Punjab-Haryana High Court
Smt. Darshana Devi And Anr. vs Des Raj Singh Thakur on 7 May, 1997
Equivalent citations: (1997)116PLR588
JUDGMENT V.K. Jhanji, J.
1. The ejectment of the tenant was sought on the grounds; (i) for non-payment of rent with effect from 16.7.1982; (ii) for sub-letting to one Harish Chander; and (iii) for impairing the value and utility of the building. On contest by the tenant, the Rent Controller ordered ejectment of the tenant on the ground of sub-letting and also on the ground that the tenant has committed such acts as are likely to materially impair the value and utility of the premises. In appeal by the tenant, the Appellate Authority has affirmed the order of the Rent Controller. Hence, the present revision.
2. It has been contended by the learned counsel for the petitioner that the premises were taken on rent by Smt. Darshana Devi on 13.10.1968 and since then Harish Chander, the alleged sub-tenant is managing the business in the premises on her behalf and, therefore, the authorities below are not justified in finding that the premises have been sub-let by Darshana Devi to Harish Chander. He contended that partnership entered into between, Darshana Devi and Harish Chander on 1.4.1982 is real and genuine. In regard to the ground that the tenant has impaired the value and utility of the premises, counsel contended that making an opening in the front wall is neither material structural alteration nor it would come within the mischief of Section 3(2)(iii) of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act). In answer to these submission, Mr. J.K. Sibal, Senior Advocate, counsel for the respondent submitted that Harish Chander is in exclusive possession of the premises and the premises have been sub-let to him by Darshana Devi. In regard to the second ground that damage has been caused to the building by making an opening in the front wall, he submitted that there being no infirmity in the finding of the authorities below, no interference is called for by this Court.
3. So far as the exclusive possession of the premises is concerned, the authorities below, on appreciation of evidence brought on record, have come to the conclusion that Harish Chander is in exclusive possession of the shop. In order to prove that possession of Harish Chander is in his capacity as a partner, tenant has produced Exhibit R-2, Partnership Deed dated 1.4.1982. Counsel for the tenant has contended that to prove sub-letting, it is necessary to prove that by delivering possession to any other person, tenant has divested himself not only of physical possession but also right to possess the premises. In this regard, he has made reference to Clause 10 of the Partnership Deed which provides that in the event of dissolution of partnership, premises in dispute would go to Darshana Devi and Harish Chander shall have no right or claim on it. Counsel contend that so long as tenant has retained the right to come into possession of the premises, there is no parting of possession in terms of clause (ii)(a) of Sub-section 2 of Section 13 of the Act. In support of his argument, he cited (i) Vir Bhan Aggarwal v. Kunj Lal and Ors., 1978(2) R.L.R. 436; (ii) Jagan Nath (Deceased) through L.Rs v. Chander Bhan and Ors., 1988(2) R.L.R. 169; and (iii) Han Narain and Anr. v. Bela Devi, 1993(2) R.L.R. 788.
4. There is no dispute about the legal proposition enunciated in the judgments cited by the counsel for the petitioners. It is true that Clause 10 of the Partnership Deed provides that in the event of dissolution of partnership, the premises would go to tenant Darshana Devi but for applying this principle, it has to be established on record that the partnership set up by the tenant is a genuine one. If the partnership is not genuine and is merely a camouflage to conceal the real transaction of sub-letting, then it would be a clear case of sub-letting. In the present case, for proving the partnership, only the Partnership Deed has been produced. Tenant has not produced any other evidence either in the shape of account books or the record of Income-tax and Sales-tax to show that there is a genuine partnership between her and Harish Chander. The other circumstances brought on the record have also established that it is a clear case of sub-letting and partnership set up by the tenant is not genuine but a sham transaction. Tenancy in this case was created by the landlord in favour of Darshana Devi Prop. M/s Arvind Industries in October, 1978. Partnership between Darshana Devi and Harish Chander is alleged to have taken place on 1.4.1982. It is the case of tenant herself that Harish Chander is in possession of the premises much prior to the coming into existence of partnership. Tenant, in her statement as R.W.-2, has stated that prior to 1.4.1982 Harish Chander had been working in the firm as a Manager. She stated that no letter of appointment was given to him. She, however, has not produced any record to prove that Harish Chander has been working in her firm as a Manager. No evidence has been brought on record by the tenant to show the contribution of partners to the capital of partnership business. It has not been shown when and what amount was taken by the partners towards profits. Detail of the bank account maintained by the partnership has also not been furnished. No witness from the bank has been examined to prove that partnership had operated any account in any bank, though Clause 7 of the Partners Deed provides that bank account of the partnership shall be operated upon by both the partners either jointly or severally or any body else especially authorised by the partners in this behalf. It has further not been shown as to how accounts have been maintained. Darshana Devi, in her statement, concede that she is working as a teacher in Government Primary School since 1980 meaning thereby that she has completely parted with possession as under the Punjab Government Employees (Conduct) Rules, a teacher work in a Government School cannot run any business either in sole proprietorship or in partnership. No record has been produced from the office of District Education Officer that at the time of joining service, Darshana Devi had been doing any business. In these circumstances, I am of the view that the authorities below have rightly come to the conclusion that the partnership set up by the tenant in defence to the case of sub-letting is only a make-believe agreement and has never been acted upon.
5. It has then been contended by the learned counsel for the petitioners that the landlord has failed to prove that tenant has parted with possession for a valuable consideration. Of course, of the important ingredients to prove sub-letting is that apart from proving parting with possession, it must also be shown that such parting with possession is for consideration but the question arises as to how to prove consideration? Sub-letting is generally a secret arrangement between the tenant and sub-tenant and that is why onus is always on the tenant to show the capacity in which alleged sub-tenant is in occupation of the premises. If the landlord proves parting with exclusive possession by the tenant in favour of any other person, it would be for the tenant to prove that the possession of another person is permissive and without consideration. In the present case, as noticed above, tenant is a teacher in the Government School and sub-tenant is carrying business in the premises to the exclusion of tenant. It is difficult to believe that the tenant would have parted with possession without any consideration. In any case, tenant has failed to bring cogent evidence on record that possession of Harish Chander is permissive or without any consideration. Consequently, finding of the authorities below in regard to sub-letting calls for no interference.
6. In order to challenge the finding that by making a big opening in the front wall, tenant has impaired the value and utility of the premises, counsel for the tenant has cited some judgments wherein it has been held that removal of a, door, opening of a window, raising of Purdah wall, raising of wooden structure inside the showroom, placing partition in a room, raising temporary construction does not amount to impairment of value and utility of the premises. It is true that making an opening in the front wall by itself may not be sufficient to hold that the tenant has committed such acts as are likely to impair the value and utility of the premises but in the present case, it is not mere making of an opening in the front wall but by this act, tenant has caused damage to the building as cracks have appeared in the wall. There is no illegality or impropriety in the finding so recorded and, therefore, I am not inclined to interfere in the same in exercise of revisional jurisdiction.
7. For the reasons recorded above, the Civil Revision fails and is dismissed with no order as to costs. Tenant is allowed three months' time to vacate the premises provided the entire arrears of rent including that of three months, are paid/deposited with the Rent Controller within one month from today and an undertaking in writing is filed with the Rent Controller within one month that on the expiry of time allowed by this Court, vacant possession of the premises: shall be handed over to the landlord.