Gujarat High Court
Dilipkumar Somabhai Patel & 5 vs J.K.Amin & Co.Thro'Its Partners & ... on 26 June, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CRA/63/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 63 of 2005
With
CIVIL REVISION APPLICATION NO. 64 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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DILIPKUMAR SOMABHAI PATEL & 5....Applicant(s)
Versus
J.K.AMIN & CO.THRO'ITS PARTNERS & 1....Opponent(s)
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Appearance:
MR MB GANDHI, ADVOCATE for the Applicant(s) No. 1 - 6
MS. SHAILI A KAPADIA, ADVOCATE for the Applicant(s) No. 1 - 6
MR BP GUPTA, ADVOCATE for the Opponent(s) No. 2
MR SP MAJMUDAR, ADVOCATE for the Opponent(s) No. 1 - 1.3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 26/06/2014
COMMON ORAL JUDGMENT
On 23.06.2014, following order was passed:
"In the present Revision Applications, Page 1 of 22 C/CRA/63/2005 JUDGMENT respondent No.2 was represented by learned advocate Mr.B.P.Gupta. The Revisions were heard for final hearing, but afterwards it was noticed that learned advocate for respondent No.2 had no opportunity to make his submissions. Therefore, the matters were directed to be re-notified for re-hearing. Accordingly they were re-notified on today's Board.
Today learned advocate Mr.B.P.Gupta for respondent No.2 appears and makes a statement that he does not want to make any submissions, but adopts the arguments canvassed by learned advocate for respondent No.1-tenant.
Office shall now list both the matters on 26th June, 2014 for dictation of judgment."
1.1 Accordingly, the Revision Applications were notified today.
2. Both these Revision Applications call in question the common judgment and order dated 25th February, 2005, passed by learned Joint District Judge, Fast Track Court No.5, Bharuch. By the said judgment, Regular Civil Appeal No.49 of 2003, as well as Regular Civil Appeal No.51 of 2003 preferred by the tenant and sub-tenant respectively came to be allowed. Those civil appeals were filed against the decree of Page 2 of 22 C/CRA/63/2005 JUDGMENT eviction passed by the Trial Court on the ground of section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, directing the present respondents-defendants to hand over the possession of the suit premises.
2.1 As the Revision Applications are cognate, arising out of common judgment as above, thus involving common facts and identical issues, were placed and heard together and are being decided by this judgment.
3. The rented premises was part of the property situated at survey Nos.1518, 1519, 1500 and 1521, known as "Harikunj". The whole of the said property was owned by the applicants-landlord, out of which, the let out portion admeasuring 68 sq. feets-North- South and 44 sq. feets East-West and mezzanine floor admeasuring 44 x 20 sq. feets, totaling area admeasuring 3872 sq. feets. Defendant No.1 was a partnership firm, and defendant Nos.1/1 to 1/3 were its partners. The defendant-tenant firm was having a dealership and agency of Bajaj Auto Limited Company. The rented premises was used as a show-room.
3.1 The defendant No.1 firm was tenant in the suit premises since 1985. By instituting Regular Civil Suit No.279 of 1998, the landlord prayed for eviction of the defendants on the ground of subletting. It was the case of the plaintiffs-landlord that the subsisting tenancy agreement was renewed by executing agreement dated 23rd October 1993 for a period from 1st Page 3 of 22 C/CRA/63/2005 JUDGMENT June, 1993 to 30th June, 1998; the rent fixed was Rs.4792/- per month. It was stated that defendant No.1 tenant had transferred the premises to defendant No.2- One Bajaj Auto Center for monetary consideration. The plaintiffs relied on various conditions in the said rent agreement(Exh.109) and in particular condition No.6(7), which prohibited the tenant from subletting the premises.
