2004 Supreme(SC) 1276

2004(8) Supreme 74
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Arijit Pasayat & C.K. Thakker, JJ.
Joginder Singh Sodhi -Appellant
versus
Amar Kaur -Respondent
Civil Appeal No. 5199 of 2003
Decided on 8-10-2004
Counsel for the Parties :
For the Appellant : Ms. Indu Malhotra, Rajesh Dutta and Ms. Kavita Wadia, Advocates.
For the Respondent : Dr. K.S. Sidhu, Sr. Advocate, Ms. Maldeep Sidhu, Davender Verma and R.S. Suri, Advocates.

IMPORTANT POINTS
(1) Proof of monetary consideration by sub-tenant to the tenant is not a sine qua non to establish sub-letting.
(2) For deciding the question whether the tenant had created sub-tenancy, relationship between tenant and sub-tenant is not material.

Headnote:(i) East Punjab Urban Rent Control Act-Section 13-Order of eviction by Courts below on ground of sub-letting-Suit premises a shop was let out under written rent agreement to respondent No. 2, father of respondent No. 1, appellant-Defence plea was that respondent No. 2 took shop for use of business of his son, respondent No. 1-Courts below accepted case of landlady and ordered eviction-Appeal-Question whether eviction order was in accordance with law-In an eviction petition on ground of sub-letting, landlord has to prove by evidence that third party was found in exclusive possession of rented premises and parting of possession by tenant was for monetary consideration-It would be difficult for landlord to prove monetary consideration by direct evidence-Law did not require such payment to be proved by affirmative evidence and Court could drawn its inference upon facts-Proof of monetary consideration by sub-tenant to the tenant was not a sine-qua non to establish sub-letting-For deciding a question of sub-tenancy, relationship between the tenant and sub-tenant was not material-Eviction order suffered no illegality and called for no interference.

       Held : Regarding sub-letting, in our opinion, the law is well settled. It is observed in the leading case of Associated Hotels of India Ltd. vs. S.B. Sardar Ranjit Singh, (1968) 2 SCR 548 : AIR 1968 SC 933 that in a suit by the landlord for eviction of tenant on the ground of sub-letting, the landlord has to prove by leading evidence that (i) a third party was found to be in exclusive possession of the rented property and (ii) parting of possession thereof was for monetary consideration. (Para 13)

       As observed by this Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India, (1998) 3 SCC 1, sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let. (Para 17)

       We are in agreement with the observations in the above cases. In our considered opinion, proof of monetary consideration by the sub-tenant to the tenant is not a sine quo non to establish sub-letting. (Para 20)

       It was then contended by the learned counsel for the appellant that respondent No. 2 was the son of respondent No. 1 and since he was not a stranger, no presumption could be raised that he was a sub-tenant. We are unable to uphold even that contention. In our judgment, for deciding the question whether the tenant had created sub-tenancy, the relationship between the tenant and sub-tenant is not material. There is no privity of contract between the landlady and respondent No. 2. He was, therefore, a stranger to the landlady. She let the property to respondent No. 1 who was the tenant. Respondent No. 1 was bound to occupy the property as per the rent note executed by him wherein even undertaking was given by him that he would not part with possession or allow any other person to occupy the property. In spite of the rent note and undertaking, if without the written consent of the landlady, respondent No. 1 had inducted respondent No. 2 as his tenant or had parted with possession in favour of respondent No. 2, who was staying separately and yet found to be in exclusive possession of the shop, sub-tenancy was established. (Para 22)

       (ii) East Punjab Urban Rent Control Act-Section 13-Eviction order on ground of sub-letting-Appeal-Waiver on part of landlord in as much as being aware of subletting, he continued to receive rent from tenant as well from sub-tenant-Waiver is a question of fact which must be expressly pleaded and proved and no such plea was raised in the case-A bald plea of waiver could not defeat statutory provision.

       Held : Firstly, waiver is a question of fact which must be expressly pleaded and clearly proved. No such plea had been raised either by the tenant or by the sub-tenant before the Rent Controller, before the Appellate Authority or even in the High Court. Such question cannot be allowed to be raised for the first time in this Court. That apart, the language of Section 13(2)(ii)(a) of the Act is clear and unambiguous. It mandates that no tenant can sub-let the tenanted property or part thereof without the written consent of the landlord. In the present proceedings, it is not even the case of the tenant (deceased Mukand Singh) that he had obtained written consent of the landlady to sub-let the shop to his son Joginder Singh. On the contrary, his assertion that the property was taken by him for his son was not believed. Hence, order of eviction cannot be held illegal as the doctrine of waiver cannot be applied. A bald plea of waiver cannot defeat statutory provision made in larger public interest [Vide M/s Shalimar Tar Products Ltd. vs. H.C. Sharma & Others, (1998) 1 SCC 70; Pulin Behari Lal vs. Mahadeb Dutta & Others (1993) 1 SCC 629]. (Para 25)