Punjab-Haryana High Court
Om Parkash Goyal (Through Lrs) Son Of Sh. ... vs Ram Piari Waryam Singh (Through Lrs) And ... on 17 January, 2013
Author: K. Kannan
Bench: K. Kannan
C.R. No.384 of 1996 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.384 of 1996
Date of Decision.17.01.2013
Om Parkash Goyal (through LRs) son of Sh. Badlu Ram .....Petitioner
Versus
Ram Piari Waryam Singh (through LRs) and others .......Respondents
Present: Mr. Ashok Aggarwal, Senior Advocate with
Mr. Y.K. Sharma, Advocate and
Mr. Mukul Aggarwal, Advocate
for the petitioner.
Mr. M.L. Sarin, Senior Advocate with
Ms. Hemani Sarin, Advocate
for the respondents.
Mr. Rajiv Kataria, Advocate.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes/No
2. To be referred to the Reporters or not ? Yes/No
3. Whether the judgment should be reported in the Digest? Yes/No
-.-
K. KANNAN J.(ORAL)
1. The civil revision is against concurrent orders of eviction rendered by the Rent Controller and the Appellate Authority against the tenant on a ground urged by the landlord, namely, of subletting of the premises by the 1st respondent-tenant without the written consent of the landlord. The contention of the landlord in the petition was that the barsati portion of the property in SCF No.24, Sector 10-D, Chandigarh had been sublet to Sh. Ram Dev on a rent of ` 90/- per month inclusive of the water and electricity charges and that the property had been in exclusive possession of the sub-tenant. This contention was resisted by the tenant contending that there had been C.R. No.384 of 1996 -2- no form of subletting at all and that Ram Dev was the husband of a maid servant working in his house and during short periods when he was ill, he used to come and occupy the premises but would vacate the same. The respondent explained that there had been no exclusive possession to render him liable for eviction.
2. At the time of trial certain more facts were brought out to explain the nature of possession of Ram Dev. The petitioner relied on a suit filed by Ram Dev against the tenant before the Civil Court at Chandigarh contending that he was a tenant in respect of premises paying fixed rent of ` 70/- inclusive of water and electricity charges and still later, it was raised to ` 90/- and since the year 1974 he was in occupation of the premises at the first floor. The suit came to be withdrawn later but the landlord was relying on this to show that a portion of the property had been rented out without his concurrence that made him liable for ejectment. The tenant sought to contend in the course of trial that the suit itself had been engineered by the landlord to be instituted against him and it was collusive attempt on the part of the landlady through Ram Dev to bring evidence in her support. The so-called sub-tenant was also examined by the tenant himself to explain that he had not paid rent at all and that he was not a sub-tenant under the tenant. The Rent Controller as well as the Appellate Authority found that Ram Dev had been in exclusive possession of a portion of the property and that the subletting had been proved. The Courts below made specific reference to the averment in the plaint that set out the detail relating to the tenancy and found that the landlord had established his case to order eviction.
