Jagan Nath
(Deceased) Through L.Rs. Vs. Chander Bhan & Ors [1988] INSC 166 (11 May 1988)
Mukharji,
Sabyasachi (J) Mukharji, Sabyasachi (J) Natrajan, S. (J)
CITATION:
1988 AIR 1362 1988 SCR Supl. (1) 325 1988 SCC (3) 57 JT 1988 (2) 441 1988 SCALE
(1)1079
CITATOR
INFO : RF 1990 SC1208 (4)
ACT:
Delhi Rent Control Act, 1958 Sections
14(1)(a), (b), (2) c,. 15-Tenant-Eviction of-on ground of subletting/Parting
with possession-User of Premises by another person is not parting with
possession.
HEAD NOTE:
The
respondent-landlord had filed a petition against the appellant-tenant under
section 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act, 1958 for eviction
from a residential-cum-commercial premises, inter alia, on the ground that the
appellant had sublet, assigned or otherwise parted with possession of the
premises to his sons who were running their partnership business in the name of
Bindra Tent House with which the tenant had no concern. The tenant contested
the petition on the ground that he was in exclusive possession of the premises
and was carrying on his business therein with the help of his sons who were
members of his Joint Hindu Family.
In
support of his plea that the tenant had parted with possession, the landlord
had produced documentary evidence which included copy of a statement made by
the tenant before the Income Tax officer, which indicated that the tenant had
sold his proprietary business to his sons.
The
Additional Rent Controller held that there was no subletting by the tenant, but
he had unlawfully parted with the possession of the premises in favour of his
sons and as such was liable to be evicted.
During
the pendency of the appeal the tenant sought permission under order 6 Rule 17
of the Code of Civil Procedure to amend his written statement to state that the
property was taken on rent by M/s Bindra Tent House. The Tribunal did not
permit this belated amendment as this would have introduced an entirely new
case. On merits, the Tribunal dismissed the appeal of the tenant. The High Court
did not find any substantial question of law in the tenant's second appeal and
dismissed the same.
Allowing
the appeal, it was, 326 ^
HELD:
(1) The only ground perhaps upon which the landlord A was seeking eviction was
parting with possession.
It is
well-settled that parting with possession meant giving possession to persons
other than those to whom possession had been given by the lease and the parting
with possession must have been by the tenant. User by other person is not
parting with possession so long as the tenant retains the legal possession
himself, or in other words, there must be vesting of possession by the tenant
in another person by divesting himself not only of physical possession but also
of the right of possession. So long as the tenant retains the right to
possession there is no parting with possession in terms of clause (b) of
section 14(1) of the Act. [329G-H; 330A]
(2)
Even though the father had retired from business and the sons had been looking
after the business in the facts of this case, it cannot be said that the father
had divested himself of the legal right to be in possession. [330B]
(3) In
the instant case, if the father was carrying on the business with his sons and
the family was a joint family, it is difficult to presume that the father had
parted with possession legally to attract the mischief of section 14(1)(b) of
the Act. [330D-E]
(4) In
these days of acute shortage of accommodation both for living and for vocation,
one has to take the reality with a pinch of salt and the manner in which the
original tenant has conducted himself in shifting his defence would not
disentitle him to the benefit of the law.
[330Gl
Subashini Mojumdar v. Krishna Prasad Mahatoo, A.I.R. 1956 Assam 79; M/s Modi
Spinning and Weaving Mills Co. Ltd. v. M/s Ladha Ram and Co., [1977] 1 SCR 728
and Smt. Krishnawati v. Shri Hans Rai, [1974] 1 SCC 289, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1127 of 1985.
From
the Judgment and order dated 29.8.84 of the Delhi High Court in S.A.O. No. 40
of 1984.
Rajinder
Sachhar and Mrs. Rani Chhabra for the Appellants.
A.K. Ganguli
and E.M.S. Anam for the Respondents.
The Judgement
of the Court was delivered by 327 SABYASACHI MUKHARJI, J. This appeal by
special leave is directed against the judgement and order of the High Court of
Delhi dated 29th
August, 1984. One Jagan
Nath, since deceased, was the original tenant of the premises in question. He
died during the pendency of this appeal here.
