Whether the court can draw an inference that rented premises was sublet if the tenant fails to take steps for recovery of its possession from the third person?

 Undoubtedly, the NDMC appears to have not taken any action against the SOS Children's Villages of India to take back the possession of 1, Doctor's Lane, Gole Market, New Delhi after closure of the project Udayan in 2003 after revocation of the agreement dated 23.03.1981 with the SOS Children's Villages of India on 30.10.1998 but the same does not detract from the factum that in terms of the said agreement dated 23.03.1981 between the NDMC and the SOS Children's Villages of India, there has been no subletting or parting with the possession of the tenanted premises as rightly held by the learned RCT, New Delhi vide the impugned judgment dated 23.08.2018.

29. The factum that the officers concerned of the NDMC had not acted with diligence to recover the possession from the SOS Children's Villages of India from the tenanted premises in question, does not render the contention raised by the NDMC frivolous that it had not sublet the tenanted premises to the NGO i.e. the SOS Children's Villages of India. The verdict of the Hon'ble Supreme Court in "S.F. Engineer Vs. Metal Box India Limited and Another" MANU/SC/0246/2014 : (2014) 6 SCC 780, makes it apparent that the said inaction by the officers of the NDMC concerned by itself does not suffice to lead this Court to the conclusion that the subletting by the NDMC to the SOS Children's Villages of India as alleged by the petitioner, - had been established.

IN THE HIGH COURT OF DELHI

CM (M) 1229/2018 and C.M. Appl 42051/2018

Decided On: 30.06.2020

Abhishek Buildcon Pvt. Ltd.  Vs.   New Delhi Municipal Council

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1317/2020

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When burden of proof is on sub tenant to prove date of sub tenancy?

38-A. Mr. Agarwal then contends that the onus of proving that the sub-tenancy had come into existence prior to 21-5-1959 was put wrongly upon defendant No. 3. I have my doubts as to whether it is open for Mr. Agarwal to urge that point at this stage. It may perhaps be possible for the plaintiffs to contend that defendant No. 3 had filed revision application to the Bench of two Judges against the order of the trial Court casting the onus upon defendant No. 3. There is nothing to show as to on what grounds the revision application was dismissed by the Bench. I am, however, prepared to assume in favour of Mr. Agarwal that the revision application was. rejected only on the ground that it was against an interlocutory order. I am even prepared to hold further that so far as this Court is concerned, the question about the onus is not res judicata. However, on the merits I find it very difficult to agree with Mr. Agarwal. To my mind the onus of proof as regards issue No. 16 was rightly put upon defendant No. 3. This is so firstly because under the Bombay Rent Act prohibition against sub-tenancy is the rule; whereas permission to sub-tenancy is only an exception carved out of the rule by Sub-section (2) of Section 15 as also by the contract to the contrary referred to in Sub-section (1) of Section 15. Defendant No. 3 is relying upon this exception and hence the circumstances which entitled him to avail of the exception must be proved by himself. This principle is analogous to the one contemplated by Section 105 of the Evidence Act.

39. Moreover, the provisions of Section 106 of the Evidence Act give rise to the same position. After all, the exact date of the sub-tenancy was a fact which could be within the exclusive knowledge of defendant No. 3 only. From the very nature of things that the plaintiff Trust could have no knowledge about the same, the onus of proving the date of the sub-tenancy must, therefore, lie upon defendant No. 3 only. Similar conclusion could be arrived at also by relying upon Section 102 of the Evidence Act. We find that in the instant case the parties have come out with the pleadings. The plaintiffs have alleged subletting by one in favour of defendant No. 3. Defendant No. 3 had admitted subletting, but has contended that the subletting was done before 2t-5-1959. Under the provisions of Section 102 of the Evidence Act, we shall have to apply the test regarding the onus by assuming that no evidence was led by either side. In the instant case if neither defendant No. 3 nor the plaintiffs led any evidence, defendant No. 3's case that sub-tenancy took place before 21-5-1959, therefore, could be deemed to have gone unproved. Moreover, it is defendant No. 3, who have been claiming a legal right regarding valid sub-tenancy in respect of the suit premises. That legal right can exist only if his sub-tenancy originated before 21-5-1959. It is, therefore, difficult to see as to how he could escape the onus of proving his legal right.

IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln. No. 537 of 1975 with C.R.A. No. 62 of 1975

Decided On: 14.01.1980

Zenna Sorabji Vs.  Mirabelle Hotel Co. (Pvt.) Ltd. 

Hon'ble Judges/Coram:

S.G. Manohar, J.

Citation: AIR 1981 Bombay 446

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Whether inaction on part of landlord to take objection against sub tenant amounts to his implied consent?