3.2 The plaintiffs stated that the tenant addressed a letter dated 30th June, 1993(Exh.110) and requested that since defendant No.1 partnership firm was closed, they may be allowed to give the premises to defendant No.2 for its own use for monetary consideration. The said request of the tenant was responded by the applicants-landlord as per reply dated 7th July, 1998(Exh. 111), in which, the landlord conditionally accepted the request. It was mentioned in reply(Exh.111) that defendant No.2 should be inducted as a partner in defendant No.1 Firm, and that such arrangement should be made in writing and that copy of such writing should be forwarded to the landlord. It was also required by the landlord that no stipulation of the rent agreement should be breached. Thereafter, the defendant did not respond, nor did send copy of any partnership agreement, as was required. The plaintiffs pleaded that the premises was illegally sublet by defendant No.1-tenant to defendant No.2 for monetary consideration of Rs. 20,000/- and that the tenant was profiteering. The plaintiffs prayed for a decree of possession, and further prayed for recovery of Rs.32,000/- per month as mesne profits Page 4 of 22 C/CRA/63/2005 JUDGMENT from the date of institution of the Suit. 3.3 By filing written statement(Exh.19), the Suit was contested by defendant No.1. It was his defence that the suit premises was taken on rent since 1981. Initially, the rent fixed was of Rs.1600/-, which was subsequently enhanced to Rs.2400/-; and presently, it was Rs.4792/- per month. The defendant accepted that it was running agency of Bajaj Auto Limited in the said premises and using it as a showroom for display of Bajaj two-wheelers etc. It was further stated that in the property situated behind the rented premises, which was his own property, a workshop for repair and maintenance of two wheelers etc. was also being run. It was stated that main partner of the Firm namely Ganeshbhai Amin was unable to attend the business because of his indisposed health and therefore, the agency of Bajaj Company was closed. It was stated that letter dated 30th June, 1993 was addressed to a partner of defendant No.1-Firm. The same was replied on 7th July, 1993. It was the contention of defendant No.1 that the landlord had given permission in his letter that the premises may be allowed to be used by defendant No.2. It was denied that any of the conditions of the rent agreement was breached as alleged much less condition No.6(7). It was the defence of the tenant that the said Bajaj Auto Center was inducted in the premises as per the permission given by the landlord.
3.4 Defendant No.2-Bajaj Auto Center filed its written statement(Exh.83) and disclaimed any knowledge about renewal and extension of lease period between Page 5 of 22 C/CRA/63/2005 JUDGMENT the plaintiffs and defendant No.1. On the contrary, defendant No.2 contended that it was in possession of the premises since June, 1993 and was paying Rs.24,000/- per month to defendant No.1 by way of rent. It was contended further that the plaintiffs initiated action against defendant No.1 by instituting the Suit in question in the year 1998, whereas its business of Bajaj Auto Center was being run since 1993. It was contended that the plaintiffs were very much aware of the said fact, yet did not object. Before institution of the Suit, the plaintiffs also issued notice (Exh.112).
3.5 The Trial Court framed issues at Exh.100 and held in favour of the plaintiffs, coming to conclusion that defendant No.1 had sublet the suit premises to defendant No.2 and he was earning thereafter and had committed breach of tenancy. It recorded a finding that defendant No.1 was not doing business since last 10 years and the premises was being used by defendant No.2 who was paying Rs.24,000/- per month by way of rent and paying consideration. The Lower Appellate Court upturned the judgment and decree of the Trial Court, holding that the landlord had consented as per Exh.111. It took a view that since the agreement(Exh.109) was unregistered, the Trial Court committed an error in taking into account the same and relying on the conditions thereof.
