Punjab-Haryana High Court
Pratishth Mandir Murti Thakur ... vs Yad Ram And Ors on 11 September, 2023
2023:PHHC:117881
CR No.5423 of 2015 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5423 of 2015 (O&M)
Reserved on: August 31, 2023
Date of Pronouncement: September 11, 2023
Pratishth Mandir Murti Thakur Shyama Balaji (Trust) .........Petitioner
Vs.
Yad Ram & Others ..........Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:- Mr. Amit Jain, Sr. Advocate with
Mr. Anupam Mathur, Advocate,
for the petitioner-landlord.
Mr. M.R. Sharma, Advocate,
for respondents-tenants.
*******
HARKESH MANUJA, J
CM-17196-CII-2015
This is an application seeking condonation of delay of 70
days in re-filing the revision petition.
For the reasons mentioned in the application, which is
supported by an affidavit, sufficient cause has been shown for
condoning the delay in refiling, thus, the same is allowed and delay of
70 days in re-filing the revision petition is condoned.
CM-17195-CII-2015
This is an application seeking condonation of delay of 23
days in filing the revision petition.
For the reasons mentioned in the application, which is
supported by an affidavit, sufficient cause has been shown for
condoning the delay on account of bonafide inadvertence, thus, the
SANJAY GUPTA
2023.09.12 09:18
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CR No.5423 of 2015 (O&M)
same is allowed and delay of 23 days in filing the revision petition is
condoned.
MAIN CASE:
1. By way of present revision petition challenge has been
made to an order dated 27.11.2014 passed by the Appellate
Authority, Faridabad, affirming the order dated 26.07.2013, passed by
the learned Rent Controller, Faridabad, whereby, eviction petition
filed at the instance of the petitioner-landlord pertaining to shop No.25
has been dismissed.
2. Briefly stated, petitioner filed an ejectment petition inter-
alia pleading that it is a Trust duly registered with the Sub Registrar,
Delhi and owns Shop No.25 situated at Surdas Market, Civil Hospital
Road, Ballabgarh; respondent No.1 took the said shop on rent from
the petitioner Trust on payment of monthly rent of Rs.230/- excluding
house tax and other charges and in an earlier petition filed under
Section 13 of the Act, the rent was agreed to be Rs.750/- per month.
The petitioner Trust sought eviction of respondent No.1 on the ground
that he was a chronic defaulter in payment of rent and had not paid
rent from 01.06.2006 till August, 2010 i.e. for 50 months and had
even sub-let the shop to respondents No.2 and 3 in an illegal and
unauthorized manner. It was also pleaded that respondent No.1 had
divided the shop into two portions by installing two different shutters
and the sublettees had changed user of commercial shop into a
residential premises.
3. In reply, it was submitted by the respondents that the
demised shop was taken on rent from the petitioner by respondent
SANJAY GUPTA
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CR No.5423 of 2015 (O&M)
No.1. In case titled as "PMMT versus Yad Ram" Case No.80/
30.5.2006/09 decided on 24.11.2009, the rent of the demised shop
was fixed @ of Rs. 750/- per month w.e.f. 24.11.2009 and in a
subsequent compromise effected between the parties in the said
petition, respondent No.1 had already deposited rent for the period
01.09.2007 to 30.04.2008 and was ready to deposit the remaining
amount in the Court. It was also submitted that respondent No.1
neither divided the demised shop into two portions; nor sublet the
same to respondents No.2 and 3. It was again submitted that the
demised shop was being used only for the commercial purpose and
not for residential purpose as alleged by the petitioner, thus, there
was no change of user by the respondents.
4. Vide order dated 26.07.2013 passed by Rent Controller,
ejectment petition filed by the petitioner was dismissed on all the
three grounds i.e. default in payment of rent, subletting and change
of user. Aggrieved therefrom, an appeal was filed by the petitioner-
landlord, but learned Appellate Authority, Faridabad, vide impugned
order dated 27.11.2014 dismissed the same while affirming the order
dated 26.07.2013 passed by the Rent Controller .
5. Impugning the aforementioned judgments, learned
counsel for the petitioner, at the outset, makes it clear that he does
not intend to press the contention regarding default in payment of
rent, however, with respect to subletting, he submits that it has been
the case of petitioner since beginning that respondent No.1 has
divided the shop into two portions by installing two different shutters
and while one portion is being used by his elder son for residential
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CR No.5423 of 2015 (O&M)
purpose, whereas in another portion, other son is running the shop
independently. Placing reliance upon "Mohri Ram (D) LRs. Ramji
Dass v. Shivshankar Lal (D) LRs. Kamla Rani", reported as 2006
(2) RCR (Rent) 281, learned Senior counsel contends that it is settled
proposition of law that subletting cannot be proved by bringing on
record the positive/direct evidence as it is a secret contract between
the tenant and sub-tenant. He further submits that in the present
case, when there is admission by respondent No. 1 that his son has
been helping him in his business, he was required to show that his
son is not working independently; but no evidence has been brought
on record in this regard. Learned counsel after drawing attention of
this Court towards the fact that in the statement of respondent No.1
(PW-7), it has also come-forth that both of his sons are having their
own family and living separately. He has also placed reliance upon
judgment of this Court in "Sher Singh v. Chandu Lal", reported as
2003 (1) RCR Rent 440 (P&H) to bolster its case.
