Om Parkash vs Krishan Bhagwan Bhawan and Another

Alok Singh, J.—Present revision is filed u/s 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 challenging the order dated 14.11.2006 (Annexure P-1), passed by the Appellate Authority thereby allowing the appeal of the landlord and directing eviction of the tenant from the demised shop on the ground that tenanted shop remained closed for more than one year before the date of filing of the eviction petition.

The brief facts of the case are that landlord (petitioner herein) preferred an eviction petition against the tenant-respondent on the two grounds that is non-payment of arrears of rent for the period from 01.01.1998 to 31.08.1999; tenanted premises remained continuously closed for last more than one year before filing of the eviction petition without any reasonable cause.

It is pleaded by the landlord that tenanted premises is part of the Dharamshala known as Shri Krishan Bhagwan Bhawan. It was initially let out to respondent Om Parkash. The shop remained closed without any reasonable cause continuously for the last more than one year before the date of filing of the eviction petition and in fact Om Parkash is now carrying on the business of manufacturing "Khes" etc. in a shop taken on rent from Municipal Committee, Jind.

Learned Rent Controller, vide impugned judgment dated 29.04.2004 (Annexure P-3), has held that ground of non payment of arrears of rent is not proved. Learned Rent Controller further held that it is not proved on record that tenant has shifted his business to another place and tenanted premises remained continuously closed for the last more than one year before filing of the eviction petition.

Feeling aggrieved from the judgment of the learned Rent Controller, landlord preferred an appeal before the Appellate Authority. Appellate Authority agreed with the learned Rent Controller on the point that landlord could not prove that tenant is in arrear of rent. However, learned Appellate Court has held that admittedly tenant has taken one shop on rent from the Municipal Committee and it is not believable that the shop taken on the rent by the tenant from the Municipality is occupied by wife of the tenant for the purpose of selling vegetables. Learned Appellate Court also held that if wife of the tenant is doing business in the shop, taken on rent from the municipality then lease should have been in the name of the wife of tenant, hence it shall be presumed that tenant himself is doing business in the shop, taken on the rent from the municipality and it shall be presumed that the tenant has not doing business in the demised shop. Ultimately, Appellate Authority allowed the eviction petition, filed by the landlord and directed eviction of the tenant.

Present petition is filed by the tenant challenging the order of the Appellate Court.

Learned Counsel for the tenant-petitioner vehemently argued that reasoning given by the Rent Controller on the question as to whether demised shop remained closed for more than one year from the date of filing of the eviction petition is disturbed by the Appellate Authority without pointing out any perversity or illegality in the view taken by the Rent Controller. Learned Counsel for the revisionist-tenant further argued that even if two views are possible, view taken by the trial Court should not be disturbed by the first Appellate Court, unless and until some illegality or perversity are pointed out therein.

I have carefully examined the record and heard the Learned Counsel for the parties. Learned first Appellate Court has held that it is proved on the record that Om Parkash-tenant has taken another shop on rent from the municipality, hence case taken by the tenant that his wife is selling vegetables in that shop is not believable. Learned Appellate Authority further held that if wife of the tenant is doing business in the shop taken on lease from the municipality then lease should have been in the name of the wife of tenant, hence it cannot be believed that tenant is not doing his business in the new shop taken on lease from the municipality. Learned first Appellate Court on the basis of statements of the witnesses found that tenant has shifted his business to the new shop, taken on lease from the municipality and is keeping the demised shop locked for more than one year before filing of the execution petition.

In the opinion of this Court, if there are only oral evidence from both the sides of the effect as to whether demised shop is under lock for more than one year from the date of filing the eviction petition then view taken by the trial Court should not be lightly disturbed by the Appellate Court even if two views are possible. From the perusal of the judgment, passed by the Appellate Court, this Court is unable to find out any finding where Appellate Court has pointed out any perversity or illegality in the conclusion of the trial Court. Without pointing out any perversity and illegality in the finding of the fact of the trial Court, it is not open to the Appellate Court to come to the different conclusion on the basis of same evidence, even if two views are possible.

In the opinion of this Court, if there is no documentary evidence to prove the fact alleged in the case and if both the parties have led oral evidence then view taken by the trial Court should prevail unless and until it is totally unjust, improbable and perverse. As observed here-in-above, learned Appellate Court did not record any finding that judgment passed by the learned Rent Controller is perverse, unjust or improbable. From the perusal of record, I am satisfied that landlord failed to prove that demised shop is under lock for more than one year before filing of the eviction petition.

Learned Rent Controller while dealing with the issue has found that it is not proved on record that tenant ever shifted his business from the demised shop to the new shop rather it is proved on record that wife of the tenant is selling the vegetables in the shop, taken on lease from the municipality.

In view of the above, impugned order passed by the Appellate Authority cannot be sustained in the scrutiny of law.

Present petition is allowed. Order impugned passed by the Appellate Court is set aside.

No order as to costs.