Punjab-Haryana High Court
Krishan Kumar S/O Jhangi Ram Arora vs Nathu Ram Sanghi S/0 Hari Shankar Sanghi ... on 29 January, 2013
Author: K.Kannan
Bench: K.Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 643 of 2013(O&M)
Date of decision: 29.01.2013
Krishan Kumar s/o Jhangi Ram Arora
........ Petitioner
versus
Nathu Ram Sanghi s/0 Hari Shankar Sanghi and others
........ Respondents
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. Aman Bahri, Advocate
for the petitioner.
K.Kannan,J.(Oral)
The revision petition is at the instance of a person against whom there is a finding rendered that he has sub let the premises and made himself liable for ejectment. The sub tenant was also made a party and against the order of a ejectment made by the rent controller, it appears that there were three appeals (1) by the tenant claiming that there was no sub tenancy, (2) by the sub tenant contending that he was not really a sub tenant but a direct tenant under the landlord. He tried to explain his possession by the fact that his father was a lawyer and he could not take the lease deed himself directly for running a business and therefore, took it in the name of the tenant, who was the uncle of the sub tenant. (3) The landlord himself had filed an appeal complaining of short tender. All the three appeals were dismissed.
Civil Revision No. 643 of 2013(O&M) -2-
Learned counsel appearing on behalf of tenant would contend that an actionable sub tenancy which can give rise to a right of ejectment cannot be there without proof of the fact that there had been a complete loss of possession either in full or in part to a sub tenant and such sub tenancy must be for consideration.
Learned counsel would refer to a judgment of the Hon'ble Supreme Court in a case titled as "Celina Coelho Pereira (Ms) And others vs. Ulhas Mahabaleshwar Kholkar and others" (2010) 1 SCC 217 in support of the proposition advanced by him. It is held that without proof of consideration for sub letting, the landlord cannot obtain a possession. I find, the entire argument is built on shallow evidence. The landlord's petition for ejectment was literally undefended, so far as, present petitioner is concerned. His defence was struck off and he was not allowed to enter the fray by putting in his written pleading. To that extent all that a tenant could urge was that the landlord had not established what he was contending for and he cannot be heard on any defence which was not brought through any pleadings. In this case, the issue will have to be considered from the light, what was argued on behalf of the sub tenant. The sub tenant actually pleaded for right of exclusive possession but contending at the same time that the lease in favour of the tenant itself was a contrivance secured by the sub-tenant that he could not obtain tenancy directly in his own name for a business purpose on account of his being a practising lawyer. To this extent, therefore, what stands proved is that a person other than the tenant was in Civil Revision No. 643 of 2013(O&M) -3- exclusive possession of the property.
I have already observed that tenant himself had not been permitted to file his pleadings and therefore, the pleadings brought on record by the sub tenant would only point out to the fact that the possession of a person other than the tenant. A sub tenancy at all times is a secret affair. Passing of consideration for a transfer of interest through sub letting must be a matter of inference from the stated facts. If the landlord had given the property to the tenant and admitted situation brings out the fact that a person other than a tenant was in possession, then if such person who is in possession is not an agent or worker or a person associated with the tenant in the business as a partner then it must be taken that such possession was by means of a transfer which was not accorded with the written consent of the land lord. I would therefore, raise a presumption that the person who is in possession of the property without any authority from the landlord must be taken as a person who was unauthorised and if there was a finding that there had been a sub letting, I have no reason to hold that actual passing of consideration from the tenant to sub tenancy had not been established. It is only a contrived story of the sub-tenant which is most artificial. There could have been no impediment for taking lease directly in favour of his son himself, if that was the intention. Again, it has to be noticed that the person who is before this Court must be shown to be in some way a person aggrieved by the decision. He has literally washed his own responsibility in the case by not filing a statement in time and allowed Civil Revision No. 643 of 2013(O&M) -4 his defence to be struck off. He is again not a person who claims in exclusive possession but is speaking more for sub tenant than for himself. The sub tenant can protect himself if he is contending for a position that he is a direct tenant under the land lord. He would require no props at the instance of the revision petitioner. The petitioner cannot also therefore be seen to be a aggrieved person to assail the correctness of the decision of the rent controller. The decision of the courts below is affirmed and the revision petition is dismissed.
[K.KANNAN] th 29 January, 2013 JUDGE Shivani Kaushik