4. Learned advocate Mr.M.B. Gandhi with learned advocate Mr.Chinmay Gandhi submitted that there was no valid ground for the Lower Appellate Court to reverse Page 6 of 22 C/CRA/63/2005 JUDGMENT the decree passed by the Trial Court. He submitted that the Lower Appellate Court unnecessarily swayed away by the aspect that the rent agreement(Exh.109) was unregistered, to hold that the decree of eviction passed by relying thereon was not proper. It was submitted that the act of subletting on part of tenant was established. It was submitted that defendant No.2 who was a sub-tenant did not enter the witness box. Learned advocate for the applicants in support of his submission relied on decision of Division Bench of this Court in Ramanbhai Parsottambhai Patel Vs Parsottambhai Kuberbhai Patel Decd. thro., heirs Gangaben [2013(3) GLH 540] to highlight the position of law when a party required to give evidence does not offer himself for evidence. Learned advocate then highlighted the averments made by defendant No.2 in his written statement and submitted that it contained admissions. Defendant No.2 was admittedly put in possession of the premises, and passing of monetory consideration was proved from Exh.128 statement, it was submitted.
4.1 Learned advocate submitted that there was no permission to sublet from the landlord as sought to be made out; it was submitted that Exh.111 letter was not a consent and could in no way it be construed as consent given by the applicants-landlord. On the basis of this Court's decision in Ismailbhai Haji Ibrahimbhai Malek Vs Gordhanbhai H. Patel since deceased [2002(2) GCD 918], it was submitted that a consent in writing from the landlord was necessary, if tenant was to induct third party in the premises.
Page 7 of 22C/CRA/63/2005 JUDGMENT Decision in Amrutlal Jagjivandas Shah and another Vs Ramniklal Jagjivandas Shah [(2005 (3) GLR 1889] came to be relied on to submit that the act of subletting gives a continuous cause of action. Learned advocate for the applicants therefore submitted that the ingredients of section 13(1)(e) of the Bombay Rents, Hotel and Loading House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act' for the sake of brevity) were established which made the landlord entitled to recover the possession.
4.2 On the other hand, learned advocate Mr. Mehul S. Shah with learned advocate Mr. Kuntal Joshi for the respondent-tenant firstly submitted that as the rent agreement(Exh.109) was compulsorily registrable and it being unregistered, it was not admissible in evidence and could not have been relied on by the plaintiffs for claiming possession of the premises on the ground of breach of condition in the said agreement. Learned advocate for the respondent submitted that the entire suit was founded on the ground of breach of condition No.6(7) and other conditions in that agreement. In the second place, it was submitted by him that even if defendant No.2 was in possession of the premises and was using the same, it was upon a permission granted by the landlord. In that regard, learned advocate relied on the correspondence between the landlord and tenant being letters dated 30th June,1993(Exh.110) addressed by the tenant to the landlord and the landlord's reply dated 7th July,1993(Exh.111). It was submitted that the said correspondences, especially Exh.111 constituted an Page 8 of 22 C/CRA/63/2005 JUDGMENT agreement in itself, whereby the landlord expressly permitted the use and occupation of the premises by defendant No.2-sub tenant as per Exh.111. Letters at Exh.142 and Exh.143 were also pressed into service. Referring to section 15 of the Rent Act which starts with the words "subject to contract to the contrary", learned advocate for the respondent-tenant submitted that a contract between the landlord and tenant was emerging as above whereby there was a permission by the landlord and the prohibition subletting or the liability for eviction on that count would not arise. Thirdly, it was submitted that the applicants-landlord had been staying in the vicinity and was aware about the rented premises being used by defendant No.2 - sub tenant; despite his knowledge, he acquiesced and a subsequent Suit contending that the premises was sublet was not tenable.
4.3 In order to buttress the submissions, learned advocate for the respondent relied on decision in Mahabir Prasad Verma Vs Surinder Kaur [AIR 1982 SC 1043], more particularly paragraph 26 thereof. Another decision in Hemchand Vs Hari Kishan Rohtagi [(2001) 8 SCC 7] was pressed into service to emphasise that when a sub-tenant was inducted with permission of the landlord, no liability of eviction would be arise. He further relied on decision in M/s. Girdhari Lal & Sons, V/s. Balbir Nath Mathur and others [AIR 1986 SC 1499] and decision in Smt. Chander Kali Bail and other V/s. Jagdish Singh Thakur and others [AIR 1977 SC 2262].
