Himachal Pradesh High Court
Smt. Ram Rani Suri And Another vs Dr. Laxmi Sharma And Another on 8 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 158 of 2004 a/w
Civil Revision No. 175 of 2004
.
Reserved on : 16.06.2015
Date of decision: 08.07.2015.
______________________________________________________________________
1. Civil Revision No. 158 of 2004
Smt. Ram Rani Suri and another
......Petitioners.
Vs.
Dr. Laxmi Sharma and another
.....Respondents.
2.
Civil Revision No. 175 of 2004
Dr. Laxmi Sharma ....Petitioner.
Vs.
Shri Satish Suri and others .....Respondents.
-------------------------------------------------------------------------------------------
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting?1 Yes.
For the petitioner(s): Mr. Vijay Chaudhary, Advocate, for the
petitioner in Civil Revision No. 175/2004
and Sh. Suneet Goel, Advocate, for the
petitioner in Civil Revision No. 158/2004.
For the respondents: Mr. Vijay Chaudhary, Advocate, for
respondent No. 1 in Civil Revision No.
158/2004 and Mr. Suneet Goel,
Advocate, for respondent No. 1 in Civil
Revision No. 175/2004.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 18:32:18 :::HCHP
2
Rajiv Sharma, J.:
These two Civil Revision Petitions bearing Civil Revision .
No. 158/2004 and Civil Revision No. 175/2004 were taken up together for hearing, since they arise from the judgment, dated 19.07.2004, rendered by the learned Appellate Authority, Solan, H.P. in Case No. 5- S/14 of 2004. However, in order to maintain clarity, the facts of Civil Revision No. 175/2004 have been taken into consideration.
2. Petitioner (hereinafter referred to as 'the landlord" for the sake of convenience) had instituted a Rent Petition against Shri Bhagat Ram Suri, predecessor-in-interest of respondents Sh. Satish Suri, Smt. Ram Rani and M/s. Geeta Agencies Private Limited, on the grounds that the respondent No. 1 (Sh. Bhagat Ram Suri)had sub-let the premises without the written consent and permission of the landlord to M/s. Geeta Agencies Private Limited. The demised premises were also converted into show room-cum-office without the previous permission and consent of the landlord. The tenant has laid down slab, bricks and tiles on the floor, shutter in the door and partitioned the premises. The windows have been fixed and other type of alterations have been made without the written consent of the landlord. Thus, the tenant had materially affected the value and utility of the premises. The tenant was also in arrears of rent.
3. The petition was contested by the tenant. Initially, the business was being run in the name and style of M/s. Nirankari Traders, Solan with Smt. Neena Suri and Smt. Pushpa Sahni as ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 3 partners up to 31.03.1985 and when Smt. Neena Suri and Smt. Pushpa Sahni withdrew from the partnership, a new partnership had come into existence under the name and style of M/s Geeta Enterprises with Sh.
.
Raj Kumar and Sh. Ashok Kumar as partners. No additions or alterations had been carried out and the development and renovation was made when the rent was increased from `620/- per annum to `1800/- per annum in 1986. The broken tiles were replaced. The non-
payment of rent since January, 1992 with statutory increase @`165/-
per month was admitted to be due @`1980/- per month. Learned Rent Controller, Kasauli at Solan, District Solan, H.P. framed the issues on 12.10.1999. The plea of the landlord qua sub-letting and that the tenant has materially affected the value and utility of the premises was rejected vide order, dated 27.09.2003. However, the petition was partly allowed on the ground of non-payment of arrears of rent.
4. The landlord preferred an appeal before the learned Appellate Authority bearing Case No. 5-S/14 of 2004. The learned Appellant Authority has framed the following points for determination:
1. Whether the learned trial Court erred in returning the finding that the tenant has not sublet the premises to respondent No. 2?
2. Whether the tenant has committed such acts as have materially impaired the value and the utility of the premises as alleged?
3. Final Order.::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 4
5. The learned Appellate Authority returned findings that the tenant had failed to lead cogent and reliable evidence to rebut the testimony of the landlord and to prove his plea that he still runs the .
business in the premises in partnership with Ashok Kumar and Raj Kumar. The Point No. 1 was answered in negative. The findings of the learned Rent Controller that the tenant has not sub-let the premises to respondent No. 2 and consequently, the landlord was not entitled to eviction on this ground was set aside. The eviction of the tenant and respondent No. 2 from the premises was ordered on the ground of sub-
letting also, in addition to the ground of non-payment of rent. The Point No. 2 was also answered in negative.
6. The landlord has preferred Civil Revision No. 175/2004 against the Point No. 2 decided by the learned Appellate Authority against him and the tenant has assailed the findings returned on Point No. 1 returned by the learned Appellate Authority.
7. Mr. Suneet Goel, learned counsel for the tenant has supported the order, dated 27.09.2003, passed by the learned Rent Controller on the ground of sub-letting.
8. Mr. Vijay Chaudhary, learned counsel has supported the findings returned on Point No. 1 by the learned Appellate Authority, Solan, H.P. He has also argued that the findings returned on Point No. 2 were contrary to the oral as well as documentary evidence relied upon by the landlord.
::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 59. I have heard the learned counsel for the parties and gone through the pleadings, judgment and records carefully.
10. Landlord has appeared as PW-1. According to him, his .
father Madho Ram was owner of the building. His father died in 1993.
He inherited the property from his father. He proved the map Ex.-A. The tenant No. 1 has sub-let the premises without his permission. He has also put the shutter without his permission. It was converted into show room, permanently tiles have been placed and two windows have also been fixed and the premises have been converted into cabin. The tenant had never sought the permission of the landlord for doing the same.
11. PW-2, Sh. Rajender Sharma deposed that when he went to the spot, the tiles were being put and he has taken the pictures of the same.
