The Commissioner of Income Tax vs. M/s P.Maisaiah

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Civil Revision No. 278 of 2003. Reserved on: 21.08.2014.

Decided on: 29th August, 2014.

Sita Ram

…Petitioner/landlord.

VERSUS

Jai Kishan & another

…Respondents

Coram

The Hon’ble Mr.Justice Sureshwar Thakur, Judge.

Whether approved for reporting?1 Yes.

For the petitioner: Mr. Bhupinder Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate.

For the Respondents: Mr. Ramakant Sharma, Advocate.

Sureshwar Thakur, Judge

The instant civil revision petition is directed against the judgment rendered on 19.8.2003 by the learned Appellate Authority in Rent Appeal No. 3-S/14 of 2003 whereby the learned Appellate Authority affirmed the order rendered on 28.4.2003 by the learned Rent Controller, Solan in petition No.28/2 of 1998. 2. The brief facts of the case are that the petitioner is the landlord of the premises comprising one shop, and, respondent No.1, Jai Kishan, is, the tenant. Respondent No.1 Jai Krishan has been averred to have sublet the demised premises to respondent No.2, Duni Chand without his consent. The rate of rent has been averred and

1 Whether the reporters of the local papers may be allowed to see the Judgment?

claimed at Rs.260/- per month along with statutory enhancement. The eviction of the respondents have been sought on the grounds that respondent No.1 is in arrears of rent w.e.f. 16.9.1996 at the rate of Rs.260/ per month along with statutory enhancement, as, also on the ground that respondent No.1 has sub let the premises in favour of respondent No.2, who is running a Halwai shop, without the consent of the petitioner. 3. The respondents contested the petition. In reply, the description of the premises has been admitted by the respondents. However, they have denied of the demised premises being sub let by respondent No.1 to respondent No.2. It is submitted that the demised premises is in the tenancy of the Joint Hindu Family business of which respondent No.1 Jai Kishan is the ‘Karta’. It is further submitted that the respondents are real brothers having a Joint Hindu Family business which was being run in the demised premises under the name and style of M/s Jai Kishan and Brothers. It is also pleaded that they have paid the rent upto the date. 4.

The petitioner/landlord filed rejoinder to the reply filed by the respondents, wherein, he denied the contents of the reply and re- affirmed and re-asserted the averments, made in the petition. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:- 1. Whether the respondent is in arrears of rent, as alleged? OPP

OPR

the Appellate Authority under the H.P. Pradesh Urban Rent Control Act, on the issue regarding arrears of rent hence his being evictable from the demised premises. 9. The learned counsel appearing on either sides have been heard at length. With the able assistance rendered by the learned counsel appearing for the parties, this Court has been able to traverse through the entire record. 10. Both the learned Rent Controller as well as the learned Appellate Authority had concluded on an appreciation of the evidence existing on record that there was no proof of the respondent/tenant Jai Kishan having sub let the demised premises in favour of his brother respondent No.2, Duni Chand, inasmuch, as no cogent proof sprouted nor emerged qua respondent No.1 having lost dominion or control of the demised premises and that too for a valuable consideration. The Appellate Authority had concluded on a perusal of the evidence existing before it that both Jai Kishan, tenant under the landlord/petitioner as well as his purported sub-letee, his brother Duni Chand constitute a Joint Hindu Family hence even if respondent No.2 was occupying the demised premises, it did not constitute proof of Jai Kishan, tenant of the demised premises having sub let them to his brother respondent No.2, Duni Chand, more so, in the absence of overwhelming evidence, portraying parting of possession of the demised premises by respondent No.1 in favour of respondent No.2 comprised in potent proof of the former having lost both control and

dominion over the demised premises and that too for a valuable consideration. 11. True it is that there may not be any direct evidence in proof of sub letting, it being a clandestine deal interse respondent No.1 and respondent No.2, hence, to clinch a finding qua a wholly clandestine deal interse respondent No.1/tenant and his purported sub- letee, it is open to this Court to advert to circumstances available on record. However, such circumstances as exist on record, do also have to satisfy and withstand the test, as to whether they convey parting of possession or abdication of dominion or control of the demised premises by respondent No.1 (tenant) in favour of respondent No.2 (sub-letee), as also, of the tenant having received valuable consideration for his parting of possession or for losing his control or dominion over the demised premises in favour of the purported sub-letee. 12. It is trite law that this Court while exercising revisional jurisdiction is constrained to interfere with findings of fact, nor also it can usurp any fact concluded by both the learned Rent Controller as well as by the learned Appellate Authority unless it is evident on a perusal of the record that both the Rent Controller as well as the Appellate Authority have so concluded even with there being satisfactory or cogent proof qua the demised premises having been sub let by respondent No.1 in favour of his brother, respondent No.2 or the Courts below had considered such evidence or material on record which otherwise was excludable or inadmissible or had anvilled and hinged its findings while excluding admissible, germane or relevant material.

