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CASE NO.: Appeal (civil)  1559 of 2008

PETITIONER: Vaishakhi Ram and Ors

RESPONDENT: Sanjeev Kumar Bhatiani

DATE OF JUDGMENT: 25/02/2008

BENCH: TARUN CHATTERJEE & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 1559 OF 2008 [ Arising out of SLP [C] No.2478 of 2007 ]

TARUN  CHATTERJEE, J.

1.      Leave granted. 2.      This appeal is directed against the final judgment and order  dated 23rd of January, 2007 passed by the High Court of Delhi in  CM [M] No.126 of 2007 whereby the eviction of the appellants  from a shop bearing No. III-1/9, Gopi Nath Bazar, Delhi  Cantonment, Delhi (in short "the suit shop") was affirmed on the  ground of subletting under Section 14 [1] [b] of the Delhi Rent  Control Act, 1958 (for short "the Act"). 3.      The appellant no.1 was inducted as a tenant in the year 1956  by the erstwhile owners of the suit shop, viz., Som Nath and  Mohinder Nath. He was all along in continuous possession of the  suit shop and was conducting the business from the same along  with his brother Chunni Lal of Chunni Lal and Sons under the  name and style of     M/s Mitra Book Depot.  The rent receipts  issued by the landlord were in the name of M/s Mitra Book Depot  as tenant at the rate of Rs.65/- per month.  Subsequently, a  business was started in a portion of the suit shop in the name of  M/s. Mitra Stores and M/s. Lucky Confectioners.   In the year  2000, Som Nath and Mohinder Nath sold the suit shop to one Anil  Anand.  However, the rent of the suit shop was continued to be  paid to Som Nath and Mohinder Nath by the appellant no.1 upto  the month of September 2000.  Thereafter, the rent was deposited  by the appellant no.1 in the court in different proceedings.   On 20th  of October, 2000, Anil Anand sold the suit shop to the respondent  by a registered deed of sale.  However, the appellant no.1 went on  depositing the rent in the name of the original landlord.  Finally, on  or about 1st of February, 2002, the respondent filed an eviction  petition under Section 14 [1][b] of the Act on the ground of  subletting before the Rent Controller, Delhi.  According to the  respondent, although the tenancy was given to the appellant no.1 in  the name of M/s Mitra Book Depot but subsequently, the appellant  no.1 had sublet the suit shop to the appellant Nos. 2 to 4 who were  carrying on the business in a portion of the suit shop in the name of  M/s Mitra Stores and M/s Lucky Confectioners.  Accordingly, the  respondent sought for eviction of the appellants on the ground of  subletting.  A written statement was filed by the appellants denying  the material allegations made in the eviction petition filed before  the Rent Controller, Delhi by the respondent.  After the issues were  framed and the evidence was adduced, the Rent Controller held on  facts that the appellant No.1 had sublet a portion of the suit shop in  which the business in the name of M/s Mitra Stores and M/s Lucky