12. The tenant Sh. Bhagat Ram has appeared as RW-1. He testified that earlier he was running the business in the name and style of Nirankari Traders and thereafter, as M/s. Geeta Enterprises, in which he, Raj Kumar and Ashok Kumar were partners. Earlier, Neena Suri and Pushpa Sahni were partners. They have left the partnership.
No alterations have taken place in the premises. He used to pay income tax. Shutter was put by Madho Ram. In his cross-examination, he deposed that in the shop, he, Ashok Kumar and Raj Kumar used to sit.
Neither Ashok Kumar nor Raj Kumar was related to him. They were equal partners and they used to pay income tax. In his further cross-
examination, he volunteered that he was Director of Geeta Agencies and ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 6 Geeta Agencies used to pay him `3000/- per month as salary. He could not tell the turn over of the Geeta Enterprises. He denied the suggestion that shutter was put without the permission of the landlord.
.
13. RW-2 Sh. Chander Pal deposed that the tenant used to do business under M/s. Geeta Agencies. The tenant, Ashok Kumar and Raj Kumar were partners. Initially, Bhagat Ram used to work in the name and style of Nirankari Traders. In his cross-examination, he deposed that the partnership was made, but he has not seen the partnership deed. He was told about it by the tenant. Bhagat Ram, Ashok Kumar and Raj Kunar were not related to each other.
14. RW-3 Sh. Mool Raj deposed that he has never seen the respondents doing any acts amounting to additions and alterations in the premises. He also deposed that neither Raj Kumar nor Ashok Kumar was related to each other.
15. What emerges from the analysis of the statements discussed hereinabove is that the premises were let out to Sh. Bhagat Ram Suri by the father of Dr. Laxmi Sharma, namely, Sh. Madho Ram.
Madho Ram died in the year 1993. The landlord inherited the property after the death of his father. The case of the landlord, precisely is that the tenant Sh. Bhagat Ram Suri had sub-let the premises without the written consent and permission of the landlord to M/s. Geeta Agencies Private Limited. The tenant had also materially affected the value and utility of the premises by making additions or alterations without his permission. The tenant had also not paid the arrears of rent. According ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 7 to the tenant, initially, he was running business in the name and style of Nirankari Traders and after the partners, namely, Neena Suri and Pushpa Sahni left the partnership, a fresh partnership was constituted .
by inducting Sh. Raj Kumar and Sh. Ashok Kumar as partners under the name and style of M/s. Geeta Enterprises. The tenant has not affected the value and utility of the premises. The non-payment of arrears of rent, as discussed hereinabove, was admitted.
16. The tenant has not placed on record the copy of partnership deed. According to RW-1 Sh. Bhagat Ram, he was equal partner and had been paying the income tax. He has not paced on record the copies of income tax returns. The details of the bank account of the partnership firm in the Canara Bank, Solan have not been proved. He has not placed on record any voucher or sales tax returns or books of accounts to establish that he was running the business in partnership firm with Sh. Ashok Kumar and Sh. Raj Kumar. RW-1 Sh.
Bhagat Ram could not tell the turn over of M/s. Geeta Agencies.
According to him, he was Director of the firm and was being paid salary of `3000/- per month. RW-2 Sh. Chander Pal has admitted in his cross-examination that he has not seen partnership deed. It is apparent that the stand taken by the tenant that he was running business in partnership is only a camouflage/cloak to overcome the sub-letting. The landlord has amply proved that the tenant has sub-let the premises to ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 8 respondent No. 2 without his permission and has also parted with the possession of the same. It is also apparent that as per the admission of .
tenant Bhagat Ram, he was paid a sum of `3000/- per month by Ashok Kumar and Raj Kumar during the years 1999-2000 and 2000- 2001. The payment on each month was nothing but monetary consideration of his having sub-let the premises to respondent No. 2.
PW-1 Sh. Laxmi Sharma, has categorically deposed that the business in the premises was being run by M/s. Geeta Enterprises and the respondent No. 1, tenant was running separate business of grocery in Lower Bazaar, Solan. The respondent No. 1 has parted with his exclusive possession and started receiving monthly rent irrespective of loss or profit of the firm. He has no concern with the partnership firm.
17. Now, as far as the plea of floor being replaced by tiles and original door being replaced by shutter by the tenant is concerned, the same would not amount to additions or alterations. It was necessary for the landlord to prove by leading cogent and reliable evidence that the tenant has materially affected the value and utility of the premises.
18. Their Lordships of the Hon'ble Supreme Court in Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh AIR 1968 Supreme Court 933 have held that in a suit by the landlord for eviction of tenant from hotel building on the ground of sub-letting the landlord discharged the onus by leading evidence showing that occupants were in exclusive possession of apartments for valuable ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 9 consideration. But the tenant chose not to rebut this prima facie evidence by proving and exhibiting relevant agreements on which apartments were occupied though these documents formed part of his .
case. Their Lordships have held as under:
"5. The two Courts concurrently found that the appellant had sub-let several rooms, counters, showcases and garages. The two Courts found that the appellant had sub-let rooms to (1) Pan American. World Airways, (2) Mercury Travels, India (Private) Ltd., travel agents (3) Indian Art Emporium, dealers in curios and jewellery, (4) Shanti Vijay and Co.; dealers in Jewellery, (5) Roy and James, hairdressers, (6) Sita World Travels, travel agents and (7) Ranee Silk Shop, dealers in saris and curios. The businesses of the sub-lessees were not confined to the residents of the hotel. The letting to Pan American World Airways and Indian Art Emporium were before the commencement of the Act and the lettings to Mercury Travels, Shanti Vijay and Co., and Roy and James were after the commencement of the Act. Sita Travels and Ranee Silk Shop were inducted as tenants after the institution of the suit. The entrances to the rooms were in the main corridor of the hotel on the ground floor.
