amendment is allowed, the proceedings have to be decided on the basis of such amended pleadings. We are, therefore, of the opinion that the view taken by the High Court is wholly illegal.

The appeals are accordingly allowed with cost. The judgment and decree passed by the High Court is set aside and that of the Additional District Judge decreeing the suit for eviction is restored.

(Para 15, 16, 17)

A. Himachal Pradesh Urban Rent Control Act, 1987 (25 of 1987), Section 14(2)(ii)  – Tenancy -- Subletting – Eviction – Partnership/Sub-letting -- Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession.

Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession.

(Para 8)

B. Himachal Pradesh Urban Rent Control Act, 1987 (25 of 1987), Section 14(2)(ii)  – Tenancy – Subletting – Eviction – Partnership/Sub-letting – Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant – Landlord can bring evidence and material on record to prove and make out the case of sub-letting or parting with the possession or interest in tenancy premises in favour of third person.

If the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.

Wherein the tenant sublets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by tenant in favour of a third person.

(Para 8, 9)

C. Himachal Pradesh Urban Rent Control Act, 1987 (25 of 1987), Section 14(2)(ii)(a) – Tenancy – Partnership/Sub-letting -- Eviction – A lease of immovable property is transfer of a right to enjoy such property -- Parting with possession or control over the tenancy premises by tenant in favour of a third person would amount to the tenant having 'transferred his rights under the lease' within the meaning of Section 14(2)(ii)(a) of the Act.

(Para 9)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 9(2), 19(1) – Arrears of rent – House Tax – Penalty – Landlord recovered the house tax from the tenant on account of misconception, for the year when the building was exempted from house-tax for that year – House tax had been levied and paid for several years earlier – Landlord by mistaken recovered the house-tax, proceedings under section 19 of the Act quashed.

A reading of Section 9(1) would reveal that a landlord is entitled to an increase in the rent on the increase of the house tax etc. It does not deal with a situation whereby the landlord has recovered the house tax from the tenant on account of a misconception. Admittedly, the landlord has not tried to increase the rent, but he has by mistake taken the house tax for the year 1982-83 when the building has been exempted from house tax for that year. Admittedly the house tax had been levied and paid for several years earlier. At most, therefore, it can be said that the landlord has committed a mistake in accepting the aforesaid amount. In this situation the order impugned is not sustainable. This petition is allowed and the application filed by the tenant is dismissed.

 (Para 5)

A. Haryana Urban (Control of Rent) & Eviction Act, 1973, Section 15(5) – Eviction -- Revisional Jurisdiction – Concurrent findings of facts recorded by Rent Controller and Appellate Authority -- Rent Controller after careful appreciation of evidence directed eviction of tenant – Appellate authority after independent evaluation of the evidence confirmed the eviction order --  The High Court has, while exercising its revisional jurisdiction, entered into re-appreciation of evidence not open to the High Court.

Held, that no fault is found with the manner in which the evidence has been dealt with and marchalled by the Controller. The appellate authority has made an independent evaluation of the evidence and confirmed the findings of the Controller. The High Court has, while exercising its revisional jurisdiction, entered into re-appreciation of evidence not open to the High Court; more so, keeping in view the manner in which the exercise has been undertaken by the High Court. To say the least, we find that there is to some extent misreading of the evidence by the High Court. High Court has exceeded its jurisdiction in reversing the well considered findings of fact arrived at by the two courts below.

(Para 6)

B. Haryana Urban (Control of Rent) & Eviction Act, 1973, Section 13(2)(v) -- Cease to occupy -- Onus to prove -- 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, as would have been required the tenant’s being in the premises -- Ground for eviction is made out - Onus then shifts on tenant to prove that he did not occupy the premises for reasonable cause.

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 as would have required the tenant's actually being in the premises, the ground for eviction is made out.

In the present case, the landlord has, through his pleadings and by adducing evidence, made out a case of the tenant's ceasing to occupy the tenancy premises and the onus, therefore, had shifted on the tenant either to rebut the case made out by the landlord or to allege and prove any reasonable cause for ceasing to occupy the premises. In the case at hand the landlord has fully discharged his obligation of making out the case of his entitlement to evict the tenant under Section 13(2)(v) of the Act. The tenant has failed in discharging his onus. The Controller and the Appellate Authority rightly arrived at the finding of the fact which they did. There was no case for interference at the hands of the High Court.

