Delhi High Court
Banarsi Dass vs Shakuntala on 12 September, 1988
Equivalent citations: AIR1989DELHI184, 1989RLR83, AIR 1989 DELHI 184, 1989 RAJLR 83 (1988) 1 DL 431, (1988) 1 DL 431
JUDGMENT S.S. Chadha, J.
(1) Counsel for the parties have addressed arguments only on issue Nos. 3 and 4. Issue No. 3 arose out of the preliminary objections raised by the deft. that the contract of sub-letting was void being against the provisions of the Act. The stand of the plaintiff in the replication is that the sub-letting in favor of the defendant took place with the consent of the landlord, but even assuming it to be without such consent, the agreement with the deft. is not void ab initio and is enforceable. The onus of the issue is on the defendant. It embraces a factual as well as a legal proposition. Under S; 16 (2) of the Act, no premises which have been sub-let cither in whole or in part on or after the 9.6.1952, without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sub-let. The owner Shri S.C. Kumar has not been produced by the deft. though onus of the issue lay on her. The pff. entered the witness box. In the cross-examination, he deposed that he was allowed to sub-let the building in the rent note and that the rent note is not in his possession and hence he could not produce the same.
(2) The deft. was relying on the fact that the premises had been sub-let to her after 9.6.1952 without obtaining the consent in writing of the landlord. The pff. had pleaded that the sub-letting in favor of the deft. took place with the consent of the landlord. The deft. wanted the Court to believe the non-existence of the written consent of the landlord to the creation of the sub-tenanry. It was her duty to have led evidence either by summoning the rent note from the owner or by producing him in the witness box to prove the non-existence of a fact. In "M. Krishnaswami Naidu v. Secy. of State A.I.R. 1943 Madras 15 it was held :- "...IFa party wishes the Court to believe in the non-existence of certain facts and the existence of the rights asserted by him depends on the non-existence of such facts, it is as much his duty to establish those negative facts as it would be of proving positive facts, if his rights were to depend on their existence. The distinctions between the denial of an affirmative allegation and the assertion of a negative fact and between the proof of the existence or non- existence of a fact and disproof of its existence or non-existence are obvious and should not be lost sight of......"
(3) The deft. has failed, to discharge the initial burden which lies on him under issue No. 3. There was no reliable evidence, however, slight to satisfy the Court that the burden had been discharged. She failed to establish that the premises had been sub-let to her without obtaining the consent in writing of the landlord.
(4) It is the admitted case of the parties that the premises were sub-let in 1962. There Was some dispute about the initial agreed rate of rent between the parties. The deft admitted in her plaint dt. 19.10.64 in suit No. 318/64 in the Court of Shri V.P. Bhatnagar, Sub-Judge, Delhi that the agreed rate of rent of premises is Rs. 600.00 p.m. She admitted this rate of rent in reply dt. 1.12.1972 (Ex-P-3) to the demand notice. The finding on issue No. 5 .is also that the agreed rate of rent is Rs. 600.00 p.m. It is her case that the pff. is merely the tenant of the original owner Shri S.C. Kumar and the pff. has to pay the rent of the said premises only at the rate of Rs. 35.00 to Shri S.C. Kumar. There is a vast difference in the two rates of rent, yet Shri S.C. Kumar did not take any steps for the alleged unlawful sub-letting. In all probability, there would be written consent of the landlord for creation of the sub-tenancy. This inference is irresistible from the inaction of the owner from 1964 onwards.
(5) Assuming that the sub-letting was without the consent in writing of the landlord, can the contract of sub-tenancy be considered as void ab initio ? Section 23 of the Indian Contract Act, 1872 provides that the consideration or object of an agreement is lawful, unless it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law or is fraudulent or involves or implies injury to the persons or property of another or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void. The submission of Mr. G.L. Rawal, counsel for the deft. is that u/s 16(3) of the Act, no tenant can, without previous consent in writing of the landlord sub-let the whole or any part of the premises held by him as a tenant or transfer or assign his right in the tenancy or any part thereof. He contends that the right of creation of subletting without the written consent of the landlord has been taken away and the contract is forbidden by law. He urges that it is not permissible to a tenant to rely on a contract of sub-tenancy the making of which the law prohibits in Section 16(3) of the Act. Reliance is placed on Lila Dhar v. Chiman Ram A.I.R. 1955 Vin, P, 31, Cooper v. Shivaji. A.I.R. 1949 Bom. 131, Trikkam Das v. Bombay Corp. and Woman Kini v. Radial .
