No Acts & Articles mentioned in this case
High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.R. No. 230/2018
Reserved on: 19.7.2019
Date of decision: 22.7.2019
Bhupinder Singh Negi ..…Petitioner
Versus
Naresh Joshi .....Respondent
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?
1 Yes
For the petitioner: Mr. Y. P. Sood, Advocate.
For the respondent: Mr. Sunil Chauhan, Advocate.
Tarlok Singh Chauhan, Judge
The tenant is the petitioner, who, after having lost before
both the learned authorities below, has field the instant petition.
The parties shall be referred to as the “landlord” and
“tenant”.
2 The landlord filed a rent petition under Section 14 of
the H.P. Urban Rent Control Act, 1987 (for short, the “Rent Act”)
before the learned Rent Controller seeking eviction of the tenant on
the ground that he had ceased to occupy the demised premises, i.e.
set No. 1, Second Floor, Sidh Niwas, Sanjauli, Shimla6 without
any reasonable and probable cause after his transfer from
1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
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Government Primary School Beolia, Shimla to Government Primary
School, Naini, Tehsil Rampur. The eviction was further sought on
the ground of arrears of rent.
3 The tenant contested the petition and denied that he
had ceased to occupy the demised premises and in fact was
temporarily out of Shimla in connection with his service, whereas
his family was still residing in the demised premises. The claim of
arrears of rent was also denied.
4 The learned Rent Controller after framing the issues
and recording the evidence of the parties, allowed the petition vide
order dated 16.11.2017 on the ground of ceased to occupy the
demised premises for a continuous period of 12 months prior to
the date of filing of the eviction petition, however, it dismissed the
same on the ground of arrears of rent. The appeal filed by the
tenant before the learned appellate authority came to be dismissed
vide judgment dated 30.8.2018 constraining him to file the instant
petition.
5 It is vehemently argued by Mr. Y.P. Sood, Advocate, for
the tenant that the findings recorded by both the learned
authorities below are perverse and, therefore, deserve to be set
aside. He would further urge that mere nonoccupation of the
demised premises for some time, that too on account of job
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compulsion, could not have been held to be amounting to cease to
occupy the demised premises and such findings, therefore, are not
only erroneous, but perverse and deserve to be set aside. On the
other hand, Mr. Sunil Chauhan, Advocate, for landlord, would
argue that the findings recorded by both the learned authorities
below are based upon the pleadings and correct appreciation of the
evidence and cannot be termed to be perverse so as to call for
interference of this Court, especially in exercise of its revisional
jurisdiction.
6 At the outset, it would be noticed that the scope of
revisional jurisdiction which this Court can exercise must borne in
mind, as the Constitution Bench of the Hon’ble Supreme Court in
Hindustan Petroleum Corporation Limited vs. Dilbahar Singh
(2014) 9 SCC 78 laid down certain broad principles for exercise of
revisional jurisdiction, which can be summarized as under:
(i) The term ‘propriety’ would imply something which is
legal and proper.
(ii)The power of the High Court even though wider than
the one provided under Section 115 of the Code of Civil
Procedure is not wide enough to that of the appellate
Authority.
(iii)Such power cannot be exercised as the cloak of an
appeal in disguise.
(iv)Issues raised in the original proceedings cannot be
permitted to be reheard as a appellate Authority.
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(v)The expression “revision” is meant to convey the idea of
much narrower expression than the one expressed by
the expression “appeal”. The revisional power under
the Rent Control Act may not be as narrow as the
revisional power under Section 115 of the CPC but
certainly it is not wide enough to make the High Court a
second court of first appeal. While holding so the Court
reiterated the view taken in Dattonpant Gopalvarao
Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2
SCC 246.
(vi).The meaning of the expression “legality and propriety”
so explained in Ram Dass vs. Ishwar Chander, (1988)
3 SCC 131 was only to the extent that exercise of the
power is not confined to jurisdictional error alone and
has to be “according to law”.
(vii) Whether or not the finding of fact is according to law or
not is required to be seen on the touch stone, as to
whether such finding of fact is based on some legal
evidence or it suffers from any illegality like misreading
of the evidence; overlooking; ignoring the material
evidence all together; suffers from perversity; illegality;
or such finding has resulted into gross miscarriage of
justice. Court clarified that the ratio of Ram Dass
(supra) does not exposit that the revisional power
conferred upon the High Court is as wide as an
appellate power to reappraise or reassess the evidence
for coming to a finding contrary to the findings returned
by the authority below.
