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2008(2) Supreme 693
Supreme Court of india
C.K. Thakker & Altamas Kabir, JJ.
Nirmal Kanta (Dead) through Lrs. — Petitioners
versus
Ashok Kumar & Anr. — Respondents
Appeal (civil) 7160 of 2005
Decided on : 28.03.2008
East Punjab Rent Restriction Act, 1949 — Section 15, 13 — Ejectment petition by appellant-landlords seeking eviction of respondents from shop-room in Question on plea of subletting- Plea of appellant that respondent.1 — tenant had allowed respondent 2, a tailor, to sit inside a part of demised premises with his sewing machine for the purpose of stitching, and same amounted to creation of a sub-tenancy — Rent Controller dismissed application — Appeal — Allowed by Appellate Authority- Revision Petition - Allowed by High Court on finding that by allowing a tailor, even on payment, to sit in a part of shop-room with his sewing machine, while retaining his possession and rights as a tenant over the premises leased to him, respondent.1/tenant did not create a sub-lease and tailor could at best be said to be a licensee-Appeal- Instantly from report of Local Commissioner appointed by Court it stood established that respondent.2, was, in fact, operating a feet-driven sewing machine from inside shop-room comprising tenanted premises — From Evidence on record, it appeared that respondent.2 had been accommodated by respondent.1 to assist him in his cloth business by helping customers to assess amount of cloth required for their particular purposes — The said activity did not give respondent.2 exclusive possession for that part of shop room from where he was operating and where his sewing machine had been affixed — The aforesaid issue had been correctly decided both by Rent Controller as also High Court — Appellate Authority mis-construed the principles relating to parting with exclusive possession which is one of the key ingredients for arriving at a finding regarding the creation of a sub-tenancy or grant of a sub-lease — Since from the report of the Local Commissioner it only appeared that respondent.2 was operating from a portion of shop-room, it clearly showed that respondent 1 had not parted with exclusive possession of tenanted premises — The main ingredient of creation of a sub-tenancy and/or grant of a sub-lease not having been established, held that respondent 2 was only a licensee under respondent.1 which not entitled appellant-landlord to obtain a decree for eviction against respondent.1-tenant on ground of sub-letting — Appeal dismissed. (Paras 16 to 18)
(1998) 3 SCC 1 — Relied upon.
Facts of the Case :
Issue in consideration in present case was whether allowing a tailor, to sit inside a part of demised premises with his sewing machine for the purpose of stitching by respondent1 tenant amounted to creation of a sub-tenancy?
Findings of the Court :
The Court held that from evidence on record, it appeared that respondent.2 had been accommodated by respondent.1 to assist him in his cloth business by helping customers to assess amount of cloth required for their particular purposes. The said activity did not give respondent.2 exclusive possession for that part of shop room from where he was operating and where his sewing machine had been affixed. Since from report of the Local Commissioner it only appeared that respondent.2 was operating from a portion of shop-room, it clearly showed that respondent 1 had not parted with exclusive possession of tenanted premises. The main ingredient of creation of a sub-tenancy and/or grant of a sub-lease not having been established, held that respondent 2 was only a licensee under respondent.1 which not entitled appellant-landlord to obtain a decree for eviction against respondent.1-tenant on ground of sub-letting. Appeal was dismissed.
Result : Appeal dismissed.
judgment
Altamas Kabir, J. —
1.This appeal by special leave is directed against the judgment and order dated 7th January, 2002, passed by the High Court of Punjab & Haryana at Chandigarh in Civil Revision No. 2250 of 1984 filed under Section 15 of the East Punjab Rent Restriction Act, 1949, (hereinafter called ‘the 1949 Act’). By the said judgment, the High Court set aside the order dated 25th October, 1983, passed by the Appellate Authority and restored the order dated 13th August, 1983, passed by the Rent Controller dismissing the appellant-landlords petition for eviction of the respondents under Section 13 of the 1949 Act. The facts relating to the filing of the eviction petition are set out in brief hereinbelow.
2.One Smt. Nirmal Kanta, wife of Shri T.R.Bhandari, filed the above-mentioned petition under Section 13 of the 1949 Act seeking ejectment of the respondents herein from the shop-room in question. Ejectment was sought on the ground that the tenant had not paid the rents for the tenanted shop-room from 2nd March, 1982, till 15th June, 1982, when the eviction petition was filed. It was also alleged that the conduct of the tenant was a constant nuisance not only to the landlord but also to the neighbours as well and that the landlord wanted to construct a first floor on the demised premises, which was being obstructed by the tenant. A separate ground as to creation of sub-tenancy was also pleaded along with some other grounds relating to installation of electric meter and an attempt being made by the tenant to establish his own title to the suit property. The Rent Controller dismissed the application on 13.8.1983 and against such order of dismissal of his petition the appellant filed an appeal before the Appellate Authority. The Appellate Authority allowed the appeal and set aside the order of the Rent Controller by its judgment dated 14th June, 1984. The tenant, the respondent No.1 herein, was directed to put the landlord/appellant in possession of the tenanted premises within three months. The respondent No.1/tenant filed Civil Revision No. 2250 of 1984 before the High Court against the order of the Appellate Authority and the same was allowed on the finding that by allowing a tailor, even on payment, to sit in a part of the shop-room with his sewing machine, while retaining his possession and rights as a tenant over the premises leased to him, the respondent No.1/tenant did not create a sub-lease and the tailor could at best be said to be a licensee. The High Court held that the appellant landlord had failed to discharge his burden that there was a sub-letting of the demised premises.
3.None of the other grounds appear to have been urged on behalf of the appellant-landlord before the High Court, which set aside the judgment of the Appellate Authority only on the ground of alleged sub-letting. It is against the said order of the High Court that the present Special Leave Petition has been filed.
4.At this juncture, it may be mentioned that the sole petitioner before the Rent Controller died during the pendency of this appeal and she was substituted by her legal heirs in the appeal. The appellant No.1, Tilak Raj Bhandari, the husband of the deceased Nirmal Kanta, who is an advocate, has appeared in person in support of the appeal.
5.He urged that the High Court had erred in reversing the well-considered judgment and order of the Appellate Authority on a wrong understanding of the law relating to creation of sub-tenancies by holding that even if it was established that the respondent No.1-tenant had allowed the respondent No. 2, a tailor, to sit inside a part of the demised premises with his sewing machine for the purpose of stitching, the same would not amount to creation of a sub-tenancy or a sub-lease. It was urged that by allowing the respondent No. 2 to use a portion of the demised premises, the respondent No. 1, had parted with the exclusive possession of the said portion of the demised premises, thereby, in fact, crea
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