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PETITIONER: RESHAM SINGH

       Vs.

RESPONDENT: RAGHBIR SINGH & ANR.

DATE OF JUDGMENT:       23/08/1999

BENCH: S.N.Phukan, V.N.Khare,

JUDGMENT:

     PHUKAN,J

     This  is  an  appeal against the  judgment  and  order passed  by learned Single Judge of the High Court of  Punjab and  Haryana  in Civil Revision No.  2006 of 1983.   By  the impugned  judgment the petition filed under sub-Section  (5) of Section 15 of East Punjab Urban Rent Restriction Act (for short  the  Act)  was  allowed by  setting  aside  both  the judgments  of  the  Rent  Controller as  well  as  Appellate Authority.   The appellant Resham Singh filed a petition for eviction of two respondents namely Raghbir Singh and Kuldeep Singh  in  respect of disputed suit premises.  According  to the  appellant  the suit premises was let out to  respondent Raghbir  Singh  but he sublet it to Kuldeep Singh.   It  was also  pleaded before the Rent Controller that the respondent was  in  arrears of rent from 1.8.80.  The  Rent  Controller decided   the   issue  regarding   defaulter   against   the appellant-landlord but ordered eviction of respondent on the ground  of sub-letting.  The appeal filed by the  respondent was dismissed by the Appellate Authority.  The High Court by the  impugned  judgment  set aside both  the  judgments  and allowed  the  revision  petition holding that there  was  no sub-letting  and  the respondents were not  defaulters.   We have  heard Mr.  Munni Lal Verma, learned senior counsel for the  appellant and Ms.  Rupinder Kaur Wasu, learned  counsel for  the respondent.  It has been urged that sub-Section (5) of  Section 15 of the Act does not empower the High Court to set  aside  the findings of fact.  The said  sub-Section  is quoted below:

     (5)  -  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.

     The  question  of  sub-letting  is  a  conclusion   on question  of  law derived from the findings on materials  on record  as to the transfer of exclusive possession and as to the  said  transfer of possession being  for  consideration. While  considering  the said sub-Section (5) the above  view was  also expressed by this Court in Dev Kumar(Died) Through Lrs.  Vs.  Swaran Lata (Smt) and Ors.  1996 (1) SCC 25.

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     The  sub-Section (5) empowers the High Court either on application  or in its own motion to call for an examination of  the  record for the purposes of satisfying itself as  to the  legality  and propriety of such orders or  proceedings. In  view  of the above language of sub-Section (5)  we  find that   the   High  Court   while  exercising  powers   under sub-Section  (5) of Section 15 of the Act has got the powers to  satisfy itself as to whether the question of sub-letting which  is  a  question of law was properly  decided  by  the courts  below.  From the impugned judgment of the High Court we find that the High Court did not rightly find ingredients of sub-letting.  We, therefore, hold that the High Court was justified  in  setting aside the judgments of courts  below. It  is settled position of law that to establish sub-letting the  onus is on the landlord to prove through evidence  that sub-tenant  was  in exclusive possession of the property  in question;  that between the sub- tenant and the tenant there was relationship of lessee and lessor and that possession of the  premises in question was parted with exclusively by the tenant  in favour of the sub-tenant.  ( See - Kala and  Anr. Vs.  Madho Parshad Vaidya 1998(6) 573 and Benjamin Premanand Rawade(Dead)  by Lrs.  Vs.  Anil Joseph Rawade 1998 (9)  SCC 688).

     In the present appeal it is not disputed that both the respondents are brothers and respondent No.  1 Raghbir Singh who was the tenant was involved in some criminal proceedings and  he was absconding for a considerable period.  Being  an absconder  it does not possible for the tenant -  respondent No.1  Raghbir Singh be physically present in the premises in question.  It is natural to allow his brother - Kuldip Singh to  look  after the shop and this fact would not  amount  to sub-letting.  As stated above, it is settled position of law that  burden  of  making  a case of sub-letting  is  on  the landlord/landlady.  In the present case there is no evidence regarding  parting  of  possession of the suit  premises  by respondent  No.  1 - Raghbir Singh in favour of his  brother respondent  No.2  - Kuldip Singh and that said Kuldip  Singh was  in an exclusive possession of the suit premises.  There is  also  no evidence of relationship of lessee  and  lessor between  the two brothers.  For the reasons stated above  we do  not find any merit in the present appeal and accordingly dismissed.  No order as to costs.