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PETITIONER: DEV KUMAR (DIED) THROUGH LRS.

       Vs.

RESPONDENT: SMT. SWARAN LATA & ORS.

DATE OF JUDGMENT10/11/1995

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) AGRAWAL, S.C. (J)

CITATION:  1996 AIR  510            1996 SCC  (1)  25  JT 1995 (9)   331        1995 SCALE  (6)316

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T PATTANAIK.J.      This  appeal   is  by   the  tenant,   challenging  the revisional order  of the  High Court  of  Punjab  &  Haryana whereunder an  order of  eviction has  been  passed  on  the finding that  the premises  in question has been sub-let and as such  the tenant  has incurred  the liability of eviction under Section  13(2)(ii)(a) of  the East  Punjab Urban  Rent Restriction Act,  1949, (hereinafter  referred  to  as  ‘The Act’). The  landlady Smt.  Swaran Late  respondent no. 1, in the present appeal filed an application for ejectment of her tenant Dev  Kumar,  the  deceased  husband  of  the  present appellant alleging therein that said Dev Kumar has failed to pay the  arrears of  rent and  has sub-let  the premises  in favour of  respondent  nos.  2  to  4  and,  therefore,  has incurred the  liability of being evicted under Section 13(2) (i) &  (ii) (a)  of the  Act. The  tenant  before  the  Rent Controller appeared  and controverted  all  the  allegations made by  the landlady.  The allegations of subletting by him in favour  of respondents  nos. 2 to 4 was also specifically denied. The Rent Controller on appreciating the evidence led before  him   came  to  the  conclusion  that  there  exists relationship of  landlord and  tenant between the respondent no. 1  and appellant and the tenant had tendered the arrears of rent  which was accepted by the landlady. On the question of subletting the Controller came to the conclusion that the tenant Dev  Kumar has  sub-let the premises to respondents 2 to 4  who were  carrying on  the business in the premises in question .  The plea  of the  tenant that  in  fact  he  was carrying on  the business as Commission agent of respondents 2 to  4 was  not accepted. On this conclusion the Controller held that  the tenant  has incurred  the liability  of being evicted under  Section 13(2)(ii)(a)  of the Act and directed that the  possession of  premises be  given to  the landlady within 2  months. It  may be  stated that the Controller had

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appointed a  local Commissioner calling upon him to find out whether the  premises has  been sub-let  to M/s.  Ram  Saran Rattan Chand  and the  said  Commissioner  had  submitted  a report  which  was  accepted  as  Exhibit  AW  5/4  and  the Commissioner was  also examined  before the Controller as AW 5. The  conclusion of the Rent Controller on the question of sub-letting   was    essentially   based   upon   the   said Commissioner’s report  and the evidence of the Commissioner. The aforesaid  report has  also been annexed as Annexure ‘D’ to the Special. Leave Petition.      Against the  order of  eviction the tenant preferred an appeal. The Additional District Judge, Amritsar, who was the Appellate Authority  re-considered the  entire  evidence  on record and  reversed the  finding of  the Controller  on the question of  sub-letting. The  Appellate Authority  came  to hold that  except the  solitary statement  of AW 11 no other evidence  was   produced  by   the  landlady  to  show  that respondents 2  to 4  are  in  exclusive  possession  of  the disputed premises  and that  such possession is for valuable consideration. He  also held  that even AW 11 has not stated that the  possession of  respondents 2  to 4 is for valuable consideration. The  evidence of  local Commissioner was also fully discussed  and the  Appellate Authority  held that the said evidence  indicates that  the tenant  Dev  Kumar  still carries on his business in the disputed premises and has not parted  with  the  possession  of  the  same  in  favour  of respondents 2  to 4.  The order  of evidtion  passed by  the Controller thus  having been set aside and the appeal having been allowed,  the landlady  invoked the jurisdiction of the High Court  in revision  under Sub-Section (5) of Section 15 of the  Act. The  High Court  by the impugned judgment dated 3rd of  April,  1992,  has  reversed  the  findings  of  the Appellate Authority  and relying  upon the  evidence of  the Commissioner has  held that  the respondents  2 to  4 are in exclusive possession  of the demised premises and tenant has parted with  the possession  in their favour. Therefore, has sublet the  premises in  their favour and the revision being allowed with  the direction  that the tenant should handover the  vacant  possession  of  the  demised  premises  to  the landlady, the  present appeal  has  been  preferred  by  the tenant.      Mrs. Shyamla  Pappu, learned  senior counsel  appearing for the  appellant essentially  raised  two  contentions  in assailing the impugned judgment of the High Court :-      (1) However,  wide the  power of  revision  under  Sub- Section (5)  of Section  15 of  the Act may be, it cannot be equated with  the appellate power and as such the High Court was not  justified in re-appreciating the evidence on record and  come   to  its  own  conclusion  while  exercising  its revisional jurisdiction under the Act;      (2) The  ultimate conclusion  of the  High Court  about subletting is also not sustainable in law, more so, when the same is  based  upon  the  tainted  evidence  of  the  local Commissioner.      Mr. Krishna  Mahajan, learned counsel appearing for the respondent no.  1, on  the other  hand, contended  that  the revisional power  under Sub-Section (5) of Section 15 of the Act is  wide enough to examine the legality and propriety of the order  passed by the Appellate Authority and in exercise of  such   power  the   High  Court  was  justified  in  re- appreciating the  evidence on  record. The  learned  counsel also urged that the conclusion of subletting rendered by the High Court  is fully justified on materials on record and as such the same need not be interfered with by this Court.      In view  of the rival submissions at the Bar, the first

