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2012 DIGILAW 1813 (RAJ)

Sunder Lal v. Harish Kumar

2012-08-22

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The appellants-plaintiffs (landlord), namely, Sunderlal S/o Bhagwan Das, Narain Das S/o Bhawan Das and Nirmal Kumari D/o Bhawan Das, have filed the present second appeal against the respondents-tenants (defendants), namely, Hairsh Kumar S/o Lokumal Singh Samija and Chandulal S/o Lokumal Singh Samija, being aggrieved by the judgment and decree dated 14.05.2001 passed by learned Additional District Judge, No.2, Bikaner in Civil Appeal No.133/1996-Harish Kumar & Anr. vs. Sunder Lal & Ors., by which the defendants-tenants' appeal was allowed and the suit filed by the plaintiffs for eviction was dismissed reversing the trial court's judgment. The learned trial court of Additional Civil Judge, Bikaner vide its judgment and decree dated 02.12.1992 had decreed the eviction suit filed by the plaintiffs-landlord being Eviction Suit No.103/1989- Sunder Lal & Ors. vs. Harish Kumar & Anr. on the ground of sub-letting by Chandu Lal in favour of Harish Kumar, his own brother. 2. Briefly stated, the facts of the case are that the appellants-plaintiffs filed the eviction suit against the defendants-tenants for eviction of the suit shop in question on the ground of default in making payment of monthly rent and sub-letting the suit shop to Harish Kumar (respondent No.1 herein) at monthly rent of Rs.200/-, initially, on 14.08.1971 the suit shop in question situated at 27, Station Road, Bikaner which was given on rent to the original defendant Chandu Lal S/o Lokumal Sindhi Sameja on a monthly rent of Rs.150/-. Although the shop in question was given on rent to defendant, namely, Chandu Lal, however, he later on, sub-let the suit shop to his real younger brother, namely, Harish Kumar. 3. The suit filed by the plaintiffs-appellants came to be decreed by the learned trial court vide judgment and decree dated 02.12.1992, inter-alia, on the ground of subletting by the original defendant-tenant, Chandu Lal to the defendant-respondent, Harish Kumar, his own younger brother. 3. The suit filed by the plaintiffs-appellants came to be decreed by the learned trial court vide judgment and decree dated 02.12.1992, inter-alia, on the ground of subletting by the original defendant-tenant, Chandu Lal to the defendant-respondent, Harish Kumar, his own younger brother. The issue No.2 framed by the learned trial court in this regard, was decided in favour plaintiffs-landlord by finding that the rent-note (Ex.1) was executed in favour of Chandu Lal, whereas the said Chandu Lal had parted with possession of the suit shop in favour of his brother Harish Kumar, who was having the trade licence to run the business in the said suit shop in his own name and since such parting with possession was without consent of the landlord, the said issue was decided in favour of plaintiffs and against the defendants No. 1 and 2 though the learned trial court found that the plaintiffs had failed to prove that the defendant No.2, Harish Kumar was paying rent of Rs.200/- to the original tenant No.1, Chandu Lal. The issue of default in payment of rent was also decided in favour of plaintiffs on the ground that since the premises, suit shop, was sublet to the defendant, Harish Kumar, the deposit of rent after 14.12.1980 by the defendant No.2, Harish Kumar also cannot be considered as a valid tender of rent and a sufficient discharge of obligation of the tenant, and, therefore, the default in payment of rent was also there. 4. The lower appellate court below, however, vide its judgment and decree dated 14.05.2001 reversed the findings of the learned trial court on Issue No.2 of subletting and giving the benefit of first default under Section 13 (6) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950, refused to grant eviction decree in favour of plaintiffs-landlord. The learned appellate court found that in the suit premises, Harish Kumar was only doing business since beginning and the rent in question was paid by him some times to the father of the plaintiffs, namely, Sh. Bhagwan Das and thereafter another brother Narain Das S/o Bhagwan Das vide Ex. A/259 to Ex. The learned appellate court found that in the suit premises, Harish Kumar was only doing business since beginning and the rent in question was paid by him some times to the father of the plaintiffs, namely, Sh. Bhagwan Das and thereafter another brother Narain Das S/o Bhagwan Das vide Ex. A/259 to Ex. A/299; and since this was being done since 1976 itself, therefore, it cannot be said that the original tenant, Chandu Lal had parted with possession of the suit shop in favour of Harish Kumar and the landlord will be deemed to have waived his objection and consented to such subletting and, therefore, such sub-lettee would become tenant of the landlord and no eviction decree can be passed on the ground of subletting. 5. On 05.12.2005, a coordinate bench of this Court while admitting the present second appeal, framed the following substantial questions of law, which are reproduced herein below: 1.Whether the First Appellate Court committed error of law in holding that the appellant landlord waived his right to seek eviction on the ground of subletting? 