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CASE NO.: Appeal (civil)  3868 of 1999

PETITIONER: Ram Dass

RESPONDENT: Davinder

DATE OF JUDGMENT: 24/03/2004

BENCH: R.C. LAHOTI & DR. AR. LAKSHMANAN.

JUDGMENT: J U D G E M E N T

R.C. Lahoti, J.

       A suit based on landlord-tenant relationship, filed by the  appellant against the respondent, on the ground available under  Section 13(2)(v) of the Haryana Urban (Control of Rent) & Eviction  Act, 1973 (hereinafter the ’Act’, for short) was decreed by the Rent  Controller, Rohtak and maintained in appeal by the Appellate  Authority.  In a revision preferred under Section 15(6) of the Act, the  High Court has set aside the findings of the two authorities below and  directed the application seeking eviction of the respondent to be  dismissed.  Feeling aggrieved, the landlord has filed this appeal by  special leave.

       Under Section 13(2)(v) of the Act, on an application filed by a  landlord seeking to evict his tenant, the Controller may, after giving  the tenant a reasonable opportunity of showing cause against the  application, make an order directing the tenant to put the landlord in  possession of the building if the Controller is satisfied that the tenant  has ceased to occupy the building for a continuous period of four  months without reasonable cause.

       The existence of landlord-tenant relationship between the  parties is not in dispute.  The suit accommodation is a shop situated in  commercial locality.  The respondent seems to be a petty shopkeeper.   He sells sweets and vends tea from the suit shop.  According to the  appellant, the respondent had ceased to occupy the shop for a  continuous period of four months without reasonable cause. The period  during which the premises are alleged to have remained without  occupation is since February 1990 till the date of filing of the  application, i.e. 14.6.91.  

       A perusal of the decision of the Controller shows that  overwhelming evidence was adduced by both the parties in support  and denial of the averments made in the application seeking eviction.   Some pieces of evidence adduced by the landlord need to be noticed  briefly.  Meter Reader of the locality was examined to show that there  was no consumption of electricity during this period.  Repeated  notices, eight in number, were sent through registered A/D post by the  landlord to the tenant during this period which were all returned with  the postal endorsement that in spite of repeated attempts made by the  postman, stretched over a period of about one week in each case, no  one was available at the given address to accept the service of  registered letter and the premises were found closed.  The postman  deposed to these facts.  Undisputedly the address as given on each of  the letters was correct and related to the suit premises.  The court  process server was examined as deposing that on several occasions he  had gone to the suit premises for effecting service of the court

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summons but he failed to effect service on account of none being  available at the premises which were invariably found locked.  The  landlord had arranged for photographs of the suit premises being  taken.  The photographer was examined to prove the photographs,  tendered in evidence, which showed the suit premises closed and  locked while adjoining shops were open and the space just in front of  the shop and immediately abutting it was being used for parking cycles  which would not have been practical unless the suit premises were  closed and not in use.  There is other oral evidence including the  statement of landlord himself to support the plea of the landlord.

       The tenant did examine a few witnesses of the locality who  deposed to the shop having continued to remain in use and occupation  of the respondent-tenant.  However, the stand taken by the  respondent in his pleadings, examination-in-chief and cross- examination has been shifting one.  To begin with, his stand was that  the shop had never remained closed much less for a continuous period  of more than four months.  However, at one place his stand was that  he had remained sick for sometime and therefore had gone irregular in  opening the shop and during sickness opened the shop for a few hours  in a day.  No medical evidence was adduced to support such plea.  At  another place his stand was that his father was having a flour mill at a  little distance from the suit premises and when there was none else  available to look after the flour mill, he himself used to sit at the flour  mill.  So is the case with those shopkeepers of the locality who  appeared as witnesses for the respondent.  They gave varying  statements as to the hours of the day when the shop was kept open  by the respondent and as to the activity carried on by the respondent  in the suit premises.   

