High Court of Punjab and Haryana, Chandigarh
Case Law Search
Anil Kumar v. Sita Devi & another - CR-1664-1995  RD-P&H 5461 (10 August 2006)
C.R. No. 1664 of 1995
Date of decision: 24-08-2006
Anil Kumar ..........Petitioner
Sita Devi & another ..........Respondents
CORAM: Hon'ble Mr.Justice Vinod K.Sharma
Present: Mr. Rajesh Garg, Advocate, for the petitioner.
Mr. M.L.Sarin, Senior Advocate with
Mr. Hemant Sarin, Advocate for respondent No.1.
1994 passed by the Rent Controller, Nabha, affirmed by the Appellate Authority, Patiala, vide order dated 20-02-1995, on the ground of sub-letting.
The respondent-landlord filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act ( hereinafter referred to as the Act.) for ejectment of the petitioner-tenant along with Siri Ram, allegedly sub-tenant, from the shop measuring 7' x 14' bearing property No.IV-1228/1229, situated on Sadhu Ram Dharamshala Road, Nabha.
The case set up by the landlord respondent No.1 was that the premises in dispute was taken on lease by the petitioner herein at a monthly rent of Rs.
200/- without roof thereof. A rent note was executed between the parties and the C.R. No.1664 of 1995
tenant-petitioner had agreed to pay all the taxes imposed upon the shop. The case of the landlord was that the tenant-petitioner did not prove to be a good tenant as he was not paying rent to her as well as the taxes and, therefore, ejectment was sought on the following grounds:- "(i) Respondent No.1 has failed to pay the rent of the demised property w.e.f. 1.6.1994. He has also not paid the house tax due and paid by her in the year 1991-92 as assessed by the Municipal Committee.
The rent of electric meter, which is installed in this shop in the name of her husband and which is Rs. 5- 50 PM is also due from him, since June 1991; (ii) Respondent No.1 without her express or implied consent has further leased out the demised premises respondent No.2 for stitching, purposes.
(iii) She requires the demised premises for her married son residence who has got two children aged 3 years and 2 years. Her daughter-in-law often quarrels with her for separate residence. In these circumstances, the joint residence in the present house is not possible. This house is insufficient to accommodate both the families. She wants to convert the shop in dispute into residential one by merging the same with the back residential potion and wants to shift her that son to the said premises. He is employed in Pb.
National Bank whereas his wife is employed in State Bank of India, at Nabha. Neither she herself nor her son vacated any other house in the past nor they are in exclusive possession of any other house." C.R. No.1664 of 1995
The application was contested by the tenant-petitioner. In the reply filed by him it was admitted that the shop in dispute was taken on rent @ Rs. 200/- per month, but the other contentions were denied. It was claimed that the roof of the shop was part and parcel of the demised shop. He also denied that he had sub-let the premises to respondent No.2. He further claimed that he was not known to him. It was also claimed that the property being commercial, the ground of personal necessity was not available to the landlord. It was also claimed that she had already sold one house adjoining to the shop to one Chhattar Pal son of Nand Lal. The further stand of the tenant petitioner was that the landlord wanted to dispose of the property along with the attached house. It was also claimed that she had even approached him (tenant). However, he had shown his unwillingness and expressed his inability to purchase the same. Thus it was claimed by the tenant-petitioner that the application was filed with a mala fide intention.
However, respondent No.2, the alleged sub-tenant, admitted that respondent No.1 had sub-let a portion of the demised premises to him. He further claimed that the portion of the property was leased out to him at Rs. 250/- per month and he was doing the business of tailoring and inter-locking therein. However, he prayed for dismissal of the application with costs.
On the pleadings of the parties, following issues were C.R. No.1664 of 1995
"1. Whether the tender made in the Court is legal and valid. If not, to what effect ? OPR.
2. Whether respondent No.1 has subletted the demised the demised premises to respondent No.2 without the consent of the applicant ?OPP
3. Whether the applicant bonafide requires the demised premises for the use of his married son ? If so, to what effect. ?OPA
3-A Whether the respondents have changed the user of the demised premises ? OPA
4-A Relief. "
The learned Rent Controller on issue No.1 held that the tender was legal and valid and accordingly, it was held that ground of non-payment was not available to the land-lady. However, on issue No.2, the learned Rent Controller came to the conclusion that the petitioner herein had sublet the portion of the shop in dispute to respondent No.2 without the consent of the landlady and decided the said issue against the petitioner-tenant. However, on issue No.3, it was held that the ground of personal necessity was not available to the landlady as the tenanted premises was being used for business right from the very inception of tenancy. Issue No.3-A was also decided in favour of the tenant-petitioner and against the landlady holding that there was no change of user. However, in view of the findings recorded on issue No.2, the tenant-petitioner was ordered to be evicted from the C.R. No.1664 of 1995
shop in dispute.