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Confectioners was carried on by the appellant Nos. 2 to 4 and,  therefore, the appellants were liable to be evicted under Section 14  [1][b] of the Act. The Rent Controller passed the order of eviction  by holding, inter alia, that the case of subletting was duly proved as  from the evidence on record, both oral and documentary, it was  clear that an independent business was run by the appellant Nos. 2  to 4 and that they were in exclusive possession of a portion of the  suit shop.   Feeling aggrieved, the appellants filed an appeal before  the Rent Control Tribunal, which also dismissed the same by  affirming the findings of the Rent Controller. Against this order of  the Rent Control Tribunal, the appellants filed a writ petition  before the High Court of Delhi and the High Court by the  impugned judgment also dismissed the same. Aggrieved by the  aforesaid judgment and order of the High Court, the instant special  leave petition has been filed, in respect of which leave has already  been granted. 4.      On behalf of the appellants, at the first instance, Mr. Rajesh  Aggarwal contended that even if subletting was done by the  appellant no.1 in favour of the appellant nos. 2 to 4, then also, the  respondent was not entitled to an order of eviction on the ground of  subletting under Section 14 [1] [b] of the Act for the simple reason  that since the appellant nos.2 to 4 have been carrying on their  business in the suit shop for a long time with the knowledge of the  respondent as also the erstwhile owner, the ground of subletting for  eviction of the appellants must be held to have been waived by the  erstwhile landlord of the appellant no.1 and finally by the  respondent as he had, at the time of his purchase, knowledge of the  subletting. Therefore, Mr.Aggarwal contended that even if  subletting was done by the appellant No.1 in favour of the  appellant nos. 2 to 4, either in whole or in part, it must be held that  the right to evict the appellants by the purchaser respondent on the  ground of subletting was waived. It was next contended by Mr.  Aggarwal that the appellant nos.2 to 4, being the family members  of the appellant no.1 and carrying on business in the name of M/s.  Mitra Stores and M/s. Lucky Confectioners in a part of the suit  shop, the subletting as made out by the respondent for eviction  cannot be said to have been proved. In any view of the matter, the  question of subletting of the suit shop to the appellant Nos. 2 to 4  could not arise as the appellant No.1 had the exclusive possession  and legal control of the same. It was lastly contended by Mr.  Aggarwal that in any view of the matter, the respondent, who is a  subsequent purchaser of the suit shop was not entitled to take  advantage of the ground of subletting when the erstwhile landlord  had not taken any steps to evict the appellants and therefore, had  waived the right to evict the appellants on the ground of subletting.  These submissions of Mr. Aggarwal were hotly contested by Mr.  Ranjit Kumar, the learned senior counsel appearing on behalf of  the respondent.  5.      Having heard the learned counsel for the parties and after  going through the impugned judgment of the High Court as well as  of the courts below and the other materials on record, including the  oral evidence, we are of the view that the concurrent findings of  fact on the question of subletting can not be upset for the reasons  herein after. Let us first deal with the question whether on account  of the continuous exclusive possession of the appellant Nos. 2 to 4  in a part of the suit shop from the time of the original erstwhile  landlord, the purchaser respondent was entitled to evict the  appellants from the suit shop on the ground of subletting as the  said right was waived by the erstwhile landlord or even by the  subsequent purchaser respondent. Before deciding the question of  waiver, we must look into the provision made in Section 14(1)(b)  of the Act, which reads as under:- "that the tenant has, on or after the 9th day of June,  1952, sublet, assigned or otherwise parted with the  possession of the whole or any part of the premises