[Para 7, 8]

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 15 – Revisional jurisdiction -- In the revisional jurisdiction conferred by the Section 15 of the Act, the court can examine the legality as also proprietary of the order passed by the concerned authority.

(Para 8)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(v) – Code of Civil Procedure, 1908(5 of 1908), Order 26 Rules 9 and 10 -- Ceased to occupy – Ex-parte Local Commissioner’s Report -- Local Commissioner was appointed and he visited the demised shop without giving notice to the opposite party – Shop found locked – He was examined in the court and cross-examined as well – Report cannot be discarded on this ground alone that no notice was issued to the opposite party – Ejectment order passed by the Rent Controller restored.

There is no embargo in the rules aforesaid to appoint a Local Commissioner without first issuing notice to the other side. Ex-parte appointment of the Local Commissioner, who may even submit his report without issuing notice to other party, is permissible under the law. All that is required in such matters is that the report of Local Commissioner would not become admissible or relied upon unless the Local Commissioner is examined in Court giving adequate opportunity to the other party to cross-examine him. In the present case, it is conceded position that Local Commissioner was examined as AW4 and was cross-examined as well. If the report of the Local Commissioner, who may visit the spot without notice to the other party, is discarded on that ground alone, the same would defeat the very purpose of appointing a Local Commissioner in the cases, as the one in hand, inasmuch as the other party, after coming to know of the visit of Local Commissioner, would only open the lock of the shop, thus, defeating the cause of its adversary.

 (Para 9)  

C. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(iii) – Eviction -- Material alteration – Tenant  admitted opening of a door in the wall adjoining another shop – It is possible only by breaking a common wall, which would certainly impair value and utility of the building – The shop as such lose its identity being a single shop – Tenant liable to be evicted.

On the dint of the evidence led by the parties and, in particular, that once the respondent had admitted the opening of a door from the adjoining shop, in considered view of this Court, second ground seeking eviction was proved to the hilt. An opening of the door from the adjoining shop, as mentioned above, has since been admitted. That the said adjoining shop belongs to some body else, is also an admitted position. The opening of the door from an adjoining shop could only be by breaking the common wall and that would certainly result in diminishing the value of the shop beyond measures. The shop as such would lose its identity being a single shop. This kind of alteration would obviously materially impair the value and utility of the shop, thus, entailing an order of eviction on the second ground pleaded in the petition for eviction.

(Para 10)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949) -- Section 13 – Indian Evidence Act, Section 116 – Landlord and Tenant -- Rent Controller and Appellate Authority concurrently held that there is relationship of landlord and tenant in between the parties – It is not open to tenant, to deny the ownership of the landlord -- There is a specific bar of Section 116 of the Evidence Act in this regard.

(Para 15)

Rent Control and Eviction -- Amendment in legislation -- Rent Proceedings – Tenant’s eviction sought on the ground of bonafide  requirement -- Rent Controller and Appellate Court dismissed the claim of the landlady -- During the pendency of the Revision under section 115 of the Civil Procedure code, 1908, new Act namely Karnataka Rent Act 1999 came into force – In the new Act presumption is raised in favour of the landlord and Burdon of proof shifted upon the tenant – Landlady moved an application for amending the proceedings in view of 1999, Act -- Held, High Court was justified in taking notice of the provisions contained in the 1999 Act -- Necessity of amendment justified.

So far as the applicability of the provisions of the 1999 Act is concerned, no fault can be found that the view taken by the High Court that the provisions of the 1999 Act apply to pending civil revisions. Section 70 of the 1999 Act repeals the 1961 Act. Clause (b) of sub-section (2) of the Section 70 provides that all cases and proceedings other than those referred to in clause (a) and pending at the commencement of the 1999 Act in respect of the premises to which the 1999 Act is applicable, shall be continued and disposed of in accordance with the provisions of the 1999 Act. It is not disputed that the scheduled premises, which are in the occupation of the tenant-appellants and form subject matter of these proceedings, are those to which the 1999 Act is applicable. The applicability of Section 70(2)(b) of the 1999 Act is clearly attracted and the High Court was justified in taking notice of the provisions contained in the 1999 Act and deciding the revision pending before it consistently with and keeping in view the provisions of the 1999 Act.

