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Allahabad High Court · body

2015 DIGILAW 3111 (ALL)

MAHESH CHANDRA SHARMA v. GOPAL KRISHNA

2015-10-01

MANOJ KUMAR GUPTA

body2015
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Ghanshyam Das Gupta, predecessor-in-title of the respondents 1 to 8 and 10 to 13, instituted SCC suit No. 15 of 1995 against the petitioners (defendants 1 and 2 respectively), Kamal Kishore Sharma (defendant No. 3 and respondent 14 herein) and Sharma Gas Chulha Centre (defendant No. 4 and respondent 9 herein) for recovery of arrears of rent and for ejectment. The suit was founded on the ground of default in payment of rent, subletting of demised premises by the petitioners to defendant No. 3 and 4, change of user and breach of the terms of the registered agreement of tenancy. According to the plaint case, the demised premises was let out to defendant No. 1 and 2 under a registered lease agreement dated 1.6.1982 for carrying on a business of Arms and Ammunitions. Under the lease agreement, the aforesaid defendants were not entitled to sublet the premises. However, in breach of clause 3 of the agreement and also without taking any permission from the District Magistrate or the plaintiff, the demised premises has been sub let to a partnership firm, defendant No. 4 in which the tenants also made their real brother Kamal Kishore Sharma a partner. Thus, according to the plaintiffs, a sub-tenancy has come into existence within the meaning of U.P. Act No. 13 of 19721. The tenancy of the demised premises was determined by serving of notice and since the defendants have failed to vacate and consequently, the suit was instituted. 2. The suit was contested by the petitioners by filing written statement in which it was denied that there was default in payment of rent. It was further stated that the petitioners have complied with the provisions of Section 20 (4) of the Act. The petitioners admitted that in the demised premises, they are carrying on the business of selling and repairing cooking gas burner in the name and style of M/s. Sharma Gas Chulha Centre. However, they denied that any subletting had taken place. 3. The trial Court framed various points for determination. It held that the notice determining the tenancy is valid and was duly served on the defendants. However, they denied that any subletting had taken place. 3. The trial Court framed various points for determination. It held that the notice determining the tenancy is valid and was duly served on the defendants. On point No. 2, trial Court held that there was wilful default in payment of rent for a period of more than 4 months and the amount as contemplated under Section 20(4) of the Act was not duly deposited on the first date of hearing. The trial Court further held that there has been a change of user of the demised premises in violation of the terms and conditions stipulated under the registered agreement of tenancy. While deciding point No. 4, regarding subletting, the trial Court held that it is not in dispute between the parties that initially the premises was let out by means of a registered lease agreement to defendant No. 1 and 2 for running a business of Arms and Ammunitions. Subsequently, defendant No. 1 and 2 formed a partnership firm with their real brother, defendant No. 3 in the name of defendant No. 4 and started carrying on a new business which in view of provision of Section 25 of the Act, would amount to a subletting. In view of such findings, the suit for recovery of arrears of rent and for ejectment was decreed by the trial Court. 4. Aggrieved by the judgement passed by the trial Court, the petitioners preferred SCC revision No. 03 of 2014 alongwith Kamal Kishore Sharma, defendant No. 3 in the suit. The revision has been dismissed by judgement dated 6.7.2015 upholding the view taken by Judge Small Causes Court. Aggrieved thereby, the petitioners have preferred the instant petition under Article 227 of the Constitution. 5. Sri Ramendra Asthana, learned counsel appearing on behalf of the petitioners submitted that the third defendant, Kamal Kishore Sharma, is the real brother of the petitioners and the partnership firm constituted by inducting him as a partner cannot constitute subletting of the demised premises. It is urged that there was no direct evidence of payment of rent by the defendant No. 3 to the petitioners which is essential to prove subletting. It is submitted that the petitioners are still in possession of the demised premises, and merely, starting a new business in partnership with their real brother, cannot amount to subletting. It is urged that there was no direct evidence of payment of rent by the defendant No. 3 to the petitioners which is essential to prove subletting. It is submitted that the petitioners are still in possession of the demised premises, and merely, starting a new business in partnership with their real brother, cannot amount to subletting. He therefore, contended that the findings recorded in that regard by the Courts below cannot be sustained. 6. On the other hand, learned counsel appearing on behalf of plaintiff-respondents placing reliance on the decision of the Supreme Court in Harish Tandon v. Additional District Magistrate, Allahabad and others, 1995 (25) ALR (SC) 184, submitted that induction of defendant No. 3 as a partner in the partnership firm which was formed for carrying on a new business in the demised premises would amount to subletting. He further placed reliance on the following decisions : 1. Joginder Singh Sodhi v. Amar Kaur, 2005 (58) ALR 683 2. Harish Khurana v. Prem Kumar and another, 2006(1) ADJ 271 3. Iftikhar Hussain Khan and another v. VIth Additional District Judge, Bareilly and others, AIR 2008 All 14 : 2007(4) ADJ 27 (NOC) 4. Raj Pal Sharma and another v. Additional District Judge/Special Judge (E.C. Act), Meerut and others, 2009 (76) ALR 199 5. S.F. Engineer v. Metal Box India Limited and another, (2014) 6 SCC 780 7. I have considered the submissions made by learned counsel for the parties and perused the material on record. 8. Concededly, the demised premises was let out to defendant No. 1 and 2 (petitioners herein), in pursuance of a registered agreement of lease executed in their favour in the year 1982, whereunder, they were permitted to carry on a business of Arms and Ammunitions from the demised premises. The finding that later on the petitioners formed a partnership firm in the name of defendant No. 4, by inducting their real brother, defendant No. 3 also as a partner in the said firm, is not under challenge before this Court. It has further come in evidence that in the said partnership firm, the petitioners as well as their real brother, defendant No. 3, each have 1/3 share. 