The tenant-petitioner filed an appeal before the Appellate Authority, Patiala. The same was dismissed and findings recorded by the learned Rent Controller on issue No.2 were affirmed. Even though no appeal was filed by the landlady against the order passed by the learned Rent Controller, the Appellate Authority on issue No.3 which was decided in favour of the petitioner herein was pleased to observe as under:-
" The demised premises admittedly were given on rent for commercial purposes and the same accordingly could not be vacated for the bonafide personal necessity of the applicant for the settlement of his married son. Argument of the ld. Counsel for the landlord that the demised premises was part of the residential building and was thus to be treated as residential one cannot be accepted. In the present case the fact is more or less admitted in the evidence led by the parties that there are two shops adjoining the shop in dispute and from the very inception of the tenancy the demised premises were being used for the purposes of running the business. Such a premises cannot be defined as residential premises by any stretch of imagination. The finding of the ld. Lower court on issue No.3 is, accordingly, upheld. This issue has already been decided against the landlord and the finding was not challenged by the counsel for the tenant at the stage of arguments."
The only challenge before the Appellate Authority was to C.R. No.1664 of 1995
the findings recorded on issue No.2 holding that the petitioner herein had sub-let the premises to respondent No.2. The contention of the learned counsel for the tenant-petitioner before the Appellate Authority to the effect that there was no pleading or evidence to prove that the tenant had abandoned the possession over the demised premises and possession thereof was exclusively with respondent No.2 and therefore, there was no question of sub-letting, was rejected by holding that in the present case only a part of the demised premises was sub-let and, therefore, the authorities relied upon by the counsel for the tenant-petitioner i.e. Pala Ram Vs. Om Dutt, 1993 (1) RLR 449 and Jagan Nath Vs. Vas Dev 1993 (1) SLJ 349 were distinguishable. The learned Appellate Authority came to the conclusion that in the case in hand what had to be seen, was as to whether the sub-tenant was absorbed in the business being carried out by the tenant or that he started some new kind of business therein. The learned Appellate Authority was of the view that in case the business is independent, then it could not be said that the control over the premises was that of the tenant. The other authorities relied upon by the petitioner i.e. Aroor Chand Vs. M/s Arora Textile Shuttle Works, 1990 (1) PLR 222 as well as Chanan Singh Chitti Vs. Darbara Singh, 1986 (2) PLR 86 were also distinguished by the learned Appellate Authority.
The learned Appellate Authority by relying upon the judgment of this Court in Om Parkash and other Vs Vidyawati and C.R. No.1664 of 1995
others, 1979 (1) RCR 566, came to the conclusion that there was no necessity of abandonment of possession by the tenant of the entire premises to sub-tenant to prove the ground of sub-letting. The Appellate Authority further came to the conclusion that the facts of the said authority were applicable to the case in hand and, therefore, sub- letting was proved.
The contention of the tenant-petitioner that respondent No.2 was the man of the landlady was rejected by the Appellate Authority by holding that no attempts were made to convert the stand taken by respondent No.2 in the pleading.
The contention of the tenant-petitioner to the effect that rate of rent on which premises was sub let was not mentioned in the petition, was rejected by holding that the same being a secret arrangement between the tenant and sub-tenant cannot be supposed to be in the knowledge of the landlady. The learned Appellate Authority further came to the conclusion that respondent No.2 had admitted that he was a sub-tenant under Anil Kumar @ Rs. 250/- per month in the part of the demised premises and the said fact was not controverted by the tenant by filing reply to the amended petition of the landlady. The learned Appellate Authority, therefore, came to the conclusion that the fact that once the sub-tenant had admitted the payment of rent and also the fact that he had kept machinery of inter-locking and was doing work on the said machines, in the said shop, then it was a case of sub- C.R. No.1664 of 1995
The learned Appellate Authority further came to the conclusion that Siri Ram, Respondent No.2, was doing the business of tailoring and inter-locking with the help of machines in the demised premises, this implied that he was in physical conscious possession of at least some part of the premises which may not separate with the help of the boundary wall from the rest of the demised shop. The learned Appellate Authority also came to the conclusion that he had paying a sum of Rs. 250/- per month as rent for the portion of the shop in question.