The concurrent finding is that the occupants were given exclusive possession of the rooms occupied by them. The appellant did not retain any control and dominion over the rooms. It is possible that the keys of the apartments were sometimes left at the reception counter, but the evidence on this point was not convincing. It was not a condition of the grants that the keys would be left at the reception counter, or that the duplicate keys would be retained by the appellant. The occupants were at liberty to take away the keys if they liked. The occupants availed themselves of the services of ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 10 the hotel sweeper for their own convenience. The appellant retained control of the corridor, but it is common case before us that the entrance to the corridor was open day and night.
.
The occupants paid monthly sums to the appellant as the consideration of the sub-leases. The consideration though described as license fee was in reality rent. The portion occupied by Roy and James has an interesting history. It was formerly sub-let to R. N. Kapoor. In Associated Hotels of India Ltd. v. R. N. Kapoor, 1960 (1) SCR 368 = (AIR 1959 SC 1262) this Court held by a majority on a construction of the grant to R. N. Kapoor that he was a lessee and not a licensee. Roy and James began to occupy this portion of the premises from February, 1955. According to the appellant, the agreements with Roy and James, Mercury Travels and Shanti Vijay and Co., were in writing. The appellant produced several documents in Court at an early stage of the suit. The appellant's case was that these documents were the relevent agreements. According to the respondent, the documents were not genuine and the real agreements were being withheld. The stamp auditor noted on the documents the deficiency in stamps and penalty leviable on them on the footing that they were lease deeds. The appellant did not contest this note nor paid the penalty and deficiency as directed by the trial Court. The surprising feature of the case is that the appellant did not attempt to prove any of the documents. Where the agreement is in writing, it is a question of construction of the agreement whether the grant is a lease or a license. It was for the appellant to prove the written agreements, and the Court could then construe them.
The appellant has not brought before the Court the best and the primary evidence of the terms on which the apartments were being occupied. The onus to prove sub-letting was on ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 11 the respondent. The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable .
consideration. The appellant chose not to rebut this prima facie evidence by proving and exhibiting the relevant agreements. The documents formed part of the appellant's case. The appellant had no right to withhold them from the scrutiny of the Court. In the absence of the best evidence of the grants, the Courts below properly inferred sub-lettings from the other materials and the record.
7. On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is-has the landlord retained control over the apartment? The fact that the apartment is a room in a hotel may lead to the inference that the hotel-keeper retains the general dominion of the entire hotel including the apartment and that the occupier is in the position of a lodger or inmate. But the inference is not a necessary inference of law. Where, as in this case, the best evidence of the grant was withheld from the scrutiny of the Court, the inference was rightly drawn that the occupiers were tenants."
19. Their Lordships of the Hon'ble Supreme Court in Santiranjan Das Gupta Vs. Messrs Dasuram Murzamull AIR 1973 Supreme Court 48 have held that when there was no written down partnership contract, no record of terms and conditions of oral partnership, no account of partnership maintained for use of partners, no bank account of partnership and no written instruction conveyed to Government Officials who were concerned in the business of alleged ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 12 partnership, no inference can be drawn as to existence of partnership.
Their Lordships have held as under:
"6. In our opinion, the evidence to which our .
attention was drawn by Shri Nag is wholly inadequate for coming to the conclusion that the plaintiff-appellant and the defendant firm had entered into a contract of partnership as suggested on behalf of the plaintiff. It is inconceivable that the parties should have entered into an oral agreement of partnership without retaining any record of its terms and conditions. This is not the normal course of business. It is equally inconceivable that the partnership business should have maintained no accounts of its own, which would be open to inspection by both parties even though kept secret from the rest of the world. Absence of such accounts is conceded by the appellant before us. Maintenance of separate accounts by the plaintiff and the defendant firm as suggested by the appellant is no substitute for the maintenance of the accounts of the partnership business as such, accessible to both parties and, indeed, keeping only separate accounts by the parties would tend to negative rather than support the plea of partnership. Some of the other features which go against the appellant's plea are: (1) no account of the partnership was opened with any bank and mere oral information with respect to the newly created partnership was sent to the bank and (2) no written intimation was conveyed to the Deputy Director of Procurement with respect to the newly created partnership, only oral information having been sent to him. The circumstances further render the story of the partnership more doubtful.::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 13
7. Shri Nag submitted that the trial Court had on a consideration of the entire material come to a positive finding on issue no. 1 and that the High Court was, therefore, not .
justified in reversing it. The trial court, in our view, was influenced by considerations which are wholly inadequate for supporting the conclusion that the parties had entered into a partnership. According to the trial court the terms of partnership as reproduced in the plaint are reasonable whereas the terms contained in Ex. B suggest that the plaintiff had agreed to charge very low rates for milling the defendants' paddy and he had also undertaken expenses for loading and unloading, which unfairly increased the financial burden on him without any corresponding remuneration. The trial court has also more than onece made a reference to the likelihood of the parties making concealed profits from the partnership business and this in its view accounted for the absence of written deed of partnership. This reasoning is, in our view, too thin to satisfactorily explain or justify the extraordinary circumstance of complete absence of accounts even for the private use of the parties.
Whenever the parties try to conceal the real nature of an agreement of partnership between them they almost invariably, in their own self-interest, take good care to have in their respective possession written records of their rights and liabilities as also of their partnership business dealings. They further try to keep full record of the accounts of the business. This conduct is guided by the ordinary rules of prudence which govern normal human behaviour. Those accounts no doubt may not be described or treated as official accounts of the partnership maintained in the ordinary course of business. They are intended to be kept strictly and exclusively for the personal and private use of the parties ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 14 themselves. In the present case it is admitted on both sides that there is no such written record nor were any such accounts ever maintained by the parties for their own .
exclusive use.
