Gurmit Singh Bindra vs Dwarka Tourist Hotel Pvt. Ltd., A ...
2003 Latest Caselaw 219 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

Heard the learned Advocates for the parties. Perused the records. Rule. By consent, the rule is made returnable forthwith.

1. The petitioner challenges the order dated 12-8-2002 passed by the lower Appellate Court dismissing the appeal filed by the petitioner/defendant against the judgment and order of the trial court dated 27-3-1992 whereby the trial court had decreed the suit for eviction of the petitioner on two grounds, namely, need of the suit premises for personal occupation of the respondent/plaintiff, and secondly on the ground of sub-letting of the premises by the petitioner without the consent of the respondent.

2. The impugned order disclosing concurrent findings on the point of bona fide need of the premises by the respondent and comparative hardship to the respondent in case the relief is not granted as well as on the point of sub-letting of the premises by the petitioner, is sought to be challenged on various grounds, while placing reliance in the decisions of the Apex Court in the matter of M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and Ors., , Dipak Banerjee v.

Smt. Lilabati Chakraborty, and Bir Bajrang Kumar v. State of Bihar and Ors., reported in AIR 1987 SC 1345 and of the learned single Judge of this Court in Sharfunnisa w/o Abdul Karim v. Maruti Sakharama Kale, reported in 2001 (4) Mh. L.J. 772. The first ground of challenge is that the Court below erred in shifting the burden of proof in relation to illegal sub-letting upon the petitioner when the established law is that it is for the landlord to plead and prove the factum of sub-letting. In that connection, it was also submitted that the necessary ingredients of sub-letting, as has been laid down by the Apex Court in Dipak Banerjee's case (supra) having not been established and the Courts below having ignored the same, have acted illegally in ordering the eviction of the petitioner from the suit premises. Perusal of the judgments passed by the Courts below disclose that after analysing the evidence on record it has been held that there is a categorical admission on the part of the petitoner that one Shaikh Bilal was running business in the suit shop and in that connection he had occupied a platform or otta abutting the suit premises which is meant for the use of the person in possession of the premises. It was sought to be argued that the subject-matter of the suit was the suit shop, as described in the schedule to the plaint and the platform or otta was not described as forming part of the suit shop. The pleadings of the plaintiff clearly disclose that Shaikh Bilal was stated to be in occupation of the suit ship for sometime and on that count the petitioner was accused for having sub-let the premises and in the course of the evidence, there was a categorical admission on the part of the petitioner about Shaikh Bilal having been running the business in the suit ship and for that purpose he was occupying the platform or otta. The Courts below on analysis of the evidence have also arrived at the finding that the otta forms part of the suit shop and the use thereof was meant for the purpose of the person in possession of the shop. Apparently, part of the suit shop was in possession of Shaikh Bilal. That apart, once there was a clear admission on the part of the petitioner that Shaikh Bilal was running business in the suit shop, the burden was squarely upon the petitioner to establish that the occupation of the suit shop by Shaikh Bilal was not in the capacity as sub-tenant but as agent of the respondent/landlord. The initial burden as regards the possession having been transferred in favour of the third person for the purpose of running business in the suit shop having been established by other evidence, apart from there being clear admission to that effect on the part of the petitioner, it was for the petitioner to establish that there was no sub-letting, as was pleaded and establishing by the respondent/landlord. Being so, no fault can be found with the findings arrived by the Courts below on analysis of the evidence as regards the sub-letting.

3. The Apex Court in the matter of M/s. Shalimar Tar Products Ltd., (supra) has held that in order to constitute sub-letting there must be parting of the legal possession by the lessee. Parting of the legal possession means possession with the right to include and also right to exclude others. It has been further held therein that it is necessary for the tenant to obtain the consent of the landlord in writing to sub-let the premises. Apart from the fact that the decision was in relation to the provisions of the Delhi Rent Control Act, and particularly Section 14(1)(b) thereof r/w Section 16(2)(3), it is not demonstrated as to how the observations therein, based on the facts of the said case and considering the provisions of the Delhi Rent Control Act, would be relevant for the decision in the matter in hand. It is not the case of the petitioner, nor it can be, in view of the categorical admission on the part of the petitioner regarding the factum of running of business by Shaikh Bilal in the suit shop of that there was no parting of the possession by the petitioner inspite of the business therein having been run by Shaikh Bilal, nor it is the contention that there was written consent of the landlord in favour of the petitioner for such sub-letting. Being so, the decision relied upon is of no help in the matter in hand.