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without obtaining the consent in writing of the  landlord." 6.      A plain reading of this provision would show that if a tenant  has sublet or assigned or otherwise parted with the possession of  the whole or any part of the premises without obtaining the consent  in writing of the landlord, he would be liable to be evicted from the  said premises. That is to say, the following ingredients must be  satisfied before an order of eviction can be passed on the ground of  subletting: - (1)     The tenant has sublet or assigned or parted with the  possession of the whole or any part of the premises; (2)     Such subletting or assigning or parting with the  possession has been done without obtaining the consent in  writing of the landlord. 7.      So far as these conditions are concerned, we find that in the  facts of this case, the appellant no.1 has parted with the exclusive  possession of a part of the suit shop in favour of the appellant Nos.  2 to 4 without obtaining the consent in writing, either of the  erstwhile landlord or the purchaser respondent. Now the question  is whether the respondent or the erstwhile owner of the suit shop  had waived the right of evicting the tenant on the ground of  subletting or not. As noted herein earlier, the appellant Nos. 2 to 4  were inducted in a part of the suit shop without obtaining the  consent in writing, either of the original landlord of the suit shop or  of the present respondent. Before deliberating further on this  question, let us, at this stage, consider a short submission of the  learned counsel for the appellants. According to Mr. Aggarwal, the  learned counsel appearing on behalf of the appellants, since the  appellant Nos. 2 to 4 are the family members of the appellant No.1,  it cannot be said that the appellant Nos. 2 to 4 were inducted as  sub-tenants under the appellant No.1. In Kailasbhai Shukaram  Tiwari Vs. Jostna Laxmidas Pujara & Anr. [(2006) 1 SCC 524],  while dealing with a case of subletting under the Bombay Rents,  Hotel and Lodging House Rates Control Act, 1947 (57 of 1947),  this Court observed that the question as to whether a person is a  member of the family of the tenant must be decided on the facts  and circumstances of the case. It observed in paragraph 14 as  follows :         "Apart from the parents, spouse, brothers,  sisters, sons and daughters, if any other relative claims  to be a member of the tenant’s family, some more  evidence is necessary to prove that they have always  resided together as members of one family over a  period of time. The mere fact that a relative has chosen  to reside with the tenant for the sake of convenience,  will not make him a member of the family of the tenant  in the context of rent control legislation."   8.      Admittedly, in this case, the appellant Nos. 2 to 4 are neither  the spouse, brothers, sisters, sons or daughters of the appellant No.  1. Although they are related to the appellant No.1, there is nothing  on record to show that the appellant Nos. 2 to 4 were residing with  the appellant No. 1 for a considerable period of time as members  of the family of the appellant No.1. Therefore, only because they  were related to the appellant No.1, in the absence of the appellant  Nos. 2 to 4 being residing with the appellant No.1, it cannot be said  in the context of rent control legislation that they were residing as  family members of the appellant no.1 and therefore, the question of  subletting would not arise at all.  9.      The three courts concurrently held on facts that the appellant  No.1 had no exclusive possession in a part of the suit shop where  the appellant Nos. 2 to 4 had been carrying on their separate  independent business.  10.     In view of the admission made by the appellant No.1 to the  extent that he had got nothing to do with the firm M/s. Mitra Stores  and M/s. Lucky Confectioners nor had any control and supervision

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over the said business, the onus had shifted to the appellant No.1 to  prove that there was no subletting and that the appellant No.1 had  legal possession and control over the suit shop or that the appellant  Nos. 2 to 4, being the family members, were assisting him in the  business of M/s. Mitra Stores and M/s. Lucky Confectioners. Both  the courts below, namely, the Rent Controller and the appellate  authority, on consideration of the entire evidence on record,  including the admission of the appellant No.1 in respect of the  business carried on in a part of the suit shop in the name of M/s.  Mitra Stores and in the name of M/s. Lucky Confectioners and in  view of the onus having been shifted to the appellant No. 1, held  that it could not be proved by cogent evidence that there was no  subletting. The courts below were fully justified in holding that  subletting as alleged was proved since the appellant No.1 had  failed to prove that the appellant Nos. 2 to 4 were not conducting  their business in the suit shop independently but in fact doing the  business of the appellant No.1 or assisting him. 11.     It is well settled that the burden of proving subletting is on  the landlord but if the landlord proves that the sub-tenant is in  exclusive possession of the suit premises, then the onus is shifted  to the tenant to prove that it was not a case of subletting. Reliance  can be placed on the decision of this Court in the case of Joginder  Singh Sodhi vs. Amar Kaur [(2005) 1 SCC 31]. Therefore, we are  in full agreement with the High Court as well as the courts below  that since the appellant Nos. 2 to 4 had been in exclusive  possession of the suit shop and the appellant No.1 could not prove  that it was not a case of subletting, the suit shop had been sublet by  the appellant no. 1 in favour of the appellant Nos. 2 to 4.   Therefore, no interference can be made with the findings arrived at  by the High Court as well as the courts below on the question of  subletting. 12.     Let us now revert to the question whether long exclusive  possession of the appellant Nos. 2 to 4 in the suit shop would invite  the court to hold that the respondent or the erstwhile owner of the  suit shop had waived the right to evict the tenant on the ground of  subletting. As noted herein earlier, an order of eviction can be  passed under Section 14(1)(b) of the Act only if the ingredients  enumerated herein earlier are satisfied. In order to prove subletting,  it must be shown that the appellant Nos. 2 to 4 were inducted  without the consent in writing of the landlord. In this case,  admittedly, no consent in writing, either of the erstwhile owner of  the suit shop or of the respondent, who was the subsequent  purchaser of the same, was taken in writing. It is now well settled  that to constitute waiver of benefit conferred by provisions of the  Act, conscious relinquishment of such benefit must be proved. In  the case of Duli Chand (Dead) by Lrs. Vs. Jagminder Dass  [(1990) 1 SCC 169], this Court while dealing with a case of  subletting and waiver on the part of the landlord, emphasized that  the consent in writing of the landlord for subletting or parting with  possession was essential under Section 14(1)(b) of the Act. The  view expressed in the aforesaid decision was also the view of this  Court in the case of Pulin Behari Lal vs. Mahadeb Dutta & Ors.  [(1993) 1 SCC 629] in which this Court reiterated the principle that  in the absence of conscious relinquishment of right to eviction, the  question of waiver on the ground of subletting for eviction by the  landlord did not arise at all. It is not in dispute in the present case  that the respondent had purchased the suit shop from the erstwhile  owner of the same. The sale deed dated 20th of October, 2000  evidencing the purchase of the suit shop by the respondent from  the erstwhile owner of the same was exhibited. A perusal of the  sale deed would show that the appellant No.1 was a tenant in  respect of the suit shop and there was no mention that the appellant  Nos. 2 to 4 were also in possession of the suit shop, either in its  entirety or in a part of it. That being the position and in the absence  of any evidence on record to show that there was any conscious

