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1982 Supreme(P&H) 178
PUNJAB & HARYANA HIGH COURT
J.V.Gupta, J.
Santosh Kumar
Versus
Pawan Kumar
Civil Revision No. 2498 of 1980,
Decided On : MAY 18, 1982
The onus of proof is on the landlord to prove that the tenant has sublet the premises or changed the user of the premises.
Headnote:
EAST PUNJAB URBAN RENT RESTRICTION ACT, 1949 - SECTION 13(3)(a)(ii) - SUBLETTING - CHANGE OF USER - INTERPRETATION - FACTUAL FINDINGS - REVISION - SCOPE OF INTERFERENCE - PARTNERSHIP - OCCUPATION OF PREMISES - ONUS OF PROOF.
Fact of the Case:
The tenant-petitioner challenged the order of the Appellate Authority, which set aside the order of the Rent Controller dismissing the ejectment application and passed an eviction order against him. The grounds for eviction included subletting, change of user, and other allegations.
Finding of the Court:
The High Court found that the Appellate Authority's findings on subletting and change of user were illegal and improper. It held that the tenant was in occupation of the premises and had not sublet them, and that there was no evidence to prove a change of user.
Issues: 1. Whether the tenant had sublet the premises to another person. 2. Whether there was a change of user of the premises by the tenant.
Ratio Decidendi: 1. On the issue of subletting, the High Court held that the onus of proof was on the landlord to prove that the tenant had parted with the possession of the premises. It found that the tenant was in occupation of the premises and had not sublet them to another person. The Court relied on the fact that the tenant was present at the premises and carried on the business there, and that the alleged sub-tenant had a separate business in a different location. 2. On the issue of change of user, the High Court held that there was no evidence to prove that the premises were let out for a specific purpose and that the tenant had changed that purpose. It found that the tenant had been using the premises for various businesses over time, and that there was no evidence to suggest that this was a breach of the lease agreement.
Final Decision: The High Court allowed the revision petition, set aside the order of the Appellate Authority, and restored the order of the Rent Controller dismissing the ejectment application.
1. The tenant-petitioner has filed this revision petition against the order of the Appellate Authority whereby the order of the Rent Controller, dismissing the ejectment application was set aside and the order of eviction was passed against him.
2. The premises, in dispute, are a shop bearing No. C-675, situated at the G.T. Road, Karnal. Prior to the partition of the country, the father of tenant, Banarsi Dass, was occupying the premises, in question, as a tenant under the original owner who was an evacuee. Later on, these were allotted to one Dalip Singh son of Amar Singh, who subsequently sold the same vide sale deed dated April 28, 1972, in favour of the landlords-respondents. The ejectment of the tenant was sought from the demised premises on the following grounds :
1. that the tenant had made material alterations in the premises without their consent;
2. that the tenant did not pay or tender the arrears of rent due from him since April 1, 1972;
3. that there were cracks in the walls and the building was beyond repairs and was in a condition that it endangered human life and property:
4. that the tenant was of a quarrelsome nature and his acts and conduct were nuisance to the neighbours and the occupants of the buildings in the neighbourhood:
5. that the tenant had sublet the premise to one Ishwar Dass Goel and otherwise had transferred his rights and interest under the lease to him and he had started his business in the shop under the name and style of Amarpali Gift Palace; and
6. that the tenant changed the user of the shop, in dispute, inasmuch as the same was let out for carrying on the shoe business only which he was carrying on therein under the name and style of Friends Boot House, but had now started dealing in watches etc. The application for ejectment was filed on October 27, 1975.
All the allegations made therein were controverted by the tenant and on the pleadings of the parties, the Rent Controller framed the following issues :
1. Whether the respondent is liable to be ejected for non-payment of rent (insufficient tender)?
2. What is the agreed rate of rent?
3. Whether respondent No. 1 has made material alterations in the premises which have materially impaired the value and utility of the premises, in dispute?
4. Whether the premises are unfit and unsafe for human habitation ?
5. Whether respondent No. 1 is a nuisance?
6. Whether respondent No. 1 has sublet or transferred his right to respondent No. 2?
7. Whether there has been change of user? If so, to what effect?
8. Whether respondent No. 2 is a partner of respondent No. 1?
9. Whether notice under Section 106, T.P. Act, is invalid ?
10.Relief.
Under issues Nos. 1 and 2, it was found by the Rent Controller that the rate of rent was Rs. 20.62 and not Rs. 100.00 per month, as claimed by the landlords. It was, therefore, held that the tender of arrears of rent was valid. Issues Nos. 3, 4, 5 and 6 were found against the landlords and as a result, the ejectment application was dismissed. In appeal, the appellate authority affirmed the findings of the Rent Controller under issues Nos. 1 and 2 and held that there was no substance in the contention of the landlords that the rate of rent was Rs. 100.00 per month. The findings of the Rent Controller on issues Nos. 3. 4 and 5 were also affirmed by it. Under issue No. 6, it found that the plea of subletting and the transfer of the lease rights by the tenant in favour of Ishwar Dass Goel was proved and, therefore, the finding of the Rent Controller on this issue was reversed. The finding of the Rent Controller under issue No. 7 was also reversed by the Appellate Authority and it was held that the shop, in dispute, was let out to the tenant for carrying on the business of shoes only whereas he was now dealing in watches and electric goods under the name and style of Amarpali Gift Palace. In view of the findings under issue No. 6, the findings on issue No. 8 were also reversed. As a result of these findings, the o