There are no written terms and conditions of partnership contract established by the tenant. No account of partnership in existence has been shown to the Court. No bank account of partnership and no account of sales etc. has been brought on record. The tenant has parted with his use and control over the tenancy in favour of sub-
tenant.
20. Their Lordships of the Hon'ble Supreme Court in M/s.
Shalimar Tar Products Ltd. Vs. H.C. Sharma and others (1988) 1 Supreme Court Cases 70 have held that in order to constitute sub-
letting, there must be parting of the legal possession, i.e., possession with the right to include and also right to exclude others. The questions whether such parting had taken place, whether there was any sub-
letting and if so, was the same with the consent in writing of the landlord are essentially questions of fact. Their Lordships have held as under:
"3. This is in consonance also with the provisions of Section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) and sub-sections (2) and (3) of Section 16 of the said Act. The first question, therefore, is whether there was any sub-letting and secondly if so was the same with the consent in writing of the landlord. All these questions are essentially questions of facts and were ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 15 held against the appellant by the Rent Control Tribunal which was the final Court of facts, applying the correct propositions of law. This conclusion has been affirmed by .
the High Court. Before us it was pointed out by Sree Shankar Ghosh, learned counsel for the appellant, that it was not necessary that the consent to sub-letting should be in writing and what he contended was that it was necessary to have the consent and the manner of proving consent was provided in writing. In other words, he contended that the provision which required that the consent should be in writing meant it was mandatory so far as it enjoined consent but it was directory so far as it said that such consent should be in writing. Apart from the statute in this case, we find it difficult to accept this argument in view of the specific clause in the statute hereinbefore. In South Asia Industries Pvt. Ltd. v. S. Sarup Singh AIR 1966 SC 346 Justice A. K. Sarkar as the learned Chief Justice then was, observed that the object of interpreting a statute was to ascertain the intention of the legislature in enacting it. An interpretation defeating the object of a statute is, therefore, not permissible.
16. There is no dispute in the legal proposition that there must be parting of the legal possession. Parting of the legal possession means possession with the right to include and also right to exclude others. That is in our opinion, is the matter of fact. In this case, it has been found that there was a right of possession in favour of the sub-lessee R. C. Abrol & Co. Pvt. Ltd. and right to exclude indeed as it appears, from the narration of the fact that the company has gone into liquidation and the official liquidator has taken possession of the premises on behalf of the liquidator and that must be on the basis that it was the asset belonging to the company. In ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 16 the aforesaid view of the matter we are unable to accept this proposition that there was no subletting."
.
21. In Murli Dhar Vs. Chuni Lal and others, Rent Control Journal 1970 922, in a case where the Court found that the shop let out to a firm and old firm ceases to exist and the possession of shop taken by a new firm, one partner of old firm included in new firm, whether such possession is sub-letting, their Lordships of the Hon'ble Supreme Court have held that it would not amount to sub letting and "3.
r to the common partner would be considered to be in possession in all through in his individual capacity. Their Lordships have held as under:
It appears that two contentions were raised in the High Court both of which were rejected. The first was that the possession of the premises by the new firm proved sub-letting. The contention appears to have been that the old firm and the new firm being two different legal entities. The occupation of the shop by the new firm was occupation by the legal entity other than the original tenant and such occupation proved subletting. This contention is entirely without substance. A firm unless expressly provided for the purpose of any statute which is not the case here, is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants.
4. The other point was that since Meghraj entered into a new partnership with a stranger, there was sub-letting to the new partnership. It seems to us that the point sought ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 17 to be made was that when Meghraj was in possession as the partner of Meghraj Bansidhar, he was in possession of the shop in a capacity different from that in which he was in .
possession as a partner of Chunilal Gherulal. This is clearly fallacious. Meghraj was in possession all though in his individual capacity. It is impossible to treat him as possessing one legal personality as member of one firm and another such personality as member of another firm."
It is not one of those cases where one of the partners has continued in the partnership firm and has retained the control over the possession. The tenant has parted with the exclusive possession in favour of respondent No. 2 and there is no tangible evidence on record to establish that he was partner of respondent No. 2 partnership firm.
22. The learned Single Judge in Devki Nandan Vs. Om Prakash and another, All India Rent Control Journal (1972) 510 has held that if a tenant takes with him one or two more partners and carries on a joint business in the premises, which he has taken on rent, that would not afford a ground to the landlord for his eviction. It is only if it is established that he has nothing to do with the partnership business and has completely given over the possession of the premises to other partners, that sub letting can be inferred. The Single Judge has held as under:
"6. Clause 9 of the partnership deed says that the partnership books will be maintained at the principal office of the partnership and Gian Chand shall maintain the accounts, but every partner will have an access to it. The ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 18 finding given by the Appellate Authority is that although Om Prakash had shifted to Patiala, but he used to come from that place and help the other two partners in running the .
partnership business. If one of the partners leaves the place where the shop is situate, but comes and helps in the management of the business, could it be said that he was removed from the partnership and had nothing to do with it?
As I have said, the Rent Controller and the Appellate Authority have come to the conclusion that this partnership- deed was a genuine transaction and since Om Parkash was himself taking part in the partnership, it could not be said that he had sublet the premises to the other two partners, namely, Gian Chand and Krishan Kumar. We have on the record copies of the account-books of the joint business, which show how much capital was invested in the business by the various partner. Then there is also the balance-sheet, which proves that these three partners were carrying on a joint business in the two shops, one of which was given on rent to Om Parkash and the other to Gian Chand by the same landlord, namely, the petitioner. There are also other documents viz. RW. 6/A and RW. 6/B, the former being a licence issued under the sales Tax Act by the Punjab Government and latter a licence given by the Central Government under the provisions of the Central Sales Tax.