Page 9 of 22C/CRA/63/2005 JUDGMENT 5. Before proceeding further, at this stage material facts emerging from the record may be
recollected. The tenancy between the parties subsisted since 1985 under a registered lease deed which was for the period of 10 years due to expire in 1995. The factum of existence of tenancy as above was admitted by defendant No.1-tenant in his reply to notice dated 04.05.1998(Exh.115), also in his written statement(Exh.19), and was vouched in his oral evidence (Exh.157). During the currency of the said tenancy, before its term of 10 years expired, the parties entered into agreement dated 23.10.1993 (Exh.109), whereby the term of tenancy was extended for further five years upto 30.06.1998 on the conditions mentioned in the said document. One of the conditions being condition No.6(7) was a prohibition against subletting by the tenant. Other conditions included condition No.6(8), which provided that if the tenant wanted to continue beyond the extended period under the agreement, he would be required to give six month's notice in advance, otherwise the landlord would be entitled to seek possession. Condition No.6(9) stated about defendant No.1 firm named J.K. Amin & Co. was a tenant in the premises.
5.1 It appears that some time prior to the execution of aforesaid agreement(Exh.109), the tenant approached the landlord with a letter dated 30th June, 1993(Exh.110) in which he stated that he was tenant in the premises by virtue of lease deed dated 29.03.1985, that main partner of the firm Ganeshbhai Amin was unable to attend to the business due to his ill-health Page 10 of 22 C/CRA/63/2005 JUDGMENT and since nobody could take care of the business, the agency of Bajaj Company was cancelled. The tenant requested the applicants-landlord that in that view, they were contemplating to give the premises for use to defendant No.2 on receiving the monetary consideration for which the permission of the landlord was required. It was requested to the landlord to give such permission on the conditions which may be imposed. The said letter was replied by the landlord on 7th July, 1993 (Exh.111), stating that the proposal was agreeable provided that defendant No.2 was to be taken as one of the partners in the firm, such arrangement was to be made in writing and the copy was required to be forwarded to the landlord.
6. Dealing with the contention that the rent agreement dated 23rd October, 1993(Exh.109) being unregistered document could not have been relied on, it was a feeble attempt to assail the eviction decree. It is true that otherwise it is a preposition of law that a compulsorily registrable document, when not registered, is not admissible in evidence and therefore, cannot be relied on. However, if in a given case any fact or issue which is required to be established with reference to such document, emerges as an undisputed fact from record, the aspect of non- registration of the document would loose its legal significance. In Shibani Basu Vs Sandip Ray [(2010) 14 SCC 406], the question before the Supreme Court was about validity of notice of termination of tenancy. In light of the condition of Clause(3) of the unregistered tenancy agreement, which provided that Page 11 of 22 C/CRA/63/2005 JUDGMENT monthly rent was fixed at Rs.500/- and was payable to the landlady within 15 days of the next month according to the English calendar month. The High Court took a view that since the agreement of tenancy was unregistered, said Clause (3) therein was not admissible even for collateral purpose. The Supreme Court however granted relief by ignoring the said stipulation in the unregistered rent note, holding that the pleadings and assertions made out an undisputed position with regard to the creation of tenancy, rent fixed, etc. and were established on record.
6.1 The apex court observed in Shibani Basu (supra) as under.
"It is evident from a plain reading of the assertions in the plaint and the written statement extracted above that the defendant did not question the facts material to the creation of the tenancy nor was it disputed that the tenancy was a month-to-month tenancy on payment of a rent of Rs 500 for every English calendar month. It is true that the respondent-defendant had disputed the service of the notice terminating the tenancy of the defendant as also its validity and sufficiency but it is equally true that the legality of the notice was not assailed on the ground that the notice did not conform to the month of tenancy. As a matter of fact the assertion made by the appellant that the monthly rental of Rs 500 was payable according to the English calendar month was not denied by the defendant in the written statement nor was any suggestion to the contrary made as was sought to be done at a later stage of the litigation between the parties......... Such being the position, it was for all intents Page 12 of 22 C/CRA/63/2005 JUDGMENT and purposes agreed and accepted between the parties that the rent settled for the demised premises was payable according to the English calendar month."
