- (1.) THIS petition has been filed challenging the order dated 8-11-2011 passed by the Rent Appellate Tribunal, Sikar (hereinafter 'the Appellate Tribunal') upholding the order dated 31-5-2011 passed by the Rent Tribunal Sikar (hereinafter 'the Tribunal') allowing the eviction petition filed by the landlord Chandra Swarup Mathur (hereinafter 'the landlord') and thereupon issuing a certificate of possession in respect of tenanted shop near Salasar bus-stand. The facts of the case are that the landlord filed an eviction petition under Section 9 of the Rent Control Act, 2001 (hereinafter 'the Rent Act') against the petitioner No.1 tenant Ram Chandra Sharma (hereinafter 'the tenant') and one Nemi Chand Sain alleging therein that the tenanted premises was let out on 18-3-1996 on a rent of Rs.240/- per month. The landlord alleged that the tenant had caused damage to the rented premises; made material alterations without the permission of the landlord; created nuisance and used the shop for the purpose contrary to the contract for which the shop was let out. Further that the tenant was stated to have parted with the possession of the shop/ sublet the same to one Nemi Chand Sain.
(2.) ON notice, reply to eviction petition was filed by the tenant who denied the allegations in the eviction petition. On the basis of the pleadings of the parties, the Tribunal proceeded to frame the following issues:- ......[vernaculam text ommited]..... In respect of issues No.1 to 3, the Tribunal did not find the requisite evidence and decided the same against the landlord. However on the issue of parting with possession/ subletting the Tribunal found that the shop was let out on 18-3-1996, where from he was engaged in the business of selling footwear. But the tenant had subsequently ceased to engage in the business of selling footwear. Instead a barber's shop had been started in the tenanted premises. The Tribunal considered the evidence in defence brought by the tenant that the barber shop in the tenanted premises was his own business and that Nemi Chand Sain was merely his employee on a salary of Rs.2500/- per month. However no documentary evidence was produced by the tenant. The Tribunal took into consideration the evidence on record that the tenant was at the time relevant driving a taxi and was not concerned with the running of the barber shop for which he had neither the training nor the experience. Based on the aforesaid findings on issue No.4, with regard to subletting/ parting with possession of the tenanted shop, the Tribunal vide impugned order dated 31-5-2011 proceeded to allow the eviction petition and issued a certificate of possession in favour of the landlord under Section 15 (7) of the Rent Act. Aggrieved of the order dated 31-5-2011, the tenant preferred an appeal before the Appellate Tribunal, which vide order dated 8-11-2011 considered the matter and found that on the evidence of parties there was requisite proof based on preponderance of probability to come to a conclusion that the tenanted shop had been sublet by the tenant to Nemi Chand Sain. The Tribunal held that the burden of establishing the fact of Nemi Chand Sain was an employee of the tenant had not been discharged by the tenant, owing to which nothing erroneous or perverse could be found in the order of the Tribunal passed on 31-5-2011. Heard learned counsel for the parties, and perused the writ petition as well as the impugned orders of the learned Tribunal and the Appellate Tribunal. Mr . Anoop Dhand, the learned counsel for the petitioner submits that there was no material before the learned Tribunal to come to a finding that Nemi Chand Sain was running the barber shop in his own capacity and not as an employee of the tenant. He submits that the case before the Tribunal was to be evaluated on the basis of oath against oath and consequently the Tribunal and Appellate Tribunal have erred in relying on oral evidence of the landlord to the exclusion of evidence of the tenant. On the contrary, Mr. Kamal Kant Mathur, learned counsel for the landlord submits that the findings arrived at by the learned Tribunals are on the basis of a wholistic evaluation of evidence before it, and concurrent findings of fact should not be interfered with by this court in the exercise of its power under Article 226/ 277 of the Constitution of India. On the material before this court, I am of the view that the findings arrived at by the Tribunals are based on the evidence laid before them. The Hon'ble Supreme Court in the case of Narayan Govind Gavate Vs. State of Maharshtra [1977 (1) SCC 133] has held that the result of a trial is determined by a weighing of the totality of facts and circumstances and taking into consideration the presumptions operating in favour of one party or those against it which tilt the balance of the trial in favour of one of the contesting parties. In the case at hand, it is not disputed that the rented shop was let out by the landlord to the tenant who engaged therefrom in selling of footwear. Subsequently the tenant appears to have abandoned the said business starting driving a taxi as evident from the evidence. On the material before the Tribunal, it was established that the barber's shop was being run thereafter in the rented shop by one Nemi Chand Sain without the permission of the landlord and that the tenant had neither skill or experience of running a barber's shop. In these circumstances the burden was on the tenant to establish that the said Nemi Chand Sain was not in possession of the rented shop in his own capacity but as an employee of the tenant. This burden was not discharged by the tenant. Consequently in my considered view, the learned Tribunal and the learned Appellate Tribunal have not committed any perversity nor are the impugned orders vitiated by any misdirection in law for coming to a conclusion that the rented shop had been let out/ parted with the possession without the permission of the landlord. This was in contravention of Section 9(e) of the Rent Act. Further the jurisdiction of this Court under Article 227 of the Constitution of India is extremely limited as held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil [(2010) 8 SCC 329] and no reason obtains in the facts of the present petition to exercise it in favour of the petitioners herein. Consequently, the writ petition is without any force and the same is dismissed. Stay application also stands dismissed.;