Arya Mitter and anr. Vs. Harbans Lal and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/633327
SubjectTenancy
CourtPunjab and Haryana High Court
Decided OnMay-18-2009
Judge K. Kannan, J.
Reported in(2009)156PLR510
AppellantArya Mitter and anr.
RespondentHarbans Lal and anr.
Cases ReferredParvinder Singh v. Renu Gautam and Ors.
Excerpt:
- k. kannan, j.1. the ground on which the tenant was evicted was that the first respondent had sub let the premises to the second respondent without the written consent of the landlord. the two sons of late hans raj who are the revision-petitioners before this court were conjointly described in the rent petition as 1st respondent.2. the landlord's petition for eviction was founded on a plea that the property had been rented out to one harbans lal and after his death in the year 1984 two of his sons arya mitter and kuldip chand were carrying on the business for some time and inducted the second respondent surinder kumar duggal as the sub tenant. the second respondent remained ex parte and the parties went to trial on the plea by the 1st respondent that there had been no transfer of tenancy in favour of the second respondent and that the alleged sub tenancy was not true. even in the absence of specific averment regarding the character of possession of the second respondent the parties had joined issues on an attempt by the first respondent to show that the second respondent was a partner in business even during the life time of hans raj and there had been no form of sub tenancy as contended by the landlord. in support of the contention, the first respondent filed the bank passbook showing the commencement of an account in the name of partnership run in the name of abrol autoways and also the partnership deeds alleged to have been executed between hans raj and surinder kumar duggal in the year 1980 and still later after the death of hans raj by a fresh document of partnership made on 12.11.1984.3. the rent controller ordered eviction and in appeal by the first respondent, namely the sons of the original tenant hans raj, application had been filed for making an amendment to the written statement as regards the plea of partnership which had not been specifically put forth in the original written statement. there was also an application filed under order 41 rule 27 for permission to produce additional evidence by examining the second respondent surinder kumar duggal as his witness. the appellate court did not pass any order on the application but merely held in its judgment that there was no need to consider the application for amendment to allow the tenant to plead the case of partnership on the ground that the parties had fully understood the respective stand at the trial and given evidence as regards the same and therefore the want of pleading was not material. as regards the plea of the tenant that they be given opportunity to examine the 2nd respondent, the appellate authority rejected the plea on the ground that the tenant shall not be allowed to fill up the lacuna in producing in evidence which they had not availed of at the trial court.4. the attempt of the learned senior counsel mr. m.l. sarin appearing on behalf of the tenants is that they had never conceded that they had lost possession of the property to the second respondent but the appellate authority had wrongly taken up the case for consideration on the premise that the second respondent's exclusive possession was admitted and even without the landlord establishing by any form of proof that there was a sub tenancy or that they had handed over the possession to the second respondent, began examining the truth of the partnership business as pleaded by the tenant. the appellate authority, according to him, had wrongly placed the whole burden on the tenant to establish that there was no form of sub tenancy and had gone on to say that the partnership deeds were sham and they were not given effect to.5. even after the service of notice of revision on the respondent, before admitting it, this court observed by an order dated 11.01.1994, after hearing the counsel for the petitioners that the tenants were producing the statement of bank accounts to establish that the bank operations were being carried on regularly ever since the commencement of the partnership business in the year 1980. the reference to the documents was objected to by the counsel for the respondent but allowed the petitioners to move an appropriate application. the court passed an order on the subsequent dated on 06.04.1994 that the relevance of the documents and their admissibility would be taken up along with the main case. although i had allowed the respective counsel to advance the arguments on the merits of the contentions of parties, i shall be loathe to examine them and give a final dispensation in view of some technical objections arising out of non-consideration of the application for amendment of the written statement at the appellate court and the legal consequences that have come about.6. the learned senior counsel appearing for the petitioner refers to decisions of this court in jagir kaur and anr. v. nirmal singh and anr. : (1993-2)104 p.l.r. 374; tehal singh v. harnam singh and ors. 1999(2) p.l.j. 512; charan singh v. jagtar singh : (1999-1)121 p.l.r. 719 and rajbir singh v. virender singh and ors. : (1996-1)112 p.l.r. 703, all to the effect that the failure to consider an application for additional evidence at the appellate court would be improper and all of them resulting in directions to the appellate authority to consider afresh the plea for such additional evidence. in this case, the failure to consider the plea for amendment of the written statement has arisen by the fact that the appellate authority has observed that the parties had known their respective stand at the trial and they had also cross-examined wit-nesses and adduced documentary evidence regarding the plea of partnership and hence there was no need to permit the party to