(Para 13 and 14) 6.1.2 The Court further held, "The High Court had in the first order passed by it correctly held the notice of termination of tenancy to be legally valid. After the matter was remanded back to it to consider the effect of non-registration of the rent note/agreement of tenancy it has taken a view that has not appealed to us. It is true that the non-registration of the rent note does not debar the use of a document that is compulsorily registrable for collateral purposes but that aspect would in the instant case pale into insignificance keeping in view the state of pleadings on the question of month of tenancy and the legal implications thereof."
(Para 18) 6.2 Again in Ahmad Saheb (dead) by LRs Vs Sayed Ismail [(2012) 8 SCC 516], the Supreme Court examined the effect of unregistered Rent Deed which was inadmissible in evidence in respect of claim arising therefrom for arrears of rent. It was held that though unregistered Rent Deed was not legally acceptable in evidence, a particular claim arising therefrom can be granted on the basis of other uncontroverted evidence available from record supporting the claim. The Supreme Court highlighted undisputed aspects arising from the record of the case before it, and then stated, "Keeping the above undisputed facts in mind, when we examine the legal issue, at the very Page 13 of 22 C/CRA/63/2005 JUDGMENT outset, it will have to be stated that even while holding that Exhibits 68-69 being unregistered documents cannot be accepted in evidence, the relationship of the appellants and the respondent as landlord and tenant was not in controversy. Even according to the respondent himself the rent payable was Rs 800 per year which was admittedly not paid by him right from day one when the tenancy commenced. It was an admitted case of the respondent that the rent was due from him from October 1971 till the third suit was filed. We are unable to appreciate as to how the appellants could have been non- suited solely on the ground that Exhibit 69 was not admissible in evidence."
(Para 11)
7. Now, in the present case, the jural relationship of landlord and tenant between the parties is an accepted position on record and not in dispute. Lease between the parties existed since 1985 which was a registered lease deed, the rent agreement (Exh.109) came to be entered into between the landlord and tenant which provided for extension of lease for five years upto 30th June, 1998, incorporating therein various conditions including prohibition against creation of sub-tenancy by the tenant. It was not that Exh.109 agreement brought about relationship of landlord and tenant between the parties for the first time. What it did was only to reaffirm the said subsisting relationship.
7.1 Once the relationship of landlord and tenant existed between the parties, rights and obligations in law arising by virtue of it would operate. The landlord would become entitled to seek possession of Page 14 of 22 C/CRA/63/2005 JUDGMENT the rented premises under the Bombay Rent Act on the permissible grounds including on the ground of subletting under section 13(1)(e) of the Act. There would be corresponding obligation on part of tenant to be evicted once the ground is established and proved. The condition in clause 6(7) in the rent agreement(Exh.109) was only a ground under section 13(1)(e) of the Act. The Suit of the plaintiff in its essence and substance was based on the ground that the tenant had sublet the premises. It was a statutory ground available to the landlord to press into service and to obtain possession by proving it. Considered from these standpoints, non-registration of the rent agreement(Exh.109) would not be a circumstance or aspect of any avail. It could not operate to carry the case of the tenant any further provided the act of subletting is proved from evidence on record.
7.2 For answering the contention that there was a permission from the landlord to sublet, import of letter dated 7th July,1993(Exh.111) may be considered. It was a reply in response to the tenant's letter dated 30th June,1993(Exh.110), whereby it was requested that the landlord may permit defendant No.2 to do business in the premises. From the record, particularly from written statement of defendant No.2(Exh.83), it turned out to be an admitted fact that defendant No.2 had already occupied and started use of the premises since 26.06.1993, that is, prior to tenant's writing the aforesaid letter. Therefore, defendant No.2 was already inducted and was already Page 15 of 22 C/CRA/63/2005 JUDGMENT handed over possession of the premises. Letter of the tenant(Exh.110) seeking permission being subsequent was of no consequence as such.
