IMPORTANT POINT
High Court was wrong in invoking concept of oral consent "for sub-letting and making changes" for rejecting petition for eviction under Sections 13(2)(ii)(a) and 13(iii) of East Punjab Urban Rent Restriction Act, 1949.

Headnote:(i) East Punjab Urban Rent Restriction Act, 1949-Sections 13(2)(ii)(a) and 13(iii)-Eviction petition on ground of sub-letting and substantial damage-Dispute as to character of occupation of Rakesh Kumar Aneja and Rakesh Sharma Advocates-Whether they are sub-tenants of Goyal or tenants under the owners or licencees-Rent Controller dismissing the petition-Appellate Court decreeing-High Court in revision reversing decree-Invoking oral consent for sub-letting and changes in revision reversing decree-Appeal to Supreme Court by owners-Whether High Court was right? (No).
       Held : Having heard the learned counsel for the parties we are of the opinion that the appeal deserves to be allowed and judgment of the High Court deserves to be set aside. (Para 10)
       In the present case, the testimony of two independent witnesses, namely Narinder Pal Singh and Jagdish Singh (RW 3 and 4), does not lead us anywhere. Anup Singh, RW 5 does not depose to anything about first floor which is the suit accommodation. The rest is oath against oath- Gurdial Singh on one side and the occupants on the other side. We do not have the benefit of testimony of the star witness, Goyal, who has conveniently chosen to keep himself away from the witness box except for admitting in part the claim of owners as contained in his pleadings. In such a case, we do not think the High Court could have, in exercise of its limited revisional jurisdiction, reversed the finding of fact arrived at by the Appellate Authority. The High Court has also erred in holding "oral consent for subletting and making the changes" and finding availability of grounds for eviction under Section 13(2)(ii)(a) and Section 13(2)(iii) of the Act. Section 13(2)(ii) contemplates a ground for eviction where the tenant has transferred his rights under the Lease or sublet the building or any portion thereof without the written consent of the landlord. When the law speaks of written consent, the High Court could not have substituted `oral consent in place thereof. Between owners and Goyal there is a registered Deed of Lease bringing into existence landlord-tenant relationship which, the oral evidence as adduced by the parties and available on record, is not enough to show that the transaction was sham or fictitious. Between the occupants and Goyal there are again deeds in writing showing nature and character of occupation of the occupants. The occupants have been placed in possession of cabins and given right to use the same. Agreements executed between the occupants and Goyal appoint licence fee for the use of the cabin premises, payable month by month and in advance on or before third day of each month. Electricity charges are to be borne by the licensees. The cabins are to be used for office purpose. The licence is for a period of eleven months and renewable by mutual consent subject to escalation of licence fee at a minimum of 5 . Either party seeking eviction of the licensee can do so by serving a three months notice. The minimum period of licence is eleven months before which the licensees cannot vacate the premises. Licensee has to arrange for fire insurance of the cabins premises and has to bear the loss, if any, caused by fire and so on. The Lease Deed executed between owners and Goyal does not permit licensees being inducted by Goyal and on the contrary contains specific prohibition against subletting. A clear case for eviction under Section 13(2)(ii)(a) was made out. So also constructing several cabins in the hall enabling use of several cabins as independent office premises certainly impairs materially the value or utility of the building which was a hall and, therefore, attracts applicability of Section 13(2)(iii). The High Court was not justified in holding that availability of the said two grounds was not made out. We are, therefore, of the opinion that the order of the High Court cannot be sustained. However, by way of abundant caution, we would like to make it clear that we have held the arrangement between the owners and Goyal to be real as evidenced by the Deed of Lease and not a sham transaction on the evidence adduced and material placed on the record of this case. This factual finding would not preclude a different finding being arrived at in any other appropriate case based on adequate pleadings and evidence of that case. (Para 12)
       (ii) Civil Procedure Code, 1908-Order 6 Rule 17-Amendment of pleadings-Loose practice prevalent in subordinate court in entertaining and dealing with applications for amendment of pleadings criticised and guidelines given -High Court also criticised for allowing amendment of written statement by the respondents-Held even on amended pleadings occupants-Respondents have failed on merits. (Paras 13 to 20)
       Finally held : The appeal is allowed, the impugned judgment of the High Court is set aside, the judgment of the Appellate Authority is restored. No order as to the costs. (Para 21)

JUDGMENT

R.C. Lahoti, J.-There is a property described as Gurdial Complex situated at SCO 1108-1109, Sector 22-B, Chandigarh. Admittedly, the property is owned by Sqn. Ldr. Gurdial Singh (Retd.), Mrs. Jasmer Kaur, Mrs. Jagjit Kaur, Miss Sonia Bal and Vikram Singh Bal. Gurdial Singh holds general power of attorney on behalf of other four co-owners. Collectively they will be referred to as Owner for the sake of brevity.