C.R. No.384 of 1996 -3-
3. In revision before this Court learned Senior Counsel for the tenant argues that the case has to be understood from the evidence that had been brought before the Court and the reasoning adopted, that would lead only to one conclusion that there had been no case of sub- tenancy. As a point at the fore-front, the learned Senior Counsel would argue that the Appellate Authority had reasoned that the barsati portion had been in possession of Ram Dev for a brief period only for the services rendered by his wife as a maid servant and his own services as a Driver of a three wheeler owned by the tenant. This, according to the learned Senior Counsel could not be taken as an instance of subletting. The reference to enjoyment of property for services rendered as not constituting a lease that could be taken as a transaction that could fall foul of a rent control legislation was brought through a decision of the Supreme Court in Dipak Banerjee Vs. Lilabati Chakraborty (1987) 4 SCC 161. It made a distinction between the lease under the Transfer of Property Act and the tenancy arrangement under the rent control legislation. The Supreme Court was dealing specifically with reference to West Bengal Premises Tenancy Act, 1956 in the context of attempt of proof of subletting by saying that yet another person was in occupation of the demises premises, and such other person who was running a tailoring shop contending that he was not a sub-tenant. The Supreme Court was explaining that the user by another person of a property which is demised to tenant as a measure of service to the tenant cannot constitute sub-tenancy. Learned Senior Counsel, Sh. Aggarwal would, therefore, argue that the reasoning adopted by the Court that if the consideration was not at all times monetary then it could not amount to C.R. No.384 of 1996 -4- subletting under the provisions of the Act to attract the consequence of eviction. Learned Senior Counsel referred to me the provisions of the West Bengal Premises Tenancy Act, 1956 and the East Punjab Urban Rent Restriction Act, 1949 with reference to the definitions of the landlord, tenant and the expressions rent and pointed out to the similarity of expressions in both the enactments and the applicability of the decisions to the facts brought out in this case. I am convinced that the expressions in so far as the rent Acts are concerned, are the same but as pointed out by the learned Senior Counsel appearing on behalf of the respondent, the plea of occupation of Ram Dev for services was not a plea by the landlord, but was a plea by the defendant to explain the possession of Ram Dev at the barsati portion. The case will, therefore, be required to be seen from the point of view of the pleadings and what is brought out in evidence through documents and oral evidence.
4. The petition definitely contains a reference to subletting of premises by the respondent-tenant for a rent of ` 90/- and that it was in exclusive possession. Learned Senior Counsel Sh. Ashok Aggarwal, would also contend that the petition does not reveal what the Act requires and that on that ground itself the petition was liable for rejection. The petition regarding subletting reads as follows:-
"That the respondent has sub-letted barsati portion of SCF No.24, Sector 10-D, Chandigarh to Sh. Ram Dev son of Sh. Bachai Ram and Shri Ram Dev son of Shri Bachai Ram is in exclusive possession of the same and he is paying rent to the respondent at the rate of Rs.90/- per month inclusive of water and electricity charges and is residing with his family on the 2nd floor called barsati portion of SCF No.24, Sector 10-D, Chandigarh. The respondent has subletted the premise to Shri Ram Dev without the written consent of the petitioners."C.R. No.384 of 1996 -5-
5. The Act that makes a provision for ejectment on the ground of subletting sets out thus:-
"13(2)(ii) that the tenant has after the commencement of this Act without the written consent of the landlord-
(a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or
(b) xxxx xxxx xxxx"
6. The counsel would argue that the petition does not anywhere say that the subletting has been made after the commencement of the Act and therefore, it does not contain what the Act requires. I would find this argument to be outlandish to be rejected, for the case must be understood only from how the parties have understood the respective contentions. The Urban Rent Restriction Act was an enactment of the year 1949 extended to Chandigarh in the year 1971 and it is nobody's case that the Act itself was not applicable in view of the fact that the sub-tenancy has been created before the commencement of the Act. We are considering the situation of a tenancy and the sub-tenancy as having arisen subsequent to the Act and therefore, the absence of the expression that subletting had been after the commencement of the Act is hardly material in this case. But even as regards the proof of sub-tenancy in the manner contended by the landlord, the most potent evidence which was available for the landlord was that a suit had been filed by the sub-tenant before the Civil Court. In that suit Ram Dev has set out in the plaint as follows:-
"That the plaintiff is a tenant under the defendant in the entire portion (barsati) of SCF No.24, Sector 10-D, Chandigarh initially at a monthly rent of Rs.70/- inclusive of fixed Rs.15/- being the water and electricity charges and presently at Rs.90/- since 1974 and the defendant is in C.R. No.384 of 1996 -6- occupation of the entire ground floor of the demised premise."
