J.V.GUPTA,J - (1.) THIS is tenant's revision petition against whom ejectment application was dismissed by the Rent Controller but eviction order was passed in appeal by the Appellate Authority.
(2.) DURING the pendency of this revision petition, Civil Miscellaneous Application No. 152-CII of 1989 was moved on behalf of the legal representatives of the tenant Darshan Kumar alleging that he had not been heard of by the applicants who would naturally have heard of him if he had been alive and that it shall be presumed as provided in Section 108 of the Evidence Act, that he has died. Notice of the application was given to the counsel for the landlord. No reply has been filed to the said application, nor the same is being contested. Consequently, the same is allowed. The landlord Ranbir Gupta and Shrimati Satya Gupta sought the ejectment of their tenant Darshan Kumar by filing an ejectment application dated September 8, 1980, inter alia on the ground that the tenant had ceased to occupy the demised premises for a continuous period of more than four months without reasonable cause. It was alleged that the said tenant was in arrears of rent since April 1, 1972. During the pendency of the ejectment application, the wife of the tenant Smt. Raj Rani moved an application that since her husband Darshan Kumar was of an unsound mind and was being looked after by her who worked with him in the shop, in dispute, his whereabouts were not known. He had not regained soundness of mind; otherwise, he would have returned home. Therefore, she may be allowed to contest the ejectment application. That application was resisted by the landlord. The learned Rent Controller framed the necessary issue : whether the respondent is of unsound mind ? If so, its effect ? After recording the evidence, the learned Rent Controller vide order dated October 30, 1982, came to the conclusion :- "In the present case, the respondent though shown attending to his business in shop assisted by his wife, was in a disturbed mental condition and the fact that he left the house, never to return, further goes to show his disturbed mental condition. It is, thus, evident that Darshan Kumar was suffering from mental infirmity in consequence of which he was incapable of protecting his own interest and moreover his whereabouts are not known. His rights have, therefore, to be protected under Order 32 rule 15 C.P.C. and he has to be sued through a guardian or next friend. It is, thus, proved on record that Darshan Kumar respondent was suffering from mental infirmity. This issue is accordingly decided in favour of the respondent." Consequently, the wife of the tenant contested the ejectment application and filed the written statement. She pleaded that the tenant had been occupying the shop, in dispute, with his wife till August 6, 1980, when he disappeared in a state of unsoundness of his mind and has not ceased to occupying the shop, in question, without sufficient cause for a period of four months before filing the ejectment application. She tendered the arrears of rent on the first date of hearing, but the same were not accepted by the landlords on the ground that they were not tendered by a competent person. The learned Rent Controller found that the tender was valid and that here was no cogent and satisfactory evidence produced by the landlords to prove that the tenant had cease to occupy the shop in dispute, for a continuous period of more than four months without any reasonabl cause. Consequently, the ejectment application was dismissed vide order dated February 28, 1983. In appeal, the Appellate Authority reversed the said finding of the Rent Controller on both the said issues. It was found that the tender made by Smt. Raj Rani, the wife of tenant, was invalid and that the tenant had ceased to occupy the premises for a continuous period of more than four months without any reasonable cause. Consequently, the eviction order was passed on May 3, 1988.
(3.) THE learned counsel for the petitioner submitted that the landlord did not mention any specific period for which the tenant ceased to occupy the premises without any reasonable cause. In the absence of any specific period, argued the learned counsel, the Rent Controller rightly found that there was no cogent evidence to prove the said fact and dismissed the ejectment application, but the view taken by the Appellate Authority in this respect was wholly wrong, illegal and arbitrary. In order to contend that the landlord should mention the period for which the tenant has ceased to occupy the demised premises, the learned counsel relied upon Karam Chand Joshi v. Kartar Singh, 1977(1) RCR 327 : 1977 Rent Law Reporter 779 and Puran Singh v. Ram Murti, 1981(2) Rent Law Reporter 448. It was also submitted that physical possession as such was not necessary to occupy the demised premises, if the tenant was otherwise in occupation thereof. Reference in this behalf was made to Buta Ram v. Balwant Singh, 1987 Haryana Rent Reporter 617.;