Amar Pal and Another vs Anand Swaroop and Others

J.V. Gupta, J.—This will also dispose of Civil Revision No. 2704 of 1985, as both the revisions have arisen out of the same order of the Appellate Authority, dated 4th January, 1985.

The Landlord Anand Sarup filed ejectment application against his tenant Amar Pal and others from the building in dispute consisting of a shop in the ground floor and a Chaubara on the first floor along with kitchen, latrine, bathroom and the court yard. The demised premises were originally let out to Ganpat Rai, vide rent note dated 31st of March, 1953 Exhibit P.28 on a yearly rent of Rs. 300/-. In the rent note no purpose for which the premises were let out were mentioned though the building has been mentioned as a shop. According to the landlord the first floor is being used by the tenant for his residence whereas business is being carried on in the shop on the ground floor The ejectment was sought on the ground that Amarpal and others sons of Ganpat Rai (deceased) have sub-let the premises to M/s Raj Kumar Sunil Kumar, a partnership firm; that the landlord required the premises bonafide for his own use and occupation. The petition was contested on the plea that the premises in dispute are not residential premises as it was let out for commercial purpose and, therefore, it could not be vacated for personal necessity. It was also pleaded that the landlord does not require the premises in question as he was residing with his father since long. It was denied that the premises were sub-let to M/s Raj Kumar Sunil Kumar. According to the tenant Amar Pal, it was a partnership firm of which was Amar Pal was also one of the partners.

The learned Rent Controller found that the building in dispute is a residential building as defined in Section 2(g) of the East Punjab Urban Rent Restriction Act; that the landlord bonafide required the premises in dispute for his personal use and occupation; that the alleged partnership is not genuine and has simply been created to circumvent the provisions of law. The premises arc in occupation of the partnership firm M/s Raj Kumar Sunil Kumar and the tenant Amar Pal was no more carrying on any business therein. Thus, it was a clea case of sub-letting. In view of these findings eviction order was passed. In appeal learned Appellate Authority affirmed the finding of the learned Rent Controller on the question of sub-letting. However, the finding of the Rent Controller that the premises in dispute was residential building was reversed and, therefore, the question requiring it for personal necessity did not arise. Ultimately the eviction order was maintained.

Dissatisfied with the eviction order, the tenants have filed Civil Revision No. 2704 of 1985 whereas the landlord has filed Civil Revision No. 2047 of 1985 challenging the finding of the Appellate Authority on the question of nature of the building.

The learned Counsel for the tenant-Petitioners submitted that the partnership deed dated 1st of December, 1979 was produced before the income tax Authority in March, 1980 as is evident from the assessment order for the year 1980-81 Exhibit R.2. Thus argued the learned Counsel that the Appellate Authority has erred in observing that "Exhibit R.1 is the partnership deed; this deed was alleged to have been written in December 1979 but it was not produced before the income tax Department for the assessment purposes. Exhibit R.2 is the order of the Assessment of the income tax. That order was got passed on 20.2.1983. The petition was filed on 11th of June, 1982, which clearly shows that assessment order was obtained on the basis of this partnership deed after 1979 when this document is alleged to have been written between the. parties but the assessment order from the Income Tax Department obtained on the basis of this partnership on 22nd of February, 1983 i e. after the filing of the application for ejectment by Anand Sarup." Thus argued the learned Counsel that these observations are against the record and therefore the finding arrived at that the partnership is not genuine is vitiated. According to the learned Counsel there was no question of any sub-letting as the tenant was still a partner of the said firm which was in occupation of the demised premises.

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I do not find any merit in this petition. The tenant have not produced any other assessment order of the income tax Department except for the year 1980-81 Exhibit R.2. Surprisingly enough the tenants never produced the accounts of the partnership firm. Amar Pal tenant has appeared as RW.5. In his cross-examination, he has staled that " I cannot tell orally that with how much capital I started the business of M/s Raj Kumar Sunil Kumar. I cannot tell whether I contributed any money. I never appeared in the office of the Income Tax officer and Sales Tax Department." Raj Kumar one of the partners also appeared as RW.6. He has categorically stated in his cross-examination that "I have no acquaintance with Amar Pal before starting the business. Amar Pal has no right to operate the accounts of the Bank ". He has further stated that Amar Pal only contributed Rs 1000/- in the partnership whereas he has invested Rs. 25,000/- and thus have 50% share of the partnership. His son contributed Rs. 2000/- and has 15% share where as his daughter-in-law invested Rs. 2,500/- and has got 20% share. Thus from the over all evidence on the record, it has been concurrently found by both the authorities below that the partnership was not a genuine one and Amar Pal tenant has sub-let the premises to the firm M/s Raj Kumar Sunil Kumar, which is in occupation of the premises in dispute. On the facts and circumstances of the case, I do not find any illegality or impropriety in the said concurrent finding.

In the revision petition filed on behalf of the Landlord it has been contended that the premises in dispute are residential as held by the Rent Controller. I find force in this contention. In the rent note Exhibit P. 28 no purpose for letting out as such is mentioned. It is the case of the tentant Amar Pal that he is residing in the Chaubara on the first floor from the very inception of the tenancy. Not only that, they are also listed as voters in the said premises That being so that premises in dispute were not being used solely for the purpose of trade or business. The ground floor was being used for business purpose whereas the first floor was being used for the residence of tenant Amar Pal. Thus the premises were rightly held to be residential building by the Rent Controller. Once it is so held then it could not be disputed that the requirement of the landlord was bonafide to occupy the premises for his personal necessity. In this view of the matter the findings of the Appellate Authority in this behalf are set aside and that of Rent Controller are restored.

Consequently, Civil Revision No. 2047 of 1985 fails and is dismissed with costs whereas Civil Revision No. 2704 of 1985 is allowed.

Since the counsel for the tenant refused to give any undertaking on his behalf for vacating the premises, no further time could be allowed for vacating the same.