According to these two documents, it was proved that the firm was paying sales-tax to the State Government and the Central Government on the sale proceeds of the transactions, which were carried on in the abovesaid premises. This apart, there are two receipts of rent. One, Exhibit R.1, dated 11th November, 1965, was for Rs. 190/- and according to it, the petitioner received the rent of the shop, which was given on rent to Om Parkash. The other was RW. 6/X, and it was for ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 19 Rs. 380/- being the rent for two years for the other shop, which was given on rent to Gian Chand. These two receipts were entered in the Rokar Bahi of the joint firm. If there had .
been no joint business of the three persons named above, the receipts would not have been entered in the same Bahi. All these documents, therefore, conclusively show that there was a genuine partnership firm amongst Om Prakash, Gian Chand and Krishan Kumar. The mere fact that there is clause 10 in the partnership-deed, which said that out of the three partners. Gian Chand and Krishan Kumar were carrying on the partnership business in the name of the partnership firm, would not show that Om Prakash had nothing to do with the partnership. It is possible that since Om Prakash was permanently residing in Patiala and the business was being carried on in Samana, this clause had been added in the partnership-deed to facilitate the working of the day-to-day business by the two remaining partners. But on this clause alone, it could not be held that the entire partnership was a faked affair. It is undisputed that if a tenant takes with him one or two more partners and carries on a joint business in the premises, which he has taken on rent, that would not afford a ground to the landlord for his eviction. It is only if it is established that he has nothing to do with the partnership business and has completely given over the possession of the premises to other partners that subletting can be inferred. But, in the instant case, both the Rent Controller and the Appellate Authority have come to a correct decision that there was no subletting, in as much as there was a valid joint partnership in which Om Parkash was as much a partner as the other two and it was this partnership which was carrying on business in the shop in question."::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 20
23. The learned Single Judge of Punjab and Haryana High Court in Parkash Kaur Vs. M/s. Kundan Lal Madan Mohan Lal 1973 .
RCR 257 has held that tenant giving possession of premises to partner and entering into partnership by which a fixed monthly amount was to be given to tenant irrespective of loss or profit. It was not a valid partnership and amounts to sub-letting of premises.
24. The learned Single Judge of Kerala High Court in Sreepathi Poti Vs. Venkita Subramonia Iyer, All India Rent Control Journal (1976) 514 has held that the initial onus to prove subletting is on the landlord and once it is proved that there has been transfer of possession, the onus shifts upon the tenant in whose special knowledge the facts explaining the manner in which such possession has been transferred lie. The Learned Single Judge has held as under:
"3. In CRP 2148/1975 the revision petitioner tenant challenges the order of eviction on the ground of sub-letting on two grounds. It is contended that though it has been concurrently found by the authorities below that one Krishan Nair has been inducted into the ground floor of the building, a sub-lease within the meaning of Section 11(4) of the Act has not been positively proved by the landlord. The revisional authority found that portions of this building were occupied by different persons on short intervals, but that authority did not pay much importance to that aspect because it thought that the occupation of the ground-floor by Krishan Nair alone is sufficient to constitute sub-letting for attracting Section 11(4)(i). That Krishnan Nair is in exclusive ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 21 occupation of the ground floor of the building inquestion is not disputed before me. According to the revision petitioner apart from that fact the landlord has not pleaded or adduced .
evidence regarding the terms and conditions under which Krishnan Nair was inducted into the property by the tenant. I doubt whether the onus cast on the landlord under Section 11(4)(i) of the Act goes to that extent. I may in this connection advert to one passage in the decision reported in Ulliveetil Abu v. Beebi,1962 2 CPILR(Ker) 575.
"While the initial onus of proving subletting or a transfer of the leasehold is on the landlord, once the Court is satisfied that there has been a transfer of possession the onus may shift and the tenant, within whose special knowledge the facts explaining the manner in which such possession has been transferred lie, may have to bear the burden thereafter."
There has undoubtedly been a transfer of possession of a portion of the premises by the tenant, and the terms and conditions under which such a transfer was made will be known only to the transferor and the transferee and not to the landlord. It is for the tenant in such cases to establish the jural relationship as obtained between him and his transferee. In this case this particular aspect is of some importance because the tenant put forward a definite case regarding the occupation of the premises by Krishnan Nair. According to the tenant the hotel business conducted there by Krishnan Nair was carried on in partnership with the revision petitioner tenant. That part of the tenant's case has not been proved by acceptable evidence, and the authorities below have concurrently found that the alleged partnership has not been proved. I do not find any reason to interfere with that finding."
::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 2225. Their Lordships of the Hon'ble Supreme Court in Parvinder Singh Vs. Renu Gautam and others (2004) 4 Supreme Court Cases .
794 have held that the partnership entered into by the tenant when is a device to defeat the provisions of rent control laws permitting eviction on the ground of sub-letting , the test is whether tenant has parted with user and control of tenancy premises and deed of partnership has been drawn up as an indirect method of collecting consideration for creating of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law. Their Lordships have further held that to defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant in outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Their Lordships have held as under:
"8. The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. Once such ground , most common in all the legislations, is subletting or parting with possession of the tenancy premises by the tenant. Rent Control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 23 bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into .
existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnershjip. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.