7. Learned Senior Counsel appearing for the tenant would down-play this averment by stating that it may not be taken as an admission on the part of the tenant, for, the suit that was filed by the sub-tenant had been abandoned by him and it was withdrawn without a contest. There was no occasion for the tenant to even contend that such an averment in the plaint was erroneous. I am prepared to accept the contention wholesale that this statement cannot be binding on him. It must, however, be noticed that Ram Dev was examined as a witness on the side of the tenant and there was probably a sterling occasion for the sub-tenant to explain his own plaint and also state that the averment relating to the payment of rent was deliberately made falsely in order to secure an order of injunction. He would say in one place that the plaint contained his signature but he did not know what the plaint contained. When his attention was specifically drawn to the averment referring payment of rent at ` 70/- and later ` 90/- in the cross-examination, this was again an occasion where he could have explained it but he went into a denial mode by saying that he did not know if he had mentioned in the plaint that he was paying ` 70/- first as rent and later he was paying ` 90/-. The tenant himself had made an attempt to contend that this averment in the plaint could be true. His attempt was, therefore, to say that the landlord had engineered the plaint and brought about averments to suit her own purpose. If the sub- tenant had also agreed to such a contention then it could have merited acceptance that the averment in the plaint could not be true. The sub- C.R. No.384 of 1996 -7- tenant, however, admitted in his evidence that he did not know the landlady at all. The plaint filed by the sub-tenant may not be binding on the tenant but it surely brings out a key element of proof of what is necessary for the landlady to establish. It is a cliched expression that is employed by Courts while adverting to cases of sub-tenancy that an arrangement of sub-tenancy is always a secret affair and it shall not be possible to bring direct evidence. If the landlady was, therefore, referring to an averment in plaint by a person, who was characterized as a sub-tenant and was referring to a document where he made a reference about his enjoyment of the property as a sub-tenant on payment of ` 90/-, the consequence was inevitable that such a statement is a potent weapon for the landlord. Any statement in Court by a person could be explained and if it may not constitute an admission, a statement of even a third party could be explained. That explanation I have already pointed out was significantly absent. The best occasion to give that explanation was also lost. The two Courts below have also observed that the plea of collusion made by the tenant of the landlady with Ram Dev was not established and could not have been also true. If suit instituted by the sub-tenant was not brought at the instance of the landlord and the sub-tenant himself had no explanation to give as to how he has stated that he was paying ` 70/- or ` 90/- then his character of possession as sub-tenant becomes relevant for consideration along with other evidence. It may not at all times be conclusive.
8. In this case, some other evidence was also available by the fact that there is an admission that the sub-tenant was in exclusive C.R. No.384 of 1996 -8- possession of the barsati portion. Om Parkash had to say about the nature of possession of the sub-tenant that "I have permitted him (Ram Dev) to live in the exclusive room of the barsati portion for a few months but I never part with possession of the demised premise to Ram Dev." Learned Senior Counsel appearing on behalf of the tenant would contend that the most important criterion for establishing a case of sub- tenancy or a transfer of interest is to prove exclusivity of the possession by such sub-tenant and it was contended that such exclusive possession was not available by pointing out to these circumstances: (i) the access to the barsati portion was only through stair case that was a part of the demised premise; (ii) the barsati portion could have been reached only through the stair case in the possession of the tenant; (iii) the tenant was never prevented from going to the barsati portion at any time and
(iv) the barsati portion had not been shown to be under the lock and key of the sub-tenant. In my view, none of these things can be said to be material at all times to prove exclusive possession. The understanding of what is exclusive possession could also be seen by an explanation on a logical query of what would not be exclusive possession. If there was a first floor access through a stair case and that the stair case was a part of the tenanted premise, it cannot make impossible the exclusivity of possession for the first floor premises. If such an argument must be taken that a tenant, who takes on possession of property with one stair case even if he allows one floor of the premises to be sublet as a matter of fact and the access was only through a particular stair case which was in the portion of the tenant, he could easily get over by saying that there was no independent stair case apart from the property in his C.R. No.384 of 1996 -9- possession and therefore, exclusivity of possession was not established. It is wholly illogical to make such an argument. The reference to exclusive possession has been brought out in the