The learned Appellate Authority also held that when the sub-letting was a part of the demised premises and not as a whole, abandonment of possession of tenant from the demised premises cannot be expected and accordingly findings on issue No.2 were affirmed and order of ejectment passed by the learned Controller was maintained.
Shri Rajesh Garg, learned counsel for the petitioner, vehemently argued that the findings of the learned Courts below on issue No.2 cannot be sustained as it was an admitted case between the parties that there was no parting of possession in favour of respondent No.2 and in absence of exclusive possession being given to the sub- tenant, it cannot be said that the premises or a part thereof has been sub-let. Learned counsel made reference to the statement made by RW- C.R. No.1664 of 1995
3 Shamshad Ali, who in the cross-examination, had stated as under:- "At the time of visit, one tailor was sitting in the shop with a sewing machine and over-locking machine." The learned counsel also made a reference to the statement made by RW-6 Siri Ram, wherein he deposed that he did not know the landlord or tenant of the premises though on cross-examination by the landlady, he reiterated his stand.
Learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of Arjun Khiamal Makhijani Vs. Jamna Das C. Tuliani and others, (1984) 4 SCC 612, to contend that when different stands have been taken by tenant and sub-tenant, then independent finding on merit on the basis of plea of the landlord is necessary and the case should not be decided merely on the admission made by the sub-tenant in favour of the landlord. The contention of the learned counsel for the petitioner was that the learned Appellate Authority has wrongly given importance to the admission of the sub-tenant made in favour of the landlady.
Learned counsel for the petitioner further relied upon the judgment of this Court in Amar Nath Vs. Shrimati Savitri Devi, 1955 PLR 276 that when the tenant retained his full rights as a tenant over the whole of the property leased to him and mere fact that he had allowed a tailor even on payment to sit in the part of the shop with a sewing machine for the purpose of working as a tailor, it did not amount to creating a sub-lease of any part of the premises and that it C.R. No.1664 of 1995
was in fact only a license. The contention of the learned counsel was that in view of the said judgment, the findings of the learned court below cannot be sustained.
Learned counsel thereafter placed reliance upon the judgment of this Court in Ashok Kumar Vs. Smt. Nirmal Kanta, 2002 (1) RCR 313 to contend that in absence of parting of possession for consideration, no sub-letting can be alleged. For this purpose, he made reference to para 14 of the said judgment, which reads as under:- "I have considered the rival contentions of both the parties and I am of the opinion that the Appellate Authority has not correctly appreciated the evidence brought on record. In fact, no plea has been taken by the landlord to the effect that the tenant parted with any portion of the tenancy in favour of the sub-tenant for consideration. Though the plea has been taken that the machine has been set up at point 'E' but that has not been established by the Local Commissioner.
The Local commissioner has stated that the sub-tenant was found sitting inside the shop, that alone would not establish the sub-tenancy. If any person sits in the shop for the augumentation of the business of the tenant, plea of sub- tenancy would not be accepted. The Rent Controller has, therefore, came to correct finding and the petition has been correctly dismissed. The Appellate Authority has fallen into error by placing reliance upon the findings of the Local Commissioner taking it to be unrebutted piece of evidence.
This evidence is too weak an evidence to take away right of a tenant protected statutorily.
C.R. No.1664 of 1995
The learned counsel for the petitioner thereafter relied upon the judgment of this Court in Madan Lal and anoher Vs. Bhupinder Kaur and others, 2003 (1) RCR 608 wherein this Court was pleased to hold that in order to prove the sub-letting, it is necessary to prove the delivery of exclusive possession to the sub-tenant. The case of the tenant-petitioner was that in the present case, there is no parting of exclusive possession.
The learned counsel for the petitioner further placed reliance on the judgment of the Delhi High Court reported in Hazari Lal and Ram Babu Vs. Shri Gian Ram and others, 1972 RCR 74 to contend that when the legal possession was retained by the tenant, there is no parting with possession and mere user by other person is not parting with possession and, therefore the presence of respondent No.2 in the shop for doing tailoring and interlocking work by no stretch of imagination can be said to be a case of sub-letting. The learned counsel for the petitioner thereafter relied upon the judgment of this Court in the case of Smt. Parkash Wanti Vs. Rattan Lal Jain and another, 1976 RCR 136 to contend that in order to constitute sub- letting, it is necessary that the sub-tenant should be in exclusive possession for valuable consideration. He referred to para 4 of the said judgment, which reads as under:-
"Mr.H.L.Sarin, learned counsel for the petitioner, has contended that both the Courts below have gone wrong in deciding issue No.1 against the petitioner. I have perused C.R. No.1664 of 1995
the rent note, Exhibit P-2 which was executed by the petitioner on October 11,1964 in favour of respondent No.1 after the death of her husband. In the rent note it is mentioned "main dukan par karigar rakh kar un se kam kra sakungi" (I shall employ the skilled workers on the shop).
