Des Raj and Another vs Asha Devi

Bhawani Singh, J.—This Revision Petition has been directed against the concurrent decisions of the Rent Control authorities whereby the tenant has been ordered tp be evicted from the premises described as Set No. 2, Shop No. 4, Bharari, Sliimla, on two grounds, namely, that the tenant has sub-let the premises to Sh. Som Nath without the consent of the Land-lady and that the premises were bonafide required by the Land-lady for her own use and occupation.

The facts, in brief, are that the Land-lady Smt. Asha Devi filed this petition on the grounds mentioned above and the tenant having failed to vacate the same despite notice u/s 106 of the Transfer of Property Act, the petition for eviction had to be filed.

The tenant contested this application and denied having sub-let the premises to Shri Som Nath. Sh. Som Nath, it is stated, was his son-in-law being married to his daughter Maya Devi. He lived in the premises temporarily along with them. The requirement of the premises by the Land-lady for her own use and occupation has also been denied. It has also been asserted that the Land-lady in the recent past, inducted two tenants namely, Ganga Ram and Parkash Ram in two rooms and a kitchen and latrine. Therefore, the requirement was not bonfire. Sh. Som Nath, in his separate reply, denied the factor of sub tenancy and supported the stand taken by the tenant. The landlady further asserts that the premises which fell vacant were not at all suitable for the living of" her family as they did not have the facilities of kitchen, bath room and latrine.

On the pleadings of the parties, the Rent Controller framed the following issues:

Whether the Respondent No. 1 is in arrears of rent? OPP

Whether Respondent No. 1 has sub-let the premises to Respondent No. 2? OPP

Whether the Petitioner requires the premises for her personal occupation? OPP

3(a). Whether the petition is bad for non-joinder of necessary parties as alleged? If so, who are the necessary parties? OPR

Relief.

After the trial, the learned Rent Controller came to the conclusion that the premises had, in fact, been sublet by the tenant and that the requirement of the Land-lady was quite bonfire and .genuine. As a result of these findings the Rent Controller (I), ischemia, proceeded to pass the order of eviction of the tenant from the premises on March 12, 1981. The tenant assailed this order before the Appellate Authority but did not succeed there as well. This is how the matter has come up before this Court.

The learned Counsel for the parties agree that in view of the decision of this Court in Civil Revision No. 102 of 1978 and many other similar matters connected therewith, the ground of homicide requirement of the Landlady no longer survives for determination and the only paint left for decision in this case pertains to the factor of subletting by the tenant. I proceed, therefore, to examine and decide this aspect of the controversy.

The Landlady lias examined a number of witnesses to prove that the tenant had sub-let the premises to Som Nath.

Chet Ram (P.W. 1) has stated that Smt. Laxmi wife of the tenant applied for the allotment of a quarter on 23-7-1974 and Quarters No. 7 and 8 in Harrington were allotted to her. She is living in those quarters along with her husband Des Raj and her children, Sh. Mehar Chand (P.W. 2) who is a Clerk in the State Electricity Board has stated that Sh. Des Raj had made an application for the installation of an electric meter in the servant quarters in Harrington Estate on the ground that he was living there as a tenant and an electric meter in pursuance of his application was installed there and the same still continues in his name.

Sh. B.D. Singh (P.W. 3) also states that the tenant is an employee of the Municipal Corporation and has been recorded as a resident of Sharikli in the record of the Municipal Corporation. He was drawing house rent from the Corporation every month.

Sh. Charan Das (P. W. 4),an Assistant in General AdministrationDepartment, Government of Himachal Pradesh has also stated that Smt. Laxmi was allotted a quarter in Harrington Estate in September, 1973. To the same effect is the statement of Sh. Shambhu Dass (P.W.5), Clerk in the Estate Office, Shiffila.

Sh. Puran Chand (P. W. 6) states that Is sari was earlier a tenant of the Land-lady and then he sublet the premises to one Som Nath without the permission of the Land-lady and the sub-tenant was thereafter in possession of the premises aid the tenant was living in a different house at Harrington with his family and these quarters have been allotted to his wife.