9. Under Section 25 of the Act, there is a specific prohibition of subletting of whole of the building by tenant under his tenancy. It has further come in evidence that in the said partnership firm, the petitioners as well as their real brother, defendant No. 3, each have 1/3 share. 9. Under Section 25 of the Act, there is a specific prohibition of subletting of whole of the building by tenant under his tenancy. Sub-section (2) of Section 25 stipulates that a part of the building can be sublet by a tenant with the permission in writing of the landlord and of the District Magistrate. The Explanation 1 to sub-section (2) of Section 25 specifically provides that where the tenant ceases within the meaning of clause (b) of sub-section (1) and (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sublet that building or part. Section 12 (2) of the Act provides that in case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. 10. Thus, the Act, apart from prohibiting subletting stricto sensu, where there is payment of rent or other monetary consideration by a sub-tenant to the tenant, creates a deeming fiction whereby, certain acts as stipulated under clause (b) of sub-section (1) or sub-section (2) of Section 12 are deemed to be acts of subletting. 11. It is not disputed before this Court that the petitioners have formed a new partnership firm by admitting defendant No. 3, their real brother as a partner. Section 3 (g) defines “family”, in relation to a landlord or tenant of a building to include his or her spouse, male lineal descendants, such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendants, as may have been normally residing with him or her. Admittedly, the brother of the petitioners does not come within the meaning of the “family” as defined under the Act. In such view of the matter, the inescapable conclusion is that a subletting of the premises had taken place. 12. In the case of Harish Tandon (supra), the demised premises was let out to one Sheobux Roy, who was doing business therein in the name of M/s. B.N. Rama & Co. In such view of the matter, the inescapable conclusion is that a subletting of the premises had taken place. 12. In the case of Harish Tandon (supra), the demised premises was let out to one Sheobux Roy, who was doing business therein in the name of M/s. B.N. Rama & Co. After his death, his five sons inherited the tenancy. Two of the sons relinquished their tenancy rights and the business was continued by the remaining three sons. In the year 1976, two of his sons constituted a new partnership firm with one Swarup Kailash, son-in-law of Ganpat Roy (one of the sons of deceased tenant). The Supreme Court in the aforesaid facts and circumstances held that induction of son-in-law would amount to subletting within the meaning of Section 25 of the Act. It has been held thus : “When sub-section (2) of Section 12 provides that whenever a tenant carrying on business in a building admits a person, who is not a member of his family, as a partner, the tenant shall be deemed to have ceased to occupy the building, full effect has to be given to the mandate of the Legislature. There is no escape from the conclusion that such tenant has ceased to occupy the building. No discretion is left to the Court to enquire or investigate as to what was the object of such tenant while inducting a person as partner who was not the member of his family. It can be said that the aforesaid statutory provision requires the Court to come to the conclusion that by the contravention made by the tenant, such tenant has ceased to occupy the building. The framers of the Act have not stopped only at the stage of Section 12(2) but have further provided in Section 25, Explanation (i) another legal fiction saying that where the tenant ceases to occupy the building within the meaning of sub-section (2) of Section 12 ‘he shall be deemed to have sub-let that building or part’. The framers of the Act have not stopped only at the stage of Section 12(2) but have further provided in Section 25, Explanation (i) another legal fiction saying that where the tenant ceases to occupy the building within the meaning of sub-section (2) of Section 12 ‘he shall be deemed to have sub-let that building or part’. In view of the three deeming clauses introduced in sub-section (2) of Section 12, sub-section (4) of Section 12 and Explanation (i) to Section 25, no scope has been left for the Courts to examine and consider the facts and circumstances of any particular case, as to what was the object of admitting a person who is not the member of the family, as partner and as to whether, in fact, the premises or part thereof have been sub-let to such person." (emphasis supplied) 13. Learned counsel for the petitioners could not place any decision which goes contrary to what has been laid down in the aforesaid judgement by the Supreme Court in the case of Harish Tandon (supra). 14. He also has not challenged the other findings regarding due service of notice determining the tenancy, the petitioners being in arrears of rent, inconsistent user and breach of the conditions of the agreement of tenancy. In such view of the matter, no ground is made out to interfere with the impugned judgement and decree of the Courts below in exercise of supervisory jurisdiction under Article 227 of the Constitution. The petition lacks merit and is dismissed. 15. In the end, learned counsel for the petitioners prayed for grant of time to the petitioners to vacate the demised premises, to which Sri Kshitij Shailendra, learned counsel appearing for the plaintiff-respondents has no objection. 16. Considering the facts and circumstances of the case, the petitioners are granted time upto 31st March, 2016 subject to the following conditions : (a) The petitioners, alongwith their brother Kamal Kishore Sharma shall furnish an undertaking by way of an affidavit before the Judge Small Causes Court, within three weeks from today, that they will handover vacant possession of the demised premises to the respondent-landlord without any let or hindrance on or before 31st March, 2016. (b) The petitioners shall deposit the entire arrears of rent and damages as decreed by the trial Court, before the Executing Court, within three weeks from today, and will continue to pay rent/damages until 30th March, 2016 well in advance. Any amount already deposited shall be duly adjusted. (c) The petitioners shall not induct any other person in the demised premises. In case of default of any of these conditions, it shall become open to the plaintiff-respondents to execute the decree passed by the Courts below forthwith, in accordance with law. The amount deposited by the petitioners in pursuance of this order, shall be permitted to be withdrawn by the plaintiff-respondents without requiring them to furnish any security.