Important Points
1. Mere finding of change of business i.e. from one business to another cannot be ground to hold sub-letting of premises so as to entitle eviction on that ground.
2. Onus to prove sub-letting is on the landlord and if he establishes parting of with the possession in favour of third party, the onus would shift to tenant to explain.

Headnote:Himachal Pradesh Urban Rent Control Act, 1987-Section 14(2) (ii)-Eviction-Sub-letting - Appellant statutory tenant after death of her husband who was original tenant-Carrying on business in demised premises - Eviction petition alleging sub-letting of premises to second appellant and business carried on by second appellant-Finding of trial Court second appellant was Manager and landlord failed to prove sub-letting-Rejection of relief-Appellate Court and High Court ordering eviction-Whether correct?-No-Evidence of land not vague, inconclusive and unsatisfactory-He in his evidence did not even allege sub-letting by first appellant in favour of second appellant-Findings recorded by Rent Controller based on proper and correct appreciation of evidence and materials on record-Onus to prove sub-letting is on landlord-Onus shifts once parting with the possession established-Landlord did not discharge initial burden-Change of nature of business i.e., from one business to another cannot be ground to infer sub-letting.
       Held : The evidence led by the respondent-landlord is not only vague, inconclusive but is also unsatisfactory. The respondent-landlord did not even allege in his evidence that appellant No. 1 had sub-let the premises in favour of appellant No. 2. The learned Rent Controller had thus rightly come to the conclusion that appellant No. 1 had not parted with the possession of the demised premises after the death of her husband and that she had not sublet the same to appellant No. 2. The findings recorded by the learned Rent Controller were based on proper and correct appreciation of evidence and other material on the record. (Para 15)
       The findings recorded by the appellate authority to the effect that because of the change of the nature of business from selling of cigarettes and bidis during the life time of Shri Hira Lal Sehgal, to the selling of sanitary-wares in the demised premises, it demonstrated that appellant No. 1 had parted with possession of the shop in favour of appellant No. 2 is wholly conjectural and irrational. A grave error was, therefore, committed by the appellate authority in coming to the conclusion of sub-letting in total disregard of the evidence on the record. The appellate authority as well as the High Court drew up a rather rash inference from the change of business, which was wholly uncalled for. The onus to prove sub-letting is on the landlord and if he establishes parting of with the possession in favour of a third party, the onus would shift to the tenant to explain. In the instant case, however, the landlord did not discharge the initial onus and although it was not required, yet, the tenant explained how appellant No. 2 had the permissive possession of the shop as its Manager. On the established facts and circumstances of the case, the plea of sub-letting was not established. (Para 16)
       The appellate authority committed an error and what the High Court did was to perpetuate the same without proper application of mind. It goes without saying that to perpetuate an error is no virtue but to rectify it is the call of judicial conscious. The High Court failed to correct the obvious error committed by the appellate authority. The orders of the High Court and the appellate authority, not being based on correct appreciation of evidence on the record, cannot be sustained. (Paras 17 & 18)

Order

This is a tenant’s appeal by special leave. Respondent-landlord filed an eviction petition against the appellants under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter ‘the Act’) seeking eviction of the tenant from a shop situate in Moti Bazar, Muhalla Suhra, Mandi Town, H.P. According to the allegations made in the eviction petition the demised premises had been let out to Shri Hira Lal Sehgal, husband of appellant No. 1. Shri Hira Lal Sehgal died on 23rd February, 1983 and appellant No. 1 became the statutory tenant of the premises on his death. It was alleged that appellant No. 1 thereafter sublet the premises to appellant No. 2, Ravinder Kapur and that in the demised premises business was being run by appellant No. 2 though for “the advantage of both the appellants”. The appellants filed a joint reply to the eviction petition and denied sub-letting. It was maintained that appellant No. 2 who is the son of the sister of later Shri Hira Lal Sehgal had been brought up by late Shri Hira Lal Sehgal and that appellant No. 2 was helping late Shri Hira Lal Sehgal in running his business at the demised shop till his death in 1983 and that after his death, appellant No. 2 was helping appellant No. 1 and managing her business ‘for and on her behalf’. The trial Court after framing issues and recording evidence of the parties vide judgment and order dated 20th March, 1986 dismissed the eviction petition and held that the landlord had failed to prove that appellant No. 1 had at any stage parted with the possession of the disputed premises after the death of her husband or that she had sublet the same to appellant No. 2. It was found, as a fact, that appellant No. 2 was working in his capacity as a Manager for rendering assistance to run the business to appellant No. 1. Aggrieved by the order of the trial Court, the landlord-respondent filed an appeal before the appellate authority under the Act.

2. On 18th January, 1989, the appeal was accepted and the order of the Rent Controller was set aside. Ejectment of the appellants was ordered. The order of the appellate authority was challenged by the appellants through a civil revision petition in the High Court of Himachal Pradesh. A learned Single Judge of the High Court on 19th September, 1996, dismissed the revision petition thereby confirming the order of the appellate authority. Hence this appeal by special leave.

3. We have heard learned counsel for the parties and perused the record.

4. For what follows, the appellate authority committed an error not only in the appreciation of evidence but also by mis-reading the evidence and assuming the existence of certain facts which were neither alleged nor proved. The High Court also fell into a similar error.

5. Section 14(2)(ii) of the Act provides that a landlord may evict his tenant by applying to the Controller, where the tenant has, after the commencement of the Act, without the written consent of the landlord transferred his rights under the lease or sublet the entire building or rented land or any portion thereof.

6. In the petition filed under Section 14 of the Act by the respondent-landlord it was inter alia stated in paragraph 16 that :-

“The whole of the premises have been sub-letted to respondent No. 2 without the written consent of the petitioner, who is now running the business, to the advantage of both the respondents, after 23.2.1983.”

In paragraph 17 it was stated :-

“As respondent No. 1 who is a tenant in the premises, has sublet the entire building to respondent No. 2 after the death of her husband on 23.2.1983, therefore both are liable to be ejected from the premises. Notice was also issued to the respondent No. 1 on 18.11.1983, but she kept mum after its receipt, which clearly indicate that claim of the petitioner is bona fide and based upon true allegation.”

7. The appellants in their written statement replied paragraph 16 thus :-

“Para No. 16 is denied. The father of the respondent No. 2 d

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