Geeta Bhalla and Others Vs Krishan Kumar (dead) through LRs.

Vinod K. Sharma, J.@mdashThis revision petition has been filed against the order passed by the Appellate Authority, Jalandhar, vide which'' appeal filed by the respondent-landlord, was allowed and the petitioners were ordered to be evicted from the shop in dispute and two months time was given to vacate the premises. The case set up by the respondent-landlord was that he was owner of the shop in dispute and Shri Yashpal Bhalla, husband of petitioner No. 1 and father of petitioner Nos. 2 and 3, was statutory tenant in the shop in dispute @ Rs. 7/- per month.

2. Shri Yashpal Bhalla died about four years prior to the filing of petition, which was instituted on 5.5.1990; leaving behind the present petitioners as his heirs and thus they became statutory tenants by operation of law. Ejectment of the petitioner'', was sought on the following grounds:

A. That the tenants are in arrears of runt since 1.3.1983.

B. That the tenants have failed to pay electricity bills amounting to Rs. 230/-.

C. That the tenants have ceased to occupy the premises in dispute without any just and reasonable cause for a period of more than four months immediately preceding the filing of the petition as they were not occupying the shop since 1.1.1987.

D. That due to non-user of the premises, the value and utility of the premises in dispute has considerably been diminished. The building has developed cracks and dampness has caused immense damage to the building.

E. That the tenants are guilty of such acts of waste which have substantially lowered the value and utility of the premises.

3. On the first date of hearing rent, electricity charges along with costs and interest were tendered in the Court of learned Rent Controller on behalf of the respondent-tenants, which was accepted under protest. The petition was contested and objection was taken that the petition was bad for non-joinder of necessary parties. It was alleged that the shop in question was taken on rent by Bhag Mal, father of Yashpal in the year 1963 and the tenancy was inherited by his legal heirs. Taking of the premises on rent by Yashpal was denied.

On the pleadings of the parties, following issues were framed:

1. Whether the tender is valid? OPA

2. Whether the respondents have ceased to occupy the premises in dispute for a continuous period of four months without any just and reasonable cause as alleged? OPP

3. Whether the respondents are guilty of such acts, which have diminished the value and utility of the premises in dispute? OPP

4. Whether the petition is bad for non-joinder of necessary parties? OPR

5. Relief.

4. The learned Rent Controller decided all the issues against the landlord and dismissed the rent application. Before the Appellate Authority findings on issue Nos. 1 and 3 were not challenged and therefore, these were affirmed. However, the learned'' lower Appellate Court on the basis of evidence on record, reversed the findings oh issue No. 4 and held that the petition was not bad for non-joinder of necessary parties. This finding of the Appellate Court is not under challenge before this Court, and, therefore, the only dispute is with regard to issue No. 2 i.e. "Whether the respondent had ceased to occupy the premises in dispute for continuous period of four months without any just and reasonable cause as alleged." The learned Rent Controller on appreciation of evidence had given a finding that tenants were continuously doing their'' business in the shop in dispute and under no stretch of imagination it could be held that respondents have ceased to occupy the shop in dispute for a continuous period of four months, preceding the filing of the petition. Finding has been reversed by the learned Lower Appellate Authority by holding as under:

The learned Counsel for the appellant has contended that when the respondents have failed to produce the documents in possession, ''adverse inference has to be drawn against them, the contention is not without merit. Admittedly, electricity connection in the shop in dispute is in existence. Geeta Bhalla states that the payment of the electricity charges has been made and that she was in possession of the documents regarding payment of charges but the same has not been brought on the file. Further, as already discussed above, according to Geeta Bhalla, stationery and books business is being run in the said shop and the said goods have been purchased from her husband''s brother but no bill or receipt showing the file. Thus, when the documentary evidence in possession of the respondents has hot been produced, adverse inference against their version that the shop never remained closed can safely be drawn. In this respect, I happen to draw strong support from Shah Mool Chand Lal Chand v. Parvathi Bai 1989 HRR 102; Shri Ram Parkash of Amritsar v. Sita Ram Chuni Lal 1989 HRR 450; Ram Chander (died) by Lrs. v. Puran Chand of Ambala Cantt. 1989 HRR 604 and Hem Kund Bus Service Pvt. Ltd. Bhatinda v. Suresh Motor Car Company, near Old Bus Stand, Bhatinda (1991)100 P.L.R. 476. Thus, when the respondents have failed to produce the documentary evidence in their possession to show that the business was being carried out in the shop and that the same never remained closed, I find no reason as to why the version and the evidence adduced by the appellant be not accepted. So, it has to be believed that the shop remained closed since more than four months, preceding the presentation of the petition, the finding of the lower Court on issue No. 2 is, therefore, reversed.

