Builders & Construction P. Ltd Vs. Md. Israil & Ors.  INSC 1471
(21 August 2009)
APPELLATE JURISDICTION CIVIL APPEAL NO.5720 OF 2009 (Arising out of S.L.P. (C)
No.20778 of 2006) M/s. Topper Builders & Construction P. Ltd.
...Appellant(s) Versus Md. Israil & Ors. ...Respondent(s)
O R D E R
learned counsel for the parties.
appellant filed suit for eviction of respondent no.1 on the ground of
subletting. The trial court vide its judgment dated 28th August, 1981 decreed
the suit by recording a finding that the tenant had sublet the premises without
the written consent of the landlord, as required under Section 14 of the West
Bengal Premises Tenancy Act, 1956 [hereinafter referred to as "the
Act"]. On an appeal preferred by respondent no.1, the High Court reversed
the judgment and decree of the trial court and dismissed the suit. Hence, this
appeal by special leave.
of the impugned judgment shows that even though the High Court recorded a
finding that the tenant has not adduced any evidence to prove that the property
was sublet with the written consent of the landlord, such consent could be
inferred from the reply to the statutory notice and conduct of the parties,
i.e, investment of large sums of money by the tenant for carrying out repairs
and renewals of the suit premises. In the opinion of the High Court, non-
production of the alleged agreement cannot be an open and shut case in all
situations and in the circumstances of the case, permission of the landlord in
subletting of the suit premises can be inferred.
opinion, the reason assigned by the High Court for upsetting the judgment of
the trial court is legally untenable. Section 14 of the Act, which provides for
restriction on sub-letting, reads as under:- "14. Restriction of
subletting. (1) After the commencement of this Act, no tenant shall, without
the previous consent in writing of the landlord - (a) sublet the whole or any
part of the premises held by him as a tenant; or (b) transfer or assigns his
rights in the tenancy or in any part thereof."
language of the above reproduced section makes it clear that the tenant cannot
sublet whole or any part of the premises without previous written consent of
the landlord. In the instant case, the trial court as also the High Court have
concurrently found that the tenant has not ....3/- - 3 - produced any evidence
of having sublet the suit premises after obtaining written consent of the
landlord. This being the position, reversal by the High Court of the judgment
and decree of eviction passed by the trial court cannot be sustained. The
appeal is, accordingly, allowed, impugned order rendered by the High Court is
set aside and decree for eviction passed by the trial court is restored.
No.1 is granted time till 28th February 2010, to vacate the premises in
question upon filing undertaking to this effect in this Court within four weeks
from today. It is directed that in case respondent No.1 fails to vacate the
premises in question within the aforesaid time, it would be open to the
decree-holder to file an execution petition for delivery of possession and in
case such a petition has already been filed, an application shall be filed
therein to the effect that respondent No.1 has not vacated the premises in
question within the time granted by this Court. In either eventuality, the
executing court is not required to issue any notice to respondent No.1. The
executing court will see that delivery of possession is effected within a
period of fifteen days from the date of filing of the execution petition or the
application aforementioned. In case for delivery of possession any armed force
is necessary, the same shall be deputed by the Superintendent of Police within
forty eight hours from the date requisition is received therefor. It is also
directed .... that in case anybody else, other than the respondent No.1, is
found in possession, he shall also be dispossessed from the premises in question.
......................J. [B.N. AGRAWAL]
......................J. [G.S. SINGHVI]
August 21, 2009.