Now if coming to the case in hand, learned Appellate Authority has formed an opinion on the basis of evidence available on record that the consumption of electricity for the period May, 2003 till December, 2003 was nil, whereas, till February, 2004, 40 units. Also that during the period from April, 2004 to February, 2006, again the consumption of electricity in the demised premises was nil. After taking note of the law laid down by this Court in Gurbachan Singh V. Ravinder Nath Bhalla and others Latest HLJ 2006 (HP) 177 and in Joginder Nath Sood V. Jagat Ram Sood MANU/HP/0015/1990 : 1989(1) Sim.L.C. 179 has held that the nil consumption of electricity during the period April, 2004 to February, 2006 i.e. preceding the institution of Rent Petition, which was instituted on 23.12.2005 extends a ground in favour of the landlord to seek eviction of the tenant on the ground of ceased to occupy. In order to meet out the claim of the petitioner-tenant that he had been visiting the demised premises occasionally, learned Appellate Authority, while taking note of the law laid down by this Court in Joginder Nath Sood V. Jagat Ram Sood MANU/HP/0015/1990 : 1989(1) Sim.L.C. 179 and in Sohan Lal Khanna V. Amar Singh MANU/HP/0185/2000 : 2000(2) Latest HLJ 1008, has held that occasional and casual visits of the tenant would not clothe him with the status of in occupation of the demised premises so as to frustrate the right of the landlord to seek his eviction on the ground of ceased to occupy.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Civil Revision No. 42 of 2009
Decided On: 04.05.2017
Sanjay Kumar Vs. Dinesh Chand
Hon'ble Judges/Coram:
Dharam Chand Chaudhary, J.
Citation: AIR 2017(NOC) 920.
1. Petitioner herein is a tenant. He was respondent in the Rent Petition filed under Section 14 of the H.P. Urban Rent Control Act in the Court of learned Rent Controller (I), Sirmour, District Nahan. His eviction was sought on the following grounds:-
"(i) That the tenant/respondent has not paid the rent to the petitioner/landlord from 01-01-2003 till the filing of this petition. Thus, the respondent is liable to be proceeded against the payment of arrears of rent and, thus, the petitioner seeks the direction of this Court to direct the respondent to pay the entire arrears of rent to the petitioner along with interest @ 9% per annum.
(ii) That the tenant is keeping the demised premises locked/unused for the last two years and the value of the premises has diminished. There is no consumption of power and daily routine items."
2. Learned Rent Controller after holding full trial has declined his eviction on the ground of ceased to occupy, however, determining the rent @ Rs. 150/- per month, held him in arrears of rent and ordered his eviction from the demised premises on the ground of he being in arrears of rent vide order dated 31.08.2007.
3. The order passed by learned Rent Controller was assailed by the petitioner-landlord before the appellate Authority, Sirmour District at Nahan by way of filing an appeal under Section 24(I)(b) of the Act. The landlord did not agitate the findings recorded by learned Rent Controller qua determination of rent of demised premises @ 150/- per month and the arrears due and admissible and also that the petitioner-tenant failed to pay the arrears, however, the findings recorded on issue No. 2 were assailed on several grounds, mainly that the pleadings and evidence qua this part of the controversy have not been appreciated by learned Rent Controller in its right perspective. Learned Appellate Authority on reappraisal of the given facts and circumstances of the case as well as the evidence available on record has arrived at a conclusion that the petitioner-tenant had ceased to occupy the demised premises for a continuous period of 12 months preceding the institution of Rent Petition and as such while reversing the findings recorded by learned Rent Controller on issue No. 2 has ordered the eviction of the petitioner-tenant on the ground of ceased to occupy also vide judgment dated 8.1.2009, which is under challenge in this petition.
4. It is apt to note at the out set that the scope of the Court exercising the revisional jurisdiction is very limited and as per settled legal principles, such powers should be exercised sparingly and in a case of gross miscarriage of justice and where the findings recorded are in complete departure of the facts and circumstances of the case and the evidence available on record hence perverse and legally unsustainable.
