Shri Kishan Chand and anr. Vs. Shri Gurjinder Singh and ors. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 5 since the rent was received by ram lubhaya knowking it full well that kishan chand was no more in occupation of the premises, it will be deemed that sudesh kumar, respondent, was accepted as the tenant by the original landlord. moreover, the entires made on the back of the rent note clearly prove that the rent was being paid from the very beginning either by kishan chand or by his son sudesh kumar, respondent, the entries are signed by either kishan chand or his son sudeh kumar, respondent.j.v. gupta, a.c.j.1. this is tenant's revision petition against whom the eviction order has been passed by both the authorities below.2. the premises, in dispute, are a part of property no. 38 bearing municipal property no. 1688/2-40 mca situated in bazar bakarwana, shaheed bhagat singh road, amritsar. the original owner of the demised premises was ram lubhaya, aw. 5, kishan chand, tenant, was inducted by him vide rent note, exhibit a. w. 5/1, dated october 23, 1959. subsequently, the said ram lubhaya sold the suit property vide three sale deeds in the year 1988 to gurjinder singh arora, advocate he filed the ejectment application on august 26, 1985, on the following grounds :-1. non-payment of rent since july 9, 1982;2. change of user. the demised premises were alleged to have been given on rent for the sale of bicycles to kishan chand, respondent, but he started manufacturing bicycle parts and cycle pumps under the name and style of nirmal industries without the written consent of the land lord;3. ceasing to occupy the premises without any sufficient cause kishan chand, tenant, was alleged to have ceased to occupy the premises in dispute without sufficient cause for more than four months. it was also averred that the tenant shifted his business from the demised premises to plot nos. 39 to 42 basti, mew partap napar, atnritsar, and surrendered exclusive possession of the property to bis son sudesh kumar, respondent no. 2 in the year 1971;4. subletting the demised premises. subletting was alleged by the tenant in favour of his son sudesh kumar, respondent no. 2. it was alleged that sudesh kumar, respondent, further sublet the premises to ono jagmohan respondent no. 3; and5. materially impairing the value and utility of the premises. the tenant had materially impaired the value and utility of the demised premises by breaking the floor, construction of parchhotis and the breaking of the thara of the demised premises.the tenant and his son sudesh kumar who was alleged to be the subtenant, controverted the allegations made in the ejectment application. their case was that the demised premises were taken on rent by kishan chand, but not for the specific and sole purpose of sale of bicycles. the shifting of the business to basti new partap nagar by kishan chand was also denied. it was pleaded that sudesh kumar, respondent, was his son and there was no question of subletting as they were joint and had a common mess. though the installation of air compessor was admitted, but it was pleaded that it was only to inflate the tubes of the bicycles of the customers. the parting of possession in favour of sudesh kumar, respondent, or jagmohan, was specifically denied. the tenant did not admit having changed the user of the premises or having sublet the same or having ceased to occupy them or having made any material alterations therein, as alleged jagmohan, who was respondent no. 3, in the ejectment application filed his written statement supporting the case of the landlord, but later on he absented himself and never appeared in the witness-box either. the learned rent controller found that on the dated of first hearing, tender was made by tenant kishan chand and alleged sub-tenant sudesh kumar jointly and, therefore, the tender was illegal and invalid it was further held that the shop, in dispute, was let out to kishan chand only for the sale of bicycle, but it was being used for the manufacture of bicycle parts which amounted to change of user. the learned rent controller also returned the verdict that the tenant kishan chard sublet the premises, in dispute, in favour of sudesh kumar, his son, who is in exclusive possession of the shop, in dispute, as a sub-tenant. it was also determined that the premises in dispute were further sublet by sudesh kumar in favour of jagmohan from 1983 upto the middle of 1984. he also found that the value and utility of the premises, in dispute, had been impaired by the tenant. in view of these findings, the ejectment order was passed on april 8, 1987 in appeal, the learned appellate authority affirmed the said findings of the rent controller except on the ground that the tenant had materially impaired the value and utility of the demised premises. consequently, the eviction order was maintained vide order dated august 6, 1988.3. the learned counsel for the tenant-petitioner submitted that the rent was being paid by sudesh kumar, respondent, which was duly accepted by the original landlord ram lubhaya, who appeared as aw. 5 since the rent was received by ram lubhaya knowking it full well that kishan chand was no more in occupation of the premises, it will be deemed that sudesh kumar, respondent, was accepted as the tenant by the original landlord. thus, argued the learned counsel, under the circumstances, there was no question of any subletting by kishan chand in favour of his son sudesh kumar. in support of the contention, the learned counsel relied upon a. s. sulochana v. c. dharmalingam, a. i. r. 1987 s. c. 242. he also submitted that there was no change of user as found by the authorities below. in any case, the change of user if any, had taken place in the year 1963 and in spite of that the original landlord ram lubhaya had been accepting the rent and, therefore, after more than 12 years, it was not open to the transferee landlord to plead that there was change of user. in support of this contention, reference was made to mohan lal v. jai bhagvan, (1988-1) 93 p. l. r. 670 and kesho dass v. chander bhan, (1987-1) 91 p. l. r. 142. as regards the tender of arrears of rent, reference was made to hari krishan garg v. daulat ram, 1985 (2) r. c. r. 253, a division bench judgment of this court, to contend that the tender was a valid one the mere fact that the tenant kishan chand had also joined his son sudesh kumar who was alleged to be a subtenants the tender does not become invalid. the finding of the authorities below that sudesh kumar further sublet the demised premises in favor of jagmohan