Saturday, 9 February 2019

When court should not pass decree for eviction of tenant on ground of subletting of tenanted premises?

 In the present case, the learned District Judge has observed in
paragraph 11 that the suit premises was originally let out to one Yesammabai.
The plaintiff claimed that defendant No.1 Parubai was no way related to the
original tenant. Since she was residing with the original tenant, the plaintiff
recognized her as a tenant. The plaintiff alleged that defendant No.1 has sublet
the suit premises to defendants No.2 and 3 who are no way related to
defendant No.1. The learned District Judge thereafter observed, “admittedly all
the 3 defendants are residing in the suit premises”. The question is whether the
plaintiff has proved one of the ingredients of subletting. A perusal of the
impugned order does not show that the learned District Judge recorded any
finding as regards satisfaction of one of the ingredients of unlawful subletting.
Before passing decree on the ground of subletting, it is necessary to record a
finding to the effect that third party was found to be in exclusive possession of
the rented premises. In the present case, no such finding is recorded by the
learned District Judge. In view thereof, the impugned order cannot be
sustained and as such is liable to be set aside. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.1964 OF 1998

Parubai Vithal Kamble  Vs. Girdharilal Agarwal 


CORAM : R.G. KETKAR, J.
DATE : 1st FEBURARY, 2019.



Heard Mr. Joshi, learned Counsel for the petitioners and Ms. Khan,
learned Counsel for the respondent at length.
2. By this Petition under Article 227 of the Constitution of India, the
petitioners, hereinafter referred to as “defendants' have challenged the
judgment and decree dated 20th December, 1997 passed by the learned IV
Extra Joint District Judge, Pune in Civil Appeal No.882 of 1995. By that order,
the learned District Judge allowed the appeal preferred by the respondent,
hereinafter after referred to as 'plaintiff' and set aside the judgment and decree
dated 11th August, 1995 passed by the learned II Additional Small Causes
Judge, Pune in Regular Civil Suit No.1186 of 1990. The learned District Judge
decreed the suit and directed the defendants to deliver vacant and peaceful
possession of two rooms admeasuring 18'x39' square meters in Amirchand
Chawl situate at C.S. No.24A, Bopodi, more particularly described in paragraph

1 of the plaint. The relevant and material facts, that are necessary for disposal
of the present Petition, briefly stated, are as under.
3. The plaintiff instituted suit against the defendants for recovery of
possession, inter alia, alleging that defendant No.1 remained in arrears of rent
and other charges from 1st June, 1980. The plaintiff issued demand notice
terminating tenancy of defendant No.1 and called upon defendant No.1 to
comply with the demands made therein. Defendant No.1 gave reply on 29th
January, 1989 and denied the contents of the notice. On 11th September, 1990,
the plaintiff instituted the suit alleging that defendant No.1 is a defaulter;
defendant No.1 had sublet the suit premises to defendants No.2 and 3;
defendant No.1 has made permanent construction (ota) in front of the suit
premises; defendant No.1 has been causing nuisance and annoyance to the
plaintiff and other occupiers and that the plaintiff requires the suit premises
reasonably and bona fide. The plaintiff had thus instituted the suit invoking
grounds under section 12, 13 (1) (e), 13 (1) (b), 13 (1) (c) and 13 (1) (g) of
the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short
'Act'), The defendant filed written statement at Exhibit 11 and resisted the suit.
On the basis of the pleadings of the parties, the learned trial Judge framed the
necessary issues. By order dated 11th August, 1995, the learned trial Judge
dismissed the suit. Aggrieved by that decision, the plaintiff preferred appeal. By
the impugned order, the learned District Judge has allowed the appeal.
4. In support of this Petition, Mr. Joshi submitted that the learned
District Judge decreed the suit only on the ground of unlawful subletting. The
learned District Judge held that the plaintiff proved that defendant No.1 had
unlawfully sublet the suit premises to defendants No.2 and 3. The learned
District Judge decreed the suit only under section 13 (1) (e) of the Act and
declined to pass decree on other grounds. He submitted that the learned