(Para 6)

A. Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 13(3)(b) – Bonafide need – Personal Necessity -- Eviction – Landlord want to start business -- Landlord is not required to plead and prove the specific business which he wants to set up in non-residential premises in respect of which eviction is sought.

(Para 19)

B. Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 13(3)(b) – Bonafide need – Eviction – Personal Necessity -- Landlord want to start business -- It is not necessary for the landlord to set up a business before seeking ejectment on the ground of bonafide personal use and occupation.

(Para 19)

C. Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 13(3)(b) – Bonafide need – Personal Necessity -- Eviction – Landlord due to advance age, cannot continue with agricultural operations – Landlords are possessed of means and want to construct Showroom over the rented land – Need bonafide, Eviction ordered.

(Para 18)

D. Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 13(3) (b), 15 -- Bonafide need – Personal Necessity -- Eviction – Landlord seeking eviction to construct Showroom on the rented land to start business with his sons -- Not necessary for landlord to try first to find out a shop for business and make preparation for construction of showroom -- Once the land is not available to enable the landlord to raise the construction, any such preparation is meaningless.

(Para 23)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949) Section 13(2)(i) -- Proviso -- Arrears of rent – Eviction -- Tenant not paying rent, disputing the rate of rent – Rent Controller fixed rent @ Rs. 1000/- per month -- After fixing the rent, tenant be given reasonable time to clear the arrears of rent – Tenant can be evicted if he fails to make the payment within said time – Ejectment order set aside.

The Rent Controller has returned a finding that the monthly rent is Rs.1000/-. In view of the judgment of the Hon’ble Supreme Court (Rakesh Wadhawan and others v. M/s Jagdamba In­dustrial Corporation and others, JT 2002 (Suppl.) SC 1), the Rent Controller is to pass conditional order directing the tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount failing which he alone shall be liable to be evicted. Therefore, the order of ejectment passed by the courts below is set aside with the direction to the Rent Controller to pass a conditional order in terms of the judgment of the Hon’ble Supreme Court referred to above quantifying the arrears of rent, in­terest of such arrears, and the cost of the application.

(Para 11)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(ii)(b) -- Change of user – Tenants are dealing in selling of sewing machines in the rented shop in question -- Description of the tenants in the rent note as cloth merchant, would not provide a clincher that they were to carry on the business of buying and selling cloth only – Shifting of business from cloths to Sewing Machines would not amount to change of user.

Assuming that the plea of the landlord regarding shifting of business from selling and buying of cloth to selling and buying of sewing machines is factually correct, the same in the context of the case, would not amount to change of user as, concededly the purpose of the specific business to be carried out in the demised premises had not been mentioned. There is, in­deed, in existence a Rent Note Ex.A-1 dated 12.4.1959. All that has been mentioned therein is that demised shop was being rented out to Dev Raj and Mohinder Sain Verma, the cloth merchants. Description of the tenants as cloth merchants would not provide a clincher that they were to carry on the business of buying and selling of cloth only. That apart, the change of user is not such which may have caused any concern to the landlord as value of the demised premises was not being impaired by simply shifting from cloth business to that of selling sewing machines. Hon’ble Supreme Court in Mo­han Lal v. Jai Bhagwan, AIR 1988 (SC) 1034 held that where a tenant switches over to another business than one for which tenancy had been created and there was no possi­bility of any mischief of detriment to demised premises, the landlord would not be able to seek eviction on the ground of change of user. In the case aforesaid, the tenant had switched over business of Liquor vend to General Merchant. To the same effect the findings of Hon’ble Supreme Court in Rattan Lal v. Asha Rani, 1988 HRR 625, wherein the tenant had shifted the business of grocery to that of selling of books.

(Para 3)

A. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 3, 13 -- Haryana Housing Board Act, 1971, Section 4 -- Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulation 1979, Regulation 42, 44 and 45 --  Applicability of Rent Act -- Maintainability of Rent Petition -- Allotment of dwelling unit by Housing Board on Hire Purchase Basis – Relationship between Allottee and Housing Board would be of tenant and owner – Allottee has a right to sublet and sub-letting made by allottee will be covered under rent Act.

Once the Board has duly allotted the dwelling unit to an allottee then for all practical purposes the allottee shall be deemed to be a person in immediate control and management of the aforesaid dwelling unit in his own right, with even a right to let the same out to another person for such user which may be permissible under the hire purchase agreement/letter of allotment.

