http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: KALA AND ANOTHER

       Vs.

RESPONDENT: MADHO PARSHAD VAIDYA.

DATE OF JUDGMENT:       27/08/1998

BENCH: A.S. ANAND, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This is a tenant’s appeal by special leave. Respondent- landlord filed  an eviction  petition against the appellants under section  14 of the Himachal Pradesh Urban Rent Control Act, 1987  (hereinafter ’the  Act’) seeking  eviction of the tenant from  a shop  situate in  Moti Bazar,  Muhalla Suhra, Mandi Town,  H.P. According  to the  allegations made in the eviction petition  the demised  premises had been let out to Shri Hira  lal Sehgal,  husband of appellant No.1. Shri Hira Lal Sehgal,  died on 23rd February, 1983 and appellant No. 1 became the  statutory tenant  of the  premises on his death. It was  alleged that  appellant No.1  thereafter sublet  the premises to  appellant No.2,  Ravinder Kapur and that in the demised premises  business was  being run by appellant No. 2 though for  "the advantage  of  both  the  appellants".  The appellants filed  a joint reply to the eviction petition and denied sub-letting.  It was  maintained that  appellant No.2 who is  the son  of the  sister of late Shri Hira Lal Sehgal had been  brought up  by late  Shri Hira Lal Sehgal and that appellant No.2  was helping  late Shri  Hira Lal  Sehgal  in running his  business at  the demised shop till his death in 1983 and  that after  his death, appellant No. 2 was helping appellant No.1  and managing  her business  ’for and  on her behalf’. The  trial court after framing issues and recording evidence of the parties vide judgment and recording evidence of the  parties vide  judgment and  order dated  20th March, 1986 dismissed  the eviction  petition  and  held  that  the landlord had  failed to prove that appellant No.1 had at any stage parted  with the  possession of  the disputed premises after the  death of  her husband  or that she had sublet the same to  appellant No.2.  It was  found,  as  a  fact,  that appellant No.2  was working in his capacity as a Manager for rendering assistance  to run the business to appellant No.1. Aggrieved by  the order  of the  trial court,  the landlord- respondent filed  an appeal  before the  appellate authority under the Act.      On 18th  January, 1989, the appeal was accepted and the order of the Rent Controller was set aside. Ejectment of the appellants was ordered. The order of the appellate authority was challenged  by the  appellants through  a civil revision

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

petition in  the High  Court of  Himachal Pradesh. A learned Single Judge  of the  High Court  on 19th  September,  1996, dismissed the revision petition thereby confirming the order of the  appellate authority.  Hence this  appeal by  special leave.      We have  heard learned  counsel  for  the  parties  and perused the record.      For what  follows, the appellate authority committed an error not  only in  the appreciation of evidence but also by mis-reading the  evidence  and  assuming  the  existence  of certain facts  which were  neither alleged  nor proved.  The High Court also fell into a similar error.      Section 14(2)(ii)  of the  Act provides that a landlord may evict  his tenant  by applying  to the Controller, where the tenant  has, after  the commencement of the Act, without the written  consent of  the landlord transferred his rights under the lease or sublet the entire building or rented land or any portion thereof.      In the  petition filed  under Section  14 of the Act by the  respondent-landlord   it  was   inter  alia  stated  in paragraph 16 that :-      "The whole  of  the  premises  have      been sub-letted  to respondent No.2      without the  written consent of the      petitioner, who  is now running the      business, to  the advantage of both      the respondents, after 23.2.1983."      In paragraph 17 it was stated:-      "As respondent No.1 who is a tenant      in the  premises,  has  sublet  the      entire building to respondent, No.2      after the  death of  her husband on      23.2.1983,   therefore   both   are      liable  to   be  ejected  from  the      premises. Notice was also issued to      the respondent  no.1 on 17.11.1983,      but she kept mum after its receipt,      which clearly  indicate that  claim      of the  petitioner is bona fide and      based upon true allegation."      The  appellants  in  their  written  statement  replied paragraph 16 thus  :-      "Para No.16  is denied.  The father      of the respondent No.2 died when he      was 2  years of age. The respondent      No.2 is  son of  sister of late Sh.      Hira  Lal   Sehgal,  who  has  been      maintained and  brought up  by late      Sh. Hira  Lal Sehgal  and had  been      assisting  earlier   Sh.  Hira  lal      Sehgal  and   after   his   (death)      respondent No.1  who being  a widow      is not  able to handle the business      as such  is helped  and assisted by      respondent No.2  in  her  exclusive      business which  she  had  inherited      from her  husband. It is absolutely      wrong and  denied that the premises      have been subletted as alleged, the      legal possession  remains with  the      respondent  No.1.   The  respondent      No.2 is  managing the  business for      and on  behalf or  respondent  No.1      who is  the proprietor  of business      and is  admittedly  the  tenant  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