Be that as it may, having gone through the lengthy discussion of  evidence, documentary and oral, as contained in the judgment of the  trial Court, with the assistance of the learned senior counsel for the  appellant, we are satisfied that no fault can be found with the manner  in which the evidence has been dealt with and marshalled by the  Controller.  The appellate authority has made an independent  evaluation of the evidence and confirmed the findings of the  Controller.  The High Court has, while exercising its revisional  jurisdiction, entered into re-appreciation of evidence not open to the  High Court; more so, keeping in view the manner in which the exercise  has been undertaken by the High Court.  To say the least, we find that  there is to some extent misreading of the evidence by the High Court.   We may give just two illustrations.  While criticizing the testimony of  postman the High Court goes on to observe that the postman claims to  have visited the suit premises even on Sundays when the post office  remains closed and the postman is not on duty.  We have carefully  read the statement of the postman.  He has nowhere claimed  having  been on duty and visited the shop on Sundays.  The endorsements  made on the registered letters returned unserved have been carefully  examined by us with the assistance of the learned counsel for the  parties and keeping the calendar of the year 1991 before us.  We find  none of the endorsements made by the postman relates to a date  which was a Sunday or holiday.  Similarly, the High Court holds that  one of the summons was actually delivered by the process server to  the respondent-tenant although the process server has deposed that  the respondent was not available at the premises.  How these two self- contradictory things could have taken place ___ asks the learned Judge  posing question to himself.  If only the deposition of the process server  would have been carefully read it would have been revealed that what  the process server was deposing was that the respondent was not  available at the suit premises to accept the service of summons which  premises were locked but he was available at a little distance away  from the suit shop and at the flour mill premises of the respondent’s  father and there the service was effected.  Thus the High Court has  proceeded to reverse, on erroneous assumptions, the findings of facts

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concurrently arrived at by the two authorities below and such exercise  by the High Court as also the conclusions drawn therefrom, we find    difficult to countenance inasmuch as they are vitiated.   We are clearly  of the opinion that the High Court has exceeded its jurisdiction in  reversing the well considered findings of fact arrived at by the two  courts below.

The terms "possession" and "occupy" are in common parlance  used interchangeably.  However, in law, possession over a property  may amount to holding it as an owner but to occupy is to keep  possession of by being present in.  The Rent Control Legislations are  outcome of paucity of accommodations.  Most of the Rent Control  Legislations, in force in difference states, expect the tenant to occupy  the tenancy premises.  If he himself ceases to occupy and parts with  possession in favour of someone else, it provides a ground for eviction.   Similarly, some legislations provide it as a ground of eviction if the  tenant has just ceased to occupy the tenancy premises though he may  have continued to retain possession thereof.  The scheme of the  Haryana Act is also to insist on the tenant remaining in occupation of  the premises.  Consistently with what has been mutually agreed upon  the tenant is expected to make useful use of the property and subject  the tenancy premises to any permissible and useful activity by actually  being there.  To the landlord’s plea of the tenant having ceased to  occupy the premises it is no answer that the tenant has a right to  possess the tenancy premises and he has continued in juridical  possession thereof.  The Act protects the tenants from eviction and  enacts specifically the grounds on the availability whereof the tenant  may be directed to be evicted.  It is for the landlord to make out a  ground for eviction.  The burden of proof lies on him.  However, the  onus remains shifting.  Once the landlord has been able to show that  the tenancy premises were not being used for the purpose for which  they were let out and the tenant has discontinued such activities in the  tenancy premises as would have required the tenant’s actually being in  the premises, the ground for eviction is made out.  The availability of a  reasonable cause for ceasing to occupy the premises would obviously  be within the knowledge and, at times, within the exclusive knowledge  of tenant.  Once the premises have been shown by evidence to be not  in occupation of the tenant, the pleading of the landlord that such non- user is without reasonable cause has the effect of putting the tenant  on notice to plead and prove the availability of reasonable cause for  ceasing to occupy the tenancy premises.     

In the present case, the landlord has, through his pleadings and  by adducing evidence, made out a case of the tenant’s ceasing to  occupy the tenancy premises and the onus, therefore, had shifted on  the tenant either to rebut the case made out by the landlord or to  allege and prove any reasonable cause for ceasing to occupy the  premises.  In our opinion, in the case at hand the landlord has fully  discharged his obligation of making out the case of his entitlement to  evict the tenant under Section 13 (2)(v) of the Act.  The tenant has  failed in discharging his onus.  The Controller and the Appellate  Authority rightly arrived at the finding of the fact which they did.   There was no case for interference at the hands of the High Court.         The appeal is allowed.  The impugned judgment of the High  Court is set aside and that of the Controller, as affirmed by the  Appellate Authority, is restored.  The respondent-tenant is directed to  put the landlord-appellant in possession of the suit premises on or  before 30th April 2004.