2.Whether the First Appellate Court erred in law in holding that payment of rent by the subtenant is a valid payment of rent and tenant has not committed any default? 6. Mr. O.P. Mehta, learned counsel for the appellants-plaintiffs (Landlord), Sunder Lal and others, relying upon following decision in the case of Prakash Chandra vs. Bhajan Singh, reported in 1997(3) WLC (Raj.) 501 = RLW 1997(2) Raj. 1257 urged that in the absence of written consent of the landlord, the plea of waiver of acquiescence on the part of the landlord raising no objection is futile and, there is no such written consent or waiver on the part of the landlord in the present case. He also submitted that admittedly the rent-note (Ex.1) was executed in favour of elder brother, Chandu Lal only and all rent receipts were issued in the name of Chandu Lal only and in the face of these documentary evidence in view of Section 92 of the Evidence Act, the oral evidence of the defendant-tenant that Harish Kumar, younger brother of original tenant, Chandu Lal, was doing business in the suit shop since beginning, cannot be accepted and, therefore, the learned lower appellate court had erred in reversing the judgment and decree of trial court decreeing the plaintiffs' suit for eviction. He further submitted that while both the courts below have found that original tenant, Chandu Lal had parted with possession of the suit shop in favour of his younger brother, namely, Harish Kumar and the elder brother Chandu Lal had started his own independent business in different premises, the appellant court below wrongly inferred the waiver/ consent on the part of the plaintiffs-landlord, and the eviction decree has been refused by the learned lower appellate court. 7. Mr. O.P. Mehta, learned counsel for the appellants-plaintiffs-landlord also relied upon a decision of Hon'ble Supreme Court in the case of Srinivas Kasherlal Palod vs. Vital Shivagir Gosavi, (1996) All India Rent Control Journal 126, in which the Apex Court has laid down that: “... Having noted that the defendants had admitted the change of user, the appellate court decreed the suit and ordered eviction. It may be mentioned here that it was vehemently contended before the appellate court on behalf of the defendants that the landlord was aware of the change of user and for a number of years he received the rent in spite of being aware of change of user and, therefore, the principle of acquiescence comes into play and on that basis the suit should be dismissed. The appellate court rejected this plea holding that in a suit under the Rent Act, mere acquiescence would not bar the landlord from seeking a decree of eviction. In this context, the appellate court also relied on a judgment of the Bombay High Court in Kasturchand Parmchand Doshi vs. Yeshwant Vinayak Sainkar. In that case, the same question was considered and ultimately it was held that acquiescence does not save the tenant from the decree of eviction if he had used the premises for the purpose other than for which it was originally let out. In view, the conclusion reached by the appellate court appears to be correct.” This judgment clearly help the case of the plaintiffs-landlord and sub-lettee cannot attribute any acquiescence on waiver merely on account of long lapse of period. Here the eviction suit was filed way back in the year 1989 itself. 8. Mr. O.P. Mehta, counsel for the appellants-plaintiffs also relied upon a recent decision of this Court in the case of Bhagwan Singh & Anr. Here the eviction suit was filed way back in the year 1989 itself. 8. Mr. O.P. Mehta, counsel for the appellants-plaintiffs also relied upon a recent decision of this Court in the case of Bhagwan Singh & Anr. vs. Smt. Vimla Devi (SBCSA No.22/09, decided on 16.07.2012 = 2013(1) RLW 34), in which this Court has held as under: - “5. Having heard the learned counsels and after going through the reasons given in the impugned orders, this Court is satisfied that no substantial question of law arises in the present second appeal filed by the defendants-tenants. 6. The judgments relied upon by the learned counsel for the appellant-defendants, Mr. Manoj Bhandari, are not applicable to the facts of the present case. The same are discussed hereunder:- (i) In Binj Raj vs. Sukhdeo (supra) the defendant no.2 being brother of defendant no.1 was merely sitting in the shop which was being run by the defendant No.1 – the original tenant and, therefore, it was held not to be a case of subletting and parting with the possession. This case is distinguishable on facts. In the present case, the defendant No.1-Bhagwan Singh lives at Bikaner, whereas defendant No.2 - Mohan Singh, his brother, is running the independent business at Jodhpur under Food License in his own name for last number of years. There is no evidence on record of defendant No.1 Bhagwan Singh also doing business at Jodhpur. (ii) In Delhi Stationers & Printers vs. Rajendra Kumar (supra), the Hon'ble Apex Court held that mere user of the tenant-appellant's kitchen & latrine by the co-tenant while residing in the portion let out to him by the respondent-landlord cannot mean that the appellant had transferred the exclusive right to enjoy the kitchen and latrine and had parted with the legal possession of the said part of the premises in