HARI CHAND Vs. BANWARI LAL AND OTHERS

JUDGEMENT

(1.) This revision was ordered to be heard along with R.S.A. No. 1946 of 1978 (Moteshwar Dayal v. Om Parkash), which was referred to a larger Bench to determine the vires of Section 2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973. The challenge to the vires has been negatived by us today in the detailed judgment passed in the said appeal. The counsel for the parties then addressed arguments on merits.

(2.) The ejectment of the deceased-tenant has been ordered in this case on the ground of nuisance. The allegations made in the ejectment petition in this regard were that only one room and covered verandah in front of the premises in dispute were let out to the tenant and the three rooms in the back, remained in possession of the landlord. He was entitled to use the said rooms for the purposes of godown or could let them out for that purpose to any one. The tenant expressly stipulated that he will not obstruct the landlord in the use of those rooms. As the tenant failed to honour his obligation and usually kept front portion locked for 10 or 15 days in a month, it was pleaded that the tenant has obstructed the landlord from the use of the said rooms and thus caused nuisance to him. At the trial, evidence was also led to do show that the landlord approached the tenant to allow him to store his goods in those rooms, but the latter did not allow his to do so whereupon the landlord had to hire another premises to store his stocks. The rent controller as well as the appellate authority relying on the oral evidence held that the tenant had obstructed the landlord from the use of three rooms in this possession and thereby caused nuisance to him. Though the finding recorded is a pure finding of fact and ordinarily binding on us in revision, but we find that the landlord withheld all relevant documentary evidence and the authorities below completely failed to take notice of this circumstance. Admittedly, the landlords is running the business of a commission agent and must be maintaining regular accounts. No evidence, whatsoever was led to show that as to what was the extent of the stocks at the time when the landlord approached the tenant for the use of the rooms in the back of the demised premises. No doubt, oral evidence has been led to show that another premises were hired to store the stocks but that evidence again suffers from the same infirmity. The best evidence thus having been withheld a presumption would arise that the same, if produced, would have gone against the landlord. The oral evidence; it is well-known, can be easily procured and unless it is corroborated by circumstances or is otherwise of an unimpeachable character, it is not safe to rely upon it to determine the disputed questions affecting the vital rights of the parties. Moreover, it was very essential to establish first the existence of the stocks at the time when the landlord approached the tenant to have access to the three rooms to store them. The existence of the stock could be satisfactorily proved only from the account books and the stock registers. No attempt having been made to establish the existence of the stocks by producing any such evidence, the case set up by the landlord that the tenant did not allow him to store them in the three back rooms could not have been reasonably accepted. The finding recorded by the authorities below in this regard, consequently, is reversed.

(3.) The learned counsel for the respondent then sought to support the order of ejectment on the ground that the finding of the rent controller on sub-letting was erroneously reversed by the appellate authority. We do not find any merit in his contention. No doubt, in the affidavit, exhibit P.W. 8/A, the son of the tenant had claimed himself to be the sole proprietor of the firm M/s Darbari Lal Harish Chander, which is carrying on the business in the demised premises, but that fact alone would not be sufficient to prove that the father had sub-let his tenancy rights to the son. It has been established on record that the father was working at the shop with his son which shows that the father had not completely surrendered or put the son in exclusive possession of the premises in dispute. Their close relationship coupled with the fact that the father is also working at the shop, negatives the presumption of sub-letting and at worst, it can be termed a case of a licence. We therefore find no reason to interfere with the finding recorded by the appellate authority on the question of sub-letting.