SAIN DASS Vs. LACHHMAN DAS

JUDGEMENT

(1.) This revision petition seeks to challenge the decision of the appellate Authority Jullundur, dated February, 18, 1976., which Authority partly allowed the appeal of the respondent-tenant to the extent that he was ordered to be evicted from the chobara, but was allowed to remain in possession of the shop underneath the same. It may be mentioned that the landlord petitioner filed a petition under Section 13 of the East Punjab Urban rent Restriction Act, for the eviction of the respondents on various grounds, namely, non-payment of the rent, subletting of the premises by respondent No.1 to respondent No.2 the respondents having materially impaired the value and utility of the demised premises, the premises being unsafe and unfit for human habitation and the ground of personal necessity by the landlord. So far as respondent No.2 is concerned, he merely filed a written statement before the Rent Controller and thereafter he did not appear, and was proceeded against ex parte. The eviction application was, however, contested by respondent No.1. The Rent Controller after appraising the evidence of the parties, found that the ground of nonpayment of rent was not available as the arrears of rent had been deposited on the first date of hearing. The grounds of sub-tenancy, the premises being unsafe and unfit for human habitation and personal necessity of the landlord were found in favour of the latter. The ground of material impairment of the premises in dispute was found not to have been proved. The tenant-respondent preferred an appeal and the Appellate Authority upheld the finding of the Rent Controller on the grounds of subletting and personal necessity of the landlords but he reversed the finding in regard to the building being unsafe and unfit for human habitation. In spite of the above finding the learned appellate Authority ordered the eviction of the tenant only from the chobara portion of the demised premises which was found to be residential and the prayer for eviction from the shop portion was not allowed. The present Revision Petition seeks to impugn the aforesaid decision of the Appellate Authority.

(2.) At the time of hearing of this Revision Petition it was found that the respondents who had been served earlier and to whom intimation was sent about the hearing of the Revision Petition have not chosen to appear or arranged for representation on their behalf. The Revision Petition has, therefore, been heard against them ex parte.

(3.) As already observed, the sole ground on which the eviction of the tenant from the shop portion of the demised premises was refused by the Appellate Authority, is that the said authority split up the tenancy into two parts by holding the same to be divisible merely by reference to certain receipts for the payment of rent which were, in fact, produced by the landlord himself. These receipts had to be produced to support the case of the landlord that the chobara part of the premises had been sublet by the tenant to respondent No.2. It is pertinent to note here that all through the conduct of the case before the Rent Controller, the tenant had at no time, raised the question that the tenancy was divisible. In fact, there is an observation of the Rent Controller in the opening sentence of his order that it is common ground between the parties that respondent No.1 was tenant of the petitioner on a monthly rental of Rs.20/ for the premises in dispute. The petitioner in his objection application had specifically made this allegation in Paras 1 and 2 of the ejectment petition and the same was not controverted with the objection that there was a separate tenancy in regard to the two parts of the building namely, the Chobara and the shop. On the other hand, the tenant took up the stand that the whole of the building was being used by him for his business purposes. Naturally, in view of the pleadings of the parties there was not even an issue framed on the question whether the tenancy was divisible or not, and I fail to see how the Appellate Authority could make out a new case for the parties which was neither in their pleadings nor even was it urged by the tenant in the Grounds of Appeal before the Appellate authority. It is interesting to note that the appellate Authority during the course of its judgment observed as follows:-