2. Kashmiri Lal Goyal, Advocate, defendant No. 1 before the Rent Controller (respondent No. 3 herein) claims to be a tenant, also alleged to be so by owners and will be referred to as Goyal . Out of the persons inducted in possession of the premises by Goyal, only two, namely Raj Kumar Aneja and Rakesh Sharma, Advocate were revision petitioners before the High Court and are respondents No. 1 and 2 before us. There is a dispute as to the character of occupation and the status of these two - whether they are sub-tenants or tenants under the owners. They will be collectively referred to as occupants .

3. On 6th January, 1988, a registered Deed of Lease was executed between owners and Goyal whereby 750 sq.ft. area on the first floor of Gurdial Complex was taken on lease by Goyal on a monthly rent of Rs. 5,000/-. The duration of lease was to expire on 31st December, 1990. However, on 26th April, 1990, there was a fresh Deed of Lease executed between owners and Goyal whereby a portion of the first floor of Gurdial Complex, shown in green lines annexed with the Deed of Lease, was taken on rent at the rate of Rs. 16,000/- p.m. by Goyal. The lease commenced w.e.f. 1st May, 1990. Duration of lease was three years, terminable even in between by three months notice on either side. The relevant terms of the lease may briefly be noticed. The lease rent of Rs. 16,000/- p.m. was payable in advance by seventh day of the current calendar month and if that was so done. Goyal was entitled to a rebate of Rs. 3,000/-. An amount of Rs. 26,000/- was deposited as interest free security with the owners to be retained during the currency of the lease and till Goyal remained in occupation of the premises as lessee. In specified cases of delay in payment of lease rent, interest @ 18 was leviable for the period of delay. Goyal was to vacate the leased premises on or before 30th April, 1993. However, the lease agreement could be renewed for another period of three years by mutual consent and agreement in writing in which case lease rent was to be revised with an increase in rate of rent by 15 . There could be yet another renewal of three years expiring with 30th April, 1999 subject to another upwards revision in rate of rent at 15 . However, the incentive of Rs. 3000/- for advance payment of rent before seventh day of current month was to remain the same in spite of first and second renewals. It was expressly stipulated that Goyal would not sublet any portion of the leased premises, partially or in full, to anyone under any condition and circumstances. In the event of subletting, apart from legal consequences flowing from subletting, Goyal was to lose the privilege of earning rebate of Rs. 3000/- p.m. and also to become liable to pay a penalty @ Rs. 5,000/- p.m. for the entire period till the premises were got vacated from the sub-tenants and possession handed back to owners.

4. On 16.10.1993, owners filed a petition under Section 13 of East Punjab Urban Rent Restriction Act, 1949 impleading Goyal and other alleged sub-lessees including the two occupants, namely, respondents Nos. 1 and 2 herein. It was alleged that defendants Nos. 2 to 8 were inducted as sub-lessees by Goyal, the defendant No. 1, and let in exclusive possession of different parts of the tenancy premises by allowing cabins to be constructed without the written consent of owners; that drastic additions and alterations made in the premises have materially impaired the value and utility of the premises and that Goyal had failed to pay or tender the monthly rent of the premises

Click Here to Read the rest of this document

2002 Supreme(SC) 175

IMPORTANT POINTHigh Court was wrong in invoking concept of oral consent "for sub-letting and making changes" for rejecting petition for eviction under Sections 13(2)(ii)(a) and 13(iii) of East Punjab Urban Rent Restriction Act, 1949.

Cases Referred (1)

IMPORTANT POINT
High Court was wrong in invoking concept of oral consent "for sub-letting and making changes" for rejecting petition for eviction under Sections 13(2)(ii)(a) and 13(iii) of East Punjab Urban Rent Restriction Act, 1949.