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2009 Supreme(Raj) 289
[Citation : 2009(2) RLW 1516 (Raj.)]
(Rajasthan High Court)
Basanti Lal Vs. Ram Chander & Ors. (Dr. Kothari, J.)
HON BLE DR. VINEET KOTHARI, J.
Basanti Lal
Versus
Ram Chander & Ors.
S.B. Civil Second Appeal No.124 of 1999, decided on 20.02.2009
S.L. Jain, for Appellant;
Rakesh Arora, for Respondents
Headnote:Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Sec. 13(1)(e) — "Subletting" — Meaning and Scope — Suit shop was lent out on rent to father of the appellant but his son, the appellant carried on business in it — Both the Courts below decreed on the ground of subletting — Held — Unless parting with possession by tenant is in favour of some third party outside the family for some consideration and to the exclusion of the original tenant himself, the ground of eviction u/S. 13(1)(e) of the Act are not satisfied — Appellant was carrying on business right from day under the admitted participation by father, who used to come there from his native place as per his convenience, it cannot be inferred that the father parted with the possession to his own exclusion in favour of his son — The appellant son would become statutory tenant after death of his father u/S. 3 (vii)(b) — The Courts below committed error in giving eviction decree on the ground of subletting. (Paras 16 & 18)
Appeal allowed.
jktLFkku ifjlj ?fdjk;k ,oa csn[kyh fu;U=.k? vf/kfu;e] 1950] /kkjk 13?1??e? & ^^lcysfVax** & vFkZ ,oa O;kfIr & okn ifjlj ?nqdku? vihykFkhZ ds firk dks fdjk;s ij fn;k x;k ysfdu mlds iq= vihykFkhZ us blesa O;olk; lapkfyr fd;k & nksuksa fuEu U;k;ky;ksa us ^^lcysfVax** ds vk/kkj ij fMØh fd;k & vfHkfu/kkZfjr & tc rd fdjk;snkj }kjk foyx fd;k x;k dCtk fdlh izfrQy gsrq ifjokj ds ckgj fdlh izfrQy gsrq ifjokj ds ckgj fdlh r`rh; i{k ds i{k esa ,oa Lo;a ewy fdjk;snkj ds viotZu esa ugha gksrk] rc rd vf/kfu;e dh /kkjk 13?1??e? ds rgr csn[kyh ds vk/kkj ij lek/kku ugha gksrk & vihykFkhZ firk dh Lohdk;Z Hkkxhnkjh dh frfFk ls gh O;olk; lapkfyr dj jgk Fkk tks viuh lqfo/kkuqlkj vius x`g LFkku ls okn ifjlj ij vkrk jgrk Fkk] vr% ;g vuqeku ugha fd;k tk ldrk fd iq= ds i{k esa firk us vius Lo;a ds viotZu esa dCts ls foyx dj fn;k Fkk bl izdkj fuEu U;k;ky;ksa us ^lcysfVax** ds vk/kkj ij csn[kyh dh fMØh nsus eas Hkwy dh & vius firk dh e`R;q ds ipkr~ vihykFkhZ iq= /kkjk 3?vii??[k? ds rgr laoS/kkfud fdjk;snkj cu tk;sxkA ?in la[;k 16 ls 18?
vihy Lohdkj dhA
.
2. According to the plaintiff, the said suit shop was given on rent to the defendant Deep Chand, father of the present appellant Basanti Lal in the year 1986 under the rentnote executed vide Ex.1 but since in the said suit shop, the said tenant Deep Chand never carried on any business, but his son Basanti Lal carried on business, according to the plaintiff, there was subletting by the tenant to his son Basanti Lal and therefore, on the ground of eviction set out in Section 13(1) (e) of the Rajasthan Rent Control Act, 1950, the plaintiff was entitled to eviction of the defendant. The said defendant Deep Chand died on 1.7.1988, whereas the present suit was filed by the plaintiff on 10.7.1987.
3. The learned trial Court decreed the suit on 1.5.1997 and the first appeal filed by the defendant also failed before the first appellate Court vide order dtd.9.4.1999. Being aggrieved by the same, the defendant has approached this Court by way of present second appeal, which was admitted by this Court on 12.5.1999 with the following substantial questions of law framed by the Court:
“1. Whether appellant Basanti Lal being son of Deep Chand is entitled to carry on business with his father Deep Chand being member of his family within the meaning of Sec.3(vii)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act No.17 of 1950 and as such his doing of business in the disputed premises with his father father does not fall within the ambit of clause (e) of Sub-sec.(1) of Sec.13 of Act No.17 of 1950?
(2) Whether if the findings of sub-letting recorded by the both the courts below are accepted as it is, it would make mandatory provisions of Sec.3(vii) (b) of Act No.17 of 1950 to be redundant?
(3) Whether if the findings of sub-letting as recorded by both the courts below are accepted then it would tantamount forfeiting the right of appellant Basanti Lal to inherit the commercial premises as heirs of Deep Chand being his son?”
4. Mr. S.L. Jain, learned counsel for the defendant – tenant argued that the present appellant Basanti Lal son of the original tenant Deep Chand was carrying on the business in the said suit shop right from beginning in the year 1986 and even after the death of his father Deep Chand on 1.7.1988, he continued to carry on the business of Readymade garments in the said shop and therefore, he inherited the tenancy within the meaning of Section 3(vii)(b) of the Rajasthan Rent Control Act, 1950 and therefore, there was no question of his father subletting the suit shop to him. As against that, he became the statutory tenant of the suit premises in place of his father. He further submitted that the plaintiff utterly failed to prove that father had parted with the possession in favour of the son to his own exclusion and therefore, the grounds stated for eviction under Section 13(1)(e) of the Act were not at all satisfied and therefore, the decree of eviction given by the Court below deserves to be set aside. He extensively read the statement of P.W.1 Ram Chander himself as the original tenant Deep Chand was never examined by the learned trial Court and submitted that from the evidence of the plaintiff himself, it was clear that father of the present appellant Basanti Lal frequently came to the suit shop in question from his residence at Hindoli, a nearby vill