7.3 Even independently, on an attentive reading of the contents of landlord's reply(Exh.111), it could not be said that it could be read as an express permission by the landlord to sublet the premises to defendant No.2. The landlord, on the contrary, stated that if defendant No.2 was to be allowed the use of the premises, he should be inducted as partner in the firm and that such arrangement be made in writing with copy thereof be forwarded to him. There was no reply or response of the tenant thereafter from any standpoint. In oral evidence(Exh.157), defendant No.1 accepted that the landlord had put condition in his reply to his request. He admitted that defendant No.2 was made partner, that no such agreement was made and that any such writing was sent to landlord and thus, the conditions required by the landlord to be fulfilled were not complied with, nor it was possible to construe about the landlord having given permission to sublet and to allow defendant No.2 in the premises in the capacity of sub-tenant from the letters at Exh.142 and Exh.143 relied on by the respondents.
7.4 For keeping tenant's liability to be evicted at bay, the consent of the landlord must be shown to be clear, unequivocal and unconditional. Learned advocate for the applicants rightly reinforced his submission about absence of landlord's consent by submitting that not only that the defendant admitted Page 16 of 22 C/CRA/63/2005 JUDGMENT that the landlord's reply(Exh.111) was conditional and that those conditions were not fulfilled, but any suggestion about there being implied consent was not put to the defendant in cross-examination. Neither Exh.111 reply amounted in its contents any permission by the landlord to sublet the premises to defendant No.2, nor such fact was in any way proved in evidence. Therefore, it was not possible to hold that the said communication(Exh.111) was a permission given by the landlord for exclusive use of the premises by defendant No.2 or that it was contract to the contrary, by virtue of which, the tenant could evade liability to be evicted.
7.5 The case that the landlord had knowledge about use of the premises by defendant No.2 or that the Suit was instituted at the end of 5 years period agreed in Exh.109 agreement, had no weight to carry. It is well settled in light of phraseology in section 13(1)(e) "has sublet", once the act of subletting accrues and is established, the landlord becomes entitled to seek possession on that ground. The act of subletting is held to be a continuous cause of action. This Court in Amratlal Jagjivandas Shah(supra) negatived the contention of the tenant that cause of action had accrued before long and that the suit was time barred, holding that continuous sub-tenancy would give continuous cause of action to the landlord.
"..... Attempt was made at the Bar to say that as the landlord is residing in the same vicinity and had been watching the activity Page 17 of 22 C/CRA/63/2005 JUDGMENT everyday and was in know the facts, this statement would not be sufficient to constitute a legal and valid information to the landlord. Nobody knows that under what authority of law or under what authority from the landlord someone else is sitting in or is occupying the premises...."
8. Having travelled thus far, turning finally to consider whether the ground of subletting stood established on facts. What constitutes an act of subletting is a settled law highlighted by the Supreme Court in umpteen number of decisions including in Nirmal Kanta v. Ashok Kumar [(2008) 7 SCC 722], in which, the Apex Court stated thus:
"What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-
established that a sub-tenancy or a sub- letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/or tenant has parted with exclusive possession Page 18 of 22 C/CRA/63/2005 JUDGMENT of the demised premises for a monetary consideration, the creation of a sub-tenancy and/or the allegation of sub-letting stands established." (para 16) 8.1 About initial burden to be discharged by the landlord, to prove sub-letting, Hon'ble the Apex Court in Celina Coelho Pereira Vs Ulhas Mahabaleshwar Kholkar [(2010) 1 SCC 217] after referring to its earlier decisions in Associates Hotels of India Lim- ited Vs S.B. Sardar Ranjit Singh [AIR 1968 SC 933], and in Krishnawatti Vs Hans Raj [(1974) 1 SCC 289], reiterated that in case of subletting, the onus lying on the landlord would stand discharged by adducing prima-facie proof of the fact that alleged sub-tenant was in exclusive possession of the premises, and in the language of section 105 of the Transfer of Prop- erty Act, the tenant was holding right to enjoy such property. In Amrutlal Jagjivandas Shah (supra) also, it was held that once landlord proves that tenant has parted with possession, it would be for the tenant to disprove the fact and avoid legal presumption by lead- ing evidence that he has not sublet the premises.
