Madras High Court
N.Rajan vs Dr.Chiranjeevi on 28 June, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.06.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.2013 of 2012 and M.P.No.1 of 2012 N.Rajan .. Petitioner vs. 1. Dr.Chiranjeevi 2. Munusamy ... Respondents Civil revision petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23/73 and 1 of 1980 against the judgment and decree dated 10.02.2011 passed by the learned VI Judge (VII Judge i/c), Court of Small Causes, Chennai in R.C.A.No.365 of 2011 in confirming the order and decree dated 03.06.2011 passed by the learned XV Judge, Court of Small Causes, Chennai in RCOP No.139 of 2010. For Petitioner : Mr.N.A.Kareem For Respondent/ : Mr.K.Rajasekaran for R1 Caveator No appearance - R2 ORDER
Animadverting upon the judgment and decree dated 10.02.2011 passed by the learned VI Judge (VII Judge i/c), Court of Small Causes, Chennai in R.C.A.No.365 of 2011 in confirming the order and decree dated 03.06.2011 passed by the learned XV Judge, Court of Small Causes, Chennai in RCOP No.139 of 2010, this civil revision petition has been focussed.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the Rent Controller.
3. A summation and summarisation of the germane facts, in a few broad strokes can be encapsulated thus:
(i) The first respondent herein/the landlord preferred RCOP No.139 of 2010 as against the revision petitioner as well as R2-Munusamy herein for eviction on the ground of sub-letting invoking Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
(ii) The matter was resisted by R2/the revision petitioner herein and R1 remained exparte throughout.
(iii) During enquiry, the landlord Dr.Chiranjeevi examined himself as P.W1 and marked Exs.P1 to P6. On the side of the respondent, the revision petitioner-Rajan examined himself as R.W.1 along with R.W.2 and marked Exs.R1 to R3.
(iv) Ultimately, the Rent controller ordered eviction on the ground of sub-letting.
(v) Aggrieved by the order of the Rent Controller, RCA was preferred for nothing but to be dismissed by the Appellate Authority confirming the order of eviction passed by the Rent Controller.
(vi) Challenging and impugning the orders of both the courts below, this revision has been focussed on various grounds.
4. Heard both sides.
5. The learned counsel for the revision petitioner placing reliance on the grounds of revision would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(i) The said Munusamy- first respondent in the RCOP projected himself as the authorised agent of the landlord Dr.Chiranjeevi and accordingly, the revision petitioner entered into the premises for a monthly rent of Rs.6,000/- to run the Fast Food business under the name and style of "Southern Fast Foods".
(ii) It so happened that subsequently, there was an attempt to dispossess the revision petitioner forcibly. Whereupon, he was constrained to file a suit seeking injunction. Thereafter, R1 herein filed the RCOP; wherefore that suit was not prosecuted further by the revision petitioner.
(iii) The said Munusamy had nothing to do with the demised premises, except as the agent of the landlord. He was a regular full time servant in Ashok Leyland and he was collecting rents not only from the revision petitioner but also from other tenants in the big building belonging to the landlord Dr.Chiranjeevi.
(iv) Both the courts below failed to note that there was no sub-tenancy that emerged between Munusamy and the revision petitioner. The Doctor was not in the habit of issuing rent receipts. In fact, writ petition was also filed by the revision petitioner to obtain licence in his own name to run the business.
(v) Without considering all these facts, both the courts below, believed the version of the landlord based on Ex.P4 the rental agreement, which allegedly emerged between Dr.Chiranjeevi and Munusamy during the year 1997, which is nothing but a concocted document and it was not even filed at the time of filing the chief examination affidavit and only at the fag end of the enquiry that document was marked, which is not tenable.
Accordingly, he would pray for setting aside the orders of both the courts below and for dismissal of the RCOP.
6. Per contra, in a bid to torpedo and pulverise the arguments as put forth on the side of the revision petitioner, the learned counsel for the landlord/R1 herein would pyramid his argument, which could pithily and precisely be set out thus:
(a) A mere perusal of Ex.P1 the copy of the plaint filed by the revision petitioner herein would connote and denote, demonstrate and display as to how prevaricative stands were taken by him before the Rent Controller. In the said plaint, he himself admitted that Munusamy happened to be the principal tenant, who was in need of a partner for his business, in the demised premises, whereupon the revision petitioner approached him and entered into the demised premises. When that was the case, he cannot be heard to contend as though the revision petitioner of his own accord as a tenant entered into the premises.
