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PETITIONER: JAGAN NATH (DECEASED) THROUGH L.Rs.

       Vs.

RESPONDENT: CHANDER BHAN AND OTHERS

DATE OF JUDGMENT11/05/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) NATRAJAN, S. (J)

CITATION:  1988 AIR 1362            1988 SCR  Supl. (1) 325  1988 SCC  (3)  57        JT 1988 (2)   441  1988 SCALE  (1)1079  CITATOR INFO :  RF         1990 SC1208  (4)

ACT:      Delhi Rent  Control Act,  1958 Sections  14(1)(a), (b), (2)    c,.     15-Tenant-Eviction    of-on     ground     of subletting/Parting  with   possession-User  of  Premises  by another person is not parting with possession.

HEADNOTE:      The respondent-landlord  had filed  a petition  against the appellant-tenant  under section 14(1)(a) and 14(1)(b) of the Delhi  Rent  Control  Act,  1958  for  eviction  from  a residential-cum-commercial  premises,  inter  alia,  on  the ground that  the appellant had sublet, assigned or otherwise parted with  possession of the premises to his sons who were running their  partnership business  in the  name of  Bindra Tent House  with which the tenant had no concern. The tenant contested  the  petition  on  the  ground  that  he  was  in exclusive possession of the premises and was carrying on his business therein  with the help of his sons who were members of his Joint Hindu Family.      In support  of his plea that the tenant had parted with possession, the  landlord had  produced documentary evidence which included copy of a statement made by the tenant before the Income  Tax officer, which indicated that the tenant had sold his proprietary business to his sons.      The Additional  Rent Controller  held that there was no subletting by  the tenant, but he had unlawfully parted with the possession  of the premises in favour of his sons and as such was liable to be evicted.      During the  pendency of  the appeal  the tenant  sought permission under  order 6  Rule 17  of  the  Code  of  Civil Procedure to  amend his  written statement to state that the property was  taken on  rent by  M/s Bindra  Tent House. The Tribunal did not permit this belated amendment as this would have  introduced  an  entirely  new  case.  On  merits,  the Tribunal dismissed  the appeal of the tenant. The High Court did not find any substantial question of law in the tenant’s second appeal and dismissed the same.      Allowing the appeal, it was, 326

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^      HELD: (1)  The  only  ground  perhaps  upon  which  the landlord A was seeking eviction was parting with possession. It is well-settled that parting with possession meant giving possession to  persons other  than those  to whom possession had been  given by the lease and the parting with possession must have  been by  the tenant.  User by other person is not parting with  possession so  long as  the tenant retains the legal possession  himself, or  in other words, there must be vesting of  possession by  the tenant  in another  person by divesting himself  not only  of physical possession but also of the  right of  possession. So  long as the tenant retains the right  to possession there is no parting with possession in terms of clause (b) of section 14(1) of the Act. [329G-H; 330A]      (2) Even  though the  father had  retired from business and the  sons had  been looking  after the  business in  the facts of  this case,  it cannot  be said that the father had divested himself  of the  legal right  to be  in possession. [330B]      (3) In  the instant case, if the father was carrying on the business  with his  sons and  the  family  was  a  joint family, it  is difficult  to presume  that  the  father  had parted with  possession legally  to attract  the mischief of section 14(1)(b) of the Act. [330D-E]      (4) In  these days  of acute  shortage of accommodation both for  living and  for vocation,  one  has  to  take  the reality with  a pinch  of salt  and the  manner in which the original  tenant  has  conducted  himself  in  shifting  his defence would  not disentitle him to the benefit of the law. [330Gl      Subashini Mojumdar  v. Krishna  Prasad Mahatoo,  A.I.R. 1956 Assam  79; M/s Modi Spinning and Weaving Mills Co. Ltd. v. M/s  Ladha Ram  and  Co.,  [1977]  1  SCR  728  and  Smt. Krishnawati v. Shri Hans Rai, [1974] 1 SCC 289, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1127 of 1985.      From the  Judgment and order dated 29.8.84 of the Delhi High Court in S.A.O. No. 40 of 1984.      Rajinder  Sachhar   and  Mrs.   Rani  Chhabra  for  the      Appellants.      A.K. Ganguli and E.M.S. Anam for the Respondents.      The Judgement of the Court was delivered by 327      SABYASACHI MUKHARJI, J. This appeal by special leave is directed against  the judgement  and order of the High Court of Delhi  dated 29th  August, 1984.  One Jagan  Nath,  since deceased,  was  the  original  tenant  of  the  premises  in question. He  died during  the pendency of this appeal here. His sons  have been  substituted. The  tenancy  in  question started on  1st  January,  1962.  It  appears  that  on  7th November, 1967  notice was  addressed to  Shri  Baldev  Raj, describing him  as sole proprietor of M/s Bindra Tent House, New Delhi,  for eviction.  There was  an increase in rent in July, 1970. The respondent herein filed the petition against the appellant  herein Jagan  Nath under section 14(1)(a) and 14(1)(b) of  the Delhi  Rent Control  Act, 1958 (hereinafter called the  Act) for  eviction of  the  appellant  from  the premises consisting of one room forming part of premises No. N-80, Kirti  Nagar, New  Delhi, as  the appellant herein had not paid  rent with  effect from  1st May,  1975  till  30th

