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2004 DIGILAW 1351 (PNJ)

Tilak Raj Anand v. Surinder Kumar

2004-12-15

N.K.SUD

body2004
Judgment N.K.Sud, J. 1. This civil revision is directed against the order of the Appellate Authority, Gurgaon dated 8.9.1997 whereby the petitioner-tenants appeal against the order of his eviction passed by the Rent Controller, Gurgaon dated 19.8.1994 has been dismissed. 2. Vide Rent Note dated 2.6.1976 respondent-landlord Surinder Kumar had let out one room shop to Krishan Kumar on a monthly rent of Rs. 250/- with effect from 1.6.1976. The rent was subsequently enhanced to Rs. 300/-. The landlord filed ejectment petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 on 18.3.1988 seeking eviction of the tenant on the grounds of (i) non-payment of rent since 1.4.1987, (ii) subletting of demised premises to Tilak Raj, (the present petitioner) in whose favour he had parted with its exclusive possession and (iii) personal necessity. 3. The tenant Krishan Kumar did not appear before the Rent Controller and was proceeded against exparte. Petitioner Tilak Raj Anand, the alleged sub tenant contested the petition. 4. Before the Rent Controller, the landlord gave up the ground of personal necessity and pressed his petition on other two grounds. The Rent Controller held that the landlord has succeeded in proving subletting by Krishan Kumar in favour of Tilak Raj. Further non-payment of rent as alleged was also held to have been proved. Thus the ejectment petition was allowed and the tenant was ordered to be evicted on the aforesaid two grounds. 5. The petitioner Tilak Raj filed an appeal before the Appellate Authority which has been dismissed vide the impugned order. The findings of the Rent Controller on both the grounds have been upheld. On 28.1.2004 when the matter had come up for hearing, the counsel appearing for the landlord-respondent did not press the ground of non-payment and supported the order on the ground of subletting only. 6. Thus, the only issue surviving for consideration in the present civil revision is as to whether the authorities below were right in directing eviction of the petitioner on the ground of subletting. 7. I have heard the Counsel for the parties and have perused the relevant records. 8. It is not in dispute that demised premises had been let out vide Rent Note dated 1.6.1976. 7. I have heard the Counsel for the parties and have perused the relevant records. 8. It is not in dispute that demised premises had been let out vide Rent Note dated 1.6.1976. It is also not in dispute that the present petitioner Tilak Raj is in exclusive possession of the demised premises since 1.4.1987 and that Krishan Kumar was no longer in its possession. The only defence set up by the petitioner before the Authorities below was that he had entered into a partnership with Krishan Kumar and they had been carrying on business in the name and style of M/s Anand Sales Corporation with effect from 1.4.1977. According to him, in the year 1980 the rent was increased from Rs. 250/- to Rs. 270/- and the rent receipts thereafter were issued in the name of the firm M/s Anand Sales Corporation. This, according to the petitioner, led to creation of a new tenancy in favour of the firm consisting of the petitioner and the original tenant Krishan Kumar. The rent was subsequently increased to Rs. 300/- per month. Petitioner claimed that he had come into exclusive possession of the demised premises on account of dissolution of the said firm on 1.4.1987 when Krishan Kumar retired and the entire business was taken over by him. Petitioner, therefore, claimed that since he was a partner in the firm when the tenancy was created in favour of the firm in 1980, he alongwith Krishan Kumar had become a direct tenant under the landlord and thus there was no question of subletting in his favour. These contentions have been rejected by the Appellate Authority who has held that mere issuance of rent receipt cannot be considered as a consent on the part of the landlord for subletting nor could it be treated as creation of a new tenancy. For this purpose, reliance was placed on the judgment of this Court in Mukand Lal v. Shri Govind Lal, 1989(1) R.C.R. 237. The Appellate Authority also relied on the judgment of this Court in Munshi Ram v. Jagmohan Lal, 1984 H.R.R. 356 to reject the contention of the petitioner that merely because Krishan Kumar was taken as a partner in the firm M/s Anand Sales Corporation a tenancy was created in his favour also. Reliance was also placed on another decision of this Court in Om Prakash v. Dr. J.K. Mehta, (1990-2)98 P.L.R. 145. Reliance was also placed on another decision of this Court in Om Prakash v. Dr. J.K. Mehta, (1990-2)98 P.L.R. 145. In that case, one Om Parkash had taken a shop on rent. In the Rent Note he had described himself to be a partner in the firm and receipts were issued in the name of the firm. It was held that he alone was the tenant and the other partners did not become tenants of the landlord merely on account of issuance of receipts in favour of the firm. Reference was also made to the decision of the Apex Court in Pulin Bihari v. Mahadev Dutte and Ors., 1993(1) R.L.R. 291 in which it was held that mere knowledge of and/or acceptance of rent cannot defeat the landlords right to get a decree of ejectment on the ground of subletting. It is also clear from the record that the landlord had never accepted any rent from the present petitioner Tilak Raj. The firm in which Krishan Kumar, the original tenant, was a partner, was dissolved on 31.3.1987 and the rent had been paid upto that date. It is thus clear that the original tenant had not parted with the exclusive possession of the demised premises before 1.4.1987. 