(6) SEC. 123 of the Contract Act, 1872 lays down as to what considerations and objects are lawful and what are not. The Legislature did not lay down u/s 23 the conditions or qualifications as to what is forbidden by law or what would defeat the provisions of any law. One has to go to law itself which is the subject matter of the interpretation to see if the act complained of is prohibited by law or it would defeat the provisions of any law so as to pronounce it as void. The question whether a particular transaction is forbidden by an Act or tends to defeat the provisions of law is always one of the construction of the statutory provisions. The Act has been enacted to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Govt. in certain areas in the Union Territory of Delhi, as the preamble says. The control of eviction of tenants is provided in S. 14. It provides that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favor of the landlord against a tenant. The rent control legislation is inroads in the rights of the landlords to the enjoyment of the properties. It gives an absolute protection to the tenants from eviction in the operative part of the provisions of S. 14(1). Under the proviso, the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the grounds specified therein. The protection is no longer available to a tenant if one of the grounds specified is made out including "that the tenant has, on or after the 9.6.1952, sub-let, 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". Thus S. 14(1)(b) only provides for the consequences of unlawful sub-letting. It does not prohibit the creation of the subtenancies.
(7) The provisions of Ss. 16 to 18 regulate the creation of sub-tenancies and the consequential effect of lawful or unlawful sub-letting. These provisions do not forbid the creation of sub-tenancies. Section 108 of the Transfer of Property Act, 1882 regulates the rights and liabilities of Lesser and lessee. Under Section 108(J) of the Tpa the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease. This ordinary right of a tenant is taken away by putting restrictions on sub-letting as provided in S. 16 of the Act. Section 16(1) by a deeming fiction makes the sub-letting lawful if they were created at any time before 9.6. 1952 even without obtaining the consent in writing of the landlord. Section 16(2) provides that no premises which have been sub-let either in whole or in part on or after the 9.6.52 without obtaining the consent in writing of the landlord shall be deemed to have been lawfully sub-let. This provision is a necessary corollary to S. 16(1). S. 16(3)(a) is : "AFTER commencement of Act, no tenant shall, without the previous consent in writing of the landlord...... (a) sub-let the whole or any part of the premises held by him as a tenant; or....:."
Under S. 108(j) T.P.A,. there is a statutory right of a tenant to transfer absolutely or by way of a mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. This right is being regulated by providing that it shall not be without the previous consent in writing of the landlord. Section 16(3) does not imply a language containing a prohibition against subletting.
(8) Section 48 of the Act provides for penalties. Under S. 48(2) if any tenant sublets, assigns or otherwise parts with possession the whole or any part of the premises in contravention of the provisions of S. 14(1)(b), one is punishable with fine which may extend to Rs. 1,000.00. Section 48 does not provide for violation of S. 16(3) as an offence. It does not create any penal provision as no consequences of penalty are provided. One of the rules for construction is that an agreement would be forbidden by law, if the Legislature penalises it. Where a statute provides no penalty, then an agreement in breach of the conditions imposed does not fall u/s 23 Contract Act.
(9) In the absence of any statutory bar positively prohibiting the creation of subtenancies, the contract of sub-tenancy is valid and enforceable. We are fortified by several decisions. A question arose before a F.B. of Allahabad High Court in "Udho Dass v. Prem Parkash", relating to an allotment of the accomodation made in violation of S. 7(2) of the U.P. Rent 1947. Under S. 7(2), the vacancy of any accommodation is required to be reported to the D.M. and no relationship of landlord and tenant can otherwise be created. The tenancies can only be created after obtaining the orders of the D.M. The Allahabad High Court took the view that a lease made in violation of S. 7(2) would be valid between the parties and would create the relationship of landlord and tenant between them although it might not bind the authorities concerned. This view was approved by the Supreme Court in Murli Dhar v. State .
