SIRI RAM GUPTA Vs. JUGAL KISHORE AND OTHERS

JUDGEMENT

(1.) The respondent-landlord sought the ejectment of the petitioner-tenant on three grounds-(i) personal necessity, (ii) change of user of the demised premises from residential to commercial and (iii) the tenant had ceased to occupy the building for a period of about four months without sufficient reason; but succeeded on the last ground only. The main reason which weighed with the appellate authority for ordering this ejectment, as per paragraph 3 of his judgment is that during the period from August 1971 to February 1972, the meter installed in the premises did not disclose any consumption of electricity and, therefore, this was a sufficient indication that during this period, the premises were not in use or occupation of the tenant- petitioner. For this conclusion of his, he mainly depended on the statement of A.W. 6 Bhagwan Dass Meter Reader who had deposed that as per the record of the Electricity Board, the premises had been shown as locked from March 1972 to December, 1972. As per this record, the meter reading in January, 1971 was 419 units in March, 1971 it was 420, in July, 1971 it stood at 422, in February, 1972 it was sticking at 422 and in February, 1973 it was 439. From this evidence the learned lower appellate Court concluded that as the meter did not show any appreciative consumption, the premises in question remained locked and out of use.

(2.) The primary submission of the learned counsel for the petitioner now is that this meter reading on which the lower appellate authority has chosen to rely for recording a finding that the premises in question were not in occupation of the petitioner for more than four months, cannot possibly lead to the conclusion which has been recorded by the said authority. According to the learned counsel, the evidence of A.W.-6, Bhagwan Dass at the most only establishes non-consumption of electricity and this non-consumption may be on account of various reasons, such as, the meter being out of order, Meter Reader not going to the spot, etc , and this evidence, according to the learned counsel cannot lead to this conclusion that the premises were not in occupation. I see merit in this submission of the learned counsel. In fact in two earlier judgments of this Court in Banarsi Dass v. Surinder Kumar,1975 CSN 259 and Karam Chand Joshi v. Kartar Singh and others, 1977 1 RCR(Rent) 327, a similar view has been taken. Further I find from the reading of the judgment of the lower court that while drawing the above noted inference on the basis of the non-consumption of the electricity, the appellate authority has sought to treat the demised premises as a house and not as commercial property. This is just contrary to the case pleaded by the respondent-landlord and the conclusion recorded by the authority on the second ground of ejectment as stated above. The case of the respondent- landlord all through was that though the premises in question were a residential house, yet it had been converted into commercial building and the petitioner had been using it as a store only. The appellate authority has recorded a categorical finding that there is no such change of user as is alleged by the respondent-landlord. Thus if the premises in question were being used as a store and not as a house as has been inferred by the appellate authority then the mere non-consumption of electricity obviously cannot lead to any such conclusion that the premises were not in occupation of the petitioner for more than four months. The finding being wholly unsustainable on the basis of the evidence on record and patently being based on wrong inferences drawn from the facts established on record, deserves to be set aside.

(3.) For the reasons recorded above, this petition succeeds and the order of the appellate authority is set aside. The necessary consequence is that the ejectment application filed by the respondent-landlord fails and is dismissed. I pass no order as to costs.