Sunday, 24 December 2017

Whether eviction suit can be dismissed if subtenant has subsequently vacated tenanted premises?

Insofar as the submission advanced on behalf of the respondents that even assuming that the plaintiff had established the case of subletting it would be essential to find out the date from which the sub tenancy was commenced and since there was no clear evidence about the said date it would be necessary to remand the matter. I fail to understand as to how this would affect the conclusion with regard to ground of subletting. In my view, it was sufficient for the plaintiff to bring on record that prior to the institution of the suit the defendants had sublet the suit premises. And there is ample material on record in the present case to indicate that defendant No. 5 was inducted as subtenant prior to the institution of the suit. Merely because the subtenant has subsequently vacated the suit premises that would be of no avail. This position is no more res integra and has been answered by the Apex Court in the case of Gajanan Dattatraya v. Sherbanu Hosang Patel and others, (supra) and the subsequent decision reported in Raghunathi and another v. Raju Ramappa Shetty (supra). Now coming to the other submission, the decision of the Division Bench of this Court has already concluded the Issue that the successor-in-interest can recover possession on the ground of subletting if the said ground was not waived by the original landlord. (See Radhabai Bapurao Shelar and others v. Trimbak Madhavrao Shirole and others. Admittedly in the present matter there is no pleading that the former landlord had waived the ground of subletting in favour of the defendants. In absence of such a plea it is not possible to entertain this contention as the same will not arise of consideration at all. As observed earlier in view of the settled legal position what is to be seen Is that on the date of institution of the suit whether ground of subletting has been made out, as in the present case. It is, therefore, not necessary to answer the question of waiver of sub-tenancy in the present case. Further the enquiry into the date of commencement of sub-tenancy would be wholly irrelevant having regard to the facts and circumstances of the present case, therefore, there is no need of remanding the matter to examine the said question as contended by the respondents.
IN THE HIGH COURT OF BOMBAY

Write Petition No. 5390 of 1987

Decided On: 22.12.2000

 Radhabai Krishnanand Vernekar Vs. Gourawwabai Sharnappa Bukka and Ors.

Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation: 2001(2) MHLJ 645

1. This writ petition has been filed by the landlady challenging concurrent decisions of the two Courts below in dismissing the Regular Civil Suit No. 1313 of 1976 instituted by her before the Court of Joint Civil Judge, J. D.,Solapur. The Trial Court by its judgment and order dated 30.1.1982 was pleased to dismiss the said suit, which order came to be confirmed by the Appellate Court III Additional District Judge, Solapur on 23.4.1987 in Civil Appeal No. 250 of 1982.

2. The petitioner had filed suit for recovery of possession of the suit property consisting of two room and one shop along with sore situated In Municipal House No. 139 of CTS No. 3930 A,B,C. Shukrawar Peth, Solapur on the ground floor as described in the para 1 of the plaint. Although possession of the suit property was claimed on more than one ground under the Bombay Rent Act, however, before this Court, in the present petition under Article 227 of the Constitution, the Petitioner has confined the ground of subletting only. In the circumstances it would not be necessary to burden this judgment with the other issues.

3. Insofar as the ground of subletting is concerned, the averments in the plaint, particularly in para 6 thereof, would indicate description of the suit property and the fact that the same was originally let out to one deceased Sharnappa for residence only on monthly rent. It is stated that after the demise of the said original tenant Sharnappa, defendant Nos. 1 to 4 viz. respondent Nos. 1 to 4 herein, being the heirs and legal representatives of the original tenant, were occupying the said premises till filing of the suit. His further stated that defendant Nos. 1 to 4 secured alternate accommodation elsewhere and they shifted their residence in the newly acquired premises. It is further stated that the said defendants after vacating the two rooms on the western side allowed to remain vacant unused and inducted defendant No. 5. as sub-tenant in one room on the southern side and allowed the same to be unauthorizedly used by defendant No. 5 and collected rent from the said defendant. It is further asserted that defendant Nos. 1 to 4 collected huge rent from the said defendant No. 5 for one room unauthorisedly sublet to defendant No. 5 and thus indulged in profiteering. In the same para it is further asserted that the remaining one room was used by defendant Nos. 1 to 4 for storing goods as godown instead of using the same for residence on account of which the premises have been damaged. With this allegation the petitioner proceeded with the suit against the defendants.