It is in evidence that Hari Ram is a tailor, working at the premises. It is not disputed by respondent No.1 that any rent was paid by Hari Ram to the petitioner or that the exclusive possession was transferred to Hari Ram by the petitioner. Two ingredients are to be satisfied before it can be held that a particular premises is sublet by the tenant to some other person (1) that the sub-tenant was in exclusive possession and (2) that it was for valuable consideration.
Both these ingredients are not proved in the present case.
She had kept Hari Ram as her worker. It is no doubt true that Hari Ram used to open and close the shop, in dispute.
This, in no way proves the exclusive possession of Hari Ram, who worked for her on the premises and used to get a share in the tailoring charges, two third goes to Hari Ram and one-third to the petitioner. The trial court and the Appellate Court have erred when they observed that as Hari Ram used to open and close the shop, he was in exclusive possession thereof. It is a mater of common knowledge that it is only the worker who opens and closes the shop and not the mater. In Smt. Krishnawanti V. Hans Raj, 1975 RCJ 164 their Lordships of the Supreme court held as under:- " When eviction is sought on the ground of sub- letting, it is now settled law that the onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable C.R. No.1664 of 1995
consideration it would then be for the tenant to rebut the evidence."
No question was put to the petitioner regarding sub-letting when she appeared in the witness box. She denied in examination-in-chief that she had sublet the shop in dispute to Hari Ram. In cross-examination no question was put to her that Hari Ram is in exclusive possession of the shop or that he had sublet the same to Hari Ram. Daulat Ram, who appeared as RW-5 clearly stated that the possession is of Parkash Wanti and that she had kept the workers for tailoring purposes. Hari Ram,who appeared as R.W. 2 also denied this fact that the shop in question was sublet to him by the petitioner. He has categorically stated that he used to work under her and got two-thirds of the tailoring charges and one-third was taken by the petitioner. No question regarding sub-letting, control or possession of the shop was even put to Hari Ram."
Learned Counsel thereafter relied upon the judgment of this Court in the case of Chanan Singh Chitti Vs. Darbara Singh and another, (1986-2) PLR 86 (supra) to contend that once a tenant was in occupation of the premises and had not parted possession of the same, it was not a case of sub-letting as the real test was that the landlord must prove that the tenant was no more in occupation of the demised premises and possession was that of sub-tenant. The mere fact that the alleged sub-tenant was paying a salary to the tenant for doing his business did not mean that that the tenant had sub-let the premises.
C.R. No.1664 of 1995
Learned counsel for the petitioner thereafter placed reliance on the judgment of this Court in Pala Ram and another Vs. Om Dutt, 1993 (1) RCR 395 (supra) to contend that mere presence of another person within the premises in absence of exclusive possession cannot amount to sub-letting. Learned Counsel for the petitioner further placed reliance on the judgment of this Court in Ranjiv Paul Singh Vs. Mehanga Ram, 1981 (1) RCR 329 to contend that once the tenant is carrying on business in the shop and a portion thereof has been given to another person, who worked as barber in the said shop while exclusive possession was retained by the tenant, it would not be a case of sub-letting.
Learned Counsel thereafter placed reliance on the judgment of the Kerala High Court in Abdurahiman Haji Vs. Balakrishanan, 2003 (2) RCR 183 to contend that even if a person other than tenant is doing business in the premises and sharing profit with the tenants, it cannot be a case of sub-letting.
The learned Counsel for the petitioner thereafter relied on the judgment of the Hon'ble Supreme Court in Jagdish Prasad Vs.
Smt. Angoori Devi, AIR 1984 SC 1447 to contend that mere presence of a person other than tenant in shop, subletting cannot be presumed.
The Hon'ble Supreme Court in the case of Dev Kumar (Died) through LRs Vs. Smt Swaran Lata and others, 1996 HRR 13 has been pleased to lay down as under:- C.R. No.1664 of 1995
" Coming to the second question the expression "sub- letting" has not been defined in the Act. The conclusion on the question of sub-letting is a conclusion on a question of law devised from the findings on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. As to what is the true meaning of expression "sub-letting", this Court considered the same in the case of Jagdish Prasad Vs.
