Vs. Davinder  Insc 195 (24 March 2004)
Lahoti & Dr. Ar. Lakshmanan.
R.C. Lahoti, J.
based on landlord-tenant relationship, filed by the appellant against the
respondent, on the ground available under Section 13(2)(v) of the Haryana Urban
(Control of Rent) & Eviction Act, 1973 (hereinafter the 'Act', for short)
was decreed by the Rent Controller, Rohtak and maintained in appeal by the
Appellate Authority. In a revision preferred under Section 15(6) of the Act,
the High Court has set aside the findings of the two authorities below and
directed the application seeking eviction of the respondent to be dismissed.
Feeling aggrieved, the landlord has filed this appeal by special leave.
Section 13(2)(v) of the Act, on an application filed by a landlord seeking to
evict his tenant, the Controller may, after giving the tenant a reasonable
opportunity of showing cause against the application, make an order directing
the tenant to put the landlord in possession of the building if the Controller
is satisfied that the tenant has ceased to occupy the building for a continuous
period of four months without reasonable cause.
existence of landlord-tenant relationship between the parties is not in
dispute. The suit accommodation is a shop situated in commercial locality. The
respondent seems to be a petty shopkeeper.
sells sweets and vends tea from the suit shop. According to the appellant, the
respondent had ceased to occupy the shop for a continuous period of four months
without reasonable cause. The period during which the premises are alleged to
have remained without occupation is since February 1990 till the date of filing
of the application, i.e. 14.6.91.
perusal of the decision of the Controller shows that overwhelming evidence was
adduced by both the parties in support and denial of the averments made in the
application seeking eviction.
pieces of evidence adduced by the landlord need to be noticed briefly. Meter
Reader of the locality was examined to show that there was no consumption of
electricity during this period. Repeated notices, eight in number, were sent
through registered A/D post by the landlord to the tenant during this period
which were all returned with the postal endorsement that in spite of repeated
attempts made by the postman, stretched over a period of about one week in each
case, no one was available at the given address to accept the service of
registered letter and the premises were found closed. The postman deposed to
these facts. Undisputedly the address as given on each of the letters was
correct and related to the suit premises. The court process server was examined
as deposing that on several occasions he had gone to the suit premises for
effecting service of the court summons but he failed to effect service on
account of none being available at the premises which were invariably found
locked. The landlord had arranged for photographs of the suit premises being
taken. The photographer was examined to prove the photographs, tendered in evidence,
which showed the suit premises closed and locked while adjoining shops were
open and the space just in front of the shop and immediately abutting it was
being used for parking cycles which would not have been practical unless the
suit premises were closed and not in use. There is other oral evidence
including the statement of landlord himself to support the plea of the
tenant did examine a few witnesses of the locality who deposed to the shop
having continued to remain in use and occupation of the respondent-tenant.
However, the stand taken by the respondent in his pleadings,
examination-in-chief and cross- examination has been shifting one. To begin
with, his stand was that the shop had never remained closed much less for a
continuous period of more than four months. However, at one place his stand was
that he had remained sick for sometime and therefore had gone irregular in
opening the shop and during sickness opened the shop for a few hours in a day.
No medical evidence was adduced to support such plea. At another place his
stand was that his father was having a flour mill at a little distance from the
suit premises and when there was none else available to look after the flour
mill, he himself used to sit at the flour mill. So is the case with those
shopkeepers of the locality who appeared as witnesses for the respondent. They
gave varying statements as to the hours of the day when the shop was kept open
by the respondent and as to the activity carried on by the respondent in the suit
that as it may, having gone through the lengthy discussion of evidence,
documentary and oral, as contained in the judgment of the trial Court, with the
assistance of the learned senior counsel for the appellant, we are satisfied
that no fault can be found with the manner in which the evidence has been dealt
with and marshalled by the Controller. The appellate authority has made an
independent evaluation of the evidence and confirmed the findings of the
Controller. The High Court has, while exercising its revisional jurisdiction,
entered into re-appreciation of evidence not open to the High Court; more so,
keeping in view the manner in which the exercise has been undertaken by the
High Court. To say the least, we find that there is to some extent misreading
of the evidence by the High Court.