8.2 In the present case, parting of possession by defendant No.1 tenant and the factum of defendant No.2 sub-tenant enjoying exclusive possession wrists large from the record. These aspects stand established from the admissions made by defendants-respondents in their pleadings and evidence. Defendant No.2 in his written statement(Exh.83) expressly stated to admit that he was using and occupying the premises and was Page 19 of 22 C/CRA/63/2005 JUDGMENT doing business in the premises since 26.06.1993. It was also admitted about payment of Rs.24,000/- per month to defendant No.1 for such use. The oral evid- ence of the plaintiff (Exh.127) and that of defendant No.1(Exh.157) fortified the handing over of possession of the premises to defendant No.2. This was again in the background of scenario of admitted facts that de- fendant No.1-Firm and the tenant had closed its busi- ness because its main partner was unable to attend to the business of the partnership firm and the agency of Bajaj Company was also cancelled. The evidence of de- fendant(Exh.157) contained a clear admission that the business in the premises was discontinued since 1992- 1993. Further, defendant No.1-tenant himself requested the landlord by letter(Exh.110) to permit defendant No.2 to occupy and use the premises. Therefore, part- ing of possession by the tenant and exclusive posses- sion of sub-tenant were the aspects emanated from the admission of the parties concerned. In Ahmed Saheb(supra), it was observed that it was needless to emphasise that admission of party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration.
8.3 Another important constituent of subletting is passing of monetary consideration from the sub-ten- ant to the tenant. In this regard, in this case, a direct evidence has been forthcoming from record. The say of the plaintiff in his evidence(Exh.127) that in the year 1998, defendant No.2 was paying to defendant No.1 tenant Rs.18,000/- per month and the said amount being paid was Rs.24,000/- in the year 1999, was dir-Page 20 of 22
C/CRA/63/2005 JUDGMENT ectly corroborated and established from the statement of bank account of respondent No.2 Bajaj Auto Center (Exh.128). The said statement was for the period from 01.04.1998 to 31.03.1999 and it showed that every month, the amount was being paid to defendant No.1 tenant from the account of defendant No.2 sub-tenant. Thus, all the ingredients necessary to establish the ground under section 13(1)(e) were present and proved on record.
9. In the aforesaid view, the decree passed by the Trial Court booked no error. The Lower Appellate Court misdirected in law in its reasons and conclu- sions in reversing the decree of the Trial Court. It committed an error of law for as discussed herein- above, the ground of subletting was duly established on record.
10. Therefore, the impugned judgment and order 25th February, 2005 passed common in Regular Civil Ap- peal No.49 of 2003, as well as Regular Civil Appeal No.51 of 2003 by Joint District Judge, Fast Track Court No.5, Bharuch, cannot sustain and the same is required to be set aside. Accordingly, the said common judgment and order is set aside. Resultantly, the judgment and decree dated 23.10.2003 passed by learned 3rd Civil Judge, Senior Division, Bharuch, in Regular Civil Suit No.279 of 1998 is upheld and maintained subject to qualification that the respondents shall be required to hand over the vacant and peaceful pos- session of the premises in question on or before 31st August, 2014.
Page 21 of 22 C/CRA/63/2005 JUDGMENT
11. Both the Civil Revision Applications are
allowed accordingly.
11.1 The Registry shall send back record and
proceedings.
(N.V.ANJARIA, J.)
chandrashekhar
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