Holding

The High Court exceeded its revisional jurisdiction by re‑appreciating evidence; the landlord had discharged the burden of proof under Section 13(2)(v), so the eviction decree stands.

Summary

The landlord, Ram Dass, filed an eviction suit against his tenant, Davinder, under Section 13(2)(v) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, alleging the tenant had ceased to occupy the shop for four months without reasonable cause. The Rent Controller decreed in favour of the landlord, a decision affirmed by the Appellate Authority. The Punjab and Haryana High Court, on revision under Section 15(6), reversed those findings and dismissed the suit. On appeal, the Supreme Court held that the High Court had exceeded its revisional jurisdiction by re‑appreciating evidence and misreading the record, and that the landlord had discharged the burden of proof, shifting the onus to the tenant who failed to show a reasonable cause. Consequently, the Court restored the lower authorities' decree, directing the tenant to vacate and give possession to the landlord by 30 April 2004.

Issues considered

The scope of the High Court's revisional jurisdiction under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, particularly whether it may re‑appreciate evidence.
Whether the landlord satisfied the burden of proof under Section 13(2)(v) by establishing that the tenant ceased to occupy the premises without reasonable cause.
The legal distinction between "possession" and "occupy" in the context of the Act.

Legislation cited

Haryana Urban (Control of Rent and Eviction) Act, 1973s. 13(2)(v), s. 15(6)

Subjects

rent controlevictionlandlord-tenantrevisional jurisdictionburden of proofpossessionoccupationHaryana Urban (Control of Rent and Eviction) ActSupreme Court

Judgment

A RAM DASS
V.

DAVINDER

MARCH 24, 2004

B [R.C. LAHOTI AND DR. AR. LAKSHMANAN, JJ.]

Rent Control and Eviction: 1 •

Ha1yana Urban (Control of Rent and Eviction} Act, 1973, Ss. I 3(2}(v)
c and 15(6):
Suit for eviction on ground that tenant ceasing to occupy the suit premises
without reasonable cause-Decreed by Rent Control/er-Affirmed by Appellate
Authority-Reversed by High Court in revision,--On appeal, Held: No fault
could be found in the manner of dealing and marshalling of eyidence by the
D Rent Controller and its re-evaluation by the Appellate Authority-Protection
to tenant available so long as tenant occupies the premises in terms of tenancy
agreement-Landlord could evict a tenant on breach of conditions of tenancy
agreement-Burden ofproof lies on landlord-When Landlord discharged his
burden by showing breach of condition by the tenant, ground for eviction
made out-Onus shifts on tenant to rebut the same by showing reasonable
E
cause-Landlord has made out a case for eviction by establishing that the
tenant ceased to occupy the suit premises for quite a iong period but tenant
failed in discharging his onus-Thus, the Rent Controller rightly arrived at
the findings- High Court by re-appreciating evidence misread the evidence
to some extent and reversed the well considered findings of the Courts below--
F Hence, judgment of the High Court set aside and that of the Rent Controller
restored.
Constitution of India, 1950:
Revisional Jurisdiction of High Court:
Held: Under its revisional jurisdiction it is not open to High Court to
G
re-appreciate. evidence.

Words and Phrases: 'possession' and 'occupy '-Meaning of

Appellant-landlord filed a suit for eviction against the respondent-
• '-'
H 518
RAM DASS v. DAVlNDER 519
tenant on the ground available under Sectfon 13(2)(v) of the Haryana A
Urban (Control of Rent and Eviction) Act. The suit was decreed by the
Rent Controller and affirmed by the Appellate Authority. However, on
revision, High Court reversed the findings of the Courts below and
dismissed the suit. Hence the present appeal.

Allowing the appeal, the Court B

HELD: I.I. No fault can be found with the manner in which the
evidence has been dealt with and marshalled by the Rent Controller. The
Appellate Authority has made an independent evaluation of the evidence
and confirmed the findings of the Rent Controller. The High Court has, C
while exercising its revisional jurisdiction, entered into re-appreciation of
evidence not open to it; more so, keeping in view the manner in which the
exercise has been undertaken by it. There was to some extent misreading
of the evidence by the High Court. It has proceeded on erroneous
assumptions to reverse the findings of facts concurrently arrived at by the
two authorities below and such exercise by the High Court as also the D
conclusions drawn therefrom cannot be countenanced in as much as they
are vitiated. High Court has exceeded its jurisdiction by reversing the
well considered findings of fact arrived at by the Courts below.
[522-C-D; 523-A-B[

1.2. The terms "possession" and "occupy" are in common parlance E
used interchangeably. However, in law, possession over a property may
amount to holding it as owner but to occupy is to keep possession of it by
being present in it. [523-C[

1.3. The Act protects the tenants from eviction and enacts specifically
the grounds on the availability whereof the tenant may be directed to be F
evicted. It is for the landlord to make out a ground for eviction. The burden
of prooflies on him. However, the onus keeps on shifting. Once the landlord
has been able to show that the tenancy premises were not being used for
the purpose for which they were let out and the tenant has discontinued such
activities in the tenancy premises as would have required the tenant's G
actually being in the premises, the ground for eviction is made out. The
availability of a reasonable cause for ceasing to occupy the premises would
obviously be within the knowledge and, at times, within the exclusive
knowledge of tenant. Once the premises have been shown by evidence to
be not in occupation of the tenant, the pleading of the landlord that such
non-user is without reasonable cause, has the effect of putting the tenant H
520 SUPREME COURT REPORTS [2004] 3 S.C.R.