favour of co-tenant. Such are obviously not the facts of present case, which is not a case of a shared residential accommodation and, therefore, this case is also not applicable. Such are obviously not the facts of present case, which is not a case of a shared residential accommodation and, therefore, this case is also not applicable. (iii) Similarly, in Jagan Nath vs. Chander Bhan & Ors (supra), the Hon'ble Apex Court held that when tenant, belonging to a joint Hindu Family, was carrying on proprietary business with the help of his sons in a part of the residential-cum-commercial premises and after his retirement from the business his sons took it over by forming a partnership, there cannot be a presumption of parting with possession of the premises by the tenant (father) in favour of his sons, so as to constitute a case of subletting. Again, the facts of the said case are apparently distinguishable from the facts involved in the present case. (iv) In Hardev s. Jaidev through his legal representatives (supra), this Court held that where the tenant parting with possession in favour of his mother and brother's wife and no cogent and convin-cing evidence was led by the plaintiff, the lower court committed error in granting the decree of eviction as the mother and brother's wife are prospective heirs. No such facts are obtaining the present case, therefore, this judgment is also not applicable. (v) In Parvinder Singh vs. Renu Gautam & Ors. (supra), the Hon'ble Supreme Court held that the test is whether tenant has parted with the user and control of tenancy premises and deed of partnership has been drawn up as an indirect method of collecting consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction, tearing veil of partnership in this regard is permissible and decree of eviction on the ground of subletting can be granted. The matter was remanded by the Supreme Court to the appellate authority for decision afresh in the said case. The ratio of the said judgment indirectly helps the plaintiff in the present case rather than the defendants as even though no case of partnership has been set up in the present case, the real brother – defendant no.2 is running the independent business without any active control or involvement in day-to-day affairs by the original tenant, defendant no.1 – Bhagwan Singh and, therefore, even if such a veil is claimed that stands removed with the findings of courts below based on evidence. (vi) In Basanti Lal vs. Ram Chander (supra), this Court did not accept the subletting where the father of appellant Basanti Lal frequently came to the suit shop in question from his residence at Hindoli, a nearby village about 9 kms away and since all his three sons carried on different business at Kapasan, he used to come to Kapasan frequently and even sat for doing business at the said suit shop along with his son – present defendant – appellant and, therefore, there was no question of subletting by the father in favour of his son. The facts of said case are also distinguishable and are of little avail to the appellant defendants. Here is a case of two brothers doing independent businesses at places Bikaner & Jodhpur, 250 kms away & original tenant having parted with the possession to his own exclusion in favour of sublettee brother Mohan Singh. 7. On the other hand, the judgment of this Court in the case of Chain Singh vs. Mahendra Singh (S.B.Civil Second Appeal No. 114/1997) decided on 4th August, 2011, this Court in almost similar circumstances affirmed the decree of eviction by observing as under:- “12. Having heard learned counsels for the parties, this court is of the considered opinion that there is no force in the present appeal of the defendant-appellant and the learned trial court has rightly come to the conclusion that it was a case of subletting by the original tenant, Chain Singh in favour of sublettee, Prem Singh. No evidence of partnership was brought before the learned courts below, which could be only in the form of a written instrument duly registered under the Partnership Act. Even if assuming for arguments sake that oral partnership was there, no Books of Accounts for sharing of profit equally by them and mutuality of acting on behalf of other, was proved before the learned courts below. Mere close relations of two, cannot be held to be a case of implied partnership. The sublettee, Prem Singh was admittedly running a “Pan” shop near the suit premises. The parting of possession to the exclusion of the original tenant thus was proved by the plaintiff-respondent in the present case and, therefore, the eviction decree deserves to be upheld. The substantial questions of law are thus answered in favour of plaintiff-respondent and against the defendant-appellant-tenant.” 8. The parting of possession to the exclusion of the original tenant thus was proved by the plaintiff-respondent in the present case and, therefore, the eviction decree deserves to be upheld. The substantial questions of law are thus answered in favour of plaintiff-respondent and against the defendant-appellant-tenant.” 