Mrs. Sushma Malohtra vs Prem Nath and others

J.V. Gupta, J.—This is tenant''s petition against whom eviction order has been passed by both the Authorities below.

The landlords sought the ejectment of their tenant Mrs. Sushma Malhotra from the premises in dispute which forms the part of basement of shop-cum office No. 123 124, Sector 17-C, Chandigarh. The ejectment application was filed on 2-9-1982. The premises were let out to the tenant at the rate of Rs. 2000/- per month excluding water and electricity charges. It was alleged that the tenant has sublet a part of the premises to Ajay Chopra and Mrs. Usha Chopra, Respondents Nos. 2 and 3 in the ejectment application and passed over the exclusive possession and control of the demised premises by carving therein wooden cabins having independent doers under separate lock and key The ground of non-payment of arrears of rent with effect from 1-4-1981 was also taken. Since the arrears were tendered on the first date of hearing the said ground was no more available.

In the written statement the tenant denied that he had sub-Jet any part of the demised premises to Respondent No 3 or parted with the exclusive possession as alleged It was pleaded that the tenant has got no connection whatsoever with his alleged subtenants. It was also pleaded that no wooden partition was effected in the premises as alleged by the landlords.

The main controversy between the parties was whether the tenant has sublet the part of the premises without the written permission of the landlord. The learned Rent Controller found that the landlord has succeeded in this case to prove that the tenant parted with the possession of a part of the demised premises and it was for the tenant to prove that Respondents Nos. 2 and 3 did not actually occupy the premises or that the Respondents Nos. 2 and 3 did not issue the memo Ex. A. 2 and that Respondents Nos. 2 and 3 did not obtain the State Sales Tax and the Central Sales Tax number from the concerned departments Since the tenant has failed to prove there facts, she was liable to be ejected on the ground of subletting. Consequently, eviction order was passed. Appeal was filed by the tenant but surprisingly enough she did not implead the alleged subtenants as parties to the appeal when admittedly they were parties in the ejectment application. In appeal the learned appellate authority affirmed the finding of the Rent Controller on question of subletting and thus maintained the eviction order. Dissatisfied with the same, the tenant has filed this petition in this Court.

Learned Counsel for the Petitioner vehemently contended that from the solitary statement of the landlord without any further corroboration, it could not be held that there was any subletting by the tenant to Respondents Nos. 2 and 3 in the ejectment application. According to the Learned Counsel, the statement of the landlord was not accepted to be true by the appellate authority as regards the receipt Ex. P. 2 Rather, the observations made were that this was a manufactured document. That being so, argued the Learned Counsel, the sole testimony of the landlord could not be accepted as he has not come to the Court with clean hands. In any case, argued the Learned Counsel, there is no evidence on the record to prove that the tenant parted with the possession of the demised premises and the alleged sub-tenants were in exclusive possession of a part of it as alleged. Mere issuance of the sales tax No. at the address of the demised premises in favour of Respondents Nos. 2 and 3 was not sufficient itself to prove that they were in occupation of a part of the premises as alleged by the landlord. The whole approach of the authorities below in this behalf was wrong and illegal and therefore, the finding arrived at is vitiated. In support of his contention, he referred to Jagan Nath v. Shanti Devi 1976 R.C.R. 341, Ranjiv Paul Singh v. Mehanga Ram l981 (1) R.C.R. 329, and Harcharan Singh v. Smt. Shinani 1981 (1) R.L.R. 506. Reference was also made to the Supreme Court judgment in Krishnawari v. Hans Raj 1974 R.C.R. 163 , to contend that the onus was on the landlord to prove that the tenant has parted with the exclusive possession in favour of the alleged sub-tenants for valuable consideration which, according to the Learned Counsel, the landlords have failed to prove by any cogent evidence.

On the other hand, the Learned Counsel for the landlords submitted that from the testimony of Jai Kishan PW .2, Record Keeper in Excise and Taxation Department, it has been proved that the alleged sub tenants got the sales tax No. CHA 7221 and Central Sales Tax No. 7011 by the name (the shop) whose partners are Ajay Chopra and Usha Chopra, Respondents Nos. 2 and 3 and the address given therein was of the demised premises. Moreover, on the appreciation of the entire evidence, it has been concurrently found by both the Courts below that the tenant has parted with the part of the demised premises in favour of the said two Respondents and that being a finding of fact was not to be interfered with in the revisional jurisdiction. In support of his contention he referred to Ram Kishan v. Harjinder Singh 1982 (1) R.C.R. 74. It was also contended that the subtenants were made parties in the ejectment application but for the reasons Known to the tenant she did not implead them as parties either in the appeal before the Appellate Authority or in this Court in this petition. Since the eviction order has become final against the sub tenants the present petition as such was not maintainable. Moreover, it was never the case set up by the tenant that the said sub-tenants were not in exclusive possession of the part of the demised premises and therefore, it was not open to the tenant to argue that there was no question of exclusive possession as such.