4. In response to the said assertions, all the five defendants filed a joint written statement before the Trial Court. While dealing with the allegation of subletting, in para 9 of the written statement, it is vaguely denied that the defendants have indulged in unauthorised subletting of the premises to defendant Nos. No. 5 as sub-tenant and charging huge monthly rent from him. No other plea has been taken by the defendants in the pleadings filed before the Trial Court. On the basis of rival pleadings issues were framed and one of the issue of subletting was framed as issue No. 5.

5. The plaintiff examined herself as P.W. 1 and her husband as P.W. 2. whereas defendant No. 4 / respondent No. 4 alone entered the witness box as D.W.1, on behalf of D1 to D4. Besides the oral evidence the plaintiff adduced documentary evidence in the shape of voters' list (Ex. 31/1.). postal correspondence (Ex. 76/1 to 76/5), postal acknowledgments (Ex. 61) and summons served on defendant No. 5 on the address of the suit premises to establish that defendant No. 5 was residing in the suit premises as sub-tenant. We would examine the relevant evidence in detail a little later.

6. The Trial Court after considering the evidence on record and rival versions discussed issue No. 5 in paras 20 to 22 of its judgment. The Trial Court has held that the plaintiff had failed to bring on record any evidence to establish the plea of subletting in favour of defendant No. 5. The Trial Court further held that non-examination of defendant No. 5 did not affect the stand taken by the defendants on the issue of subletting in any manner. With regard to documentary evidence produced by the plaintiff to establish the allegation of subletting, even the same did not find favour with the Trial Court, for according to the Trial Court, from the said documents it cannot be gathered that defendant Nos. 1 to 4 had sublet the portion of the suit premises to defendant No. 5. The Trial Court relied on the decision of this Court in the case of Shantinath S. Ghongade v. Rajmal Uttamchand Gugale, to conclude that since previous owner did not take any action against the tenant the petitioner who had purchased the suit property only on 1.8.1975 and the alleged subletting being prior to the said purchase it was not open to the petitioner-plaintiff to Institute the suit against the defendants on this ground. Accordingly this issue was rejected by the Trial Court and answered against the petitioner.

7. The petitioner carried the matter Jan appeal before the District Judge, Solapur by way of Civil Appeal No. 250 of 1982. The Appellate Court confirmed the findings recorded by the Trial Court and negatived the issue of subletting. The Appellate Court has discussed this issue in paras 13 to 16. The Appellate Court, besides affirming the findings of the Trial Court, recorded that there was no evidence to accept the plea of subletting. The Appellate Court recorded that no evidence was adduced by the petitioner on the question of exclusivity of possession of the sub-tenant defendant No. 5. The Appellate Court also held that there was no evidence that defendant No. 5 was residing continuously and therefore negatived the ground of subletting.

8. Against the aforesaid concurrent decisions the present writ petition under Article 227 of the Constitution has been preferred by the petitioner, the main grievance of the petitioner is that both the Courts below have committed error apparent on the face of the record. According to the petitioner there was ample legal evidence to record finding against the defendants on the issue of subletting. The petitioner contends that the petitioner not only specifically pleaded the case of subletting but also adduced sufficient proof in support of the said plea. The petitioner not only relied on the documentary evidence but also on the pleadings and oral evidence adduced by both sides to contend that the petitioner has successfully discharged the burden of proof on the issue of subletting, whereas the defendants have not only failed to plead but also failed to discharge their burden on the said issue. The petitioner contends that in fact no evidence whatsoever has been let in on behalf of defendants and on that count alone the decree ought to have been made by the Courts below. The petitioner also contends that even on the legal position as to the competence of the petitioner to institute the suit on the ground of subletting answered by the Trial Court and confirmed by the Court below is erroneous, for the Courts below have relied upon the decision of this Court which has been subsequently overruled by the Division Bench of this Court in the case of Radhabai Bapurao Shear and others s. Trimbak Madhavrao Shirole and others. The petitioner also relies on the decision of the Apex Court in the case of Bharat Sales Ltd. v. Life Insurance Corporation of India, to contend that the proof of subletting is very light on the landlord and once the landlord discharges the initial burden then the burden shifts on the defendants on the material aspects by affirmative evidence In the matter of rent or monitory consideration and delivery of exclusive possession, whereas the Court is permitted to draw its own inference upon the facts of the case proved at the trial while recording finding of subletting. The counsel for the petitioner has also relied upon the decision of the Apex Court in the case of Gajanan Dattatraya a. Sherbanu Hosang Patel and others, to contend that subletting need not subsist on the date of the suit. Another decision of the Division Bench of this Court in the case Radhabai v. Trimbak (supra) to contend that right to recover possession of the suit premises would be available lo the successor-in-interest if the said right has not been waived by the original landlord. According to the petitioner from the pleadings as well as evidence on record it was amply clear that the respondents at no point of time have asserted that right to recover possession of the suit property on this ground has been waived by the previous landlord. Another decision of the Apex Court has been relied upon on behalf of the petitioner in the case of Raghunathi and another v. Raju Ramappa Shetty, on the principle that subtenant left the premises at subsequent point of time would be of no consequence while considering the suit for eviction on the ground of subletting.

