Sanjay Karol JUDGMENT
Sanjay Karol, J.
1. The short point, which arises for consideration in the present Revision Petition, is as to whether the landlady has made out a case for ejectment, on the ground of sub-letting or not. In effect, what is the true meaning and scope of the terms "sub-letting" requires to be interpreted.
2. Certain facts are not in dispute. The demised premises, i.e. Shop No. 12/42, situate in Ward No. 8, Doonga Bazar, Kangra, was let out to Kishori Lal (now dead and represented through legal representatives) in the year 1994. Rent Note (Ex. PW-3/A) is on record.
3. The Act specifies several grounds on which a tenant can be evicted. For ready reference Section 14(2) of the Act is reproduced as under:-
"14. Eviction of tenants.
(1). ... ...
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied-
(i) ..........
(ii) that the tenant has after the commencement of this Act without the written consent of the landlord -
(a) transferred his rights under the lease or sublet the entire building or rented land or any portion thereof, or
(b) used the building or rented land for a purpose other than that for which it was leased; or
... ...
the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land ... ..."
4. The landlady filed a petition for ejectment on two grounds: (a) successors-in-interest of the original tenant having sub-let the premises to Padam Chand (respondent No. 2, herein), and (b) the premises used for a purpose other than the one for which it was let out.
5. The Rent Controller, in terms of order dated 19.11.1999, passed in Rent Petition No. 7 of 1996, titled as Smt. Urbashi v. Smt. Shakuntla Devi and others, allowed the petition, directing ejectment of the tenant on both the counts.
6. In the tenants' appeal, the Appellate Authority, vide judgment dated 28.3.2007, passed in Rent Civil Misc. Appeal No. 1/K/2000, titled as Smt. Shakuntla & others versus Smt. Urbashi (now deceased), through LRs, reversed such findings of fact on both the counts, and dismissed the petition, so filed by the landlady.
7. The scope of interference in a petition, filed under sub-section (5) of Section 24 of the Act, is now well settled. This Court in Civil Revision No. 154 of 2004, titled as Yog Raj Sood v. Smt. Sunita Kaushal & another, decided on 1.6.2016, has observed as under:
"28. For the purpose of convenience and ready reference Sub-section (5) of Section 24 of the Act is extracted as under:-
"Vesting of Appellate Authority on officers by the State Government.
Section 24 ... ... ... ...
(5) The High Court may, at any time, on the application of the aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceeding and may pass such order in relation thereto as it may deem fit."
[Emphasis supplied]
29. A Full Bench of this court in Vinod alias Raja v. Smt. Joginder Kaur, 2012 (3) Him. L. R. (FB) 1401 has held the right of appeal to be a statutory right, not to be circumscribed by the delegatee/State Government.
30. The order of the authority attaches finality not to be called in question in any Court of law, except by the High Court in exercise of its revisional jurisdiction which can be either on an application filed by an aggrieved party or suo motu by the Court. The court can call for and examine the records for "satisfying itself" about the "legality and propriety" of the "order" or the "proceedings". The High Court may pass orders as it may "deem fit".
31. Now what is the scope of such revisional jurisdiction and the extent of the power which the court can exercise is now well settled by a five-Judge Bench of the apex Court reported in Hindustan Petroleum Corporation Limited v. Dilbahar Singh, MANU/SC/0738/2014 : (2014) 9 SCC 78. The findings can be summarized as under:
(i) The term 'propriety' would imply something which is legal and proper.
(ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority.
(iii) Such power cannot be exercised as the cloak of an appeal in disguise.
(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.
(v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagawal, MANU/SC/0396/1975 : (1975) 2 SCC 246.
(vi) The meaning of the expression "legality and propriety" so explained in Ram Dass v. Ishwar Chander, MANU/SC/0399/1988 : (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be "according to law".
(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below.
(viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may have a different view thereupon.
(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.
(x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal.
(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.
(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence.
32. The Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T.N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the apex Court in Rukmini Amma Saradamma v. Kallyani Sulochana, MANU/SC/0262/1993 : (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. Finally the Court answered the reference by making the following observations:-
"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
[Emphasis supplied]
8. Facts need to be appreciated in the aforesaid backdrop.
9. Mr. R.K. Gautam, learned Senior Counsel appearing for the landlady, fairly states that on the issue of change of user, findings returned by the lower Appellate Authority are just, fair, proper and borne out from the record.
