Shashi Jain Vs.
Tarsem Lal (Dead) & ANR  INSC 674 (31 March 2009)
JURISDICTION CIVIL APPEAL NO. 3623 OF 2001 Smt. Shashi Jain ..... Appellant
Versus Tarsem Lal (Dead) & Anr. ..... Respondents
1] This appeal by
special leave has been filed by Smt. Shashi Jain-landlady, assailing the final
judgment and order dated 23.04.1998 passed by the High Court of Punjab and
Haryana at Chandigarh in Civil Revision No. 4062 of 1997.
2] The facts in brief
giving rise to this appeal are as follows:- 2.1) On 24.07.1961, the mother of
Smt. Shashi Jain-landlady- appellant (hereinafter referred to as the
"landlady"] had inducted Tarsem Lal as a tenant in the premises, i.e.
House No. 971, Block-1 consisting of three rooms, one verandah, attached
courtyard, open space and latrine, etc. situated on Rajpura 2 Road, Civil
Lines, Ludhiana, on a monthly rent of Rs.30/- vide written rent deed
(Ex.-AW5/A]. On 12.11.1973, Khushi Ram had submitted application Form D-1 in the
office of the Civil Supply Officer for getting ration card to his family
members namely Smt. Lajwanti - wife, Tarsem Lal, Janak Raj, Harbans Lal, Kewal
Krishan- sons and Avinash Kumari - daughter-in-law who all were living together
in the demised premises on 01.04.1970, mother of the landlady suffered a
consent decree of the court in regard to the demised premises jointly passed in
favour of the landlady and her brother. Because of non- registration of the
said decree, ownership rights could not be transferred in the name of the
landlady and her brother.
2.2) On 14.03.1974,
the mother of the landlady preferred an application for ejectment of Tarsem
Lal-tenant on the ground of arrears of rent w.e.f April 1973 to May 1974, which
amount later on was tendered by the tenant in the court. Again on 01.10.1974,
the mother of the landlady had filed second application for ejectment of the
tenant for non-payment of rent from June 1974 to October 1974.
3 3) It was the case
of the landlady before the Rent Controller that the tenant did not tender the
arrears of rent as claimed.
The Rent Controller,
Ludhiana, passed an ejectment order against the tenant. On appeal, the First
Appellate Authority set aside the said order and held that since the landlady
and her brother had already become the landlords of the demised premises,
therefore, Tarsem Lal has to be held a tenant under them. The order of the
First Appellate Authority was upheld by the High Court of Punjab and Haryana on
11.04.1980. The special leave petition preferred against the order of the High
Court came to be dismissed by this Court.
4) On 22.05.1982, the
landlady had preferred an application under Section 13 of the East Punjab Urban
Rent Restriction Act, 1949 (hereinafter referred to as the "Rent
Act"] for the ejectment of Tarsem Lal-tenant, inter alia, on the following
grounds:- [a] That respondent no.1 was in arrears of rent w.e.f. June 1974
[b] That the
respondent no.1 had converted the demised premises into the residence of the
family of his married brother and sister, whereas it was rented out to him for
his personal residence.
4 [c] That the
landlady required the demised premises for her own personal use and occupation
and also for use and occupation of her aged mother.
It appears from the
record that later on by way of amendment, additional ground was also
incorporated in the ejectment application, which read as under:
[d] That the
respondent no. 1 without the written consent of the landlady had sub-let the
demised premises to Rakesh Kumar-respondent no. 2, who is employed in Punjab
Agricultural University as a messenger boy.
5] It was also the
case of the landlady before the Rent Controller that Rakesh Kumar on 30.08.1983
had given a declaration in writing to his Department that he is paying Rs.150/-
as monthly rent of the demised premises. Tarsem Lal the original tenant had
shifted his residence in two rooms located at the backside of his `Dhaba'
(Restaurant]. Before that, the father of Rakesh Kumar used to reside in the
demised premises and was drawing house rent from the Punjab Agricultural
University, where he was employed as Tube-well Operator, in regard to the
portion of the demised premises.
6) Tarsem Lal-tenant
and Rakesh Kumar-respondent no. 2 herein both appeared before the Rent Controller
on the date of 5 hearing of the application and tendered arrears of rent which
amount was accepted by the landlady. The claim of non- payment of rent,
therefore, has been rendered satisfied.