It is not in dispute that no notification under section 3 of the Rent Act has been issued by the Chandigarh Administration exempting the dwelling units allotted by the Housing Board to various allottees. In this view of the matter, per se, the provisions of Rent Act are duly attracted to such units after the Rent Act has been extended to the Union Territory of Chandigarh. However, such provisions will not be attracted, if it could be held that such buildings are otherwise exempted under the provisions of section 4 of the Housing Board Act. In our view such a view is not possible from the interpretation of the various provisions of the Housing Board Act, Rules and Regulations.

Held, that the provisions of the East Punjab Urban Rent Restriction Act, 1949 (as applicable to Chandigarh) shall apply to the dwelling units allotted by the Chandigarh Housing Board to the allottees and as such the provisions of the aforesaid Rent Act shall govern the inter se relationship between such allottees and their tenants.

 (Para 25, 34, 42)

B. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 3, 13 -- Haryana Housing Board Act, 1971, Section 4 -- Indian Evidence Act, 1872, Section 116 -- Doctrine of Estoppel -- A tenant of an immovable property or any person claiming through such a tenant, is prohibited, during the continuance of the tenancy, to deny the title of the landlord at the beginning of the tenancy.

The objection with regard to the maintainability of the petition on behalf of the landlord by the tenant, because of Section 4 of the Housing Board Act, essentially raises a question as to whether the demised premises belongs to the landlord or the Board. Section 116 of the Evidence Act prohibits a tenant of an immovable property or any person claiming through such a tenant, during the continuance of the tenancy, to deny that the landlord of such a tenant had at the beginning of the tenancy a title to such immovable property. The said prohibition is based upon the doctrine of Estoppel. Once the tenant is permitted to take up the plea of application of section 4 of the Housing Board Act, then in a sense it would actually mean that he is permitted to deny the title of the landlord at the beginning of the tenancy. This cannot be permitted in view of the specific prohibition contained in section 116 of the Evidence Act.

(Para 40)

C. East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 2(c) – Landlord – Landlord is not required to be the owner of the premises let out by him to a tenant – A landlord may can be a person who is entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of any other person and even would include a tenant who sub-lets any building or rented land and also any person from time to time deriving title under a landlord.

From the definition of the terms “landlord” and “tenant” respectively, it is apparent     that a landlord is not required to be the owner of the premises let out by him to a tenant. A landlord can be a person who is entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of any other person and even would include a tenant who sub-lets any building or rented land and also any other person from time to time deriving title under a landlord.

 (Para 32)

Haryana Urban (Control of Rent & Eviction) Act, 1973 (11 of 1973), Section 13(3)(c) -- Unfit and unsafe for human inhabitation – Local Commissioner’s Report filed in another suit between the parties with respect to same premises, relied -- Photographs annexed with the report shows that building had fallen down and malba was clearly discernible in the photographs -- Tenant’s attempt to reconstruct the building to make it fit for use leads to the filing that suit – Tenant changed the nature of property – Eviction order upheld -- East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(3)(iii).

It will be seen that the two authorities below have primarily relied upon the reports of the Local Commissioners, which were recorded in a suit filed by the landlord against the tenant for mandatory injunction with respect to the same property. A reading of these reports clearly shows that the building in question had become unsafe unfit for human habitation and that the tenant had in fact made an attempt to re-construct the building to make it fit for use leading to the filing of the suit. It is also clear from the judgment in the aforesaid proceedings, that the re-construction had been made without the consent of the landlord nor with the sanction of the Municipal authorities. It is also clear from the reports, which includes photographs of the demised premises that the building had fallen down and the malba was clearly discernible in the photographs. It is also evident that in an attempt to re-construct the property, the tenant had in fact changed the entire nature of the property. I am, therefore, of the opinion that no interference is called for in the present petition.

 (Para 4) 

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Sections 13(2)(ii)(a) -- Sub-letting – Eviction petition filed alleging that respondent no. 2 to whom the room was leased out has sub-let the room to the petitioner – Landlord, is registered firm did not produced account books on record, maintained by it, depicting that earlier the rent was paid by respondent no. 2 to prove his tenancy – This lacuna cannot be overlooked and bald statements of the witnesses to the effect that respondent no.2 is tenant cannot be relied.