(viii)In exercise of its revisional jurisdiction High Court shall
not reverse findings of fact merely because on
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reappreciation of the evidence it may have a different
view thereupon.
(ix)The exercise of such power to examine record and facts
must be understood in the context of the purpose that
such findings are based on firm legal basis and not on
a wrong premise of law.
(x)Pure findings of fact are not to be interfered with.
Reconsideration of all questions of fact is impermissible
as Court cannot function as a Court of appeal.
(xi)Even while considering the propriety and legality, high
Court cannot reappreciate the evidence only for the
purposes of arriving at a different conclusion.
Consideration of the evidence is confined only to
adjudge the legality, regularity and propriety of the
order.
(xii)Incorrect finding of fact must be understood in the
context of such findings being perverse, based on no
evidence; and misreading of evidence.”
7 In the aforesaid decision, the Hon’ble Supreme Court
was dealing with the provisions of the Kerala Buildings (Lease and
Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control)
Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act,
1973. The incongruity in the decisions rendered by the Hon’ble
Supreme Court in Rukmini Amma Saradamma vs. Kallyani
Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the
backdrop in which the Constitution Bench was called upon to
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decide the scope of the revisional jurisdiction and the expression
“legality and propriety” provided in the relevant statues. The
essential question being as to whether in exercise of such powers,
the revisional authority could reappreciate the evidence or not.
Finally the Hon’ble Supreme Court answered the reference by
making the following observations:
“43. We hold, as we must, that none of the above Rent
Control Acts entitles the High Court to interfere with the
findings of fact recorded by the first appellate court/first
appellate authority because on reappreciation of the
evidence, its view is different from the court/authority below.
The consideration or examination of the evidence by the High
Court in revisional jurisdiction under these Acts is confined to
find out that finding of facts recorded by the court/authority
below is according to law and does not suffer from any error
of law. A finding of fact recorded by court/authority below, if
perverse or has been arrived at without consideration of the
material evidence or such finding is based on no evidence or
misreading of the evidence or is grossly erroneous that, if
allowed to stand, it would result in gross miscarriage of
justice, is open to correction because it is not treated as a
finding according to law. In that event, the High Court in
exercise of its revisional jurisdiction under the above Rent
Control Acts shall be entitled to set aside the impugned order
as being not legal or proper. The High Court is entitled to
satisfy itself as to the correctness or legality or propriety of
any decision or order impugned before it as indicated above.
However, to satisfy itself to the regularity, correctness,
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legality or propriety of the impugned decision or the order, the
High Court shall not exercise its power as an appellate power
to reappreciate or reassess the evidence for coming to a
different finding on facts. Revisional power is not and cannot
be equated with the power of reconsideration of all questions
of fact as a court of first appeal. Where the High Court is
required to be satisfied that the decision is according to law,
it may examine whether the order impugned before it
suffers.”
8 The only subsisting ground for eviction of the tenant, as
raised by the landlord, is that tenant has ceased to occupy the
demised premises as per Section 14(2)(v) of the Act, which reads as
under:
14. Eviction of tenants.
(2) A landlord who seeks to evict his tenant shall apply to the
Controller for a direction in that behalf. If the Controller, after
giving the tenant a reasonable opportunity of showing cause
against the applicant, is satisfied
(v) that the tenant has ceased to occupy the building or rented
land for a continuous period of twelve months without
reasonable cause.
9 It is more than settled that the initial burden to show
that the tenant has ceased to occupy the building continuously for
12 months is always on the landlord. He has to adduce tangible
evidence to prove the fact that as on the date of filing the petition,
the tenant was not occupying the building continuously for 12
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months. Once such evidence is adduced, the burden shifts on the
tenant to prove that there was reasonable cause for his having
ceased to occupy the tenanted premises for a continuous period of
12 months.
10 The word used in the statute is “reasonable cause.
However, no straitjacket formula can be evolved for determining as
to what is the reasonable cause and each case is required to be
decided keeping in view the nature of the lease, the purpose for
which the premises are let out and the evidence of the parties. If
the tenant does not use the building for the purpose for which it is
let out, he cannot be said to be occupying the building merely
because he has put some furniture or articles or machinery under
his lock and key. (See: Dunlop India Ltd. vs. A.A. Rahna and
anr., 2011(5) SCC 778).
11 Bearing in mind the aforesaid exposition of law, it would
be noticed that the landlord in his eviction petition has raised
specific plea regarding the tenant having ceased to occupy the
demised premises, as is evident from para 18(a)(1) of the petition,
which reads as under:
“That the respondent has ceased to occupy the aforesaid
premises w.e.f. December 2009, which is locked since then.