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question that arises for consideration is to what extent the High Court  was justified in reappreciating the evidence and interfering with  the conclusion  of the Appellate Authority on the  question of  sub-letting. It  will be appropriate at this stage  to extract  Sub-Section (5) of Section 15 of the Act:-      "The High Court may, at any time, on the      application of any aggrieved party or in      its own  motion, call for an examine the      records relating  to any order passed or      proceedings taken under this Act for the      purpose of  satisfying itself  as to the      legality or  propriety of  such order or      proceeding and  may pass  such order  in      relation thereto as it may deem fit".      In the  case of  Smt. Rajbir  Kaur &  Anr. vs.  M/s. S. Chokesiri &  Co. (1982  (2)  SCR  (Suppl.  310)  this  Court examined the  revisional power  of the High Court under Sub- Section (5)  of Section  15 of  the Act  and held  where the findings  of   fact  recorded   by  the   Courts  below  are supportable of  the evidence on record, the revisional Court must  be   reluctant  to  embark  upon  an  independent  re- assessment of  the evidence  and supplant  the conclusion of its own  so long  as the  evidence on  record  admitted  and supported the one reached by the Courts below.      In the  case of  Nanak Chand  vs. Inderjit & Ors. (1969 All India  Rent Control  Journal p.881) This Court construed Sub-Section (5)  of Section 15 of the East punjab Urban Rent Restriction Act,  1949 and  held that  the revisional  power conferred on  the High  Court under Section 15(5) of the Act is wider  than that  conferred by  Section 115  of the Civil Procedure Code  and under  Section 15(5) of the Act the High Court has  jurisdiction to examine the legality or propriety of the  order under  revision and that would clearly justify the examination  of the  finding by  the Authority about the requirements of  the landlord  under Section  13(3)(a)(i) of the Act.      In the  case of Ram Das vs. Ishwar Chander & Ors. (1988 (1)  SCR   (Suppl.)  239)  this  Court  again  examined  the aforesaid provision  of Sub-Section (5) of Section 15 of the Act and  held that  subject to  the  well  known  limitation inherent  in   all  revisional   jurisdictions,  the  matter essentially turns  on the  language of the statute investing the jurisdiction.  Examining the language of Sub-Section (5) of Section 15 of the Act the Court further held;      "But here,  Section  15(5)  enables  the      High Court  to satisfy  itself as to the      "legality and  propriety" of  the  order      under   revision    which   is,    quite      obviously, a  much  wider  jurisdiction.      That jurisdiction  enables the  court of      revision,  in   appropriate  cases,   to      examine the  correctness of the findings      of facts  also,  though  the  revisional      Court is  not "a  second court  of first      appeal’". In   our   considered   opinion   having   regard   to   the aforementioned decisions  of  this  Court  laying  down  the parameters of  the High  Court’s jurisdiction  under Section 15(5) of the Act it is neither possible to accept the narrow construction put  by the  learned counsel  appearing for the appellant nor  the wide  construction  put  by  the  learned counsel  appearing   for  the   appellant   nor   the   wide construction put  by the  learned counsel  appearing for the respondents. The  jurisdiction of  the High  Court under Sub