9. A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against subletting or parting with possession. This is a general statement of law which ought to be read in the light of the ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 24 lease agreement and the law governing the tenancy. There are cases where in the tenant sublets the premises or parts with possession in defiance of the terms of lease or the rent .
control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the docment is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction, Tyagaraja v. Vedathanni, AIR 1936 PC 70 is an authority for the proposition that oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different. A lease of immovable property is transfer of a right to enjoy such property. Parting with possession or control over the tenancy premises by tenant in favour of a third person would amount to the tenant having 'transferred his right under the lease' within the meaning of Section 14 (2)(ii)(a) of the Act."::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 25
26. Their Lordships of the Hon'ble Supreme Court in Joginder Singh Sodhi Vs. Amar Kaur (2005) 1 Supreme Court Cases 31, have held that where the landlady established the parting of possession, .
onus was on the tenant to explain as to how the appellant, son of the tenant who was not staying with his father and was doing his independent business, came to occupy the shop rented to the tenant.
Their Lordships have held as under:
"13. Regarding sub-letting, in our opinion, the law is well settled. It is observed in the leading case of Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, [1968] 2 SCR 548: AIR (1968) SC 933 that in a suit by the landlord for eviction of tenant on the ground of sub-letting, the landlord has to prove by leading evidence that (i) a third party was found to be in exclusive possession of the rented property and (ii) parting of possession thereof was for monetary consideration.
14. The above principle was reiterated by this Court from time to time. In Shama Prashant Raje v. Ganpatrao and Ors., [2000] 7 SCC 522, the Court stated that on sub-letting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and monetary consideration therefor have to be established.
16. The contention of the learned counsel for the appellant, however, is that even if it is assumed that one of the ingredients of sub-letting was established, the second ingredient, namely, parting of possession with 'monetary consideration' was not established. The counsel urged that there is no evidence on record that any amount was paid either in cash or in kind by respondent No.2 to respondent ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 26 No. 1. In absence of such evidence sub- tenancy cannot be said to be established and the landlady was not entitled to get an order of eviction against the tenant.19.
.
Again in Kala and Anr. v. Madho Parshad Vaidya, [1998] 6 SCC 573, this Court reiterated the same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
20. We are in agreement with the observations in the above cases. In our considered opinion, proof of monetary consideration by the sub-tenant to the tenant is not a sine qua non to establish sub-letting.
21. In the case on hand, a finding is recorded by the authorities under the Act that respondent No.2-appellant herein was found to be in exclusive possession of the property. He was staying separately and not with his father.
He was doing his independent business of photography. The explanation by the tenant-respondent No.l as to how the respondent No.2- appellant herein came to occupy the shop was that the lease was obtained by respondent No.l, (father) for respondent No,2 (son), which was not believed by the authorities. In view thereof, by drawing an inference that the respondent No.l had sub-let the suit property to respondent No.2, no illegality had been committed by the authorities."
27. Their Lordships of the Hon'ble Supreme Court in Amar Nath Agarwalla Vs. Dhillon Transport Agency (2007) 4 Supreme ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 27 Court Cases 306 have held that where one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of .
the original firm, the legal possession is retained by a partner who was one of the original tenants.
In the present case, the tenant has parted with his possession and has handed over the possession to respondent No. 2 to run their business and has started accepting `3000/- per month, though according to him as profit, but in fact it was the rent.
28. Their Lordships of the Hon'ble Supreme Court in Vaishakhi Ram and others Vs. Sanjeev Kumar Bhatiani (2008) 14 Supreme Court Cases 356 have held that in order to establish sub-
letting, the landlord has to establish: (i) that the tenant has sub-let or assigned or parted with the possession of the whole or any part of the premises; and (ii) that such sub-letting or assigning or parting with the possession has been done without obtaining the consent in writing of the landlord. The burden of proving sub-letting is on the landlord. But, once the landlord proves that the sub-tenant is in exclusive possession of the suit premises, the onus shifts to the tenant to prove that it was not a case of sub-letting. Their Lordships have held as under:
"15. Before deciding the question of waiver, we must look into the provision made in Section 14(1)(b) of the Act, which reads as under:-
"that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 28 the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord."
.
A plain reading of this provision would show that if a tenant has sublet or assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord, he would be liable to be evicted from the said premises. That is to say, the following ingredients must be satisfied before an order of eviction can be passed on the ground of subletting: -
(1) The tenant has sublet or assigned or parted with the possession of the whole or any part of the premises;
(2) Such subletting or assigning or parting with the possession has been done without obtaining the consent in writing of the landlord.
16. So far as these conditions are concerned, we find that in the facts of this case, the appellant no.1 has parted with the exclusive possession of a part of the suit shop in favour of the appellant Nos. 2 to 4 without obtaining the consent in writing, either of the erstwhile landlord or the purchaser respondent. Now the question is whether the respondent or the erstwhile owner of the suit shop had waived the right of evicting the tenant on the ground of subletting or not. As noted herein earlier, the appellant Nos.
2 to 4 were inducted in a part of the suit shop without obtaining the consent in writing, either of the original landlord of the suit shop or of the present respondent.
9. The three courts concurrently held on facts that the appellant No.1 had no exclusive possession in a part of the suit shop where the appellant Nos. 2 to 4 had been carrying on their separate independent business.
::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 2921. It is well settled that the burden of proving subletting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit .
premises, then the onus is shifted to the tenant to prove that it was not a case of subletting. Reliance can be placed on the decision of this Court in the case of Joginder Singh Sodhi vs. Amar Kaur [(2005) 1 SCC 31]. Therefore, we are in full agreement with the High Court as well as the courts below that since the appellant Nos. 2 to 4 had been in exclusive possession of the suit shop and the appellant No.1 could not prove that it was not a case of subletting, the suit shop had been sublet by the appellant no. 1 in favour of the appellant Nos. 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of subletting.