8. The Hon'ble Supreme Court recently in the case of Ghisalal M. Agrawal vs. Rameshwar @ Ramu Jawaharlal & anr. - (2012) 5 SCC 758 has held that High Court cannot be held justified in reversing the concurrent findings of two courts below giving eviction decree. However, since tenant was in the premises for last five decades, the Apex Court granted one year's time for delivery of vacant possession to the appellant-landlord. 9. In Subhash Sharma vs. Chhinna Ram & Ors. - 2010(88) AIC 438, the coordinate bench of this Court dismissed the appeal against the concurrent judgments of two courts below where objector claiming direct tenancy from landlord without discharging his burden with any material except saying that he is a direct tenant, the Court held that such objections are unsustainable and eviction decree was upheld. 10. In view of aforesaid discussion, this Court finds that the findings returned by the two courts below are essentially the findings of fact, which cannot be said to be perverse but on the other hand they are based on cogent material and relevant evidence and, therefore, in the considered opinion of this Court, no substantial question of law arises and the present second appeal of defendants deserves dismissal and same is accordingly dismissed with no order as to costs.” 9. In the case of Prakash Chandra vs. Bhajan Singh (supra), in para 49, this Court has held as under: - “49. It is easily deducible from the aforesaid discussion that in all cases of Rent Control Acts which are special acts mere acquiescence, implied consent, waiver or estoppel would not entitle the court to pass an order which is not in keeping with the provisions of Rent Control Act unless it is alleged and proved by a tenant that the landlord had given a written consent for change of user inconsistent with the purpose for which he was admitted to the tenancy of the premises in question originally by bilateral agreement of the tenancy commonly known as rent note. A bilateral agreement of tenancy in writing between land lord and tenant specifying the purpose for which tenant was admitted to the tenancy originally cannot be allowed to be impeached by a tenant with impunity by pleading acquiescence, waiver, implied consent and estoppel giving a chance to an unscrupulous tenant to allege and prove white to black and back to white. Change of user inconsistent with the purpose for which a tenant was initially admitted to tenancy in writing of the premises in dispute can be permitted to be changed only on written consent of the land lord and an argument contrary to it is not acceptable.” 10. On the other hand, Mr. Rajeev Purohit, learned counsel for the respondents-defendants relied upon a decision of this Court in the case of Bhomale Ram vs. Mahesh Chand & Anr. reported in 1996 DNJ (Raj.) 480, wherein the Court found that the tenant Mahesh Chand had been doing business of spare tractor parts in the adjacent shop. In the another shop, which was let-out to him, which has no doors, and Shri Nirmal Singh was permitted by the defendant to do the work of repairing of engines in the suit shop, and therefore, held that legal possession of the suit shop was never handed over to Nirmal Singh and, therefore, the trial court was right in holding that mere occupation of Nirmal Singh or putting doors on the shop is not sufficient to hold that defendant Mahesh Chand had sublet or parted with possession of the suit shop in favour of Nirmal Singh. 11. Having heard the learned counsels for the parties at length and upon perusal of the record of the case, this Court is of the opinion that the present second appeal filed by the appellants-plaintiffs deserves to be allowed and the substantial questions of law, framed above, deserve to be answered in favour of appellants-plaintiffs and against the defendants-tenants. On an overall reading of the reasons given by the learned lower appellate court, this Court is satisfied that the findings returned the learned lower appellate court in the impugned judgment and decree dated 14.05.2001 are perverse and not sustainable. The suit seeking eviction deserves to be decreed, which the learned trial court had rightly decreed in favour of appellants-plaintiffs. 12. The suit seeking eviction deserves to be decreed, which the learned trial court had rightly decreed in favour of appellants-plaintiffs. 12. A bare perusal of the judgment relied upon by the learned counsel for the respondents-defendants in the case of Bhomale Ram vs. Mahesh Chand & Anr. (supra) is concerned, the said case is clearly distinguishable from the facts of the present case, where not only parting with possession of the suit shop is there, may be to his own younger real brother, the original tenant, Chandu Lal has already started his separate business in different premises and in the face of documentary evidence of rent-note (Ex.1) and subsequent rent-receipts, issued in the name of original tenant, Chandu Lal only, this Court is satisfied that the learned trial court was justified in decreeing the eviction suit filed by the appellants-plaintiffs and the learned lower appellate court had erred in reversing the judgment and decree of the learned trial court. 