R.L.ANAND, J. - (1.) THIS is a tenants revision's and has been directed against the order dated 1st February, 2000 passed by the appellate authority, Bathinda, who dismissed the appeal of Shri Jugraj Pal under Section 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as "the Act") by allowing the cross-objections of the landlord.
(2.) SHRI Bhim Sain landlord filed the ejectment petition under Section 13 of the Act against the petitioner-tenant on different grounds such as, ceased to occupy the demised shop for more than four months; unsafe and unfit for human habitation; demised premises is required for this personal use and that the respondent-tenant is in arrears of rent. The petition was contested by the tenant tooth and nail and the Rent Controller framed the following issues : 1. Whether the respondent is liable to be evicted from the disputed shop for non-payment of rent/house tax w.e.f. 1.4.1992 ? OPA 2. Whether the respondent has closed the shop for more than four months and liable to be evicted from the shop in dispute on this ground also ? OPA 3. Whether the shop in dispute is in a dilapidated condition and is unsafe and unfit for human habitation ? OPA 4. Whether the appellant requires the shop for personal necessity ? OPA 5. Whether this Court has no jurisdiction to try this case ? OPR 6. Whether the application of the application is not maintainable in the present form ? OPR. 7. Relief. After giving opportunities to both the parties, the learned Rent Controller vide order dated 9.5.1998 passed the order of eviction on the ground of ceased to occupy and the reasons are incorporated in paragraphs 9 and 10 of the said order, which are reproduced as under : "9. Whereas the learned counsel for the petitioner has contended that the respondent had ceased to occupy the demised premises for more than four months on 12.12.1995 when the present petition was instituted, the learned counsel for the respondent has asserted that the respondent has been carrying on his business regularly and the shop has never remained closed. After hearing the learned counsel for the parties and after going through the file, I am of the considered opinion that the petitioner has been able to prove beyond reasonable doubt that the respondent ceased to occupy the demised shop for more than four months without any sufficient cause. My opinion above said is based upon the following reasons : A) The petitioner stepped into witness box as AW3 and he stated on oath that the shop had been lying closed for more than 4 months that immediately preceded the day the present petition was instituted without any sufficient cause. He was subjected to cross-examination, but his veracity could not be shaken. B) Ex. A51 and Ex. A52 are the copies of the meter reading record register duly maintained by the Electricity Board. A perusal of these reveals that in a period of 22 months commencing from 20.3.1994 and ending on 25.1.1996 (The present petition was instituted on 12.12.1995) the respondent consumed only 90 units of electricity. As per his (respondent) own admission made by him on page 2 of his cross-examination as RW3, the respondent carried on the repairs of the Radio, Press, Transistors etc. and he consumed electricity worth Rs. 150/- every two months. That way, he should have consumed about 35 units per month. However, as revealed by Ex. A51 and Ex.A52, the respondent consumed 90 units in 22 months, whereas as per his own admission he should have consumed around 750 units of electricity. Thus, the consumption of 90 units in a period of 22 months immediately preceding the day the present petition was instituted is a strong pointer to the fact that the shop has been lying closed. C) In order to support his claim that the respondent consumed about 70 units of electricity in every two months the respondent tendered into evidence the electricity bills Ex.DB, Ex.DC and Ex.DD. The bill Ex.DB is in respect of the electricity consumed by the respondent for a period commencing from 20.1.994 and ending on 20.3.1994. The said bill certainly corroborates the claim of the respondent as it reveals that during the above-said period of two months the respondent consumed 66 units. That apparently means that at least upto 20.3.1994, the respondent kept opening the demised shop. However, his own bill Ex.DC establishes that after 20.3.1994 the shop remained closed. The bill Ex.DC reveals that in a period of six months commencing from 20.3.1994 and ending on 23.9.1994 the respondent consumed only 24 units. That way, instead of consuming 35 units per month during the said period, the respondent consumed four units every month only. As discussed above, the respondent has himself admitted as RW3 that if he carried his business, he was required to consume at least 35 units per month, but as discussed above his own bill Ex.DC clearly reveals that for the period above said he consumed four units per month only. In the absence of any explanation to the contrary, it is assumed that the consumption fell from 35 units to four units per month, only because the shop was closed by the respondent. D) Although the respondent asserted that he had not closed the shop continuously for more than four months, yet his conduct belies his claim. On page 3 of his cross-examination recorded on 7.4.1998, the respondent admitted that previously the telephone bearing No. 20307 was lying installed in the demised premises, but he had shifted the same to his house. He did not explain as to what necessitated the shifting of the telephone from his shop to his house. In the absence of any explanation to the contrary, it is assumed that telephone had to be shifted only because the demised shop was closed. E) On page 2 of his cross-examination recorded on 24.2.1998 the respondent claimed that he had been maintaining the accounts books w.e.f. 1994-95 onwards. He went on to claim that he maintained the bill books, cash book, ledger and the bills, therefore, in order to substantiate his claim he brought in his ledger Ex.DA perusal of the same reveals that it had been prepared during