10. Significantly, Rent Note (Ex. PW-3/A) did not restrict use of premises for a purpose other than the one for which it is now being put to use. As such, change of any business activity, so carried out in the shop, in the absence of any stipulation to the contrary, does not, in any manner, entitle the landlady for ejectment of a tenant.
11. Broadly speaking, a building or a part thereof can be let out for three purposes viz. (i) Residential; (ii) Business; and (iii) Manufacturing.
12. Section 108 of the Transfer of Property Act, 1882 prohibits the lessee to use the tenanted premises for a purpose other than the one for which it was leased. Normally, if the dominant purpose for which a building is let out is maintained, then a tenant may not be liable to be evicted in the absence of any covenant in the contract between the parties, prohibiting a user different from the one mentioned in the lease deed and the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises. But if the building is let out for residential or business purpose and the tenants starts manufacturing activity or vice a versa, then it would amount to change of user subject to the provisions of the Act.
13. What is the meaning of the expression "used the building or rented land for a purpose other than that for which it was leased" had arisen for consideration before various Courts. Generally it is held that mere change of user from one commercial activity to another, in itself, is no ground for claiming ejectment unless and until injury to the property and interest of the landlord is proved. [Civil Revision No. 54 of 2012, titled as Sain Ram Jhingta v. Surinder Singh, decided on 9th October, 2015 by this Court and Hari Rao v. N. Govindachari & others, MANU/SC/0565/2005 : (2005) 7 SCC 643].
14. This Court in Shiv Ram & another v. Sheela Devi, MANU/HP/0010/1993 : AIR 1993 H.P. 49 has held that:-
"(7) On the question whether such a change of user is incidental or allied to the business or that it was only a small change in the user and would not be actionable, reliance is placed upon two judgments of the Supreme Court in Mohan Lal v. Jai Bhagwan, MANU/SC/0285/1988 : AIR, 1988 SC 1034 and Gurdial Batra v. Raj Kumar Jain (1983) 3 SCC 441 (sic).
(8) Section 14(2)(ii)(b) of the Act enumerates the grounds on which eviction of petitioner No. 1 has been sought and ordered, namely, 'use of the building or rented land for a purpose other than that for which it was leased'.
... ...
(11) The ratio of the aforementioned two judgments of the apex court in Mohan Lal's and Gurdial Batra's cases (supra) appears to be that carrying of a business other than the one for which the premises were let out when such a business is an allied business would not amount to change of user. However, a small change in the user in the business, which is not allied to the business for which it was let out, would also not amount to change of user unless there is impairment to the utility or likelihood of damage being caused to the building and business can conveniently be carried on without creating any nuisance."
15. The rent control legislation is enacted in the larger interest of the society as a whole and it is not intended to confer any disproportionately larger benefit on the tenant to a greater disadvantage of the landlord. But it is also a beneficial piece of legislation recognizing reasonable protection to the tenant as one of the objects. While construing a provision of law imposing a liability for eviction, like Section 14(2)(ii)(b) of the Act, one must see whether there has been such a change of user of the premises as to make it alien to the purpose for which the building was let.
16. A Coordinate Bench of this Court in Rajinder Kumar Sharma v. Smt. Kanta Kumari, Latest HLJ 2007 (HP) 73 has held that "13. Similarly, in Mohan Lal v. Jai Bhagwan [MANU/SC/0285/1988 : 1988 (2) SCC 474] citing the observations of Lord Diplock about the legislative intendment, their Lordships clearly held that unless any mischief or detriment or an impairment is caused to the shop in question, the change of user by itself from one commercial activity to another commercial activity cannot be a ground for eviction of the tenant. Culling the aforesaid ratio in the aforesaid two judgments and applying the same to our case, I have no hesitation in holding that there is a clear nexus between the concept of change of user (provided the activity remains either commercial or business, as the case may be) and any injury or impairment caused to the property or any prejudice caused or likely to be caused to the landlord because such a nexus alone can be made the basis of the eviction of the tenant. Otherwise in ordinary prudence and in normal circumstances merely because a tenant changes his commercial activity from one business to another for any reason, this should not be by itself a ground for eviction. It is very commonly understood in the mercantile world that even though a tenant may have obtained a shop on lease for a particular and specified commercial activity, either because of the reason of his failure in that activity or changes in the economic scenario, he may have to put that commercial activity to an end and to earn his livelihood by starting another commercial activity in the same shop. After all, a businessman cannot be compelled to carry on with a particular commercial activity even if he feels it to be non-viable, non-manageable or non-profitable. Every businessman has a right to carry on a business of his choice. Merely because for the reasons best suited to him he undertakes a change in commercial activity, this by itself should not be a ground of his eviction from the shop. As noticed above, the change of user has to be clearly linked, and inseparably coupled with, an element of injury or impairment of the shop or causing any prejudice or having the potential of prejudice, to the landlord."
