Kallu Prasad Alias Indra Prakash ... vs State Of U.P. And 3 Others
2018 Latest Caselaw 1387 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 30
 
Case :- MATTERS UNDER ARTICLE 227 No. - 4431 of 2018
 

 
Petitioner :- Kallu Prasad Alias Indra Prakash And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Surendra Nath Tiwari,Santosh Kumar Tiwari
 
Counsel for Respondent :- C.S.C.,Pradip Kumar Srivastava
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard learned counsel for the petitioners and Sri Pradip Kumar Srivastava, learned counsel appearing for the contesting respondents.

2. In view of the fresh report learned counsel for the petitioners prays that he may be permitted to correct the prayer clause.

3. Learned counsel appearing for the respondents has no objection to the same.

4. Prayer is allowed. He may do so during the course of the day.

5. Present petition has been filed for setting aside the order dated 30.5.2014 passed by J.S.C.C., Kanpur Nagar and the order dated 30.3.2018 passed by Additional District Judge, Kanpur Nagar.

6. Submission of learned counsel for the petitioners is that the findings of the court below on the issue of sub-letting are contrary to record and are not in accordance with law. The courts below have failed to apply their judicial mind regarding service of notice and the ex-parte Commissioner report has wrongly been relied on. Learned counsel for the petitioners has placed reliance on a judgment of this Court in the case of Ram Ujagar and another vs. Kailasha and others 2011 (2) ARC 611.

7. Per contra, learned counsel for the respondents has supported the impugned order by pointing out that the trial court had decided all the issued in favour of the landlord-respondent, however, the revisional court has reversed several findings and the issue of sub-tenancy was decided by both the courts below in favour of the landlord and as such no interference is warranted in the present case.

8. I have considered the rival submissions and have perused the record.

9. Six issues were framed by the trial court. Issue no. 1 was regarding relationship of landlord and tenant; issue no. 2 was regarding default in payment of rent; issue no. 3 was regarding new constructions over the property in question; issue no. 4 was regarding validity of the notice; issue no. 5 was as to whether sub-tenancy has been created or not. All the issues were decided in favour of the landlord. The revisional court reversed the finding on default by holding that the provisions of Section 20(4) of the Act of 13 of 1972 was not taken into consideration. It was further held that the material alteration was also not proved, however, it was found that the sub-tenancy was proved and therefore, the revision was dismissed.

10. Issue before this court is regarding correctness of the decision on the issue of sub-tenancy.

11. Before proceeding further it would be appropriate to take note of the legal position as summarized by Hon'ble Apex Court for dealing with the issue of sub-letting / sub-tenant / sub-tenancy in paragraph 25 of Celina Coelho Pereira (Ms) and others vs. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217, which is quoted as under:-

"25. The legal position that emerges from the aforesaid decisions can be summarised thus :

(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has (2008) 7 SCC 722 been done without the consent of the landlord and in lieu of compensation or rent.

(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form 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 in tenancy premises by the tenant in favour of a third person.

(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."

12. Trial court while considering issue no. 5 has clearly observed that the PW-1 plaintiff-Veermati had clearly stated the defendant has created sub-tenancy and on this issue no cross-examination was done by the defendants. DW-1, the sole witness, in his examination-in-chief has stated that he has not created any sub-tenancy. The Commissioner had gone to the spot and has given his report that he met Smt. Shashi Maurya, Smt. Puspa w/o Manoj Kumar and Ashok Kumar, who stated that they are in possession of one room each for which they are paying rent @ Rs. 550/- per month each to the defendant Kallu s/o Lalta Prasad. Thereafter, he met with Shiv Raj, who was is in possession of newly constructed rooms and stated that he is paying rent @ Rs. 700/- per month to the defendant. No objection was raised against this Commissioner report and DW-1 has also not stated in categorical terms that the Commissioner has not gone to the spot. He only pleaded ignorance regarding submission of Commissioner report. On the contrary, Commissioner report reflects that the Commissioner had met wife of the defendant. It was found that the Commissioner report was submitted on 23.12.2002 much prior to the statement of the witness and the trial court also found that the permission was not taken from the landlord. The aforesaid issue was decided against the tenant. Thus, the plaintiff has discharged its initial burden by pleading necessary facts in categorical terms, she has also made clear statement as PW-1 and that she was not cross-examined by the defendants and her case was sufficiently supported and proved by unrebutted Commissioner report on possession and consideration insofar as creation of sub-tenancy is concerned.