Angoori Devi, 1984 (3) SCR 216, in an eviction proceeding under UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act. The Court held that merely from the presence of the person other than the tenant in the shop, subletting cannot be presumed and as long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of the person other than the tenant in the shop cannot be assumed. It was further held that in an application for eviction of a tenant from a shop which is based on the allegations that the premises has been sublet, the allegation has to be proved. The question of subletting was considered by this Court in the case of M/S Shalimar Tar Products Ltd. Vs. H.C. Sharma and others, 1988 (1) SCR 1023 and it was held that in order to construe subletting there must be parting of legal possession of the lessee and parting of legal possession means "possession with the right to include and also a right to exclude other."
10. In the case of Smt. Rajbir Kaur and another Vs. M/S Chokosiri and Company (supra) this Court considered the question of subletting and held that the burden of making a case of subletting is on the landlady. It was also held that the transaction of subletting in the guise of licenses are in C.R. No.1664 of 1995
their very nature clandestine arrangements between the tenant and the sub-tenant and it would be difficult to get direct evidence on the same."
This Court in the case of Vinod Kumar Vs. Sat Pal, 2005 (1) HRR 49 was pleased to hold as under:- "The finding of the authorities below that Sham Sunder had shifted to Ganga Nagar where he had purchased a house and had also got his ration card made, has not been contested before me. However, this fact by itself does not lead to the conclusion that he had sublet the demised shop to Vinod Kumar. The question for determination is as to Whether Sham Sunder had parted with the legal possession of the said shop in favour of Vinod Kumar and had retained no control over the same. The question as to what constitutes sub-letting came up for consideration in Dev Kumar through L.Rs Vs. Smt. Swaran Lata and others, 1995 (2) All India Rent Control Journal 531.
(quoted in preceding paragraph of this judgment) In Dipak Banerjee Vs. Lila Bati Chakravorty: 1987 (4) SCC 461, the Supreme Court held that for proving the charge of subletting, it was necessary to prove that the sub- tenant was in exclusive possession of the premises and tenant had retained no control over the part of the premises.
14. In the light of the law enunciated by the Supreme Court as above, the question that arises for consideration is as to whether the Authorities below were justified in returning the finding that Sham Sunder had sublet the demised shop to Vinod Kumar. In the written statement, an alternative plea had been raised to the effect that even if C.R. No.1664 of 1995
Sham Sunder was held to be original tenant, he could not be said to have sublet the demised premises to Vinod Kumar as he was also a partner in Aggarwal Book Depot. This contention had not been controverted as no replication was filed. However, the plea of partnership has been rejected on the ground that Sham Sunder had not produced any record such as partnership deed etc. in support of his claim. Be that as it may, the onus of proving issue No.2 as to whether Sham Sunder had sublet the demised premises toVinod Kumar was on the landlord and thus it was for him to prove that Aggarwal Book Depot was the proprietary concern of Vinod Kumar and Sham Sunder had nothing to do with it.
All that has been proved is that at the time of purchase of shop by Sat Pal on 3-11-1969, Sham Sunder, proprietor Sham Stationery Store was the tenant whereas thereafter Aggarwal Book Depot has been recorded as tenant in the municipal record. There was no pleading by the landlord that Vinod Kumar was the sole proprietor of Aggarwal Book Depot nor is there any finding by the authorities below to that effect that Sham Sunder had sublet the premises to Vinod Kumar. This infirmity is evident from the finding recorded by the Appellate Authority in para (sic) which reads as under:-
"The learned counsel for the respondent has produced Ex.P-4, copy of assessment register for the year 1979-80 to 1984-85 and the perusal thereof shows that Sham Stationery Store has been recorded as tenant whereas Sat son of Sant Ram had been recorded as owner of the same. The person can tell lie, but the document cannot. From the perusal of Ex.
A-1 sale deed and Ex. P4 and P-5 copies of C.R. No.1664 of 1995
assessment registers it can be safely concluded that Sham Sunder has sublet the premises to Vinod Kumar" (Emphasis upheld)
As already observed neither the sale deed nor the assessment records of the Municipal Committee refer to Vinod Kumar as proprietor of Aggarwal Book Depot. Thus the Appellate Authority was not right in observing that from the assessment records and the sale deed it could be "safely concluded that Sham Sunder has sublet the premises to Vinod Kumar. As held by the Supreme Court in Dev Kumar's case (supra) subletting could not be presumed merely from the presence of Vinod Kumar in the demised shop."