Learned counsel for the respondent has placed reliance upon a decision of this court Hiralal Kapur v. Prabhu Choudhury - MANU/SC/0189/1988 : [1988]2SCR1058 . The tenant in this case seems to have sub-let a part of his tenant to a Trust which started its activities from the premises of which landlord may also have been aware. The tenant had also started paying the rent by two cheques - one in his name and another cheque of Trust. The rent so tendered was duly accepted by the landlord. In some correspondence which took place between the tenant and the landlord, the Trust was not accepted as a sub-tenant. It was held by this Court that merely by the fact that the cheque of the Trust was being accepted as a part of the amount of rent and the fact that landlord may have the knowledge of the fact that the Trust was using part of the premises would not lead to any implied inference or consent of sub-lease in favour of the sub-tenant. For this conclusion no doubt the letters of the landlord had also been referred to by which sub-tenancy was not accepted by the landlord yet the fact remains that Court did not come to the conclusion that that before writing of those letters it was to be taken a case of sub-tenancy by conduct. The fact is that knowledge of possession or a part of the accommodation with the Trust and the acceptance of the part of the rent by cheque from the Trust were not considered conclusive of an inference of consent for sub-tenancy. Yet another case relied upon by the learned counsel for the respondent is Ram Saran v. Pyare Lal and Anr. - MANU/SC/0596/1996 : [1996]1SCR501 equivalent to In this case also the tenant surrendered his tenancy rights in favour of a registered Society without consent of the landlord. The landlord had also started accepting the rent tendered by the tenant in the name of the registered society. It was held that no inference of authorised sub-tenancy could be drawn nor inference of implied consent and it was held that the landlord was not estopped from seeking eviction on the ground of unauthorised sub-letting. The conduct of the landlord in accepting the rent from the society was held to be of no consequence. We have already observed earlier that the inference drawn from findings of fact is a legal question. It would not amount to interfering or substituting the finding of fact by the revisional court. Hence the decision in the case of Ubaiba (supra) relied upon by the learned counsel for the appellant would not be of any assistance to it.

14. In view of the discussion held above, we find no reason to interfere with the order passed by the High Court setting aside the orders of the appellate authority and upholding the orders of the trial court, refusing to draw any inference of implied consent on the basis of inaction or conduct of the landlord. The consent as envisaged under Section 11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act 1965 would mean consent with some positive act which may lead to inference of conferring right on the tenant to sub-let the premises and mere inaction would not be sufficient to amount to implied consent on the part of the landlord.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3158 of 2002

Decided On: 29.04.2002

P. John Chandy and Company (P) Ltd. Vs.  John P. Thomas

Hon'ble Judges/Coram:

D.P. Mohapatra and Brijesh Kumar, JJ.

Citation: AIR 2002(SC) 2057

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Whether sub-tenancy is created if part of tenanted premises is given to new partner of partnership firm?

Now, applying this example to the present case, Atalram was never there when the tenancy was created. He came into the partnership firm only by way of his entry in the year 1971. In law, therefore, it was only Ishwardas himself who continued to be the tenant, though Atalram's entry into the partnership firm did not change the nature and did not mean parting of the possession on the part of Ishwardas. It also did not confer any status of tenancy of Atalram himself for the simple reason that this entry was not with the knowledge and/or consent of the landlady. Once this partnership was broken and two separate premises were created by Ishwardas and Atalram and a separate exclusive user was contemplated for Atalram of a part of the shop, it was clear that the original tenant Ishwardas had parted with the possession and had allowed the user of that separated part of the premises to Atalram. This would be nothing but an ex ample of clear sub-tenancy. Again, the original rent of the whole premises was Rs. 700/-. In the new arrangement, Ishwardas was to pay Rs. 400/- only, while Rs. 300/- were to be paid by Atalram. Thus, Ishwardas had reduced his liability to pay rent of Rs. 700/- per month. This was definitely, therefore, a consideration for sub-tenancy.

- Tenancy in the name of partnership--Exclusive enjoyment of the part of premises by new inducted partner--Amounts to sub-tenancy--Tenant liable to be evicted.

The firm to which the premises are let by the landlord holds the tenancy in favour of the then existing partner of the firm. If one of the partners retires and a new partner is brought in, such a new partner does not acquire tenancy rights and if he is given part of the premises exclusively and is to share the total rent, he is the sub-tenant and the landlord is entitled to the eviction of the tenant and the sub-tenant under Section 13(3)(iii) of the C.P. & Berar Rent Control Order.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 495 of 1990

Decided On: 08.10.1996

 Ishwardas and Brothers  Vs. Additional District Magistrate and Ors.

Hon'ble Judges/Coram:

V.S. Sirpurkar, J.

Citation: 1997(3) MHLJ 552

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