The respondent who is working as teacher in the Education
Department, Himachal Pradesh was transferred from Shimla
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to Govt. School Naini, Tehsil Rampur, Distt. Shimla,H.P. in
December 2009,where he immediately joined and is living
there along with his family since then. The respondent had
permanently shifted from Shimla to Rampur and never came
back and paid the rent into the account of the petitioner. The
premises has not been used for the purpose it is meant and
the respondent has no intention to occupy the premises. He
has ceased to occupy the tenanted premises for more than
one year continuously i.e. clear twelve months immediately
preceding the filing of the petition and is liable to be evicted
from the premises on this ground.”
12 In order to substantiate the plea taken in the eviction
petition, the landlord herself stepped into the witness box as PW1
and reaffirmed and resasserted the facts of the petition.
13 In addition thereto, she also examined PW2 Vinayak
Sood, who stated that the tenant was not residing in the demised
premises as he had shifted to Rampur and locked the demised
premises.
14 PW3, Rajesh Kumar, Clerk, Electricity Sub Division,
Sanjauli, proved on record the electricity consumption from
December 2009 to December 2012 vide Ext. PW3/A, which showed
the electricity consumption to be only 120 KW during that period.
15 PW4, Ravinder Sharma, Superintendent, Director,
Elementary Education, Shimla, proved on record transfer order of
the tenant.
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16 Thus, on the basis of the aforesaid evidence, it can be
held that the landlord has discharged the initial onus regarding the
tenant having ceased to occupy the demised premises and now, it
is for the tenant to establish to the contrary.
17 The tenant tendered in evidence his affidavit,
Ext.RW1/A,wherein he reaffirmed and reasserted the facts of the
reply to the petition and prayed for dismissal of the petition. In
crossexamination, he admitted that he was working in Education
Department as Teacher since 9.12.2002. He further stated that in
December 2009, he was transferred from Government Primary
School, Beolia, Shimla to Government Primary School, Naini, Tehsil
Rampur,where he joined in December, 2009 and was residing
there. He further stated that he stayed there till August 2011, but
voluntarily stated that his family was all throughout residing in
Shimla. He admitted that from December 2009 till March, 2013,
he stayed out of Shimla. He admitted that ration card after 2009
was prepared from his ancestral village.
18 RW2, Joginder Singh, tendered in evidence his
affidavit, Ext.RW2/A, in which he stated that the tenant was
residing in the demised premises. He further stated that son of the
tenant had been working with husband of the landlord on
Photostat machine at Summerhill, Shimla and was getting salary of
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Rs. 2500/ per month. He stated that he was working as Foreman
in Fire Brigade since 2012 and used to visit the demised premises
even after transfer of the tenant,where his son and wife were
residing. In crossexamination, he admitted that he had been
working in Shimla since 2012 and did not remember where the
tenant was posted in the year 2009. He stated that tenant was
transferred to Rampur in the year 2009. He denied the suggestion
that the wife of the tenant was residing in the village. However, he
admitted that the tenant stayed at Rampur from December 2009 to
December 2013.
19 RW3, Dinesh Negi, son of the tenant, tendered in
evidence his affidavit, Ext. RW3/A, in which he stated that he
along with his parents was residing in the demised premises since
2004. He further stated that when his father was transferred to
Rampur, he along with his mother was residing in the demised
premises. He also stated that in the year 2011, he had worked with
husband of the landlord on Photostat machine at Summerhill for
about 78 months. He also stated that from the date when his
father was transferred till date, he along with his mother had been
residing in the demised premises. In crossexamination, he
admitted that his father had been transferred from Shimla to
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Rampur. He denied the suggestion that he and his mother after
transfer of his father never resided in the demised premises.
20 It would be noticed that the specific case of the tenant
is that even after having transferred from Shimla to Rampur, his
wife and son were residing in the demised premises and his son
had worked with husband of the landlord at Summerhill in the
year 2011 for about 78 months. The tenant has not disputed the
fact that he stood transferred from Shimla to Rampur in December
2009 and stayed there till December 2013.
21 In case the family of the tenant be it his wife or his son,
had been residing in the demised premises, then obviously there
would be regular consumption of the electricity and not merely 120
KW from December 2009 to December 2012. This is practically not
possible because if a family consisting of two persons is residing in
a place like Shimla, where there are severe winters and mild
summers, then consumption of electricity would not be so less,
which proves the fact that the tenant is deposing falsely that his
family in his absence had been residing in the demised premises.
