Punjab-Haryana High Court
Ashwani Kumar Prasher And Anr. vs Anil Kapoor on 1 July, 2004
Equivalent citations: (2004)138PLR408, 2004 A I H C 4734, 2004 HRR 2 279, (2004) 2 RENCR 174, (2004) 3 PUN LR 408, (2004) 2 RENTLR 618
JUDGMENT M.M. Kumar, J.
1. This is tenants' petition filed under sub section 5 of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') challenging concurrent findings of facts recorded by both the courts below holding that petitioner No. 1. Ashwani Kumar has sublet the demised shop to petitioner No. 2 his brother.
2. Brief facts of the case are that the landlord-respondent filed an application No. 21/Il-A of 1994 on 6.5.1994 under Section 13 of the Act for ejectment of the tenant- petitioner on the ground of non-payment of rent and sub letting. As the arrears of rent were paid ejectment on the ground of subletting alone survives. The case of the landlord-respondent as pleaded in the application was that the demised shop was rented to tenant-petitioner No.1 Ashwani Kumar at a monthly rent of Rs. 250/- w.e.f. August, 1983 and the relationship of landlord and tenant existed between the landlord-respondent and tenant-petitioner No.1. It was alleged that the tenant-petitioner No. 1 has sub let the demised shop to tenant-petitioner No. 2 for a valuable consideration and has parted with its exclusive possession more than two years prior to the date of the filing of the ejectment petition. The stand of the tenant-petitioner in their joint written statement was that the tenancy was not created by the landlord-respondent but it was created by his father Jai Gopal. It was further asserted that the demised shop was rented out to M/s Prahser Electrical Works which has been a joint business of the tenant-petitioners and their two brothers namely, Rakesh Kumar and Rajesh Kumar. The allegations of sub letting to the tenant-petitioner No. 2 have been specifically denied by the tenant-petitioner No. 1 claiming that in fact both of them have been the tenants in the demised shop alongwith their other brothers.
3. Apart from various other issues, two principal issues were framed by the Rent Controller. Issue No. 2 was whether the tenancy of the demised shop was in favour of M/s Prashar Electrical Works which was alleged to be a joint business of the tenant-petitioners and their other brothers. The onus to prove this issue was placed on the tenant- petitioner. Issue No. 3 was as to whether the tenant petitioner No. 1 has sub let the demised shop to tenant-petitioner No. 2 without the written consent of the landlord-respondent.
4. On Issue No. 2, categorical findings were recorded that tenant-petitioner No. 1 alone has been inducted as a tenant in the demised shop and he was not running any joint family business. A detailed reference has been made to documentary and oral evi dence to reach the afore-mentioned conclusion. The assessment register regularly main tained by the Municipal Committee for the year 1983-84 (Exs.A.l to A.4) has been re lied upon because the entries in the register showed that the tenancy was in favour of tenant-petitioner at a monthly rent of Rs. 250/-. Ex.A.5 and A.6 are the counter foils of the original receipts issued at the initial stage in favour of tenant-petitioner No.1 which are duly signed by Ashwani Kumar, tenant-petitioner No. 1. It is also pertinent to men tion that tenant-petitioner No.1 submitted an affidavit dated 22.11.1983 in the Municipal Committee, Gurdaspur which has been produced by one Vijay Kumar, Clerk, Municipal Committee. It has been duly attested by the official of the committee. The affidavit given by the tenant-petitioner No.1 categorically accepts that he has taken the demised shop on rent at the rate of Rs. 250/- p.m. on 23.08.1983.
