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SUPREME COURT OF INDIA
ASHOK BHUSHAN, M.R. SHAH, JJ.
A. Mahalakshmi – Appellant
Versus
Bala Venkatram (D) Through Lr & Anr. – Respondents
Civil Appeal No. 9443 of 2019
Decided On : 07-01-2020
(A) Rent and Eviction – Sub-letting – Sub-letting means transfer of an exclusive right to enjoy property in favour of third party – To constitute sub-letting, there must be a parting of legal possession, i.e., possession with right to include and also right to exclude others – Sub-letting, assigning or otherwise parting with possession of whole or any part of tenancy premises, without obtaining consent in writing of landlord, is not permitted and if done, same provides a ground for eviction of tenant by landlord – When eviction is sought on the ground of subletting, onus to prove subletting is on landlord – If landlord prima facie shows that third party is in exclusive possession of premises let out for valuable consideration, it would then be for tenant to rebut evidence – At the same time, where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the premises while he himself retains legal possession thereof, act of tenant does not amount to subletting – However inducting partner in his business or profession by tenant is permitted so long as such partnership is genuine – If purpose of such partnership is ostensible in carrying on business or profession in a partnership but real purpose in subletting such premises to such other person who is inducted ostensibly as a partner then same shall be deemed to be an act of subletting. (Para 8)
(B) Rent and Eviction – Sub-letting – There is no genuine partnership between respondent no.1 and respondent no.2 – Respondent no.1 has come out with a case of partnership only to get out from allegation of subletting – Exclusive possession of suit premises is with respondent no.2 – Respondent no.2 is running the business in suit premises as an owner – Sales Tax Certificate and licence are in name of respondent no.2 – Bank accounts are in name of respondent no.2 and respondent no.2 is exclusively dealing with bank accounts – Under the circumstances, clear case of subletting has been made out – High Court committed grave error in setting aside decree of eviction on the ground of subletting – Impugned judgment and order passed by High Court set aside and judgment and decree passed by Rent Control Appellate Authority restored. [Sections 10(2)(i), 10(2)(ii)(a)(b) and 10(2)(iii) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960] (Paras 9 and 10)
Facts of the case:
Feeling aggrieved and dissatisfied with impugned Judgment and order passed by High Court in quashing and setting aside eviction decree on the ground of subletting, landlady has preferred present appeal.
Findings of Court:
Sub-letting means transfer of an exclusive right to enjoy property in favour of the third party. To constitute a subletting, there must be a parting of legal possession, i.e., possession with right to include and also right to exclude others. Subletting, assigning or otherwise parting with possession of the whole or any part of the tenancy premises, without obtaining consent in writing of landlord, is not permitted and if done, same provides a ground for eviction of tenant by landlord.
Result : Appeal allowed.
JUDGMENT :
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.04.2017 passed by the High Court of Judicature at Madras in CRP (NPD) No. 2898/2013, by which the High Court has allowed the said revision application preferred by the respondents herein – original defendants, the original plaintiff has preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
That one Dr. Sanjeevi and his wife Mrs. Porkodi, the earlier owner of the suit premises in question had executed a power of attorney dated 01.11.2016 in the name of the appellant herein and in respect of the said property. That by way of rental agreement dated 23.05.2007, the appellant let out the premises in question to original respondent no.1 herein – Bala Venkatram (now dead and represented through legal heirs) for running ‘Best Mark Super Market’ from June, 2007 to July, 2009 on a monthly rent of Rs.11,000/-. That an advance amount of Rs.1,00,000/- was paid by way of security. That the rent was payable on 7th day of every English calendar month. That the appellant – landlady filed an eviction suit on the ground of sub-letting as well as on the ground of arrears of rent against the respondents herein – original defendants – Bala Venkatram and another under Sections 10(2)(i), 10(2)(ii)(a)(b) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the ‘Act’) in the Court of District Munsiff, Pollachi. According to the landlady the rent was initially paid by original defendant no.1 – Bala Venkatram till October, 2007. It was the case on behalf of the landlady that upon default in payment of rent and noticing a change in the name as well as ownership of the shop in the tenanted premises from ‘Best Mark Super Market’ to ‘Amutham Super Market’, she made enquiries and discovered that not only there was a change in the name but a complete change of hand from original defendant – Bala Venkatram to respondent no.2 – Shahu Hameed which also on the face of it was a gross breach of the rent agreement. According to the landlady, the sub-letting was evident from the Certificate of Registration, Government of Tamil Nadu, Commercial Tax Department. Therefore, the landlady issued a legal notice to original defendant – Bala Venkatram pointing out the said breaches and called upon him to collect balance amount from the advance payment deposited after adjusting the arrears of rent and handover possession of the tenanted premises within 15 days failing which the appropriate legal action would be taken. There was no reply to the legal notice from respondent no.1 – original defendant no.1. Therefore, the landlady, the appellant herein, filed R.C.O.P. No. 4 of 2008 for decree of eviction on the ground of sub-letting and arrears of rent.
2.1 The suit was resisted by original defendant no.1 – the original tenant by filing a written counter. It was stated that the landlady has received the rent till December, 2007 and that the first respondent has no necessity to get the permission from the landlady for running business in any other name. It was the case on behalf of original respondent no.1 – the original tenant that since the landlady was trying to evict the respondents, they filed O.S. No. 122/2008 for permanent injunction. According to the first respondent – the original tenant, they were running ‘Amutham Super Market’ in the suit property. According to the original tenant there were many branches, namely, ‘Amutham Jewellery, Amutham Foods, Amutham Electronics, Amutham Textiles etc. According to the original tenant since the respondents refused to give the business in the name of the landlady, she filed eviction petition with an ulterior motive. A similar written counter was filed on behalf of original respondent no.2 – sub-tenant.
2.2 That the learned Rent Controller dismissed the eviction petition. Aggrieved by the same, the landlady preferred R.C.A. No. 1 of 2012.
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