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1993 Supreme(P&H) 826
PUNJAB & HARYANA HIGH COURT
H.S.Bedi, J.
Ram Dhan Sharma
Versus
Bishan Sarup Mittal
Civil Revision No. 2613 of 1980,
Decided On : OCTOBER 4, 1993
The interpretation of subletting, material impairment, and change of user in the context of tenancy laws requires a careful examination of the evidence and a consideration of the broader concepts of partnership, departmental stores, and the changing nature of shop usage.
Headnote:
TENANCY - SUBLETTING - MATERIAL IMPAIRMENT - CHANGE OF USER - PARTNERSHIP - INTERPRETATION OF LEASE AGREEMENT - RENT CONTROL ACT - HARYANA URBAN (CONTROL OF RENT AND EVICTION) ACT, 1973 - SECTIONS 13, 14 - MEANING OF SUBLETTING, MATERIAL IMPAIRMENT, AND CHANGE OF USER - CREATION OF PARTNERSHIP AS A DEFENSE AGAINST SUBLETTING ALLEGATIONS - CONSIDERATION OF EVIDENCE TO PROVE PARTNERSHIP DESPITE ABSENCE OF SPECIFIC PLEA IN WRITTEN STATEMENT - ONUS OF PROOF ON LANDLORD TO PROVE SUBLETTING - REQUIREMENT OF EXCLUSIVE POSSESSION AND VALUABLE CONSIDERATION - INSUFFICIENT EVIDENCE TO ESTABLISH SUBLETTING - CONSTRUCTION OF PARTITION WALL - ASSESSMENT OF MATERIAL IMPAIRMENT - REMOVABLE OR INSIGNIFICANT CONSTRUCTION - CHANGE OF USER FROM PANWARI TO LIQUOR VEND - INTERPRETATION OF LEASE AGREEMENT - CONCEPT OF DEPARTMENTAL STORES - NO CHANGE OF USER.
Fact of the Case:
The petitioner, a tenant, challenged the concurrent findings of the Rent Controller and the appellate authority allowing the ejectment application filed by the respondent-landlord under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. The grounds for ejectment included subletting, material impairment of the demised premises, and change of user.
Finding of the Court:
The court found that the evidence did not support the findings of the lower courts. It held that there was no subletting as the petitioner had created a partnership with another individual for the purpose of retail sale of liquor, which was accepted by the Income-tax and Sales Tax authorities. The court also found that the construction of a partition wall did not amount to material impairment as it was insignificant and had been built long before the respondent became the owner of the property. Lastly, the court held that there was no change of user from Panwari to liquor vend as the concept of departmental stores allows for a broader interpretation of the use of a shop.
Issues: 1. Whether the petitioner had sublet the demised premises to another individual. 2. Whether the construction of a partition wall amounted to material impairment of the demised premises. 3. Whether there was a change of user from Panwari to liquor vend.
Ratio Decidendi: 1. Subletting requires proof of exclusive possession and valuable consideration. The evidence showed that the petitioner had created a partnership with another individual for the purpose of retail sale of liquor, which was accepted by the Income-tax and Sales Tax authorities. This negated the allegation of subletting. 2. Material impairment requires a substantial construction that affects the value and utility of the demised premises. The partition wall in question was insignificant and had been built long before the respondent became the owner of the property. Therefore, it did not amount to material impairment. 3. The concept of departmental stores allows for a broader interpretation of the use of a shop. The change from Panwari to liquor vend did not amount to a change of user as it fell within the ambit of general merchandise.
Final Decision: The court allowed the petition, set aside the orders of the Rent Controller and the appellate authority, and dismissed the ejectment application.
Harjit Singh Bedi, J.
1. This is a tenants revision petition against the concurrent findings recorded by the Rent Controller as well as by the appellate authority allowing the ejectment application filed under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. The brief facts of the case are given hereunder:
The petitioner, Ram Dhan Sharma, was in occupation as a tenant of a demised shop from a period prior to 1947. The said shop was purchased by Sh. Bishan Sarup Mittal, respondent No. l, about four years earlier to the filing of the ejectment application in he year 1975. This application was filed pleading that the petitioner had sublet the premises in dispute to one Narain Datt Sharma after partitioning the shop into two portions; thereby also materially impairing its value and utility and also that the petitioner had changed the user of the premises by starting a business for liquor along with the sub-tenant Narain Datt Sharma. Certain other grounds for ejectment were raised but as they do not survive, no reference need be made to them.
2. In the written statement filed on behalf of the tenant petitioner in addition to certain formal objections taken against the maintainability of the ejectment application, the averments made on the question of sub-letting, change of user and material impairment of the premises were denied. The issues which arose for determination were accordingly framed by the Rent Controller who ordered the ejectment of the tenant on the grounds mentioned in para No. 3(a) (c) and (d) of the ejectment application. The matter was taken in appeal and the findings of the Rent Controller were affirmed and the appeal dismissed.
3. Mr. M.L. Sarin, Sr. Advocate and Mr. Hemant Sarin, learned counsel for the petitioner-tenant, have argued that the findings of the Counts below on the question of subletting, material impairment of the demised premises by the construction of a partition wall and the change of user from Panwari business to liquor vend are the only issues which are now required to be agitated here.
4. Mr. R.S. Mittal, learned counsel for respondent No. l, has however supported the findings of the courts below and has urged that this court would not sitting in revision reappraise the evidence and record findings of fact contrary to the ones recorded by the courts below. For this assertion, he has relied on a decision of the Supreme Court reported as Rukmini Amma Saradamma v. Kallyani Sulochana , 1993 (1) R.L.R. 1 (S.C). I have considered this argument of Mr. Mittal and find that reappraisal of the evidence should not invariably be made but this court can examine the propriety of the orders made, if circumstances warrant, but I am of the opinion that the findings of fact that have been recorded are in fact contrary to the evidence adduced by the parties and could not have been taken on that evidence. I, therefore, proceed to examine this case on merits.
5. The first matter that has been taken up by Mr.Sarin is with regard to the subletting of the demised premises. In this connection, he has pointed out that from the evidence adduced in the case it was clear that it was not a case of subletting in favour of Narain Datt Sharma, but, in fact, was the creation of a partnership between the petitioner, Smt. Roshni Devi and Narain Datt Sharma for the purpose of retail sale of liquor under the L-2 Liquor Licence, as evidenced by Exhibit RW1/1 which is a partnership deed dated 20th June 1975. He has pointed out that this partnership was accepted by the Income-tax Department as would be clear by the orders Exhibits RW1/3 to RW1/8 pertaining to the income Tax assessment of the partnership aforementioned arising out of the statement of accounts Ex.RWl/10,RWl/ll and RW1/12. It has been highlighted that the said accounts had also been accepted by the Assessing Authorities under the Sales Tax Act, a copy of the assessment order being Ex.RWl/14. Mr Mittal, learned counsel for respondent No.