5 (i) With respect to change of user, learned Senior counsel
submits that while appearing as RW-4 in another case, it was also
admitted by respondent No.1 that family of his elder son lived there,
but he tried to dilute this fact by stating that they lived there for
around 10 days i.e. for a short duration. He concludes his argument
by submitting that again, nothing was brought on record that their
residence was for a limited duration only and it was just a bare
statement which was believed by the Appellate Authority as well as
the Rent Controller without any substantiation.
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6. On the other hand, learned counsel for the respondents
submits that the orders passed by Appellate Authority as well as Rent
Controller are well reasoned after properly appreciating the evidence
and thus, no interference is warranted, as neither the plea of sub-
letting; nor even of change of user was established by way of
evidence.
7. I have heard learned counsel for the parties and gone
through the paper-book as well as the records of the case. I find
substance in the arguments made by the learned counsel for the
petitioner.
8. There is no dispute regarding the position of law that
subletting being a secret arrangement between the tenant and the
sub-tenant, once the landlord, through any means, is prima facie
able to show that tenant has parted with possession, the onus of
proof with respect to the nature of possession shifts upon the tenant.
It is for the tenant to show that in what capacity the person alleged to
be sub-tenant, is in possession and in the absence of any evidence,
explaining the nature of possession, sub-letting would be presumed.
In "Lajwanti and anr. v. Daulat Ram", reported as 1990(1) RCR 45,
in similar circumstances, it was observed by this Court that though
the burden of proof with respect to sub-letting continues to be on the
landlord, however, the burden is very light and in particular facts and
circumstances of a case, may stand discharged by a statement on
oath by the landlord alone and when the onus shifts, tenant is
required to explain the nature of possession of the person other than
the tenant.
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CR No.5423 of 2015 (O&M)
9. If we apply the above discussed ratio in the present case,
it could be seen that it has been categorically averred in the rent
petition that sons of respondent No.1 are in exclusive possession of
the demised shop and for a valuable consideration. In that context, it
becomes imperative to peruse the following part of the cross-
examination of respondent No.1/ tenant, while appearing as PW-7:
"This is correct that I sit in my shop. You can see me
sitting in the morning. We do fabrication and office work in
shop number 25. I do fabrication on job work and I also
provide bills of job work to the parties. This is correct that in
my response and affidavit, I have not attached the copy of
any bills. .... This is incorrect that another son sits on the
shop independently. Self stated he helps me...."
10. In view of the admission of the respondent No.1-tenant
that his son supports him in his work and he sits at the shop only in
the morning, it became obligatory for him to bring on record material
evidence so as to show that his son is merely supporting him in the
joint business and not working and earning independently. It is
relevant to note here that in Sher Singh's case (supra) relied upon by
the learned Senior counsel for the petitioner, it was found fatal for
case of respondent No.1/tenant that no account books were
produced on file to prove that respondent No.1 and his sons
constitute a joint Hindu family and they were maintaining a joint
account. Relevant portion from para 17 thereof, is reproduced
hereunder:-
"It has been observed by this Court in Smt. Sita Devi
v. Chaman Lal and Anr., 1984(2) Rent Control Reporter
635 that where the tenant's father was running the shop in
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the premises and the tenant had failed to prove that
business of father was joint with him, then the only
inference is that it is subletting. In the present case, it is
otherwise. The demised premises were let out to the father
i.e. the petitioner and at present his son, Shiv Kumar, is
running a shop in the demised premises and the petitioner
has failed to prove that his business is joint with his son
and the only infererence is that the petitioner has sublet the
same to his son, It has been observed by the Hon'ble Apex
Court in Bharat Sales Ltd v. Life Insurance Corporation of
India, A.I.R. 1988 S.C. 1240 that sub-letting cannot be
proved by direct evidence and court can draw inference
upon the facts proved at the trial including the delivery of
possession to infer that the premises were sublet. The
authority Sumitra Singh v. Nahar Singh, 1984(1) R.C.R.
633 cited by learned counsel for the petitioner to contend
that the petitioner had allowed his son to help him in
business but of love and affection and had not sublet the
demised premises, is not applicable to the facts of the
present case because in the present case, the petitioner
had abandoned his possession and handed over the same
to his son. Similarly, the authority Lajwanti and another v.