District Judge did not appreciate the ingredients to prove unlawful subletting.
Mr. Joshi relied on the decision of Nirmal Kanta Vs. Ashok Kumar, (2008) 7
Supreme Court Cases 722 and in particular paragraph 16 thereof. In
paragraph 16, the Apex Court observed that a subtenancy
or a subletting
comes into existence when the tenant inducts a third party stranger to the
landlord into the tenanted accommodation and parts with possession thereof
wholly or in part in favour of such third party and puts him in exclusive
possession thereof. The lessor and/or a landlord seeking eviction of a lessee or
tenant alleging creation of a subtenancy
has to prove such allegation by
producing proper evidence to that effect. He has taken me though the findings
recorded by the learned District Judge on the ground of unlawful subletting.
5. On the other hand, Ms. Khan submitted that she has not received
any instructions from the plaintiff.
6. I have considered the rival submissions advanced by learned
Counsel for the parties. I have also perused the material on record. As
mentioned earlier, the plaintiff had invoked grounds under section 12, 13 (1)
(b), 13 (1) (c), 13(1) (e) and 13 (1) (g) of the Act. The learned trial Judge
dismissed the suit. The District Judge allowed the appeal preferred by the
plaintiff only under section 13 (1) (e) of the Act. Ms. Khan did not advance any
submissions supporting eviction decree on the grounds under section 12, 13
(1) (b), 13 (1) (c) and 13 (1) (g) of the Act. Thus, only question that requires
to be examined is whether the plaintiff has established that defendant No.1 has
unlawfully sublet the suit premises to defendants No.2 and 3.
7. In the case of Joginder Singh Sodhi Vs. Amar Kaur, (2005) 1
Supreme Court Cases 31, the Apex Court has referred to the decision of
Associated Hotels of India Ltd Vs. S.B. Sardar Ranjit Singh, AIR 1968

Supreme Court 933. In this case, the Apex Court held that in a suit of landlord
for eviction of tenant on the ground of subletting, the landlord has to prove by
leading evidence;
(a) a third party was found to be in exclusive possession of the
rented property;
(b) parting of possession thereof was for a monetary
consideration.
This settled principle was reiterated by the Apex Court from time to time.
8. In the case of Shama Prashant Raje Vs. Ganpatrao, (2000) 7
Supreme Court Cases 522, it was held that two ingredients namely parting
with possession and monetary consideration thereof have to be established.
The Apex Court also referred decision of Bharat Sales Ltd Vs. LIC of India,
(1998) 3 Supreme Court Cases 1, where it was observed that subletting
comes into existence when the tenant gives possession of the tenanted
accommodation, wholly or in part and puts another person in exclusive
possession thereof. In the case of Joginder Singh Sodhi (supra), in paragraph
17, the Apex Court also observed that 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 sublet.
9. In case of Nirmal Kanta (supra), the Apex Court observed in
paragraph 16 thus;
“What constitutes subletting
has repeatedly fallen for the
consideration of this Court in various cases and it is now
wellestablished
that a subtenancy
or a subletting comes
into existence when the tenant inducts a third party
stranger to the landlord into the tenanted accommodation
and parts with possession thereof wholly or in part in

favour of such third party and puts him in exclusive
possession thereof. The lessor and/or a landlord seeking
eviction of a lessee or tenant alleging creation of a subtenancy
has to prove such allegation by producing proper
evidence to that effect. Once, it is proved that the lessee
and/or tenant has parted with exclusive possession of the
demised premises for a monetary consideration, the
creation of a subtenancy
and/or the allegation of subletting
stands established”.
10. In the present case, the learned District Judge has observed in
paragraph 11 that the suit premises was originally let out to one Yesammabai.
The plaintiff claimed that defendant No.1 Parubai was no way related to the
original tenant. Since she was residing with the original tenant, the plaintiff
recognized her as a tenant. The plaintiff alleged that defendant No.1 has sublet
the suit premises to defendants No.2 and 3 who are no way related to
defendant No.1. The learned District Judge thereafter observed, “admittedly all
the 3 defendants are residing in the suit premises”. The question is whether the
plaintiff has proved one of the ingredients of subletting. A perusal of the
impugned order does not show that the learned District Judge recorded any
finding as regards satisfaction of one of the ingredients of unlawful subletting.
Before passing decree on the ground of subletting, it is necessary to record a
finding to the effect that third party was found to be in exclusive possession of
the rented premises. In the present case, no such finding is recorded by the
learned District Judge. In view thereof, the impugned order cannot be
sustained and as such is liable to be set aside. The appeal will have to be
restored to the file of the learned District Judge. The learned District Judge will
consider the evidence on record and record finding on the question of unlawful
subletting keeping in mind the principles laid down in the above case.
11. In the result, the Petition succeeds. The impugned order is set
aside. Civil Appeal No.882 of 1995 is restored to the file of the learned District

Judge. Registry shall forthwith transmit the Record and Proceedings to the
District Court. The District Court will issue fresh notice to the parties and will
thereafter proceed to decide the appeal within 6 months from completion of
service. All contentions of the parties on merits are expressly kept open. Rule is
made absolute in the aforesaid terms with no order as to costs.
[R.G. KETKAR, J.]

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