(b) There is not even a plea to the effect such sub-tenancy was consented to or connived at by the landlord. But, it is a specific case of the revision petitioner that he entered into the premises as an independent tenant under Dr.Chiranjeevi, the landlord through his agent Munusamy. As such, both the courts below seeing the reality held that the status of the revision petitioner is only that of an unauthorised sub-tenant in the demised premises, warranting eviction and accordingly, eviction was ordered.
(c ) Ex.P4 is for only 11 months and which was referred to even in the RCOP petition itself and it had not emerged as an after thought, so as to buttress and fortify the stand of the landlord.
Accordingly, he would pray for the dismissal of the revision.
7. The point for consideration is as to whether both the courts below committed any perversity or illegality in holding that the status of the revision petitioner is only that of an unauthorised sub-tenant in the demised premises ?
8. At the outset itself, I would like to fumigate my mind with the following decisions relating to unauthorised sub-letting.
(i) (1984) 2 SCC 590 (Jagdish Prasad vs. Angoori Devi). An excerpt from it would run thus:
"2. .........................................As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant , sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the court to assume a sub-tenancy merely from the fact of presence of an outsider......................"
(ii) (1988) 1 SCC 70 (M/s.Shalimar Tar Products Ltd. vs. H.C.Sharma and others). An excerpt from it would run thus:
19. ..................."In the instant case, exclusive possession was given to the sub-lessee and the tenant had transferred the right to possess in that portion. It is clear that sub-letting was done without the consent in writing of the landlord. If that is so, there was inevitably breach of the covenant."
(iii) (1989) 1 SCC 19 (Rajbir Kaur and another vs. M/s.s.Chokesiri and Co.). Certain excerpts from it would run thus:
"22. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of 'lease' in Section 105 of the Transfer of Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a 'licence' under Section 52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise, amounts to an "easement" or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called 'Possessory Licences' which confer a right of exclusive possession, marking them off fromt he more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmus test to distinguish one fromt he other. The "solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties".
24. In Associated Hotels of India v. R.N.Kapoor this court referring to the classic distinction between a lease and a licence said:
There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore, a transfer of an interest in land. The interest transferred is called the lease-hold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor.
28. In Dipak Banerjee v. Smt. Lilabati Chakraborty Sabyascahi Mukharji,J.,observed :(SCC pp.165-66,para 6) But in order to prove tenancy or subtenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent.
33. In B.M.Lall case, this court observed:
The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not decisive ... though it is a very important indication in favour of tenancy."
(iv) 1997(I) MLJ 581 (S.K.Raffuddin and others vs. N.Yeswantha Rao and others) "18. It is settled law that to prove sub-lease, initially the landlord will have to prove that the tenant is parted with legal possession and a stranger is in exclusive possession of the building. So long as the exclusive possession is not even spoken to by PW1, there cannot be any question of sub-lease. Both the authorities below have not entered a finding that the second respondent, Jaleel, is in exclusive possession of any portion of the building. Both the authorities below have come to the conclusion that Jaleel might be in possession on the ground that he is having independent business. According to the Authorities below, from his presence in the premises, such an inference can be had.
19. I do not think, law goes to the extent of saying that a mere presence of a person in a shop will amount to sub-lease.
21. What is sub-letting is also defined by the Supreme Court in the decision reported in (1988) 1 SCC 70 (M/s.Shalimar Tar Products Ltd. vs. H.C.Sharma and others). In paragraph 17 of that judgment (at page 78), their Lordships said thus:
"........................parting to the legal possession means possession with the right to include and also right to exclude others. That, in our opinion, is the matter of fact ......."
So, the alleged sub-tenant must be in a position to exclude others from interfering with his enjoyment of the building. The entire premises must be under his control and only under him the other person can be included within the premises. Evidence in this regard is absolutely lacking in this case.