On the other hand, the tenant has examined Har Bhajan (R.W.1) to say that Som Nath was the son-in-law of the tenant and that the tenant was himself living in the premises. When cross-examined, he stated that he did not know whether the wife of the tenant had been allotted any accommodation in Harvington out-houses. He also could not say anything as to the other tenants of the premises in question. The tenant, Des Raj (R.W. 2) says that he had married his daughter to Som Nath and Som Nath was not living in the premises. He denied having any knowledge as to the allotment of quarters to his wife in Harrington although admitted that she was serving in the Secretariat. He also admitted that the address on his ration card was that of Harrington and that the electric meter was in his name. He denied that Som Nath was living in the disputed premises exclusively while he and his wife were living in the quarters at Harrington. This is the kind of evidence produced by the tenant.

Sh. M.C. Mandhotra submits that the land-lady has not been able to prove that the so-called sub-tenant was in exclusive possession of the premises and that the exclusive possession was for valuable consideration. To support his submissions, reference is made to 1976 RCJ 87, Smt. Parkash Wanti v. Rattan Lal Jain and Anr. The principles enunciated in this decision may be correct but they do not apply to the present case because it has been proved that at the time of the purchase of the premises the tenant was in occupation of the same along with other members of his family but thereafter he started living along with his wife and children in quarters allotted to his wife at Harrington estate on and after August 7, 1974. By this, the sub-tenant came in possession of the property exclusively. The sub-tenant may be the |son-in-law of the tenant and could live with his father-in-law j without paying any rent but such state cannot be visualized for I long. So, it cannot be said that he was living in the premises without any valuable consideration. Such inference had to be | drawn in view of the inter-relationship between the tenant and | the sub-tenant as direct evidence cannot possibly be led to j prove the factor of valuable consideration. In this view of the matter, the contention of Sh. Mandhotra has no substance. The assertion of the tenant that he had not left the dominion over the premises since his children were living there is purely baseless since the accommodation consists only of one room. The other children of the tenant are quite grown up. It cannot be imagined that they would live in the premises with this couple; rather, the evidence discloses that they were also living with the-tenant in Harvington premises. No evidence pointing out that the sub-tenant was living at any other place in Shimla has been, brought on the record.

Another submission of Sh. Mandhotra is that the landlady has to establish that the sub-tenancy was created after the commencement of the H.P. Urban Rent Control Act, 1971 (15-11-1971), I am not impressed by this submission of Shri Mandhotra. This submission was never raised before the authorities below. It is in evidence that the premises in question were purchased by the land-lady in 1973. It is also in evidence that the tenant was in occupation of the premises along with other members of his family. It is also alleged that the tenant started living along with his wife and children in the quarters allotted to his wife at Harrington estate on and after August 7, 1974. Obviously, therefore, it is clear that the sub-tenancy was created after the commencement of the 1971 Act. Moreover, meticulous adherence pointing out the ingredients of law in the j pleadings is not an absolute rule nor of general application as the same may result in hardship in a case 1984 1 RCR 319, Kanwal Narain v. L.F. TeHis].

Finally, it is argued that the factor of tenancy has to be shown as a fact and simply because someone is shown to be living in the premises that itself does not indicate ground of sub-tenancy by the tenant. Reference is made to 1969 RCR 563 (Murli Dhar ChumLal and Ors.).

The land-lord has to show, prima-facie, that the | premises have been sub-let by the tenant. When once that j has been shown, the burden shifts on to the tenant to rebut the Same. In the present case, the land-lady has established sub- letting by the tenant. The tenant has not been able to rebut the same. The facts in the present case referred to by Sh. Mandhotra are entirely different and the principles enunciated are absolutely correct if the facts are similar to those mentioned in the judgment.

In view of the aforesaid examination of the matter, within the parameters of the jurisdiction of this Court, there is no force in the revision petition and the same is accordingly rejected. The tenant is given a period of three months to put the land-lady in vacant possession of the premises in dispute. The parties are left to bear their own costs.