LAWS(P&H)-2004-9-70

MANOHAR SINGH Vs. RATTAN KAUR

Decided On September 10, 2004
MANOHAR SINGH Appellant
V/S
RATTAN KAUR Respondents

JUDGEMENT

(1.) THIS is tenant's petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') challenging concurrent findings of facts recorded by both the Courts below holding that the tenant-petitioner is liable to be ejected from the demised shop on the ground that he has parted with exclusive possession of a portion of the demised shop to the sub-tenant without the consent of the landlady- respondent. The other grounds regarding non-payment of rent and material impairment in the value and utility of the demised shop do not survive for consideration as the findings recorded on those issues against the landlady- respondent have not been challenged.

(2.) UNDER Section 13(2)(ii) of the Act, a specific provision has been made that if a tenant sublet the entire building or any portion thereof without the written consent of the landlord, then, the Rent Controller is competent to direct the tenant to put the landlord in possession of the demised building. Landlady-respondent Smt. Rattan Kaur sought the ejectment of tenant- petitioner, Manohar Singh (now represented by his LRs) from the demised premises inter alia on the ground of subletting. The Rent Controller placed reliance on the statement made by Balwant Singh, PW-1, Gurnam Singh, PW-2, Lakhvinder Singh, PW-3 and Shiv Dayal, PW-4 as well as the photographs Marks C and D to record the finding that on one portion of the shop, another rolling shutter has been fixed and a sub-tenant who is a cycle repairer is running a cycle repair shop under the name and style of M/s. Popular Cycle Store. It has also been found that the cycle repairer himself used to open and close that portion of the shop which has been separated by a partition in the building. There are two shutters placed on the building and the shop behind the small shutter has been let out to the cycle repairer after effecting partition. The Rent Controller also relied upon the statement of Dr. Joginder Mohan, RW-2 admitting that there were two shutters of the shop and that the wife and daughter of the tenant-petitioner could be seen in photographs C and D. The aforementioned fact has also been accepted by Manohar Singh, who appeared as RW-4. He also stated that the name of the sub-lessee was Roshan. It is not the case of the tenant-petitioner ever that he ever started the cycle repair shop. On the basis of the aforementioned evidence the Rent Controller concluded that a sub-tenant is proved to be in exclusive possession of a portion of the demised premises and the burden to explain the possession of IIIrd party is on the tenant-petitioner. No explanation having been tendered, the Rent Controller had ordered eviction of the tenant-petitioner vide his Order dated 21.11.1984.

(3.) MR . Kanwaljit Singh, learned counsel for the tenant-petitioner has argued that in the absence of any proof of photographs marked C and D, either by producing the negatives or the photographer, the same could not be relied upon as has been done by both the Courts below. Referring to the contention of the tenant-petitioner before the Appellate Authority in paragraphs 8 and 9 of its judgment coupled with the plea raised by him in para 3(iii) of the written statement, the learned counsel has argued that no subletting has been proved in law or fact. In support of his submissions, the learned counsel has placed reliance on a judgment of the Bombay High Court in the case of Laxmi Ganpati Khot and others v. Anusuyabai and another, AIR 1976 Bombay 264. He has pointed that this Court in exercise of revisional jurisdiction under Section 15(5) of the Act could interfere in the findings of facts if such findings are perverse or not possible to be accepted on the basis of the material placed on record. For the aforementioned proposition, the learned counsel has relied upon two judgments of this Court in the cases of Walaiti Ram and another v. Harbans Lal (Died) through his Lrs., 2003(2) RCR(Rent) 188 (P&H) : 2003(3) PLR 323 and Manmohan Sharma v. Smt. Swaran Kaur and another, 2003(1) RCR(Rent) 227 (P&H) : 2003(1) PLR 300. The learned counsel has also cited a judgment of the Supreme Court in the case of Resham Singh v. Raghbir Singh, 1999(2) RCR(Rent) 216 (SC) : (1999)7 SCC 263 and submitted that the question of subletting is a question of law and this Court has ample power under Section 15(5) of the Act to satisfy itself about the legality and propriety of the orders passed by the Courts below.