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Parubai Vithal Kamble and Ors. Vs. Girdharilal Agarwal - (High Court of Bombay) (01 Feb 2019)

Payment of rent or monetary consideration are not required to be proved by affirmative evidence as same may have been made secretly in case of sub-tenancy



The Plaintiff instituted suit against the Defendants for recovery of possession, alleging that Defendant No. 1 remained in arrears of rent and other charges from 1st June, 1980. The Plaintiff issued demand notice terminating tenancy of Defendant No. 1 and called upon Defendant No. 1 to comply with the demands made therein. Defendant No. 1 gave reply on 29th January, 1989 and denied the contents of the notice. The Plaintiff instituted the suit alleging that, Defendant No. 1 is a defaulter; Defendant No. 1 had sublet the suit premises to Defendants No. 2 and 3; Defendant No. 1 has made permanent construction in front of the suit premises; Defendant No. 1 has been causing nuisance and annoyance to the Plaintiff and other occupiers and that the Plaintiff requires the suit premises reasonably and bona fide.

The Plaintiff had instituted the suit invoking grounds under Section 12, 13 (1) (e), 13 (1) (b), 13 (1) (c) and 13 (1) (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. By order, the learned trial Judge dismissed the suit. Aggrieved by that decision, the Plaintiff preferred appeal. By the impugned order, the learned District Judge has allowed the appeal. Question that requires to be examined is whether the Plaintiff has established that, Defendant No. 1 has unlawfully sublet the suit premises to Defendants No. 2 and 3.

In the case of Shama Prashant Raje Vs. Ganpatrao, it was held that two ingredients namely parting with possession and monetary consideration thereof have to be established. The Apex Court also referred decision of Bharat Sales Ltd. Vs. LIC of India, where it was observed that subletting comes into existence when the tenant gives possession of the tenanted accommodation, wholly or in part and puts another person in exclusive possession thereof. In the case of Joginder Singh Sodhi Vs. Amar Kaur, the Apex Court also observed that, 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 sublet.

A perusal of the impugned order does not show that the learned District Judge recorded any finding as regards satisfaction of one of the ingredients of unlawful subletting. Before passing decree on the ground of subletting, it is necessary to record a finding to the effect that, third party was found to be in exclusive possession of the rented premises. In the present case, no such finding is recorded by the learned District Judge. In view thereof, the impugned order cannot be sustained and as such is liable to be set aside. The appeal will have to be restored to the file of the learned District Judge. The learned District Judge will consider the evidence on record and record finding on the question of unlawful subletting keeping in mind the principles laid down in the above case. The impugned order is set aside. Civil Appeal is restored to the file of the learned District Judge. Petition allowed.

Relevant : Shama Prashant Raje Vs. Ganpatrao, MANU/SC/0609/2000, Bharat Sales Ltd. Vs. LIC of India, Joginder Singh Sodhi Vs. Amar Kaur, MANU/SC/0874/2004


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