(10) In "Dwijendra Nath v. Rabindra Nath", , the question arose about the agreement between partners of a partnership firm and as to whether tenancies form part of partnership properties vis-a-vis provisions of S. 14 of the W.B. Premises Tenancy Act. The Calcutta High Court considered the scope and effect of the general law of landlord and tenant and the effect of the rent control legislations restricting assignments and subletting by the tenant. Reference was made to S. 108, T.P.A. by virtue of which in the absence of contract or local usage to the contrary, the lessee may transfer absolutely, sublease the whole or any part of his interest in the property. It was pointed out that when there was a covenant not to assign or sub-let, the assignment and subletting in breach of the same could be avoided because the said condition against assignment and sub-letting has been generally construed as making the lease voidable at the Lesser's option. The view taken was that the right to sub-let either under the common law or under the T.P.A. stiff remained lawful and was in no way affected or modified by the W.B. Tenancy Act. It was held :- "SUCH unauthorised transaction may allow the landlord to make it a ground for ejectment but that does not by itself make the transaction between the tenant and the unauthorised sub-lessee invalid or void. It is not void ab initio but it is merely voidable, that is, it can be avoided at the instance of the landlord. Until and unless it is avoided, it remains a valid transaction. In the present case it is nobody's case that on that ground the tenancy has been terminated by the landlord and, therefore, it cannot be said that such transfer made in favor of the partnership is void ab initio."
(11) A F.B. of A.P. High Court in "Shankerlal v. Jagdishwar Pershad", held that the agreement of lease entered into between the landlord and the tenant in contravention of S. 3 (3) of the Hyderabad Rent Act or S. 3 (3) of the A.P. Rent Act will not be illegal and void inter se, between the parties. Those provisions require the landlord to notify the vacancy and any formation of agreement of lease contravening those provisions would be illegal and void against the Controller but the said agreement of lease is not illegal and void inter se between the landlord and the tenant.
(12) The cases relied upon by Mr. Rawal proceed on the construction of the Bombay Rents Act. Section 15 of the said Act provides that "Notwithstanding anything in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein". It is because of the language employed that it was held that it is not permissible to any person to rely upon a contract the making of which the law prohibits. Section 15 implied a language containing a prohibition against sub-letting by use of the words "Notwithstanding anything contained in any law it shall not be lawful". Section 16(3) of the Act merely lays down that after the commencement of the Act, no tenant shall without the previous consent in writing of the landlord sub-let etc. There is no non obstante clause in S. 16(3) with the result that the provisions of S. 108, T.P.A. still operate in the field. There is, however, a curtailment of the right of sub-letting' by regulating that it can only be with the previous consent in writing of the landlord.
(13) Section 14 of the Act in the main part enacts the absolute protection to the tenant notwithstanding anything to the contrary contained in any other law or contract. No order or decree for recovery of possession of any premises can be made by any Court or Controller in favor of the landlord against the tenant. This absolute protection is taken away when one or more of the grounds specified under the proviso exist. Clause (b) only confers a power on the landlord to obtain an order for recovery of possession of the premises if the tenant has, on or after the 9.6.52 sub-let, 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. It does not declare the contract void.
(14) As the contract of sub-letting is not void, in our view, then the defendant cannot deny that the plaintiff had title to the property at the commencement of the tenancy. The plaintiff thus has a right to recover rent as well as the right to recover possession of the property. Section 116 of the Evidence Act is perfectly clear on the point, and rests on the principle well-established by many English cases, that a tenant who has been let to possession, cannot deny his landlord's title, however, defective it may be, so long as he has not openly restored possession by surrender to landlord (See Mt. Bilas Kunwar v. Desraj A.I.R. 1915 P.C. 96). In Sri Ram Pasricha v. Jagannath, it was held that a tenant in a suit for his eviction is estopped from questioning the title of the landlord u/s 116 Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under general law in a suit between landlord and tenant, the question of title to the leased property is irrelevant. The deft. in the case before us is, therefore, estopped from questioning the title of the plaintiff.
