Punjab-Haryana High Court
Kasturi Lal (Deceased) Through L.Rs. vs Sadhu Ram And Anr. on 25 September, 2004
Equivalent citations: (2005)139PLR216
JUDGMENT M.M. Kumar, J.
1. This petition filed by the landlord-petitioner under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity "the Act") challenges judgment dated 26.9.1992 passed by the Appellate Authority, Gurdaspur whereby it has reversed the judgment of the Rent Controller, Gurdaspur dated 12.6.1991 evicting the tenant-respondent 1 and sub-tenant-respondent 2 from the demised shop on the ground of sub-letting.
2. Brief facts of the case are that tenant-respondent No. l Sadhu Ram was inducted as a tenant by the landlord-petitioner at a rent of Rs. 40/- per month. The landlord-petitioner had earlier filed an ejectment petition alleging that tenant-respondent-1 Sadhu Ram has handed over exclusive possession of the demised shop to his brother Mohinder Pal without obtaining consent of the landlord-petitioner and, therefore, he was liable to be ejected on the ground of sub-letting. That petition was dismissed by the Rent Controller on 31,3.1971 and a copy of the order has been exhibited as Ex.Rl. After 16 years, the landlord-petitioner has filed another application for ejectment being R.A. No. 3 of 2.4.1987 (R.B.T. No. l 1/14.3.1991) alleging that tenant-respondent No. l has handed over exclusive possession of the demised shop to sub-tenant respondent No. 2-Pawan Kumar who is nephew of tenant-respondent-1. The tenant-respondent contested the application by taking the stand that tenant-respondent No. l was earlier running a hotel and now he is doing Karyana business in the demised shop. He has, however, admitted that he started the business of Katcha Arthia (Commission Agent). He contested the allegation that exclusive possession of the demised shop has been delivered to Pawan Kumar, sub-tenant-respondent No. 2. It was asserted that in fact Pawan Kumar, sub-tenant respondent No. 2 is his nephew who merely helps him in the running of shop and the application is mala fide to enhance the rent.
3. In support of his case, landlord-petitioner produced documentary evidence in the form of Ex.Al which is photostat copy of Form "F". It shows that Pawan Kumar had obtained a licence from Labour Inspector in the year 1986 under the Punjab Commercial Shop Establishment Act. The afore-mentioned Form "F" was proved by the Labour Inspector who appeared as AW1. He also produced Ravinder Kumar, AW-3, Clerk Municipal Committee, Dhariwal who deposed that sub-tenant Pawan Kumar, respondent No. 2 had also obtained a licence from the Municipal Committee, Dhariwal for retail sale of Match-box and vegetables in the year 1986. Another document produced is the income tax return filed by the tenant-respondent No. l in respect of his new business of commission agent in the name of M/s Sadhu Ram and Sons from 1984 to 1988 showing his source of income as commission and no income from the business run in the demised shop has been reflected. There are statements of witness like AW9 Krishan Gopal who had stated that sub-tenant respondent No. 2 Pawan Kumar is running the business in the demised shop independently and AW10 Ravinder Kumar had stated that he had been selling foodgrains to Sadhu Ram tenant-respondent 1, in the grain market. AW-10 has also produced the receipts issued by Sadhu Ram regarding the purchase of foodgrains which are Ex.AWl0.l to Ex.AW10.12- The landlord-petitioner has appeared as his own witness to support the averments made in the ejectment petition. Another document produced on record is Form Dl which is a Form for preparation of ration card and the same is duly attested by Sarpanch of village Lehal. The afore-mentioned Form Dl has been produced as Ex.A2.
4. The total evidence produced on record by the tenant-respondent is RW-1 Kasturi Lal, RW2 Dharam Chand and document Ex.Rl, copy of the judgment dated 31.3.1971. On the basis of the aforementioned evidence, the Rent Controller recorded a finding that sub-tenant respondent No. 2 Pawan Kumar is admittedly in possession of the demised shop and he is independently running his business in it, The licences obtained from the Municipal Committee as well as from the Labour Inspector prove beyond any doubt the aforementioned fact that tenant -respondent No. l was not in possession of the demised shop any more.
