1. Heard Sri A.C. Pandey, learned counsel for the defendant-petitioner and Sri K.K. Arora, learned counsel appearing for the plaintiff-respondent.
2. Present petition has been filed for setting aside the order dated 31.5.2018 passed by Additional District Judge, Court No. 11, Bareilly in SCC Revision No. 46 of 2007 (Jagdish Prasad vs. Manju Goel and others) as well as order dated 31.8.2007 passed by the Judge Small Causes Court, Bareilly in SCC Suit No. 75 of 2002 (Smt. Manju Goel vs. Jagdish Prasad and others).
3. By the impugned judgment dated 31.08.2007 passed by the trial court, SCC suit filed by the plaintiff-respondent was allowed and the SCC revision filed against the same was dismissed by the learned revisional court vide impugned judgment dated 31.05.2018.
4. Seven issues were framed by the trial court. Issue no. 1 regarding default in payment was decided against the plaintiff and was held that the defendant no. 1 was not in default; on issue no. 2 it was found that defendant no. 2 Rohitash Kumar is the sub-tenant of defendant no. 1, Jagdish Prasad, and is thus, liable for eviction on this ground; on issue no. 3, it was found that the notice of termination of tenancy was duly served on the defendant; issue no. 4 regarding Order 7 Rule 11 CPC was not pressed and was therefore, decided against the defendant; on issue no. 5, it was found that the estoppal (Vivandhan) is not applicable in the present case; on issue no. 6 it was found that the defendants are liable for eviction; on issue no. 7 it was found that the plaintiff is entitled for damages for use @ Rs. 82.50 per month. In this manner, the trial court has allowed the suit filed by the plaintiff-respondent herein.
5. Two separate revisions were filed by the defendants, which were clubbed together and were decided by a common judgment. SCC Revision No. 46 of 2007 was filed by defendant no. 1, Jagdish Prasad Goel and SCC Revision No. 47 of 2007 was filed by the defendant no. 2, Rohitash Kumar Goel against the plaintiff-respondent. The revisional court by a detailed judgment dismissed the revisions. Both these orders are under challenge before this Court.
6. Submission of learned counsel for the defendant-petitioner-Jagdish Prasad, defendant no. 1, is that the findings of the courts below on the issue of sub-letting are contrary to record and are not in accordance with law. He submits that the courts below have failed to apply their judicial mind and have not appreciated the various documents and the admission of the previous landlady Harmatumnisha in her written statement filed in previous litigation, therefore, the findings recorded by the courts below are absolutely perverse and illegal and are liable to be set aside by this Court. Placing reliance on judgment of Hon'ble Apex Court in the case of S.F. Engineer vs. Metal Box India Limited and another 2014 (6) SCC 780 (paragraphs 21 to 26), he submits that the findings of the court below are not based on sound inference and have not been drawn from established facts and are, thus, not legitimate and therefore, the same are liable to be set aside. He submits that to establish sub-letting as a ground of eviction two ingredients must be established, one, parting with the legal possession of the premises of the tenant in favour of a third party, and second, such parting with possession has been done without consent of the landlord in lieu of the monetary consideration. On facts of the case submission of learned counsel for the petitioner is that once Harmatumnisha in her statement filed in Suit No. 115 of 1977 (Bela Devi vs. Jagdish Prasad) has admitted that both Jagdish Prasad, defendant no. 1, petitioner herein, and Rohitash Kumar, defendant no. 2, respondents second set herein, are tenant, who is admittedly the earlier landlady from whom the plaintiff-respondent herein has purchased the property, and also in view of the assertions made in Suit No. 274 of 1973 (Sewa Ram vs. Harmatumnisha), wherein both of them were stated to be tenant, Bela Devi w/o late Lala Sewa Ram in Suit No. 115 of 1977 has impleaded Jagdish Prasad and Rohitash Kumar as defendant nos. 1 and 2 and has stated that Lala Sewa Ram has granted a license dated 15.06.1973 in their favour but subsequently, they have illegally took forcible possession, the fact that emerges is that both Jagdish Prasad as well as Rohitash Kumar were infact tenant in the property in question and status of Rohitash Kumar was not that of a sub-tenant and therefore, there was no sub-letting in the present case. Drawing attention to the written statement of Harmatumnisha filed in Suit No. 274 of 1973 submission is that Sewa Ram, who was earlier tenant in the premises in question, may have sub-let the premises in question to Jagdish Prasad and Rohitash Kumar both but this does not affect the status of Rohitash Kumar as Jagdish Prasad has not sub-let the premises to Rohitash Kumar, who is his (Jagdish Prasad) real brother. He further submitted that time of sub-letting has not been given in the plaint. It was also sought to be argued that infact, Bela Devi is related to the present plaintiff-respondent. He further submitted that the issue as to whether Rohitash Kumar was sub-tenant or tenant in the year 1999 was not framed by the courts below and therefore, a material irregularity was committed.