(15) Issue No. 4; That takes us to the consideration of issue No. 4 as to whether the defendant paid rent as alleged. By demand no ice Ex. P-l the deft. was called upon to pay the arrears of rent w.e.f. 1.1.1969. In the reply, the deft. took the stand that the rent of the demised premises had been paid up-to-date through B.R. Chawla of Basti Harphool Singh and the rent receipts issued, by the plaintiff in lieu of the rent paid to him are with B.R. Chawla. In the plaint, the pff. alleged that the defendant has falsely alleged that she had paid the above-mentioned rent up-to-date. In the written statement, the plea of the defendant is amplified and it is met by the pff. in the replication.
(16) The ordinary mode of the payment of rent is direct to the person or his authorised agent against receipt, whether by cash or by cheque, failing which by remittances by money order or even by deposit in the Court of Rent Controller u/s 27 of the Act. There is no satisfactory explanation on the record as to why the circuitous mode of payment of rent to B.R. Chawla was adopted. The only explanation of the defendant as D.W. 4 is that she filed a suit against the plaintiff for not issuing rent receipts, that pff. told her that Baldev Chawla, D.W. 3 was his relation and her husband was also working with D.W. 3, that D.W. 3 should decide dispute and that D.W.3 decided that he would collect rent from her, give the same to the pff. obtain receipt from the plaintiff and would retain the same with himself. The reason for this is stated that the plaintiff told her that since he himself was tenant in the suit premises, he cannot issue rent receipts. D.W. 3 Shri Baldev Raj Chawla states that there was some dispute of rent of a house at G.B. Road, Delhi and that the parties appointed him arbitrator orally to settle their difference, that he then gave his decision that Shankuntala would pay rent to him and he would hand over to the pff. after obtaining receipt, that the receipts were to remain with him and that the pff. was not issuing receipt as the house has been sub-let to her by the pff. The pff as Public Witness . 2 denied these statements. He says that he never appointed Baldev Raj Chawla as Umpire or arbitrator to settle disputes between the parties, that he never went to him and there was no talk between him and the deft. in Chawla's presence, that she would deposit rent with him and the pff. would recover from Chawla. Each one of these three persons do not slip in their stand in the cross- examination.
(17) Neither of the parties have, filed any documentary evidence as to the nature of the earlier suit, the orders passed in that suit or the alleged compromise. The pff. says that the defendant filed a suit against him in 1964, that it was dismissed in 1964 and that it was wrong that the same was compromised. The pff. further states that he filed a suit against the deft. for, recovery of the rent, that she undertook to , pay rent to him and that he withdrew the suit as compromise was effected. The deft. states that she field a suit against the plaintiff for not issuing rent receipts but docs not give any particulars of the suit or as to the result. The parties could not have appointed Baldev Raj Chawla as an arbitrator orally to settle their disputes as the appointment of an arbitrator in law has to be by a written agreement. Baldev Raj Chawla does not say that he made any award.
(18) Apart from it, there are various circumstances that the receipts, Exs. D-l to D-6 are forged. The suit is for arrears of rent from 1.11.69 the rent for the previous months from 1.1.69 having become time barred. The first rent receipt, Ex. D-l is for Rs. 7,800.00 and is dt. 15.1.72. This represents the rent for 13 months. The second receipt, Ex. D-2 is dt. 5.2.72 and is for Rs. 4,000.00. The third receipt, Ex. D-3 is dt. 13.5.72 and is for Rs. 1,200.00. The fourth receipt is Ex. D-5 dt. 7.7.72 and is for Rs. 5,246.00. The fifth receipt is Ex. D-4 dt. 4.9.72 for Rs. 1,200.00 and the sixth receipt is Ex. D-6 dt. 1.11.72 for Rs. 1,200.00. The receipts of Rs. 4,000.00 and Rs. 5,246.00 are not multiple of the monthly rent of Rs. 600.00. No explanation is forthcoming. Except for the receipt, Ex. D-l, there is no mention of the months or the period for which the rent is paid. It is highly improbable that the disputes were settled in 1964 and the rent is paid only in 1972 for the period for which it purported to be paid.
