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CHETAN DASS versus HARBANS SINGH

High Court of Punjab and Haryana, Chandigarh

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Chetan Dass v. Harbans Singh - CR-3670-2006 [2006] RD-P&H 3888 (10 July 2006)

C.R.No.3670 of 2006 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.3670 of 2006

Date of Decision: 13-7- 2006

Chetan Dass ........Petitioner

v.

Harbans Singh .........Respondent

CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.V.K.Jain, Sr. Advocate with

Ms.Divya Sharma, Advocate

for the petitioner.

***

P.S.PATWALIA, J.

In the present revision petition challenge is to the orders made by the learned Rent Controller, Patiala and the Appellate Authority, Patiala vide which a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 filed by the respondent-landlord was allowed and the petitioner's appeal against the same was rejected by the Appellate Authority.

The petition had been filed on the ground that the petitioner-tenant who had taken a part of the residential house situated in the Main Bazar, Gurbax Colony, Patiala for the purposes of running a Dhaba had ceased to occupy the demised shop without reasonable cause prior to the filing of the petition. On receipt of the notice, the petitioner-tenant denied the allegations but stated that he along with his sons Sham Lal and Jasbir Pal were running a Dhaba and cycle repair shop in the demised premises. He denied that he had ceased to occupy the tenanted premises.

C.R.No.3670 of 2006 [2]

The petitioner-tenant in his statement recorded before the Rent Controller, however, admitted that Dhaba business was not being run for the last four years in the shop in question. This was for the reason that his son Jasbir Pal who was working with him was ill and suffering from paralysis. He, however, stated that now it was his son Sham Lal who was working in the shop in question for cycle repairs. He stated that the shop remained open.

Before the Rent Controller, Ms.Rita Goel, Advocate was appointed as a Local Commissioner who went and examined the shop at the site.

After considering the pleadings, the evidence and arguments of the parties, the learned Rent Controller recorded the following findings:- "10. I find merit, in the argument advanced by Ld. Counsel for the petitioner. RW-1 Sham Lal, son of the respondent has conceded that demised shop was taken on rent, by his father, for running a `Dhaba', and he has closed that business, about 3 years ago. He has also conceded that respondent, has removed his utensils and other articles, which were used by him, for running `Dhaba', whereas RW-2 Chetan Dass, respondent has also conceded that he is not running `Dhaba', in the demised shop, for last four years. He has also conceded that he is not doing any business, and not even visiting the demised shop.

Similar admissions have been made by RW-3 Satish Kumar, who, as asserted by him, used to visit the demised shop, for taking food, before respondent closed his business. In view of these admissions and assertions, made by the respondent and witnesses, examined by him, discrepancies in the statements of petitioner and his witnesses, regarding period, for which demised shop is lying closed, are not of much significance. As stated above, AW-4 Miss Rita Goel, who has inspected the demised shop, on being appointed, Local Commissioner, by the Court, has submitted in his report, that she C.R.No.3670 of 2006 [3]

only found a wooden Almirah, and three cycles and some of their parts, at the time of her visit. She has admitted that RW-1 Sham Lal, son of the respondent opened the demised shop, on her arrival, but she has asserted that he came to the demised shop, on her arrival, from a nearby shop, which is in his occupation. She has also conceded that there was no specific direction from the court, for her, to take photographs of the demised shop. This admission made by her, is of no consequence, because she was directed, by the Court, to report, after visiting the demised shop, as to if the same is lying closed or not. As such, she was supposed to substantiate her report, with some evidence. Therefore, she cannot be said to have exceeded her brief. AW-5 Sanjiv Kumar has conceded that M/s Neetu Colour Lab., where he is working as Photographer, is run by son-in-law of Harbans Singh, petitioner. He has also conceded that bill book is maintained by his lab. And that no bills have been issued, for the photographs, taken by him. There is no reasons to suspect the genuineness of the photographs because respondent himself, has tendered the same photographs, in evidence.

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The plea of the respondent is that he is unable to run his profession, in the demised shop, because of ailment of his younger son, Jasbir Pal, who earlier used to assist him, in running his business, of repair of cycles, in the demised shop. AW-2 Dukhbhanjan Singh has conceded, that Jasbir Pal, son of the respondent, is a victim of paralysis. RW-1 Sham Lal, has conceded that his mother is alive and that his brother Jasbir Pal is married, whose wife is younger to him.