9. Counsel for the petitioner has merely repeated the contentions raised before the Authorities below which have been dealt with as discussed above. He has not been able to refer to any authority to show that mere issuance of a receipt in favour of the firm resulted in creation of a new tenancy in its favour. On the other hand, the findings of the Appellate Authority are fully supported by the decision of this Court in Om Parkashs case (supra). In Tek Chand v. Beli Ram, (1994-3)108 P.L.R. 440 : 1994(2) R.C.R. 637, this court has held as under:- "In the present case, the demised premises were taken on rent by Ram Partap in his individual capacity. He could certainly take partners with him to run the firm but the partners so taken would not become the tenants of the landlord/Ram Partap, the original tenant parted with the possession and sub-let the premises in dispute to his brother Tek Chand without the written consent of the landlord. He could certainly take partners with him to run the firm but the partners so taken would not become the tenants of the landlord/Ram Partap, the original tenant parted with the possession and sub-let the premises in dispute to his brother Tek Chand without the written consent of the landlord. Mere acceptance of rent with knowledge or without knowledge of even acquiescence as held by the Supreme Court of India, would not imply a waiver of the condition of a written consent for sub-letting. In these cases, it was held that the requirement as to the consent being in writing was in the public interest and, therefore, there cannot be any question of waiver of a right dealing with the rights of the tenants or the landlord." In Pavinder Singh v. Renu Gautam, 2004(1) R.C.R. 596, the apex court examined the issue of subletting in the context of a tenant entering into partnership with others and held as under (page 598):- "Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be alongwith the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and alleged sub-tenant." 10. From the above, it is clear that even during the subsistence of a partnership a case of subletting can be established by proving that the tenant has parted with the use and control over the tenancy premises. In the present case, it is an admitted position that Krishan Kumar had ceased to be a partner in M/s Anand Sales Corporation and had parted with the exclusive possession of the shop in favour of Tilak Raj. 11. In the present case, it is an admitted position that Krishan Kumar had ceased to be a partner in M/s Anand Sales Corporation and had parted with the exclusive possession of the shop in favour of Tilak Raj. 11. It, therefore, stands established that no tenancy was ever created in favour of either the firm M/s Anand Sales Corporation or the petitioner Tilak Raj. It is, therefore, a clear case of Krishan Kumar parting with exclusive possession of the demised premises in favour of the petitioner. 12. The Counsel for the petitioner also contended that the respondent had failed to prove that the parting of possession by Krishan Kumar in favour of the petitioner was for consideration which was a necessary ingredient of subletting. The apex court in Dev Kumar through L.Rs. v. Smt. Swaran Lata and Ors., (1999-2)113 P.L.R. 391 (S.C.) has dealt with this ingredient by observing as under:- "In the case of Smt. Rajbir Kaur and Anr. v. Chokisiri & Co., (supra) this Court considered the question of subletting and held that the burden of making a case of subletting in the guise of licenses are in their very nature clandestine arrangements between the tenant and the sub-tenant and it would be difficult to get direct evidence on the same. If exclusive possession of the alleged sub-tenant is established then it may not be impermissible for the Court to draw an inference that the transaction was entered into with mandatory consideration in mind." Following the above observations, this Court in Om Parkash alias Chitru v. Balwant Rai, (2003-2)135 P.L.R. 360 held as under :- "In such circumstances as is evident from the extract reproduced above, if exclusive possession of the alleged sub-tenant is established, it will be natural to draw an inference that the passing on of possession to the sub-tenant by the tenant is for consideration. In the present case exclusive possession of the sub-tenant is not even disputed and thus stands established. Thus, it is natural to draw the inference that passing of possession to him by Krishan Kumar was for consideration. In view of the above discussion, I do not find any merit in this civil revision and dismiss the same. No costs.