Even though, it is not hence open for this Court while exercising its revisional jurisdiction while testing the legality and propriety of orders assailed before it travel beyond the legally enjoined permissible parameters governing the exercise of revisional jurisdiction, inasmuch as its evaluation of the decisions rendered by both the learned Rent Controller as well as by the learned Appellate Authority, being trammeled by the enshrined canons of (a) theirs having exceeded their jurisdiction or (b) omitted to exercise jurisdiction vested in them by law or (c) proceeded to exercise jurisdiction with material illegality and impropriety. Consequently within the ambit of the aforesaid parameters only would this Court re- delve into or re-appreciate the material cardinal pieces of evidence as existed before the learned Rent Controller and the learned Appellate Authority. Nonetheless, for doing complete justice this Court deemed it fit and appropriate that before concluding whether the appreciation of evidence by the learned Rent Controller is not suffering from any illegality or impropriety, an advertence be made to such crucial pieces of evidence which invincibly convey the factum of the petitioner/landlord having abysmally failed or omitted to adduce cogent proof to substantiate the fact of respondent No.1 having sublet the demised premises in favour of his brother, respondent No.2. The said crucial pieces of evidence which convey that respondent No.2, since the inception of the tenancy had been in occupation of the demised premises, is encapsulated in the factum of the petitioner/landlord in his cross-examination feigning ignorance qua the fact (a) whether since the commencement of the tenancy, the

electricity meter had been installed in the name of respondent No.2. The further effect of the petitioner in his cross-examination having feigned ignorance about the electricity meter in the demised premises existing in the name of respondent No.2 since the inception of the tenancy is that it is a loud communication of the fact of respondent No.2, since then having entered into the possession of the demised premises. The said fact gains momentum from a deposition in the cross-examination of PW-1 of his having constructed his residence on the rear of the demised premises in the year 1983 which fact entwined with the statement existing in the deposition of PW-1 of respondent No.1 never having been seen by the petitioner/landlord to be ever in occupation of the shop, is also ipso facto a manifestation of knowledge as well as awareness of the landlord/petitioner qua respondent No.1 despite his being tenant in the demised premises having never occupied it. (b) An incisive evaluation of Ex. RW3/A discloses the fact as proved by RW-3 of the water connection to the demised premises having been released by the competent authority in favour of respondent No.2, with the consent of Predecessor-in-interest of the petitioner/land-lord, namely Gumani Shah. The factum of Ex. RW-3/A, bearing the signatures of Gumani Shah has not been proved by the testimony of RW-3, inasmuch, as he was constrained to do so being not acquainted with the signatures of Gumani Shah. Accordingly in absence of proof of signatures of the predecessor-in-interest of land- lord/petitioner on Ex. RW-3/A by adduction of best evidence, would tentatively garner a conclusion that hence the predecessor-in-interest of

the petitioner/land-lord did for absence of proof of his disputed signatures on Ex. RW-3/A convey consent to the competent authority for the installation of the electricity meter in the demised premises in the name of Duni Chand. Even when proof qua the predecessor-in- interest of the petitioner/landlord having signatured Ex.RW3/A was wanting in the absence of RW3 while being unacquainted with the signatures of the predecessor-in-interest of the petitioner/landlord, hence, incapacitated to lend cogent proof qua existence of his signatures on Ex.RW3/A. Nonetheless, with the petitioner/landlord having omitted to concert to adduce best evidence comprised in the report of the handwriting expert conveying whether the purported signature of his predecessor-in-interest do or do not exist on Ex.RW3/A conveys that the predecessor-in-interest had consented to the release of the water connection by the competent authority to the demised premises in favour of respondent No.2. The said factum of Ex.RW3/A conveying the release of water connection, by the competent authority to respondent No.2 for the demised premises with the purported consent of the predecessor-in-interest of the petitioner/landlord comprised by his purported signature in Ex.RW3/A, has been dealt with in a slip shod and cursory manner by both the Courts below. Theirs having omitted to include the said piece of evidence though germane and admissible from consideration and appraisal has obviously resulted in theirs not pronouncing upon a crucial fact of acquiescence of the predecessor-in- interest of the petitioner/landlord to the factum of the demised premises being possessed since the inception of the tenancy by respondent No.2,