7) Tarsem Lal-tenant
filed written statement to the eviction application raising inter alia
preliminary objections: [i] there exists no relationship of landlady and tenant
between them, [ii] Rakesh Kumar was not a necessary party and has been wrongly
impleaded in the eviction proceedings, [iii] the eviction petition was bad for
partial ejectment, [iv] bad for non-joinder and mis-joinder of necessary
parties and [v] that the landlady could not take advantage of her own act and
conduct. He denied the averments of sub-letting of any portion of the demised
premises to Rakesh Kumar. He stated that Rakesh Kumar was residing as a tenant
in a portion of building bearing no. 1138/2 situated in village Rajpura, Tehsil
& District Ludhiana and before that, he used to reside with him as a
licensee being his sister's son. It was further asserted that since the
inception of tenancy, the mother of Rakesh Kumar had been residing with him in
the demised premises.
6 8) On merits, the
tenant denied the ownership rights of the property in dispute of Smt. Santosh
Kumari, mother of the landlady. He has also denied the averments that mother of
the landlady had let out three rooms and a verandah to him on a monthly rent of
Rs.30/- from July 1961. According to the tenant, he was in occupation of three
rooms, verandah, open space, one bathroom, one latrine and kitchen. It was
denied that any suit was filed by the landlady and her brother against their
mother Smt. Santosh Kumari for declaration, which was later on decreed. The
tenant, however, admitted that the mother of the landlady filed the ejectment
application against him, which was allowed by the Rent Controller. The First
Appellate Authority set side the order of eviction passed by the Rent
Controller which was upheld by the High Court. He denied the claim of the
landlady that she bona fide requires the demised premises for her personal use
and occupation alongwith her aged mother. He pleaded that the landlady is a
permanent resident of Chandigarh and she is in service of Punjab School
Education Board. It was also stated that the landlady has got other residential
buildings in Ludhiana town, 7 which are in the possession of her brother and
mother. He also submitted that Rakesh Kumar his sister's son was born in the
premises in dispute and he has not sub-let the demised premises to Rakesh
Kumar. He denied the averments of the landlady that the father of Rakesh Kumar
used to reside in the demised premises when he was an employee of Punjab
Agricultural University, Ludhiana. It was, however, admitted that Rakesh Kumar
is employed in Punjab Agricultural University, Ludhiana.
9) The landlady then
filed re-application controverting and contradicting the averments of the
written statement filed by the tenant and reiterating and re-ascertaining the
averments made in the application for eviction of the tenant. On the
controversial pleadings of the parties, the Rent Controller framed following
 Whether the
petitioner requires the demised premises bonafide for her own use and
 Whether the
demised premises are being used for the purpose other than for which these were
8  Whether
respondent no.1 without the written consent of petitioner, has sub-let the
demised premises in favour of respondent no. 2? OPA.
 Whether there
exists relationship of landlady and tenant between the petitioner and
respondent no. 1? OPA.
 Whether the
tender made is invalid? OPA.
 Whether the
findings of the Hon'ble High Court in Civil Revision No. 1096 of 1977 operate
as res judicata to the present petition OPR.
 Whether the
respondent is estopped from challenging the relationship in between petitioner
and respondent no. 1? OPA.
 Whether the
petition is not maintainable as alleged? OPR.
 Whether the
petition is bad for partial ejectment? OPR.
 Whether the
petitioner is estopped by her act and conduct to file the petition against
respondent no. 2? OPR.
 Whether the
petition is bad for non-joinder of necessary parties? OPR.
10) The parties went
to trial and led their evidence. On the main question of bona fide requirement
of the demised premises by the landlady for her own use and occupation, the
Rent 9 Controller, Ludhiana, had not found the evidence of the landlady
appearing as AW-1 and supported by the evidence of her mother- AW-5, reliable
and acceptable. Therefore, the first Issue was decided against the landlady and
in favour of the tenant. Issue Nos. 2, 3 and 5 were decided in favour of the
tenant and against the landlady. Finding against Issue No. 4 was recorded in
favour of the landlady and against the tenant.
Issue No. 6 was not
pressed by the tenant and therefore, it was decided in favour of the landlady
and against the tenant. In view of the findings on Issue Nos. 4 and 6, Issue
Nos. 7 and 8 were rendered as redundant. Issue No. 9 was not pressed by the
tenant and it was, accordingly, decided against him and in favour of the
landlady. The Rent Controller in view of the finding on issue no. 3 held Issue
No. 10 having become redundant. The tenant did not press Issue No. 11 and
therefore, it was decided against him and in favour of the landlady. The Rent
Controller, on the basis of the findings recorded on Issue Nos. 1 and 3,
dismissed the petition of the landlady for eviction of the tenant leaving the
parties to bear their own costs.
