Allahabad High Court
Amar Nath (Since Decased) And Others vs Ram Murti Devi And Others on 8 April, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- CIVIL REVISION No. - 134 of 2013 Revisionist :- Amar Nath (Since Decased) And Others Respondent :- Ram Murti Devi And Others Revisionist Counsel :- Archit Mehrotra, Manish Goyal Respondent Counsel :- Kshitij Shailendra Hon'ble Sudhir Agarwal,J.
1. Heard Sri Manish Goyal, Advocate assisted by Sri Archit Mehrotra, learned counsel for revisionists and Sri Kshitij Shailendra, Advocate for respondents.
2. This civil revision has arisen from the judgment dated 21.02.2013 passed by Small Cause Court, Hathras in SCC Suit No. 09 of 1997. The plaintiff-respondent instituted small cause suit for a decree of ejectment against defendants-revisionists and recovery of Rs. 30,590/- (arrears of rent and damages for use and occupation) alongwith pendente lite and future damages at the rate of Rs. 1092.50 per month.
3. The dispute relates to a shop at ground floor in the building in dispute situated at Hospital Road/Tehsil Road, Sikandra Rao, District Aligarh. The plaintiff, Ram Murti Devi pleaded that monthly rent of shop was Rs. 950/- besides municipal taxes at the rate of 15% per month. The defendants-tenants committed default by not paying rent from 01.01.1995 despite repeated request and demand and also let out/sub let a portion of shop in question without consent of plaintiff-landlord to one Mohd. Ajaz son of Mohd. Zafar and realising Rs. 50/- per day as rent from him and, therefore, is guilty of sub-letting also. In substance the ejectment of tenant sought by plaintiff on the ground of default in payment of rent and sub-letting, i.e., the grounds available under Section 20(2)(a) and (e) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972").
4. The defendants contested the suit alleging that rate of rent is Rs. 710/- per month excluding house tax and water tax, which they (tenants) are regularly depositing with concerned department and neither there is any default in payment of rent nor the shop has been sub-let to anyone. The court below formulated five issues and for the purpose of present revision the issues No. 2, 3 and 4 are relevant, hence reproduced as under:
^^2&D;k iz'uxr nqdku dk fdjk;k 950@& :i;s izfrekg gS tSlk fd okfnuh dk dsl gS vFkok fdjk;s dh nj 710@& :0 ekfld gS tSlk fd izfroknhx.k dk dsl gS rFkk D;k izfroknhx.k us fdjk;k o VSDl vnk djus esa dksbZ pwd dh gS] ;fn gksa rks mldk izHkko\ 3& D;k izfroknh /kkjk 20 ¼4½ m0iz0 vf/kfu;e 13@72 dk ykHk ikus dk vf/kdkjh gS\ 4& D;k izfroknhx.k us Jh ekSgEen ,tkt dks tSyh fdjk;snkj ds :i esa iz'uxr nqdku esa eq0 50@& :i;s izfrfnu ;k vU; fdlh /kujkf'k ds vk/kkj ij fdjk;snkj j[k fy;k gS ;fn gksa rks izHkko\^^ "2. Whether rent for the shop in question is Rs. 950/- per mensem as claimed by plaintiff or Rs. 710/- per mensem as claimed by defendants and whether defendants have defaulted in payment of rent and taxes. If so, its effect?
3. Whether defendant is entitled to get the benefit of Section 20(4), UP Act 13 of 1972?
4. Whether defendants have kept Shri Mohammed Ezaz as a sub-tenant at the shop in question for Rs. 50 per day or for consideration of some other amount. If so, its effect?"