7. Per contra, Sri K.K. Arora, learned counsel for the plaintiff-respondent submitted that the present landlady derives its title from the registered sale deed dated 03.02.1999 executed by Harmatumnisha in her favour and therefore, all the previous litigations between the landlord and the petitioner have lost their relevance. He pointed out that Sewa Ram and Ram Kumar, who filed earlier litigation, were admittedly tenants in the suit. It was submitted that admittedly, the registered rent deed dated 25.8.1973 was executed and entered into between Harmatumnisha and Jagdish Prasad only. No third person including Rohitash Kumar was named in this registered rent deed and on the contrary, specific bar of sub-letting was imposed. He submitted that in the light of this registered rent deed, which is undisputedly documentary piece of evidence, no oral or any other document can be seen particularly, when the documents that are being relied on by learned counsel for the petitioner are the pleadings of the parties in a previous litigation, wherein the present plaintiff-respondent was not a party, no reliance can be placed on them in view of Sections 91, 92 and 94 of the Indian Evidence Act. He submits that in view of Section 25 of the U.P. Act 13 of 1972 it is a clear case of sub-letting and the petitioner is liable for eviction. He further pointed out that as a matter of fact, in view of the statement of the defendant no. 2 Rohitash Kumar as noticed that he is in occupation of certain portion mentioned in the written statement with yellow colour and is doing his separate business and he is having separate electricity and telephone connection and more importantly he is paying Rs. 41/- per month as rent to Jagdish Prasad (the petitioner herein) and it is not known that Jagdish Prasad passes this on to the landlady or not and admitted that no receipt is issued by Harmatumnisha and no rent deed was executed by her, and that he was put in tenanted accommodation on temporary basis for a certain period, nothing further is required to be proved. Submission, therefore, is that once the possession is exclusive possession and is admitted by Rohitash Kumar himself and he has also admitted that Harmatumnisha, the then landlady has never executed any rent deed in his favour and he is paying monetary consideration in the shape of rent @ Rs. 41/- per month to the petitioner herein Jagdish Prasad, nothing further is required to be seen. He submits that the petition, therefore, is devoid of merits and is liable to be dismissed.
8. I have considered the rival submissions and have perused the record.
9. On perusal of record I find that the sole issue involved in the present case is regarding correctness of the decision of the courts below on the issue of sub-tenancy.
10. I have considered this issue of sub-tenancy in my recent judgment dated 06.07.2018 passed in Matters Under Article 227 No. 4431 of 2018 (Kallu Prasad Alias Indra Prakash and another vs. State of U.P. and others), wherein on the basis of the law laid down I have noticed the legal issue as summarised by the Hon'ble Apex Court. Paragraphs 11, 16, 18, 19, 20 and 21 thereof are quoted as under:
"11. Before proceeding further it would be appropriate to take note of the legal position as summarized by Hon'ble Apex Court for dealing with the issue of sub-letting / sub-tenant / sub-tenancy in paragraph 25 of Celina Coelho Pereira (Ms) and others vs. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217, which is quoted as under:-
"25. The legal position that emerges from the aforesaid decisions can be summarised thus :
(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
16. Section 20(2)(e) of the Act of 13 of 1972 provides that a suit for eviction of tenant is maintainable on the ground that the tenant has sub-let in contravention of the provisions of Section 25 the whole or any part of the building. Section 25 in unambiguous terms provides that no tenant shall sub-let the building.
18. A reference may be made in this regard to a recent judgment of Hon'ble Apex Court in the case of Flora Elias Nahoum and others vs. Idrish Ali Laskar 2018 (1) ARC 495 (SC) and Bharat Sales Limited vs. Life Insurance Corporation of India 1998(3) SCC 1.
19. Paragraph 17, 44, 45, 46 and 47 of Flora Elias Nahoum (supra) are quoted as under:-
"17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.
44. In a case of sub-letting, if the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any third party?s induction in the tenanted premises, no case of sub-letting is made out against such tenant.
45. In other words, the sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlord's consent.
46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1, while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.
47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:
4. 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 over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the 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."
20. Apart from paragraph 4 of Bharat Sales Limited (supra) as quoted / relied on in Flora Elias Nahoum (supra) (as quoted above) it would be beneficial to note para 5 of Bharat Sales Limited (supra) also, which is also quoted as under:-
"5. In Rajbir Kaur vs. S. Chokesiri & Co. (1989) 1 SCC 19, it was held that it was not necessary for the landlord in every case to prove payment of consideration. It was laid down that if exclusive possession was established, it would not be impermissible for the Court to draw an inference that the transaction was entered into with the monetary consideration in mind. The Court further observed that transactions of subletting in the guise of licences are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be furnished direct evidence in every case. It will be noticed that in this case it was established as a fact that the tenant had parted with a part of the demised premises in favour of an ice-cream vendor who was in exclusive possession of that part of the premises and, therefore, the Court drew an inference that the transaction must have been entered into for monetary consideration. This decision has since been followed in many cases, as, for example, United Bank of India Vs. Cooks and Kelvey Properties (p) Ltd. (1994) 5 SCC 9, upon which, as we shall presently see, reliance has been placed by the petitioner also."