5. The finding reported by the Rent Controller has been set aside by the Appellate Authority by discarding the evidence adduced by the landlord-petitioner showing and proving that tenant-respondent No. 1 Sadhu Ram in his income tax return of the firm M/s Sadhu Ram and Sons from 1984 to 1988 has not shown the income from the demised shop but has only reflected the income from the commissions agent which is situated in Grain Market and it is shown to be the only source of his income. The basis of the findings recorded by the Appellate Authority is that the landlord-petitioner has not been able to prove consideration for delivery of possession to the sub-tenant respondent No. 2. It has further been held that Pawan Kumar, sub tenant respondent No. 2 is proved to be in possession of the demised shop as a licensee of tenant-respondent No. l. The views of the Appellate Authority reads as under:-
"After going through the case law referred by the learned counsel for the applicant-landlord, it is found that in this case law also, the Division Bench of Hon'ble Supreme Court of India has held that it is necessary for the landlord to prove that exclusive possession of the sub-tenant was for valuable consideration. Thus, the Division Bench of Hon'ble Supreme Court of India has laid down the law in the above noted cases that the landlord is to prove the delivery of possession by the tenant to the sub-tenant for valuable consideration, Therefore, in view of the case law referred above, it is found that it is an established law that to prove the sub-tenancy, it is necessary for the landlord applicant to prove that the tenant has delivered the exclusive possession to the sub-tenant for valuable consideration. But in the present case, the landlord has not produced any evidence that Sadhu Ram appellant has delivered exclusive possession to Pawan Kumar, respondent No. 2 for valuable consideration. If Pawan Kumar respondent No. 2 is proved to be in possession of the premises in dispute, he is in possession of the shop in dispute as a licensee on behalf of Sadhu Ram appellant."
The learned Appellate Authority also placed reliance on order Ex.Rl dated 31.3.1971 passed by the Rent Controller in the earlier petition filed by the landlord-petitioner and observed as under:-
"Sadhu Ram appellant has also produced copy of order Ex.Rl from which, it is proved that earlier also, the applicant-landlord has filed ejectment petition against Sadhu Ram appellant and Mohinde Pal his brother alleging that Sadhu Ram appellant had sub let the premises in dispute to his brother Mohinder Pal. In that case, it was held that Sadhu Ram and Mohinder Pal being real brothers were running joint business in the premises in dispute and the premises is dispute were not rented out to Mohinder Pal by Sadhu Ram appellant. Now Pawan Kumar respondent No. 2 son of Mohinder Pa| is working in the shop in dispute and his father Mohinder Pal is selling fruits in front of the shop in dispute. Thus, it is proved that Sadhu Ram appellant and his brother Mohinder Pal are running joint business in the shop in dispute and if Pawan Kumar respondent No. 2 is working in the shop in dispute, he being son of Mohinder Pal is working in the shop in dispute to help the appellant and his brother (father of Pawan Kumar namely Mohinder Pal). It is also quite natural that when the father is running a shop, adult son also attends the business to help the father. Similarly, in the present ease also, Pawan Kumar being adult son of Mohinder Pal who is running joint business with Sadhu Ram appellant in the shop in dispute is working to help the appellant and his own father Mohinder Pal and is not running the business in the shop in dispute independently. Mere issuance of license by the authorities for running the shop did not prove the sub-letting of the shop in favour of Pawan Kumar."
