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2012 DIGILAW 28 (PNJ)

Ram Chand v. Sat Pal Juneja

2012-01-05

RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain, J:- The landlords are in revision against the orders of both the Courts below by which their application for eviction of the tenants has been dismissed. 2. In brief, the facts of the case are that Gulab Ram, father of the petitioners was owner of six shops situated at Jagdish Marg, Shahbad (M), Tehsil Thanesar. Gulab Ram died on 10.11.1983 and the petitioners became owner of the shops on rent with Jai Lal and Sat Pal Juneja on the basis of a Will dated 30.10.1983. 3. The case of the landlords is that said Gulab Ram had let out the demised premises to Sat Pal Juneja @ Rs.130/- per month which was increased to Rs.175/- per month w.e.f. 08.10.1980 and to Rs.225/- per month in March,1993. The eviction petition was filed by the petitioners, inter-alia, on the ground of non-payment of rent, subletting, the tenants being guilty of such acts as to diminish the value and utility of the demised premises and are guilty of nuisance to the landlord and the neighbours. 4. The learned Rent Controller, though held that rate of rent of the demised premises was Rs.225/-per month w.e.f. 01.3.1983 but dismissed the ejectment petition against which the landlords filed the statutory appeal before the learned Appellate Authority, Kurukshetra in which the tenants also filed cross objection in respect of the rate of rent. The appeal filed by the landlords was dismissed on 07.10.1993 and the cross objection filed by the tenants was allowed and the rate of rent was held to be Rs.100/- per month. 5. Basically, the eviction petition was sought on the ground of subletting. It was alleged that the tenant has further sublet the demised premises to Kashmiri Lal (respondent No.2) for tailoring business on a monthly rent of Rs.100/- per month without his consent. In order to prove the fact of subletting, two photographs Exs A-8 and A-9 showing the existence of sewing machine in the demised premises and the presence of respondent No.2 were produced but the learned Courts below had held that it is not a case of subletting. It was observed by the learned Appellate Authority that “in the first instance, the photographs or any witness produced by the appellant does not show that the photographs Exs A-8 and A-9 depict the demised premises. It was observed by the learned Appellate Authority that “in the first instance, the photographs or any witness produced by the appellant does not show that the photographs Exs A-8 and A-9 depict the demised premises. They have not been put to the witness when he stepped into the witness box. There is no worth while evidence that the respondent No.1 has charged any amount from the said tailor master. Assuming that the photographs Exs A-8 and A-9 are of the demised premises but the same do not show if any tailor master was sitting there. Looking from all these circumstances, I have no hesitation in upholding the finding of the Rent Controller on this issue accordingly and it is held that the appellants have failed to prove the ground of subletting by the respondent/tenant”. 6. Although the learned counsel for the petitioners has vehemently challenged the finding of the Courts below on the issue of subletting but it is an admitted fact that respondent No.1 is a cloth merchant and respondent No.2 is a tailor master, whose sewing machine is alleged to have been shown in the demised premises. 7. In this regard, learned counsel for the respondents has relied upon a decision of the Supreme Court in the case of Nirmal Kanta (dead) through Lrs Vs. Ashok Kumar & Anr., [2008(3) LAW HERALD (SC) 2097 : 2008(2) LAW HERALD (P&H) 1743 (SC)] : 2008 (2) R.C.R. (Civil) 632, to contend that even if the contention of the landlords is accepted that respondent No.2 is a tailor master and is occupying some portion of the demised premises where he is doing tailoring business, still it would not be a case of subletting. 8. I have heard learned counsel for the parties and have perused the record with their able assistance. 9. In the present case, respondent No.1 is admittedly a cloth merchant and respondent No.2 is allegedly a tailor master. Even if it is presumed that respondent No.2 is a tailor master and is occupying some portion of the demised premises with the consent of respondent No.1, but without the consent of the landlords, even then the case does not fall within the definition of subletting in view of the decision of the Supreme Court in Nirmal Kanta’s Case (Supra). Even if it is presumed that respondent No.2 is a tailor master and is occupying some portion of the demised premises with the consent of respondent No.1, but without the consent of the landlords, even then the case does not fall within the definition of subletting in view of the decision of the Supreme Court in Nirmal Kanta’s Case (Supra). In that case, Nirmal Kanta had filed the eviction petition against Ashok Kumar, inter-alia, on the ground of subletting in which it was alleged that principal tenant had let out a portion of the demised premises to a tailor who had been working in the demised premises with sewing machine. The Supreme Court has observed that subletting comes into existence when the tenant gives up possession of the tenanted accommodation wholly or in part and puts another person in exclusive possession. The presence of the tailor master in the shop of the cloth merchant is there to facilitate the customers to take measurement for the purpose of buying clothes while assisting and assessing the amount of clothes required for a particular purpose. It was observed that it is not a case of subletting and would rather be a case, at the most of a licensee because the exclusive possession is still with the tenant and not with a sub tenant. 10. No other point has been urged or argued before me by the learned counsel for the petitioners/landlords. 11. In view of the aforesaid law laid down by the Supreme Court, the present petition is found to be without any merit and the same is hereby dismissed. No costs. ------------