Shri M.L.Sarin, learned Senior Counsel appearing with Shri Hemant Sarin, Advocate, on behalf of the respondent-landlord vehemently contended that there is no occasion for this Court to interfere with the findings recorded by the learned Courts below especially when there was a clear admission on the part of respondent No.2 that he was a sub-tenant under the petitioner on a consideration of Rs. 250/- per month. The contention of the learned Senior Counsel for the respondent was that the petitioner-tenant has taken a wrong stand by alleging that respondent No.2 was not known to him and this stand was proved wrong as there was ample evidence on record to show that he was working in the demised shop with the petitioner.
The next contention of the learned Senior Counsel for the respondent was that admission being in the form of evidence, the C.R. No.1664 of 1995
learned Courts below were right in coming to the conclusion that the petitioner-tenant had sublet the demised premises to respondent No.2.
The first contention of the learned Senior Counsel for the respondent-landlord was that the sub-letting is a finding of fact which has been recorded by both the learned Courts below and, therefore, the same cannot be interfered with in exercise of revisional jurisdiction. In support of this contention, learned Senior Counsel placed reliance on the judgment of the Hon'ble Supreme Court in Atma S.Berar Vs.
Mukhtiar Singh, JT 2002 (10) SC 224 and the judgment of this Court in Ram Chander Vs. Smt. Amar Devi, 1980 (2) RCJ 221.
The contention of the learned Senior Counsel that revisional Court can never interfere with the concurrent findings recorded by the Courts below on appreciation of evidence cannot be accepted in view of law laid by the Hon'ble Supreme court in the case of Nanak Chand Vs.
Inderjit & Ors, 1969 RCR 887 wherein it was held as under:- "We are unable to accept the argument that the High court had no jurisdiction to reverse the finding of the appellate authority on this point. The revisional power conferred on the High Court under Section 15(5) of the Act is wider than that conferred by Section 115 of the Civil Procedure Code. Under Section 15 (5) of the Act the High court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the finding by the authorities about the requirement of the landlord under Section 13 (3) (a) (i) . Reference was made on behalf of C.R. No.1664 of 1995
the appellant to the decision of this Court in Hari Shankar V. Rao Girdhari Lal Chowdhury 1962 (1) Supp.
S.C.R. 933, wherein it was held that the High Court in exercise of its revisional powers was not entitled to re- assess the value of the evidence and to substitute its own conclusions of fact in place of those reached by the Courts below. But the revisional power of the High Court in that case was exercised under Section 35 (1) of the Delhi and Ajmer Rent Control Act, 1952 (Act No.38 of 1952) which is different in language from Section 15 (5) of the East Punjab Urban Rent Restriction Act, 1949 with which we are concerned in the present case." This view has not been reversed till date and consistently followed by the Hon'ble Supreme Court as well as the High Courts.
It is settled law that in case the findings recorded are perverse or the conclusions drawn by the Courts below on admitted facts are contrary to the settled law, then the power of revisional Court to interfere in the same cannot be doubted.
In the case in hand, it would be seen that the learned Courts below have not come to a conclusion that the petitioner-tenant had parted with the exclusive possession and in the absence of such a finding, no finding of sub-letting could be recorded by the learned Courts below. In such a situation, the jurisdiction of revisional Court to reverse that finding cannot be said to have been taken away. The authorities relied upon by the respondent are not applicable to the facts of the present case.
C.R. No.1664 of 1995
The learned Senior Counsel for the respondent thereafter made a reference to Section 13(2) (ii) of the Act to contend that only requirement for evicting a tenant under this provision is that tenant should have transferred his right under the lease or sublet entire building or rented land or any portion thereof. The contention of the learned Senior Counsel was that no word can be added or substituted in the Section the words "exclusive possession", therefore, cannot be a ground for refusal to evict a tenant. Mere parting of possession though joint would constitute sub-letting. However, this contention of the learned Counsel also cannot be sustained. Inasmuch as the words "parting of possession" would include giving up of control over the possession of the demised premises. Thus, the only interpretation which can be given to Section 13(2)(ii) of the Act is that the tenant should have parted with the demised premises or part thereof by giving exclusive possession to the sub-tenant for consideration.