6. Shri H.S.Giani, counsel for the landlord-petitioner has argued that well founded findings recorded by the Rent Controller have been reversed by the Appellate Authority by ignoring the statement made by tenant-respondent No. l himself admitting that he has filed income tax return for the years 1984 to 1988 showing his income from M/s Sadhu Ram and Sons alone. According to the learned counsel, the income tax returns should have reflected the income from the business run in the demised shop and he was working or sub-tenant respondent No. 2 was working for him. Therefore, it would lead to an adverse inference that Sadhu Ram, tenant-respondent No. l was running no business in the demised shop. The learned counsel has then referred to the statement of tenant-respondent No. l (RW-3) who after deposing in examination-in-chief on the lines of the written statement filed, took a complete somersault during his cross-examination and stated that sub tenant respondent No. 2 had started Karyana shop in the demised shop at the instance of general public not at his instance. It would be appropriate to reproduce his cross-examination in extenso which reads as unden-
"I started Commission Agent business in the year 1976, I had purchased about 10 Marias of land in mandi Dhariwali for carrying on the business of commission Agent. No construction was raised there but only I had pitched up a tent for running that business. I had obtained a licence from Market Committee for carrying on the business of Commission Agent in 1976-77. 1 had only run a hotel in the shop in dispute since I took it on rent and I was known as Sadhu Ram Hotelwala in the Dhariwal town. Now, people know me as Sadhu Ram Commission Agent. I am income tax assessee and am keeping regular account. Pawan Kumar had started a Karyana shop in the shop in dispute at the instance of general public. He might have obtained a licence from Municipal Committee, Dhariwal for running a Karyana shop etc. It is correct that my brother Mohinder Pal is now running business of selling fruit and vegetable in a khokha constructed on the portion of the road. Municipal Committee, Dhariwal. It is incorrect to suggest that there is dispute between the Municipal Committee, Dhariwal and Mohinder Pal for the removal of Khokha.
It is incorrect to suggest that I have no concern with the shop in dispute since 1976-77. It is also incorrect to suggest that Pawan Kumar is running his independent business in the shop in question and I have no interest left in the disputed shop. It is also incorrect that I have further sub let and handed over the possession of the demised shop to Pawan Kumar respondent. It is also incorrect that the present application has not been preferred for enhancement of the rent."
7. Learned counsel has then argued that Ex.Rl dated 31.3.1971 judgment delivered earlier against the landlord-petitioner cannot constitute a basis for recording a finding that in later point of time, tenant-respondent No. l has not given up exclusive possession in favour of another person. The learned counsel has maintained that there is cogent evi- dence produced on record by the landlord-petitioner to show that sub-tenant respondent No. 2 has been running the business of Karyana in the demised shop independently and there is no association of tenant-respondent No. l. Learned counsel has argued that once exclusive possession of a third person is proved then it would be legitimate for the Court to infer that exclusive possession has been handed over on the basis of some secret understanding between tenant-respondent No. l and sub-tenant respondent No. 2. Learned counsel has placed reliance on Para 59 of the judgment of the Supreme Court in the case of Rajbir Kaur v. S. Chokesiri and Company, 1989(1) S.C.C. 19 and Anr. judgment of Supreme Court in M/s Nihal Chand Rameshwar Dass and Anr. v. Vinod Rastogi and Ors., J.T. 1994(4) S.C. 113 and argued that no positive evidence of consideration for parting with the exclusive possession is required to be adduced by the landlord-petitioner because such an evidence is difficult to procure as the transaction between the tenant and sub-tenant is always clandestine arrangement.
8. Shri Rajesh Garg, learned counsel for the tenant-respondents has argued that in order to succeed in ejectment petition on the ground of sub-letting all the ingredients of Section 13(2)(ii)(a) of the Act are required to be satisfied. According to the learned counsel parting of exclusive possession as well as consideration thereof are the two ingredients which must be proved by the landlord-petitioner in order to succeed in evicting the tenant. The learned counsel maintains that proof of one is not sufficient to order ejectment of a tenant in the absence of proof of another. Learned counsel has place reliance on two judgment of the Supreme Court in the cases of United Bank of India v. Cooks and Kelvey Properties (Private) Limited, 1994(5) S.C.C. 9 and Dev Kumar v. Swaran Lata, 1996(1) S.C.C. 25 in support of his submission. Learned counsel has also submitted that at best sub-tenant-respondent No. 2 can be regarded as a licensee. The learned counsel has stressed that in such a situation no ejectment order could be passed against the tenant-respondent. In this regard, he has placed reliance on a judgment of this Court in the case of Lajwanti and Anr. v. Daulat Ram, (1990-2)98 P.L.R. 426.
