Mehtab Singh Gill vs Punjab State Coop. Fruit Dev. ...
2006 Latest Caselaw 323 Del

JUDGMENT

R.S. Sodhi, J.

1. Civil Revision Petition No. 288/2004 is directed against the judgment and order of the Additional Rent Control Tribunal, Delhi in RCA No.1/2001 whereby the learned Tribunal vide judgment dated 28.02.2004 has reversed on appeal the order dated 30.10.1999 passed by the Rent Controller, Chandigarh.

2. Nobody appears for the respondent. Brief facts of the case as have been set down by the Tribunal are as follows:-

2. The facts giving rise to the present appeal are that the respondent preferred a petition for eviction against the appellant under Section 18 of the Rent Restriction Act (as extension to Urban areas of Chandigarh) for ejectment of the respondent from IIIrd floor of S.C.O.No.15, Sector 17E, Chandigarh on the ground that (a) non payment of rent, (b) misuse of the premises and ? bonafide requirement. During the pendency of the proceedings ground of non-payment of rent and bonafide requirement was not pressed. The relevant cause of action for purposes of present appeal as pleaded in the petition is as follows:

That the appellants have changed the user of the premises as the premises were let out specifically for setting up the office of Corporation, but now the Corporation is using the premises as Guest/Rest House for its men and authorities. Owing to these acts and conduct of the appellant, Chandigarh Administration can initiate proceedings under the Capital of Punjab (Development and Regulation) Act also and in that eventuality the proprietory rights of the respondent can be put to jeopardy.

3. The aforesaid cause of action was contested by the appellants by pleading as follows:

The fact is denied being based on wrong facts to harass the appellant. It is further denied that the appellants have changed the user of the premises as alleged. The premises were taken for the office of the appellant and since his inception of tenancy till date the office of the appellant is functioning in the demised premises. It is specifically and emphatically denied that the premises are being used for Guest /Rest House as has been alleged. The ground of change of user has been taken with the malafide just to justify the petition on false grounds.

4. The appellant has also challenged the right of the respondent to prefer the petition. The appellant had also denied that the respondent is co-owner of the appellant.

5. The parties led the evidence on the aforesaid pleadings and also the other grounds which were pleaded. The court of the Rent Controller Chandigarh after considering the evidence on record has passed the impugned order.

3. The only question that is argued before me is regarding change of user. It is contended by counsel for the petitioner that the appellate court has completely misdirected itself and has unnecessarily read into evidence what is not there, as also discarded evidence on grounds not available in law.

4. I have heard counsel for the petitioner and have carefully gone through the order under challenge. It appears to me that issue no.2 was decided by the Additional Rent Controller as follows:-

Issue No.2.

8. Ejectment petition has been filed by the petitioner regarding the demised premises on the ground of non payment of rent, personal necessity and change of user. During the course of arguments, the ld. Counsel for the petitioner has argued that at the time, the petitioner appeared intot he witness box as PW1, he has already given up the ground of non-payment of rent. The ground of personal necessity has further been given up by the petitioner at the time, the petitioner joined the services in the Hon'ble High Court and now only the ground of change of user is available with the petitioner for ejectment of the respondents from the demised premises.

9. It has been argued on behalf of the petitioner that earlier, the demised premises was rented out to the respondents for office use only but now the respondents have started using the demised premises as Guest House without prior permission and consent of the petitioner, and due to this reason, the respondents are liable to be ejected from the demised premises as SCO cannot be used for residential purposes. In case, the building is resumed by the Chandigarh Administration, for the reason it is being used as guest house, the petitioner would be put to large disadvantage. PW1 has specifically deposed that Sh.Balbir Singh S/o Sh.Jiwa Singh is residing in the demised premises, which is being run as guest house by the respondents. In this regard, the petitioner has proved on file affidavit E.P1, which is dated 26.4.1997. On the other hand, the respondents have denied the change of user in the demised premises and in this regard, a number of witnesses have been examined by the respondents. All the respondents witnesses have deposed that there is no guest house in the demised premises and the demised premises is being used for office use only. However, at the time of cross-examination of PW-1, suggestion was put to the petitioner that :it is incorrect to suggest that the respondents are running the guest house in the demised premises from the very beginning. In view of the cross-examination of PW1 and the evidence of the respondents on file, contradictory pleas have been taken by the respondents. As, on one hand, the respondents witnesses are deposing that there is no guest house on the demised premises as alleged by the petitioner, and at the same time, the ld.counsel for the respondents is putting suggestion to PW1 that guest house is in fact being run by the respondents from the very beginning. In view of the contradictory plea taken by the respondents, the deposition of respondents witnesses becomes doubtful. In view of the documents Ex.P1, it stands proved on file that one Sh.Balbir Singh is residing in the demised premises and affidavit Ex.P1 was executed by the said Balbir Singh, from his residence at the demised premises. Although, it is argued by the ld. Counsel for the respondents, that residence of Balbir Singh is wrongly marked in the said affidavit, whereas it is the office of sardar Balbir Singh, but the respondent has not made any effort to rectify this mistake committed on the part of said Balbir Singh. As the demised premises is the SCO and as per rules, it cannot be used for residential purposes, hence in view of these circumstances, it stands proved on file that the respondents have changed the user of the demised premises and have started running the guest house in the demised premises. Accordingly issue no.2 is being decided in favor of the petitioner with the observation that the respondents are liable to be evicted from the demised premises on the ground of change of user.?

5. The Tribunal, on the other hand, has reversed the finding on the ground, firstly, that the question put by the advocate in cross-examination could not be taken into consideration as the same was beyond instructions. This to my mind can hardly be a valid ground for not considering the evidence on record. If a particular answer has come on record the same is required to be considered. The value afforded to such answer will depend on its nature. Evidence cannot be discarded on a fimsy ground that counsel had no instruction. The right to cross-examine is inherent in vakalatnama.

6. The appellate court has also held that tenant has been able to prove that Balbir Singh is resident of Patiala. This also is neither here nor there. It is not the case of the landlord that Balbir Singh is resident of Chandigarh. On the contrary, the case is that Balbir Singh is staying in the premises in question which was being used as a guest house of the Corporation as was proved from the affidavit, Exhibit P-1, dated 26.04.1997. The appellate court has discarded the affidavit on the ground that the advocate who drafted the affidavit has admitted her mistake. An admission cannot be retracted in this manner, however, in the evidence of Krishna Sharma, Advocate, it is disclosed that this witness has not read the affidavit. This is also apparent from the evidence of Balbir Singh. Merely because the petitioner is a Judge of High Court is no ground to accept the explanation for filing an affidavit which she now claims is a mistake. A Judge of the High Court cannot be sacrificed at the alter of hypocracy. The learned appellate court while upsetting the judgment of the trial court has gone wrong in appreciating the evidence perversely.

7. In that view of the matter, the order of the Tribunal is set aside and that of the Additional Rent Controller, which to my mind, is well reasoned and suffers from no infirmity is restored.

8. The Revision Petition is allowed and disposed of.