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Madras High Court · body

2014 DIGILAW 2314 (MAD)

V. Jayakumar v. V. Swaminathan

2014-08-04

S.VIMALA

body2014
Judgment : 1. Whether the concurrent finding of fact rendered, directing eviction of the tenant from the premises on the ground of sub-letting was given (a) in the absence of legal evidence and (b) also against the admission made by the landlord that the so-called sub-tenants were the employees of the tenants, and under such circumstances whether those findings can be termed as perverse findings? 2. Landlord filed petition under Section 10(2)(i), 10 (2)(a), 10(2)(b) and 10(3)(c) of The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter will be referred to as “The Act”) in R.C.O.P.No.17 of 2009 against the first respondent / tenant and the second respondent / alleged sub-tenant, seeking eviction on the ground of, (i) wilful default in the payment of rent; (ii) sub-letting; (iii) different user; and (iv) personal occupation. 3. The Rent Controller ordered eviction of the respondents on the ground of subletting, granting one month's time for the tenant to vacate the premises. 3.1. Aggrieved over the order of eviction, the first respondent / tenant filed RCA No.28 of 2011 and the said appeal was dismissed, confirming the order of eviction (passed on the ground of subletting). 3.2. Challenging the confirmation of order of eviction, this Civil Revision Petition has been filed by the tenant. 4. The first contention of the learned counsel for the landlord / first respondent is that the property was let out only for the purpose of running a juice shop and no permission was ever granted to change the business and without the permission of the landlord, the tenant has now changed the business, and therefore, he is liable to be evicted. 4.1. Admittedly, the tenant / petitioner was originally running a juice shop in the name and style of “Chat and Chill”. At the time when the eviction petition was filed, he was conducting business in fast food in the name and style of “Annapoorna Fast Food”. 4.2. Whether this change would amount to difference in the user is the issue, to be considered in this Civil Revision Petition. 4.3. A perusal of the lease agreement, dated 18.08.2006, would go to show that the premises had been let out, not only for running a fruit juice shop, but also for conducting business in other items. The relevant lines read thus:- “... for running a fruit juice shop and other items...” 4.4. 4.3. A perusal of the lease agreement, dated 18.08.2006, would go to show that the premises had been let out, not only for running a fruit juice shop, but also for conducting business in other items. The relevant lines read thus:- “... for running a fruit juice shop and other items...” 4.4. The new business is an ancillary business to the original purpose of lease, and therefore, the contention that there is change/difference in user cannot be accepted. 5. It is the specific case of the landlord / first respondent that the tenant / petitioner herein, has sub-leted the property in favour of the second respondent, sub-tenant. During the course of submission, the learned counsel for the tenant / petitioner submitted that the process of subletting is normally taking place in a clandestine manner and as it is done behind the back of the landlord, the landlord cannot place direct evidence to prove the subtenancy and the court has to take into account the overall circumstances to arrive at a conclusion as to whether the property has been under sub-lease or not. 5.1. It is also submitted that at the time when the petition was filed the second respondent was a subtenant and at a later point of time, one Latha and Vasudevan are doing business in the premises as subtenant. 5.2. The learned counsel for the landlord strongly relies upon the complaint, dated 28.06.2010, alleged to have been sent by the so-called sub-tenant Latha (wife of Vasudevan) wherein she is alleged to have said that, she is running “Annapoorna Fast Food”, at No.2, Radhakrishnan Salai, Chennai (rented premises). Relying upon this complaint, it is contended that the subtenancy has been proved by the landlord and rightly the Courts below have ordered eviction. 5.3. In support of the proposition that normally subletting is taking place in a clandestine way, the decision reported in 2010 (6) CTC 319 (Vinaykishore Punamchand Mundhada v. Bhumi Kalpataru) is relied upon. The factors required to be proved in the case of subletting has been highlighted in paragraphs 17 and 18, of the decision cited supra, which is extracted for reference:- “17. The factors required to be proved in the case of subletting has been highlighted in paragraphs 17 and 18, of the decision cited supra, which is extracted for reference:- “17. We are not impressed by the submission made by the learned counsel for the respondents that unless payment of consideration was established as a fact between the tenant and sub-tenant, the application under the provisions of the Rent Control order filed by the landlord cannot be allowed. Is it possible for any landlord to establish the actual agreement or understanding between the tenant and the person to whom the possession of the premises is delivered? 