9. It is well settled that although this Court while exercising jurisdiction under Section 15(5) of the Act does not ordinarily interfere with the findings of facts, yet in cases where the findings suffer from perversity or non-reading of evidence, then this Court would fail in its duty if such errors are ignored. The aforementioned principle has been laid down in the case of Ram Dass v. Ishwar Chander, AIR 1988 SC 1422 because under Section 15(5) of the Act, this Court is to satisfy itself as to the "Legality and propriety" of the order under revision. The view of the Supreme Court in Ram Dass's case (supra) reads as under:-
"The question whether the revisional power extends to inference with an upsetting of findings of fact, essentially burns on the language of the statute investing the revisional jurisdiction, subject to the well-known limitations inherent in all revisional jurisdictions. Section 15(5) of the East Punjab Rent Restrictions Act enables the High Court to satisfy itself as to the legality and propriety of the order under revision, which is, quite obviously, a much wider jurisdiction. That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts and reappraise the evidence if the findings of the appellate court are found to be infirm in law, though the revisional court is not a second court of first appeal."
10. The aforementioned view becomes pronounced all the more on a perusal of the judgment in the case of Mohinder Singh v. Madan Lal Sharma, (2002)10 S.C.C. 676.
11. If the facts of the instant case are examined in the light of the principles laid down by the Supreme Court in Ram Dass's case (supra), then it becomes evident that the Appellate Authority set aside the findings recorded by the Rent Controller by ignoring the statement made by tenant-respondent 1 that he furnished his income tax return showing his income is the commission earned from the firm M/s Sadhu Ram and Sons alone which has got nothing to do with the business run in the demised shop. The Rent Controller has legitimately drawn an inference on the basis of the statement made by tenant-respondent No. l that he has no connection with the demised shop as he failed to show any income. It is further clear from the statement to which reference has been made in the proceeding Paras wherein he has shown ignorance as to the license obtained by sub-tenant-respondent No. 2 from Municipal Committee, Dhariwal or the license obtained by him from the Labour Inspector. The non consideration of the evidence by the Appellate Authority has resulted into perversity of the findings. The Appellate Authority could not have adopted the aforesaid course and committed an illegality warranting interference of this Court under Section 15(5) of the Act.
12. There is another aspect which would warrant interference of this Court by exercising power under Section 15(5) of the Act because once the landlord-petitioner has proved on record exclusive possession of sub-tenant-respondent No. 2, then a rebuttable inference in law is raised which could be replaced by the tenant-respondents by adducing cogent evidence. The rationale for the aforementioned principle is that sub tenancy is always created in a clandestine manner and from the principal facts established on record, namely, that the possession is with the sub-tenant-respondent No. 2, then the only irresistible conclusion is that it is the result of some clandestine arrangement between the landlord-petitioner and the tenant-respondents. The aforementioned principle has been reiterated in the case of Rajbir Kaur (supra) and followed in the case of Nihal Chand (supra), the view of the Supreme Court in Rajbir Kaur's case (supra) puts the aforementioned conclusion beyond any doubt and the same reads as under:-
".... if exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the subtenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts accordingly as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that, appellants having been forced by the courts below to have established exclusive possession of the ice creams vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found".