13. While considering the aforesaid issue the revisional court also found that the findings recorded by the lower revisional court do not suffer from any perversity or illegality and are based on the material and evidence on record.

14. Insofar as the ruling relied on by the learned counsel for the petitioner is concerned, I find that the Commissioner report was never objected to. The landlord has stated in categorical terms that the sub-tenancy has been created and several tenants have been shifted by the defendant. The record reflects that sub-tenants have been put in possession for valuable consideration.

15. I find that in the facts and circumstances of the case, the ruling relied on by the learned counsel for the petitioner is of no help to the petitioner.

16. Section 20(2)(e) of the Act of 13 of 1972 provides that a suit for eviction of tenant is maintainable on the ground that the tenant has sub-let in contravention of the provisions of Section 25 the whole or any part of the building. Section 25 in unambiguous terms provides that no tenant shall sub-let the building.

17. It is the settled law that once the ground of sub-tenancy is made out, it is not necessary to make out other grounds.

18. A reference may be made in this regard to a recent judgment of Hon'ble Apex Court in the case of Flora Elias Nahoum and others vs. Idrish Ali Laskar 2018 (1) ARC 495 (SC) and Bharat Sales Limited vs. Life Insurance Corporation of India 1998(3) SCC 1.

19. Paragraph 17, 44, 45, 46 and 47 of Flora Elias Nahoum (supra) are quoted as under:-

"17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.

44. In a case of sub-letting, if the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any third party?s induction in the tenanted premises, no case of sub-letting is made out against such tenant.

45. In other words, the sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlord's consent.

46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1, while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.

47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:

?4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession 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 over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the 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. 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 sub-let 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."

20. Apart from paragraph 4 of Bharat Sales Limited (supra) as quoted / relied on in Flora Elias Nahoum (supra) (as quoted above) it would be beneficial to note para 5 of Bharat Sales Limited (supra) also, which is also quoted as under:-

"5. In Rajbir Kaur vs. S. Chokesiri & Co. (1989) 1 SCC 19, it was held that it was not necessary for the landlord in every case to prove payment of consideration. It was laid down that if exclusive possession was established, it would not be impermissible for the Court to draw an inference that the transaction was entered into with the monetary consideration in mind. The Court further observed that transactions of subletting in the guise of licences are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be furnished direct evidence in every case. It will be noticed that in this case it was established as a fact that the tenant had parted with a part of the demised premises in favour of an ice-cream vendor who was in exclusive possession of that part of the premises and, therefore, the Court drew an inference that the transaction must have been entered into for monetary consideration. This decision has since been followed in many cases, as, for example, United Bank of India Vs. Cooks and Kelvey Properties (p) Ltd. (1994) 5 SCC 9, upon which, as we shall presently see, reliance has been placed by the petitioner also."

21. Therefore, if it is proved that possession has been delivered by the landlord and sub-tenant is in exclusive possession of the whole or part, as the case may be, of the premises, the court can draw inference that transaction must have been entered into for monetary consideration.

22. A reference may also be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited.

23. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.

24. At this stage, learned counsel for the petitioner prays that some time may be granted to vacate the premises.

25. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.1.2019.

(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;

(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;

(4) The tenant-petitioner shall pay damages @ Rs. 600/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;

(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;

(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;

(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.

(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.

26. There shall be no order as to costs.

Order Date :- 6.7.2018

Lalit Shukla