After hearing the Learned Counsel for the parties and going through the evidence on the record and the case law cited at the Bar, I do not find any merit in this petition What the landlords have proved on the record is that Respondents Nos 2 and 3 obtained their sales tax number both State as well as Central wherein the address given by them was of the demised premises. In addition thereto, it has been further proved by the landlords that separate wooden cabins were made, the possession of which was handed over to the two sub-tenants. In this respect, the statement of PW. 2 Jai Kishan was very material He has categorically stated that as per record,'' the shop'' is located in SCF No. 123-124, Sector 17-C, in the basement since 15.1.1982. Its Sales Tax No, is CHA 7211(sic) and Central Sales Tax No. is 7011 and the partners are Ajay Chopra and Usha Chopra Respondents Nos 2 and 3 and nothing was suggested in his, cross-examination that these sales tax numbers were issued to them wrongly or fictitiously as alleged on behalf of the tenant in this Court. From his testimony, it is apparent that the said subtenants did obtain their certificates after giving their place of business, the address of the demised premises. Under the Punjab Central Sales Tax Rules, 1949, Rule 2(k) defines ''place of business'' which means any place where the dealer sells any goods or carries on any process of manufacture or stores goods or keeps accounts of his purchases or sales. Rule 3 further provides that application for registration u/s 7 or Section 8 shall be made to the appropriate Assessing Authority which shall be in form ST. I. Form ST. I further provides in Clause 13 thereof that the business has additional places of business and warehouses at the addresses enumerated below and no other warehouses or places of business i.e. the Assessee is required to give the address of the place of his business. The necessary certificate is then issued under Rule 5 after making an inquiry by the Assessing Authority. He is to verify that all the addresses in the application are correctly given. Somewhat similar provisions are in the Central Sales Tax (Registration and Turnover) Rules, 1957. Thus it is apparent that one could get certificate only after he gives his place of business. In the present case Respondents Nos. 2 and 3 have given their place of business of the demised premises. This raises a presumption in favour of the landlord that the said sub-tenants were occupying the part of the demised premises independently though it has also been further proved by the statement of the landlord Dharam Vir Malik PW 1 that they were in exclusive possession of the part of the premises by making two cabins. But, in any ease, the tenant never set up the case that the sub tenants were not in exclusive possession According to her they were not at all in occupation and the certificates issued by the sales tax department were fictitious documents This argument was not accepted. On the facts and circumstances of the case it could not be held that the sales tax certificates were issued at the instance of the landlords and were fictitious documents. Moreover, on the appreciation of the entire evidence it has been concurrently found that the said sub-tenants were in exclusive possession of the part of the demised premises and that being a finding of fact can not be interfered with the revisional jurisdiction.

Much has been argued on the observations of the Appellate Authority that the receipt Ex. P. 2 was a fabricated document. I am of the opinion that these observations are without any basis. Simply because it does not bear any date or the signatures did not mean that it was a manufactured document. The said receipt Ex P. 2 is on a printed form giving the address of the demised premises. Moreover, the receipt was produced by AW. 3 Rajinder Singh who purchased the articles and got the receipts Ex. A. 1 and A. 2. Nothing was suggested to him in the cross examination that these were forged documents Thus the observations made by the Appellate Authority are unwarranted.

The landlords also produced a receipt Ex. A. 1 issued by the tenant to his customer. That receipt is also on printed from and there also the sales tax number of the tenant is not given. So the sales tax number is not given on the receipt Ex P 2 From this it could not be infered that the receipt Ex. P. 2 was a manufactured document.

Once it is proved that the said-sub-tenants obtained their sales tax certificates on the address of the demised premises, then the burden shifts on the tenant to prove that in what capacity they were doing the business. As observed earlier, this was never the case set up by the tenant that they were in occupation in any other capacity. Rather the case set up was that they were not in occupation at all. Under these circumstances, I do not find any illegality or impropriety in the concurrent findings of the authorities below as to be interfered with in the revisional jurisdiction. The authorities relied upon by the Learned Counsel for the Petitioner has no applicability to the facts of the present case. Consequently, the petition fails and is dismissed with costs. However, the tenant is allowed three months time to vacate the premises provided all the arrears of rent, if any, and advance rent for three months is deposited with the Rent Controller within one month from today with a further undertaking in writing that after the expiry of the said period, vacant possession will be handed over to the landlords.