(English translation by the Court)
5. While considering issues No. 2 and 3 the court below recorded a finding in respect of rate of rent that it is Rs. 950/- per month excluding water tax and house tax. Having said so it has further held that benefit of Section 20(4) is not available to tenants for the reason that on the first hearing of suit the tenants have deposited the entire dues but calculating the rent at the rate of Rs. 710/- per month instead of Rs. 950/- per month, therefore, he had deposited rent short by Rs. 240/- per month, hence there is non-compliance of Section 20(4) and benefit thereof is not available to tenants. In other words, while denying benefit of Section 20(4) to tenants-revisionists, the court below has observed that it is an admitted case of tenants that they have deposited rent at the rate of Rs. 710/- per month on the first hearing of suit instead of Rs. 950/-.
6. Sri Manish Goyal, learned counsel appearing for revisionists drew my attention to page 74 of paper book, i.e., Annexure-3 to the affidavit accompanying stay application, which contains details of total sum Rs. 48,000/- deposited by revisionists-tenants on the date of first hearing of suit, towards compliance of Section 20(4) of Act, 1972. The aforesaid deposit was made on 07.10.1997 and break up thereof is as under:
^^1& fdjk;k tks okn esa ekaxk x;k gS 1@1@95 ls 31@10@97 rd 34 ekg 32300@& :i;k 2& C;kt 3998@& :i;k 3& U;k;'kqYd ¼2702 $1420½ 4122@& :i;k 4& vf/koDrk Qhl $ eksgfjZj ¼1530 $50½ 1680@& :i;k 5& izdh.kZ ¼vf/kd tek½ 5900@& :i;k dqy eq0 48000@& :i;k^^""
"1. The rental sought in the suit for the Rs.32,300/- period from 1/1/95 to 31/10/97 (34 months)
2. Interest Rs. 3,998/-
3. Court fees (Rs. 2,702+1,420) Rs. 4,122/-
4. Advocate fees+Moharrir fees(1,530+50) Rs. 1,680/-
5. Miscellaneous (Excess Payment) Rs. 5,900/-
Total Rs. 48,000/-"
(English translation by the Court)
7. Sri Goyal, learned counsel appearing for revisionists pointed out that, Rs. 32,300/- deposited towards rent, if divided by 34 months, the rate of rent whereupon aforesaid amount has been computed comes to Rs. 950/- per month and not 710/- per month, as held by court below.
8. I find substances in the submission. When questioned, Sri Kshitij Shailendra, learned counsel appearing for respondent, also could not point out any discrepancy in the aforesaid details and, therefore, it is evident from record that on the first date of hearing of suit, the total amount deposited by tenants-revisionists so as to claim benefit under Section 20(4) was Rs. 48,000/- which included rent for 34 months, i.e., from the period of 01.01.1995 to 31.10.1997 and it was computed by calculating rent at the rate of Rs. 950/- per month. There is a clear perverse finding and misreading on the part of court below in observing that rent deposited on the first date of hearing of suit was computed at the rate of Rs. 710/- per month though as a matter of fact it is at the rate of Rs. 950/- per month.
9. Sri K. Shailendra, learned counsel appearing for plaintiff-respondent, however, stated that subsequent current monthly rent paid by revisionists-tenants was not at the rate of Rs. 950/- per month but it was at the rate of Rs. 710/- per month and, therefore, there was non-compliance of Order 15 Rule 5. In my view the submission is irrelevant for the present case for the reason that court below has decreed the suit and declined to extend benefit of Section 20(4) of Act, 1972 by considering, total amount deposited by tenants on the first date of hearing, and reading, as if, the rent was deposited at the rate of Rs. 710/- though actually it was at the rate of Rs. 950/- per month. No other default has been pointed out or considered to decree the suit. This Court cannot extend the scope of this revision by looking into certain facts which are not founded by court below in passing the judgment impugned in this revision. The court below in my view has clearly erred in law by denying benefit of Section 20(4) to revisionists-tenants and the impugned judgment to this extent cannot be sustained.
10. The next question relates to sub-letting. Whether the defendant-landlord satisfy the requirement of pleading and proof for the purpose of attracting Section 20(2)(e) so as to attract liability for ejectment from building in dispute is the next but important question.
11. Section 20(2)(e) reads as under:
"20. Bar of suit for eviction of tenant except on specified grounds-- . . . . . . .