context of explaining the possession of yet another person along with tenant. The law relating to sub-tenancy as requiring exclusive possession was seen to distinguish a situation of joint possession of another person along with tenant in an arrangement of partnership and such like jural relationships. Here although yet another person could be shown to be associated with the tenant, such joint association by itself ought not to be taken as constituting a transfer of interest or creating a sub-tenancy. Another instance could be cases of a licence to occupy. Many illustrations through judgments have come through tenancies to jewelers, who have allowed for other small time artisans to do their own independent work within the same demise premise such as polishing wares. We have also come through judgments in relation to tenancies to persons where tailoring work is done where other menial servants such as stitchers and persons, who iron the stitched clothes for remuneration on a licence given by the tenant as not resulting in sub-tenancy. Here the fact that other persons are associated with tenants and who were allowed to be in the same premises were always explained as not resulting in a transaction of sub-lease. A sub-lease invariably constitutes a transfer of interest and to that extent an exclusivity of possession to a person to whom it is created. If a demised premise was comprised of various portions such as in this case that it obtains as a ground floor premise with a barsati portion and if another person is allowed to occupy a barsati portion exclusively, it is another way of C.R. No.384 of 1996 -10- saying that the landlady was herself not occupying the premises and allowed another person to use it for his exclusive need. The exclusive need has been given by the tenant himself in his evidence but he would explain it by saying that he had not parted with possession. This I would only see to be a clever evidence shorn of any meaning. I would take this evidence on the whole to constitute an exclusive possession that there was a sub-tenancy which was covert inasmuch as no document was brought about to make the sub-tenancy.
9. While finding the sub-tenancy as established, the Appellate Court was stating that the contention in defence that Ram Dev had been allowed to occupy the premises for the services rendered by him and his wife constituted a sub-tenancy. This could be wholly discarded, for the order of ejectment was not rested on that reasoning only. It was stating the worst position for the landlord and best situation for the tenant and even then the Court found that eviction order ought to have followed. I am prepared to give the benefit to the tenant in the manner contended by the learned Senior Counsel appearing for the tenant that servant's occupation for services rendered will not constitute a sub-tenant in rent control legislation in the manner spoken to by the judgment of the Supreme Court in Dipak Banerjee's case (supra). This judgment of the Supreme Court itself has been explained subsequently in yet another case in Rajbir Kaur and another Vs. M/s S. Chokosiri and Co. AIR 1988 SC 1845 that had gone to the Supreme Court from this Court where the tenant had allowed for occupation within his own demised premise two persons, one having a tailoring shop and another having an ice-cream parlour. Documents had been executed in their favour as C.R. No.384 of 1996 -11- licence deeds. The alleged licenses were again explained as for services rendered to the tenant. The reliance had been on the judgment of the Supreme Court in Banerjee's case (supra). A particular relevance for us is the following observation in para 23 of the judgment in Rajbir Kaur's case.
"The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive possession was prompted by monetary consideration could be drawn or not. The High Court, did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. If exclusive possession is established and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable 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 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 according 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- cream vendor of a part 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."
10. If there was an exclusive possession, the tenant may always C.R. No.384 of 1996 -12- explain that it was only a licence and not lease and that was where the Supreme Court held that it is essentially one of proof of facts and circumstances, which bring out such a transaction of either a lease or licence. In this case even apart from the statement of Ram Dev in his own plaint that went unexplained in the course of trial although Ram Dev was cited as a witness by the tenant, there was also an admission by the tenant himself that he had allowed for the exclusive possession to the tenant in his barsati portion. The law does not require subletting to be created in respect of whole of the property that was rented out. The expression used in Section 13 is subletting of entire building or any part thereof. A barsati portion was such other portion of the demised premises.
11. The orders of eviction passed in favour of the landlady are, therefore, perfectly justified and they call for no interference before this Court in revision. The concurrent orders are maintained and the revision petition is dismissed with costs of ` 10,000/-. Time for eviction two months.
(K. KANNAN) JUDGE January 17, 2013 Pankaj*