was also contested. it was argued that jagmohan appeared in the witness-box and there was no evidence on the record to prove that he was ever in possession of the demised premises. the mere fact that letter dated december 26, 1983, was received by jagmohan on the address of the demised premises was no ground to hold that he was in occupation of the demised premises. in support of the contention, reference was made to 5mt. manjit kaur v. som dutt, 1986 (1) r. c. r. 361.4. on the other hand, the learned counsel for the landlord- respondent submitted that sudesh kumar, respondent, being the son of the tenant kishan chand, was paying rent on behalf of his father and this was admitted by kishan chand himself when he appeared in the witness-box as r w. 9. moreover, on the back of the rent note, entry is made for the payment of the rent up to the year 1962. there is no signature of the landlord thereon. only the person who made the payment either kishan chand or his son sudesh kumar, respondent, signed the same. thus, argued the learned counsel, the mere payment of the rent by the sudesh kumar, respondent, as evidence by rent note, does not prove that the rent was being accepted from sudesh kumar, as such ; particularly when kishan chand himself admitted as r. w. 9 that his son was paying rent on his behalf. moreover, the tenant moved an application for amendment of the written statement as to take the plea of joint tenancy which was not allowed by the authorities below. that also shows the falsity of the stand taken by the tenant in the written statement. according to the learned counsel, for subletting or the charge of user, written consent, of the landlord was necessary as contemplated under section 13(2)(ii)(e) and (b) of the ease punjab urban rent restriction act. as regards the change of user, it was submitted that at present it was an industry which was being run in the demised premises whereas originally, the premises were let out vide above said rent note for the sale of bicycles in support of the contention, reference was made to dr. bhagat singh v. satbjit singh, (1987-2) 92 p. l. r. 519 and chander kumar anad v. smt. daropadi devi, 1989 (1) r. l. r. 187. the learned counsel also submitted that the mere fact that the sub-tenant is the son of the tenant kishan chand is no ground to hold that there was no sub-tenancy created in his favour. once it is held that the tenant kishan chand was running a separata business in the name of 'nirmal industries', whereas his son is running business in the name of ruby cycles in the demised premises, it was sufficient to show that the father was no more in possession of the demised premises and it was exclusive possession of his son sudesh kumar. in support of the contention, the learned counsel referred to kaushalaya den v. devi dayal, (1989-7)95 p. l. r. 506 and smt. sita devi v. chaman lal, 1984 (2) r. c. r. 635.5. i have heared the learned counsel for the parties and have also gone through the case law cited at the bar.6. on the appreciation of the entire evidence it has been found by both the authorities below that the tenant kishan chand had sublet the premises in favour of bis son sudesh kumar, respondent, as kishan chand was running his separate business in the name of nirmal industries in the premises owned by him whereas his son sudesh kumar, respondent, was running the business in the name of ruby cycles in the demised premises since 1979 once it is so held that the tenant kishan chand was no more in possession of the dimised premises and it was his son who was in exclusive possession thereof, it is a clear case of subletting the mere fact that sudesh kumar, respondent, had been paying rent to the original landlord ram lubhaya, was no ground to hold that ho had accepted him as his tenant as such. there is not a single receipt on the record to prove that any rent was ever accepted by the original landlord from sudesh kumar, respondent, accepting him as his tenant. of course. ram lubhaya admitted that the rent was being paid by sudesh kumar, respondent, but that by itself does not prove that be was accepted to be the tenant; particularly when kishan chand. while appearing in the witness box as r w. 9, himself admitted that the rent was being paid by his son sudesh kumar, respondent, on his behalf. moreover, the entires made on the back of the rent note clearly prove that the rent was being paid from the very beginning either by kishan chand or by his son sudesh kumar, respondent, the entries are signed by either kishan chand or his son sudeh kumar, respondent. there is no separate receipt produced by the sub-tenant sudesh kumar, respondent, to show that the landlord ever accepted him as his tenant. in the absence of any such receipt, the authorities relied upon by the learned counsel for the tenant-petitioner have no applicability to the facts of the present case in this behalf thus, on the facts and circum- stances, the appellate authority rightly observed: -'it is now admitted by kishan chand (rw-9) that the firm nirmal industries carries on business of manufacturing of cycle pumps at 100 feet vide road at a distance of about 50 yards towards the side of sultanwind. he also admitted that from 20-1-1979 to date, the business of ruby cycle works, is being carried out in the demised premises it is clear from the evidence that nirmal indmtries which was started by kishan chand, tenant, has now left bag and baggage the premises in dispute. it is the concern known as ruby cycle works which is in exclusive possession of the premises in dispute. sudesh kumar, (pw-10) also admitted that since january, 1979 ruby cycle works is working in the shop in dispute and ruby is the name of his daughter.'this finding is based on the appreciation of the evidence and, therefore, i do not find any illegality or impropriety therein as to be interfered with in the revisional jurisdiction. on this ground alone, the tenant is liable for ejectment and, therefore, the other grounds need not be gone into though the same have been concurrently found by both the authorities below in favour of the landlord and against the tenant.7. consequently, this revision petition fails and dismissed with costs. however, the tenant is allowed three months' time to vacate the premises; provided all the arrears of rent, if any, are deposited with the rent controller within one month with a further undertaking, in writing, that after the expiry of the said period, vacant possession will be handed over to the landlord and the rent for the said period will be paid in advance by the 10th of every month.