A on notice to plead and prove the availability ofreasonable cause for ce·asing
to occupy the tenancy premises. [523-F-G-H[

1.4. In the present case, the landlord has made out a case of the
tenant's ceasing to occupy the. tenancy premises and the onus, therefore,
had shifted on the tenant either to rebut the case made out by the landlord
B or to allege and prove any reasonable cause for ceasing to occupy the
premises. However, the landlord has fully discharged his obligation of
making out the case of his entitlement to evict the tenant under Section
13(2)(v) of the Act. The tenant has failed in discharging his onus. The r ,
Rent Controller rightly arrived at the finding of the fact and decreed the
C suit. There was no case for interference at the hands of the High Court.
The impugned judgment of the High Court is set aside and that of the
Controller restored. [524-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3868of1999.

From the Judgment and Order dated 23.3.98 of the Punjab and Haryana
D
High Court in C.R. No. 1729 of 1997.

P.C. Jain and Bal.bir Singh Gupta for the Appellant. 1

Ravindra Bana for the Respondent.
E The Judgment of the Court was delivered by

R.C. LAHOTI, J. A suit based on landlord-tenant relationship, filed
by the appellant against the respondent, on the ground available under Section
13(2)(v) of the Haryana Urban (Control of Rent & Eviction) Act, 1973
(hereinafter the 'Act', for short) was decreed by the Rent Controller, Rohtak
F
and maintained in appeal by the Appellate Authority. In a revision preferred ,..(

under Section 15(6) of the Act, the High Court has set aside the findings of
the two authorities below and directed the application seeking eviction of the
respondent to be dismissed. Feeling aggrieved, the landlord has filed this
appeal by special leave.
G
Under Section 13(2)(v) of the Act, on an application filed by a landlord
seeking to evict his tenant, the Controller may, after giving the tenant a
reasonable opportunity of showing cause against the application, make an
order directing the tenant to put the landlord in possession of the building if •
the Controller is satisfied that the tenant has ceased to occupy the building
H for a continuous period of four months without reasonable cause.
RAM DASS v. DAVINDER [LAHOTI. J.] 521
.'"I- The existence of landlord-tenant relationship between the parties is not A
in dispute. The suit accommodation is a shop situated in commercial locality.
The respondent seems to be a petty shopkeeper. He sells sweets and vends
tea from the suit shop. According to the appellant, the respondent had ceased
to occupy the shop for a continuous period of four months without reasonable
cause. The period during which the premises are alleged to have remained B
without occupation is since February 1990 till the date of filing of the
application, i.e. 14.6.91.

> 'I:. A perusal of the decision of the Controller shows that overwhelming
evidence was adduced by both the parties in support and denial of the
averments made in the application seeking eviction. Some pieces of evidence C
adduced by the landlord need to be noticed briefly. Meter Reader of the
locality was examined to show that there was no consumption of electricity
during this period. Repeated notices, eight in number, were sent through
registered AID post by the landlord to the tenant during this period which
were all returned with the postal endorsement that in spite of repeated attempts
made by the postman, stretched over a period of about one week in each D
case, no one was available at the given address to accept the service of
registered letter and the premises were found closed. The postman deposed
to these facts. Undisputedly the address as given on each of the letters was
correct and related to the suit premises. The court process server was examined
as deposing that on several occasions he had gone to the suit premises for E
effecting service of the court summons but he failed to effect service on
account of none being available at the premises which were invariably found
locked. The landlord had arranged for photographs of the suit premises being
taken. The photographer was examined to prove the photographs, tendered in
evidence, which showed the suit premises closed and locked while adjoining
shops were open and the space just in front of the shop and immediately F
abutting it was being used for parking cycles which would not have been
practical unless the suit premises were closed and not in use. There is other
oral evidence including the statement of the landlord himself to support his
plea.

The tenant did examine a few witnesses of the locality who deposed to G
the shop having continued to remain in use and occupation of the respondent-
tenant. However, the stand taken by the respondent in his pleadings,
examination-in-chief and cross-examination has been shifting one. To begin
with, his stand was that the shop had never .remained closed much less for
a continuous period of more than four months. However, at one place his H
522 SUPREME COURT REPORTS [2004] 3 S.C.R.