As such, plea of the respondent, that he is unable to run his business, C.R.No.3670 of 2006 [4]

in the demised shop, due to sickness of his son, does not sound well, to the logic. RW-1 has conceded that respondent is hale and hearty, whereas respondent himself conceded, that is is not doing any business for last 4 years. As such, it cannot be accepted that respondent has not formed intention, to abandon the tenancy right, qua the demised premises. He has conceded that this son Sham La, is in possession of another shop, in the same locality, where he is running the business of repair of cycles. RW-1 Sham Lal, son of the respondent, has also conceded that he has taken a shop on rent, and has purchased another shop, in the same vicinity, where he is running his business of repair of cycles. It is not the case of the respondent, that his son is running business, of repair of cycles, in the same locality, in different premises, with the help of his other sons and employees. As such, the son of respondent, namely, Sham Lal, cannot be said to be running the same profession, in the same locality, in different premises, including the demised shop. The respondent has not examined any person, who might have got repaired the cycle, from his son, in the demised shop. As per the report of Local Commissioner and other evidence, produced by the petitioners, it is established that the demised shop is lying locked, for a period of more than four months, prior to filing of ejectment petition. Therefore, the plea taken by the respondent, that his son is running the profession of repairing the cycles, in the demised shop, cannot be accepted, solely because some cycles, spare parts and other articles were stored therein, by him, or by his son." On this basis the Rent Controller concluded that the respondent- landlord was successful in establishing that the petitioner-tenant had ceased to occupy the premises and ordered his eviction.

C.R.No.3670 of 2006 [5]

In appeal, the aforesaid findings were confirmed by the Appellate Authority. The observations of the Appellate Authority are as hereunder:- "18. In clear admission Sham Lal S/o Chetan Das tenant stated in the witness box that Dhaba business had been closed for the last three years by his father. So the findings of the Local Commissioner and absence of the articles of Dhaba goes to show that the tenant must have ceased to occupy and explanation of Chetan Dass AW2 that Sham Lal is working in the shop in question for Cycle repair is afterthought. As he himself also admitted that Dhaba Business is not being run from the last four years and Bhati is lying dismantled and his son Sham Lal has taken on rent a shop in the Bazaar where this shop is situated and Chetan Dass admitted that he is not running any shop or work and he is not in possession of any bill or voucher. So all the circumstances go to show coupled with the admission of Satish Kumar RW3 that Dhaba business is not being run in the shop in question from the last 4 years. So findings on issue No.1 and 2 recorded hostile to the tenant are not required to be reopened." Mr.V.K.Jain, learned senior counsel appearing for the petitioner- tenant contended that in fact the Rent Controller as also the Appellate Authority have misread the report of the Local Commissioner. He contended that the report rather supported the case of the petitioner-tenant that his son was doing cycle repair work in the said shop. I have again perused the report of the Local Commissioner and also the statement of the Local Commissioner recorded before the Rent Controller. A reading of the statement would show that in fact the Local Commissioner stated on being recalled for cross-examination that it was only at the time of her inspection that the shop was opened. She, however, goes on to say that she could not state as to for how many months the shop was lying closed. She, however, recorded the statements of two neighbours, namely, Gurbachan Singh, C.R.No.3670 of 2006 [6]

proprietor of Sonu Fruit Juice and Yogesh Kumar, Proprietor of Pehalwan Sweet Shop who stated that the shop in question was lying closed for the last 8 months and only today the shop was opened. A reading of the report and the statement of the Local Commissioner to my mind leaves no doubt that the shop had been lying closed for a considerable long time and the findings of the Courts below on the basis of the said report cannot be said to be bad on any score much less perverse.

I, therefore, do not find merit in this contention raised by learned counsel for the petitioner-tenant.

Learned counsel for the petitioner-tenant then contends that in fact the Courts below have not taken due cognizance of two receipts Exs.R5 and R7 showing that the electricity bills for the shop in dispute were deposited. Be that as it may, the same in no way impinge upon the firm finding of fact recorded by the Courts below on the basis of evidence on record that the petitioner-tenant had ceased to occupy the tenanted premises.

For the reasons aforementioned, I find no merit in this revision petition and the same is accordingly dismissed.

At this stage, learned senior counsel stated that his client may be given three months time to vacate the premises. He further stated that he is willing to file a written undertaking that he will hand over vacant possession of the demised premises to the respondent-landlord. In case a written undertaking is filed within a period of one month from today that the petitioner-tenant shall hand over vacant possession of the demised premises to the respondent-landlord at the end of three months from today, the petitioner-tenant is granted three months time to vacate the premises.

( P.S.PATWALIA )

July 13, 2006. JUDGE

RC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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