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PETITIONER: M/S BHARAT SALES LTD.

       Vs.

RESPONDENT: LIFE INSURANCE CORPORATION OF INDIA

DATE OF JUDGMENT:       05/02/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 5TH DAY OF FEBRUARY, 1998 Present:              Hon’ble Mr. Justice S.Saghir Ahmad              Hon’ble Mr. Justice G.B. Pattanaik M.L.Verma, Sr.Adv.,  Naresh Thanai  and Rajeev Sharma, Advs. with him for the Petitioner                       J U D G M E N T The following Judgment of the Court was delivered: S. SAGHIR AHMAD      Indefatigable stamina to litigate has been exhibited by the parties  in this  case in  which proceedings  started on 5.2.1965 when the respondent, as landlord of the premises in question, filed  a petition  under Section  14(1) (b) of the Delhi Rent Control Act for the eviction of the petitioner on the ground  of subletting.  This application  was allowed on 29th August,  1974 by  the Addl.  Rent  Controller  and  the petitioner was  directed to be evicted as it was established on  record   that  the  premises  had  been  sublet  by  the petitioner in contravention of the prohibitory provisions of the Act. 2.   The petitioner  challenged the  judgment  of  the  Rent Controller in  an  appeal  filed  before  the  Rent  Control Tribunal which  was allowed  on  3rd  march,  1978  and  the eviction  order   was  set  aside.  The  respondent-landlord approached the  Delhi High  Court in  second appeal (SAO No. 217 of  1978) which  was allowed on 26th September, 1994 and the case was remanded to the Tribunal to re-hear the appeal. The Rent  Control  Tribunal  dismissed  the  appeal  of  the petitioner  by  judgment  dated  7.7.1997  and  the  finding recorded earlier  by the  Addl.  Rent  Controller  that  the premises  had   been  sublet  was  upheld.  The  petitioner, thereafter, filed  S.A. No.  48 of  1997 in  the Delhi  High Court which  was dismissed  on 3.12.1997.  Now the matter is before us.  Just as  every battle  has a D-Day, so also this long litigative battle must come to an end today. 3.   The only  contention raised  before us  in this Special Leave Petition  is that  the finding  recorded by  the  Rent Controller as  also the  Rent  Control  Appellate  Tribunal, Delhi, on  the question  of subletting  is erroneous as they have not  recorded a positive finding that there was payment

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of  consideration   by  the  so-called  sub-tenants  to  the petitioner for  parting with  the part  of possession of the disputed premises.  it is  contended that  unless payment of consideration was  established as  a fact between the tenant and the  sub-tenant, the  eviction  petition  under  section 14(1) (b)  of the  Delhi Rent Control Act cannot be allowed. We are not impressed by the argument. 4.   Sub-tenancy or subletting comes into existence when the tenant gives  up possesion  of the  tenanted  accommodation, wholly or  in part,  and puts  another person  in  exclusive possession thereof.  This arrangement  comes about obviously under a mutual agreement of understanding between the tenant and the  person to  whom the  possession is so delivered. In this process,  the landlord  is kept  out the scene. Rather, the scene  is enacted  behind  the  back  of  the  landlord, concealing  the   overtacts  and   transferring   possession clandestinely to  a person  who is  an utter stranger to the landlord, in the sense that the landlord had not let out the premises to  that person  nor had he allowed or consented to his entering  into possession  over the demised property. It is the  actual, physical  and exclusive  possession of  that person, instead  of the  tenant, which ultimately reveals to the landlord  that the  tenant to  whom the property was let out has  put some  other  person  into  possession  of  that property. In such a situation, it would be difficult for the landlord to  prove, by  direct  evidence,  the  contract  or agreement or  understanding between  the tenant and the sub- tenant. It  would also  be difficult  for  the  landlord  to prove, by  direct evidence,  that the  person  to  whom  the property had  been sublet had paid monetary consideration to the tenant.  Payment of  rent, undoubtedly , is an essential element of  lease or sub-lease. It may be paid in cash or in kind or  may have  been paid or promised to the paid. It may have been  paid in  lump-sum in  advance covering the period for which  the premises  is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of  rent  or  monetary  consideration  may  have  been  made secretly, the law does not require such payment to be proved by affirmative  evidence and  the court is permitted to draw its own  inference upon  the facts of the case proved at the trial, including  the delivery  of exclusive  possession  to infer that the premises were sublet. 5.   In Rajbir  Kaur vs.  S. Chokesiri & Co (1989) 1 SCC 19, it was  held that  it was  not necessary for the landlord in every case  to prove  payment of  consideration. It was laid down that  if exclusive possession was established, it would not be impermissible for the Court to draw an inference that the  transaction   was  entered   into  with   the  monetary consideration in  mind.  The  Court  further  observed  that transactions of  subletting in  the guise of licences are in their  very  nature  clandestine  arrangements  between  the tenant and  the sub-tenant  and there  cannot  be  furnished direct evidence  in every  case. It  will be noticed that in this case  it was  established as a fact that the tenant had parted with  a part  of the demised premises in favour of an ice-cream vendor  who was  in exclusive  possession of  that part of  the premises  and, therefore,  the  Court  drew  an inference that  the transaction  must have been entered into for monetary  consideration. This  decision has  since  been followed in  many cases,  as, for  example, United  Bank  of India Vs.  Cooks and Kelvey Properties (p) Ltd. (1994) 5 SCC 9, upon  which, as we shall presently see, reliance has been placed by the petitioner also. 6.   Learned counsel  for the  petitioner drew our attention to a  decision of  this Court in Delhi Stationers & Printers