amend the pleading. it had at the same time, while considering the case of sub tenancy and while examining whether the plea of the tenant that there had been indeed a partnership in favour of the second respondent had taken into consideration the fact that the plea of sub tenancy itself had not been specifically denied and even a specific case of a partnership in favour of the second respondent had not been set forth in the written statement. in other words, the want of plea as regards the partnership that was considered as immaterial was again shown as one of the factors in discrediting the tenant's plea of partnership in favour of the second respondent and that there had been no sub tenancy. it is no doubt true that the appellate authority had also considered other factors relating to the alleged sham character of partnership by referring to the failure of the tenant to produce accounts of the partnership or the payment of actual share of any profits in the partnership and the non-examination of the second respondent as factors discounting the value of the tenant's contention, but at the same time observed that 'it was also not claimed by the appellants in the reply that surinder kumar duggal was carrying on partnership business on behalf of the partnership firm consisting of themselves and surinder kumar and even the plea sought to be raised by way of amendment, as quoted in the application does not say so.'7. the whole case hinged on whether the tenant had parted with possession in favour of second respondent and whether the partnership as pleaded by the respondent was true. as regards the non-examination of the sub tenant, the learned senior counsel for the petitioner would state that assuming the worst, even a statement by the so-called sub tenant that there was a sub tenancy could not bind the tenant for the burden of proof was on the landlord to show that the tenant had parted with possession and transferred the tenancy to another person to merit his case for eviction.8. the learned senior counsel for the respondent cited several authorities of the hon'ble supreme court and other courts to the effect that where a case of sub tenancy was made and it is resisted by tenant by pleading partnership arrangement with a third party, it would be permissible for a court to examine whether the partnership was true or not, as held in parvinder singh v. renu gautam and ors. : a.i.r. 2004 s.c. 2299 : (2004)4 supreme court cases 794. several other judgments cited by the learned counsel for the respondent referred to the extent of jurisdiction of the revisional court to upset the finding of facts rendered by the rent controller and the appellate authority. i do not propose to replicate them, since i am of the view that justice cannot be done to either party without permitting the tenant to amend the written statement in the manner sought for, giving opportunity to the landlord to file a reply to such an amended pleading and permitting parties to adduce evidence on the basis of the amended pleadings. the decisions referred before me on the failure of the appellate authority to consider an interlocutory application for additional evidence even applied also to any other interlocutory application that were omitted to be considered only show that a final adjudication cannot be made without deciding on the interlocutory applications. the remand of the case to the appellate court for consideration of the application for amendment or the plea for letting in additional evidence at this length of time after 18 years after the revision was filed would cause further injustice and operate to create fresh problems. having regard to the general proposition that an amendment to the written statement, the courts shall always to be liberal and keeping in mind that the amendment to the written statement did not involve effacing an admission or had no bearing on the law of limitation, it would only be appropriate to allow such an amendment so that there is proper basis on which the court would render an adjudication.9. i therefore allow the application for amendment filed before the appellate authority on 29.07.1985 and remit the matter to the rent controller. the rent controller shall have the amendment carried out in the pleadings of the first respondent and permit the landlord to file a reply in response to the amended pleadings. the documents filed by the revision-petitioner before this court in c.m. no. 10l0-cii of 1994 are allowed to be taken on record. they may be exhibited in the evidence subject to proof in accordance with law and the landlord shall have adequate opportunity to cross-examine any witness that may be brought in support of the documents sought to be tendered as evidence. the order directing the second respondent to be set ex parte shall continue as such but both the parties shall be at full liberty to adduce evidence on the basis of the amended pleadings only and for that purpose to examine such witnesses as they deem fit.10. having further regard to the fact that the case relates to the institution of a petition in the year 1985, the rent controller shall endeavour to complete the exercise of permitting pleadings to be completed and conclude evidence on a priority basis. this court has already given directives in samadhan-2009 that each court shall identify the oldest 200 cases in the respective courts and dispose them of at the earliest before the conclusion of 2009. the rent petition which is now remanded, being the case of the year 1985 shall merit immediate consideration and parties shall cooperate for the continuation of the trial on a day to day basis and for its conclusion within a period of three months from the date when the records are received by the rent controller. the rent controller shall pass order and report to this court. for appearance before the rent controller on 08.06.2009. the registry is directed to dispatch the entire case papers to the rent controller at chandigarh immediately.
Judgment:

K. Kannan, J.

1. The ground on which the tenant was evicted was that the first respondent had sub let the premises to the second respondent without the written consent of the landlord. The two sons of late Hans Raj who are the revision-petitioners before this Court were conjointly described in the rent petition as 1st respondent.

2. The landlord's petition for eviction was founded on a plea that the property had been rented out to one Harbans Lal and after his death in the year 1984 two of his sons Arya Mitter and Kuldip Chand were carrying on the business for some time and inducted the second respondent Surinder Kumar Duggal as the sub tenant. The second respondent remained ex parte and the parties went to trial on the plea by the 1st respondent that there had been no transfer of tenancy in favour of the second respondent and that the alleged sub tenancy was not true. Even in the absence of specific averment regarding the character of possession of the second respondent the parties had joined issues on an attempt by the first respondent to show that the second respondent was a partner in business even during the life time of Hans Raj and there had been no form of sub tenancy as contended by the landlord. In support of the contention, the first respondent filed the bank passbook showing the commencement of an account in the name of partnership run in the name of Abrol Autoways and also the partnership deeds alleged to have been executed between Hans Raj and Surinder Kumar Duggal in the year 1980 and still later after the death of Hans Raj by a fresh document of partnership made on 12.11.1984.

3. The Rent Controller ordered eviction and in appeal by the first respondent, namely the sons of the original tenant Hans Raj, application had been filed for making an amendment to the written statement as regards the plea of partnership which had not been specifically put forth in the original written statement. There was also an application filed under Order 41 Rule 27 for permission to produce additional evidence by examining the second respondent Surinder Kumar Duggal as his witness. The Appellate Court did not pass any order on the application but merely held in its judgment that there was no need to consider the application for amendment to allow the tenant to plead the case of partnership on the ground that the parties had fully understood the respective stand at the trial and given evidence as regards the same and therefore the want of pleading was not material. As regards the plea of the tenant that they be given opportunity to examine the 2nd respondent, the Appellate Authority rejected the plea on the ground that the tenant shall not be allowed to fill up the lacuna in producing in evidence which they had not availed of at the trial Court.

4. The attempt of the learned Senior counsel Mr. M.L. Sarin appearing on behalf of the tenants is that they had never conceded that they had lost possession of the property to the second respondent but the Appellate Authority had wrongly taken up the case for consideration on the premise that the second respondent's exclusive possession was admitted and even without the landlord establishing by any form of proof that there was a sub tenancy or that they had handed over the possession to the second respondent, began examining the truth of the partnership business as pleaded by the tenant. The Appellate Authority, according to him, had wrongly placed the whole burden on the tenant to establish that there was no form of sub tenancy and had gone on to say that the partnership deeds were sham and they were not given effect to.

5. Even after the service of notice of revision on the respondent, before admitting it, this Court observed by an order dated 11.01.1994, after hearing the counsel for the petitioners that the tenants were producing the statement of bank accounts to establish that the bank operations were being carried on regularly ever since the commencement of the partnership business in the year 1980. The reference to the documents was objected to by the counsel for the respondent but allowed the petitioners to move an appropriate application. The Court passed an order on the subsequent dated on 06.04.1994 that the relevance of the documents and their admissibility would be taken up along with the main case. Although I had allowed the respective counsel to advance the arguments On the merits of the contentions of parties, I shall be loathe to examine them and give a final dispensation in view of some technical objections arising out of non-consideration of the application for amendment of the written statement at the Appellate Court and the legal consequences that have come about.

