Punjab-Haryana High Court
Tek Chand vs Beli Ram on 23 August, 1994
Equivalent citations: (1994)108PLR440
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. This is a tenant's revision petition. Briefly stated, the facts are as follows:-
2. Beli Ram, landlord now represented by his son Hakam Chand . (hereinafter referred to as 'the landlord') filed an application for ejectment of Ram Partap and Tek Chand from House No. 508 under Section 13 of the Haryana Urban Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act').
3. Allegations of the landlord are that he is the owner of the premises in dispute and Ram Partap occupied the same as a tenant under him on a yearly rent of Rs. 1,000/- from the year 1962. Grounds for eviction taken were non payment of arrears of rent from March 31, 1981 up to the date of filing of the application along with interest and house tax, material impairment in the value and utility, personal necessity, material alterations and sub-letting. It was averred that the demised premises had been let out to Ram Pratap who had sub-let the same to his brother Tek Chand without the written consent of the landlord.
4. Ram Partap and Tek Chand filed a joint written statement. It was averred that Ram Partap was not a tenant under the landlord and did not pay the rent to him; rather Tek Chand, is the tenant under the landlord since the year 1968 and has been paying the rent at the rate of Rs. 1,000/- per year. Tek Chand had paid rent up to March 31,1983 and, therefore, he was not liable to be evicted on the ground of non-payment of arrears of rent. However, he paid Rs. 4,385/- as rent, interest, Cost of application and municipal tax under protest. It was pleaded that the shop in dispute was taken on rent by Ram Partap for firm Jai Ram Dass Jethu Ram in the year 1952, being the Karta of the Hindu joint family as this firm was joint Hindu family firm of Ran Partap, Prabh Dial, Jethu Ram and Tek Chand. In the year 1968, the joint Hindu family was divided and the landlord gave the shop in dispute to Tek Chand on rent in the year 1968. Thereafter, firm Jai Ram Dass Madan Lal is carrying on the business in the premises in dispute. The landlord had been receiving the rent from this firm himself and through his son Hakam Dass after executing the receipts thereof. Other grounds for ejectment regarding impairment of value and utility, personal necessity, material alterations, were controvertered and denied; On the pleadings of the parties, the . following issues were framed:-
"1. Whether the respondents are liable to be ejected from the suit property on the grounds mentioned in the application? OPA
2. Whether respondent No.2 is a tenant under the applicant and there is no sub-letting? OPR.
3. Whether the suit property is not a house and is a shop and therefore, the respondents cannot be ejected? OPR.
4. Whether the respondents are entitled to special costs under Section 35A of C.P.C.? OPR.
5. Relief."
5. Rent Controller decided issues No. 1 to 4 in favour of the landlord and against the tenant. Consequently, the ejectment petition was accepted and the respondent-tenants were ordered to hand over the vacant possession of the building in dispute to the landlord. Ejectment of the tenant was ordered on the ground of sub-letting. Against this order of ejectment passed by the Rent Controller, an appeal was preferred.
6. Appellate Authority upheld the orders passed by the Rent Controller and held that Ram Partap had sub-let the premises in dispute to Tek Chand and, therefore, was liable to be ejected. Appeal was dismissed being without any merit. Tek Chand, who claims himself to be a direct tenant under the landlord has come up in revision before this Court.
7. I have heard the counsel for the parties.
8. In this case four rent notes were executed by Ram Partap i.e. Exh. A-3, Exh. A-4 Exh. A-5 and Exh. A-2. Exh. A-3, Exh. A-4 and Exh. A-5 were executed between the years 1950 to 1962. The last rent note is Exh, A-2, which was executed in the year 1962. A perusal of these documents shows that Ram Partap had taken the shop on rent alone. There is no mention that it was rented out to any joint Hindu family firm. Execution of the latest rent note Exh. A-2 has been proved from the testimony of AW-2 Des Raj Who is the son of scribe Lekh Raj (since dead) Des Raj proved the writing of Exh. A-2, which was scribed by his father. It was stated by him that he was familiar with the handwriting of his father and could recognise, the same. After taking the shop on rent, Ram Partap started his business name of the firm M/s Jai Ram Dass Jethu Ram in which Tek chand was also a partner. After taking the shop on rent, a tenant can certainly introduce partners for running the business but that does not necessarily make. the partners so taken to be the tenants of the landlord . In the year 1968. Ram Prathap's share in the partnership/Hindu undivided family came to an end. He shifted his business from Mandi Kalanwal to Mansa. Possession of the shop was given to Tek Chand who started running his business in the name and style of M/s Jai Ram Das Madan Jal. Question under these circumstances arises as to whether Tek Chand would become the tenant of the landlord or not.
9. Counsel appearing for petitioner Tek Chand submitted that the landlord had been regularly receiving rent from M/s Jai Ram Dass Madan Lai after partition in the year 1968 in which Tek Chand was one of the partners. The other persons shifted to other places and, therefore, Tek Chand, who continued to make payment of the rent on behalf of the firm became the tenant to which the landlord never raised any objection. Documentary evidence relied upon was die rent receipts Exh. R-1 to Exh. R-24, which are the entries taken from Khata Bahi of the firm and the entries in the register of die firm are Exh. R-1/A to Exh. R-1/7A where in the firm M/s Jai Ram Dass Madan Lal is recorded to be in possession as a tenant under Beli Ram, landlord. It was contended that the rent was being accepted from Tek Chand for the last 18 years without any objection and it would give rise to the inference that the tenancy was never considered as unlawful. The landlord did not file the ejectment application between 1968 to 1984, for a period of 16 years, even after acquiring the knowledge of the alleged sub-tenancy and on that account an adverse inference be raised against the landlord.