5. Mr. Arvind Singh, learned Counsel for the petitioner has challenged the finding of the Appellate Authority on issue No. 2 by contending that the learned Lower Appellate Authority has reversed the finding of the learned Rent Controller by drawing adverse inference against the petitioner for not producing the documents referred in the judgment. The contention of the learned Counsel for the petitioner is that onus to prove this issue was on the respondent-landlord; therefore, non-production of documents could not be used against the tenant to reverse the findings, especially when the same could be proved by the landlord by summoning the evidence. In support of his contention, he placed reliance on judgment of this Court in Ram Chand Sharma Vs. Thakur Dass, , to contend that if tenant did not produce any account books, no adverse inference could be drawn. This Court in the said judgment held as under:

In the present case the ejectment of the tenant has been claimed by the landlord on the ground that the premises in question has remained unoccupied for a period of four months. In these circumstances, it was for the landlord to prove the aforesaid fact by leading cogent evidence. The landlord remained satisfied by appearing as his own witness and by producing Rakesh Kumar as PW-2. Besides the aforesaid fact he also relied upon the disconnection of the electricity meter. The factum of the disconnection of the electricity meter was admitted by the tenant. He explained the aforesaid disconnection. PW-2 Rakesh Kumar claimed that he is carrying on his business near the shop in question. Although he had deposed that the shop in question'' remained closed but in his cross-examination he has admitted that he was the first cousin of the landlord. He has also admitted that he was carrying on business in the name of Varan Automobiles as a partner with the landlord. No other evidence has been produced by the landlord. In contract (contrast ?) the tenant has appeared as his own witness and has also produced RW-2 Narender Kumar. Narender Kumar has deposed that he was carrying on his business in a shop in front of the demised premises and the business in the shop in question was being run regularly by the tenant. The tenant has also produced the photographs which are exhibited as Ex.RW-5 to RW-8. The aforesaid photographs show that the business was being carried in the shop in question. Even if the aforesaid photographs are ruled out of consideration, still it is clear that the landlord has not been able to discharge the onus of proving the fact that the shop in question had remained unoccupied for a period of four months prior to the filing of the ejectment petition. The landlord did not file any application for appointment of a Local Commissioner while filing the ejectment petition. The non-production of any account books by tenant is also of no consequence. The tenant on his own showing is a petty shopkeeper. It has not been shown that he was filing any income tax or sales tax return was available against the tenant only if it had been shown by the landlord that the business being run by the tenant was of such a magnitude" which did require filing of some returns or maintenance of some account books.

6. Learned Counsel for the petitioner also placed reliance on the judgment of this Court in (1989)96 P.L.R. 478 Sohan Lal and Anr. v. Gurbachan Singh to contend that mere non-consumption of electricity could not be sufficient to hold that tenant had ceased to occupy the premises. By relying on this judgment, learned Counsel for the petitioner contended that even if non-consumption of electricity was proved, still the same could not be used to evict the tenant by drawing a presumption as has been held by this Court in judgment referred to above. It was not open to the Appellate Authority to draw any adverse inference against the tenant for non-production of electricity bill. Learned Counsel also placed reliance on the judgment of this Court in 1992(2) R.C.R. 444 Kedar Nath v. Rattan Chand, to contend that besides pleadings that the tenant had ceased to occupy the shop without sufficient cause, the landlord was also required to establish that the tenant at all material times had conceived an intention to abandon his lessee right and for that reason he was not interested to occupy the property. The contention of the learned Counsel was that in the present case no evidence had been brought on record to show the intention of the tenant to abandon the business.