    premises."      The contents  of paragraph  17 were also denied in view of what was stated in response to paragraph 16.      The landlord-respondent  appeared as his own witness as PW.2. In  the examination-in-chief  the remained  completely silent about  his allegation  of the  appellant No.1  having sub-let the premises to appellant No.2 or having parted with the possession  of the  premises or  any portion  thereof in favour  of  appellant  No.2.  The  only  reference  made  in examination-in-chief in that regard is to the effect that :-      "On 23rd  February, 1983  Shri Hira      Lal died.  After that  his wife had      without my  consent, made  Ravinder      Kapur to sit in the said shop".      In  his   cross-examination   the   landlord-respondent admitted:-      "I  do   not   know   whether   the      possession of the shop is with Kala      and Respondent  No.2 is  working as      helper."      He further admitted that he had not found out as to for whose benefit the business was. The landlord-respondent also examined Shri  B.C. Gupta,  the Shop  Inspector as PW.4. The Shop Inspector produced the summoned record and on the basis thereof deposed that Ravinder Kapur (appellant No.2) was the Manager of  the shop  and that  his name  appeared in  their records only  as the Manager of the shop.  This, neither the landlord nor  PW.4 supported  the case of sub-letting in the evidence. PW-4  had categorically  deposed, appearing  as  a witness of  the landlord  that appellant No.2 was working as a manager  at the  shop and  even the  landlord did  not say anything to the contrary during his deposition.      Smt. kala  Devi, appellant  No.1. appeared  as her  own witness. In her examination-in-chief she stated:-      "Ravinder is  working in  this shop      from last 20-22 years. First he was      helping his  maternal uncle  who is      my husband.  After his  death he is      helping me.  I  am  tenant  of  the      shop. The keys of the shop are kept      by me,  the same are handed over by      me in  the morning  for opening the      shop. The  business of this shop is      mine. My  shop, house  and  orchard      work  is   being  looked  after  by      Ravinder     Kumar."      (Emphasis      supplied).      The above  statement was  not at  all questioned in the cross-examination, It  has remained  unrebutted. During  the cross-examination,  appellant   No.1  stated   that  monthly payments towards  expenses were  made to  Ravinder by her by way of salary. She reiterated during the cross-examination," I am  not looking  after the  business. I  am tenant  of the shop."      Appellant No.2 appeared as No.2 appeared as RW.2 before the trial  court. In his examination-in-chief, he inter alia asserted that  appellant No.1  is the  tenant and  that  the business is  also heres and that the was not paying any rent to her  and was  only assisting  her in her business. During the cross - examination he replied:-      "In the  disputed shop.  I have  no      ownership nor  having any  type  of      tenancy  rights   nor  having   any      rights of any type. It is corrected      that when Hira Lal Sehgal was alive

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

    he was  having the  agency for  the      sale of  Cigarette &  Bidi.  I  was      helping him  and he  was paying the      expenses to  me.... It is incorrect      that after  the death  of Hira  Lal      his wife  is giving  the profit  of      the  shop   but  only   is   paying      expenses etc.  It is incorrect that      I am  receiving share  as  per  the      profit of the shop. It is incorrect      that I am her partner."      From the  aforesaid resume  of evidence  it is  clearly established that  appellant No.2, who had been assisting his maternal uncle  earlier was  assisting appellant  No.1 after the death  of his  maternal  uncle  in  1983.  The  positive evidence of  appellant No.1 and appellant No.2 to the effect that appellant  No.1 has  continued to  be the tenant of the shop ;  that she  had not  parted with the possession of the shop at  all and  that corespondent  No.2 was only assisting her to  manage her  business, not  only of the shop but also her  house   and  orchard   has  remained   unrebutted   and unchallenged. That  apart, the  evidence of  Smt. Kala Devi, appellant No.1  to the effect that the keys of the shop were kept by  her and  the same  used to be handed over by her to appellant No.2  in the  morning for opening the shop further clinches the  issue and  establishes that appellant No.2 was only working  in the shop as a Manager and that the property had not  been sub-let  to him  nor had be acquired exclusive possession of the shop.      The evidence led by the respondent-landlord is not only vague,  inconclusive   bu  is   also  unsatisfactory.    The respondent-landlord did not even allege in his evidence that appellant  No.1  had  sub-let  the  premises  in  favour  of appellant No.2. The learned Rent Controller had thus rightly come to  the conclusion  that appellant  No.1 had not parted with the  possession of the demised premises after the death of her  husband and  that she  had not  sublet the  same  to appellant No.2.  The findings  recorded by  the learned Rent Controller were  based on proper and correct appreciation of evidence and other material on the record.      The findings recorded by the appellate authority to the effect that  because of the change of the nature of business from selling of cigarettes and bidis during the life time of Shri Hira  Lal Sehgal,  to the  selling of sanitary-wares in the demised  premises, it  demonstrated that  appellant No.1 had  parted  with  possession  of  the  shop  in  favour  of appellant No.2  is wholly  conjectural and  irrational.    A grave error  was,  therefore,  committed  by  the  appellate authority in  coming to  the conclusion  of  sub-letting  in total disregard of the evidence on the record. The appellate authority as  well as  the High  Court drew up a rather rash inference from  the change  of business,  which  was  wholly uncalled for.  The onus  to  prove  sub-letting  is  on  the landlord  and   if  he   establishes  parting  of  with  the possession in favour of a third party, the  onus would shift to the  tenant to explain. In the instant case, however. the landlord did  not discharge the initial onus and although it was not  required, yet,  the tenant  explained how appellant No.2 had  the permissive  possession  of  the  shop  is  its Manager. On  the established  facts and circumstances of the case, the plea of sub-letting was not established.      The appellate authority committed an error and what the High Court  did was  to perpetuate  the same  without proper application of  mind.    It  goes  without  saying  that  to perpetuate an  error is  no virtue  but to rectify it is the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

call of judicial consious.  The High Court failed to correct the obvious error committed by the appellate authority.      The  orders   of  the  High  Court  and  the  appellate authority,  not  being  based  on  correct  appreciation  of evidence on  the record, cannot be sustained. We, therefore, set aside  the orders  of the  High Court  and the appellate authority and  restore that  of the learned Rent Controller. the appeal is consequently allowed with costs.