the purported sub-letee of respondent No.1. In consequence when the demised premises were let out in favour of respondent No.1 in the year 1972 and when both PW-1 and PW-2 convey that they despite residing in the close vicinity of the demised premises have never seen respondent No.1 occupying the demised premises, hence, when the petitioner/landlord also continues to receive rent qua the demised premises from respondent No.1 it tells upon the fact of the former too accepting the factum of respondent No.2 occupying the demised premises as a member of a Joint Hindu Family which he while being the real brother of respondent No.1 constituted with him, more especially when no evidence to overwhelm and overcome the said conclusion has been adduced by the petitioner/landlord. 13. The Appellate Authority has ad-nauseam concluded that both the respondents constituted a Joint Hindu Family hence even if, respondent No.1 was not in occupation of the demised premises and besides even when the rent qua the demised premises was individually tendered by respondent No.2 to the landlord/petitioner, such defrayment of rent did not sever their membership of the Joint Hindu Family nor strip the Joint Hindu Family constituted by them of its jointness in the absence of evidence portraying that they had separated both in mess as well as in business. Given the necessity of adduction of potent and cogent evidence for forming a formidable conclusion of both having separated in mess and business, which however remained un-adduced, the factum of any gas connection or electricity connection existing in the demised premised in the name of Duni Chand, respondent No.2

would not detract from the fact that the Joint Hindu Family constituted by them became non-existent. Even in the cross-examination of RW-1 by the learned counsel appearing for the petitioner/landlord there is denial by the former of the suggestion put to him that respondent No.2 does not pay tax separately, besides there is an unequivocal deposition in his cross-examination of both maintaining accounts of business. Moreover, there is denial that qua residential premises they defray separate taxes to the Municipal Authorities. Lastly, he deposes that he has a pan card number and the income tax account number in his name. With all the information collected by the learned counsel appearing for the petitioner/landlord from RW-1 during the course of his cross- examination of RW-1 and it plain speakingly bespeaking the factum of both, he and respondent No.2 being joint in business, as well, as, in mess, it was open to the learned counsel appearing for the petitioner/landlord to concert to produce records pertaining to the accounts maintained by both the respondents qua their business, as well, as qua the fact that whether the money as earned by them from their purported joint or collective business was not put in a common pool and was subjected to individual tax liability, on whose adduction alone an inference of severance of the Joint Hindu Family constituted by them was deducible. However, when the learned counsel for the petitioner/landlord has omitted to endeavour to bring forth or adduce best evidence comprised in adduction into evidence of books of accounts maintained by respondents No.1 and 2 qua their purported collective/joint business as also omitted to adduce into evidence the tax

returns filed by the respondents and theirs portraying that the income earned from their joint and collective business was not channelized into a common pool, so as to as a corollary convey that, hence, they were separate in business, as well, as in mess. Consequently, omission on the part of the learned counsel appearing for the petitioner/landlord to do so, forcefully and with aplomb is communicative of the fact that such efforts were omitted to be made by the counsel for the petitioner/landlord as he was wary that in case such evidence is adduced, it would be adverse to his purported projection, of both the respondents not constituting a Joint Hindu Family. In sequel, when it is to be concluded that both the respondents constituted a Joint Hindu Family, as such, dehors the fact that even if the water and electricity connections, as well, as gas connection qua the demised premises stand in the name of respondent No.2, yet when respondent No.2 is constituting a Joint Hindu Family along with respondent No.1, his brother, as such, when both are engaged in collective business, the occupation or possession of the demised premises by respondent No.2 is to be construed to be for the Joint Hindu Family constituted by him with respondent No.1 or in other words, it is to be construed to be business by or on behalf of respondent No.1, the latter being its ‘Karta’. As a corollary, it has no element of respondent No.1 having lost dominion or control over the demised premises, obviously also it cannot be concluded that respondent No.1 has for valuable consideration parted with its possession, in favour of respondent No.2.

29th August, 2014.

(Sureshwar Thakur) (jai/priti)

Judge