4. In Dipak Banerjee's case, it was held by the Apex Court 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. This decision was in relation to the provisions of the West Bengal Premises Tenancy Act, and more particularly Sections 13(1)(a) and 14 thereof. Neither any attempt is made to show as to how the provisions of the said sections are in pari materia with the section relating to sub-letting under the Act which is relevant for the decision in the matter, nor it is the case of the petitioner that the running of business by Shaikh Bilal, the fact which was admitted by the petitioner, was without any consideration to the petitioner. That apart, the lower Appellate Court in this regard has rightly referred to the decision of the Apex Court in M/s. Bharat Sales Ltd. v. Life Insurance Corporation of India, . The Apex Court therein has clearly ruled that "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 lumpsum 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. "Once the petitioner himself having admitted the running of business by Shaikh Bilal in the suit premises, which was primarily for the petitioner to plead and prove that the running of business by Shaikh Bilal was not for any consideration, and in the absence thereof nothing prevents the Court below from drawing inference about sub-letting of the premises by the petitioner in favour of Shaikh Bilal and therefore the said finding also cannot be found fault with. The decision relied upon by the petitioner can be of no help for interference in the impugned order in writ jurisdiction.

5. As regards the finding pertaining to bona fide need, at the outset, relaying upon the decision of the Apex Court in Bir Bajrang Kumar's case (supra), it was sought to be contended that there are two more petitions filed by the other tenants in relation to two different premises in the same complex and which are also subject-matter of the eviction proceedings initiated by the respondent along with the present proceedings and they have been admitted and therefore the present petition also ought to be admitted. In Bir Bajarang Kumar's case the Apex Court had ruled that "After going through the record of the case it appears that one of the cases involving an identical point has already been admitted by the High Court but another identical petition was dismissed by the same High Court." Considering the same, the Apex Court in the said decision had directed that "In these circumstances, we allow this appeal and set aside the order dismissing C.W.J.C. No. 163 of 1985. This appeal is remanded to the High Court to be heard along with C.W.J.C. No. 5728 of 1984 which is pending hearing." The order also discloses the main circumstances which were taken note of for the purpose of the said direction and which reads thus: "This, therefore, creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. "Apparently, the direction was to hear two matters together as there was a possibility of "two contradictory judgments being rendered in the same case by the High Court". On the basis of the ruling of the said decision of the Apex Court, it has no relevancy at all to the arguments advanced in the case in hand. The cases in which the writ petitions are admitted are relating to totally different issues though may be in relation to the premises in the same complex and may be therein also the eviction has been ordered on the ground of need of bona fide requirement. However, it is an admitted position that evidence in each case has been recorded separately and separate judgments are passed by the Courts below. The matters were heard separately even at the lower appellate stage. Under no circumstances, it can be said that the issues in the other two matters and which are stated to have been admitted relate to the same issue in the matter in hand. The case of the petitioner as regards the decision on the bona fide need of the premises granted in favour of the petitioner will have to be decided on the basis of the pleadings and the evidence led by the parties and cannot be decided on the basis of the pleadings and the evidence recorded in two other cases in respect of which the writ petitions have been admitted. Being so, the decision in Bir Bajrang Kumar's case is of no help to the petitioner to contend that merely because two other petitions of two other tenants in relation to two different premises have been admitted, that this petition should also be admitted, and be heard alongwith those petitions. Hence this contention is rejected.

6. As regards the findings of the Courts below on the point of bona fide requirement, it was sought to be contended that the respondent had approached the Court with the specific plea that the permit room and the non-vegetarian section in the respondent/landlord's hotel are at present located inside the campus of the entire properly and the location and the situation of the permit room and the non-vegetarian section is absolutely inconvenient from the point of view of the lodgers who come to stay in the hotel of the respondent and yet the Courts have not given any finding in that regard nor there is any evidence led by the respondent in support of the said case and the finding on the aspect of bona fide requirement has been given totally on a different count. The lower Appellate Court while dealing with this issue after considering the case of the respondent in para 3 of its judgment has proceeded to analyse the evidence on record from para 32 onwards. As it was considering the testimony of the architect Shri Mohan Lande, who had deposed on behalf of the respondent as well as of Sanjay Patil, Junior Engineer in the Nasik Municipal Corporation has also considered the documentary evidence placed on record and after taking into consideration all those materials has held that considering the scheme of expansion of the business of the respondent and the requirement pleaded by the respondent, the case of bona fide need of the premises has been made out. Similar is the finding of the trial Court. Whether the premises are bona fide required by the plaintiff/landlord or not essentially depends upon the evidence produced by the parties and the finding arrived at thereon and such finding is necessarily a finding of fact, the need being related to the facts in each case depending upon the evidence in that regard placed by the parties and being so, unless perversity in such finding is apparent, the question of interference in such finding in writ jurisdiction does not arise. Attempt was made to draw attention to the decision of the learned single Judge in Sharfunnisa's case (supra) and the reliance placed by the learned single Judge in the decisions of the Apex Court in the matter of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, reported in 1986 Mh. LJ 955 (SC) and Trimbak Gangadhar Telang and Anr. v. Ram Chandra Ganesh Bhide and Ors., .