10 11) Being
aggrieved against the order of the Rent Controller dated 29.03.1995, the
landlady filed appeal before the Appellate Authority, Ludhiana. The Appellate
Authority by its order dated 06.02.1997 dismissed the appeal with costs and
thereby affirmed the order of the Rent Controller. In addition, counsel fee was
assessed at Rs. 1,000/-.
12) Feeling aggrieved
thereby, the landlady filed Revision Petition under Section 15  of the Rent
Act before the High Court. The learned Single Judge by order dated 23.04.1998
dismissed the said revision petition. The order of the High Court reads as
seeks eviction of the respondent on the ground that she bona fide requires the
property in question and the other ground pressed is that the tenant-respondent
no. 1 has sublet the property to respondent no. 2.
Both the Rent
Controller and the Appellate Authority have returned the findings adverse to
The findings of facts
by the courts are based on evidence. They cannot be described to be erroneous
and absurd to permit this court to interfere in the present Revision Petition.
In these circumstances, there is no ground to interfere. Revision Petition
fails and is dismissed."
13) Now, the landlady
has filed this appeal by special leave.
11 14) During the
pendency of this appeal, Tarsem Lal - tenant, who was a bachelor expired on
17.07.1999. I. A. No.1 of 2000 has been filed by Janak Raj, Kewal Krishan -
brothers and Satya Devi - sister of deceased Tarsem Lal, praying for bringing
them on record as legal representatives of the deceased.
15) We have heard the
landlady - appellant appearing in person and argued the appeal and Mr. M.N.
Krishnamani, learned Senior Advocate appearing on behalf of Rakesh Kumar-
respondent no. 2 herein. Primarily and mainly following two points have fallen
for consideration of this Court:
[i] Whether the
landlady-appellant has proved on record that she bona fide requires the demised
premises for her personal use and occupation? and [ii] Whether the deceased
Tarsem Lal - the tenant without the consent of the landlady had sub-let the
demised premises to Rakesh Kumar-respondent no.2.
16) We propose to
scrutinize the evidence independently led by the parties before the Rent
Controller, before we deal with rival contentions raised before us. This
exercise on our part becomes necessary to find out whether the authorities
below in exercise 12 of their statutory functions and jurisdiction have
appreciated the evidence properly and in right perspective or the vital
evidence led by the landlady in support of her case has been ignored which has
caused grave miscarriage of justice to her.
The above extracted
order of the High Court reveals that the Revision Petition of the landlady was
dismissed mainly on the ground that the Rent Controller as well as the
Appellate Authority both have rendered concurrent findings of facts;
interference was called for in the said orders of the authorities below. The
order of the High Court does not deal with the ground of challenge made by the
landlady in her revision petition and the contentions raised by the parties
before it, nor the order contains clear findings on the points in issue.
The High Court in
exercise of its revisional jurisdiction ought to have recorded its independent
findings on merits after considering all points raised by the parties before it
based on the assessment of the evidence by the authorities below.
POINT NO. 1 17] In
support of her claim of bona fide requirement of the demised premises, the
landlady in her deposition as AW-1 has 13 categorically stated that Tarsem Lal
- tenant had shifted his residence from the demised premises finally to a new
residence consisting of two rooms located at the back side of his `Dhaba'.
AW-5 the mother of
the landlady corroborated her testimony.
The Rent Controller
and the Appellate Authority rejected the claim of requirement of the premises
in dispute made by the landlady on flimsy and untangible ground holding that
the landlady was residing at Mohali the place of her posting as a teacher in
Education Board. It was the specific case of the landlady that she in fact was
residing at Mohali in one room because of her employment as a Government
Servant and occasionally she used to visit Ludhiana to look after her mother.
It was established by
the landlady that had she got the possession of the demised premises from the
tenant when he had shifted to his new residence located at the back side of the
`Dhaba', she could have immediately occupied the premises and started living
along with her old mother therein. It is her evidence that had she got the
vacant possession of the demised premises, she would have commuted from
Ludhiana to Chandigarh to attend her official duties as the distance between
14 these two places is neither far-off nor time consuming. The tenant could not
rebut and controvert the acceptable evidence of the landlady on any material
aspect. On the contrary, it finds stated in paragraph 10 of the order of the
Rent Controller that the tenant and his brothers who appeared as RW - 7 and RW
- 8 respectively, have admitted the said statement of AW landlady.
