Murarilal v. Hari Kishan — 1998 DIGILAW 637 (RAJ)

Honble MADAN, J.–I have heard learned counsel for the parties at length and perused the impugned judgments and decree of the trial court as well as the First Appellate Court dated 26.7.1990 and 24.11.1997 respectively. The grounds on which the suit for eviction was filed by the plaintiff-respondent (hereinafter referred to as ``the respondent) against the appellant-defendants (hereinafter referred to as ``the appellants) are – (a) sub-letting, (b) default in payment of rent and (c) bonafide requirement of the respondent-landlord to occupy the suit premises. The suit was contested between the parties on first two grounds i.e. sub-letting and default while the ground of bonafide requirement was given up by the landlord on 19.4.1984 during the pendency of trial before the concerned civil court. (2). In support of his case, the respondent adduced the evidence of PW-1 Hari Krishan, PW-2 Sumat Prasad and PW-3 Jainarain while the appellant examined DW-1 Radhey Shyam DW-2 Anil Kumar, DW-3 Laxman Das, DW-4 Jagdish Prasad, DW-5 Giriraj Prasad, DW-6 Bhorelal, DW-7 Ramhet, DW-8 Mahesh Chandra and DW-9 Kundan Singh in his evidence. 1 have perused the statements of the aforesaid witnesses from the summoned record. From the perusal of the statements of the aforesaid witnesses three things are established : (1) that the premises were let out for exclusive use and possession of tenant Murarilal who did not appear in the witness box inspite of the service having been effected on him. As regards the person to whom the premises was sub-let, i.e. Radhey Shyam appellant No. 2 before this court in this appeal. It has come in his evidence that he is running the business in the suit premises in his own independent capacity which fact is contrary to the, evidence of Murarilal the original tenant to whom the possession was transferred by the respondent and rather from his statement. It is apparent that he had started running the business of sale of Ghee products in his shop which obviously was being done unauthorisedly and without obtaining the prior permission in writing of the landlord. It is apparent that he had started running the business of sale of Ghee products in his shop which obviously was being done unauthorisedly and without obtaining the prior permission in writing of the landlord. In order to establish the case of sub-letting, assigning or otherwise parting with the possession of the whole or in part of the premises, the landlord has to establish the following aspects- (a) that the tenant without obtaining prior permission of the landlord either in writing or orally can sub-let or otherwise part with the actual physical possession of either the whole or in part of the suit premises to the sub-tenant- (b) that the induction of the sub-tenant without prior permission of the landlord either in writing or orally should be established at first instance before any inference regarding sub-letting of the premises can be drawn against the original tenant, (c) that the sub-tenant is paying the rent of the suit premises to the original tenant even no such evidence is on the record yet, what is important to be established is that the landlord has in his own writing attorned the sub-tenant by accepting him as his tenant by issuing any rent receipt in lieu of payment of rent either directly to him or there should be evidence in regard to the payment of rent by sub-tenant to the tenant. (3). From the perusal of statements of the aforesaid witnesses examined by the appellants a well as the statements of the witnesses examined by the respondent. It is well established that the suit premises were sub-let by Murarilal i.e. the original tenant to Radhey Shyam the sub-letee. My observations in this regard are borne out not only from the evidence which has been perused by this Court during the course of hearing but also are fortified for the reason that what were the justi- fiable reasons for not examining Murarilal in the witness box who could have proved parting with the actual physical possession of the premises in question to Radhey Shyam the sub-tenant. Radhey Shyam in his Examination-in-Chief has not been able to justify as to in what manner and what capacity he was in occupation of the suit premises without obtaining prior permission in writing from his landlord i.e. the respondent herein. Radhey Shyam in his Examination-in-Chief has not been able to justify as to in what manner and what capacity he was in occupation of the suit premises without obtaining prior permission in writing from his landlord i.e. the respondent herein. Hence, at this stage, adverse inference has rightly been drawn by both the Courts below against both the appellants i.e. Murarilal and Radhey Shyam. (4). On the ground of default, the respondent in order to prove his case has to establish the requirements as contemplated under Section 13(1)(a) of the Rajas- than Premises Control (Rent and Eviction) Act, 1950 for short the Act of 1950 that the tenant has neither paid nor tendered the amount of rent due from him for atleast 6 months prior to the institution of the suit. The default must be willful and intentional in order to establish his case on the question of default and the tenant in order to contest this ground has to establish that he had adopted all reasonable modes as regards the payment of rent to the landlord and in case of refusal by the landlord he is required to send the rent firstly by money order at the address known to him or to deposit money order at the address known to him or to deposit the rent in his bank account if so specified by the landlord to the tenant or to deposit the same in the Court where the proceedings are pending. None of the aforesaid requirements have admittedly been complied with by the appellants. From the findings of the Courts below, it has been well established that admittedly the appellants were at default in payment of rent for about 10 months as on the date of institution of the suit. Hence, on the question of default also the respondent has succeeded for making out his case against the appellants. (5). During the course of hearing, Mr. B.L. Agrawal, learned counsel for the appellants had laid much emphasis on the fact that the appellants are members of Hindu Undivided Family and since they were running their business in common out of the funds drawn from HUF, it was incumbent upon the respondent-landlord to prove this ground by leading cogent and consistent evidence to contrary. B.L. Agrawal, learned counsel for the appellants had laid much emphasis on the fact that the appellants are members of Hindu Undivided Family and since they were running their business in common out of the funds drawn from HUF, it was incumbent upon the respondent-landlord to prove this ground by leading cogent and consistent evidence to contrary. Rather, from the examination of the statement of the aforesaid witnesses it