22. In Dev Kumar v. Swaran Lata (1996) 1 SCC 25, the only evidence that was let in was, a Commissioner's Report....................................Apart from the Commissioner's report, a cash bill under the so-called name of the sub-tenant was also produced. Considering these two evidence, their Lordships of the Supreme Court said thus:
".................At the most, the conclusion can be that while the tenant was continuing his own business as well as a business of Commission Agent of M/s.Ram Saran Bhola Nath, respondents 2 to 4 have also been permitted to continue their business in the name of Ram Saran Rattan Chand. But that does not establish either the exclusive possession of respondents 2 to 4 or that the tenant has parted with his possession. The exclusive possession of the premises being the first criterion for establishing sub-letting and the same not being established, the conclusion of the Hig Court about sub-letting is vitiated.
In our considered opinion the landlady, respondent No.1 has utterly failed to establish the plea of sub-letting ......"
In paragraph 9 of the judgment, their Lordships said thus:
".........the conclusion on the question of subletting is a conclusion on a question of law derived from the finding on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. ......."
23. Similar is the case reported in Rajbir Kaur vs. S.Chokesiri and Co., (1989)1 SCC 19, wherein also, their Lordships reiterated that "if exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, as in the present 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 sub-letting in the guise of licences are in their vary nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. It is not, unoften, a matter for legitimate inference."
The burden of making good a case of subletting and establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion, viz., the landlord. 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."
24. So, the basic ingredient to prove the case of sub-lease is 'parting with possession'. The alleged sub-lessee must have the right to include and exclude others. If evidence on that aspect is lacking, as held in the decisions cited supra, a finding on subletting can only be considered as illegal. Since the conclusion on sub-letting is a question of law, even though the finding of the authorities below is concurrent, this Court is competent to reverse that finding.
(v) 1998-1-L.W.690 M/S.BHARAT SALES LTD., VS. LIFEH INSURANCE CORPORATION OF INDIA, certain excerpts from it would run thus:
"Delhi Rent Control Act, S.14(1)(b)/Subletting What constitutes subletting- Giving up possession of the tenanted accommodation wholly or in part by the tenant and putting another person in exclusive possession Mutual agreement or understanding, in which landlord is kept out of the scene Difficult to prove by direct evidence by landlord Law does not require that payment should be proved by affirmative evidence Inference from facts permissible."
A mere poring over and perusal of those decisions would unambiguously and unequivocally highlight and spotlight the fact, in addition to shedding light on the aforesaid point, that a tenant without the authorisation of the landlord was not expected to sub-lease the premises.
9. No doubt, simply because a new face is seen in the demised premises other than the tenant, the court cannot jump to the conclusion that there was sub-tenancy emerged between the tenant and the new person.
10. Here, a conjoint reading of the plaint and the counter filed by the revision petitioner herein would throw much light on the reality. I would like to extract here-under the relevant portions in the copy of the plaint filed under Ex.P1.
"4. In the middle of August 2006, the plaintiff who has knowledge and experience in Fast Food catering business, while looking for a place in 12th Main Road, Anna Nagar area for starting a fast food joint, was introduced to the first defendant who was also looking for a working partner to invest and run a catering establishment as he was employed in Ashok Leyland. After few rounds of talk, it was agreed that the plaintiff should pay a sum of Rs.1 lakh as refundable security deposit to the first defendant to meet the entire cost of infrastructure and maintenance and employ his own skilled workers to run the Fast Food business. The first defendant should remain as a silent partner and receive Rs.6,000/- per month, out of which he should pay Rs.2,500/- rent to the second defendant.
5. The first defendant was initially paid Rs.75,000/- on 21.08.2006 and passed on receipt stating his acceptance to take the plaintiff as partner (Document NO.1) and the execution of proper partnership deed was postponed at the request of the first defendant.
6. The plaintiff took possession of the vacant and locked suit premises on 21.8.2006 spent about 2 to 2.5 lakhs for renovations structures, and cooking range installation, electrical rewiring etc and inaugurated under the public recognized banner Southern Fast Food. He has employed 9 person and food centre is opened from morning till midnight and picked up the business."