His
sons have been substituted. The tenancy in question started on 1st January, 1962. It appears that on 7th November, 1967 notice was addressed to Shri Baldev
Raj, describing him as sole proprietor of M/s Bindra Tent House, New Delhi, for eviction. There was an
increase in rent in July, 1970. The respondent herein filed the petition
against the appellant herein Jagan Nath under section 14(1)(a) and 14(1)(b) of
the Delhi Rent Control Act, 1958 (hereinafter called the Act) for eviction of
the appellant from the premises consisting of one room forming part of premises
No. N-80, Kirti Nagar, New
Delhi, as the
appellant herein had not paid rent with effect from 1st May, 1975 till 30th
April, 1977 at the
rate of Rs.75 per month despite service of the demand notice dated 8th January, 1976. It was the further case of the
respondent herein that the appellant had after 9th June, 1962 sublet, assigned or otherwise parted with possession of the
premises to Shri Baldev Raj Bindra and Sat Pal Bindra without the consent in
writing of the respondent-landlord. The suit was filed before the Additional
Rent Controller and the same was contested on various grounds. It was contended
that the petition was not maintainable because of non-joinder of Shri Baldev Raj
Bindra and Sat Pal Bindra. The premises in question is residential-cum -
commercial. It was stated that Shri Baldev Raj Bindra and Sat Pal Bindra are
the sons of the original appellant, since deceased. The said tenant was in
exclusive possession of the premises and was carrying on his business therein
with which, it was stated, Baldev Raj and Sat Pal had no concern. They are the
sons of the tenant, since deceased, and had constituted a Hindu Undivided
Family. No demand notice was ever served upon the tenant. The tenant tendered
the rent to the landlord by money order for an amount of Rs.450 which he
refused to accept. The Additional Rent Controller so far as the ground of
nonpayment of rent was concerned held that there was a compliance with the
order passed under section 15(1) of the Act. The Additional Rent Controller gave
the tenant the benefit under section 14(2) of the Act. The petition of the
landlord on the ground of non-payment of rent was, therefore, dismissed.
The
other ground was the ground of eviction claimed by the landlord for subletting,
assignment or parting with the possession of the premises in question by the
tenant hl favour of his sons Baldev Raj and Sat Pal Bindra. The landlord in his
deposition had stated that since 328 1st July, 1971 Baldev Raj and Satpal were
running their business in the name of M/s. Bindra Tent House in partnership and
they were in possession of the premises in question. The tenant had no concern
with the business carried on in the demised premises and the tenant had
retired. The tenant in his cross-examination had stated that he had sent
partnership document and Form II to the Income- tax Department. 13 The landlord
had denied the suggestion that the said Jagan Nath was in possession of the
premises and his sons had been helping him from the very beginning.
The
landlord had produced on the record one statement made by the appellant herein,
Jagan Nath before the Income Tax officer, photostat copy of which is Exhibit
A.W. 3/1 on the record which indicated that Jagan Nath who was the proprietor
of the Bindra Tent House sold the same for Rs.18,000 on 1.1.1970 to his sons Baldev
Raj and Sat Pal and he got cash of Rs.8,000 and he gifted the other amount into
two equal shares to his sons Baldev Raj and Sat Pal. In his statement, Jagan Nath
had stated that Sat Pal and Baldev Raj had entered into a partnership in the
same name M/s. Bindra Tent House in the same premises. This document was
heavily relied upon before us by Shri Sachhar in aid of his submissions that
the tenant had parted with possession.
There
is another document Exhibit A.W-2/1. According to this document which is a photostat
copy of the stamp vendor register, non-judicial papers for Rs.13, Rs.2 and
Rs.20 were purchased by Baldev Raj for partnership purposes in the name of M/s.
Bindra Tent House. Our attention was also drawn to the fact that an application
for electricity connection was made by Sat Pal Bindra in the name of M/s. Bindra
Tent House on 25th
July, 1975 as the sole
proprietor of the same. From these and other documents, it was contended that
there was parting of possession and as such the tenant was liable to be . evicted.
The Additional Rent Controller ordered the eviction under section 14(1)(b) of
the Act. He held that there was no subletting by the tenant, Jagan Nath since
deceased but he had unlawfully parted with the possession of the demised
premises in favour of his sons Sat Pal and Baldev Raj without the consent in
writing of the landlord.
During
the pendency of the appeal the tenant preferred an application under order 6
Rule 17 of the Code of Civil Procedure seeking permission to amend his written
statement.
The
appellant contended that the landlord filed eviction petition in respect of the
said premises against the appellant and his two sons which was assigned to Shri
A.P. Chaudhary, Additional Rent Controller. Another objection raised was that
the property was taken on rent by M/s.Bindra Tent House 329 and, therefore, the
petition for eviction was not maintainable. The application had been contested
in which it had been admitted that the earlier petition for eviction was filed
but according to the respondent it was not properly instituted and the same was
withdrawn. It was denied that the application was not maintainable. The
Tribunal on an analysis of the matter came to the conclusion that belated
amendment could not be permitted. It was emphasised that the tenant had
admitted in the written statement that he was a tenant in the property in
question. He could not subsequently be allowed to wriggle out of this situation
and withdraw the admission. If the amendment was allowed, they would take
valuable right of the other side and altogether a new plea would be taken, it
was held. This cannot be permitted. In this connection, the Rent Tribunal
relied upon the observations of the Assam High Court in Subashini Majumdar and
another v. Krishna Prasad Mahatoo and Ors., A.I.R. 1956 Assam 79. The same view was reiterated by
this Court in M/s. Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s.