The Appellate Authority committed a grave illegality by upsetting the well reasoned finding recorded by the Rent Controller ignoring the most crucial aspect of the case i.e. non-production of account books by respondent No. I from which it could be proved that respondent No. 2 had paid rent up to 20.3.1973. Respondent No. I did not offer any explanation before the Rent Controller and even before the Appellate Authority as to why the account books maintained by it in the normal course of business were not produced.

(Para 10)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(ii)(b), 13(2)(v) -- Change of user – Ceased to occupy -- In earlier proceedings for ejectment on the ground of ceased to occupy, the findings comes that premises in question was being used as a shop – Ground that demised premises had for last eighteen months, prior to the filing of the second application, were being used as a godown, which amounted to a change of user – is merely an attempt to create a new ground and nothing less – Eviction petition dismissed.

In the light of the positive finding in the earlier pro­ceedings that the shop was not being opened throughout the day, but had been used for Kabari business which required the owner to go outside the shop to collect kabari arti­cles, would indicate that premises in question was being used as a shop. In paragraph 15 of the order of the Appellate Authority in the present set of proceedings, it has been observed as under:

 “It is proved by evidence that no business is being conducted in the shop in dispute and it is the case of the appellants-tenants themselves that they have kept therein some articles like iron scraps and old rafters etc. The only conclusion can be that the shop in dispute is being used as godown. The findings of the learned Rent Controller are not tainted with prejudice or irregularity. There is no justification to interfere with the findings of fact.”

It is, thus, clear that the ground of change of user in the eighteen months before the filing of the second application for ejectment was a merely an attempt to create a new ground and nothing less.

(Para 11)

East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13(2)(i) – Arrears of rent – House tax – No prior notice was issued to tenant for claiming the house tax – Mention of demand of property tax in the main petition itself is not sufficient notice to the tenant – In any case tenant has to be given opportunity to pay rent even after filing of the petition -- Revision petition dismissed.

Learned counsel appearing for the petitioners, however, contended that demand of property tax was specifically noticed in the main petition itself and it has been sufficient notice to the tenant. This argument is without any merit. Learned Rent Controller is concerned and has to decide the petition on the cause of action existed on the day of filing of the petition and not subsequent thereto. On the date of filing of the petition, no notice, admittedly, had been served upon the tenant. As such the plea of non-payment of rent inclusive of property tax could not be entertained. In view of the law laid down by the Apex Court in Rakesh Wadhawan and Others v. M/s. Jagdamba Industrial Corporation and Others, Judgment Today (Suppl. 1) S.C. 11, the tenant in any case is placed on a much better footing and has to be given an opportunity to pay rent even after filing of the petition.

 (Para 8)

A. East Punjab Urban Rent Restriction Act, 1949- Section 13 (2) (1)(i) -- Arrears of rent -- Both the Courts below, on the basis of evidence on record, came to conclusion that the rent of demised premises is Rs.400/-  per month - In the facts of the case, there is no illegality in concurrent findings of the courts below - Revision petition dismissed.

In view of the evidence and material on record, the Rent Controller and the Appellate Authority under the Act have reached at a finding of fact that the rate of rent of the demised premises is Rs. 400/- per month. The Appellate Authority in its order under revision dated 28.1.1989 has observed that the documents, which are legally proved and some of which are even admitted by the petitioner, clearly proved that the petitioner had been consistently describing the monthly rent of the demised premises at Rs. 400/- per month and at the same time giving receipt of the rent received from the respondent. On the basis of the documents, it was concluded that the monthly rent of the demises premises was Rs. 400/- and not Rs. 450/- per month.

The findings as reached by the lower authorities could have been reasonably arrived at and, therefore, the same warrant no interference by this Court.

(Para 15 & 16)

B. East Punjab Urban Rent Restriction Act, 1949- Section 15(5) – Revisional Power – Scope thereof – No need to re-appreciate the evidence and material on record in exercising the revisional jurisdiction.

The scope of revision under Section 15 (5) of the Act is limited and this Court, in exercise of its revisional jurisdiction is not to re-appreciate the evidence and the material on record and on that basis dislodge the concurrent findings of fact recorded by the lower authorities under the Act. The findings as reached by the lower authorities could have been reasonably arrived at and, therefore, the same warrant no interference by this Court.

