Vaishakhi
Ram and Ors Vs. Sanjeev Kumar Bhatiani [2008] Insc 288 (25 February 2008)
Tarun
Chatterjee & Dalveer Bhandari
CIVIL
APPEAL NO 1559 OF 2008 [Arising out of SLP [C] No.2478 of 2007] TARUN
CHATTERJEE, J.
1.
Leave granted.
2.
This appeal is directed against the final judgment and order dated 23rd of
January, 2007 passed by the High Court of Delhi in CM [M] No.126 of 2007
whereby the eviction of the appellants from a shop bearing No. III-1/9, Gopi Nath
Bazar, Delhi Cantonment, Delhi (in short "the suit
shop") was affirmed on the ground of subletting under Section 14 [1] [b]
of the Delhi Rent Control Act, 1958 (for short "the Act").
3. The
appellant no.1 was inducted as a tenant in the year 1956 by the erstwhile
owners of the suit shop, viz., Som Nath and Mohinder Nath. He was all along in
continuous possession of the suit shop and was conducting the business from the
same along with his brother Chunni Lal of Chunni Lal and Sons under the name
and style of M/s Mitra Book Depot. The rent receipts issued by the landlord
were in the name of M/s Mitra Book Depot as tenant at the rate of Rs.65/- per
month. Subsequently, a business was started in a portion of the suit shop in
the name of M/s. Mitra Stores and M/s. Lucky Confectioners. In the year 2000, Som
Nath and Mohinder Nath sold the suit shop to one Anil Anand. However, the rent
of the suit shop was continued to be paid to Som Nath and Mohinder Nath by the
appellant no.1 upto the month of September 2000. Thereafter, the rent was
deposited by the appellant no.1 in the court in different proceedings. On 20th
of October, 2000, Anil Anand sold the suit shop to the respondent by a
registered deed of sale. However, the appellant no.1 went on depositing the
rent in the name of the original landlord. Finally, on or about 1st of
February, 2002, the respondent filed an eviction petition under Section 14 [1][b]
of the Act on the ground of subletting before the Rent Controller, Delhi. According to the respondent,
although the tenancy was given to the appellant no.1 in the name of M/s Mitra
Book Depot but subsequently, the appellant no.1 had sublet the suit shop to the
appellant Nos. 2 to 4 who were carrying on the business in a portion of the
suit shop in the name of M/s Mitra Stores and M/s Lucky Confectioners. Accordingly,
the respondent sought for eviction of the appellants on the ground of
subletting. A written statement was filed by the appellants denying the
material allegations made in the eviction petition filed before the Rent
Controller, Delhi by the respondent. After the issues
were framed and the evidence was adduced, the Rent Controller held on facts
that the appellant No.1 had sublet a portion of the suit shop in which the
business in the name of M/s Mitra Stores and M/s Lucky Confectioners was
carried on by the appellant Nos. 2 to 4 and, therefore, the appellants were
liable to be evicted under Section 14 [1][b] of the Act. The Rent Controller
passed the order of eviction by holding, inter alia, that the case of
subletting was duly proved as from the evidence on record, both oral and
documentary, it was clear that an independent business was run by the appellant
Nos. 2 to 4 and that they were in exclusive possession of a portion of the suit
shop. Feeling aggrieved, the appellants filed an appeal before the Rent Control
Tribunal, which also dismissed the same by affirming the findings of the Rent
Controller. Against this order of the Rent Control Tribunal, the appellants
filed a writ petition before the High Court of Delhi and the High Court by the
impugned judgment also dismissed the same. Aggrieved by the aforesaid judgment
and order of the High Court, the instant special leave petition has been filed,
in respect of which leave has already been granted.
4. On
behalf of the appellants, at the first instance, Mr. Rajesh Aggarwal contended
that even if subletting was done by the appellant no.1 in favour of the
appellant nos. 2 to 4, then also, the respondent was not entitled to an order
of eviction on the ground of subletting under Section 14 [1] [b] of the Act for
the simple reason that since the appellant nos.2 to 4 have been carrying on
their business in the suit shop for a long time with the knowledge of the
respondent as also the erstwhile owner, the ground of subletting for eviction
of the appellants must be held to have been waived by the erstwhile landlord of
the appellant no.1 and finally by the respondent as he had, at the time of his
purchase, knowledge of the subletting. Therefore, Mr.Aggarwal contended that
even if subletting was done by the appellant No.1 in favour of the appellant
nos. 2 to 4, either in whole or in part, it must be held that the right to
evict the appellants by the purchaser respondent on the ground of subletting
was waived. It was next contended by Mr. Aggarwal that the appellant nos.2 to
4, being the family members of the appellant no.1 and carrying on business in
the name of M/s. Mitra Stores and M/s. Lucky Confectioners in a part of the
suit shop, the subletting as made out by the respondent for eviction cannot be
said to have been proved. In any view of the matter, the question of subletting
of the suit shop to the appellant Nos. 2 to 4 could not arise as the appellant
No.1 had the exclusive possession and legal control of the same. It was lastly
contended by Mr. Aggarwal that in any view of the matter, the respondent, who
is a subsequent purchaser of the suit shop was not entitled to take advantage
of the ground of subletting when the erstwhile landlord had not taken any steps
to evict the appellants and therefore, had waived the right to evict the
appellants on the ground of subletting.
