Atma Ram and others vs Kanwar Mahinder Singh and others

Surinder Singh, J.—This revision petition arises out of the decision of the Appellate Authority, Patiala, dated October 11, 1974, as per which the appeal of the landlords-Petitioners against the order of the Rent Controller dismissing their application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Rent Act) for the ejectment of the tenant-Respondents, was rejected.

The case of the landlords Petitioners as highlighted in the ejectment petition is that they are the owners and landlords of House No. 44, Sector 4, Chandigarh, which was leased to Kanwar Mahinder Singh, Respondent No. 1, at a rental of Rs. 900/- per month, after the house was vacated by the previous occupant some time in the year 1967. It is alleged that the lease was subject to certain terms and conditions enumerated in the ejectment petition. Admittedly, there was no instrument of lease nor any document evidencing the terms and conditions of the lease. It is further alleged that some time in the year 1970, the rent of the premises was enhanced to Rs. 1,000/- per month by mutual agreement of the parties. It is claimed that tenancy in favour of Respondent No. 1 was terminated by means of a registered notice dated August 29, 1972, but the Respondents failed to vacate the premises.

The eviction of the Respondent from the demised premises was claimed on three specific grounds as mentioned in the ejectment petition. For facility of reference, these grounds are reproduced verbatim as hereunder:

(i) That the demised premises were let out to Respondent No. 1 for residential purposes only. He has started misusing the said premises inasmuch as, he has set up an office of the Firm Messrs Mahinder Singh and Company, in the said premises and thus he has started misusing the said premises and is trying to create a tenancy in favour of the said firm or company. Moreover, this action of Respondent No. 1 amounts to using the said premises for commercial purpose which is a clear mis-use of the premises and a flagrant breach of the terms and conditions of tenancy.

(ii) That Respondent No. 1 has committed the breach of the terms and conditions of tenancy as he has made additions and alterations in the said premises without the consent or the knowledge of the Petitioners. They set up an unauthorised thatched hutment in the vacant space close to the servant quarters in the said premises and have also made certain wooden partitions etc., inside the premises. This also amounts to misuse of the said premises.

(iii) That a few days back the ''Jhuggis'' caught fire and the adjoining portion of the premises got ablaze to extinguish which ''fire Brigade'' was summoned by a neighbor. The requisite photographs showing burnt windows lying on the spot and third window shown as charred and other unauthorised construction added in the said premises without the knowledge and consent of the Petitioners are attached with the petition. The Respondents have used the premises in such a way and have committed such acts that actually impaired materially the value and utility of the said premises and are further likely to impair materially the value and utility of the premises. The sole effort of the Respondents was to destroy the evidence of the premises having caught fire. With that objective in view the Respondents did not even inform the Petitioners that the premises had actually caught fire.

While contesting the ejectment petition, the stand taken on behalf of the Respondents in the written statement was that the demised premises were leased in favour of Mahinder Singh and Company, Respondent No. 2, at Rs. 900/- per month by means of an oral arrangement and no terms and conditions, as alleged in the ejectment petition were settled between the parties. It was admitted that the rent was enhanced from Rs. 900/- to Rs. 1,000/- in the year, 1970. It was further averred that the Petitioners wanted to enhance the rent to Rs. 1,500/-, which was not acceptable to the Respondents. In regard to the grounds on which eviction of the Respondents had been claimed, it was contended as follows:

(i) There is no misuse of the premises. The same is being used for the office of Mahinder Singh and Company, and residence also, from the very start of lease. The Petitioners have been visiting the premises regularly and have seen the office. They are now estopped from their own act and conduct from taking the ground of misuse, Previously there was office of Agro Industries Corporation, Haryana.

(ii) Ground No. (ii) is absolutely incorrect and denied. There was one Jhugi for the sweeper which was raised since 1968. The Petitioners have seen this Jhugi and had never objected to it. The rest of para is incorrect and denied.

(iii) Regarding sub para (iii) it is submitted that the said Jhugi caught fire on 20th April, 1973, which was an act of God.

This was a minor fire and only three window frames of servants quarters, garage were affected. The damage was estimated to be less than Rs. 200/-. The windows were replaced by the Respondents immediately. It is incorrect that the Respondents have used the premise''s in such a way and have committed such acts that had impaired the value and utility of the premises.

