Life Insurance Corporation Of ... vs Bharat (Sales) Ltd.
1994 Latest Caselaw 644 Del

JUDGMENT

R.C. Lahoti, J.

(1) This is a second appeal preferred under Section 39 of Delhi Rent Control Act. The appeal has been preferred by the landlord- Life Insurance Corporation of India feeling aggrieved by the judgment dated 3.3.78 passed by Rent Control Tribunal, Delhi dismissing a suit for ejectment filed by the plaintiff/appellant, in reversal of the order of the Additional Rent Controller Delhi, which had directed the respondent to be ejected on the ground of his having unauthorisedly sub-let assigned or parted with possession of portions of the tenancy premises without consent in writing of the landlord/appellant.

(2) In the opinion of this Court, the disposal of appeal by the Learned Rent Control Tribunal has not been satisfactory and hence the case deserves to be remanded to the Tribunal for hearing and disposal afresh for the reasons to follow.

(3) The existence of landlord-tenant relationship between the parties is not disputed. The tenancy premises consist of a basement in premises No.6, Sunlight Building, 26-28, New Wing, Asaf Ali Road, New Delhi. Tenancy was created w.e.f. 21.8.60 by a registered lease deed. The rate of rent is Rs.650.00 per month. The landlord/appellant alleged the premises having been sub-let by the tenant/respondent to (i) M/s.Studio Rattan Batra, (ii) Dr. Jai Singh's Son & Co.(P) Ltd., (iii) State Bank of Bikaner and Jaipur and (iv) M/s-Atlas Pharma (P) Ltd., without written consent of the landlord. The tenant contested the case by pleading that there was no sub-letting or parting with possession.

(4) As already noticed, the Additional Rent Controller found the landlord/appellant entitled to eject the tenant/respondent on the ground available under Section 14(1)(b) of Delhi Rent Control Act. That finding has been reversed by the learned Tribunal.

(5) Two well settled propositions of law have been overlooked by the Tribunal. In M/s. Shalimar Tar Products Ltd.VS. H.C. Sharma and Others, . Their Lordships of the Supreme Court have held:-

"SECTIONS 14(1) proviso (b) and 16(2) and (3) of the Delhi Rent Control Act enjoin the tenant to obtain consent of the landlord in writing to the specific sub-letting. This requirement serves a public purpose i.e. to avoid dispute as to whether there was consent or not. The mere permission or acquiescence is not enough. There is no implied permission. Any other interpretation of the provisions will defeat the object of the statute and is, therefore, impermissible."

"TO constitute sub-letting there must be parting of the legal possession i.e. possession with the right to include and also right to exclude others. The questions whether such parting had taken place, whether there was any sub- letting and if so was-the same with the consent in writing of the landlord are essentially questions of fact."

Restating the law above said, their Lordships of Supreme Court in M/s. Bajaj Auto Limited VS. Behari Lal Kohli. 1989(2) Rcl 186 have held that the consent of the landlord relied upon by the tenant enabling the later to subject the tenancy premises must be in writing and that too to the specific subletting and any other interpretation of the provisions will defeat the object of the statute. Their Lordships have held that the consent in general terms would not be enough. It is also well settled that a mere acquiscence or implied consent would not suffice.

(6) The other principle of law well-established by a catena of decisions, which it is not necessary to refer, is that direct evidence can rarely be expected to prove sub-letting or parting with possession. The plaintiff landlord may rely on circumstances which may lead to an inference of the premises or part thereof having been sub-let or parted-with possession by the ten- ant. The initial onus of proving availability of such a ground lies on the landlord. The onus is discharged by the plaintiff having brought material on record prima facie leading to the inference above said. It is then for the tenant to bring on record the facts within his exclusive knowledge as would rebut the inference raised in favor of the landlord.

(7) In the case at hand the learned Tribunal was impressed by the factum of the existence of some sub-lessee in the premises having been brought to the notice of the landlord by the tenant at the time of the creation of the tenancy. The learned Tribunal did not examine whether there was a consent in writing or not. Though the and lord adduced evidence to show the existence of business units other than the tenant on the tenanted premises yet the learned tribunal has refused to hold the availability of ground for ejectment to the landlord on the reasoning that such other business units were the sister-concerns of landlord's unit. On account of this opinion having been formed, the learned Presiding Officer of the Tribunal did not further probe into the cumulative effect of tell-tale circumstances such as the sign-board of other business units having been displayed on the premises, the existence of telephone in the name of such other concern on the premises, the offices of such her concern being run from the desks in the tenanted premises and so on. If only the learned tribunal would have probed further and scrutinised the evidence and then arrived at clear cut conclusion, it would not have been difficult for the Tribunal to find out correctly on the applicability of Section 14(l)(b).

(8) Looking to the length of time already lost in litigation, this court was inclined to itself enter into evidence and draw its own conclusions, instead of remanding the matter to the Tribunal, but this Court has chosen to refrain from doing so for two reasons: Firstly, the tenant/respondent has chosen to remain absent at the time of hearing and this Court has considered it not appropriate to enter into appreciation of evidence in the absence of both the parties being available before it; secondly, the appreciation of facts lies within the domain of the Tribunal and not of this Court which is supposed to confine exercise of its jurisdiction to questions of law alone. .

(9) Before pronouncing upon the final decision, it would be appropriate to state that in so far as the appellant/landlords case of alleged subletting by the tenant to Bharat Carbon Brake Lining and Dadabhoy Hormusjee & Sons Ltd., is concerned it was not pressed before the Tribunal and to that extent this order of remand would not revive the plaintiff's case.

(10) The appeal is allowed. The judgment of the Tribunal is set-aside. The case is sent back to the Tribunal for hearing afresh and deciding the appeal in accordance with law.

(11) Before parting it may be made clear that the Tribunal shall be free to form its own opinion on all the questions of facts and law arising for decision in the appeal unblessed by any observation made hereinabove in as much as this Court has only recorded its reasons justifying the necessity of remand. Nothing stated hereinabove is intended to preempt the jurisdiction of the Tribunal in deciding any question raised before it. In view of the delay which has already taken place in disposal of the litigation it is expected that the Tribunal would hear and decide the appeal within a period of six months from the date of first appearance of the parties before it.

(12) The appellant through counsel is directed to appear before the Tribunal on 24.10.94. The registry shall see that the records of the case reach back to the Tribunal before the appointed date.