(Para 16)

Delhi Rent Act, 1995, Section 1(3) -- Constitution of India, Article 226, 368 -- General Clauses Act, Section 5 – Delhi Rent Control Act enacted by Parliament -- Power delegated to Government to appoint a date from which the Act would come into force -- Delegation is valid -- Court cannot direct the Government to notify the date when Government is not desirous of ignoring will of Parliament -- Section 5 of General Clauses Act is not applicable.

An Act cannot be said to commence or put in force unless it is brought into operation by a legislative enactment or by exercise of authority by the delegatee empowered to bring the Act into operation by issuing the necessary notification. When enforcement of a statute or a provision therein is left to the discretion of the government without laying down any objective standards, no writ or mandamus can be issued to the government to enforce the statute or any of the provisions of the statute. [1982(1)SCC271 relied]

When the legislature itself had vested the power in the Central Government to notify the date from which the Act would come into force, then, the Central Government is entitled to take into consideration various facts including the facts set out above while considering when the Act should be brought into force or not. No mandamus can be issued to the Central Government to issue the notification contemplated under Section 1(3) of the Act to bring the Act into force

Section 5 is applicable only when the Act does not express any date with effect from which the Act would come into force. It will apply to such cases where there is no provision like Section 1(3) of the Act or Section 1(2) of the 44th Constitutional Amendment. When the Legislature itself provides that the date of coming into force of the Act would be a date to be notified by the Central Government, Section 5 of the General Clauses Act will have no application.

(Para 14, 27, 28)

A. East Punjab Urban Rent Restriction Act, 1949 -- Section 13(2)(i) – Arrears of Rent – Tender of -- First day of appearance -- The expression "first hearing" does not mean 'the date fixed for return of summons or the returnable date which is the day of appearance' before the court of the parties -- Day of first hearing is the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken.

The contention of the tenants that the arrears of rent were duly deposited within the specified period from the first effective ‘date of hearing' also gets support from the decision of this Court in the case of Sham Lal V/s Atma Nand Jain 1987 (1) SCC 222. In that case, the words `first hearing of the application,' as used in Section 13(2)(i) of East Punjab Urban Rent Restriction Act, came up for interpretation. It was held that to promote object of the legislation contained in the provisions, the expression used therein has to be construed reasonably. The use of the expression `first hearing' is held not to mean `the date fixed for return of summons or the returnable date which is the day of appearance' before the court of the parties. The words `the first day of hearing' as meaning not the day for the return of the summons or the returnable day, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken".

[Para 11]

B. East Punjab Urban Rent Restriction Act, 1949, Section 13(2)(i), 15- - Civil Procedure Code, Section 115, Order 15, Rule 5 – Striking Off Defence -- Delay in deposit of rent -- Revisional Jurisdiction -- It is not obligatory for court to strike off defence in every case -- Court has discretion in the matter and the power to strike off the defence is to be exercised with due regard to the facts and circumstances of each case -- Trial Court not striking off defence exercising its discretion - High Court not justified to interfere in discretion in revisional jurisdiction under section 115 of the Civil Procedure Code, 1908.

It is not obligatory for the court in every case to strike off defence only because there is delay in deposit of the arrears of rent. The court has discretion in the matter and the power to strike off the defence is to be exercised with due regard to the facts and circumstances of each case.

Rent Controller had fixed a fair rent for the suit premises and the arrears of rent at that rate were deposited by the tenants in the State Bank of Patiala for payment to the landlords. It finds that the tenants had not withheld payment of rent arbitrarily. There was no lack of bona fides on their part. It is in these circumstances that the trial court refused to strike off the defence and on consideration of the representation of the tenants accepted the deposit of arrears of rent.

Since the trial court had exercised its jurisdiction lawfully by refusing to strike off defence and accepting the deposit of arrears of rent, the High Court could not justifiably interfere with the same in exercise of its revisional jurisdiction under section 115 of the Code.

(Paras 9,10,13)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Section 13(2)(v) – Ceased to occupy – Evidence – Onus of Proof -- Premises remained without electricity for continuous period of four months – Landlord led reliable evidence, even through oral, that the tenant has ceased to occupy the shop – Burdon of proof shifted to tenant -- The positive evidence to show the contrary could be led by only the tenant, it is not possible for the landlord to led evidence in negative – No positive evidence led by the tenant – Eviction order upheld.