21. Therefore, if it is proved that possession has been delivered by the landlord and sub-tenant is in exclusive possession of the whole or part, as the case may be, of the premises, the court can draw inference that transaction must have been entered into for monetary consideration."
11. Now, coming to the facts of the case, consideration of findings recorded by the court below on issue no. 2, whether defendant no. 2, Rohitash Kumar has been taken as sub-tenant of defendant no. 1 and if, yes, what is its effect, is necessary. On perusal of the findings recorded by the court below I find that the grounds that are being raised before this Court have been taken into account by the trial court and even more extensively by the lower revisional court.
12. Since, the findings recorded by the lower revisional court covers the consideration of the entire evidence on record. The arguments that are being raised on behalf of the present petitioner Jagdish Prasad, with whom registered rent agreement dated 25.08.1973 was executed by the earlier landlady Harmatumnisha and the stand taken by the defendant-no.2 Rohitahs Kumar, who has filed separate revision and is alleged to be the sub-tenant in the property in question, have already been taken into consideration by the lower revisional court.
13. The crux of the argument of the defendant-petitioner herein is that in view of the written statement of Harmatumnisha filed in O.S. No. 115 of 1977, wherein she had clearly stated that Jagdish Prasad and Rohitash Kumar both were tenants in the premises in question, there is no sub-letting. I have carefully gone through paragraphs 16 to 28 of the lower revisional court's judgment. It is pertinent to note that this O.S. No. 115 of 1977 was filed by Smt. Bela Devi w/o Late Lala Sewa Ram, who was admittedly the tenant in the premises in question. Earlier to this suit, Lala Sewa Ram himself had filed a suit no. 274 of 1973, wherein Harmatumnisha in her written statement had stated that Lala Sewa Ram had taken Jagdish Prasad and Rohitash Kumar as sub-tenant. What is more important in the present case is that to test the findings of the courts below as to whether there was sub-letting or not, in view of the settled law as quoted above that there has to be parting with the possession by the tenant in favour of the third party and that such parting has been done without any consent of the landlord and in lieu of the monitoring consideration. In the present case, suffice it to note that Rohitash Kumar himself has admitted in his written statement paper no. 55-Ga by annexing the map that he is tenant in possession of yellow part and is doing business. He further stated that defendant no. 1 Jagdish Prasad, the petitioner herein is the tenant of the portion shown with the red colour and is doing business there. It is also admitted that Rohitash Kumar is having a separate telephone and electricity connection and is doing separate business. It is also noticeable that a suit (OS No. 483 of 2000) was filed by the landlord for injunction when one shop was being converted into two shops wherein, Jagdish Prasad has filed his written statement claiming himself to be a tenant in the shop. It was also pointed out that it was stated by the petitioner herein that defendant no. 2 Rohitash Kumar is real brother and for sometime he had occupied some place on a temporary basis, which infact is in his tenancy and will remain in his (Jagdish Prasad) tenancy. There is no doubt about execution of the registered rent deed dated 25.08.1973 executed by Harmatumnisha in favour of Jagdish Prasad taking only him as a tenant and putting specific bar on taking any sub-tenant. Admittedly, the name of Rohitash Kumar is not included in this rent deed. Coupled with this fact, the admitted position remains that defendant Rohitash Kumar in his cross-examination paper no. 145-Ka and 155-Ka has clearly stated that he is tenant on his portion @ Rs. 41/- per month for which no receipt is being issued by Harmatumnisha and no rent deed was executed by her in his favour. It was specifically stated by him that he is paying rent to Jagdish Prasad and it is not known to him whether this rent is being passed on to the landlord or not. He further specifically admitted that he has a separate telephone and electricity connection and he does not have any rent receipt. Under such circumstances, both the two grounds as noticed above as per the settled law by Hon'ble Apex Court stood satisfied in the present case for holding that Rohitash Kumar is, infact, sub-tenant in the premises in question.
14. No other argument was advanced. Even otherwise it is the settled law that once ground of sub-tenancy is made out no other grounds are liable to be made out or seen as held by Hon'ble Apex Court in the case of Flora Elias Nahoum and others vs. Idrish Ali Laskar 2018 (1) ARC 495 (SC).
15. In view of the above-noted discussion that the principles of law as laid down by Hon'ble Apex Court even in the case of S.F. Engineer (supra) are satisfied and the aforesaid ruling is of no help to the petitioner.
16. A reference may also be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited.
17. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.
18. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.1.2019;
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order.
(4) The tenant-petitioner shall pay damages @ Rs. 2000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
19. There shall be no order as to costs.
Order Date :- 20.8.2018 Lalit Shukla