18. It is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property.” 5.4. As per this decision, it is the actual, physical and exclusive possession of newly inducted person, namely, the subtenant, which is a material factor, which ought to have been proved to show that there is subtenancy. 6. Whether the landlord has proved subtenancy atleast indirectly, is the issue to be considered and whether the complaint, dated 28.06.2010, would amount to proof of subletting is the ancillary issue. 7. To prove subletting, the two ingredients have to be established: (i) Parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession; and (ii) That such “parting with possession” has been done without the consent of the landlord and in view of compensation or rent. 7.1. 7. To prove subletting, the two ingredients have to be established: (i) Parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession; and (ii) That such “parting with possession” has been done without the consent of the landlord and in view of compensation or rent. 7.1. This is the proposition laid down in the following cases, which are relied upon by the learned counsel for the petitioner:- (i) 2012-1-L.W.943 (M.S.Hohammed Jahabar Kadiri & Others v. G.Govindaraju & 8 others) (ii) 1965 (Vol.17) Law Weekly 462 (Rangamannar Chetty v. Rangiah) (iii) (1991) II MLJ 156 (Sree Venkateswara Varukadalai Mills, Rep. By its Partner v. Vijayalakshmi) (iv) (1974) 1 Supreme Court Cases 289 (Krishnawati v. Hans Raj) (v) 1998 (I) CTC 657 (Bharat Sales Ltd., v. Life Insurance Corporation of India) (vi) 1998 (I) CTC 537 (Senniappan, P v. Kannammal) 7.2. There cannot be any dispute over the legal proposition, cited supra, and whether these two ingredients have been proved in this case is the issue. 8. It is the case of the landlord that one Latha and Vasudevan are the subtenants running “Annapoorna Fast Food” in the rented premises. But, it is the case of the tenant that those two persons are employees under the tenant and they are not the subtenants. 8.1. According to the learned counsel for the landlord, when it is stated in the complaint, dated 28.06.2010, that one Latha and Vasudevan are running business in the rented premises and when document is filed before the Court, it amount to proof of the fact that the tenant has subletted the premises. The alleged sub-tenant is stated to have said in the complaint that she is running “Annapoorna Fast Food” in the rented premises along with her husband. 8.2. What is the evidentiary value of that statement in the complaint, dated 28.06.2010, is the next issue to be decided. 8.3. The person, who preferred the complaint, namely, Latha, has been examined before the Rent Controller, as R.W.2. She has stated in her evidence that she is the salaried employee under the tenant and has also described the nature of the job done by her and her husband. Her specific evidence is that, when she was unconscious, signature alone was obtained from her. The implication of the statement is that she has disowned the contents of the complaint. She has stated in her evidence that she is the salaried employee under the tenant and has also described the nature of the job done by her and her husband. Her specific evidence is that, when she was unconscious, signature alone was obtained from her. The implication of the statement is that she has disowned the contents of the complaint. When the contents of the complaint are disputed, it is for the party relying upon the document to prove that the contents of the complaint are true / correct. Under Section 157 of the Indian Evidence Act, even if the contents of the complaint is proved, it is admissible for the purpose of corroboration or contradiction. Section 157 of the Indian Evidence Act is reproduced here-under for convenient reference:- “157. Former statements of witness may be proved to corroborate later testimony as to same fact.—In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." 8.4. When a specific evidence has been given by the complainant (R.W.2) that she did not prefer such a complaint, then it is the duty of the landlord to have examined the person, who registered the First Information Report, based upon the complaint. That has not been done. 8.5. When the contents of the complaint are not supported by the evidence of the person, who is alleged to have preferred the complaint, it can neither be used for corroboration nor for contradiction. 8.6. There is no proof to show that the subtenant is in exclusive possession and enjoyment of the rented premises. The initial burden of proving subletting is on the landlord to establish that a third party / subtenant is in exclusive possession of the premises and that the tenant has no legal possession of the tenanted premises. Evidence adduced has only proved that the tenant is in possession of the premises and the so-called subtenants are only employees under the tenant. 