It would be beneficial to note here that along with the ejectment Petitioners had also filed to separate applications. One application was filed under Order 39, Rules (1) and (2), CPC Code, with a prayer that a temporary injunction be issued against the Respondents lest raining them from removing the thatched hutment which had earlier been burnt as a result of fire. The second application was moved under Order 26, Rule 9 read with Section 151 of the CPC for the appointment of a Local Commissioner to inspect the spot and to report about the general condition of the portion of the building affected by the fire, as also the entire building in regard to the allegation that some alterations had been carried out in the house and the existence of the office of Respondent No. 2 in these premises. In the first application, after notice to the opposite parties, the Rent Controller recorded an agreed order to the effect that status quo should be maintained. In the second application, however, the Rent Controller passed an ex parte order on April 30, 1973 (the date on which the application was filed) to the following effect:

Heard Shri G.K. Verma, Advocate is appointed a local commissioner to inspect the premises in dispute and also to report as to what is the condition of the premises from inside as well as outside.

He should also inform the opposite party in writing at the spot.

The remuneration of the Local Commissioner is fixed at Rs. 50/- The report be filed within a week.

Sd/- J.B. Garg, R.C. 30/4/73.

The Local Commissioner submitted his report in the above matter on May 7, 1973, which is on the record.

After inviting a replication, the Rent Controller framed the following issues in this case:

Who out of the two Respondents is the tenant of the Petitioners ? Onus on parties.

Whether the Respondents are using the premises in question for a purpose other than that for which they were let out?

Whether the Respondents have materially impaired the value and utility of the building ?

Relief.

Under issue No. 1, it was held by the Rent Controller that Respondent No. 1 was the tenant of the Petitioners. Issue No. 2 was found against the Petitioners not only on merits but also in view of a concession said to have been made by Shri Atma Ram, Petitioner, that from the evidence on the record it could not be held that the premises had been used for a purpose other than that for which they were let out The finding on issue No. 3 also went against the Petitioners. In consequence of the findings arrived at under issues Nos. 2 and 3, the ejectment petition was dismissed by the Rent Controller The Petitioners relit the torch of their grievance and carried it to the Appellate Authority but the same was again extinguished there and hence the present revision petition.

Shri Atma Ram, Advocate, who is one of the Petitioners, has argued the case at great length with ability and tenacity and the submissions made by him may now be noticed. It is contended in the first instance that the Appellate Authority had not correctly appreciated the evidence on the record and had in fact drifted into thea realm of conjectures The argument which has been pressed into service is that once it is concluded, as done by both the authorities below, that it was Respondent No. 1, who was a tenant under the Petitioners, their averment in the written statement that a part of the premises had been used by Respondent No. 2, should have been treated as sufficient ground to-hold that the derailed premises had been used for a purpose other than the one for which they were let out. I am afraid it is not possible to accept this contention. After issues have been framed and parties have led evidence in support of their respective claims, the averments in the pleadings pale into insignificance except for the purpose of checking up as to hither the evidence so produced travels beyond their pleadings. In any case, the findings on various issues are to be based on an overall analysis and appreciation of the oral as well as the documentary evidence and stray observations made during this process should be of no consequence unless it could be shown that the finding was otherwise erroneous.

It cannot be disputed that a landlord can claim eviction of a tenant only if he is able to bring the case within the four corners of the Rent Act. The allegations made in the ejectment petition do not specifically indicate under which particular provision of the Rent Act ejectment of the tenant was claimed. However, the grounds of ejectment taken in the petition as noticed in the earlier part of this judgment, have been interpreted by Shri Atma Ram to mean that eviction of the Respondents was claimed on the following grounds:

(i) by using a portion of the demised premises (two rooms to be precise) for the office of Mahinder Singh and Company, the tenant-Respondent No. 1 had used the building for a purpose other than that for which it was leased and was, therefore, liable to be evicted u/s 13(2)(ii)(b) of the Rent Act.

(ii) By setting up an unauthorised thatched hutment in the vacant space close to the servant quarters and by erecting some wooden partitions etc. inside the premises, the tenant-Respondent No. 1 had committed such acts as are likely to impair materially the value or utility of the building and had thus invited eviction u/s 13(2)(iii) of the Rent Act.

(iii) As a result of the fire to the thatched hutment, the value and utility of the building had been materially impaired and this also amounts to a sufficient ground for the eviction of the tenant u/s 13(2)(iii) of the Rent Act.