17. The apex Court in Jagdish Lal v. Parma Nand, MANU/SC/0198/2000 : (2000) 5 SCC 44 has observed that:-
"18. On a consideration of these decisions, it comes out that where the new business started by the tenant in the premises let out to him was an allied business or a business which was ancillary to the main business, it would not amount to change of user. It is true that where a premises is let out for commercial purposes, carrying on of a new business activity therein would not change the nature of the building and it would still remain a commercial building. But that is not enough. Having regard to the provisions of the Act and the intendment of the legislature in providing that the tenant would not use the premises for a purpose other than that for which it was let out, the new business should either have some linkage with the original business, which under the agreement of lease the tenant was permitted to carry on, or it should be an allied business or ancillary to that business. Where local laws provide a specific prohibition in respect of the use of the premises under the rent legislation and that provision has been interpreted in a particular manner by the High Court consistently, it would not be proper to disturb the course of decisions by interpreting that provision differently."
18. In the very same decision, finding the tenant to have reverted to his original business, Court only in exercise of its power under Article 136 of the Constitution of India - to meet the ends of justice - allowed the tenant to continue and occupy the premises on an enhanced rent. The Court noticed the observations made by the Punjab and Haryana High Court with respect to the provisions which are pari materia with the Act in question and found that the change of business from general merchant to a tea stall; dry fruits and soda water to selling pakoras and general provision store to selling stones and marble chips to be change of user making the tenant liable for ejectment.
19. This takes the Court to the main issue of subletting. Has the tenant really sublet the shop to respondent Padam Chand.
20. The concept of sub-letting during the pre-independence period stands discussed in various judgments.
21. Calcutta High Court in 1900 in one of its judgments Peary Mohun Mookherjee v. Badul Chandra Bagdi and others, MANU/WB/0125/1900 : ILR (1901) 28 CL. 205, clearly taken the view that even if under any law, the right of a third-party was protected, even there, that right of the third party should have been legal and valid. Sub-letting without and against the will of the landlord would be considered a nullity.
"I am of opinion that this contention is sound. It is true that Sub-section 1 of Section 22 concludes with these words: "Nothing in this subsection shall prejudicially affect the rights of any third party;" but that can only mean rights such as are valid. Here the right, which, it is contended, was protected by that provision, is expressly declared by Section 85 of the Act to be invalid as against the landlord. Therefore we must hold that there was no right in the sub-lessee as such, which could have subsisted, and which can stand in the way of the landlord s recovering khas possession. The necessity of following the procedure prescribed by Section 167 of the Bengal Tenancy Act for annulling an incumbrance arises only where the incumbrance is a subsisting one, and but for the annulment which that section contemplates by the purchaser at a sale for arrears of rent, would be valid. Here the sub-lease which would otherwise have come within the definition of an incumbrance, was invalid from the beginning as against the landlord; and for the landlord it was not necessary to annul that which was never operative against him. If a third party had purchased the right of occupancy at the sale for arrears of rent, it would have been necessary for such third party to follow the procedure prescribed by Section 167 of the Tenancy Act. I am therefore of opinion that the decision appealed against must be reversed."
22. The Privy Council in their judgment Surisetti Butchayya and another v. Sri Rajah Parthasarthy Appa Row Bahadur Zamindar Garu and another, MANU/PR/0031/1921 : AIR 1922 PC 243, were of the view that it would be quite opposed to the policy to confer on middlemen who sublet to occupying and cultivating tenants, rights and privileges at all resembling those conferred on occupying and cultivating tenants, rights and privileges at all resembling those conferred on occupying cultivators, and, indeed, would result in depriving the latter call of the benefits intended to be conferred upon them.
23. The decisions in judgments supra make it clear that any third party interference which is not legal and valid; and without the consent of the landlord is considered to be bad in law, which is the exact case of the petitioner in the present matter.
24. Lahore High Court has defined the term "tenants" in its judgment Secretary of State v. Bahadur Chand and others, MANU/LA/0049/1931 : AIR 1932 Lah 67, as under:
"The defendants' contention was that they were not "tenants" within the meaning of that term as denned in the Punjab Tenancy Act. "Tenant" is defined in the Punjab Tenancy Act as follows:
Tenant means a person who holds land under another person, and is or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include:
(a) an inferior landowner; or (b) a mortgagee of the rights of a landowner or; (c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue of a sum recoverable as such an arrear; or (d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it."