(19) There are several glaring circumstances which go to point out that receipts are forged. The suit is filed on 15.12.72 for the recovery of the arrears or rent from 1.11.69 to 30.11.72. The payments are pleaded in the written statement but no particulars are given nor any receipts are filed. In the replication, the plaintiff takes a categorical stand that the defendant might be attempting to forge such receipts and perhaps the process of forgery had not been completed. The suit was also accompanied by an application u/Order 38 Rule 5 which was disposed of on 8.3.73. Time was granted to the parties on 7.5.73 for documents admission/ denial. The documents were not filed on 9.7.1973 and the case was adjourned to 8.8.1973. The counsel for the deft. again prayed for time for documents, admission and denial. The case was adjourned on payment, of costs of Rs. 25 to 12.9.1973 for documents, admission, denial and issues. It is only on 12.9.1973 that the receipts were filed. The delay in. filing the receipts is an important circumstance: Secondly, the rent receipts are all of the year 1972. The deft. in her statement said that she had been paying rent every month and again said after four to six months. The date of the receipts shows that the rent was not paid every month. The third circumstance is that several payments are not in the multiple of Rs. 600.00 which is the monthly rent. The fourth circumstance is that the number of the premises mentioned in the receipts is different. The fifth circumstance is that no period is mentioned in the rent receipts except in one rent receipt it is mentioned as 13 months. The sixth circumstance is that Shri Raghunath who is witness to Ex. D-3 was not produced and as the presumption is that he would have gone against the deft. No rent receipt issued in the years 1964 to 1971 has been produced by the deft. and there is no explanation as to why the earlier rent receipts are not forthcoming. There is no explanation why B.R. Chawla did not write the receipts himself and asked his employees to write them. It is obvious that the receipts were got scribed and witnessed by the employees of Chawla with the end object of producing them in Court in support of the alleged payments. The trial Court merely preferred to believe the testimony of D.Ws. without giving any cogent reasons. She should have rejected their testimony as being partisan to the defendant.
(20) The serious error which has crept in the judgment of the learned Sub-Judge is by shutting of the eyes to the glaring dissimilarities to the questioned and admitted signatures. The pff. produced Shri M.K. Mehta; hand- writing expert. His opinion is that the examination of the standard signatures shows that the writer has a development handwriting which is apparent from the speed, skill and well defined formation of the curvatures. The receipts, Ex. D-l, D-6 contain signatures with the strokes of the letters written in a hesitating and piecemeal manner. The formation of the letters is. clumsy. The line quality is hesitating and laboured in the documents, Exs. D-l to D-6. There was absolutely no reason to disbelieve the testimony of the expert when to the naked eye the dissimilarities arc obvious. There is no pictorial resemblance between the admitted and disputed signatures.
(21) Some arguments have been addressed for the drawing adverse inference to the non- production of the books of account by the appellant. In "Ramrati Kuer v. Dwarika Prasad", , it was held :- "...IT is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the Court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiffs-respondents if the appellant had asked the Court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the non-production of accounts..."
(22) The pff. was asked and he admitted that he maintained accounts wherein entries regarding payment of rent were made, but his previous account books prior to last 4 or 5 years were not available. He then categorically said "I can produce account books for 1971-72 & 1972-73". His case was that there were no entries of payment, and if the deft. wanted, he could have asked him to produce. An adverse inference could only be drawn against a person who does not produce or offer to produce. the pff. felt that his account books were not relevant. If the deft. felt that there were entries in the year 1972, then it was her duty to call upon the pff. to produce when he offered to do so. No inference can be drawn against the pff. for non-production of his account books.