The next contention of the learned Senior Counsel for the respondent was that once the petitioner had failed to take a plea that respondent No.2 was occupying the property as a licensee and had taken a wrong plea, then presumption had to be drawn against him.
Learned Counsel placed reliance on the judgment of the Hon'ble Supreme Court in M/S Bharat Sales Limited Vs. Life Insurance Corporation of India, 1998 HRR 150 to contend that sub-letting is a secret arrangement between the tenant and sub-tenant and it is difficult C.R. No.1664 of 1995
for the landlord to prove the payment of consideration by the sub- tenant. However, I find that this judgment is of no help to the respondent as the Hon'ble Supreme Court was pleased to hold that exclusive possession of sub-tenant either wholly or partly in the premises is to be proved and presumption can be drawn qua the consideration. In the present case, the landlady has failed to prove the exclusive possession.
Learned Senior Counsel for the respondent thereafter by relying upon the judgment of this Court in Chaudhary Ram Vs. Liba Sood and others, 1998 (2) RLR 260 contended that as the landlord is a stranger to any agreement between the tenant and sub-tenant, therefore, when possession of 3rd
party is established during the
subsistence of tenancy, then inference of sub-letting can easily be drawn. For this purpose, he made reference to para 13 of the judgment which reads as under:-
" The controversy further narrows down to a straight- jacket. It is established principle that landlord is a stranger to any agreement between the tenant and sub-tenant. When possession of a third party is established and tenancy subsists, inference of subletting can easily be drawn. It is for the tenant and the third person to explain the position.
In the present case the explanation is not to be believed and both the Courts below rightly concluded that ground of eviction of subletting was available. Even the rent had not been tendered on the first date of haring and on that ground also the order of eviction necessarily was passed." C.R. No.1664 of 1995
However, this judgment is also of no help to the Counsel for the respondent as it has nowhere been held that in the absence of exclusive possession being given to a third party, any presumption of sub-letting can be drawn.
Learned Senior Counsel for the respondent thereafter placed reliance on the judgment of this Court in Lal Chand Vs. Smt.
Harnam Kaur and another, 1987 (1) RCR (Rent) 517 to contend that when two persons are doing business in the same room and in absence of partnership between them, it was held that it was a case of sub-letting. Learned Counsel made reference to paras 6 to 9 of the said judgment which read as under:-
"6: After hearing the learned counsel for the parties and going through the relevant evidence on the record, I do not find any merit in the contentions raised on behalf of the petitioner. It was never pleaded by the tenant Lal Chand that Kuldip Singh was occupying the premises with his permission as a licencee. Rather he denied that Kuldip Singh was in occupation as such. It was in the written statement of Kuldip Singh that he pleaded that the tenancy was joint and, therefore, he was in occupation as a tenant.
In view of the rent note Exhibit AW-1/1 dated Ist of November, 1966, it could no more be successfully argued that the tenancy was joint. Thus it has been rightly found by both the authorities below that it was Lal Chand who was the tenant on the premises in dispute.
7: After having found that Lal Chand was the tenant, then from the statement of Lal Chand as RW.5 it is quite C.R. No.1664 of 1995
evident when he admitted that Kuldip Singh works with him and they were jointly working since 1964. He further stated that there was no partnership between them in writing. He does not keep any accounts. He further stated that they do their work separately on these premises. On the basis of the admission made by the tenant himself the Appellate Authority concluded "from the statements of the two respondents, it is clear that respondent No.1 has transferred part of his leased right to respondent No1. It is admitted that respondent No.2 is not a partner with respondent No.1." The plea taken by the tenant during arguments that Kuldip Singh respondent No.2 was a licencee because no specific part of the premises had been handed over to him was negatived on the ground that no such plea was taken in the written statement by Lal Chand tenant. It was, therefore, rightly concluded that the tenant Lal Chand has transferred his rights under the lease to Kuldip Singh respondent No.2 was, thus, liable for eviction on that account. I do not find any illegality or impropriety in the said finding as to be interfered with in this revision petition.
8. Not only that, Lal Chand even denied the relationship of landlord and tenant between the parties. He claimed himself to be the tenant of one Partap Chand and also denied the execution of the rent note Exhibit AW1/1. All these pleas taken by him were found to be false by both the Courts below.
9. On the facts and circumstances of the case, the subletting by Lal Chand to Kuldip singh is amply proved because Kuldip Singh was admittedly in occupation of the premises and he was neither the partner with the tenant nor C.R. No.1664 of 1995
he was doing any joint business with him. Rather as admitted by Lal Chand tenant they were doing their separate business."
