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1986 DIGILAW 305 (MAD)

Subramanian v. Malar Selvi

1986-07-25

M.N.CHANDURKAR

body1986
Judgment :- 1. This revision petition is directed against the concurrent finding of fact given by the Rent Controller and the Appellate Authority that the predecessor of the revision petitioners had sublet the premises without the consent of the landladies to respondent-2 in the rent control petition. Though the original claim made by the landladies was under S. 10(3)(a)(i) and S. 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter referred to as the Rent Control Act) we are concerned in this petition only with the claim of eviction on the ground of subletting The case of the landladies was that the premises were sublet to one Ibrahim, who was respondent-2 in the original rent control petition, without the written consent of the landladies. 2. When the matter was taken up by the Rent Controller, the son of the tenant who was examined as R.W. 1 admitted that a part of the portion was being used as a gilt shop where the business of polishing jewellery was carried on. The Rent Controller found that it was never the case of the tenant either in reply to the notice sent by the landladies or in the written statement that the tenant was carrying on any gilt shop. Therefore, the Rent Controller rejected the case which was put forth in evidence by the son of the tenant that the gilt shop belonged to the tenant herself. Having thus found that the premises were sublet to Ibrahim, eviction was ordered. 3. In appeal, the argument advanced was that the reply to the notice given by the tenant was intended to be treated as a part of the counter and that the stand taken by the tenant therein was that Ibrahim was her own employee and the premises were not subleased to anybody. The Appellate Authority accepted the contention that the averments in the notice could be looked into since it was intended to be treated as a part of the counter; but the Appellate Authority took the view that the summons served on the second respondent had come back with the endorsement that there was no such person. It further found that the case which was put up by the tenant in the counter was that she was carrying on tea-cum-eatable shop. It further found that the case which was put up by the tenant in the counter was that she was carrying on tea-cum-eatable shop. However, the son of the tenant referred merely to the jewel polishing shop and at the stage of evidence he wanted to make out the case that the jewel polishing shop belonged to the tenant herself. This was rejected by the Appellate Authority on the ground that it was never the case of the tenant that the jewel polishing shop belonged to the tenant. The Appellate Authority also drew an inference that there was no tea-cum-eatable shop in the premises and that the only shop in the premises was a jewel polishing shop which was run by the second respondent in the original petition. Consequently, it was held there was subletting without the consent of the landladies and the decree for eviction on this ground was confirmed. 4. In this revision petition, it is argued by the learned counsel that it was never the case of the landladies that the premises were sublet by the tenant for a gilt shop and no reference whatsoever is made either by P.W. 1 or P.W. 2 to the premises being let out for a gilt shop, Therefore, according to the learned counsel, there is no evidence on the side of the landladies that the premises were let out for the purpose of running a gilt shop. It is difficult to appreciate the argument that the finding that the tenant does not own a gilt shop is vitiated merely because none of the witnesses on behalf of the landladies made any reference to the gilt shop. It is open to a party to establish his case on the basis of evidence given or admissions made by the witnesses for the opposite side. In this case, the landladies story of subletting is really proved by the evidence of the son of the tenant coupled with the fact that it was never the case of the tenant that the tenant herself was running the gilt shop. The tenants son clearly admitted that there was a jewel polishing shop but according to him it belonged to the tenant. There is no reference whatsoever at all to this shop in the reply notice or in the counter filed by the tenant. The tenants son clearly admitted that there was a jewel polishing shop but according to him it belonged to the tenant. There is no reference whatsoever at all to this shop in the reply notice or in the counter filed by the tenant. On the other hand, the counter filed by the tenant refers to a tea-cum-eatable shop. When the tenants son himself was referring to the gilt shop, it obviously showed that the gilt shop was in the premises and since it was never the case of the tenant in the written statement or in the notice that the gilt shop belonged to the tenant, the obvious inference which must follow was that the gilt shop does not belong to the tenant at all. The necessary consequence must be that it must follow that the gilt shop belonged to some person other than the tenant. Ibrahim has not been examined. If he was a servant of the tenant as alleged, it was for the tenant to examine him. It is now stated that Ibrahim had left the services and that he had given a writing that he was her servant. The writing is sought to be produced as additional evidence in this revision petition. The writing is dated 5th July, 1980 and the petition before the Rent Controller was filed on 7th September, 1980. With reference to the date, it is, therefore, clear that this document was in her possession. If it was a genuine document in the hand of the tenant, the proper occasion to produce this document was at the time when evidence was given and such a document which is capable of being got up at any time cannot now be accepted as evidence in this revision petition. 5. The relationship between the tenant and the alleged sub tenant is within the special knowledge of either the tenant or the sub-tenant. Unless, therefore, a tenant or sub-tenant satisfactorily explains the presence of the alleged sub-tenant in the premises, the Court is entitled to draw the inference in a case where an utter stranger is found in the premises running a new business that the premises must have been sublet. Such an inference is clearly permissible in law. There is no substance in this revision petition which is dismissed with costs. Costs Rs. 250. 6. Such an inference is clearly permissible in law. There is no substance in this revision petition which is dismissed with costs. Costs Rs. 250. 6. On the tenants giving an undertaking that they will vacate the premises within four months time without requiring the landladies to take proceedings in execution, the tenants are granted four months time to vacate the premises. The tenants shall vacate the premises on or before 30th November, 1986. The undertaking to be filed within a week.