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Vs. Rajendra  Kumar (1990)  2 SCC  331, where the tenant was found to  have allowed his relative (brother-in-law) to live with him  and to  use his  kitchen and latrine. This was not treated  as   subletting   or   parting   with   possession. Consequently, it is of no aid to petitioner. 7.   The case of Jagan Nath Vs. Chander Bhan & Ors. (1988) 3 SCC 57  is also  distinguishable on facts as in that case it was found  that the father was carrying on business with his sons and  the family  was joint Hindu family and, therefore, it was  difficult to presume that the father had parted with possession to  attract the  mischief of  Section 14(1)(b) of the Act.  Reliance for this purpose was placed on an earlier decision of  this Court  in Smt.  Krishnavati Vs.  Hans  Raj (1974) 1  SCC 289,  in which two persons lived in a house as husband and  wife and  one of them who was the tenant of the premises allowed the other to carry on business in a part of it. The  contention  that  it  amounted  to  subletting  was rejected and  it was  observed  that  it  would  be  a  rash inference to  draw that  the husband had sublet the house to the wife. 8.   In another  case, namely, Gopal Saran Vs. Satyanarayana (1989) 3  SCC 56,  which was  cited by  the counsel  for the petitioner, it was held that the question whether there is a tenancy  of   licence  or   parting  with  possession  in  a particular case, would depend upon the quality of occupation given to  the licencee  or the  transferee. It  was held  on facts that  where the  tenant had  allowed the advertisement board of  another company  to be fixed on the terrace of the shop, he  cannot be  said to have sublet the premises within the meaning  of Section  13(1)(e) of  the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. 9.   Learned  counsel   for  the  petitioner  placed  strong reliance upon  the decision  of this Court in United Bank of India Vs.  Cook and  Kelvey Properties  (p) Limited (1994) 5 SCC 9,  in which  it was  indicated  that  "the  meaning  of transfer of  a right to enjoy the property for consideration envisaged under Section 105 of the Transfer of Property Act, postulates that  a tenant who transfers of assigns his right in the  tenancy or any part thereof in whole or in part held by him  without the  previous consent  in writing  creates a sub-tenancy." This case also does not help the petitioner as it was  found as  a fact  that although the bank (appellant) had inducted the trade union into the premises, the bank had not received  any monetary  consideration and  the union was only permitted  to use  the property  for  its  trade  union activities. It was also found that the bank had retained its power to  call upon  the union to vacate the premises at any time. The  bank had been maintaining the premises at its own expenses  and   was  also  paying  the  electricity  charges consumed by the trade union. It was also found that the bank retained its  control over  the trade union whose membership was  confined   only  to  the  employee  of  the  bank.  The possession  of  the  union  was  held  to  be  "constructive possession" for  and on  behalf of  the bank.  Reliance  was placed  on   the  observation   that  "   the  existence  of consideration, an  ingredient of  subletting, had  not  been present  to   hold  that   there  was  subletting."  In  the background of  the facts  of the case, this observation does not purport  to lay  down that  in  every  case  payment  of consideration must  be established  by the landlord to prove subletting by the tenant. 10.  The Rent  Controller as also the Rent Control Appellate Tribunal have  found it  as a  fact that  the petitioner had sublet the  premises. This  finding was accepted by the High Court and  was not interfered with on the ground that was no

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infirmity of illegality in the judgment. 11.  For the  reasons stated above, we find no merit in this special Leave  petition which  is dismissed. However, having regard to the facts of the case, we allow the petitioner, on its request,  time  till  31st  July,  1998  to  vacate  the premises on  furnishing  usual  undertaking  in  this  Court within two  weeks from  today so that fresh legal battle for execution may  not start  as the blood seems to be still hot and stamina endless.