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PUNJAB & HARYANA HIGH COURT
Jai Singh Sekhon, J.
Kishan Chand
Versus
Banarsi Dass
Civil Revision No. 2533 of 1979,
Decided On : SEPTEMBER 14, 1989
SUBLETTING - PARTING OF POSSESSION - ONUS OF PROOF - EAST PUNJAB URBAN RENT RESTRICTION ACT, 1949 - SECTION 13(2)(II)(A) - Once the landlord proves that the tenant had parted with the exclusive possession of the property in dispute, the onus shifts upon the tenant to prove the arrangement between the tenant and alleged sub-tenant as to in which capacity the sub-tenants were occupying the premises.
Fact of the Case:
Landlord-petitioner letted out the shop in dispute to respondents Nos. 1 and 2, who sublet it to respondents Nos. 3 and 4 without the landlord's consent. The landlord sought the ejectment of the tenants on the ground of subletting and non-payment of rent. The Rent Controller ordered the ejectment of the tenants, but the Appellate Authority reversed the decision, holding that the landlord had failed to prove that the tenants had parted with the possession of the shop or that they were charging any rent from respondents Nos. 3 and 4.
Finding of the Court:
The High Court held that the Appellate Authority had failed to appraise the evidence in the right context and that the landlord had proved that the tenants had parted with the exclusive possession of the shop in dispute to respondents Nos. 3 and 4. The Court further held that the tenants had failed to explain their arrangement with the subtenants inter se as to in which capacity the latters were occupying the shop in dispute, and that there was no option but to conclude that the tenants had sublet the shop in dispute to respondents Nos. 3 and 4 without the written consent of the landlord.
Issues: 1. Whether the landlord had proved that the tenants had parted with the exclusive possession of the shop in dispute to respondents Nos. 3 and 4? 2. Whether the tenants had explained their arrangement with the subtenants inter se as to in which capacity the latters were occupying the shop in dispute?
Ratio Decidendi: 1. The Court held that the landlord had proved that the tenants had parted with the exclusive possession of the shop in dispute to respondents Nos. 3 and 4 on the basis of the following evidence: a. The shop was registered in the name of M/s. Roop Lal Kasturi Lal, Karyana merchants, Sadar Bazar, Gurdaspur, at the instance of Roop Lal, respondent No. 4. b. Chaman Lai, respondent No. 2, had taken a licence from the Municipal Committee for plying a hand cart. c. Kasturi Lal, respondent No. 3, obtained a licence from the Municipal Committee to sell ghee. d. Roop Lal, respondent No. 4, obtained a licence for running the business of sale of ghee from the Municipal Committee. e. The firm M/s. Roop Lal Kasturi Lal had been shown as running the business in the shop in dispute in the income-tax record. f. Kasturi Lal, respondent No. 3 had taken some land in front of the shop in dispute on ter bazari licence while Roop Lal, respondent No. 4, took this very land on teh bazari. g. Samples of food were taken from Kasturi Lal, respondent No. 3, from the shop in dispute. h. The firm M/s. Roop Lal Kasturi Lal had been purchasing goods from various suppliers. i. Banarsi Dass, respondent No. 1, had sought appointment as salesman in the Shekhupur Co-operative Society. j. All the respondents had taken separate ration cards. k. Roop Lal resided in a separate house while the other three respondents resided in house No. 371. 2. The Court held that the tenants had failed to explain their arrangement with the subtenants inter se as to in which capacity the latters were occupying the shop in dispute on the basis of the following evidence: a. Banarsi Dass, tenant, denied that his brothers Roop Lal and Kasturi Lal have never done any karyana business. b. Banarsi Dass, tenant, further asserted that the shop was registered with the Shop Inspector in the names of Banarsi Dass and Chaman Lal about 15-16 years back which is false as the documentary evidence reveals that the shop was got registered in the name of M/s. Banarsi Dass Chaman Lal only three days prior to the institution of the application.
Final Decision: The High Court set aside the impugned order of the Appellate Authority and restored the order of the Rent Controller ejecting the tenants from the shop in dispute.
1. Kishan Chand, landlord-petitioner, letted out the shop in dispute, situated in the urban area of Gurdaspur town to Banarasi Dass and Chaman Lal, respondents Nos. 1 and 2, at a monthly rental of Rs. 40.00 with effect from 1st of September, 1962, vide rent note Exhibit A-1 dated 8th of September, 1962. The landlord sought the ejectment of the tenant from the shop in dispute on the basis of non-payment of rent with effect from 1st of August, 1976, till the filing of this application i.e. 31-1-1977. He also sought the ejectment of the tenants on the ground of having parted with the possession of the shop in dispute since the year 1966 to Kasturi Lal and Roop Lal, respondents Nos. 3 and 4, without the written consent of the landlord. It is further averred that the business in the shop in dispute was carried on in the name and style of M/s. Roop Lal Kasturi Lal from 1966 to 1971 while Chaman Lal, respondent No. 1, is earning his livelihood from transporting goods on a cart and Banarsi Dass, respondent No. 2, is selling fruits and vegetables. Thus it was maintained that the original tenants have absolutely no interest in the business of kiryana being carried out in the shop in dispute by respondents Nos. 3 and 4. The dilapidated condition of the shop in dispute was also stressed.
2. The respondents tendered the rent on the first date of hearing. The remaining averments of the landlord were controverted. It was alleged that respondents Nos. 1 and 2 never transferred their right of tenancy in the shop in dispute to respondents Nos. 3 and 4. On the other hand, it was averred that all the respondents are real brothers and members of the joint Hindu family. The actual control of premises is with respondents Nos. 1 and 2 and they are running business in the shop. Subsequently, the tenants were allowed to file the amended written-statement in order to plead that Roop Lal, respondent No. 4, is the karta of the joint Hindu family formed by all the respondents and thus there cannot be any sub-letting. It was, however, asserted that the actual control of the premises was with respondents Nos. 1 and 2. Another amended ground was that the present application has been filed when the tenants failed to oblige the landlord to enhance the rent of, the shop to Rs. 250.00 per month.
3. In replication, the landlord controverted the allegations in both the written-statements besides reaffirming his original averments in the application.
4. The learned Rent Controller, Gurdaspur, vide his order dated 21-9-1978 ordered the ejectment of the tenants from the shop in dispute on the ground of sub-letting.
5. On appeal, the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 , (hereinafter referred to as the Act ) reversed the decision of the Rent Controller by holding that the landlord had failed to prove that respondents Nos. 1 and 2 had parted with the possession of the disputed shop or that these respondents were charging any rent from respondents Nos. 3 and 4. On the other hand, it was held that all the four respondents being brothers and members of the joint Hindu family were running the business in the shop in dispute and it was not a case of subletting.
6. The landlord being aggrieved against the impugned order of the Appellate Authority has come up in revision under Section 15(5) of the Act. Mr. H.L. Sarin, the learned Senior Advocate, assisted by Shri R.L. Sarin, Advocate, contended that the Appellate Authority had failed to appraise the documentary as well as oral evidence in the right context which has resulted in miscarriage of justice and that it was a clear case for interference on the revisional side under Section 15(5) of the Act as the revisional powers of the High Court under these provisions are wider than the one under Section 115 of the Code of Civil Procedure. He further maintained that once the landlord proves that the tenant had parted with the possession of the shop in dispute, the burden shifts on the
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