give just two illustrations. While criticizing the testimony of postman the
High Court goes on to observe that the postman claims to have visited the suit
premises even on Sundays when the post office remains closed and the postman is
not on duty. We have carefully read the statement of the postman. He has
nowhere claimed having been on duty and visited the shop on Sundays. The
endorsements made on the registered letters returned unserved have been carefully
examined by us with the assistance of the learned counsel for the parties and
keeping the calendar of the year 1991 before us. We find none of the
endorsements made by the postman relates to a date which was a Sunday or
holiday. Similarly, the High Court holds that one of the summons was actually
delivered by the process server to the respondent-tenant although the process
server has deposed that the respondent was not available at the premises. How
these two self- contradictory things could have taken place ___ asks the
learned Judge posing question to himself. If only the deposition of the process
server would have been carefully read it would have been revealed that what the
process server was deposing was that the respondent was not available at the
suit premises to accept the service of summons which premises were locked but
he was available at a little distance away from the suit shop and at the flour
mill premises of the respondent's father and there the service was effected.
Thus the High Court has proceeded to reverse, on erroneous assumptions, the
findings of facts concurrently arrived at by the two authorities below and such
exercise by the High Court as also the conclusions drawn therefrom, we find
difficult to countenance inasmuch as they are vitiated. We are clearly of the
opinion that the High Court has exceeded its jurisdiction in reversing the well
considered findings of fact arrived at by the two courts below.
terms "possession" and "occupy" are in common parlance used
interchangeably. However, in law, possession over a property may amount to
holding it as an owner but to occupy is to keep possession of by being present
in. The Rent Control Legislations are outcome of paucity of accommodations.
Most of the Rent Control Legislations, in force in difference states, expect
the tenant to occupy the tenancy premises. If he himself ceases to occupy and
parts with possession in favour of someone else, it provides a ground for
some legislations provide it as a ground of eviction if the tenant has just
ceased to occupy the tenancy premises though he may have continued to retain
possession thereof. The scheme of the Haryana Act is also to insist on the
tenant remaining in occupation of the premises. Consistently with what has been
mutually agreed upon the tenant is expected to make useful use of the property
and subject the tenancy premises to any permissible and useful activity by
actually being there. To the landlord's plea of the tenant having ceased to
occupy the premises it is no answer that the tenant has a right to possess the
tenancy premises and he has continued in juridical possession thereof. The Act
protects the tenants from eviction and enacts specifically the grounds on the
availability whereof the tenant may be directed to be evicted. It is for the
landlord to make out a ground for eviction. The burden of proof lies on him.
However, the onus remains shifting. Once the landlord has been able to show
that the tenancy premises were not being used for the purpose for which they
were let out and the tenant has discontinued such activities in the tenancy
premises as would have required the tenant's actually being in the premises,
the ground for eviction is made out. The availability of a reasonable cause for
ceasing to occupy the premises would obviously be within the knowledge and, at
times, within the exclusive knowledge of tenant. Once the premises have been
shown by evidence to be not in occupation of the tenant, the pleading of the
landlord that such non- user is without reasonable cause has the effect of
putting the tenant on notice to plead and prove the availability of reasonable
cause for ceasing to occupy the tenancy premises.
present case, the landlord has, through his pleadings and by adducing evidence,
made out a case of the tenant's ceasing to occupy the tenancy premises and the
onus, therefore, had shifted on the tenant either to rebut the case made out by
the landlord or to allege and prove any reasonable cause for ceasing to occupy
the premises. In our opinion, in the case at hand the landlord has fully
discharged his obligation of making out the case of his entitlement to evict
the tenant under Section 13 (2)(v) of the Act. The tenant has failed in
discharging his onus. The Controller and the Appellate Authority rightly
arrived at the finding of the fact which they did.
was no case for interference at the hands of the High Court.
appeal is allowed. The impugned judgment of the High Court is set aside and
that of the Controller, as affirmed by the Appellate Authority, is restored.
The respondent-tenant is directed to put the landlord-appellant in possession
of the suit premises on or before 30th April 2004.