(extracted as such) The relevant excerpt from the counter filed by the revision petitioner in RCOP is extracted here under:
"4. The first respondent is only a business partner once and he had never had any active participation as he has been employed in Ashok Leyland company, Ennore. This respondent is paying a rent of Rs.6,000/- to the petitioner, through the first respondent, who is the petitioner authorized agent. The first respondent has some adjustments with the petitioner in payment.
5. The petitioner has not questioned nor interfered with the catering business of this respondent and even handed over the electricity meter card to him for paying the electricity bill for the petition premises. The petitioner is also aware that this respondent alone is in occupation and enjoyment of the premises and this respondent has brought 7-8 persons to work in the fast food centre from his native village and invested more than 4 lakhs of rupees for starting the fast food centre. The petitioner suddenly asked this respondent to vacate the premises by 31.12.2009 when this respondent refused to enhance the rent and the petitioner also gave a false reason the premises is required for starting a clinic for his in the premises, though his daughter is still in college. It is a first step the petitioner through 1st respondent cut off the water supply to the shop."
(extracted as such) A conjoint reading of both would clearly display and demonstrate that the reality was that Munusamy happened to be the original tenant under the landlord and that the tenant Munusamy was in need of a business partner; the revision petitioner approached Munusamy and whereby and whereupon also, he entered into the premises. There is nothing to indicate that the landlord/owner-Doctor accepted or authorised for such sub-tenancy arrangement between the first respondent and the revision petitioner herein. When such is the position, it is quite obvious that both the courts below appropriately and appositely held that there was unauthorised sub-tenancy and the occupation of the revision petitioner-Rajan was not that of an independent tenant under the landlord, viz., Dr.Chiranjeevi.
11. Regarding Ex.P4 is concerned, the learned counsel for the revision petitioner would submit that the said document was not filed along with the chief examination affidavit. It has to be seen as to whether, only as an after thought and that too after the commencement of the enquiry, such document was brought about.
12. A plain reading of the averments in the petition in RCOP would connote and evince that in para No.3, the said factum of lease emerged during June 1997 between the landlord and Munusamy, is found been referred to and the lease deed itself has been referred to as a lease dated 08.06.1997. Hence, I do not think that the plea as put forth by the revision petitioner herein as against Ex.P4 could be countenanced and upheld.
13. The learned counsel for the revision petitioner relied upon the order passed in the writ petition by this court. In that order, I could see that there is reference to the intention of Rajan to obtain fresh licence in his name and that itself is indicative of the fact that earlier he was not having any licence in his name.
14. As such, I could see no perversity or illegality in the findings rendered by both the courts below. Accordingly, this revision fails and the same is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
15. On hearing the order, the learned counsel for the revision petitioner would make an extempore submission to the effect that one or two years time might be granted for the revision petitioner to vacate the premises subject to payment of rent of Rs.10,000/- (rupees ten thousand only) per month to Dr.Chiranjeevi, the landlord. Whereupon, the learned counsel for the landlord would object to it vehemently and he would state that there are huge arrears of rent payable for which, I would like to point out that the landlord can demand the arrears or rent only from Munusamy because the nature of the case is such that, the landlord himself disowned any connection with the revision petitioner and under the caption rent, he cannot demand such arrears from such a person. However, now the revision petitioner seeks time to vacate the premises and that he comes forward to pay even Rs.10,000/- per month to R1 for his occupation in the premises till he vacates it and hence the following order is passed:
Taking into consideration the fact that the revision petitioner would obviously require some considerable time to find an alternate accommodation and that in his shop there are a few workers, working under him, I would like to grant a year's time from this date to vacate and hand over vacant possession of the demised premises to the landlord. However, such time is granted subject to payment at the rate of Rs.10,000/- (Rupees ten thousand only) per month to the landlord till handing over possession. The petitioner shall file an affidavit to that effect within 15 days from today.
28.06.2012 vj2 Index : Yes Internet: Yes To
1. The VI Judge/(VII Judge i/c) Court of Small Causes, Chennai
2. The XV Judge Court of Small Causes, Chennai G.RAJASURIA,J., vj2 CRP NPD No.2013 of 2012 28.06.2012