7. I have considered the arguments raised by the learned Counsel for the petitioner and gone through the case file.

8. The learned Appellate Authority has reversed the findings recorded by the learned Rent Controller merely by drawing an adverse inference for non-production of electricity bill as the bills showing the purchase of goods. The Appellate Authority was of the view that as documentary evidence was in possession of the tenants, the same were not produced and hence adverse inference could safely be drawn against the tenants. In support of this finding, the learned Appellate Authority drew support from the judgments of this Court reported in Shah Mool Chand Lal Chand v. Parvathi Bai 1989 H.R.R. 102; Shri Ram Parkash of Amritsar v. Sua Ram Chuni Lal 1989 HRR 450; Ram Chander (died) by Lrs. v. Puran Chand of Ambala Cantt 1989 HRR 604 and Hem Kund Bus Service Pvt. Ltd. Bhatinda v. Suresh Motor Car Company near Old Bus Stand, Bhatinda (1991)100 P.L.R. 476.

9. The findings recorded by the learned Appellate Authority cannot be sustained, It is not in dispute that onus to prove the issue that the tenant had ceased to occupy the premises in dispute for continuous period of four months without any just and reasonable cause was on the landlord and therefore, he was to stand on his own legs and could not take the benefit of the weaknesses in the case of the tenant, if any. When the matter is considered in this background it has to. be noticed that Krishan Kumar, landlord in his cross-examination had admitted that he was residing on the first floor of the shop in dispute and in case the shop had remained closed, he was not required to wait for more than four years to move the present petition. The Appellate Authority also failed to meet the reasoning recorded by the learned Rent Controller that it was admitted by the landlord that electricity meter was installed in the premises. Thus, in case the payment was not made, the electric connection was required to be disconnected. It may be noticed here that for non-payment of consumption charges, the notice was to be received by the landlord and therefore, it was he who was to produce the same and the burden could not be shifted upon the tenant. Ruldu Ram, RW-4 in his statement had stated that his sister Geeta was selling stationery in the shop in dispute. Thus, there was oral evidence on record to show that the tenant was doing business in the premises. Therefore, the finding recorded by the learned Rent Controller could not be reversed by drawing an adverse inference. The learned Appellate Authority has also not reversed the findings recorded by learned Rent Controller holding that the tenant was doing the business in the premises and had not ceased to occupy the premises. The adverse inference drawn by the learned Appellate Authority (for non-production of bills regarding payment of electricity charges as well as non-production of bills or accounts books cannot be sustained in view of the law laid down by this Court reported in Ram Chand Sharma Vs. Thakur Dass, and case reported in (1989)96 P.L.R. 478 Sohan Lal and Anr. v. Gurbachan Singh. In the case of Ram Chand Sharma, this Court held that where the tenant was a petty shopkeeper, like the present case, non-production of accounts books would not lead to draw any adverse inference. Similarly, in the case of Sohan Lal and another this Court held that mere non-consumption of electricity by itself was not sufficient to hold that the tenant has ceased to occupy the premises. Thus, even if any adverse inference was to be drawn as held by the Appellate Authority, still no finding could be recorded in the absence of any other evidence that the tenant has ceased to occupy the premises for a continuous period of four months preceding the date of filing the ejectment application. This Court in the case of Kedar Nath Vs. Shri Rattan Chand, has laid down that in order to succeed on the ground of cease to occupy the premises, the landlord has to establish that the tenant at all material times had conceived an intention to abandon his lessee right and for that reason he was not interested to occupy the property. No such finding has been recorded by the learned Appellate Authority while reversing the findings on issue No. 2.

Accordingly, this revision petition is accepted, order passed by the learned Appellate Authority is set aside and that of the learned Rent Controller is restored. No order as to costs.