In this revision petition the Court is called upon to satisfy itself as to the legality or propriety of the order of the Appellate Authority which in turn affirms the decision of the Rent Controller. On the question of legality, it has been strenuously contended by Shri Atma Ram that in view of certain circumstances, to be noticed hereafter, the authorities below ought to have drawn an adverse presumption against the tenant even though there was not sufficient direct evidence in regard to these points. The first circumstance on the basis of which an adverse presumption is sought to be raised is that the Local Commissioner had mentioned in his report that he had not been permitted by the Respondent to inspect the bed room from inside and from this conduct of the Respondent it should be inferred that there was some material which could be available to prove the two grounds of eviction. This argument was noticed even by the Appellate Authority and it was observed that the local Commissioner, not having admittedly issued any advance notice of his arrival at the premises in terms of the order of the Rent Controller appointing him as such, the refusal of the Respondent to allow inspection of the bed rooms, would not give rise to any such adverse presumption against him. Shri Atma Ram has submitted that the Respondent did not allow inspection of the bed rooms even after availing of some time to arrange for the privacy of the ladies. That may be so but when an objection in this behalf was made by the Respondent, the proper course for the Local Commissioner was to issue the required notice as contemplated by the order of the Rent Controller dated April 30, 1973, which he did not do. No benefit can, therefore, be derived by the Petitioners from the mere fact that the inspection of the bed rooms was not allowed by the tenant-Respondent. It is very material to note here that both the ejectment petition as well as the application under Order 26, Rule 9 CPC Code, filed by the Petitioners contained no specific allegations in regard to the alterations in the building excepting a reference to the damage caused to the thatched hutment by fire. In the absence of specific allegations in this behalf, the appointment of a local commissioner could not be utilised for fishing out evidence in support of the case. The second point on which an adverse presumption is required to be raised against the Respondent is that be had failed to produce the account books of Mahinder Singh and Company, which if produced would have indicated that the rent was being paid by Respondent No. 1 and not by Respondent No. 2. In regard to this point, Shri D.N. Awasthy, Learned Counsel appearing on behalf of the Respondents, has very candidly conceded that he would not challenge the concurrent finding of both the authorities below to the effect that it was Respondent No. 1 who was the tenant under the Petitioners and Respondent No. 2. In view of this concession, there is no occation to go into the second submission made by Shri Atma Ram as above.

Shri Atma Ram has then assailed the findings of the Rent Controller and the Appellate Authority in regard to issues Nos. 2 and 3. In regard to issue No. 2, the contentions of the Petitioners, which have been highlighted by Shri Atma Ran, have been noticed in the earlier part of this judgment, i.e., by using two rooms of the demised premises for the office of Mahinder Singh and Company, the tenant had used the building for a purpose other than that for which it was leased and and he was therefore, liable to be evicted in view of Section 13(2)(ii)(b) of the Rent Act. The appreciation of this argument necessitates the focus of the beam on the purpose for which the premises were originally leaded to the tenant. As already noticed there is no documentary evidence in this behalf as no lease deed or other writing was exchanged at the inception of the tenancy nor at any time later. The parties have relied upon their own oral depositions on the point. While Shri Atma Ram as P.W. 5 stated that the house had been taken only for residential purposes, the tenant Shri Mahinder Singh deposed as P.W. 4, that the house was taken for the use of Mohinder Singh and Company There is, however, consensus between the parties that only one room of the house is not being used directly for residential purposes as in this room the office of Mahinder Singh and Company, is functioning and the same is also used by the typist. The remaining house is admittedly being used for residential purposes. Shri Mahinder Singh has also deposed that his wife is the sole proprietor of Mahinder Singh and Company, and but for the first one or two months, the rent of the house was always paid by means of cheques issued on behalf of the Company. It was also averred that ever since the beginning of the tenancy, the Petitioners had at no time objected to the use of one room of the house for office purposes. Apart from the oral assertions referred to above, there are other circumstances which indicate that the Petitioners were quite alive to the fact that a portion of the premises was to be used for office purposes also. The ejectment petition (Para 5(i)) is silent in regard to the date or even the period in which the alleged user of the premises for office purposes commenced nor is this fact brought out in the evidence led on behalf of the Petitioners On other hand, the receipt (Ex R. 2) issued by Shri Atma Ram, Petitioner, on August 15, 1968, clearly shows that the same was issued in favour of Shri Mahinder Singh as proprietor of Mahinder Singh and Company The notice dated August 4, 1972 (copy Exhibit R. 18) was also addressed to both the Respondents and a reading of this notice indicates that Respondent No. 2 had not been treated as a trespasser. A similar pointee to the effect is available in the notice dated August 29, 1972 (Copy Exhibit R. 19), wherein it was mentioned that the premises were leased out originally at Rs. 800/- per month as Respondent No. 1 could not reimburse himself from his Company for a large amount. It is also apparent that the Petitioners at no time objected to the use by the tenant of one room of the house for office purposes and this acquiescence on their part disentitles them to raise the objection about the change of user. In the absence of any instrument of tenancy or even direct evidence aliened concerning the purpose of the letting, the acquiescence of the landlord for the continued user of the premises for a certain purpose would certainly afford a safe basis for an inference of agreement between the parties as to the purpose of the letting. If any authority is required on this proposition, the same is available in T. Dakshinamoorthy v. Thulia Bai AIR 1952 Mad 413.

