Peter Ta Tung vs Dila Ram

Dharam Chand Chaudhary, J.—Aggrieved by the judgment dated 16.07.2008 passed by learned appellate authority (Fast Track Court), Shimla in Rent Appeal No. 51-S/14 of 2007, the petitioner-land lord has filed this petition for quashing and setting aside the same.

The petitioner is owner of building Catholic Club Shimla-171003. Predecessor-in-interest of the respondents Sh. Dila Ram (respondent-tenant before learned Rent Controller) was working as Bottom man in the shoe shop of the petitioner known as ''Ta Tung and Company''. He was allotted residential accommodation i.e. quarter No. 23 in the building in question (hereinafter referred to as the ''demised premises'') for his residential purposes. A petition under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the ''Act'' in short) came to be filed by the petitioner-land lord for eviction of the predecessor-in-interest of the respondent-tenant on the ground of ceased to occupy and also the impairing of the value and utility of the premises in question materially.

In reply to the rent petition, the defence of the respondent-tenant was that he was residing in the demised premises along with his family and never left the same. It is denied that he is not residing therein since January, 2003. Learned Rent Controller has framed the following issues:

Whether the respondent has ceased to occupy the premises in question for a continuous period of more than 12 months, as alleged? OPP.

Whether the respondent has committed such acts as are likely to impair materially the value and utility of the premises in question, as alleged? OPP.

Whether the application is not maintainable in the present form? OPR.

Whether there is no relationship between the applicant and respondent No. 1? OPR.

Relief.

Learned Rent Controller after taking on record the evidence produced by the parties on both sides and appreciation of the same has partly allowed the rent petition and ordered eviction of the respondent-tenant on the ground of ceased to occupy vide order dated 7.7.2007 passed in Rent Petition No. 49/2 of 2005. Deceased respondent Dila Ram preferred an appeal against the order passed by learned Rent Controller. The appeal was allowed and the impugned order quashed and set aside by learned Appellate Authority vide impugned judgment.

The legality and validity of the impugned judgment has been questioned in this petition on several grounds, however, mainly that learned Appellate Authority has failed to appreciate the evidence available on record and also the law applicable in its right perspective and as a result thereof the findings recorded by learned Appellate Authority are vitiated, hence the impugned judgment is not legally sustainable.

The respondents are ex-parte in this petition, as learned counsel representing them failed to put in appearance on the last date. Now, if coming the merits of the case, there is no dispute so as to the demised premises was allotted to deceased Dila Ram during the course of his employment as Bottom man in M/s. Ta Tung and Company, the proprietor whereof is the petitioner. Deceased tenant was removed from employment in January, 2003. No doubt, it has come on record that he raised dispute under the Industrial Disputes Act against his removal from employment, however, what was its fate, nothing has come on record. Any, how, learned counsel for the petitioner has pointed out that reference made to the Labour Court was dismissed. Meaning thereby that when deceased respondent Dila Ram ceased to be the employee of M/s. Ta Tung and Company, he has no right to occupy the demised premises also. Therefore, the possibility of he abandoned the same and was not residing there cannot be ruled-out. Otherwise also, PW-3, Sh. Bhagat Ram Sharma, Junior Assistant, H.P. State Electricity Board, Sub-Division, Shimla while in the witness box has stated that the consumption of electricity installed in the demised premises in the name of deceased respondent for the period from August, 2004 to September, 2005 was nil. True it is that non-consumption of electricity cannot be taken as clinching evidence to arrive at a conclusion that the tenant was not residing in the demised premises, however, appreciating the statement of PW-3, vis-�-vis, the petitioner and that the respondent-tenant was removed from employment, it can reasonably be believed that he was not residing in the demised premises. The legal notice issued to him no doubt carrying the address of demised premises. Similarly, the notice of the petition may have also been served upon him on the address of the demised premises, however, it cannot be believed to arrive at a conclusion that he was actually residing there. Otherwise also, it is during the pendency of this petition, he expired. He has been ordered to be substituted by his legal representatives, respondents herein. They have not opted for contesting this petition and allowed themselves to be proceeded against ex-parte, may be having left with no interest in the demises premises, on the death of their father, deceased respondent-tenant. Therefore, it would not be improper to conclude that learned Rent Controller has rightly ordered the eviction of the respondent-tenant from the demised premises on appreciation of evidence available on record in its right perspective. Learned trial Court has erred in reversing the order passed by learned Rent Controller by misreading, mis-appreciation and misconstruction of the given facts and circumstances of the case and also evidence available on record.

This petition, therefore, succeeds and the same is accordingly allowed. Consequently, impugned judgment is quashed and set aside. The order passed by learned Rent Controller is affirmed. The petition stands disposed of accordingly. Pending application(s), if any, shall also stand disposed of.