25. Even in the post independence era, the position, more or less, continued to remain as such.
26. In the case of Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh, MANU/SC/0333/1967 : AIR 1968 SC 933, the Hon'ble Apex Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. Further, if the landlord prima facie establishes the third party to be in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. (Also: Krishnawati v. Hans Ran, MANU/SC/0420/1973 : (1974) 1 SCC 289).
27. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958, providing for eviction on the ground of subletting, the Hon'ble Supreme Court in the case of Jagan Nath (Deceased) through LRs v. Chander Bhan and others, MANU/SC/0201/1988 : (1988) 3 SCC 57, reiterated similar position.
28. The question, whether the tenant has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without permission of the landlord within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, came up for consideration in Gopal Saran v. Satyanarayana, MANU/SC/0195/1989 : (1989) 3 SCC 56. The Court held:
"Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party. In this connection, reference may be made to the decision of this Court in Shalimar Tar Products Ltd. v. H>C Sharma, MANU/SC/0785/1987 : (1988) 1 SCC 70, wherein it was held that to constitute a subletting, there must be a parting of legal possession, i.e. possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact."
The Court also reiterated that to prove sub-tenancy, two ingredients are required to be established, firstly, the tenant must have exclusive right of possession or interests in the premises or part of the premises in question and secondly, the right must be in lieu of payment of some compensation or rent.
29. In the case of G.K. Bhatnagar (Dead) by LRs v. Abdul Alim, MANU/SC/0500/2002 : (2002) 9 SCC 516, the apex Court held:
"A conjoint reading of these provisions shows that on and after 9th June, 1952, subletting, assigning or otherwise parting with the possession of the whole or any part of the tenancy premises, without obtaining the consent in writing of the landlord, is not permitted and if done, the same provides a ground for eviction of the tenant by the landlord However, inducting a partner in his business or profession by the tenant is permitted so long as such partnership is genuine If the purpose of such partnership may ostensibly be to carry on the business or profession in partnership, but the real purpose be sub-letting of the premises to such other person who is inducted ostensibly as a partner, then the same shall be deemed to be an act of sub-letting attracting the applicability of clause (b) of sub-section (1) of section 14 of the Act."
30. A Three-Judge Bench of the Hon'ble Apex Court in Parvinder Singh v. Renu Gautam and others, MANU/SC/0384/2004 : (2004) 4 SCC 794, commented upon the device adopted by the tenants, many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The Court made the following observations:
"The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. Once such ground, most common in all the legislations, is subletting or parting with possession of the tenancy premises by the tenant. Rent Control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant."
"A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against subletting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases where in the tenant sublets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction................"
31. In yet another decision, a Three-Judge Bench of the apex Court in Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, MANU/SC/0671/2004 : (2005) 1 SCC 481, while considering its earlier decisions, while dealing with a matter relating to subletting of premises within the meaning of Section 21(1)(f) of Karnataka Rent Control Act, 1961, observed as under:
"The term 'sub-let' is not defined in the Act - new or old. However, the definition of 'lease' can be adopted mutatis mutandis for defining 'sub-lease'. What is 'lease' between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner-landlord. A lease of immovable property as defined in Section 105 of the Transfer of Property Act, 1882 is a transfer of a right to enjoy such property made for a certain time for consideration of a price paid or promised. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sublease would imply parting with by the tenant of a right to enjoy such property in favour of his sub-tenant. Different types of phraseology are employed by different State Legislatures making provision for eviction on the ground of sub-letting. Under Section 21(1)(f) of the Old Act, the phraseology employed is quite wide. It embraces within its scope sub-letting of the whole or part of the premises as also assignment or transfer in any other manner of the lessee's interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However, still, the Rent Control Legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefore having been made out to the satisfaction of the Court or the Controller the burden of proving the availability of the ground is cast on the landlord, i.e. the one who seeks eviction........"
32. Thus, in the case of sub-letting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged sub-tenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. As presumption of sub-letting may then be raised and would amount to proof unless rebutted.