is well established that the appellants have been running their business independently and were not members of HUF. This fact is also borne out from the concurrent findings of the trial court as well as of the First Appellate Court. As regards on the question of sub-letting both the Courts below have held that appellant No.1 Murarilal had parted with the actual physical possession of the shop premises in question to appellant No. 2 Radhey Shyam. Even, from the perusal of the pleadings, it is pertinent that the suit premises were let out for exclusive use of Murarilal who had parted with the actual physical possession of the suit premises to appellant No. 2 Radhey Shyam, who had not been examined in the witness box. During the course of hearing, it has been stated that since they were brothers and members of HUF their business was common and joint. In my view, this contention of the learned counsel for the appellants is not tenable for the reason that merely because they happened to be brothers would not by itself confer any legal right on the original tenant i.e. Murarilal to have parted with the actual physical possession of the suit premises to his brother Radhey Shyam without obtaining the prior permission in writing of the landlord which admittedly has not been done in the instant case. (6). In view of the above discussion, 1 am of the view that the appellants have not succeeded in making out any case for interfering with the concurrent findings of the trial Court dated 26.7.1990 as well as the First Appellate Court dated 24.11.1997. (7). (6). In view of the above discussion, 1 am of the view that the appellants have not succeeded in making out any case for interfering with the concurrent findings of the trial Court dated 26.7.1990 as well as the First Appellate Court dated 24.11.1997. (7). During the course of hearing, it has been stated by the learned counsel for the appellants that the appellants had not availed the benefit of first default but the benefit of first default was given to the respondent and this by itself should have been given to the appellants yet, on the date of institution of the suit there was a delay of 10 months in paying the arrears of rent and this by itself would not help the case of the appellants since on the ground of evidence i.e. sub-letting, both the Courts below have concurrently held that the appellants do not deserve to succeed because the said ground has been well established from the evidence on the record. (8). During the course of hearing, Mr. B.L. Agrawal, learned counsel for the appellants has placed reliance upon the following judgments - Dipak Banerjee vs. Smt. Lilabati Chakraborty (1) Jagannath (deceased) through LRs vs. Chandra Bhan & Ors. (2) M/s. Delhi Stationers & Printers vs. Rajendra Kumar (3). (9). During the course of hearing, Mr. Ajay Rastogi, learned counsel for the respondent has placed reliance upon the following judgment- Smt. Laxmi Devi Sharma vs. Mahesh Chandra Sharma (4). (10). I have examined the ratio of the aforesaid judgments cited by the learned counsel for the parties. In my view, the ratio of the decision cited by the learned counsel for the appellants is not attracted to the instant case being distinguishable. From the perusal of the decision of the Apex Court in the matter of Jagannath (deceased) through LRs Versus Chandrabhan and others (supra), it transpires that the question of law on which the appeal was decided by the Apex Court was as to whether the ground of sub-letting has been taken as a ground of eviction of the tenant what requirements of law the landlord is required to be established. Whether the tenants premises were residential or residential-cum-commercial in either case, it is well established that parting with the possession means parting with the possession by the tenant. Whether the tenants premises were residential or residential-cum-commercial in either case, it is well established that parting with the possession means parting with the possession by the tenant. It was further held by the Apex Court that if this condition is satisfied by the respondent-landlord by leading cogent and consistent evidence on the record then, he is entitled to decree of eviction against the tenant as well as the sub- tenant. In my view, the evidence which has come on the record as well as the findings of the Courts below, prima- facie, 1 am of the view that landlord has succeeded in establishing his case against the present appellants of parting with actual physical possession of the suit premises by appellant No. 1, Murarilal i.e. the original tenant to appellant No. 2, Radhey Shyam i.e. the sub- tenant without obtaining the prior permission or consent of the respondent-landlord in writing and user of the suit premises by appellant No. 2 as a sub-tenant in his own individual capacity has also been established since he is running the busi- ness of Ghee products as a registered firm of which he alone is sole proprietor and hence vesting of the possession by the tenant to another person by divesting himself not only the actual physical possession but also right to possession as also been of the shop in question has also been well established. The real onus to discharge the burden was on the original tenant Murarilal who for reasons as best known to him has chosen not to appear before the trial court in evidence. Hence, the guidelines as laid down by the Apex Court in the matter of Jagannath (supra) are made out on the question of sub-letting against the appellants. (11). As a result of above discussion, the appeal is dismissed. The concurrent findings of the trial Court dated 26.7.1990 as well as the First Appellate Court dated 24.11.1997 are confirmed with no order as to costs. (12). During the course of hearing, request has been made by the learned counsel for the appellants that some reasonable time be given to the appellants to vacate the suit premises so as to enable them to find out an alternative accommodation. (12). During the course of hearing, request has been made by the learned counsel for the appellants that some reasonable time be given to the appellants to vacate the suit premises so as to enable them to find out an alternative accommodation. Keeping in view the fact that the appellants have been in occupation of the shop in question situated in Sarafa Bazar, Alwar since 1979, 1 deem it appropriate to grant one year time from today to the appellants with the directions that the appellants shall handover vacant and peaceful possession of the suit premises to the respondent-landlord on or before 4.5.1999 subject to filing an Undertaking to this effect in this Court within four weeks. The appellants are further directed to pay the rent if any due from him to the respondent-landlord forthwith and also pay the future monthly rent regularly. In case of single default, the respondent-landlord shall be entitled to possession of the shop in question forthwith.