While passing an order of eviction, reliance is not being placed only upon the fact that the disputed premises had remained without any electricity for August, September, October and November, 1984 but also upon the statements of PW 1, PW 2 and PW 3. That apart to, a specific question put to learned counsel representing the petitioner as to whether the petitioner led any evidence to show that any business had since been transacted in the premises in dispute, which, concededly is a shop, the forthright and candid answer is “No”. In the kind of case in hand, the positive evidence could be led only by the tenant. In other words, if the shop had been occupied or the tenant had not ceased to occupy it, he had to lead positive evidence to show the contrary. Burden, that is upon the landlord to prove the non-occupancy of premises, is discharged, when he leads reliable evidence, even though oral, that the tenant had ceased to occupy the shop. It is not possible for landlord to lead evidence in negative. No merits in the appeal, the same is dismissed.

(Paras 4, 5)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Sections 13(2)(v) – Ceased to occupy – Tenant kept the shop in question closed for more than 4 months -- Tenant’s plea that shop remained closed due to his illness – This plea was not taken at the earlier stage – Finding of fact recorded against tenant cannot be disturbed.

Shop in question had been kept locked since the year 1987 up to the date of the filing of the ejectment petition. Arguments that the shop had been kept closed for the reasons that the tenant had been ill and had been admitted to hospital and, had therefore, not been able to conduct his business during that period. This particular point has not been raised by the tenant at any stage. On the contrary it has come in the evidence of the landlord/respondent that the shop appeared to have been kept closed for a period of four months in the year 1987 for no apparent reason. The finding of fact recorded against the tenant, thus, cannot be disturbed. The petition is accordingly dismissed.

(Para 5)

Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 1(3), 13 -- Transfer of Property Act, Section 106 -- Ejectment -- Subsequent events -- Change in law -- Plaintiff-Appellant filed suit for possession after serving a notice under Section 106 of Transfer of Property Act for termination of tenancy -- Suit was decreed by trial Court -- But when appeal was pending, Haryana Rent Act became applicable as Town Kharkhoda was declared a notified Area in 1986 -- Held that ejectment decree though passed before enforcement of Rent Act was not executable due to subsequent events.

Full Bench of this Court in Sawan Ram V/s Gobinda Ram and another, 1980(1) Rent Control Reports 21 has held that the intention of the Legislature while enacting the Rent Act was to exclude both the jurisdiction of the Civil Courts as also the application of general law of landlord and tenant. It has been further held that the earlier civil Court decree would be rendered inexecutable and the tenant should not be evicted thereunder.

Subsequent applicability of the Rent Act on account of declaration of urban area would render the decree of the civil Court inexecutable.

In Beg Raj Singh V/s State of UP and others 2003(1)SCC 726, Supreme Court has held that a petitioner though entitled in law may yet be denied relief in equity because of subsequent or intervening events. One of the circumstances on which relief can be denied is that the relief to which the petitioner is held entitled can be rendered incapable of being granted by change of law.

In terms of the provisions of Section 13 of the Rent Act, the decree passed by the Civil Court cannot be executed. Since the decree cannot be executed, the Courts shall not pass the futile decree as held by the Full Bench in Sawan Ram’s case.

(Paras 13,14,17,18)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13(2)(i) – Eviction of tenant -- Arrears of rent – Provisional assessment of rent – First date of hearing -- Decision in Rakesh Wadhawan’s case correctly lays down the law, re-affirmed -- Interpretation placed by this Court in Rakesh Wadhawan’s case 2002 (5) SCC 440 = (2002) Law Today Live Doc. Id. 16854 on Section 13(2)(i) with the proviso in the Punjab Act applies for interpreting Section 13(2)(i) and the proviso as contained in the Haryana Act.

(Para 9)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Section 4 (1) (2) – Fair rent – Agreement of lease period expired on 31.12.1969 – The application for determination of fair rent was filed on 20.12.1980 -- There was no subsisting agreement between the parties when the application for determination of fair rent had been filed on 20.12.1980 -- The approach of both the Courts below in adopting the rent on the basis of agreement which was subsisting upto 31.12.1969 as the basic rent was totally erroneous.

 (Para 4)