13. Mr. Rajeev Purohit, learned counsel for the appellants-defendants-tenants, also relied upon judgments of this Court in the case of Hardev vs. Jaidev through his Legal Representatives, reported in 2000(1) RLW Raj. 407 in which a coordinate bench of this Court held that “.... in the present case the tenant-defendant-appellant who allows his mother and his brother's wife to look after his business on the premises in question cannot be held to have parted with the possession of the premises in dispute so as to entail on him the liability of eviction under Section 13(1)(e) of Act No.17 of 1950. It is also held that both the courts below have committed substantial error of law in not raising presumption under the Hindu Law to the effect that the brothers are presumed to be living jointly unless otherwise is proved by cogent and convincing evidence by landlord-plaintiff-respondent.” The facts of this case are clearly distinguishable. Here, the original tenant is doing entirely separate business in different premises and the defendant- Harish Kumar has not even set up a case before the courts below that he was doing business only on behalf of his brother, Chandu Lal, the original tenant. Harish Kumar holds the trade licence in his own name and there is no partnership in business in the suit premises, therefore, this case law is of little avail to the defendants-appellants. 14. Harish Kumar holds the trade licence in his own name and there is no partnership in business in the suit premises, therefore, this case law is of little avail to the defendants-appellants. 14. The Hon'ble Supreme Court in the case of A.S. Sulochana vs. C. Dharmalingam, reported in (1987) 1 SCC 180 , in which the Hon'ble Supreme Court held in para 3 and 4 as under: “3. Examining the profile of view taken by the High Court that the offending sub-letting must be by the tenant sought to be evicted himself, and not by his predecessor, it appears to be blemishless. Section 10 (2) opens with the words “A landlord who seeks to evict his tenant” and provides that if the tenant ha created a sub-tenancy without the written consent of the landlord, he will be liable to be evicted. Pray who is the 'tenant' whom the landlord wants to evict? That tenant is the respondent. Did he violate Section 10 (2) (ii) (a) and sub-let the rented premises? The answer is 'no'. It is of little use to give the answer, not he, but his predessors, his late father, had sub-let the premises. When the statute says the tenant who is sought to be evicted must be guilty of the contravention, the court cannot say, 'guilt of his predecessor in interest' will suffice. The flouting of the law, the sin under the Rent Act must be the sin of the tenant sought to be evicted, and not that of his father or predecessor in interest. Respondent inherited the tenancy, not the sin, if any, of his father. The law in its wisdom seeks to punish the guilty who commits the sin, and not his son who is innocent of the rent law offence. It being a penal provision in the sense that it visits the the violator with the punishment of eviction, it must be strictly construed, for it causes less misery to be sheltered in a jail, than to be shelterless without. Be that as it may the conclusion recorded by the High Court is fault-free. 4. We, therefore, see no reason to interfere with the order of High Court in exercise of our jurisdiction under Article 136 of the Constitution of India. The appeal accordingly fails and is dismissed. Be that as it may the conclusion recorded by the High Court is fault-free. 4. We, therefore, see no reason to interfere with the order of High Court in exercise of our jurisdiction under Article 136 of the Constitution of India. The appeal accordingly fails and is dismissed. There will be no order as to costs.” The aforesaid Supreme Court decision is also, with great respects, distinguishable. Here there is no predecessor in title for whose act of sub-letting, his son or brother is faced with an eviction decree. Both brothers, defendant, Chandu Lal, the original tenant, who committed the act of subletting and sublettee, Harish Kumar, was arrayed as defendant and faced the eviction decree, as established grounds for eviction under Section 13(1)(e) of the 1950 Act. Therefore, the aforementioned decision rather helps the plaintiffs-landlord here rather than the defendants-tenants. 15. Accordingly, the present second appeal filed by the appellants-plaintiffs-landlord is allowed and substantial questions of law, framed above, are answered in favour of plaintiffs-landlord and against the respondent-defendant-tenant. No costs. . 16. The respondents-defendants-tenants shall hand over the peaceful and vacant possession of the suit shop to the appellants-plaintiffs (landlord) within a period of six months from today and shall pay mesne profit @ Rs.2,000/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellants-plaintiffs till the vacant possession is handed over to the appellants-plaintiffs and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondents-tenants shall also clear all the arrears of the mesne profit within three months from today, otherwise the amount shall bear interest @ 9% as money decree. The defendants-tenants shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondents-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. The respondents-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the appellantsplaintiffs/ landlord within a period of six months from today, besides execution of the decree in normal course, the appellants-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.