5. Now if coming to the case in hand, learned Appellate Authority has formed an opinion on the basis of evidence available on record that the consumption of electricity for the period May, 2003 till December, 2003 was nil, whereas, till February, 2004, 40 units. Also that during the period from April, 2004 to February, 2006, again the consumption of electricity in the demised premises was nil. After taking note of the law laid down by this Court in Gurbachan Singh V. Ravinder Nath Bhalla and others Latest HLJ 2006 (HP) 177 and in Joginder Nath Sood V. Jagat Ram Sood MANU/HP/0015/1990 : 1989(1) Sim.L.C. 179 has held that the nil consumption of electricity during the period April, 2004 to February, 2006 i.e. preceding the institution of Rent Petition, which was instituted on 23.12.2005 extends a ground in favour of the landlord to seek eviction of the tenant on the ground of ceased to occupy. In order to meet out the claim of the petitioner-tenant that he had been visiting the demised premises occasionally, learned Appellate Authority, while taking note of the law laid down by this Court in Joginder Nath Sood V. Jagat Ram Sood MANU/HP/0015/1990 : 1989(1) Sim.L.C. 179 and in Sohan Lal Khanna V. Amar Singh MANU/HP/0185/2000 : 2000(2) Latest HLJ 1008, has held that occasional and casual visits of the tenant would not clothe him with the status of in occupation of the demised premises so as to frustrate the right of the landlord to seek his eviction on the ground of ceased to occupy. The further contention of the petitioner-tenant that irrespective of he remained posted at Rajgarh and Paonta Sahib and ultimately transferred to Nahan and again occupied the demised premises also does not find favour with learned Appellate Authority in view of the ratio of the judgment of this Court in St. Michael's Cathedral Catholic Club V. Smt. Harbans Kaur Nayani MANU/HP/0157/1996 : 1997(1) Sim.L.C. 237 and the object sought to be achieved by the legislature by incorporating Section 14(2)(v) in the Act, which extends an indefeasible right in favour of the landlord to seek the eviction of the tenant from the demised premises on the ground of ceased to occupy. Learned Appellate Authority while taking note of the conduct of the petitioner-tenant has held that the petitioner-tenant in order to prove the assertion qua he did not abandon the demised premises for a period over 3-4 months in a stretch and in continuity, did not produce any evidence in the form of his transfer and posting orders etc.
6. Mr. Deepak Kaushal, learned counsel while taking this Court to the provisions contained under Clause V below Sub-section 2 of Section 14 of the Act has strenuously contended that word 'without reasonable cause' and the case pleaded by the petitioner-tenant has not been taken into consideration by learned Appellate Authority in its right perspective. Mr. Deepak Kaushal has urged that petitioner had reasonable cause not to occupy the demised premises during the period in question i.e. his transfer from Nahan where the demised premises is situated to Rajgrah. Therefore, according to him, it is not a case where the petitioner-tenant had ceased to occupy the demised premises without reasonable cause. In order to buttress the submissions so made by him, Mr. Kaushal has placed reliance on the judgment of a Co-ordinate Bench of this Court in Lajwati V. H.P. University, MANU/HP/0119/1997 : 1997(2) Sim.L.C. 504. Para 7 of the judgment reads as follows:-
"7. I am unable to accept the contention of learned Counsel that the order of the Civil Court could be interpreted in the manner in which he wants this Court to interpret it. The question before me is whether the requirement of section 14(1)(v) of the Himachal Pradesh Urban Rent Control Act is satisfied. Under that section what has to be proved before the Court is that the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause The crucial expression is 'without reasonable cause'. The said expression has to be understood subjectively and not objectively. It is a question, which has to be decided on the facts and circumstances of each case What may appear to be a reasonable cause to one man under certain circumstances may not be a reasonable cause for another man under different circumstances. It is not a question, which can be deeded by interpretation of the order of the Civil Court according to one's will. The question is whether the University had bona fide understood the order of the Civil Court while it claimed to follow the order and failed to allot the premises to any other member. In this case, the order of the Civil Court is extracted by the Appellate Authority in his order, which reads as follows:
"This Court is satisfied and a prima facie case is made out in favour of the plaintiffs and doth order that you the above named defendants/respondent are restrained from making allotment of houses to any person whatsoever who is junior in service to the plaintiffs i.e. to any person who has joined service in the University after 28-4-1981 and 13-7-1981 respectively, till further orders."
7. On the other hand, Mr. Bimal Gupta, learned Senior Advocate assisted by Ms. Kusum Chaudhary, Advocate in support of the findings recorded by learned Appellate Authority has drawn the attention of this court to the pleadings in the Rent Petition and also the evidence available on record. He has also cited the judgment rendered by a Co-ordinate Bench of this Court on 23.08.2010 in Civil Revision No. 90 of 2010 titled Vipin Kumar V. Raj Kumar and on 9.4.2012 in Civil Revision No. 50 of 2005 titled Shri Satya Parkash V. Karam Chand.
