Non-consumption of electricity and other evidence can raise a presumption of non-occupancy, and it is the tenant's burden to rebut such presumption.

JUDGMENT :

Dev Darshan Sud, J.

This is the landlord's petition against the order of the learned appellate authority allowing the appeal preferred by the respondent-tenant against the judgment of the learned Rent Controller ordering the ejectment of the respondent herein on the ground that he had ceased to occupy the suit premises for a continuous period of twelve months preceding the date of the ejectment order. It is undisputed that the petitioner is the landlord of the demised premises. He instituted petition for ejectment of the respondent on the ground of arrears of rent and he has ceased to occupy the premises for a period of 12 months continuously before the institution of the eviction petition. The respondent died during the Pendency of the revision and his legal heirs were substituted by the order of this Court dated 17.8.2007.

2. The learned Rent Controller on the settled issues out of which two of the issues were crucial, namely, as to whether the tenant was in arrears of rent and if so to what extent and as to whether the tenant has ceased to occupy the premises, held on the first issue that the respondent had not paid rent at Rs. 40/- per month w.e.f. 1.12.1987. The Court held:

13. If it is presumed that the rent has been paid up to 1.11.1996, this rent has not been paid to the petitioner by the respondent. No any receipt of such rent paid has been filed by the respondent in the Court. Therefore, I am of the considered view that the respondent has not paid the arrears of rent at the rate of Rs. 40/- per month to the petitioner w.e.f. 1.12.1987. So far as the rent is concerned, it is not disputed by the respondent that the rent is Rs. 40/- per month. Therefore, this issue is decided in favour of the petitioner and against the respondent.

3. Adverting to the second issue, the learned Rent Controller took into consideration the evidence on the record to the effect that there is no electricity consumed by the respondent for the period in question. Ext. PW 2/B proved on record electric meter No. BRD-266-D installed in the demised premises and that since 1994 to 7.1.1995, the meter was found locked inside the premises. Voter list Ext. PW 2/A of Sidhowal Lodge shows that the name of the tenant was not mentioned therein. PW 4 Krishan Kumar, Inspector Food and Civil Supplies, stated that no ration card was issued from his office. PW 5 Rupender Singh, Election Kanungo, Shimla stated that the name of the respondent or his son Mohinder Pal did not figure in the voters list in the year 1995, according to the survey conducted in 1994.

4. Adverting to the evidence of PW 6A Sukh Dev Chand, Inspector, Food and Civil Supplies, Malpur, District Hoshiarpur stated that the ration card had been issued at Hoshiarpur only after certification by the sarpanch and this ration card revealed a continuous drawal of ration since 1988, PW 1 Krishan Lal, an official from Election Office Hoshiarpur, who proved that the name of Kashmiri Lal and his family members was entered in the voters list at Hoshiarpur, the learned Rent Controller concluded on a conjoint reading of this evidence that the respondent deceased Kashmiri Lal did not occupy the demised premises.

5. The tenant appealed and the learned appellate authority by its judgment dated 13th March, 2000 accepted the petition and dismissed the petition filed by the landlord.

6. The learned appellate authority on consideration of this evidence holds that the officials evidence was indicative of the proof that the tenant was residing at Lusada, District Hoshiarpur and is also registered as voter but did not by itself proved that he has ceased to occupy the demised premises. The learned Court held that it was the landlord's own evidence that the premises remained un-locked only from October 1994 to February, 1995. The learned appellate authority then considers the evidence of RW 5 Mohinder Pal, son of the tenant, who stated that he had been living in the premises with his father since 1972. He stated that