23. As noted herein earlier, an order of eviction can be passed under Section 14(1)(b) of the Act only if the ingredients enumerated herein earlier are satisfied. In order to prove subletting, it must be shown that the appellant Nos. 2 to 4 were inducted without the consent in writing of the landlord. In this case, admittedly, no consent in writing, either of the erstwhile owner of the suit shop or of the respondent, who was the subsequent purchaser of the same, was taken in writing.
26. Mr. Aggarwal, the learned counsel appearing on behalf of the appellants had strongly relied on a decision of this Court in the case of United Bank of India vs. Cooks and Kelvey Properties (P) Limited [(1994) 5 SCC 9] and submitted that since the appellant No.1 was in exclusive possession and legal control of the suit shop, the case of subletting could not be proved. In our view, that decision of this Court has no manner of application in the facts and circumstances of the ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 30 present case. In that case, although the tenant appellant bank had inducted the trade union in the tenanted premises for carrying on the trade union activities, the bank had not .
received any monetary consideration from the trade union which was permitted to use and enjoy the same for its trade union activities. The bank had retained its power to call upon the trade union to vacate the premises at any time and the Union had also given an undertaking to vacate the same when required. In that decision, the bank was maintaining the premises at its own expense and also paying the electricity charges consumed by the trade union for using the demised premises. Basing on the aforesaid facts, it was held in that case that the bank had retained its control over the trade union whose membership was only confined to the employees of the bank and, therefore, the court held that the inference that could only be drawn was that the appellant had retained the legal control and possession of the suit premises in that case. As noted herein earlier, this is not the situation in the present case. The findings of the three courts were that the appellant no.1 had no legal control over the suit shop and also that the appellant nos.2 to 4 were in exclusive possession of the suit shop or at least, in a portion of the same and were carrying on a different independent business in the suit shop. Such being the position and in view of the fact that the appellant nos.2 to 4 were conducting their independent business in the suit shop and had exclusive possession of the same and that the appellant No. 1 had no legal control or possession over the suit shop, the aforesaid decision of this Court, as relied on by Mr. Aggarwal, could not be taken to be of any help to the appellants. Accordingly, these submissions of the learned ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 31 counsel for the appellants have no legs to stand upon and thus rejected.
27. For the reasons aforesaid, there is no merit in .
this appeal and the appeal is, therefore, dismissed.
However, considering the facts and circumstances of the case, the appellants are given time to vacate the suit shop by 30th of June, 2008 subject to filing of usual undertaking before this Court within a period of four weeks from this date. There will be no order as to costs".
The tenant has parted with his possession without the consent of landlord in writing. He has started accepting money towards rent from M/s. Geeta Enterprises.
29. Their Lordships of the Hon'ble Supreme Court in Shashi Jain Vs. Tarsem Lal and another (2009) 6 Supreme Court Cases 40 have held that payment of rent by a sub-tenant to the tenant is always a secret arrangement between them. Their Lordships have held as under:
"34. It is proved on record that Tarsem Lal had parted with the possession of two rooms and verandah of the demised premises to Rakesh Kumar - respondent for a consideration of Rs. 150/- per month as rent. The landlady has proved on record pro forma D-1 prescribed for the employees of Punjab Agricultural University, Ludhiana, for drawal of the house rent allowance (Ex. AW/1a) which would prove that Rakesh Kumar - respondent has been drawing a sum of Rs. 150/- per month as rent for unfurnished accommodation of the demised premises.::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 32
37. The Rent Controller and the Appellate Authority as well as the High Court have gravely erred in not appreciating and considering the fact that payment of rent .
by a sub-tenant to the tenant is always a secret arrangement between them and as stated above, Rakesh Kumar - respondent has been receiving a sum of Rs. 150/- per month as rent from his employer of the demised premises."
30. Their Lordships of the Hon'ble Supreme Court in Celina Coelho Pereira and others Vs. Ulhas Mahabaleshwar Kholkar and others (2010) 1 Supreme Court Cases 217, their Lordships of the Hon'ble Supreme Court have summarized the legal position regarding sub-letting/Sub-tenant/Sub-tenancy as under:
"25. The legal position that emerges from the aforesaid decisions can be summarised thus :
(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 33
(iii) The existence of deed of partnership
between tenant and alleged sub-tenant or ostensible
transaction in any other form would not preclude the .
landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
31. Their Lordships of the Hon'ble Supreme Court in Vinaykishore Punamchand Mundhanda and another Vs. Shri Bhumi Kalpatru and others (2010) 9 Supreme Court Cases 129 have held that delivery of exclusive possession by the tenant to a stranger to the ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 34 landlord and without the prior permission of the landlord is one dominant factor based on which the Court could infer as to whether the premises were sub-let. Their Lordships have further held that it is .
actual physical and exclusive possession of the newly inducted person instead of the tenant, which is material. It would be impossible for the landlord to prove, by direct evidence, arrangement between the tenant and sub-tenant and to establish as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. Their Lordships have further held that "Bhumi Kalpataru" had become in a clandestine and deceptive manner "Shri Bhumi Kalpatru"
and none of the previous partners of original tenant firm continued to be partners of newly constituted firm which was altogether a different firm. Their Lordships have held as under:
"11. It may be of some importance to note that the original tenant did not join any issue with the landlords though he was impleaded as a party respondent to the proceedings. It is an admitted fact that none of the partners of 'Bhumi Kalpataru' including respondent No.4 who constituted the firm 'Bhumi Kalpataru' are the partners in the firm 'Shri Bhumi Kalpataru'. It is not a case of reconstitution of the firm where the original tenant continued to be a partner of such newly reconstituted firm.