Daulat Ram, (1990-2)98 P.L.R. 426 is not applicable to the
facts of the present case. In the said case, the tenant had
allowed his son in law to live with him in a separate portion
and he was having separate ration card. It was inferred that
there was no subletting because it was normally in the era
of shortage of accommodation, the in-laws allowed their
daughter and son in-law to stay with them. In similar
circumstances, this Court in Lal Singh v. Ashok Kumar,
(2000-1)124 P.L.R. 44 held that there was sub-letting as
the son had sublet the premises to his father and father
was doing business independently and it was not proved
that the business was joint. In the present case also, no
account books have been produced on file to prove that the
petitioner and his sons constitute a joint Hindu family and
they were maintaining a joint account. On the other hand, it
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CR No.5423 of 2015 (O&M)
is in evidence that they were not handing over their income
to their father. Hence, I hold that it is conclusively proved
on file that the petitioner had sublet the demised premises
to his son, Shiv Kumar, respondent No.2, who is running
business of preparation of tea etc. at present and the
petitioner is not in possession of the same."
11. On the contrary, in present case, there is no averment in
the written statement to the effect that it is joint business in which his
sons only support him without any valuable consideration and their
families are dependant on his father. Despite admission that he
issues bills to his clients, no bill has been produced on record to show
that in whose name business is running presently. In that
circumstance obligation was on respondent No.1-teant to bring
appropriate evidence on record which he failed, thereby, giving
credence to the unrebutted presumption that he has sublet the shop
to his sons. Therefore, this petition is required to be allowed on the
ground of subletting of shop. Reference in this regard can also be
made to a decision made by Hon'ble Supreme Court in the case of
"Kailash Chander Vs. Om Parkash", reported as (2003) 12 SCC
728. Relevant portion therefrom is reproduced hereunder:-
"...We must also keep in mind that when the
appellant established the fact that respondent No.2.
was carrying on his activities as UTI agent in the part
of the premises exclusively by him, it was for the
respondent to establish that his possession on that
premises was not as a sub-tenant. Merely because
respondent No.1 is the father of respondent No.2,
there cannot be any justification to say that it was a
not a case of sub-letting."
SANJAY GUPTA
2023.09.12 09:18
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CR No.5423 of 2015 (O&M)
12. Regarding contention of "change of user" also, I find
substance in the submission made by the learned Senior counsel for
the petitioner. Though, in the written statement there is categorical
denial that any portion of the shop has been used for residential
purposes by his elder son, but while appearing as RW-4 in another
case titled as "PMMT vs. Harswaroop", he admitted that family of his
elder son was living there from last 10 days. Relevant part of his
statement as RW-4 in that previous case which has been proved in
the ejectment petition as Ex.P7, is as below:
"...This is incorrect that I have divided my shop in two
parts and in one part my elder son lives with his wife. Self
stated his house is being repaired so he is living there from
last 10 days. It is incorrect that I have given one partition to
my elder son...." (emphasis supplied)
Above fact was again admitted by him in the present case
as well, when statement recorded in the previous case was put to
him. It would be required to have a look at the following part of his
statement in the present case while appearing as PW-7:-
"...this is correct that I appeared as a witness in
PMMT versus Harswaroop. This is correct that the house
of my son was being built and so his wife came for 2-3
days in the morning and evening for cooking the food,
after that she never lived there. ...."
Though, it has been admitted by respondent No.1 that
part of this shop was used by his elder son for residential purposes;
but further explained by stating that family of his son lived there only
for a temporary period when his house was being built. It is apparent
that it was not possible for the petitioner to prove the same by
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CR No.5423 of 2015 (O&M)
bringing on record any positive evidence in this regard. However, on
account of admission of respondent No.1 that there was change of
user with respect to the demised shop, even though for a short
duration, onus shifted upon respondent No.1 to show that residence
of his son was relocated only for a temporary period and after that,
family of elder son of respondent No.1 ceased to reside there. But on
this aspect also, neither any documentary evidence has been brought
on record to show that the present residence of his elder son is at a
place different from the shop; nor any other family member of
respondent No.1 has appeared as a witness to support this fact. On
this ground as well, evidence are lacking from the respondents' side
and therefore, on this count also, petition is liable to be allowed.
13. Therefore, in view of the discussion held above, there are
sufficient grounds to interfere with the impugned orders passed by
the Authorities below, the same having been passed ignoring the
material evidence available on record and accordingly, present
revision petition filed by the petitioner-landlord is allowed and
respondent(s)-tenant(s) are directed to vacate the demised shop
within a period of three months from today.
14. Pending application(s), if any, shall stand(s) disposed of.
September 11, 2023 (HARKESH MANUJA)
sanjay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable Yes/No
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