9. On the other hand the learned counsel for the respondents vehemently supported the findings recorded by the two Courts below. The main argument of the respondents was that this Court in exercise of writ jurisdiction under Article 227 ought not to interfere with the concurrent findings recorded by the two Courts below. The counsel for the respondents placed reliance on the decision of the Apex Court in the case of Jagdish Prasad v.. Smt. Angoori Devi to support the aforesaid submission. The said decision also enunciates the legal position with regard to burden of proof to establish the ground of subletting. The counsel for respondents mainly contended that if this Court was to interfere with the findings recorded by the two Courts below it would tantamount to this Court reappreciating the evidence which was the prerogative of the Appellate Court. In other words, it was submitted that this Court would be acting in excess of jurisdiction in reappreciating the evidence on record. It is further submitted on behalf of the respondents that even if different pieces of evidence are considered and taken into account it cannot be held that the petitioner-plain tiff had discharged the initial burden and it cannot be said that the said evidence is sufficient enough in law to answer the ground of subletting against the defendants. When the counsel for respondents was confronted with the pleadings of the defendants filed before the Trial Court, the submission advanced on behalf of the respondents was that in the absence of denial by the defendants In the pleadings before the Trial Court it is still the duty of the Court to look into the material on record to find out sufficiency of evidence. It was further submitted that even assuming that case of subletting was made out even then it would be essential for the Court to record finding as to the date of inception of subletting and for which reason it would be imperative to remand the matter to the lower Court to record a finding atleast on this limited aspect.

10. I shall now proceed to examine the rival submissions. I am conscious of the fact that it is not open for this Court to reappreciate the evidence on record and to take a view different than the one already taken by the Courts below merely because in the opinion of this Court another view was possible. However, in the present case, what I find is that from the pleadings and the evidence on record a clear case was made out and there was sufficient legal evidence to buttress the issue of subletting; whereas the Courts below have proceeded on certain assumptions, which approach cannot be supported in law. In the circumstances, I find it imperative to examine the matter in the wake of the material on record so as to find out whether it can be said that this is a case of no evidence as concurrently held by two Courts below? And, If the answer is in the negative, then, naturally, to avoid miscarriage of justice it would be the duty of the High Court to exercise jurisdiction under Article 227 of the Constitution.

11. Before dealing with the evidence adduced on record it would be appropriate to refer to the pleadings of the parties. As mentioned above the plaintiff made specific averments in the plaint on the issue of subletting. While dealing with the said issue the respondents in their joint written statement answered the same in para 9 by merely vaguely denying the same. Even if we were to construe the pleadings liberally: and even if we were to consider all the averments in the written statement to read it as a whole, yet the requirement in law about the denial to be specific, has not been taken care of. Besides denial to be specific, the law also postulates that evasive denial would be of no consequence. In this connection references can be made to the provisions in Order VIII of Code of Civil Procedure which deals with the requirements of written statement. Rule 2 requires that the defendant must raise by his pleadings all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as. if not raised, would be likely to take opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. Rule 3 postulates that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. On perusal of the written statement in question it would be seen that this requirements have not been fulfilled at all. Besides that the requirements of rule 4 is also clearly overlooked in the written statement filed before the Court below. Rule 4 provides that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. It further provides that if it is alleged that he received certain sum of money, It shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if allegation is made with diverse circumstances, it shall not be sufficient to deny It along with those circumstances. Reference to rule 5 is also material which provides that every allegation in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Having regard to these provisions, the stand taken in the written statement on behalf of the defendants, cannot be said to be in conformity with the requirement of law. In fact no stand whatsoever has been taken in the written statement except the vague denial of assertions contained in the plaint. Nonetheless issue was struck by the Trial Court with regard to subletting being issue No. 5.