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
. . . . . . . .
(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;"
12. The above provision takes this Court to Section 25 of Act, 1972 and it would be appropriate to notice Section 25 also, which reads as under:
"25. Prohibition of sub-letting.--(1) No tenant shall sub-let the whole of the building under his tenancy.
(2) The tenant may, with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building.
Explanation.--For the purposes of this section--
(i) where the tenant ceases, within the meaning of clause (b) of sub-section (1) or sub-section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part;
(ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting." (emphasis added)
13. Explanation to Section 25 refers to Section 12(1)(b) and (2), which read as under:
"12. Deemed vacancy of building in certain cases--(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if,--
. . . . . . .
(b) he has allowed it to be occupied by any person who is not a member of his family; or . . . . . . . .
(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building."
14. In the present case it is not in dispute that Sri Mohd. Ajaz son of Mohd. Zafar is neither a member of his family nor a partner existing or a new one, as the case may be. In view of the above provisions it is thus to be seen whether the petitioners-tenants have allowed the alleged sub-tenant to occupy the shop in question wholly or partly or the same is sub-let to him.
15. Section 25(1) would apply to a case where the entire building is sub-let. Sub-section (2), however, permits sub-letting of a part of building provided a written permission has been obtained from landlord as well as the District Magistrate. In the present case no such permission is on record.
16. Now the only question remains to be considered, whether the case of sub-letting has been pleaded or proved by landlord or not.
17. In Jagdish Prasad Vs. Smt. Angoori Devi, AIR 1984 SC 1447 the Court held that a mere presence of a person other than tenant of a shop would not allow a presumption of sub-letting of shop. The presence of a person other than tenant on the tenanted shop may be in various capacities and multifarious situations. Sub-letting involves within its ambit a kind of control over premises by the person to whom it is let out, either by landlord himself or by tenants which is termed as sub-letting. The Court said:
"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 subtenancy merely from the fact of presence of an outsider." (emphasis added)
18. In Dipak Banerjee Vs. Lilabati Chakraborty, 1987(4) SCC 161 the Court said that in order to prove tenancy or sub-tenancy 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. When a case of sub-letting is pleaded the two questions which would have to be asked and looked into by concerned Court would be, whether the alleged sub-tenant was in exclusive possession of part of premises and, whether the tenant had retained no control over that part of premises. The Court also put stress on the fact that there must be firstly a pleading that a sub-tenant was kept in exclusive occupation of any part of premises over which the tenant had not retained any control at all and the said pleadings must then be supported by evidence. In case one of the essential ingredient fails, it would result in rejection of all allegation of sub-letting. Similarly, payment of rent for sub-tenancy or consideration for sub-tenancy is another integral part. This also has to be pleaded and proved. A mere receipt of service in lieu of occupation of a part of premises as a licensee would not amount to payment or receipt of rent.
19. Sub-tenancy admittedly is not defined in the Act, 1972. However, Section 105 of Act, 1882 defines the term "lease" and it has been held that what is lease between owner of property and his tenant becomes a sub-lease when entered into between tenant and tenant of tenant. The later being sub-tenant qua the owner landlord. In Mahendra Saree Emporium Vs. G.B. Sriniwasa Murthy, AIR 2004 SC 4289 the Court said that a sub-lease would imply and stand discharged by adducing prima facie proof of fact that alleged sub-tenant was in exclusive possession of premises or, to borrow the language of Section 105, was holding right to enjoy such property. A presumption of sub-letting may then be raised and amount to proof unless rebutted. In Delhi Stationers and Printers Vs. Rajendra Kumar, 1990(2) SCC 331, it is a case arising from Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Construing Section 13(1)(e) thereof which deals with a case of sub-letting, a ground to justify ejectment of tenant from a building, the Court said:
"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 or rent. Parting of the legal possession means possession with the right to include and also a right to excludes others. Mere occupation is not sufficient to inter either sub-tenancy or parting with possession." (emphasis added)
20. The thrust was on the fact as to who is in legal possession of premises. The Court relied on its earlier decision in Gopal Saran Vs. Satyanarayana, 1989(2) SCC 383.