Ladha Ram and Co., [1977] l SCR 728 where the proposed amendment introduced an
entirely new case seeking to displace the other side completely from the
admission made then. It was held that such an amendment could not be allowed.
We are of the opinion that the Rent Tribunal was therefore right in refusing
the amendment on the basis of the aforesaid principle. The Tribunal on an
analysis of evidence and facts came to the conclusion that there was no merit
in the appeal and dismissed the appeal and affirmed the eviction order.
The
High Court on an analysis of the evidence and relevant authorities came to the
conclusion that there was no substantial question of law and dismissed the
second appeal. Hence this appeal.
The
question for consideration is whether the mischief contemplated under section
14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or
otherwise parted with the possession of the whole or part of the premises
without obtaining the consent in writing of the landlord. There is no dispute
that there was no consent in writing of the landlord in this case. There is
also no evidence that there has been any subletting or assignment.
The
only ground perhaps upon which the landlord was seeking eviction was parting
with possession. It is well-settled that parting with possession meant giving
possession to persons other than those to whom possession had been given by the
lease and the parting with possession must have been by the tenant; user by
other person is not parting with possession so long as the tenant retains the
legal possession himself, or in other words there 330 must be vesting of
possession by the tenant in another person by divesting himself not only of
physical possession but also of the right to possession. So long as the tenant
retains the right to possession there is no parting with possession in terms of
clause (b) of section 14(1) of the Act. Even though the father had retired from
the business and the sons had been looking after the business, in the facts of
this case, it cannot be said that the father had divested himself of the legal
right to be in possession. It the father has a right to displace the possession
of the occupants, i.e., his sons, it cannot be said that the tenant had parted
with possession. This Court in Smt. Krishnawati v. Shri Hans Raj, [1974] 1 SCC
289 had occasion to discuss the same aspect of the matter. There two persons
lived in a house as husband and wife and one of them who rented the premises,
allowed the other to carry on business in a part of it. The question was
whether it amounted to sub-letting and attracted the provisions of sub-section
(4) of section 14 of the Delhi Rent Control Act. This Court held that if two
persons live together in a house as husband and wife and one of them who owns
the house allows the other to carry on business in a part of it, it will be in
the absence of any other evidence, a rash inference to draw that the owner has
let out that part of the premises. In this case if the father was carrying on
the business with his sons and the family was a joint Hindu family, it is
difficult to presume that the father had parted with possession legally to
attract the mischief of section 14(1)(b) of the Act.
Shri Ganguly
appearing for the landlord contended that the con duct of the tenant, Jagan Nath
had been as sitting on the fence and avoiding the issue. It is true that Shri Ganguly
rightly pointed out that Jagan Nath, the erstwhile tenant had not been fair and
frank. But this is no ground to disentitle him to the benefit of the law if the
facts have been proved that he had not parted with possession. After all, it
has to be borne in mind that this is a residential- cum-commercial premises. Jagan
Nath was carrying on business in part of the building with his two sons. Jagan Nath
had died, therefore, it will be just and proper to presume that they were
carrying on business, though perhaps the stand of the Jagan Nath was not always
fair. In these days of acute shortage of accommodation both for living and for
vocation, one has to take the reality with a pinch of salt and the manner in
which Shri Jagan Nath has conducted himself would not disentitle him the
benefit of the law in the present climate.
In the
view we have taken, this appeal must be allowed and the judgment and order of
the High Court of Delhi and the Courts below are set aside. The eviction order
is accordingly set aside.
331 It
has, however, to be borne in mind that rent in these areas has increased
enormously. So while exercising our jurisdiction under Article 136 of the
Constitution, we will enhance the rent to four times. We are told that the mesne
profit at present payable was Rs.75 per month. We direct that mesne profit/rent
should be Rs.300 per month. We further direct that this will not prejudice the
rights of the respondent herein to file any proceedings for eviction on the ground
of bona fide need, if there is such a need or on any other ground available to
the respondent for eviction under the Act. We give this direction in view of
the facts alleged in the affidavit of Shri Chander Bhan Mehta affirmed on '6th April, 1988. About the correctness or validity
of the statements made therein, we had no occasion to examine in this appeal.
We have also taken into consideration the affidavit of Shri Baldev Raj Bindra
affirmed on the 2nd
May, 1988 about the
veracity of which also we express no opinion.
In the
facts of this case, the appellants will pay to the respondent the costs of the
appeal.
R.S.S.
Appeal allowed.
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