Punjab-Haryana High Court
Ashok Kumar And Anr. vs Shrimati Nirmal Kanta on 7 January, 2002
Equivalent citations: AIR 2002 (NOC) 172 (P&H), 2002 A I H C 2084, 2002 HRR 315, (2002) 2 CIVILCOURTC 17, (2002) 1 PUN LR 659, (2002) 1 RENCR 313, (2002) 1 RENTLR 499
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. Smt. Nirmal Kanta wife of Shri T.R. Bhandari, Advocate filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for seeking ejectment of the tenant, i.e., Ashok Kumar and Lachhman Singh from the shop described as the demised premises.
2. The claim of Smt. Nirmal Kanta is that she being the landlord had rented out the demised premises to respondent No. I Shri Ashok Kumar as tenant at the rate of Rs. 2257- P.M. In support thereof a rent note was executed.
3. The ejectment has been sought on the ground that the tenant has not paid the rent from March 2, 1982 upto the date of filing the petition. Secondly, the conduct of the tenant is such that it is a constant nuisance being caused to the landlord as well as to the neighbourers. Thirdly, wants to construct first floor on the demised premises, which is not being allowed to be constructed by the tenant. Fourthly, Lachhman Singh respondent No. 2 has been inducted as a sub-tenant by respondent No. 1, the tenant and that such induction has been made without the consent/permission of the landlord. Fifthly, respondent No. 1 got installed electric meter in the demised premises in his name. Sixthly, the respondent No. 1 is making an effort to establish a title in his own favour in respect of the demised premises.
4. Upon the pleadings of the parties, following issue was framed:
(i) Whether the respondents are liable to be ejected from the demised premises upon the grounds mentioned in the petition? OPP.
(ii) Relief.
5. The parties led their respective oral as well as documentary evidence before the Rent Controller. Upon consideration of the evidence of both the parties, returned a finding in favour of the tenant by holding that he is not liable to be ejected from the demised premises upon the grounds mentioned in the petition. Resultantly, the petition was dismissed.
6. Dissatisfied with the judgment dated 13.8.1983 passed by the Rent Controller, the respondent landlord filed an appeal before the Appellate Authority. However, the Appellate Authority accepted the appeal and set aside the order of the Rent Controller vide judgment dated 14.6.1984. It had been directed that the tenant shall put the landlord in possession of the demised premises within three months.
7. The present petition has been filed by the tenant challenging the aforesaid judgment of the Appellate Authority.
8. The petitioner appeared as his own witness and categorically averred that Lachhman Singh respondent No. 2 works as a Tailor Master and that he sits outside the shop and works upon sewing machine which is generated with feet. It has also been contended that he has not been given any portion on rent, therefore, he does not charge any rent from him. The respondent No. 2 works as a Tailor Master for the purpose of augmenting the business of the petitioner. It is at a given point of time when one has to buy a piece of cloth or get the clothes stitched, the measurements are taken by the tailor master for determining the length of cloth required for the said purpose. Lachhman Singh also appeared as a witness supporting the claim of the tenant. He has categorically stated that he has not taken any possession of any portion of the tenanted premises or that he has paid any rent or any consideration in respect thereof. The Rent Controller recorded a finding that Lachhman Singh can at best be taken as a licensee of Ashok Kumar, thus, the question of sub-letting does not arise.
9. On the other hand, the claim of the respondent-landlord is that the averment of the tenant and also that of Lachhman Singh stands belied from the report submitted by the Local Commissioner appointed by the Rent Controller to the effect that he was found sitting inside the shop and that me sewing machine was also lying inside. The contention is that this evidence has not been rebutted and therefore, the plea of Lachhman Singh and Ashok Kumar that the Tailor Master sits outside the shop could not be accepted and resultantly the Appellate Authority has come to a correct finding in accepting the plea of sub letting and resultantly allowing the application filed by the landlord. It is also the stand of the landlord that the plea of the licence was not taken by the tenant in the written statement, therefore, the Rent Controller fell into error in holding that Lachhman Singh is licences of Ashok Kumar and therefore, no question of sub-letting.