33. In Murlidhar v. Chuni Lal, 1970 Ren CJ 922, the apex Court was dealing with a case where a shop was let out to a firm of the name of Chuni Lal Gherulal. The firm consisted of three partners, namely, Chuni Lal, Gherulal and Meghraj. This partnership closed and a new firm by the name of Meghraj Bansidhar commenced its business with partners Meghraj and Bansidhar. The tenant firm was sought to be evicted on the ground that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm amounted to subletting. This Court discarded the contention as "entirely without substance" and held that a partnership firm is not a legal entity' the firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. The two firms, old and new, had a common partner, namely, Meghraj, who continued to be in possession and it was fallacious to contend that earlier he was in possession in the capacity of partner of the old firm and later as a partner of the new firm. The landlord, in order to succeed, has to prove it as a fact that there was a subletting by his tenant to another firm. As the premises continued to be in possession of one of the original tenants, Meghraj, then by a mere change in the constitution of the firm of which Meghraj continued to be a partner, an inference as to sub-letting could not be drawn in the absence of further evidence having been adduced to establish sub-letting.
34. In Helper Girdharbhai v. Saiyed Mohd. Mirasaheb Kadri, MANU/SC/0381/1987 : (1987) 3 SCC 538, the tenant had entered into partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a partner as a tenant, the same would not amount to subletting leading to forfeiture of the tenancy; for there cannot be a sub-letting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this court, on finding out who is in legal possession of the premises. So long as legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting.
35. In Parvinder Singh (supra), the apex Court, devised the test in these terms:
".........If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant."
36. In Vaishakhi Ram and others v. Sanjeev Kumar Bhatiani, MANU/SC/7197/2008 : (2008) 14 SCC 356, the apex Court, in a case of subletting under Section 14(1)(b) of Delhi Rent Control Act, held:
"A plain reading of this provision would show that if a tenant has sublet or assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord, he would be liable to be evicted from the said premises. That is to say, the following ingredients must be satisfied before an order of eviction can be passed on the ground of subletting: -
(1) The tenant has sublet or assigned or parted with the possession of the whole or any part of the premises;
(2) Such subletting or assigning or parting with the possession has been done without obtaining the consent in writing of the landlord."
"It is well settled that the burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting."
37. In Nirmal Kanta (Dead) through LRs v. Ashok Kumar and another, MANU/SC/7383/2008 : (2008) 7 SCC 722, the Court held thus:
"What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party/stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a sub-tenancy and/or the allegation of subletting stands established."
38. In support of findings returned by the lower Appellate Court, Mr. Bhupinder Gupta, learned Senior Advocate, invites attention of this Court to a decision rendered by the apex Court in Kala and another versus Madho Parshad Vaidya, MANU/SC/0571/1998 : (1998) 6 SCC 573, wherein it is held that burden of proof, of parting with the possession in favour of the third party, lies on the landlord and only after initial discharge thereof, onus would shift upon the tenant, explaining how, when and why possession came to be parted. The apex Court had an occasion to deal with identical facts, wherein the person to whom the premises allegedly came to be sublet, was only assisting the original tenant, in managing the affairs in the shop.
39. The aforesaid principles are applied to the instant facts.
40. It is an admitted fact that original tenant Kishori Lal died and as such tenancy devolved upon his legal heirs, i.e. wife Smt. Shakuntla Devi and three minor children, namely Rajesh, Amit and Ms Puja Devi.
41. For establishing the factum of sub-letting, learned Senior Counsel invites attention of this Court to the testimony of Padam Chand (RW-2), the person to whom, the shop allegedly stands sub-let.
42. Careful perusal of testimony of Padam Chand reveals that since inception of tenancy, he was working as an employee. However, with the death of the original tenant, for the reason that legal heirs were not in a position to manage the shop (being wife and minor children of the deceased tenant), he helped them run the business on profit sharing basis. This was only till such time, children attained majority, where after, they themselves and independently conducted the business. For all times, possession continued to remain with the tenants.
43. Further this witness has set up his independent business in a separate shop, adjoining to the tenanted premises. It is a matter of record that the original business of Radio and TV mechanic came to be changed to that of Halwai and thereafter that of a Gold Smith.
44. Hence, ingredients necessary to constitute element of subletting remain unestablished on record. Apart from the ocular evidence, there is nothing else to establish the plea of subletting.
45. Hence, for the aforesaid reasons, the petition only merits rejection, for it cannot be said that the impugned judgment dated 28.3.2007, passed by the lower Appellate Authority in Rent Civil Misc. Appeal No. 1/K/2000, titled as Smt. Shakuntla & others versus Smt. Urbashi (now deceased), through LRs, is perverse or illegal, warranting interference by this Court.
46. Hence, the petition, without any merit, is dismissed. Pending application(s), if any, also stand disposed of.
Assistance rendered by Mr. Gaurav Gautam, Advocate, a new entrant at the Bar, is highly appreciable.
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