21. In Joginder Singh Sodhi Vs. Amar Kaur, 2005(58) ALR 683 the Supreme Court considered question of sub-tenancy in the context of East Punjab Urban Rent Control Act. There a discordant note, in respect of payment of rent making one of the necessary condition for proving sub-letting. So far as exclusive possession is concerned the Court reiterated the consistent view taken earlier also and relying on Bharat Sales Ltd. Vs. Life Insurance Corporation of India, 1998(3) SCC 1 said that sub-tenancy or sub-letting comes into existence when tenant gives up possession of tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. The Court also referred to earlier two decisions in Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh, AIR 1968 SC 933 and Shama Prashant Raje Vs. Ganpatrao and others, 2000(7) SCC 522 wherein it was held that in a suit of landlord for eviction of tenant on the ground of sub-letting the landlord has to prove by leading evidence two situations, (1) a third party was found to be in exclusive possession of the rented property, and (2) parting of possession thereof was for monetary consideration. However, having said so the Court then proceeded to observe the practical aspect of the matter with regard to proof of payment of monetary consideration and said that arrangement of sub-letting is obviously a result of a secret and mutual agreement or understanding between tenant and the person to whom possession is so delivered. In this process the landlord is kept out of scene. In fact the entire transaction proceed behind the back of landlord concealing overt acts. The transfer of possession is clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. The Court further said:
"It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant Payment of rent undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let."
22. The Court then refers to Smt. Rajbir Kaur and another Vs. M/s S. Chokesiri Co., 1989(1) SCC 19 wherein it was held that, exclusive possession, if established, 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 very 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 sub-letting is, of course, on the appellants. The burden of establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party being the legal burden, shifts according, as the weight of the evidence adduced, by the party during the trial.
23. Another case cited and referred in Joginder Singh Sodhi (supra) is Kala and another Vs. Madho Parshad Vaidya, 1998(6) SCC 573 wherein reiterating the principle discussed in Smt. Rajbir Kaur (supra) the Court said that burden of proof of sub-letting is on landlord but once he establishes burden of possession by tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus it is permissible to raise an inference that such possession was parted for monetary consideration.
24. It thus cannot be doubted that in order to succeed the plea of ejectment of a tenant on the ground of sub-tenancy the landlord has to prove that tenant has parted away exclusive possession of whole or part of tenanted premises to the alleged third person, i.e., sub-tenant.
25. In the present case surprisingly I find that the very pleading is missing this necessary ingredient and statement of fact. Copy of plaint is Annexure-1 to the affidavit filed in support of stay application (hereinafter referred to as the "affidavit"). The only averment in respect of sub-letting is contained in para 4 which reads as under:
"4. That the deceased defendant no. 1 and defendant no. 2 beside non payment of allowed one Sri Mohd. Aizaz son of Mohd. Zafar as his sub-tenant without the consent of the plaintiff of a portion of the shop in question and realizing a handsome amount of Rs. 50/- per day as rent from him and as such the defendants have sub-let a portion of the shop to the said Aizaz Ahmad who is carrying on the business of watch repairs thereon."
26. Obviously the averments were denied by respondents-tenants in his written statement vide para 3 thereof. In para 18 of the written statement under additional pleas the petitioner-tenant pleaded that Mohd. Aizaz is working for repair of music system, electrical goods and watches and is not a sub-tenant.