10. Shri Vikas Bahl, learned counsel for the petitioner has argued that the essentials of sub-letting have neither been pleaded nor proved i.e., parting of possession for consideration, neither has been averred in the petition nor has been proved by way of corroborative piece of evidence. He has drawn my attention to the petition where no such categoric plea has been taken by the landlord. The argument is that if no such plea has been taken, the stand taken in respect thereof would not be sustainable and that the Appellate Authority fell into error by returning a finding that a case of sub-letting has been made out. In fact this aspect has not been discussed by the Appellate Authority at all. Reliance has been placed upon the judgments of this Court and so also of the Apex Court which are noticed as under:
(i) Amar Nath v. Smt. Savatri Devi (1955)57 P.L.R. 276 and in the headnote, it is held as under:
"Held, (setting aside the order of ejectment); that the tenant retained his full rights as the tenant over the whole of the premises leased to him and that the mere fact that he had allowed the tailor, even on payment, to sit in part of a shop with his sewing machine for the purpose of working as a tailor did not, amount to creating a sub-lease of any part of the premises or in any way parting with possession of any part of the premises and that it was in fact only a license."
(ii) Dev Dutt Verma Versus Ajit Singh 1965 Cur.L.J. Civil 341 and in the headnote, it is submitted as under:
"Held, that the burden is on the landlord to show that there has been subletting. This burden is not discharged by merely showing that some third party was using a part of the premises. No doubt, in this case, on the findings arrived at by the courts below, the tenant had taken a false plea that he had never seen Banwari Lal, but a false plea taken by the tenant cannot fill in the lacuna in the evidence for proving the issue, the burden of which was on the landlord."
(iii) Smt. Parkash Wanti v. Rattan Lal Jain 1976-All India Rent Control Journal-87 and in the headnote, it is stated as under:
"Held that, two ingredients are to be satisfied before it can be held that a particular premises is sub-let by the tenant to some other person(1) that the sub-tenant was in exclusive possession and (2) that it was for valuable consideration. Where both these ingredients are not proved it could not be said that the tenant had sub-let the premises." (iv) Jagdish Prasad v. Smt. Angoori Devi 1984(1) RLR 538. In the headnote, it is held as under:
"A. Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Sections 12, 15 and 20 Sub-letting. Here presence of person other than the tenant in shop..... Sub-letting cannot be presumed...... As long as control over the premises is of tenant and the business run is of the tenant, sub-letting flowing from the presence of a person other than the tenant cannot be assumed."
(v) Teja Singh v. Mehanga Singlt, 1985(2) RLR 287. In the headnote, it is described as under:
"East Punjab Urban Rent Restriction Act, 1949, Sections 13 and 15- Subsequent events-Ejectment on the ground of bona fide necessity. During the pendency of revision landlord ceased to be the owner of premises as the transfer in his favour was cancelled by the Rehabilitation Department-Court competent to take notice of such subsequent events."
(vi) Gopal Saran v. Satyanarayan, AIR 1989 Supreme Court-114. In the headnote, it is held as under:
"The question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession."
(vii) Bhomle Ram v. Mahesh Chand,1 1997(2) RCR 17. In the headnote, it is held as under:
"Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Section 13(l)(e)-Sub-letting- Tenant took two shops on rent-Adjacent shop without doors-Tenant allowed another person to do repairing work in the shop. This person put his board on the shop-Held, it was not sub-letting as exclusive possession was not transferred-Sub-letting means transfer of exclusive right to enjoy the property in favour of third part) and said right must be in lieu of payment of some compensation or rent-Parting of legal possession means possession with the right to include and also a right to exclude other-Mere occupations not sufficient to infer either sub-tenancy or parting with possession." (viii) Delhi Stationers and Printers v. Rajendra Kumar, AIR 1990-Supreme Court 1208. In the head note, it is described as under:
"Under Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act (17 of 1950), the tenant is liable to be evicted, if he has assigned, sub-let or otherwise parted with it the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation and rent. Parting of the legal possession means possession with the right to include und also right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy in parting with'possession."
(ix) Raghbir Singh v. Resham Singh, (1999-2)119 P.L.R. 804. In the head note it is held as under:
"A. East Punjab Urban Rent Restriction Act, 1949, Section 12(2)(ii)(a)-Sub-letting-ingredients-Tenant should be in exclusive possession of whole or part of the building and for valuable consideration."