It is clearly evident from the record and findings recorded by the authorities that 'Shri Bhumi Kalpataru' consists of altogether different individuals and the Managing Partner thereof being Jagdish Champalal Mundhada. It is also an admitted fact that there was no further agreement as such between the appellants and the respondents ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 35 recognizing 'Shri Bhumi Kalpataru' and its partners as the tenants. In such view of the matter, the authorities in clear and categorical terms found that the respondents have been .
inducted into possession of the premises by the original tenant without the required written permission of the landlords. It is under those circumstances that the reviewing authority came to the correct conclusion that the original tenant had no right to transfer and part away with the possession of the premises to the respondents without the required written permission from the landlords. None of the respondents were the partners in the previous firm that was constituted by Madankumar Govardhandas Pasari known as 'Bhumi Kalpataru'.
12. r It was absolutely an internal arrangement between an original tenant and newly inducted one about which the landlord was never put on notice. The mere acceptance of the rents from the newly constituted firm 'Shri Bhumi Kalpataru' on the facts and circumstances in the present case by itself cannot lead to any inference that the landlords accepted the rents knowing fully well as if they were accepting the rents from the sub-tenants. The "landlord and tenant" relationship in the circumstances of this case cannot be inferred as the word 'Shri' was prefixed to the original tenanted firm 'Bhumi Kalpataru'. The said firm 'Bhumi Kalpataru', in a clandestine manner became 'Shri Bhumi Kalpataru' by adding 'Shri' in an innocuous manner to 'Bhumi Kalpataru'. Once it is clearly established that none of the previous partners of the 'Bhumi Kalpataru' continued to be the partners of the newly constituted firm, it becomes very clear that 'Shri Bhumi Kalpataru' is altogether a different firm consisting of new partners who were inducted into possession by the previous tenant.::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 36
13. That, clause 2(5) of the Rent Control Order defines the 'tenant' as under:
"'Tenant' means any person by whom or on .
whose account rent is payable for a premises and includes a sub-tenant and a person continuing in possession after the term of his tenancy has expired".
In our considered opinion, the expression 'any person' means any one lawfully inducted as a tenant into the premises and by whom or on whose account rent is payable for the premises. It may include a sub-tenant inducted as such into possession with the previous knowledge, consent and written permission of the landlord.
18. It is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property. It would be impossible for the landlord to prove, by direct evidence, the arrangement between the tenant and sub- tenant.
19. It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. Such arrangement which may have been made secretly, ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 37 cannot be proved by affirmative evidence and in such circumstances, the Court is required to draw its own inference upon the facts of the case proved at the enquiry.
.
Delivery of exclusive possession by the tenant to a stranger to the landlord and without the prior permission of the landlord is one dominant factor based on which the Court could infer as to whether the premises was sub-let.
20. What remains for our consideration is as to whether the High Court properly understood the ratio of the decision in Bhairulal (supra). In the said case, the High Court clearly held that on the basis of the evidence of the landlord himself, it was not possible to say that the tenant has parted with legal possession of the portion of the premises in question to the alleged sub-tenant. On the other hand, it was apparent that though the alleged sub- tenant has been working on the sewing machine located in the premises where the tenant himself has been carrying on his business in clothes in the disputed premises. The High Court in the said decision clearly held that mere use by other person is not parting with possession so long as tenant retains the legal possession himself. We fail to appreciate as to how the ratio of the said judgment is applicable to the fact situation on hand.
21. The case on hand clearly demonstrates that it is not a case of any reconstitution of the existing firm by the tenant whereby the original tenant continued to be a dominant partner of such newly constituted firm and retained legal possession of the premises. That would be a different situation where the original tenant retains the legal possession of the premises as the tenant without parting away the possession of the premises or any part thereof to a stranger. On the other hand, this is a clear case where the ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 38 original tenant parted away with legal possession by inducting altogether a new firm into possession of which the original tenant is not even a partner and such parting away .
with the possession was without the knowledge and consent and much less the written permission from the landlords. Thus the ratio of Bhairulal has no application to the case on hand.
22. Before parting with the case we are constrained to observe that the High Court practically substituted the findings for that of the authorities by reappreciating the evidence available on record, which is impermissible in a proceeding under Article 226/227 of the Constitution of India.
23.r For the aforesaid reasons, we find it difficult to sustain the impugned judgment of the High Court. The same is accordingly set aside.
24. The appeal is allowed with costs."
32. Their Lordships of the Hon'ble Supreme Court in S.F. Engineer Vs. Mental Box India Limited and another (2014) 6 Supreme Court Cases 780 have reiterated the principles of sub-letting as a ground of eviction under the Rent Control Laws as under:
"26. We have referred to the aforesaid decisions only to reaffirm the proposition that the Court under certain circumstances can draw its own inference on the basis of materials brought at the trial to arrive at the conclusion that there has been parting with the legal possession and acceptance of monetary consideration either in cash or in kind or having some kind of arrangement. The aforesaid authorities make it further spectacularly clear that the ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP 39 transaction of subletting can be proved by legitimate inference though the burden is on the person seeking eviction. The materials brought out in evidence can be .
gathered together for arriving at the conclusion that a plea of subletting is established. The constructive possession of the tenant by retention of control like in Cooks and Kelvey Properties (P) Limited would not make it parting with possession as it has to be parting with legal possession. Sometimes emphasis has been laid on the fact that the sub- tenancy is created in a clandestine manner and there may not be direct proof on the part of a landlord to prove it but definitely it can bring materials on record from which such inference can be drawn."
33. Accordingly, both the Civil Revision Petitions bearing Civil Revision No. 158/2004 and Civil Revision No. 175/2004 are dismissed.
The tenants are ordered to vacate the premises within a period of three months from today. The tenants are liable to pay the arrears of rent and up to date interest till the date of eviction. The miscellaneous application(s), if any, also stand(s), disposed of. No costs.
(Rajiv Sharma) Judge July 08, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:32:18 :::HCHP