The Rent Controller
and the Appellate Authority rejected the claim of the landlady on the point of
bona fide requirement, on the other ground holding that the mother of the
landlady is the owner of one more house at Ludhiana, which was in occupation of
the brother of the mother of the landlady and the house could be shared by the
landlady and her mother. During the course of the hearing of this appeal, the
landlady has admitted before this Court that she has since retired from the
Government Service and presently she is residing with her sister at Chandigarh
and now she intends to reside in her own house at Ludhiana. It has been proved
by the landlady that her mother being an old woman has to be looked after by
her in her house at Ludhiana.
The evidence led by
the landlady clearly proves that Tarsem Lal, had stopped living in the demised
premises and as noticed 15 above he had shifted to his new residence located
at the back of his `Dhaba'. The landlady categorically stated in her statement
that a house owned by her parents located in Field Ganj, Ludhiana is unfit and
unsafe for habitation of landlady and her aged ailing mother. The house is in
dilapidated condition and there exist no open space, no sun light and air in
that part of the area as the house is located near railway line and daily smoke
and dust of running trains will be very harmful and injurious for the health of
her mother who is a chronic patient of Asthma and high blood pressure. It is
also proved on record that the landlady's mother's house situated at Shahpur is
in industrial area and is in possession of the tenants inducted by the maternal
uncle of the landlady. It is also proved on record that the Rent Controller,
Chandigarh has passed ejectment order in regard to one room on the first floor
of House No. 454, Sector 15-A, Chandigarh, which was occupied by the landlady
at the time of her employment in Government job at Mohali.
18] It is not in
dispute that Tarsem Lal - tenant was an unmarried man and during the pendency
of this appeal he has died. The landlady has pleaded and proved by leading
reliable, 16 positive and acceptable evidence that she is in urgent need of
the demised property for her bona fide use and occupation in terms of Section
13 (3)(a)(i)(a) of the Rent Act.
POINT NO.2 19] In
support of this point, the landlady has proved on record that Shri Satpal,
father of Rakesh Kumar-respondent had shifted in the demised premises along
with his family members about ten years after Chinese aggression in the year
1973-74 and then Shri Satpal got employment in Punjab Agricultural University
at Ludhiana as Tubewell Operator. The Rent Controller as well as the First
Appellate Authority have not properly appreciated the evidence of the landlady
and wrongly concluded that Rakesh Kumar - respondent became sub-lessee in the
year 1973 without appreciating and considering the fact that in the year 1973
Rakesh Kumar was a minor and could not execute agreement of tenancy. It was the
specific case of the landlady that Rakesh Kumar was inducted as sub-tenant by
Tarsem Lal in the year 1983 after Rakesh Kumar on the death of his father
Satpal got employment in Punjab Agricultural University, Ludhiana. It is proved
on record that Tarsem Lal 17 had parted with the possession of two rooms and verandah
of the demised premises to Rakesh Kumar - respondent for a consideration of Rs.
150/- per month as rent. The landlady has proved on record pro forma D-1
prescribed for the employees of Punjab Agricultural University, Ludhiana, for
drawal of the house rent allowance (Ex. AW/1a) which would prove that Rakesh
Kumar - respondent has been drawing a sum of Rs. 150/- per month as rent for
unfurnished accommodation of the demised premises. Application Form D-1 dated
12.11.1973 prescribed for distribution card of food grain and sugar submitted
by Khushi Ram father of Tarsem Lal was acknowledged on 29.07.1975 by a Clerk in
the Office of the Food Supply, Ludhiana. On bare perusal of Ex. AW-1/1 produced
on record by the landlady, it becomes crystal clear that Khushi Ram, his wife
Lajwanti, Tarsem Lal, Janak Raj, Kewal Krishna - sons and one Avinash Kumari -
daughter in law of Khushi Ram were living in the demised premises. Further
document - D1 would show that Rakesh Kumar - respondent was not residing with
his mother in the demised premises since the inception of the tenancy as held
by the Rent Controller in his order. The 18 Appellate Authority, in our view,
has failed to apply its independent mind and merely stamped the order of the
Rent Controller without giving independent reasons for upholding the said
order. The statement of Tarsem Lal that his sister and her son Rakesh Kumar -
respondent were living with him at the time of inception of the tenancy has
been wrongly relied upon by the Rent Controller which is contrary to the
documentary evidence Form D-1 attached with (Exhibit AW 1/1). The Rent
Controller and the Appellate Authority as well as the High Court have gravely
erred in not appreciating and considering the fact that payment of rent by a
sub-tenant to the tenant is always a secret arrangement between them and as
stated above, Rakesh Kumar - respondent has been receiving a sum of Rs. 150/-
per month as rent from his employer of the demised premises. The statement of
Smt. Satya Devi - RW 5, sister of Tarsem Lal that she was residing with her son
in the demised premises since 1961 has been wrongly accepted by authorities
below as her statement too is wholly contrary to the documentary evidence Form
D1 placed on record and proved by the landlady along with Ex. AW1/1. Satnam Rai
- RW 7, the Sub Inspector of Food 19 and Supplies Department has proved on
record Form Ex. RW 7/1, Certificate Exhibit RW 7/2, entries from register Ex.