These
submissions of Mr. Aggarwal were hotly contested by Mr. Ranjit Kumar, the
learned senior counsel appearing on behalf of the respondent.
5.
Having heard the learned counsel for the parties and after going through the
impugned judgment of the High Court as well as of the courts below and the
other materials on record, including the oral evidence, we are of the view that
the concurrent findings of fact on the question of subletting can not be upset
for the reasons herein after. Let us first deal with the question whether on
account of the continuous exclusive possession of the appellant Nos. 2 to 4 in
a part of the suit shop from the time of the original erstwhile landlord, the
purchaser respondent was entitled to evict the appellants from the suit shop on
the ground of subletting as the said right was waived by the erstwhile landlord
or even by the subsequent purchaser respondent. Before deciding the question of
waiver, we must look into the provision made in Section 14(1)(b) of the Act,
which reads as under:- "that the tenant has, on or after the 9th day of
June, 1952, sublet, assigned or otherwise parted with the possession of the
whole or any part of the premises without obtaining the consent in writing of
the landlord."
6. A
plain reading of this provision would show that if a tenant has sublet or
assigned or otherwise parted with the possession of the whole or any part of
the premises without obtaining the consent in writing of the landlord, he would
be liable to be evicted from the said premises. That is to say, the following
ingredients must be satisfied before an order of eviction can be passed on the
ground of subletting: -
(1)
The tenant has sublet or assigned or parted with the possession of the whole or
any part of the premises;
(2)
Such subletting or assigning or parting with the possession has been done
without obtaining the consent in writing of the landlord.
7. So
far as these conditions are concerned, we find that in the facts of this case,
the appellant no.1 has parted with the exclusive possession of a part of the
suit shop in favour of the appellant Nos. 2 to 4 without obtaining the consent
in writing, either of the erstwhile landlord or the purchaser respondent. Now
the question is whether the respondent or the erstwhile owner of the suit shop
had waived the right of evicting the tenant on the ground of subletting or not.
As noted herein earlier, the appellant Nos. 2 to 4 were inducted in a part of
the suit shop without obtaining the consent in writing, either of the original
landlord of the suit shop or of the present respondent. Before deliberating
further on this question, let us, at this stage, consider a short submission of
the learned counsel for the appellants. According to Mr. Aggarwal, the learned
counsel appearing on behalf of the appellants, since the appellant Nos. 2 to 4
are the family members of the appellant No.1, it cannot be said that the
appellant Nos. 2 to 4 were inducted as sub-tenants under the appellant No.1. In
Kailasbhai Shukaram while dealing with a case of subletting under the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947), this Court
observed that the question as to whether a person is a member of the family of
the tenant must be decided on the facts and circumstances of the case. It
observed in paragraph 14 as follows :
"Apart
from the parents, spouse, brothers, sisters, sons and daughters, if any other
relative claims to be a member of the tenant's family, some more evidence is
necessary to prove that they have always resided together as members of one
family over a period of time. The mere fact that a relative has chosen to
reside with the tenant for the sake of convenience, will not make him a member
of the family of the tenant in the context of rent control legislation."
8.
Admittedly, in this case, the appellant Nos. 2 to 4 are neither the spouse,
brothers, sisters, sons or daughters of the appellant No. 1. Although they are
related to the appellant No.1, there is nothing on record to show that the
appellant Nos. 2 to 4 were residing with the appellant No. 1 for a considerable
period of time as members of the family of the appellant No.1. Therefore, only
because they were related to the appellant No.1, in the absence of the
appellant Nos. 2 to 4 being residing with the appellant No.1, it cannot be said
in the context of rent control legislation that they were residing as family
members of the appellant no.1 and therefore, the question of subletting would
not arise at all.
9. The
three courts concurrently held on facts that the appellant No.1 had no
exclusive possession in a part of the suit shop where the appellant Nos. 2 to 4
had been carrying on their separate independent business.
10. In
view of the admission made by the appellant No.1 to the extent that he had got
nothing to do with the firm M/s. Mitra Stores and M/s. Lucky Confectioners nor
had any control and supervision over the said business, the onus had shifted to
the appellant No.1 to prove that there was no subletting and that the appellant
No.1 had legal possession and control over the suit shop or that the appellant
Nos. 2 to 4, being the family members, were assisting him in the business of
M/s. Mitra Stores and M/s. Lucky Confectioners. Both the courts below, namely,
the Rent Controller and the appellate authority, on consideration of the entire
evidence on record, including the admission of the appellant No.1 in respect of
the business carried on in a part of the suit shop in the name of M/s. Mitra
Stores and in the name of M/s. Lucky Confectioners and in view of the onus
having been shifted to the appellant No. 1, held that it could not be proved by
cogent evidence that there was no subletting. The courts below were fully
justified in holding that subletting as alleged was proved since the appellant
No.1 had failed to prove that the appellant Nos. 2 to 4 were not conducting
their business in the suit shop independently but in fact doing the business of
the appellant No.1 or assisting him.