22 In addition thereto, it would be noticed that the tenant
has led no cogent and convincing evidence be it oral or
documentary to suggest that it was his family, who actually
residing in the demised premises. He could conveniently produced
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on record the receipts of LPG gas consumption or ration procured
or even proved salary slip of his son, who claimed to have worked
with husband of the landlord at Summerhill.
23 What would be the meaning of “occupy” as used in the
Rent Act is no longer res integra and was considered by the
Hon’ble Supreme Court in Dunlop India Ltd.’s case (supra),
wherein it was held as under:
“21. The word "occupy" used in Section 11(4)(v) is not
synonymous with legal possession in technical sense. It
means actual possession of the tenanted building or use
thereof for the purpose for which it is let out. If the building is
let out for residential purpose and the tenant is shown to be
continuously absent from the building for six months, the
Court may presume that he has ceased to occupy the building
or abandoned it. If the building is let out for business or
commercial purpose, complete cessation of the
business/commercial activity may give rise to a presumption
that the tenant has ceased to occupy the premises. In either
case, legal possession of the building by the tenant will, by
itself, be not sufficient for refusing an order of eviction unless
the tenant proves that there was reasonable cause for his
having ceased to occupy the building.”
24 Dealing with some what similar case, this Court in
Amrit Lal vs. Ramawati Sahu, 2007 1 Shim. LC 55 , held as
under:
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“6. There is also statement proved by a witness from the
electricity office showing the consumption of electricity
through the meter installed in the demised premises. As per
this statement only 60 units of electricity, 50 units as
reflected in the bill for July, 1990 and 10 units as for
September, 1990, were reflected in the bill consumed during
the relevant period. This statement also shows that tenant
revision petitioner does not reside in the premises and that
only occasionally some people visit the place and stay there.
7. As already noticed, even the tenant himself says that his
brothers, sisters etc. visit the premises and stay there for
sometime, which means that the premises are being used
only as a tourist resort by the relatives of tenant revision
petitioner. It is by now well settled that occasional visit to the
tenanted premises by the tenant do not amount to the tenant
continuing in occupation of the premises. Reference in this
behalf may be made to Sohan Lal Khanna V. Amar Singh,
2000(2) Latest HLJ 1008, St. Michaeal’s Cathedral Catholic
Club v. Smt. Harbans Kaur Nayani, 1997(1) Sim. L.C.237 and
Gurbachan Singh V. Ravinder Nath Bhalla and others, Latest
HLJ 2006(HP) 177. Therefore, no fault can be found with the
finding by the Appellate Authority that the tenant had ceased
to occupy the premises for a period of 12 months, before the
institution of the petition”.
25 Since it is duly established on record that during the
disputed period consumption of electricity was minimal, the Court
would be well within its right to draw presumption that during the
disputed period, tenant or his family did not reside in the demised
premises.
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26 However, Mr. Y. P. Sood, Advocate, would vehemently
argued that merely because the tenant had not been residing in the
demised premises continuously for 12 months in itself is not a
ground for his eviction because it is further required to be proved
by the landlord that this nonoccupancy at the behest of the tenant
was without any reasonable cause.
27 As observed above, the term “reasonable” has already
been explained by the Hon’ble Supreme Court in Dunlop India
Ltd.’s case (supra) as extracted above.
28 Admittedly, the tenant was transferred from
Government Primary School Beolia, Shimla to Government Primary
School, Naini, Tehsil Rampur and was required to have joined his
duties at the place of posting, but then this alone cannot be held to
be a ground to permit the tenant to occupy the demised premises
merely because he can afford to pay the rent, especially when the
tenant is admittedly not the permanent resident of Shimla Town
and is resident of Village Maraog, Chopal, where he is having his
ancestral house and landed property and had taken the demised
premises on rent only on account of his being posted at Shimla.
Once, the posting at Shimla came to an end, then the tenant could
not have been permitted to squat over the demised premises unless
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and until, he or anyone of his family members had been residing
there continuously.
29 As observed above, mere fact that the tenant has the
capacity to pay the rent to the landlord in itself will not confer a
right upon the tenant to retain the demised premises indefinitely,
especially when he has ceased to occupy the same continuously for
a period of 12 months and thereby made himself liable for ejection
under the Rent Act.
30 Similar reiteration of law can be found in the judgment
rendered by this Court in Mohinder Kumar Walia and ors. vs.
Prakasho Devi and ors., 2016(3) Shim. L C 1301 .
31 In view of the aforesaid discussion, I find no merit in
this petition and the same is accordingly dismissed, so also the
pending application(s) if any, leaving the parties to bear their own
costs.
22.7.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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