(x) Benjamin Premunand Rawade (Dead) By Lrs. v. Anil Joseph Rawade, 1999(1) RCR 115. In the headnote, it ins sated as under:
"Bombay Rente, Hotel and Lodging House Rates Control Act, 1947, Section 13(1)(e)-Sub-letting To prove sub-tenancy two essential conditions are to be satisfied: i. That sub-tenant was in exclusive possession of property ii. That between a sub-tenant and chief tenant, there was relationship of lessee and lessor. First condition fulfilled, but second not-Sub tenancy not proved."
(xi) Resham Singh v. Raghbir Singh, 1992(2) RCR 216. In the head note, it is held as under;
"C. East Punjab Urban Rent Restriction Act, 1949, Section 13(2)(ii) -Sub-letting-Question of law-Sub-letting is a conclusion on question of law derived from findings on materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration."
(xii) Akthars v. Hitesh V. Shah, 2000(2) RCR 53. In the head note, it is held as under:
"C, Tamil Nadu Building (Lease and Rent Control) Act, 1960. Sections 25 and Section 10(3)(a)(iii)-Bona fide requirement - Subsequent events-Revision before High Court it was contended during arguments that tenant had locked the premises and was not conducting the business Subsequent events have to be kept in view."
11. It is further argued that even if it is assumed that Lachhman Singh sits inside the shop, no case has been made out as to which particular portion of the shop has been given possession of by the tenant and to the contrary, as a Tailor Master, he augments the business of the tenant by assisting him while taking the measurements and decifering the cloth required by the customer. If that be the conduct attributable to Lachhman Singh, it shall not amount to sub-tenancy and by merely accepting the fact that he sits inside the shop would not fulfil the ingredients required in respect thereof and that implied licence shall be descernable from the corroborative facts brought on the record. In this regard, reliance has been placed upon a judgment of this Court in re: Benjamin Premanand Rawade (Dead) by LRs. v. Anil Joseph Rawade, 1999(1) RCR 115. It has also been stated that Lachhman Singh no longer sits inside/outside the shop and has therefore, no connection in regard to the, demised premises. It is argued that the subsequent events which may occur during the pendency of the petition are also necessarily required to be taken notice of by the forums. It is averred that Lachhman Singh stopped coming to the shop in the year 1986, as such, by way of assumption as well, plea of subtenancy would not be available to the landlord. Thus, the cumulative effect is that the petition deserves to be allowed and that the application of the landlord surely requires to be dismissed as no other ground has been determined in favour of the landlord. Since the ground of sub-tenancy cannot be stated to have been established as has been correctly found by the learned Rent Controller and that even otherwise Lachhman Singh having stopped to come to the shop for the augmentation of the business of the petitioner, the ground of sub tenancy if allegedly taken to be against the tenant, would be available, thus the petition deserves to be accepted.
12. On the other hand, the holder of General Power of Attorney Shri T.R. Bhandari has contended that for the purpose of establishment of sub-tenancy, it is not possible to bring direct evidence in this regard, especially when the tenant and the sub-tenant connive with each other. Under these circumstances, the attendant and corroborative circumstances need to be seen which would facilitate the Court to come to a Finding in respect of sub-tenancy. In the case at hand, report of the Local Commissioner has not been rebutted by any direct or indirect evidence. Local Commissioner found Lachhman Singh occupying the premises inside the shop with sewing machine and that the area has been stated in the petition. It is further argued that the categoric plea has been taken in the petition that Lachhman Singh has set up his machine at point 'E' ,and this has been corroborated by the report of the Local Commissioner There is no suggestion which has been given to the Local Commissioner in this regard and the evidence having remained unrebutted has been correctly noticed in favour of the landlord. It is the settled law that in such situation, where one unrebutted evidence is available, reliance can be placed in returning the requisite finding. In the present case, the lower Appellate Court has very correctly placed reliance upon the unrebutted evidence of the Local Commissioner and has negatived the statement of Ashok Kumar and Lachhman Singh.
13. It is further argued that assuming the categoric plea of parting of possession for consideration has not been taken, this shall not defeat the claim of the landlord as the petitioner (tenant) has not been able to establish that any prejudice has been suffered by them by not taking such plea. It is again the settled law that if no prejudice can be stated to have been suffered by the other side but the plea is substantiated by a cogent piece of evidence, the decision rendered by the Court would not suffer in any manner. Reliance has been placed upon the following judgments:
(i) Om Parkash v. Ram Sarup, 1984(2) RLR 351.