8. On analyzing the rival submissions and the entire records, the present is not a case of misreading or mis-appreciation of the pleadings and evidence available on record so as to infer that the miscarriage of justice serious in nature has been caused to the petitioner-tenant. As such, the judgment under challenge is not perverse hence calls for no interference by this Court in exercise of its limited revisional jurisdiction.
9. Though, there was no need to have scanned the evidence available on record and also the pleadings of the parties, however, it is deemed appropriate to do so as the present is a case of reversal of findings on issue No. 2 and the eviction of the petitioner-tenant on the ground of ceased to occupy, which initially was not inclined to by learned Rent Controller has been ordered by the appellate Authority below in the Rent Petition, the specific ground 18(b) raised by the respondent-landlord is that the petitioner-tenant has kept the demised premises locked/unused for the last two years, as a result whereof its value has diminished. The response of the petitioner-tenant to para 18(b) of the Rent Petition is absolutely absurd as no head and tail can be made out therefrom. The same is reproduced as under:-
18(b). That, para No. 18(b) of the petition has not been answered by the petitioner, therefore, no reply need be given.
10. The reply, however, has been given to para 18(a)(ii) and as per the same, he has denied the demised premises having been lying locked for the last two years or its value diminished and there is no consumption of electricity.
11. The evidence as has come on record by way of testimony of PW-3 Kundan Singh, Clerk in the office of H.P.S.E.B. Sub-Division, Ranitaal (Nahan) is a material piece of evidence qua this aspect of the matter as he has proved from the record that from May, 2003 to December, 2003, consumption of electricity was nil, whereas, up to February, 2004, the consumption was 40 units. Also that from April, 2004 to February, 2006, the consumption of electricity in the demised premises was again nil. Though he has been cross-examined, however, nothing lending support to the case of the petitioner-tenant could be elicited therefrom. It is, therefore, proved from the record that during the period April, 2004 till institution of the Rent Petition i.e. 23rd December, 2005, the consumption of the electricity in the demised premises was nil. Meaning thereby that learned Appellate Authority has not committed any illegality or irregularity while arriving at a conclusion that during this period, the petitioner-tenant had ceased to occupy the demised premises. The findings so recorded by learned Appellate Authority are legally sustainable as the law applicable in such situation has also been taken note of. Even in Vipin Kumar's case cited supra, a Co-ordinate Bench of this Court after taking note of the law laid down by the Apex Court in Sohan Lal Khanna V. Amar Singh, MANU/HP/0185/2000 : 2001 (1) RCR (Rent) 29 has held that mere consumption of few units of electricity during some months would not mean that the person was staying in the demised premised. Similar is the view of the matter taken again by a Co-ordinate Bench of this Court in Satya Parkash's case cited supra. Therefore, it would not be improper to conclude that the petitioner-tenant had ceased to occupy the demised premises for a period preceding 12 months of the institution of the petition, which in the case in hand is approximately 20 months.
12. The occasional and casual visits of the petitioner, if any, to the demised premises are hardly of any help to him nor on the basis thereof, it can be said that he has not ceased to occupy the demised premises. Admittedly, he was transferred and remained posted out of Nahan i.e. at Rajgarh and Paonta Sahib. It was for him to have produced the evidence to show the duration of his outside posting. He, however, has not produced any evidence, which he could have easily produced by producing in evidence his transfer and posting orders. Therefore, an adverse inference has to be drawn against him. I am not persuaded to take a view of the matter that the petitioner-tenant had not ceased to occupy the demised premises for a continuous period of 12 months 'without reasonable cause' and rather he stayed away under the conditions attached to his service for the reason that if such interpretation is given to words 'without reasonable cause' in Clause 5 of Sub-section 2 of Section 14, the tenant after having remained away for a period over 12 months from the demised premises may return and re-occupy the same, may be during the pendency of the Rent Petition the very purpose of such provisions under the Act shall be frustrated and it may not be possible for the landlord to seek eviction of the tenant on this ground. Such an approach shall also be detrimental to the landlord.
13. True it is that as per ratio of the law laid down in Lajwati's case cited supra, the landlord is required to plead and prove that tenant has ceased to occupy the demised premises for a continuous period of 12 months without reasonable cause. There can't be any denial to the law so laid down as it depends on the facts of each case and have no universal application, particularly when it has further been held in the judgment supra that expression 'without reasonable cause' is crucial and has to be understood subjectively and not objectively. Also that each case has to be decided on its own facts and circumstances because a reasonable cause in one case may not be a reasonable cause in other case. The present for the reasons recorded hereinabove, however, is a case where the petitioner-tenant has ceased to occupy the demised premises without reasonable cause.
14. In view of what has been said hereinabove, I find no merits in this petition and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of.
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