This contention of the learned Senior Counsel for the respondent has no force as the facts of the said case are not applicable to the facts of the present case. Even otherwise in the said judgment, the contention that no specific part of the premises was handed over to the other party was negatived on the ground that no such plea was taken in the written statement. Therefore, a conclusion was drawn that Lal Chand had transferred his right under the lease to Kuldip Singh respondent No.2. In view of this finding, this Court did not interfere in the exercise of revisional jurisdiction. Even otherwise, this judgment cannot be read to mean that in the absence of exclusive possession, sub-tenancy can be proved merely on account of presence of some other person in the premises. This contention is contrary to law laid down by the Hon'ble Supreme Court in Dev Kumar's case (supra) and this Court in Vinod Kumar 's case (supra).
Learned Senior Counsel for the respondent thereafter by placing reliance on the judgment of this Court in Om Parkash and another Vs. Vidya Wati and others, 1979 (1) RCR 566 (supra) contended that even in the absence of exclusive possession, sub-letting can be proved. The contention of the learned counsel for the respondent was that in the aforesaid case even though a part of the back wall of the C.R. No.1664 of 1995
shop in dispute was placed at the exclusive possession of Malkiat Singh by constructing a wall with the help of which back portion was converted into a separate room,but there was no independent access, therefore, the control cannot be deemed to be that of the tenant still sub-letting was held to be proved.
Learned Senior Counsel for the respondent thereafter by placing reliance on the judgment of this Court in M/s Godrej & Boyce Mfg. Company Ltd. Vs. Vivek Wahi and another, 2001 (3) PLR 746 contended that even in absence of parting of possession when two companies were functioning in the same premises, it was held to be a case of sub-letting. The contention of the learned Counsel was that in the present case, presence of respondent No 2 and his doing business of tailoring and inter-locking was proved and, therefore, there is no occasion to interfere in the concurrent findings of fact recorded by the Courts below. In the said case, the Court came to the conclusion that both the companies were functioning from the premises independently without any assistance from each other in respect of business of the sub-tenant. The documentary evidence showed that both the companies held separate sales tax numbers and no sale of refrigerators was being made by the tenant. This Court further came to the conclusion that beyond any doubt, the tenant had parted with possession of the portion of the demised premises in favour of the sub- tenant for consideration. Thus it would be seen that in this judgment C.R. No.1664 of 1995
the basis for holding sub-tenancy was that the tenant had parted with possession of some portion of the premises in favour of the sub- tenant, whereas in the present case, there is no pleading or iota of evidence of parting of possession in favour of sub-tenant and, therefore, this contention of the learned counsel for the respondent was also misconceived.
After considering the contentions of the learned Counsel for the parties, it would be seen that in order to come to the conclusion that there is sub-letting, it is necessary for the landlord to prove that the tenant had parted with exclusive possession in favour of sub- tenant or part thereof and for consideration. Unless these two ingredients are fulfilled, the sub-letting cannot be said to have been proved and, therefore, it could not be said that the instant case was a case of sub-letting as there is no parting of possession.
In view of what has been discussed above, the findings of Rent Controller as well as the Appellate Authority on issue No.2 are reversed and issue No.2 is decided in favour of the tenant-petitioner and against the respondent-landlord.
Learned Senior Counsel for the respondent had also raised a plea that in the present case both the Courts below had not gone into the question of personal necessity by holding that it was a commercial property, therefore, no findings regarding ground of bona fide personal requirement were recorded on that account. The contention of the C.R. No.1664 of 1995
learned counsel for the respondent was that in view of the judgment of the Hon'ble Supreme Court in the case of Harbilas Rai Bansal Vs.
State of Punjab, (1996) 1 SCC 1, the case deserves to be remanded back for consideration on issue No.3 on merit. However, I find that no such plea was taken before the Appellate Authority as would be clear from the findings recorded on issue No.3 by the Appellate Authority.
Therefore, it is not open to the respondent to seek reversal of findings on issue No.3 which were affirmed by the Appellate Authority especially when the matter was not decided on merits, it would be open to the respondent-landlord to file a fresh petition on the ground of personal necessity, if so advised.
Therefore, in view of the foregoing discussion, the revision petition is accepted and the impugned order is set aside.
August 24 , 2006 (VINOD K.SHARMA)
C.R. No.1664 of 1995
C.R. No.1664 of 1995
August , 2006 (VINOD K.SHARMA)
Double Click on any word for its dictionary meaning or to get reference material on it.