SURESH CHANDER KHURANA Vs. PREM

JUDGEMENT

(1.) The landlord is in revision before this Court challenging the dismissal of the petition for eviction that was rendered through the judgment of the Appellate Court. The Appellate Court was reversing the judgment of the Rent Controller, which had ordered eviction. The landlord had three grounds to seek for eviction namely; (i) non-payment of rent, (ii) subletting and (iii) change of user. The argument was advanced before me by the learned Senior Counsel appearing on behalf of the landlord only as regards the plea of alleged subletting made by the tenant. The Appellate Court was reversing the judgment of the Rent Controller essentially on the ground that the landlord had, while giving ex parte evidence on 19.10.1988, stated that the property had been rented out to both the respondents No.1 and 2. After the ex parte order was set aside and the matter went for trial, he has stated that there had been only a case of subletting and the 1 st respondent was the only tenant. The Court found that an earlier statement given by him at the ex parte stage was a significant contradiction and it discarded the explanation given by the landlord that it was a clear mistake and that his stated case was only that the tenancy has been in favour of the 1 st respondent and that the premises had been sublet in favour of 2 nd respondent.

(2.) Learned Senior Counsel appearing on behalf of the petitioner points out that the evidence was to the effect that the property had been let out to the 1 st respondent only in the year 1975 and the same was also admitted by the 1 st respondent in his evidence.

(3.) The following facts in my view could be relevant to consider whether there has been a case of subletting as contended by the landlord or not. Initially the property was admittedly let out only in favour of the 1 st respondent in the year 1975. The manner of user of the property was only for the purpose of establishing a cloth business. It is an admitted case that the cloth business had been closed. It is also an admitted case that the business in watch repair is being now run by the 2 nd respondent. If the business of a person other than the original tenant is an admitted fact, the onus will be on the tenant to explain as to how yet another person came in possession of the property along with him. RW2, who was an inspector of the Post and Telegraph Department, had given evidence to the effect that the licence had been applied for radio by the 2 nd respondent as proprietor in 1979. The rent itself was tendered only by the 2 nd respondent, which was refused by the landlord as not constituting a valid tender. Learned counsel appearing on behalf of the respondents would support the finding of the lower Appellate Court by pointing out that the 2 nd respondent was after all the brother of the tenant and the voter's list filed would show that they were members of the joint family. The counsel would, therefore, state that after the cloth business of the 1 st respondent had been stopped, both the brothers were jointly associated in the business of running a watch repair shop.