6. The learned Senior counsel appearing for the petitioner refers to decisions of this Court in Jagir Kaur and Anr. v. Nirmal Singh and Anr. : (1993-2)104 P.L.R. 374; Tehal Singh v. Harnam Singh and Ors. 1999(2) P.L.J. 512; Charan Singh v. Jagtar Singh : (1999-1)121 P.L.R. 719 and Rajbir Singh v. Virender Singh and Ors. : (1996-1)112 P.L.R. 703, all to the effect that the failure to consider an application for additional evidence at the Appellate Court would be improper and all of them resulting in directions to the Appellate Authority to consider afresh the plea for such additional evidence. In this case, the failure to consider the plea for amendment of the written statement has arisen by the fact that the Appellate Authority has observed that the parties had known their respective stand at the trial and they had also cross-examined wit-nesses and adduced documentary evidence regarding the plea of partnership and hence there was no need to permit the party to amend the pleading. It had at the same time, while considering the case of sub tenancy and while examining whether the plea of the tenant that there had been indeed a partnership in favour of the second respondent had taken into consideration the fact that the plea of sub tenancy itself had not been specifically denied and even a specific case of a partnership in favour of the second respondent had not been set forth in the written statement. In other words, the want of plea as regards the partnership that was considered as immaterial was again shown as one of the factors in discrediting the tenant's plea of partnership in favour of the second respondent and that there had been no sub tenancy. It is no doubt true that the Appellate Authority had also considered other factors relating to the alleged sham character of partnership by referring to the failure of the tenant to produce accounts of the partnership or the payment of actual share of any profits in the partnership and the non-examination of the second respondent as factors discounting the value of the tenant's contention, but at the same time observed that 'it was also not claimed by the appellants in the reply that Surinder Kumar Duggal was carrying on partnership business on behalf of the partnership firm consisting of themselves and Surinder Kumar and even the plea sought to be raised by way of amendment, as quoted in the application does not say so.'

7. The whole case hinged on whether the tenant had parted with possession in favour of second respondent and whether the partnership as pleaded by the respondent was true. As regards the non-examination of the sub tenant, the learned Senior counsel for the petitioner would state that assuming the worst, even a statement by the so-called sub tenant that there was a sub tenancy could not bind the tenant for the burden of proof was on the landlord to show that the tenant had parted with possession and transferred the tenancy to another person to merit his case for eviction.

8. The learned Senior counsel for the respondent cited several authorities of the Hon'ble Supreme Court and other Courts to the effect that where a case of sub tenancy was made and it is resisted by tenant by pleading partnership arrangement with a third party, it would be permissible for a Court to examine whether the partnership was true or not, as held in Parvinder Singh v. Renu Gautam and Ors. : A.I.R. 2004 S.C. 2299 : (2004)4 Supreme Court Cases 794. Several other judgments cited by the learned Counsel for the respondent referred to the extent of jurisdiction of the revisional Court to upset the finding of facts rendered by the Rent Controller and the Appellate Authority. I do not propose to replicate them, since I am of the view that justice cannot be done to either party without permitting the tenant to amend the written statement in the manner sought for, giving opportunity to the landlord to file a reply to such an amended pleading and permitting parties to adduce evidence on the basis of the amended pleadings. The decisions referred before me on the failure of the Appellate Authority to consider an interlocutory application for additional evidence even applied also to any other interlocutory application that were omitted to be considered only show that a final adjudication cannot be made without deciding on the interlocutory applications. The remand of the case to the Appellate Court for consideration of the application for amendment or the plea for letting in additional evidence at this length of time after 18 years after the revision was filed would cause further injustice and operate to create fresh problems. Having regard to the general proposition that an amendment to the written statement, the Courts shall always to be liberal and keeping in mind that the amendment to the written statement did not involve effacing an admission or had no bearing on the law of limitation, it would only be appropriate to allow such an amendment so that there is proper basis on which the Court would render an adjudication.

9. I therefore allow the application for amendment filed before the Appellate Authority on 29.07.1985 and remit the matter to the Rent Controller. The Rent Controller shall have the amendment carried out in the pleadings of the first respondent and permit the landlord to file a reply in response to the amended pleadings. The documents filed by the revision-petitioner before this Court in C.M. No. 10l0-CII of 1994 are allowed to be taken on record. They may be exhibited in the evidence subject to proof in accordance with law and the landlord shall have adequate opportunity to cross-examine any witness that may be brought in support of the documents sought to be tendered as evidence. The order directing the second respondent to be set ex parte shall continue as such but both the parties shall be at full liberty to adduce evidence on the basis of the amended pleadings only and for that purpose to examine such witnesses as they deem fit.

10. Having further regard to the fact that the case relates to the institution of a petition in the year 1985, the Rent Controller shall endeavour to complete the exercise of permitting pleadings to be completed and conclude evidence on a priority basis. This Court has already given directives in Samadhan-2009 that each Court shall identify the oldest 200 cases in the respective Courts and dispose them of at the earliest before the conclusion of 2009. The rent petition which is now remanded, being the case of the year 1985 shall merit immediate consideration and parties shall cooperate for the continuation of the trial on a day to day basis and for its conclusion within a period of three months from the date when the records are received by the Rent Controller. The Rent Controller shall pass order and report to this Court. For appearance before the Rent Controller on 08.06.2009. The Registry is directed to dispatch the entire case papers to the Rent Controller at Chandigarh immediately.