11. It
is well settled that the burden of proving subletting is on the landlord but if
the landlord proves that the sub-tenant is in exclusive possession of the suit
premises, then the onus is shifted to the tenant to prove that it was not a
case of subletting. Reliance can be placed on the decision of this Court in the
case of Joginder Singh Sodhi vs. Amar Kaur [(2005) 1 SCC 31]. Therefore, we are
in full agreement with the High Court as well as the courts below that since
the appellant Nos. 2 to 4 had been in exclusive possession of the suit shop and
the appellant No.1 could not prove that it was not a case of subletting, the
suit shop had been sublet by the appellant no. 1 in favour of the appellant
Nos. 2 to 4.
Therefore,
no interference can be made with the findings arrived at by the High Court as
well as the courts below on the question of subletting.
12.
Let us now revert to the question whether long exclusive possession of the
appellant Nos. 2 to 4 in the suit shop would invite the court to hold that the
respondent or the erstwhile owner of the suit shop had waived the right to
evict the tenant on the ground of subletting. As noted herein earlier, an order
of eviction can be passed under Section 14(1)(b) of the Act only if the
ingredients enumerated herein earlier are satisfied. In order to prove
subletting, it must be shown that the appellant Nos. 2 to 4 were inducted
without the consent in writing of the landlord. In this case, admittedly, no
consent in writing, either of the erstwhile owner of the suit shop or of the
respondent, who was the subsequent purchaser of the same, was taken in writing.
It is now well settled that to constitute waiver of benefit conferred by
provisions of the Act, conscious relinquishment of such benefit must be proved.
In [(1990) 1 SCC 169], this Court while dealing with a case of subletting and
waiver on the part of the landlord, emphasized that the consent in writing of
the landlord for subletting or parting with possession was essential under
Section 14(1)(b) of the Act. The view expressed in the aforesaid decision was
also the view of this Court in the case of Pulin Behari Lal vs. Mahadeb Dutta
& Ors. [(1993) 1 SCC 629] in which this Court reiterated the principle that
in the absence of conscious relinquishment of right to eviction, the question
of waiver on the ground of subletting for eviction by the landlord did not
arise at all. It is not in dispute in the present case that the respondent had
purchased the suit shop from the erstwhile owner of the same. The sale deed
dated 20th of October, 2000 evidencing the purchase of the suit shop by the
respondent from the erstwhile owner of the same was exhibited. A perusal of the
sale deed would show that the appellant No.1 was a tenant in respect of the
suit shop and there was no mention that the appellant Nos. 2 to 4 were also in
possession of the suit shop, either in its entirety or in a part of it. That
being the position and in the absence of any evidence on record to show that
there was any conscious relinquishment of the benefit conferred by the
provisions of the statute, we do not find any reason to hold otherwise to the
extent that the subletting made in favour of the appellant Nos. 2 to 4 by the
appellant No.1 was proved and the right to eviction was not waived, either by
the erstwhile landlord or by the respondent.
13.
Mr. Aggarwal, the learned counsel appearing on behalf of the appellants had
strongly relied on a decision of this Court in the case of United Bank of India
vs. Cooks and Kelvey Properties (P) Limited [(1994) 5 SCC 9] and submitted that
since the appellant No.1 was in exclusive possession and legal control of the
suit shop, the case of subletting could not be proved. In our view, that
decision of this Court has no manner of application in the facts and
circumstances of the present case. In that case, although the tenant appellant
bank had inducted the trade union in the tenanted premises for carrying on the
trade union activities, the bank had not received any monetary consideration
from the trade union which was permitted to use and enjoy the same for its
trade union activities. The bank had retained its power to call upon the trade
union to vacate the premises at any time and the Union had also given an
undertaking to vacate the same when required. In that decision, the bank was
maintaining the premises at its own expense and also paying the electricity
charges consumed by the trade union for using the demised premises. Basing on
the aforesaid facts, it was held in that case that the bank had retained its
control over the trade union whose membership was only confined to the
employees of the bank and, therefore, the court held that the inference that
could only be drawn was that the appellant had retained the legal control and
possession of the suit premises in that case. As noted herein earlier, this is
not the situation in the present case. The findings of the three courts were
that the appellant no.1 had no legal control over the suit shop and also that
the appellant nos.2 to 4 were in exclusive possession of the suit shop or at
least, in a portion of the same and were carrying on a different independent
business in the suit shop. Such being the position and in view of the fact that
the appellant nos.2 to 4 were conducting their independent business in the suit
shop and had exclusive possession of the same and that the appellant No. 1 had
no legal control or possession over the suit shop, the aforesaid decision of
this Court, as relied on by Mr. Aggarwal, could not be taken to be of any help
to the appellants. Accordingly, these submissions of the learned counsel for
the appellants have no legs to stand upon and thus rejected.
14.
For the reasons aforesaid, there is no merit in this appeal and the appeal is,
therefore, dismissed. However, considering the facts and circumstances of the
case, the appellants are given time to vacate the suit shop by 30th of June,
2008 subject to filing of usual undertaking before this Court within a period
of four weeks from this date. There will be no order as to costs.
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