13. The independent manner in which the sub-tenant-respondent 2 has been conducting the affairs of the business in the demised shop by applying for the license from the Municipal Committee and the Labour Department coupled with the statement made by tenant-respondent 1 would leave no manner of doubt that only one conclusion is possible, namely, that exclusive possession of the demised shop has been surrendered by tenant-respondent 1 to sub-tenant-respondent 2. It is further pertinent to mention that tenant-respondent 1 filed his income tax return in respect of years 1984 to 1988 and showed his income only from the commission of the firm M/s Sadhu Ram and Sons and not a penny has been shown as income from the business conducted at the demised shop which he claims to be run by his nephew (sub-tenant-respondent 2) on his behalf. The tenor of the statement made by tenant-respondent 1 indicates only one thing that he has no knowledge of the affairs and transaction conducted at the demised shop. It cannot be believed that a principal would have not have any knowledge of the acts of his agents. Moreover, the inference from established fact of exclusive possession is rebuttable one. Any evidence could have been led by the tenant respondents showing that sub-tenant- respondent 2 is acting as an agent of tenant-respondent 1, The mere statement of RW-1 Kasturi Lal and RW-2 Dharam Chand cannot be considered to have replaced that presumption. The principle of "rebutable inference" was referred to in Rajbir Kaur's case (supra) which has been followed in M/s Nihal Chand Rameshwar Dass 's case (supra).
14. The aforementioned view has also been followed in Bharat Sales Limited v. L.I.C. of India, 1998(3) S.C.C. 1 and Resham Singh v. Raghbir Singh, AIR 1999 SC 3087. Therefore, the view of the Appellate Authority cannot be accepted that the landlord-petitioner shall also prove the consideration for parting with exclusive possession and the same can be raised by operation of law as a legitimate inference is permissible.
15. The argument of Mr. Rajesh Garg, learned counsel for the respondents that the consideration is also required to be proved cannot be accepted in view of the overwhelming authority of the Supreme Court and I have no hesitation to reject this argument as it has been rejected by the Supreme Court in the aforementioned judgments. The other argument that sub-tenant respondent 2 should be regarded as a licensee could also not be accepted as there is no finding recorded by the Courts below nor any evidence has been adduced to that effect. It is further appropriate to point out that in the written statement filed by tenant-respondent I, the following stand was taken:-
"....The fact of the matter is that the respondent No. l is in possession of the shop in dispute and he is running the Karyana business in it, an honourable business. He gave up the hotel business because it was not profitable and the prevailing unsafe atmosphere in the State and specially in Gurdaspur District, the hotel business was not safe and honourable. The respondent No. 2 is the real nephew of the answering respondent and he (respondent No. 2) simply helps him in the shop in dispute. The present application has been filed by the applicant to enhance the Rent to Rs. 100/- per month as he has been doing previously."
16. It is, thus, apparent that the plea of license has been raised for the first time before this Court. In the absence of any such plea raised either in the pleadings or evidence, it would be impermissible to be raised for the first time before this Court. It is further appropriate to mention that the judgment of the Supreme Court in United Bank of India's case (supra), on which reliance has been placed by learned counsel for the tenant-respondents is not applicable to the facts of the present case because in that case the bank who was a tenant was proved to be in possession as it maintained the premises at its own expenses, paying the electricity charges consumed by the trade Union for using the same to whom it was given for use and the demised premises was in full control of the tenant-bank. The tenant-bank also retained its control over the trade Union and its membership was confined to the membership of tenant-bank alone. On the basis of facts and circumstances, the Court has drawn an inference that the tenant-bank has retained its legal control of possession and allowed the trade Union to occupy the premises for its Union activities. Although exclusive possession of the demised premises was shown to be that of the trade Union, yet a plausible explanation explaining the nature of possession was given. It was, therefore, in the aforementioned peculiar facts and circumstances that the Supreme Court required the proof of existence of consideration from the landlord which was not present. It is not in every case that the existence of proof of consideration is required. In cases where the tenant is able to furnish plausible explanation as was the situation in United Bank of India's case (supra), then the presumption of exclusive possession is rebutted and the landlord has to show further existence of consideration. No such facts are in existence in the instant case. It is obvious that the judg- ment of the Supreme Court in United Bank of India's case (supra) would not govern the issue. Therefore, I have no hesitation in rejecting the submission made by the learned counsel on the basis of aforementioned judgment.
17. For the reasons stated above, this petition is allowed. The tenant-respondents are directed to hand over vacant possession of the demised shop to the landlord-petitioner within three months.