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April, 1977  at the  rate of Rs.75 per month despite service of the  demand notice  dated 8th  January, 1976.  It was the further case of the respondent herein that the appellant had after 9th  June, 1962  sublet, assigned  or otherwise parted with possession  of the  premises to  Shri Baldev Raj Bindra and Sat  Pal Bindra  without the  consent in  writing of the respondent-landlord.  The   suit  was   filed   before   the Additional Rent  Controller and  the same  was contested  on various grounds.  It was contended that the petition was not maintainable because  of  non-joinder  of  Shri  Baldev  Raj Bindra and  Sat Pal  Bindra. The  premises  in  question  is residential-cum - commercial. It was stated that Shri Baldev Raj Bindra  and Sat  Pal Bindra are the sons of the original appellant, since  deceased. The said tenant was in exclusive possession of  the premises and was carrying on his business therein with  which, it  was stated,  Baldev Raj and Sat Pal had no  concern. They  are the  sons of  the  tenant,  since deceased, and  had constituted  a Hindu Undivided Family. No demand notice  was ever  served upon  the tenant. The tenant tendered the  rent to  the landlord  by money  order for  an amount of  Rs.450 which he refused to accept. The Additional Rent Controller  so far  as the ground of nonpayment of rent was concerned  held that  there was  a compliance  with  the order passed  under section 15(1) of the Act. The Additional Rent Controller  gave the  tenant the  benefit under section 14(2) of the Act. The petition of the landlord on the ground of non-payment of rent was, therefore, dismissed.      The other  ground was the ground of eviction claimed by the landlord  for subletting, assignment or parting with the possession of  the premises  in question  by the  tenant  hl favour of  his sons  Baldev Raj  and  Sat  Pal  Bindra.  The landlord in his deposition had stated that since 328 1st July,  1971 Baldev  Raj and  Satpal were  running  their business  in   the  name   of  M/s.  Bindra  Tent  House  in partnership and  they were  in possession of the premises in question. The  tenant  had  no  concern  with  the  business carried on  in the  demised  premises  and  the  tenant  had retired. The tenant in his cross-examination had stated that he had  sent partnership document and Form II to the Income- tax Department.  13 The  landlord had  denied the suggestion that the  said Jagan  Nath was in possession of the premises and his  sons had  been helping him from the very beginning. The landlord  had produced  on the record one statement made by the  appellant herein,  Jagan Nath  before the Income Tax officer, photostat  copy of which is Exhibit A.W. 3/1 on the record  which   indicated  that   Jagan  Nath  who  was  the proprietor of  the Bindra  Tent  House  sold  the  same  for Rs.18,000 on 1.1.1970 to his sons Baldev Raj and Sat Pal and he got  cash of Rs.8,000 and he gifted the other amount into two equal  shares to his sons Baldev Raj and Sat Pal. In his statement, Jagan Nath had stated that Sat Pal and Baldev Raj had entered  into a partnership in the same name M/s. Bindra Tent House  in the  same premises. This document was heavily relied upon  before  us  by  Shri  Sachhar  in  aid  of  his submissions that the tenant had parted with possession.      There is another document Exhibit A.W-2/1. According to this document  which is a photostat copy of the stamp vendor register, non-judicial papers for Rs.13, Rs.2 and Rs.20 were purchased by Baldev Raj for partnership purposes in the name of M/s.  Bindra Tent  House. Our attention was also drawn to the fact  that an application for electricity connection was made by Sat Pal Bindra in the name of M/s. Bindra Tent House on 25th  July, 1975 as the sole proprietor of the same. From these and  other documents,  it was contended that there was