10. As against this, the submission of counsel for the respondent-landlord is that the premises were let out to Ram Prapat in his individual capacity who carried on hit business in the firm name if Jai Ram Dass Jethu Ram; that Ram Prathap sub- let the premises to Tek Chand in the year 1968 who started his business in the firm name of M/s Jai Ram Dass Madan Lal without the written consent of the landlord and that there was no evidence on record to prove that the shop was taken on rent on behalf of the firm, a Hindu joint family. Plea taken by the tenant that the rent note Exh. A-2 was not proved was also refuted. It was stated that the scribe had died and in his place his son Des Raj, AW-2 appeared and proved the rent note which was executed by Ram Partap. Otherwise also, the earlier three rent notes Exh. A-3 to Exh .A-5 were executed by Ram Partap in his individual capacity and as a natural consequence the forth rent note Exh. A-2 was also executed by Ram Partap in his individual capacity. The signatures Of Ram Partap on the rent notes were got proved by hand writing expert Dewan KS. Puri . Entries in the assessment registrar of the municipal committee are not sufficient to prove the tenancy. Rent receipts Exh. R-1 to 24 from the Khata Bahi no doubt show that the land lord accepted the rent from the firm Jai Ram Dass Madan Lal which presumably would come to show that the land lord knew about the alleged sub-tenancy and had also accepted rent. The question, which is to decided, is as to whether sub-tenancy can created with out the written consent of the land lord Words of the statute are very clear that so sub-tenancy can be created without die written consent of the landlord. Apex Court in Pulin Behari Lal v. Mahadeb Dutte and Ors., 1993(1) R.L.R. 291, under somewhat similar circumstances held as under:-
"A perusal of the above provisions dearly show that when there was no previous consent in writing of the landlord for creation of sub-tenancy it shall be aground for eviction in terms of Section 13(1)(a) of the Act even in case of creation of such sub-tenancy with the contest of the landlord in writing it was necessary to follow the further procedure prescribed wider Section 16(1) of the Act. Mere knowledge and/or acceptance of rent cannot defeat the landlord's right to get a decree for ejectment on the ground of sub letting. If the view as contended on behalf of the appellant is accepted the provisions of both the above-Sections 13 and 16 would become nugatory. There is a dear mandate to Section 13(1)(a) that die protection against eviction to the tenant shall not be available in case the tenant transfers, assigns or sublets in whole or in part the premises held by him without the previous consent in writing of the landlord."
11 Similarly, in M/s Shalimar Tar Products Ltd. v. H.C. Sharma and Ors., 1992(2) R.L.R. 422, the Supreme Court observed as under-:
"It was necessary for the tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do The consent must be to the specific Sub-letting and must be in writing......"
12. Apex Court in another case reported as Duli Chand (dead) by L.R's v. Jagmender Das; 1990(1) R.L.R. 445, observed that the question of implied consent would not arise if the consent is to be in writing. Their Lordships summed up the position of law as under:-
"In the aforesaid view it was held that it was necessary for the tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do. The consent shall also be to the specific sub-letting or parting with possession. This Court further observed that the requirement of consent to be in writing was to serve public purpose, i.e. to avoid dispute as to whether there was consent or not and that, therefore mere permission or acquiescence will not do. While noting that every one has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity, In the context of the statutory provision of the Delhi Rent Control Act, this Court further held that die requirement as to the consent being in writing was in the public interest and that, therefore, there cannot be any question of waiver of a right, dealing with the right of the tenants or landlord. The words used in the section are "without consent of the landlord". If the words were "with out consent of the land lord" it might mean without consent, express or implied and in that sense question of waiver may arise. The question of implied consent will not arise, if the consent is to be in writing.
13. In the present case, die demised premises were taken on rent by Ram Partap in his individual capacity. He could certainty take partners with him to run the firm but the partners so taken would not become the tenants of the landlord. Ram Partap, the original tenant; parted with the possession and sub-let the premises in dispute to his brother Tek Chand without the written consent of the landlord. Mere acceptance of rent with knowledge or without knowledge or even acquiescence as held by the Supreme Court of India, would not imply a waiver of the condition of a written consent for sub-letting. In these cases, it was held that the requirement as to the consent being in writing was in public interest and, therefore, there cannot be any question to waiver of a right, dealing with the rights of the tenants or the landlord. In this view of the matter sub-tenancy stands proved in favour of Tek Chand and the order of the authorities below is upheld. In this case neither the landlord nor Ram Partap appeared in the witness box. Plea taken on behalf of the landlord was that he was hard of hearing and, therefore, could not appear in the witness box. This explanation of the landlord was accepted by the authorities below and no adverse inference was drawn against the landlord for his non-appearance. Ram Partap, the original tenant also did not step into the witness box. Perhaps, he did not step into the witness box to avoid being confronted with the various rent notes executed by him in his individual capacity.
14. For the reasons recorded above, this revisions petition is dismissed with no order as to costs.