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relinquishment of the benefit conferred by the provisions of the  statute, we do not find any reason to hold otherwise to the extent  that the subletting made in favour of the appellant Nos. 2 to 4 by  the appellant No.1 was proved and the right to eviction was not  waived, either by the erstwhile landlord or by the respondent. 13.     Mr. Aggarwal, the learned counsel appearing on behalf of  the appellants had strongly relied on a decision of this Court in the  case of United Bank of India vs. Cooks and Kelvey Properties (P)  Limited [(1994) 5 SCC 9] and submitted that since the appellant  No.1 was in exclusive possession and legal control of the suit shop,  the case of subletting could not be proved. In our view, that  decision of this Court has no manner of application in the facts and  circumstances of the present case. In that case, although the tenant  appellant bank had inducted the trade union in the tenanted  premises for carrying on the trade union activities, the bank had  not received any monetary consideration from the trade union  which was permitted to use and enjoy the same for its trade union  activities.  The bank had retained its power to call upon the trade  union to vacate the premises at any time and the Union had also  given an undertaking to vacate the same when required.  In that  decision, the bank was maintaining the premises at its own expense  and also paying the electricity charges consumed by the trade  union for using the demised premises. Basing on the aforesaid  facts, it was held in that case that the bank had retained its control  over the trade union whose membership was only confined to the  employees of the bank and, therefore, the court held that the  inference that could only be drawn was that the appellant had  retained the legal control and possession of the suit premises in  that case.  As noted herein earlier, this is not the situation in the  present case. The findings of the three courts were that the  appellant no.1 had no legal control over the suit shop and also that  the appellant nos.2 to 4 were in exclusive possession of the suit  shop or at least, in a portion of the same and were carrying on a  different independent business in the suit shop. Such being the  position and in view of the fact that the appellant nos.2 to 4 were  conducting their independent business in the suit shop and had  exclusive possession of the same and that the appellant No. 1 had  no legal control or possession over the suit shop, the aforesaid  decision of this Court, as relied on by Mr. Aggarwal, could not be  taken to be of any help to the appellants. Accordingly, these  submissions of the learned counsel for the appellants have no legs  to stand upon and thus rejected. 14.     For the reasons aforesaid, there is no merit in this appeal and  the appeal is, therefore, dismissed.  However, considering the facts  and circumstances of the case, the appellants are given time to  vacate the suit shop by 30th of June, 2008 subject to filing of usual  undertaking before this Court within a period of four weeks from  this date.  There will be no order as to costs.