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parting of  possession and  as such the tenant was liable to be .  evicted. The  Additional Rent  Controller ordered  the eviction under  section 14(1)(b)  of the  Act. He  held that there was  no subletting  by the  tenant, Jagan  Nath  since deceased but he had unlawfully parted with the possession of the demised  premises in  favour of  his sons  Sat  Pal  and Baldev Raj without the consent in writing of the landlord.      During the  pendency of the appeal the tenant preferred an application  under order  6 Rule  17 of the Code of Civil Procedure seeking permission to amend his written statement. The appellant  contended that  the landlord  filed  eviction petition  in  respect  of  the  said  premises  against  the appellant and  his two  sons which was assigned to Shri A.P. Chaudhary, Additional  Rent  Controller.  Another  objection raised    was  that  the  property  was  taken  on  rent  by M/s.Bindra Tent House 329 and,  therefore,   the  petition   for  eviction   was   not maintainable. The application had been contested in which it had been admitted that the earlier petition for eviction was filed but  according to  the respondent  it was not properly instituted and  the same  was withdrawn.  It was denied that the application  was not  maintainable. The  Tribunal on  an analysis of  the matter  came to the conclusion that belated amendment could not be permitted. It was emphasised that the tenant had  admitted in  the written statement that he was a tenant  in   the  property   in  question.   He  could   not subsequently be allowed to wriggle out of this situation and withdraw the  admission. If  the amendment was allowed, they would take valuable right of the other side and altogether a new plea  would be  taken,  it  was  held.  This  cannot  be permitted. In this connection, the Rent Tribunal relied upon the observations  of  the  Assam  High  Court  in  Subashini Majumdar and  another v.  Krishna Prasad  Mahatoo and  Ors., A.I.R. 1956  Assam 79.  The same view was reiterated by this Court in  M/s. Modi  Spinning and Weaving Mills Co. Ltd. and another v.  M/s. Ladha  Ram and  Co., [1977] l SCR 728 where the proposed  amendment  introduced  an  entirely  new  case seeking to  displace the  other  side  completely  from  the admission made  then. It  was held  that such  an  amendment could not  be allowed.  We are  of the opinion that the Rent Tribunal was  therefore right  in refusing  the amendment on the basis  of the  aforesaid principle.  The Tribunal  on an analysis of  evidence and  facts came to the conclusion that there was  no merit  in the  appeal and dismissed the appeal and affirmed the eviction order.      The High  Court on  an analysis  of  the  evidence  and relevant authorities  came to  the conclusion that there was no substantial  question of  law and  dismissed  the  second appeal. Hence this appeal.      The question  for consideration is whether the mischief contemplated under  section 14(1)(b)  of the  Act  has  been committed as  the tenant  had sublet, assigned, or otherwise parted with  the possession  of the  whole or  part  of  the premises without  obtaining the  consent in  writing of  the landlord. There  is no  dispute that there was no consent in writing of  the landlord  in this  case. There  is  also  no evidence that  there has  been any subletting or assignment. The only  ground perhaps upon which the landlord was seeking eviction was  parting with  possession. It  is  well-settled that parting  with possession  meant  giving  possession  to persons other  than those  to whom possession had been given by the  lease and the parting with possession must have been by the  tenant; user  by other  person is  not parting  with possession  so   long  as   the  tenant  retains  the  legal