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Section (5)  of Section  15 of  the  Act,  therefore,  would entitle the Court to examine the legality and propriety of a conclusion of the Appellate Authority and is thus much wider than the  revisional jurisdiction  under Section  115 of the Code of  Civil Procedure. But it has to be exercised subject to the  well known  limitations inherent  in all  revisional jurisdictions  and  cannot  be  equated  with  an  Appellate jurisdiction. This  being the  position, unless  there is  a perversity in  the matter of appreciation of evidence by the Appellate Authority  or unless  the Appellate  Authority has arrived  at   a  conclusion   which  on  the  materials,  no reasonable man  can come,  the High Court will not interfere with the same.      Coming to  the second  question  the  expression  "Sub- letting" has  not been defined in the Act. The conclusion on the question  of subletting is a conclusion on a question of law derived  from the findings on the materials on record as to the  transfer of  exclusive possession and as to the said transfer of  possession being  for consideration. As to what is the  true meaning of expression "Sub-letting", this Court considered the  same in  the  case  of  Jagdish  Prasad  vs. Angoori Devi  (1984 (3)  SCR 216)  in an eviction proceeding under UP  Urban Buildings  (Regulation of  Letting, Rent and Eviction) Act.  The Court held that merely from the presence of the  person other than the tenant in the shop, subletting cannot be  presumed and as long as control over the premises is kept  by the  tenant and the business run in the premises is of  the tenant,  sub-letting flowing from the presence of the person  other than  the tenant  in the  shop  cannot  be assumed. It  was further  held that  in an  application  for eviction of  a tenant  from a  shop which  is based  on  the allegations  that   the  premises   has  been   sublet,  the allegation has  to be proved. The question of subletting was considered by  this Court  in the  case of M/s. Shalimar Tar Products Ltd. vs. H.C. Sharma & Ors. (1988 (1) SCR 1023) and it was  held that in order to construe subletting there must be parting  of legal possession of the lessee and parting of legal possession means "Possession with the right to include and also right to exclude others".      In the  case of  Smt. Rajbir  Kaur &  Anr. vs.  M/s. S. Chokosiri &  Co. (supra)  this Court considered the question of subletting  and held  that the burden of making a case of subletting is  one the  landlady. It  was also held that the transaction of  subletting in  the guise  of licenses are in their  very  nature  clandestine  arrangements  between  the tenant and  the sub-tenant  and it would be difficult to get direct evidence  on the same. It exclusive possession of the alleged  sub-tenant  is  established  then  it  may  not  be impermissible for  the Court  to draw  an inference that the transaction was entered into with mandatory consideration in mind.      Bearing in  mind the  aforesaid legal position we would now examine  the question  whether the  landlady, respondent no. 1  in the  present appeal,  has established  her case of subletting by  the tenant and further whether the conclusion of the  High Court thereon is at all sustainable in law? The case of respondent no. 1 in this context is that respondents 2 to  4 have been given the disputed premises where they are transacting their business in their name and style Ram Saran Rattan Chand. The case of the tenant Dev Kumar, on the other hand, is  that alongwith  his  own  business,  he  was  also transacting business  as commission  agent of M/s. Ram Saran Bhole Nath.  The only  evidence lead  by the landlady in the case is  the oral  testimony of the power of attorney holder Gian Chand.  The High  Court, however,  has relied  upon the

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evidence of  the local  Commissioner  and  his  report.  The report of  the  Commissioner  merely  indicates  than  on  a particular  day   the  Commissioner  went  to  the  disputed premises and  purchased a piece of cloth and paid the money, the bill  for which  was given  by the seller in the name of M/s. Ram  Saran  Rattan  Chand,  Moti  Bazar.  The  disputed premises, however, is not on Moti Bazar but on Pratap Bazar. The report  of the Commissioner also indicates that when the Commissioner went for the second time, to the shop and asked for the  bill-book, a  bill-book was produced in the name of M/s. Ram Saran Bhola Nath having the rubber stamp having the words "Sole  Selling Agent  Dev Kumar". Production of such a bill-book on  being asked  by the Commissioner lends support to the  case of  the tenant that he was transacting business as a Commission agent of M/s. Ram Saran Bhole Nath, of which firm respondent  no. 3  is a partner. That apart on the mere purchase of  a piece  of cloth  under a  bill M/s. Ram Saran Rattan Chand  as indicated  in the Commissioner’s report, it is difficult  for any  Court to  come to the conclusion that disputed premises was in exclusive possession of the alleged sub-tenant, namely, respondents nos. 2 to 4. In this context it would  be appropriate  to notice the conduct of the local Commissioner as  reflected from  his evidence. He has stated that he  took a  sum of  Rs.77/- from  Gian Chand,  Power of Attorney of the landlady, for purchase of the piece of cloth from the  disputed premises and after purchasing the same he also handed  over that  piece of  cloth to  Gian Chand.  The statement of  the local  Commissioner, who  was examined  as AW5, and  which has  been annexed  as Annexure  ‘E’  to  the Special Leave  Petition unequivocally  indicates that he has acted at  the behest  of the  landlady and the said evidence must  be   held  to  be  a  tainted  one  which  infact  has substantially formed  the basis  of conclusion of subletting by the  High Court.  In this view of the matter the ultimate finding of  the High  Court that  the report  as well as the statement of  the local  Commissioner is enough to hold that the Firm  M/s. Ram  Saran Rattan  Chand is  carrying on  the business in  the demised  premises and  that the respondents nos. 2  to 4  are in  exclusive possession  of  the  demised premises and  the tenant  has parted the possession in their favour is  wholly unsustainable and we accordingly set aside the said conclusion. At the most, the conclusion can be that while the  tenant was continuing his own business as well as a business of Commission Agent of M/s. Ram Saran Bhola Nath, the respondents  nos. 2  to 4  have also  been permitted  to continue their  business in the name Ram Saran Rattan Chand. But that  does not establish either the exclusive possession of respondents 2 to 4 or that the tenant has parted with his possession. The  exclusive possession  of the premises being the first  criteria for establishing subletting and the same not being  established, the  conclusion of  the  High  Court about subletting is vitiated.      In our considered opinion the landlady - respondent No. 1, has  utterly failed  to establish  the plea of subletting and the  High Court  erred in  law in  formulating  its  own conclusion  and  reversing  the  finding  of  the  Appellate Authority. In  the aforesaid premises the appeal is allowed. The impugned  order of  the High  Court in  revision is  set aside and  the order of the Appellate Authority is affirmed. The application for eviction stands dismissed.      There will be no order as to costs.