5. The Rent Controller did not accept the defence of the tenant-petitioner that it was a joint family business which was being run by the tenant-petitioner No. 2 alongwith other brothers because no evidence was led to substantiate the afore-mentioned stand
2. and the onus to prove the issue was on them. They could have easily produced their books of account or any other business transaction or other dealings concluded by any of them. Although it was accepted by Ashwani Kumar that he has been maintaining books of account, bill books and cash memos but nothing was placed on the record. However, in August, 1983, the father of the tenant-petitioners Shri Tilak Raj was in government service as he was working as Superintendent in the Office of the Assistant Registrar Cooperative Societies. In the year 1983, the other brothers of the tenant-petitioner, namely, Rakesh Kumar and Rajesh Kumar were minor and later they joined police service where they are still continuing. The Rent Controller also made a reference to the ration card record showing that Tilak Raj alongwith his three sons has separated from Ashwani Kumar, tenant-petitioner, which is Exs.AW8/1 and AW8/8.
6. It is further pertinent to mention that the landlord-respondent has brought on re cord the documentary evidence showing that tenant-petitioner No. 1 have opened an electrical goods shop under the name and style of M/s Aroma Electrical at Nangal Bhoor. Ex.A/2 is one of the cash memos issued by the firm and is proved by AW4 Anil Singh son of Rachhpal Singh. The shop is situated at Nangal Bhoor which is 50 Kms. from Gurdaspur where the demised shop is situated. The wife of tenant-petitioner No. 1 is working as a Librarian in the Central School at Nangal Bhoor.
7. On issue No. 3 it has been found that the tenant-petitioner No.1 has divested ex clusive possession of the demised shop to the tenant-petitioner No. 3. The Rent Controller relied upon the provisions of Section 13(2)(ii)(a) of the Act to conclude that a tenant cannot transfer the possession of the rented premises to another person without the writ ten consent of his landlord. The Rent Controller has also relied upon that part of the statement of landlord-respondent AW3 where he had stated that the tenant-respondent No. 2 is in exclusive possession of the rented premises.
8. On appeal, the appellate authority maintained the order of the Rent Controller. A detailed reference was made to the facts already pointed out in the preceding paras and it was concluded that there was nothing on the record to show that M/s Prashar Electri cal Works is a joint family concern of the tenant-petitioner. It has further been found that the tenant-petitioner No.1. has shifted his residence and business to village Nangal Bhoor and tenant-petitioner No. 2 is in exclusive possession of the demised shop. On the basis of exclusive possession it was observed that the demised shop has been sub-let by tenant-petitioner No. 1 to tenant-petitioner No. 2.
9. Shri Ashwani Chopra, learned counsel for the tenant-petitioner has argued that even if the findings that Ashwani Kumar, tenant-petitioner No.1 has been the tenant of the landlord respondent are taken to be correct then it is no ground to record a further finding that Prashar Electric Works is not a joint family business. According to the learned counsel a joint family business might be spread to various places and tenant-pe titioner No.1 might be controlling the same. He has made reference to rent receipt Ex. R 1 to R32 to argue that the landlord-respondent has accepted M/s Prashar Electrical Works as the tenant because the receipts of rent have been issued in the name of the firm M/s Prashar Electrical Works. The learned counsel has also pointed out that there is no evidence on record to conclude that the tenant-petitioner No.1 has parted with exclu- sive possession of the demised shop in favour of tenant-petitioner No. 2. The learned counsel has stressed that statement of landlord-respondent AW3 alone cannot constitute a basis for concluding that exclusive possession of the demised shop has been handed over to the tenant-petitioner No. 2 by the tenant-petitioner No.1. He has also submitted that once the requirement of law showing exclusive possession of the tenant-petitioner is not fulfilled then no inference in respect of any consideration could be raised.
10. Shri B.R. Mahajan learned counsel for the landlord-respondent has argued that onus to prove issue No. 2 was placed on the tenant petitioner and on the basis of evi dence both the Courts below have found that the tenancy was created in favour of ten ant-petitioner No.1 alone. The learned counsel has emphasised that tenant-petitioner No.1 has shifted his business to Nangal Bhobr a town which is situated at a distance of 50 Kms. from Gurdaspur where the demised shop is situated and the exclusive possession of the shop has been handed over by the tenant-petitioner No. 1 to tenant-petitioner No. 2. He has pointed out the evidence showing that Nangal Bhoor, the tenant-petitioner No.1 is running his business of electrical goods under the name and style of M/s Aroma Electrical and there is no jointness in the two business at Gurdaspur and at Nangal Bhoor. He has stressed that no evidence has been produced on record showing that tenant-petitioner has been running the joint Hindu family business.