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possession himself, or in other words there 330 must be  vesting of  possession by  the  tenant  in  another person by  divesting himself not only of physical possession but also  of the  right to possession. So long as the tenant retains the  right to  possession there  is no  parting with possession in  terms of  clause (b)  of section 14(1) of the Act. Even  though the  father had  retired from the business and the  sons had  been looking  after the  business, in the facts of  this case,  it cannot  be said that the father had divested himself  of the legal right to be in possession. It the father  has a  right to  displace the  possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted  with possession.  This Court in Smt. Krishnawati v. Shri  Hans Raj,  [1974] 1 SCC 289 had occasion to discuss the same  aspect of the matter. There two persons lived in a house as  husband and  wife and  one of  them who rented the premises, allowed  the other  to carry on business in a part of it.  The question  was whether it amounted to sub-letting and attracted  the provisions  of sub-section (4) of section 14 of  the Delhi  Rent Control  Act. This Court held that if two persons live together in a house as husband and wife and one of  them who owns the house allows the other to carry on business in  a part  of it, it will be in the absence of any other evidence,  a rash inference to draw that the owner has let out  that part  of the  premises. In  this case  if  the father was  carrying on  the business  with his sons and the family was  a joint Hindu family, it is difficult to presume that the  father  had  parted  with  possession  legally  to attract the mischief of section 14(1)(b) of the Act.      Shri Ganguly  appearing for the landlord contended that the con  duct of  the tenant, Jagan Nath had been as sitting on the  fence and  avoiding the  issue. It is true that Shri Ganguly rightly  pointed out  that Jagan Nath, the erstwhile tenant had not been fair and frank. But this is no ground to disentitle him  to the  benefit of the law if the facts have been proved  that he  had not  parted with possession. After all, it  has to be borne in mind that this is a residential- cum-commercial premises. Jagan Nath was carrying on business in part  of the  building with  his two sons. Jagan Nath had died, therefore,  it will be just and proper to presume that they were  carrying on business, though perhaps the stand of the Jagan  Nath was  not always fair. In these days of acute shortage of  accommodation both for living and for vocation, one has  to take  the reality  with a  pinch of salt and the manner in  which Shri Jagan Nath has conducted himself would not disentitle  him the  benefit of  the law  in the present climate.      In the  view we have taken, this appeal must be allowed and the  judgment and  order of  the High Court of Delhi and the Courts  below are  set  aside.  The  eviction  order  is accordingly set aside. 331      It has, however, to be borne in mind that rent in these areas has  increased enormously.  So  while  exercising  our jurisdiction under  Article 136 of the Constitution, we will enhance the  rent to  four times. We are told that the mesne profit at  present payable  was Rs.75  per month.  We direct that mesne  profit/rent  should  be  Rs.300  per  month.  We further direct  that this  will not  prejudice the rights of the respondent  herein to  file any proceedings for eviction on the  ground of bona fide need, if there is such a need or on any other ground available to the respondent for eviction under the  Act. We  give this direction in view of the facts alleged in the affidavit of Shri Chander Bhan Mehta affirmed

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on ’6th  April, 1988.  About the  correctness or validity of the statements  made therein,  we had no occasion to examine in this  appeal. We  have also  taken into consideration the affidavit of Shri Baldev Raj Bindra affirmed on the 2nd May, 1988 about the veracity of which also we express no opinion.      In the  facts of  this case, the appellants will pay to the respondent the costs of the appeal. R.S.S.                                 Appeal allowed. 332