12. Besides the pleadings what is found from the evidence placed before the Courts below is that the plaintiff herself stepped into the witness box but also examined her husband (P.W.2) who was looking after the maintenance and administration of her property. In the cross-examination of P.W. 1, viz. plaintiff, the only question put to her was whether she knew defendant No. 5, which she has denied. On the other hand, the plaintiff, in the evidence of P.W. 2. has brought on record that defendant Nos. 1 to 4 have sublet portion of the suit property to defendant No. 5 and collecting rent from him. However this plaintiff witness has not been cross-examined on behalf of defendants on this aspect at all. All that was put to this witness in para 7 of the cross-examination reads as under :

"7. The Deft. No. 5 is sub-tenant since prior to my purchase. It is not true that, the Deft. No. 5 is not sub-tenant, I know that the Deft. collected rent from the Deft. No. 5."
In other words the evidence led on behalf of the plaintiff for discharging her initial burden has gone unchallenged. Besides the oral evidence the plaintiff had admittedly adduced documentary evidence in the shape of voters' list, postal correspondence, postal acknowledgements and summons served on defendant No. 5 on the address of the suit premises. This was admissible evidence an was sufficient enough to discharge the initial burden of the plaintiff on the issue of subletting. As ruled by the Apex Court in the case of Bharat Sales Ltd. v. Life Insurance Corporation of India (supra) it was then for the tenant to discharge the burden which had shifted on him by adducing affirmative evidence with regard to exclusivity of possession or payments allegedly made by defendant No. 5 and such other matters so as to rebut the evidence and dissuade the Court from drawing inference on the material aspect. The respondents have obviously failed to discharge their burden which shifted on them on this aspect. Moreover, the defendant No. 5 who was material witness has not stepped into the witness box, but the defendants merely examined defendant No, 4 only on behalf of defendant Nos. 1 to 4. This defendants' witness was cross-examined on behalf of the plaintiff. In para 7 of his evidence the defendant for the first time came out with the case that defendant No. 5 was friend of deceased Shranappa and that he used to visit the shop of defendants. The relevant evidence of this witness can be reproduced thus :

"7. The Deft. No. 5 was friend of Shranappa. He used to visit our shop. Plaintiffs report about service of summons is false. 1 cannot identify signature of the Deft. No. 5. I do not know that, notice to the Deft. No. 5 is beard on that address- It is true that, we all the Defts. replied to the notice. I also not know details of the family and residence of the Deft. No. 5. I know that the name of the Deft. No. 5 and his wife appears in voters' list. It is not true that, I am deposing false about the contract and I was then minor. One Vaidya was the previous tenant I do not know when Vaidya vacated it. I can't give any reason as to why the date and month of occupying it is not given in W. S. Walawekar is dead. His song are living. 1 am not going to examine them. The Deft. No. 5 is not on cross terms with me. I do not know that, ration card of the Deft. No. 5 was at that address only. It is not true that the Deft. No. 5 was residing there with his family. We all the Defts. gave instructions to our counsel. I did not enquire into residence of the Deft. No. 5. Tenancy starts from first."
13. On the basis of the above legal evidence it was not open to the Courts below to come to the conclusion that no evidence was adduced on behalf of the plaintiff on the issue of subletting. On the other hand what is seen is that the plaintiff has not only specifically pleaded but has also adduced evidence to discharge the initial burden of proof on the plaintiff. The Courts below have clearly committed error apparent on the fact of record in concluding that no evidence has been adduced by the plaintiff in support of the ground of sub-tenancy.

14. The submission advanced on behalf of the respondents that this Court should not reappreciate the evidence on record, merely deserves to be stated to be rejected: for the simple reason that this is not a matter which would require re-appreciation of the evidence, but in my view the Courts below have committed error apparent on the face of the record in concluding that the plaintiff had failed to adduce evidence in support of the issue of subletting inspite of clear pleadings and overwhelming oral and documentary evidence adduced on behalf of the plaintiff to discharge the initial burden of proof and when the defendants failed to take any clear stand on the issue or adduce evidence to discharge their burden of proof. As such I find no merits in the submission advanced on behalf of the respondents that in exercise of jurisdiction under Article 227 of the Constitution this Court should not interfere with the concurrent finding of facts, for. in my view, the finding recorded by both the Courts below cannot be sustained in law.

