Haryana Urban (Control of Rent and Eviction) Act, 1973 – Section 13(2)(v) – Ceased to occupy – Evidence – Onus of Proof -- Premises remained without electricity for continuous period of four months – Landlord led reliable evidence, even through oral, that the tenant has ceased to occupy the shop – Burdon of proof shifted to tenant -- The positive evidence to show the contrary could be led by only the tenant, it is not possible for the landlord to led evidence in negative – No positive evidence led by the tenant – Eviction order upheld.

While passing an order of eviction, reliance is not being placed only upon the fact that the disputed premises had remained without any electricity for August, September, October and November, 1984 but also upon the statements of PW 1, PW 2 and PW 3. That apart to, a specific question put to learned counsel representing the petitioner as to whether the petitioner led any evidence to show that any business had since been transacted in the premises in dispute, which, concededly is a shop, the forthright and candid answer is “No”. In the kind of case in hand, the positive evidence could be led only by the tenant. In other words, if the shop had been occupied or the tenant had not ceased to occupy it, he had to lead positive evidence to show the contrary. Burden, that is upon the landlord to prove the non-occupancy of premises, is discharged, when he leads reliable evidence, even though oral, that the tenant had ceased to occupy the shop. It is not possible for landlord to lead evidence in negative. No merits in the appeal, the same is dismissed.

(Paras 4, 5)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Sections 13(2)(v) – Ceased to occupy – Tenant kept the shop in question closed for more than 4 months -- Tenant’s plea that shop remained closed due to his illness – This plea was not taken at the earlier stage – Finding of fact recorded against tenant cannot be disturbed.

Shop in question had been kept locked since the year 1987 up to the date of the filing of the ejectment petition. Arguments that the shop had been kept closed for the reasons that the tenant had been ill and had been admitted to hospital and, had therefore, not been able to conduct his business during that period. This particular point has not been raised by the tenant at any stage. On the contrary it has come in the evidence of the landlord/respondent that the shop appeared to have been kept closed for a period of four months in the year 1987 for no apparent reason. The finding of fact recorded against the tenant, thus, cannot be disturbed. The petition is accordingly dismissed.

(Para 5)

Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 1(3), 13 -- Transfer of Property Act, Section 106 -- Ejectment -- Subsequent events -- Change in law -- Plaintiff-Appellant filed suit for possession after serving a notice under Section 106 of Transfer of Property Act for termination of tenancy -- Suit was decreed by trial Court -- But when appeal was pending, Haryana Rent Act became applicable as Town Kharkhoda was declared a notified Area in 1986 -- Held that ejectment decree though passed before enforcement of Rent Act was not executable due to subsequent events.

Full Bench of this Court in Sawan Ram V/s Gobinda Ram and another, 1980(1) Rent Control Reports 21 has held that the intention of the Legislature while enacting the Rent Act was to exclude both the jurisdiction of the Civil Courts as also the application of general law of landlord and tenant. It has been further held that the earlier civil Court decree would be rendered inexecutable and the tenant should not be evicted thereunder.

Subsequent applicability of the Rent Act on account of declaration of urban area would render the decree of the civil Court inexecutable.

In Beg Raj Singh V/s State of UP and others 2003(1)SCC 726, Supreme Court has held that a petitioner though entitled in law may yet be denied relief in equity because of subsequent or intervening events. One of the circumstances on which relief can be denied is that the relief to which the petitioner is held entitled can be rendered incapable of being granted by change of law.

In terms of the provisions of Section 13 of the Rent Act, the decree passed by the Civil Court cannot be executed. Since the decree cannot be executed, the Courts shall not pass the futile decree as held by the Full Bench in Sawan Ram’s case.

(Paras 13,14,17,18)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13(2)(i) – Eviction of tenant -- Arrears of rent – Provisional assessment of rent – First date of hearing -- Decision in Rakesh Wadhawan’s case correctly lays down the law, re-affirmed -- Interpretation placed by this Court in Rakesh Wadhawan’s case 2002 (5) SCC 440 = (2002) Law Today Live Doc. Id. 16854 on Section 13(2)(i) with the proviso in the Punjab Act applies for interpreting Section 13(2)(i) and the proviso as contained in the Haryana Act.

(Para 9)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Section 4 (1) (2) – Fair rent – Agreement of lease period expired on 31.12.1969 – The application for determination of fair rent was filed on 20.12.1980 -- There was no subsisting agreement between the parties when the application for determination of fair rent had been filed on 20.12.1980 -- The approach of both the Courts below in adopting the rent on the basis of agreement which was subsisting upto 31.12.1969 as the basic rent was totally erroneous.

 (Para 4)