27. PW-2, Vineet Kumar son of Smt. Ram Murti Devi, the plaintiff-respondent and landlord deposed that the factum of sub-letting was not mentioned in the notice determining tenancy issued to tenant and therein also, there is not even a whisper, that whole or part of shop in question, possession was given exclusively to Mohd. Aizaz, and, the tenant had no control or possession of shop in dispute. On the contrary, he has said that inside the shop there is a showroom and T.V. etc. are kept therein but outside the shop there is a repairing counter on which Aizaz Ahmad is sitting. On page 86 of paper-book the statement of PW-2 is read as under:
^^;g lgh gS fd bu QksVks esa vUnj 'kks:e esa Vh0oh0 oxSjk j[ks gS o ckgj dkmUVj ij fji;sfjax dkmUVj j[kk gqvk gS] jsi;sfjax dkmUVj ij ,tkt vgen cSBk gqvk gS] ckdh yksxks dks ugh igpkurk] ;g QksVks ,d cts ds vkl ikl dh gSA^^ "It is true that this photograph shows that TV etc. are kept inside the showroom; repairing counter is placed outside it and Ezaz Ahmad is seated at the repairing counter. I do not recognise the rest of people. This photograph is of around 1:00 o'clock." (English translation by the Court)
28. Then further in his cross-examination he admits that shop in dispute is in possession of defendant-tenant and it reads as under:
^^tkfye flag bl ckr ds xokg gS fd fookfnr nqdku izfroknh ds dCts esa gS] xokg izrki flag Hkh bl ckr ds xokg gS fd nqdku izfroknh ds dCts esa gSA^^ "Jalim Singh is a witness to the fact that the disputed shop is in possession of the defendant. Witness Pratap Singh is also a witness to the fact that the shop is in possession of the defendant." (English translation by the Court)
29. The Trial Court has nowhere recorded any finding that Mohd. Aizaz had the exclusive control or possession, wholly or partly, on tenanted accommodation but had drawn a mere presumption on his sub-tenancy on account of his presence, something, which has been castigated in Jagdish Prasad Vs. Smt. Angoori Devi (supra) wherein the Court in para 2 of the judgment said:
"We must indicate that the approach of the trial Judge was totally vitiated. Merely from the presence of a person other than the tenant in the shop sub-letting cannot be presumed. There may be several situations in which a person other than the tenant may be found sitting in the shop; for instance, he may be a customer waiting to be attended to; a distributor who may have come to deliver his goods at the shop for sale; a creditor coming for collection of the dues; a friend visiting for some social purpose or the like."
30. Here the court below has completely misled itself by presuming sub-tenancy on account of the presence of Mohd. Aizaz on the outer repairing counter of shop without recording any finding whatsoever that he was given exclusive possession of the tenanted premises wholly or partly. The decisions of Apex Court have not only been distinguished illegally but show virtually a non-application of mind on the part of court below. It appears that either the judgments have not been read properly by court below to find out the exposition of law laid down therein or the court below was proceeding with an objective to make out case in favour of landlord, so as to oust the tenant from accommodation in question. The approach of court below does not appear to be quite independent and fair. An error of law may occur but where a decision of Apex Court, which are law of land, if are sought to be held inapplicable without giving any valid or cogent reason therefor, and without referring as to what precedent has been laid down therein, is not a healthy practice and smacks of something, obviously which is not bona fide approach.
31. In Delhi Stationers and Printers Vs. Rajendra Kumar (supra) also the Court clearly said that mere occupation is not sufficient to infer either sub-tenancy or parting of possession.
32. In Dipak Banerjee (supra) the Court has observed that there has to be pleading and evidence to demonstrate that sub-tenant is in exclusive possession of the part of premises and the tenant had retained no control over that part of premises. If no Court has given any finding on this aspect at all, it shall result as if one of the essential ingredient necessary for a finding to make out a case of sub-tenancy, has not been proved.
33. It is true that question of possession and retention of control are questions of fact but where the findings have been arrived at without finding the basic facts, even if there is a concurrent decision by courts below, the same would amount to a material illegality, patent error of law apparent on the fact of record and such judgments of courts below cannot sustain as that would result in grave injustice to other side.
34. In view of above discussion, in my view, the impugned judgment of court below cannot sustain. The revision is allowed. The impugned judgment dated 21.02.2013 is hereby set aside.
35. No costs.
Order Date :- 08.04.2013 AK