15. While dealing with the second submission advanced on behalf of the respondents that the pieces of evidence adduced on behalf of the plaintiff, even if held to be proved, were not sufficient enough to hold that the case of subletting was established in law. I am afraid, even this submission clearly overlooks that this is a case where the plaintiff had not only approached the Court with specific pleading but also adduced oral and documentary evidence to discharge the initial burden, whereas the defendants failed to adduce any evidence on the said issue much less an affirmative evidence which they ought to have adduced. As observed earlier, there is no pleading nor any evidence adduced by the defendants, coupled with the fact that the defendant No. 5 who was the material witness has not chosen to enter the witness box whereas oral evidence has been let in on behalf of defendant Nos. 1 to 4 only. Understood thus, even the third submission of the respondents that it is the duty of the Court to look into the material on record to find out sufficiency of evidence even in absence of pleadings or specific denials by the defendants in the pleadings, I am of the view that even this submission is totally misplaced and 111 advised inasmuch as it clearly overlooks that there is not only clear pleading on behalf of the plaintiff but the plaintiff has also discharged the initial burden of proof on issue of subletting. The plaintiff besides adducing oral evidence has proved from the documentary evidence in the shape of voters' list which contained the name of defendant No. 5 as his residence address shown as suit premises; the postal correspondence and the postal acknowledgments would also indicate that defendant No. 5 was staying in the suit premises; even the Court summons in respect of this suit has been admittedly served on defendant No. 5 on the suit premises. Taking the totality of the circumstances into account it is not open to give any benefit to the defendants particularly when they have failed to adduce any legal evidence to bring on record any affirmative evidence regarding the material points to discharge their burden.

16. Insofar as the submission advanced on behalf of the respondents that even assuming that the plaintiff had established the case of subletting it would be essential to find out the date from which the sub tenancy was commenced and since there was no clear evidence about the said date it would be necessary to remand the matter. I fail to understand as to how this would affect the conclusion with regard to ground of subletting. In my view, it was sufficient for the plaintiff to bring on record that prior to the institution of the suit the defendants had sublet the suit premises. And there is ample material on record in the present case to indicate that defendant No. 5 was inducted as subtenant prior to the institution of the suit. Merely because the subtenant has subsequently vacated the suit premises that would be of no avail. This position is no more res integra and has been answered by the Apex Court in the case of Gajanan Dattatraya v. Sherbanu Hosang Patel and others, (supra) and the subsequent decision reported in Raghunathi and another v. Raju Ramappa Shetty (supra). Now coming to the other submission, the decision of the Division Bench of this Court has already concluded the Issue that the successor-in-interest can recover possession on the ground of subletting if the said ground was not waived by the original landlord. (See Radhabai Bapurao Shelar and others v. Trimbak Madhavrao Shirole and others. Admittedly in the present matter there is no pleading that the former landlord had waived the ground of subletting in favour of the defendants. In absence of such a plea it is not possible to entertain this contention as the same will not arise of consideration at all. As observed earlier in view of the settled legal position what is to be seen Is that on the date of institution of the suit whether ground of subletting has been made out, as in the present case. It is, therefore, not necessary to answer the question of waiver of sub-tenancy in the present case. Further the enquiry into the date of commencement of sub-tenancy would be wholly irrelevant having regard to the facts and circumstances of the present case, therefore, there is no need of remanding the matter to examine the said question as contended by the respondents.

17. Taking totality of the circumstances into account I have no hesitation in recording that both the Courts below have misdirected themselves and clearly committed an error apparent on the fact of the record in negating the plea of subletting made out by the plaintiff. In my view, there was not only specific pleading, but ample oral as well as documentary evidence adduced by the plaintiff to discharge the initial burden of proof; whereas the defendants had clearly failed to plead but also to lead evidence so as to discharge their burden of proof which had shifted on them. In the circumstances. I have no other option but to reverse the concurrent decisions passed by the two Courts below and instead decree the suit in favour of the petitioner -plaintiff on the ground of subletting only.

18. For the aforesaid reasons the judgment and order passed by the III Addl. District Judge. Solapur on 23.4.1987 in Civil Appeal No. 250 of 1982 and the judgment and order dated 30.1.1982 passed by the Joint Civil Judge, J.D, Solapur in Regular Civil Suit No. 1313 of 1976 are set aside and instead the suit for recovery of possession of the suit premises stands decreed. The plaintiff is entitled to recover possession of the suit premises.

19. Learned Counsel for the respondents prays for reasonable time to vacate the suit premises on the ground that the respondents are desirous of challenging the present decision before the Apex Court and also because the respondents are using part of the premises for their business purposes. Counsel for the petitioner, though opposes the said prayer; but would prefer to leave it to the Court with regard to the time to vacate to be granted to the respondents. Having regard to the facts and circumstances of the case I think it appropriate to grant time to vacate the suit premises to the respondents on usual conditions for upto 30.6.2001 subject to filing of usual undertaking of all the adult members of the family of respondents within three weeks in this Court. No order as to costs.


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