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(2003) Law Today Live Doc. Id. 10257 = 2004 L.A.R. 77
Decided on 24.09.2003
For the Petitioner Mr. M.L.Sarin, Senior Advocate with Ms. Sweena Pannu, Advocate
For the Respondent Mr. O.P. Goyal, Senior Advocate with Mr. Parmod Goyal, Advocate
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)
Case Referred:
1. Sohan Lal and another V/s Gurbachan Singh of Amritsar, 1989HRR 438 = (1989-2) 96 P.L.R. 478
JUDGEMENT
Mr. Justice V.K. Bali.-- This revision has been filed by the tenant, who suffered an order of eviction in the proceedings launched against him under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “the Act”) vide order dated 4.11.1985 passed by the Rent Controller, Palwal and which order has since been confirmed by the appellate authority in an appeal preferred by him vide judgment dated 14.5.1986.
2. Concededly, eviction of the petitioner has been ordered on the ground that petitioner has ceased to occupy the demised premises for a continuous period of four months, which, concededly, is one of the grounds specified to seek eviction of the tenant under the provisions of the Act.
3. Learned counsel, after reading paragraphs 8, 9 and 10 of the order passed by the learned Appellate Authority, vehemently, contends that the order of eviction has been passed on the solitary ground that the petitioner herein had not paid electricity bill or that there was no consumption of electricity for continuous period of four months and that it cannot in itself be made basis itself for eviction, as held by this Court in Sohan Lal and another Versus Gurbachan Singh of Amritsar, 1989 HRR 438 = (1989-2) 96 P.L.R. 478.
4. I do not find any merit in the only contention of the petitioner, as referred to above. It has specifically been mentioned in paragraph 10 of the judgment passed by learned Appellate Authority that by 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. This is not a case where eviction order has been passed on the sole ground that there was no consumption of electricity for a continuous period of four months. 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”. This Court is of the considered view that 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 to the contrary. Insofar as the landlord is concerned, he cannot show the non-acts of occupying and, therefore, the 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. I may reiterate here that it is not possible for landlord to lead evidence in negative.
5. Findings, no merit in this appeal, the same is dismissed, leaving, however, the parties to bear their own costs.
6. At this stage, Ms. Sweena Pannu, learned counsel representing the petitioner, prays that inasmuch as, the premises in dispute is a shop, the petitioner herein may be allowed three months time to vacate the same. The prayer made by learned counsel for the petitioner is not opposed by learned counsel representing the respondents.
7. The petitioner is, thus, allowed three months time subject to giving an undertaking that he shall positively vacate the premises in dispute after a period of three months and further that he shall pay all the arrears of rent, if any, and would also deposit rent of next three months within one month.
Petition dismissed
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