the pendency of these proceedings, although it was claimed that it pertained to the year commencing on 1.4.1994 and ending on 31.3.1995. F) As per the respondent, he used to do the repair work worth Rs. 1,500/-, Rs. 2,000/- per month. However, a perusal of the ledger Ex.DA reveals that in the year commencing from 1.4.1994 and ending on 31.3.1995 he did the repair work of Rs. 7,659/- only. He did not explain the discrepancy between his oral claim and his ledger above-said. That discrepancy apparently makes the entries in the book Ex.DA doubtful. G) Page 37 of the book above-said comprehensively establishes that the book contained fictitious entries. On the said page the first entry is dated 25.5.1994 and second is 7.4.1994 and third is 7.5.1994 and the fourth is 8.6.1996. No explanation was made as to the entry dated 7.4.1994 and 7.5.1994 were made after the entry dated 25.5.1994. The very fact that the entry dated 25.5.1994 was made first and the entries dated 7.4.1994 and 7.5.1994 were made subsequently establishes that the entries are fictitious. H) On page 2 of the book Ex.DA, it has been recorded that the respondent paid a sum of Rs. 10,710/- by way of interest to the firms Messrs Satpal Sanjay Kumar on 31.3.1995. On page 20 of the book above-said is the account of the firm above-said. Herein no entry has been made of the fact above-said. Thus, the above-said discrepancy has clearly established that the entries in Ex. DA are fictitious. I am of the opinion that respondent was prompted to make fictitious entries in the book Ex.DA only in order to create evidence. In other words, the respondent had to rely upon fiction (Ex.DA) only because he know that the shop had remained closed as claimed by the petitioner. I) Learned counsel for the respondent suggested that the electricity bill could not be relied upon as it was a common knowledge that the people by hook or crook saw to it that the actual consumption was not recorded by the meter supplied by the Electricity Board. Similarly, he suggested that the account book Ex.DA can also not be relied upon as most of the people were in the habit of preparing fictitious books in order to save income-tax. I wonder, if any court of law can encourage the people in violating laws of the land with impunity. Hence, the less said about the contention is the better. J) Learned counsel for the respondent has contended that the period of four months has not been exactly specified. Hence, as per the learned counsel for the respondent, the claim that the shop remained closed for months remains vague. However, I do not agree with the learned counsel for the respondent. In sub-para 3 of the petition, the following was claimed by the petitioner :- "That the respondent has closed the shop for more than four months. So the respondent is liable to vacate the shop." The petitioner made the following statement on page 2 of his examination-in- chief :- "When the petition was filed the shop had been lying closed for more than months, without any case." Thus, it is abundantly clear that the case of the petitioner is that the shop had been lying closed for more than four months that immediately preceded the day the present petition was instituted. K) On page 7 of his cross-examination, the petitioner PW3 made the following statement:- "It is correct that previously also I had filed a rent petition on the same grounds and that was dismissed." On the strength of the facts above-said, learned counsel for the respondent has contended that once it was decided that the shop in question had not remained closed during the period in question, the question cannot be reopened through these proceedings. However, a perusal of the statement made by the petitioner and reproduced above only reveals that previously also a petition on similar grounds had been made. However, it in no way establishes that in the judgment pronounced upon the above-said previous petition, it has been held that the shop had not remained closed for the period that immediately preceded the institution of the present petition. Had the case been so, the respondent could have easily demolished the case of the petitioner by tendering a copy of the said judgment in the present proceedings. The failure of the respondent to tender a copy of said judgment establishes that the proceedings did not pertain to the period which is the subject matter of the present proceedings. L) On page 6 of his cross-examination the petitioner PW3 stated that there were about 50 shops in the market, wherein the demised shop is situated and 30 shops out of the same were lying closed. On the strength of the above-said, learned counsel for the respondent stated that the entries in Ex.DA were correct as the business in the market was nominal. However, the contention is not acceptable for the simple reason that the respondent himself claimed that he had been earning a sum of Rs. 1,500/- to Rs. 2,000/- every month by repairing radio etc. However, as discussed above, the book does not support the above-said claim of the respondent. Furthermore, the book has already been held to be fictitious document by giving detailed reasons." 10. In view of the discussion made above, it is held that the petitioner has been able to prove that the demised shop remained closed for more than four month that immediately preceded the institution of the present petition. The very absence of any explanation for the closing of the shop by the respondent goes on to establish that the shop remained closed, without any reasonable cause. Hence, issue is decided in favour of the petitioner."
(3.) THE other grounds of eviction, according to the learned Rent Controller, were not established. The tenant filed the appeal. Similarly, the landlord filed the cross-objections. Vide the impugned order the appeal of the tenant was dismissed while the cross-objections of the landlord were allowed. The appellate authority however, affirmed the findings of the Rent Controller with regard to ceased to occupy the tenanted premises. In this manner, the tenant has filed the present revision.;