11. After hearing the learned counsel for the patties at a considerable length and perusing the orders of ejectment passed by both the Courts below, 1 am of the considered view that the findings recorded by both the Courts below do not suffer from any legal infirmity. There is ample evidence on record showing that tenant-petitioner No.1 alone was inducted as tenant in August, 1983. He left the demised shop and handed over its possession to tenant-petitioner No. 2 and started his business at Nangal Bhoor under the name and style of M/s Aroma Electrical. No evidence has been produced by either of the tenant-petitioners showing jointness of the business nor any proof has been furnished showing that M/s Prashar Electrical Works at Gurdaspur and M/s"Aroma Electrical at Nangal Bhoor are the joint family business. The father of the tenant-petitioners is in government service since August, 1983 when the tenancy commenced. The other brothers of the tenant-petitioners were minor at that time and later on have joined the police service. Even the ration card of tenant-petitioner No.1 is separate from his other family members. The evidence of joint business could have been easily adduced by producing books of accounts or any other business transaction. However, nothing has been brought on record. The findings recorded by both the Courts are based on evidence and once it has been established that exclusive possession was handed over to tenant-petitioner No. 2 by the tenant-petitioner No.1, the basic ingredients of sub-letting stand proved. Therefore, it follows that the delivery of exclusive possession by the tenant-petitioner No.1 to tenant-petitioner No. 2 must be on the basis of some consideration. For the afore-mentioned view reliance could be placed on the judgments of the Supreme Court in the cases of Rajbir Kaur v. 5. Chokesiri and Co.,1 (1989)1 S.C.C. 19; Gopal Saran v. Saty-anarayan2 (1989)3 S.C.C. 56 and Bharat Sales Ltd. v. L.I.C. of India,3 (1998)3 S.C.C. 1. In Rajbir Kaur's case (supra) their Lordships observed as under:-
"If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transactions 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 sub-tenant 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 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 be appropriate standard, he will lose. Though the burden of proof as a mater of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as to weight of the evidence adduced by the party during the trial. In the circumstance of the case, we think, that, appellants having been forced by the Courts below to have established exclusive possession of the ice-cream 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 permissible 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 monetrary consideration. There is no explanation forthcoming from the respondent appropriate to the situation as found."
12. To the same effect are the observations of the Supreme Court in Bharat Sales Ltd. case (supra) which reads as under: -
"Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the over tacts and transferring possession clandestinely to a person who is an utter stranger to the landlord. In the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let."
13. The aforementioned observations fully apply to the facts of the present case. The tenant petitioner No. 1 has given exclusive possession of the demised shop to the tenant- petitioner No. 2. The statement of the landlord-respondent No. 3 is categorical. The other finding that tenant-petitioner No. 1 is running a separate business at a place 50 kms. away from Gurdaspur where demised shop is situated further lends support to the state ment of AW3. The tenant-petitioners have failed to establish that their business is a joint family business. On principle and precedents it must be inferred that there is some con sideration for tenant-petitioner No.1. to put tenant petitioner No. 2. in exclusive posses sion and subletting stands fully proved. Therefore, no interference is warranted in the or der of ejectment passed by both the Courts below and the petition is liable to be dis missed.
14. The argument that Ashwani Kumar might have opened another shop at Nangal Bhoor by continuing his business in the demised shop is absolutely devoid of merit and does not require any serious consideration because there is no evidence nor it was the case pleaded before the Courts below.
15. For the reasons recorded above, this petition fails and the same is dismissed. However, the tenant-petitioners are granted one months' time to hand over vacant pos session of the demised shop exclusively to the landlord-respondent and none else.