(ii) Kishan Chand v. Kitndan Lal,13 (1967)69 P.L.R. (S.N.) 57. In the headnote, it is held as under:
"Held that a landlord is almost always a stranger to agreements of sub-letting between his tenant and sub-lessee and he has generally to rely on attending circumstances to establish sub-letting by necessary inference. It must be very rarely that direct evidence of sub-letting without the landlord's consent, whether in the form of a lease deed or of testimony of witnesses in whose presence the sub-lease is created, can come to the hands of the landlord. The proof of sub letting thus depends upon the probability of the premises having been sub-tet, and all that is required is material on which the Court can, like a prudent person guided by his own experience and judgment, regard being had to be ordinary course of human conduct, reasonably act upon the supposition that the premises have been sublet. Dev Dun Verma v. Ajit Singh, 1985 Cur. L..I. 341 explained and distinguished."
(iii) Kartar Singh v. Harbhajan Singh and Anr,14 1980(1) RLR 621. In the headnote, it is held as under:
"East Punjab Urban Rent Restriction Aet, 1949, Section 13- Sub-letting-Onus -Initial onus on landlord to prove occupation of premises in dispute by alleged sub-tenant-Thereafter onus shifts on tenant to show in which capacity the alleged sub-tenant was occupying."
(iv) Nihal Chand Rameshwar Doss and Anr. v. Vinod Rastogi and Ors., (1995-1)109 P.L.R. 298 (S.C.). In the headnote, it is held as under:
"East Punjab Urban Rent restriction Act, 1949, Section 13-Sub-letting-Tenant allowing a third party to occupy part of the tenanted premises-Eviction sought on the ground of sub-letting-No explanation from the tenants as to for what consideration they had allowed the third party to occupy part of tenanted premises rather they denied to have parted with possession-Held that plea of sub-letting could be presumed in such circumstances-Courts below right in ordering eviction on the ground of sub-letting."
(v) Om Parkash and Anr. v. Smt. Vidya Wati and Anr. 1979(1) RCR 566.
In the headnote, it is held as under:
A. East Punjab Urban Rent Restriction Act, 1949, Section 13-Sub-letting-Shop let to a Cloth merchant who giving a portion to a tailor-It is sub-letting."
(vi)Harbhajan Singh v. Jai Shree Kishan, 1999(1) RCR 387. In the headnote, it is held as under:
" B. East Punjab Urban Rent restriction Act, 1949, Section 13(2)(ii)(a)-Sub-letting-Pleadings-Eviction sought on ground of sub-letting. It was not pleaded that sub-letting was for valuable consideration-No prejudice caused to tenant-Tenant knew what was alleged by landlord and tenant defended the case by pleading partnership."
(vii) Hari Singh v. Kanhaiya Lal, 1999(2) RCR 314. In the headnote, it is held as under:
'A. Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Section 13(1)(d) Civil Procedure Code, Section 100-Sub-letting-Finding of fact-Pleading that premises was sub-let-Detail of sub-letting if any can be supplemented through evidence-Mere lack of details in pleadings cannot be reason to set aside concurrent finding of fact."
14. I have considered the rival contentions of both the parties and I am of the opinion that the Appellate Authority has not correctly appreciated the evidence brought on record. Infact, no plea has been taken by the landlord to the effect that the tenant parted with any portion of the tenancy in favour of the sub-tenant for consideration Though the plea has been taken that the machine has been set up at point 'E' but that has not been established by the Local Commissioner. The Local Commissioner has stated that the sub-tenant was found sitting inside the shop, that alone would not establish the subtenancy. If any person sits in the shop for the augmentation of the business of the tenant, plea of sub tenancy would not be accepted. The Rent Controller has therefore, come to correct findings and the petition has been correctly dismissed. The Appellate Authority has fallen into error by placing reliance upon the findings of the Local Commissioner taking it to be unrebutted piece of evidence. The said evidence is too weak an evidence to take away the right of a tenant protected statutorily.
15. The petition is allowed and the order dated 25.10.1983 passed by the Appellate Authority is set aside and the order dated 13.8.1983 passed by the Rent Controller is upheld vide which application of the landlord has been dismissed. No order as to costs.