The ratio of both the decisions of the Apex Court is to the effect that the High Court should not interfere with the findings arrived at by the Courts below or the Tribunal having jurisdiction to decide the issue raised before the Tribunal except where the finding is perverse or not based on any material evidence or has resulted in manifest injustice. In order to contend about manifest injustice on the point of comparative hardship, it was sought to be contended that during the pendency of the proceedings before the Court below the respondent had carried out extensive changes in the portion already in his possession and that has eclipsed the need of the suit premises being recovered by the respondent for the purpose of either extension or for the reason for which the possession thereof was sought to be acquired from the petitioner. To the specific query as to whether such subsequent events which can enure to the benefit of the tenant can defeat the claim of the landlord, the same having been incorporated by way of amendment to the written statement, attention was drawn to para 3 of the additional written statement dated 20-2-1989 filed by the petitioner, and specifically to para 3 thereto as referred to. However, para 3 thereto nowhere refers to any subsequent changes brought about by the respondent/landlord to the structure. It only speaks about various renovations having been carried out and new construction having been made, subsequent to the completion of the construction of the original building. That itself nowhere discloses that such changes or renovations were made during the pendency of the proceedings or the suit before the Courts below. The Apex Court in Om Prakash Gupta v. Ranbir B. Goyal, reported in 2002 AIR SCW 278 has specifically ruled that for the party seeking to take benefit of subsequent events, it is necessary for the party to amend the pleadings, incorporate such facts in the pleadings and thereupon to lead evidence. It was sought to be argued that the petitioner has already led evidence in that regard. Any evidence led beyond the scope of the pleadings need not be looked into and the law on that point is well-settled. Being so, the contention as regards the subsequent events have enured to the benefit of the petitioner to defeat the claim of the respondent is devoid of substance in the absence of any pleading to that effect in the written statement and if there is any evidence in that regard and it has been overlooked by the Courts below, the Court below cannot be blamed for the same and on that count there cannot be any interference in the impugned order in writ jurisdiction under Article 227 of the Constitution of India.

7. Apart from all the above facts, it is also to be noted that the eviction of the petitioner was sought for in terms of the provision of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The Apex Court in Laxmikant Revchand Bhowani and Anr. v. Pratapsing Mohansingh Paradeshi, deceased through his heirs and LRs, , has held that "The Act is a special legislation governing landlord-tenant relationship and disputes. The legislature has, in its wisdom, not provided second appeal or revision to the High Court. The object is to give finality to the decision of the appellate authority. The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes."

8. The Apex Court in M/s. India Pipe Fitting Co. v. Fakruddin M.A. Baker and Anr., has clearly held that powers under Article 227 of the Constitution of India is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous they may be. Similar is the case in Koyilerian Janaki and Ors. v. Rent Controller (Munsiff), Cannaore and Ors., , wherein it was ruled that the proceedings for eviction of tenant arising under a special Act governing the landlord and the tenant relationship do not provide for any second appeal or revision to the High Court. The purpose behind the same being to provide finaltiy to the order passed under the Rent Act, and the power under Article 227 of the Constitution of India is exercisable where it is found that grave error or injustice has been caused to the party. Undoubtedly, that was a case in relation to Rent Legislation in the State of Kerala. However, what is relevant to be noted is that like the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947, the said Act is also an Act dealing with the landlord-tenant relationship and disputes arising between such parties and in the absence of provision for a second appeal or revision to the High Court under the said Act, the question of exercising powers under Article 227 cannot arise unless the findings arrived at by the Court below are apparently perverse or there is patent injustice caused to the party. In the case in hand, as already observed above, the Courts below on detail analysis of the evidence on record having arrived at the concurrent findings, the question of interference therein in writ jurisdiction does not arise.

9. Added to this, the findings arrived at by the Courts below disclose that there is another shop under the name and style Gurukrupa Automobiles. Undoubtedly, the said shop is recorded in the name of the brother of the petitioner, namely Surender Singh, with effect from 24-11-1995, subsequent to the transfer of registration of the said shop from the father of the petitioner Jaswant Singh Bindra. The Courts below have observed that such transfer has taken place during the pendency of the suit. It has also been observed that the said business in the suit shop is a partnership business where the petitioner's wife is one of the partners. After taking into consideration all these facts, the Court below has arrived at the finding that no hardship will be caused to the petitioner on account of his eviction from the suit premises in comparison to the hardship which will be suffered to the respondent if the relief is refused.

10. In the circumstances, there being no case made out for interference, and hence the petition is dismissed. Rule is discharged with no order as to costs.

11. At this stage, on oral request by the learned Advocate for the petitioner, the execution of the e impugned decree of eviction shall remain suspended for a period of eight weeks from today subject to that the petitioner shall not part with the possession nor shall induct any third person therein nor shall create any third party interest in the suit premises and shall deliver the peaceful and vacant possession thereof to the respondent on or before the expiry of eight weeks from today.

All concerned to act on the ordinary copy of this order duly authenticated by the P.S./Sheristedar of this Court as true copy.