8.7. It is the case of the landlord himself, as stated in paragraph 10 of the petition, that since 06.03.2009, a new subtenant Mr.G.Madan, is carrying on the business, in the shop portion, in the name and style of “Fifth Sense Food”. 8.7. It is the case of the landlord himself, as stated in paragraph 10 of the petition, that since 06.03.2009, a new subtenant Mr.G.Madan, is carrying on the business, in the shop portion, in the name and style of “Fifth Sense Food”. The landlord has not proved his case that the premises have been sub-letted to one Madan. The landlord has disproved his case that Latha and Vasudevan are the subtenants by his own affidavit. In the proof affidavit filed before the Court, in paragraph 10, the landlord has stated as follows:- “10. I further submit that on Monday, 28.06.2010, at about 12.30 p.m there was a big commotion in the shop. Two persons, who came to the shop for eating food, started quarrelling with the shop worker, Mr.Vasudevan and his wife....” 8.8. By filing this affidavit, the landlord has endorsed the case of R.W.2 and the tenant that Vasudevan and Latha are not as subtenants and they are the employees. When the landlord has admitted the case of the tenant that those persons named in the complaint are employees, then the contention of the learned counsel for the landlord that the details of employment of those two persons are not stated in the counter is far-fetched and it has no meaning. 8.9. It is the contention of the learned counsel for the landlord that the counter by the tenant did not mention the fact that those two persons named in the complaint are employees and not the sub-tenants. 8.10. This contention is ill-logical, as there was no occasion for the tenant to state the name of those two persons (alleged sub-tenants) at the time of filing the counter, as it is the case of the landlord himself that one Madan was the sub-tenant at the time of the filing of the petition and it is not the case of the landlord himself that persons named in the complaint, namely, Latha and Vasudevan were the sub-tenants. Had it been the case of the landlord, only then one can expect the tenant to say that they are not the sub-tenants but employees. Therefore, the contention that the counter did not specifically state about the status of the alleged sub-tenants as employees in the counter itself cannot be sustained. 8.11. Had it been the case of the landlord, only then one can expect the tenant to say that they are not the sub-tenants but employees. Therefore, the contention that the counter did not specifically state about the status of the alleged sub-tenants as employees in the counter itself cannot be sustained. 8.11. Admission is defined in Section 17 of the Indian Evidence Act as a statement (oral or documentary) made by a party or by a person connected with him in any of the ways described in Sections 18 to 23 under certain circumstances, which suggest an inference as to any fact in issue or a relevant fact. The statement made may be either a denial or admission of a fact. What a party himself admits to be true may reasonably be presumed to be so, unless it is satisfactorily explained or successfully withdrawn. Party making admissions are at liberty to contradict them or to show that they are untrue or mistaken or made under a misapprehension. So far as this case is concerned, the admission made in the affidavit by the landlord has not been shown to be so. Therefore, the admission is binding upon the landlord. 8.12. So far as value of admission is concerned, admission is always the best piece of evidence, unless explained. Under Section 18 of The Indian Evidence Act, 1872, statement made by a party to the proceeding and party interested in the subject matter of litigation are admissions. Section 18 of the Indian Evidence Act, is reproduced hereunder:- 18. Admission by party to proceeding or his agent.— Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. ..... (1) party interested in subject-matter.—persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested....” 8.13. Admitted facts need not be proved is the settled legal position. As stated already, the landlord has neither proved his case (that one Madan is the sub-tenant) as stated in the petition nor his case (that Latha and Vasudevan are the sub-tenants) as developed during the course of enquiry and therefore, the landlord is not entitled to an order of eviction on the ground of subletting. As stated already, the landlord has neither proved his case (that one Madan is the sub-tenant) as stated in the petition nor his case (that Latha and Vasudevan are the sub-tenants) as developed during the course of enquiry and therefore, the landlord is not entitled to an order of eviction on the ground of subletting. 8.14. The concurrent findings of fact by the Rent Controller and the appellate authority, which are against the admissions made by the landlord himself are perverse and therefore, it is liable to be set-aside. 9. In the result, this Civil Revision Petition is allowed. No costs. Consequently the connected MP is closed.