A stand was that he had remained sick for sometime and therefore became
irregular in opening the shop and during sickness opened the shop for a few
hours in a day. No medical evidence was adduced to support such plea. At
another place his stand was that his father was having a flour mill at a little
distance from the suit premises and when there was none else available to
look after the flour mill, he himself used to sit at the flour mill. So is the case
B with those shopkeepers of the locality who appeared as witnesses for the
respondent. They gave varying statements as to the hours of the day when the
shop was kept open by the respondent and as to the activity carried on by the
respondent in the suit premises. 7 • I'

c evidence,
Be that as it may, having gone through the lengthy discussion of
documentary and oral, as contained in the judgment of the trial
Court, with the assistance of the learned senior counsel for the appellant, we
are satisfied that no fault can be found with the manner in which the evidence
has been dealt with and marshalled by the Controller. The appellate authority
has made an independent evaluation of the evidence and confirmed the findings
D of the Controller. The High Court has, while exercising its revisional
jurisdiction, entered into re-appreciation of evidence not open to the High
Court; more so, keeping in view the manner in which the exercise has been
undertaken by the High Court. To say the least, we find that there is to some
extent misreading of the evidence by the High Court. We may give just two "
illustrations. While criticizing the testimony of postman the High Court goes
E
on to observe that the postman claims to have visited the suit premises even
on Sundays when the post office remains closed and the postman is not on
duty. We have carefully read the statement of the postman. He has nowhere
claimed having been· on duty and visited the shop on Sundays. The
endorsements made on the registered letters returned unserved have been
F carefully examined by us with the assistance of the learned counsel for the
parties and keeping the calendar of the year 1991 before us. We find none
of the endors~ments made by the postman relates to a date which was a
Sunday or holiday. Similarly, the High Court holds that one of the summons
was actually delivered by the process server to the respondent-tenant although
the process server has deposed that the respondent was not available at the
G premises. How these two self-contradictory things could have taken place-
asks the learned Judge posing a question to himself. If only the deposition of
the process server would have been carefully read it would have been revealed
that what the process server was deposing was that the respondent was not
available at the suit premises to accept the service of summons which premises
..
H were locked but he was available at a little distance away from the suit shop
'' ~
RAM DASS v. DA VINDER ILAHOTI. J] 523

, and at the flour mill premises of the respondenfs father and there the service
was effected. Thus the High Court has proceeded to reverse, on erroneous
A

assumptions, the findings of facts concurrently arrived at by the two authorities
below and such exercise by the High Court as also the conclusions drawn
therefrom, we find difficult to countenance inasmuch as they are vitiated. We
are clearly of the opinion that the High Court has exceeded its jurisdiction in
reversing the well considered findings of fact arrived at by the two courts
B
below.

The terms "possession" and "occupy" are in common parlance used
) 4 interchangeably. However, in law, possession over a property may amount to
holding it as an owner but to occupy is to keep possession of by being c
present in. The Rent Control Legislations are outcome of paucity of
accommodations. Most of the Rent Control Legislations, in force in difference
states, expect the tenant to occupy the tenancy premises. If he himself ceases
to occupy and parts with possession in favour of someone else, it provides
a ground for eviction. Similarly, some legislations provide it as a ground of
eviction if the tenant has just ceased to occupy the tenancy premises though D
he may have continued to retain possession thereof The scheme of the Haryana
Act is also to insist on the tenant remaining in occupation of the premises.
... Consistently with what has been mutually agreed upon the tenant is expected
to make useful use of the property and subject the tenancy premises to any
permissible and useful activity by actually being there. To the landlord's plea E
of the tenant having ceased to occupy the premises it is no answer that the
tenant has a right to possess the tenancy premises and he has continued in
juridical possession thereof The Act protects the tenants from eviction and
enacts specifically the grounds on the availability whereof the tenant may be
directed to be evicted. It is for the landlord to make out a ground for eviction.
The burden of proof lies on him. However, the onus keeps shifting. Once the F
landlord has been able to show that the tenancy premises were not being used
;..
for the purpose for which they were let out and the tenant has discontinued
such activities in the tenancy pr~mises as would have required the tenant's
actually being in the premises, the ground for eviction is made out. The
availability of a reasonable cause for ceasing to occupy the premises would G
obviously be within the knowledge and, at times, within the exclusive
knowledge of tenant. Once the premises have been shown by evidence to be
not in occupation of the tenant, the pleading of the landlord that such non-

,,
. user is without reasonable cause has the effect of putting the tenant on notice
to plead and prove the avaiiability of reasonable cause for ceasing to occupy
the tenancy premises.
H
524 SUPREME COURT REPORTS [2004] 3 S.C.R.

A In the present case, the landlord has, through his pleadings and by
adducing evidence, made out a case of the tenant's ceasing to occupy the t
tenancy premises and the onus, therefore, had shifted on the tenant either to
rebut the case made out by the landlord or to allege and prove any reasonable
cause for ceasing to occupy the premises. In our opinion, in the case at hand
B the landlord has fully discharged his obligation of making out the case of his
entitlement to evict the tenant under Section 13 (2)(v) of the Act. The tenant
has failed in discharging his onus. The Controller and the Appellate Authority
rightly arrived at the finding of the fact which they did. There was no case
for interference at the hands of the High Court. .(
c The appeal is allowed. The impugned judgment of the High

Court is set aside and that of the Controller, as affirmed by the Appellate
Authority, is restored. The respondent-tenant is directed to put the landlord-
appellant in possession of the suit premises on or before 30th April 2004.

D S.K.S. Appeal allowed.

.