Considering the matter from the legal angle, a Division Bench of this Court (Harbans Singh, acting C.J. and prem chand Jain, J), which had the occasion to deal with this subject in a referred case, laid down useful guidelines in such matters in Telu Ram v. Om Parkash Garg 1971 R.C.J. 1. The conclusions of the Bench have been summarised at page 15 of the said authority. In Clause (a) of the same, it was held that if only a small part of a building is used for a purpose other than the one for which it was originally let, that by itself, may not render the tenant liable to be evicted under the above mentioned Clause (Section 13 (2) (ii) (b) It was further held that in any case a tenant would not be so liable if the purpose complained of can be said to be part of the purpose for which the premises were originally let. The case of the Petitioners, even if taken at their best, is that one room out of the whole building has been used by Respondent No. 1 for the purpose of the office of a company of which his wife is the sole proprietor. The use of a room for his own office purpose by a person engaged in some profession or business is not unknown and unless it can be shown that by this user, the category of the premises is charged, from the one for which it had been let out, Section 13(2) (ii) (b) of the Rent Act is not attracted. This was also the ratio in Telu Ram''s case (surpa). These consideration apart, it must be remembered that the onus of proving a certain ground of ejectment is always upon the landlord and it he tails to discharge this onus by producing cogent material so as to bring his case within the ambit of the Rent Act, he cannot claim eviction of the tenant. The conclusions of the two authorities below in regard to issue No. 2 are quite correct and there is no reason to adopt a contrary view.

This brings us to the last point, which is the subject-matter of issue No. 3. Two arguments have been advanced in this behalf, namely, (a) by setting up an unauthorised thatched hutment in the vacant space close to the servant quarters and by erecting some wooden partitions, etc., inside the premises, the tenant had materially impaired the value and utility of the building, and (b) that as a result of the fire to the thatched hutment, the value and utility of the building had been impaired. Re (a), it has been emphasised that the thatched hutment was an unauthorised construction which had been set up in contravention of the Capital of Punjab (Development and Regulation) Act, 1952, and the Rules framed thereunder, and this fact alone should be deemed to give rise to an inference that the value and utility of the main building had been impaired. I am afraid the argument is not tenable. Unless and until it is shown that the construction of such a temporary hutment has impaired (and impaired materially) the value or utility of the demised building, Section 13(2) (iii) of the Rent Act cannot be utilised by the landlord. The temporary construction, which is in contravention of the local bye-laws may invite liability or prosecution to the person who has raised the same, which is a matter quite extraneous to the grounds of eviction as enumerated in the Rent Act. On behalf of the tenant, Shri Awasthy has urged that far from causing material impairment, the temporary hutment which had been constructed for the use of the sweeper working in the premises, had rather enhanced the utility of the building. I do not think it is possible to go to that extent. But there is no difficulty to hold that material impairment of the value or utility of the building or the likelihood thereof has has to be established before any relief can be afforded to the landlord.

Point (b) in this context should not detain us long. It is nobody''s case that the thatched hutment caught fire by any intentional or negligent act of the tenant and even if some damage is caused on account of an accidental fire, the responsibility for the same cannot be affixed upon the tenant The Petitioners own witness Shri M.N. Sharma, Station Fire Officer (P.W. 4) candidly admitted that the loss, which had occurred to the main building on account of the fire, was within the range of Rs. 30/- to Rs. 50/- Shri G. K. Verma (P.W. 1), who had inspected the premises as Local Commissioner, also admitted in his cross-examination that but for some door frames no other damage had been caused to the main building There is also evidence to show that the tenant bad made good this loss by replacing the damaged woodwork at his own cost at the earlier possible opportunity The accidental fire caused to the thatched hutment does not, therefore, raise any fresh ground for the landlord to seek eviction of the tenant. Issue No. 3 has also been correctly decided by the authorities below.

The result of the above appraisal is that the order of the Appellate Authority does not suffer from any illegality or impropriety so as to call for interference in revision. The revision petition is consequently dismissed with no order as to costs.