RW 3, Exhibit RW 7/4 and ration card Exhibit R-8 which would prove that in the
year 1973, Tarsem Lal- tenant was residing in the demised premises along with
his father and brothers etc. whose names find mentioned in form D-1. Thus, the
documentary evidence on record, belies the oral version of Tarsem Lal and his
sister Satya Devi-RW 5 that Rakesh Kumar was residing in the house in dispute
along with her right from the day of his birth i.e. 27.11.1962 till the
application for eviction of the tenant was filed by landlady before the Rent
Controller in the year 1982.
20] In the backdrop
of the above stated evidence led by the landlady, the plea of the appellant
that Tarsem Lal had sublet the premises in dispute to Rakesh Kumar without her
written consent has been proved by her by leading reliable and convincing
evidence. In the facts and circumstances, Rakesh Kumar - respondent is held to
be liable to be evicted from the demised premises in terms of the provisions
contained in Section 13(2)(ii)(a) of the Rent Act. The Rent Controller as well
as the First Appellate Authority have failed to appreciate the evidence of the
landlady in right perspective. The High Court in exercise of its revisional
jurisdiction has power to satisfy itself as to whether the question of
subletting which is a question of law was properly decided by the courts below
based on the evidence, but the order shows that the High Court has legally
failed to exercise its revisional jurisdiction in dismissing the revision
petition of the landlady without assigning independent reasons and also not
taking into consideration the perversity and infirmity of the order of the Rent
Controller as confirmed by the Appellate Authority based upon misreading and
mis- appreciation of the evidence on record. This Court in exercise of its
jurisdiction in this appeal will not be over-reaching its power in appreciating
the evidence on record to find out whether the order of the authorities below
as confirmed by the High Court are perverse not based upon proper and
legitimate appreciation of the evidence on record led by the landlady which orders
have caused miscarriage of justice to the landlady.
21] The contention of
Mr. M.N. Krishnamani, learned senior counsel appearing for Rakesh Kumar -
respondent that this Court shall not be obliged to interfere with the
concurrent 21 findings of fact arrived at by the three courts below cannot be
accepted for the aforesaid reasons.
22] In the result,
this appeal deserves and it is, accordingly, allowed. The order of the Rent
Controller, Ludhiana, dated 24.03.1995 passed in RA No. 71 and order of the Appellate
Authority, in Rent Appeal No. 2/21-4/1995 dated 6.2.1997 as well as the
unreasoned order of the High Court dated 23.4.1998 passed in Civil Revision No.
4062/1997 are all quashed and set aside. As a consequence thereof, the
application for eviction of Rakesh Kumar - respondent, son of Satpal filed by
the land lady - appellant under Section 13 of the Rent Act is accordingly,
allowed on the grounds available to her under Section 13(3)(a)(i) (a) and
Section 13(2)(ii)(a) of the Rent Act.
23] The landlady,
therefore, is held entitled for eviction of Rakesh Kumar - respondent from the
suit premises. Rakesh Kumar and/or any other person claiming any right, title
or interest in the demised premises are directed to hand over the vacant
possession of the premises in dispute to Ms. Shashi Jain, the landlady on or
before 31st May, 2009. In default thereof, Rakesh Kumar - respondent shall pay
a sum of Rs. 500/- per 22 day as mesne profits for unauthorized use and
occupation of the demised premises after the stipulated day of 31st May, 2009
till the day the vacant possession is not handed over to the landlady.
24] Rakesh Kumar -
respondent shall also pay costs of Rs. 5000/- to the landlady.
I. A. No. 1 of 2000
25] In view of the final disposal of the appeal on merits, no order is required
to be passed on this application seeking substitution of the legal
representatives of Tarsem Lal - deceased.
(Lokeshwar Singh Panta)
(B. Sudershan Reddy)
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