SARAFAT HUSSAIN Vs. HAMIDUL ZAFAR KHAN AND ANR.

JUDGEMENT

(1.) This is a tenant's second appeal from the decree of the Civil Judge Moradabad for his ejectment. The appellant Sarafat Hussain was tenant of a shop of which the respondent Hamidul Zafar Khan was the owner and landlord. The latter filed a suit for the appellant's ejection on two grounds - namely (1) he had sub-let the shop to his uncle Ishtiaq Husain (the second defendant in the suit) and (2) had obtained an electric connection and thereby caused substantial damage to the accommodation. The trial court held that there had been no subletting and no substantial damage had been caused by the electric connection and dismissed the suit. On appeal the learned Civil Judge reversed both these findings and held that the appellant had sub-let the shop to his uncle (the second defendant) without the permission of the landlord and further that the electric connection must have caused substantial damage to the accommodation. He allowed the appeal and decreed the suit for ejectment of the defendant who has come to this Court in second appeal.

(2.) I have heard learned counsel for the appellant and the respondent at some length. Two arguments were raised in support of this appeal. First, the learned Civil judge had presumed without any evidence that the laying of electricity must necessarily cause substantial damage to the accommodation, and this erroneous presumption vitiates his finding. I am inclined to agree. The learned Judge has observed.

(3.) If these were the only points would have allowed the appeal, but fortunately for the defendant learned Judge has held that he was guilty of sub-letting the accommodation to his uncle and second defendant. Counsel for the appellant argued that this is a finding which no reasonable person can support on the evidence on record. He pointed out that the plaintiff himself had admitted and that court has conceded that the only evidence of sub-letting was the fact that the appellant had obtained the electric connection in the name of his uncle. Learned counsel argued vehemently that this fact of itself could not reasonably lead to the inference that the premises had been sub-let to the person in whose name electric connection had been obtained. I cannot agree. The appellant was the tenant of the accommodation and yet he obtained an electric connection in the name of a relation who had no connection either with his business or the accommodation. It is not suggested that the uncle is joint in business with the appellant; on the contrary the uncle himself stated before the trial court that he had a business of his own. Ordinarily a person will not obtain an electric connection for his accommodation in the name of another person, and if he does the suspicious will naturally arise that this was done for some unusual reason. It is true that the uncle tried to explain that he had signed the application form for the electric connection to save himself from the botheration of going to the appellant's shop and obtaining his signature, and also stated that many of his other relations had obtained electric connections in his name, but this explanation was disbelieved by the appellate court. No question of law arises in second appeal when the oral testimony of a witnesses or any part of it is rejected by the lower appellate court on the ground that it cannot be believed. It was admitted by learned counsel for the appellant that no documentary evidence of other electric connections having been obtained in the name of the uncle was produced. According to the practise prevailing with the electricity companies a connection is obtained on a written application and there is an agreement between the customer and the electric supply company on the prescribed form. The appellant could have produced copies of such agreement but did not. In these circumstances, it was within the discretion of the lower appellate court to disbelieve the appellant's explanation for obtaining an electric connection in the name of another person and infer that person had obtained the connection because the shop had been sub-let to him. The inference may be weak and alternative inferences may have been available to the court, but the fact that it preferred one to all the rest raises no question of law. The appeal is dismissed with costs. Appeal dismissed.