Allowed

Suresh Chander v. Prem Nath etc.

Punjab & Haryana HC7 Jan 2013CR/2279/1990

Case brief

AI extract

What is this about?

A single judge allowed a landlord's revision petition, restoring an eviction order dismissed by the Appellate Court. The court held that the appellate court erred in relying on the landlord's contradictory ex parte statement to overturn a full trial finding that established subletting.

What did the court decide?

The order reversing the Rent Controller's judgment of ejectment is set aside, and the order of ejectment is restored.

Suresh Chander Vs Prem Nath etc. — Landlord and Tenant | Punjab & Haryana HC (2013)

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C.R. No.2279 of 1990

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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C.R. No.2279 of 1990 Date of Decision.07.01.2013

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Suresh Chander Khurana son of Giani Jugal Dass

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.....Petitioner

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Versus

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Prem son of Shri Ganesh Dass and another

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.......Respondents

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Present: Mr. S.C. Sibbal, Senior Advocate with Mr. V.S. Rana, Advocate for the petitioner.

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Mr. A.P. Bhandari, Advocate for the respondents.

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CORAM:HON'BLE MR. JUSTICE K. KANNAN

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Whether Reporters of local papers may be allowed to see the judgment ? No

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To be referred to the Reporters or not ? No

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Whether the judgment should be reported in the Digest? No

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K. KANNAN J.(ORAL)

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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

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C.R. No.2279 of 1990

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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.

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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. The shop had been closed some time in the year 1985, which was used by the 1^st respondent for running a cloth business and it was being run only by the 2^nd respondent by setting up a watch repair business. The fact that the 2^nd respondent was in possession of property and that he was carrying on a different business was also admitted but it was sought to be explained by the tenant that he had merely associated with his younger brother-2^nd respondent and that the property was not exclusively in the hands of the 2^nd respondent to constitute a case of subletting.

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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

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C.R. No.2279 of 1990

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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. If the property was retained by the tenant and he had merely associated with his brother as member of the joint family then it is inexplicable as to how the tender of rent came to be made only on younger brother. If the case was one of association of the business in the hands of yet another person by the tenant and that he lost his exclusive possession, , the responsibility to pay the rent must have also subsisted only to him. It was an admitted case that there had been arrears of rent and a tender made earlier was not at the instance of 1^st respondent but only at the instance of the 2^nd respondent. The landlord had a case to contend that for an encroachment, which was made to the shop on the road, Teh

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C.R. No.2279 of 1990

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Bazari was collected only from the 1^st respondent and not from the 2^nd respondent. At least it was not taken from both the persons. If the 1^st respondent had retained the control of the premises exclusively and that he had not lost any portion of the property in favour of the 2^nd respondent then it cannot still explain as to how the rent was not being paid by the tenant himself.

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The case would, therefore, require to be only seen from a minimal context of how the landlord was explaining the contradiction in his own statement. The Appellate Court was reversing the judgment of the trial Court only on a singular consideration that there had been a version by him in Court on 19.10.1988 that both the respondents were his tenants. If the petition was filed on an express ground of subletting and an ex parte evidence is taken and the Court had also ordered eviction initially and later set aside on the application, the statement given by him cannot be taken as fully established when he had resiled from the same and subjected himself to cross examination. It was not as if the petitioner had admitted both the respondents to be his tenants in the cross-examination. It was a case of chief examination at an ex parte stage and if the landlord himself has stated that he has made a mistake, it should only be appreciated as such, for at the ex parte stage one could hardly be expected to be staking against his own pleadings. At that stage there was hardly anything to a party to establish in the absence of cross-examination and as a matter of routine and practice, the matter in evidence which are not subject to the cross-examination are brought out in the chief and if the statement was explained by the landlord himself to be wrong and was subjecting himself to cross-

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examination, the statement in chief at the ex parte stage ought not to have been allowed to prevail.

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The reversal of the judgment of Rent Controller only on previous statement made by the landlord at an ex parte stage was literally undermining the effect of a full-fledged trial. If the case were to be merely taken as concluded by version of party at the ex parte stage, there was not even a scope for allowing for parties to join issues on all aspects for a full-fledged trial. The Appellate Authority was literally closing its eyes to the whole wealth of evidence that showed exclusivity of the possession of the 2^nd respondent and the 1^st respondent having literally abdicated his own right to 2^nd respondent without the concurrence of the landlord. If the tenant was merely associating himself with another member of the family and allowed his younger brother to carry on the business, nothing would have stopped him from apprising the landlord about change in business and the character of yet another person as a joint family member at the appropriate time before the petition was filed by the landlord seeking for ejectment.

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The order of ejectment, which was passed by the Rent Controller is restored and the order reversing the judgment is set aside. It appears that the landlord had already secured possession of property after ex parte order of eviction was passed and secured back possession of the property. Under such circumstances, there is not even any need for making provision for time for eviction. The revision petition is allowed on the above terms.

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(K. KANNAN) JUDGE

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January 07, 2013 Pankaj*

Suresh Chander v. Prem Nath etc.

Case brief

What is this about?

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Suresh Chander v. Prem Nath etc.

Case brief

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