Judgment:
ORDER
1. In pursuance of an order of remand passed by this Court dated 27-3-1980 allowing Writ Petition No, 1495 of 1977 filed by Amarjit Singh, the predecessor-in-interest of the contesting respondents/landlord, the proceedings in Original Suit No. 126 of 1975 in the Court of Judge Small Causes, Moradabad which had been initiated seeking a decree for the eviction of the petitioners from the premises in dispute and for recovery of arrears of rent and damages for use andoccupation, were resumed and the suit was decreed by the trial court on 30-9-1985. This decree was challenged by the tenant in a revision filed under S. 25 of the Provincial Small Cause Courts Act which was dismissed by the respondent No. 1 vide the judgment and order dated 21-9-1988. Feeling aggrieved, the tenant-petitioner has now approached this Court for redress.
2. The material facts of this case lie in a narrow compass. The suit referred to above had been filed on the grounds contemplated under S. 20(2)(a), (c) and (e) of the U.P. Act No. 13 of 1972. Initially the trial court had negatived all the three grounds set up by the plaintiff and had dismissed the suit. This decree was affirmed by the revisional court, a writ petition filed by the landlord to which a reference has been made above, this Courtwhile upholding the finding recorded by the courts below on the questions relating to the involvement of the grounds contemplated under S. 20(2)(a) and (c) of the Act did not approve of the findings on the question relating to the involvement of S.20(2)(e) of the U.P. Act No. 13 of 1972 and remanded the case to the trial court for deciding the issue No. 3 afresh in the light of the observations made in the, body of the judgment. In the judgment it was observed that if it is shown that any portion of the accommodation in question had been placed by the tenant in the occupation of Mushtaq Ali (Musarraf Ali), it will be deemed that he had vacated the accommodation and it will be deemed to have been sub-let even though there is no direct or circumstantial evidence forthcoming to show that any rent was payable by Mushtaq Ali (Musarraf Ali) to the tenant. It was further observed that in case the court comes to the conclusion that the accommodation was in occupation of any person other than the relation of the tenant, it may, as laid down in Explanation to S. 25 of U.P. Act No. 13 of 1972 make out a case for directing theejectment of the tenant. It was, however, clarified that if the court found that any portion of the demised premises was not in occupation of any such person and there was no direct or circumstantial evidence to establish sub-letting, the suit for ejectment may beliable to be dismissed.
3. In view of the conclusions contained in the judgment of this Court dated 27-8-1980 referred to above, the findings recorded by the courts below against the landlord on issues Nos. 1, 2 and 4 became final and the only question which remained to be considered was as to whether the decree as claimed could be granted on the ground envisaged under S. 20(2)(e) of the U.P. Act No. 13 of 1972. The pleadings in regard to the fact of sub-letting are contained in para 3 of the plaint. The only assertion made by the landlord in this respect in the aforesaid paragraph was that the tenant had in an unauthorised manner and with a purpose of earning illegal profit, had sub-let the shop in dispute to various sub-tenants without the permission of the plaintiff and was not occupying the shop himself. In the written statement, in reply to the allegations made in para 3 of the plaint the reply given was that the assertions made in para 3 of the plaint were not admitted. In para 7 of the additional pleas contained in the written statement it was asserted that the predecessor-in-interest of the plaintiff had permitted the defendant to sub-let any portion of the shop in dispute and in view of this agreement the defendant had often sub-let some portions of the shop in dispute. In para 14 of the additional pleas, the plea raised was that the plaintiff was not entitled to any decree on the ground of sub-letting.
4. The trial court after considering the evidence and materials on record came to the conclusion that Murshad Ali was doing the business of readymade garments in his own right in a portion of the shop in dispute and the plaintiff (defendant?) had parted with his legal right to possession over the shop in favour of Sri Murshad Ali and the defendant had not been able to show that this person was either in his employment or was a member of his family. The trial court further held that in these circumstances the provisions contained in S. 12(1)(b) of the U.P. Act No. 13 of 1972 stood clearly attracted and the defendants will be deemed to have ceased to occupy the shop which shall further be deemed to have been sub-let to Sri Murshad Ali within the meaningof the Explanation to S. 25 of the aforesaid Act. On the above finding the trial court decreed the suit.
5. The revisional court in its judgmentobserved that the report of the Commissionershowed that Musarraf Ali who was sitting onthe shop was doing business of the sale ofreadymade clothes and that the correctness ofthis report had not been challenged by thetenant. It was further observed that the oralevidence tendered on behalf of the tenantdisclosed that the Amin had inspected theshop in his presence. It came to the conclusionthat there was no infirmity in the order passedby the trial court in accepting the report of theAmin as correct and disbelieving the versionof the defendants. The finding of the trialcourt holding that a person other than thedefendant was in occupation of a portion ofthe premises in dispute and the defendant hadceased to be in occupation of that portion andfarther, that the aforesaid person was neither aMember of the family of defendant nor in theemployment of the defendant was upheld,The decree passed by the trial court was thus,affirmed.
6. I have heard Sri S. S. Bhatnagar, Senior Advocate for the petitioner-tenant and Sri. K.M. Dayal, Senior Advocate for the landlord-respondent.
7. Learned counsel for the petitioner has urged that in the present case the pleadings on the question relating to sub-tenancy were absolutely vague. The plaintiff had neither disclosed the period of sub-tenancy nor the names of the alleged sub-tenants. The plaintiff had further omitted to mention that the persons alleged to be in occupation of the premises in dispute were neither in the employment of the defendant nor were members of his family. It was also asserted that there was no evidence at all to show that Murshad Ali was in occupation of any portion of the property in dispute. It was asserted that the plaintiff had led no evidence to prove the possession of Musarraf Ali. It was further asserted that the report of the Amin could not be utilised in support of a finding on the question of possession as this report was to be treated to be confined to thequestion relating to material alteration of the demised premises. Learned counsel for the petitioner has further urged that the fiction envisaged under Explanation (i) of S. 25 was for a very limited purpose and stood confined to the contingencies covered therein and therefore to those envisaged under S. 12(2) of the Act so far as the present case was concerned as the demised premises was a non-residential building.
8. It was further asserted that the subtenancy envisaged under the Explanation to S. 25 of U.P. Act No. 13 of 1972 so far as non-residential accommodation were concerned stood confined to the contingency envisaged under S. 12(2) of the Act and not S. 12(1) of the said Act and consequently since in the present case there was neither any pleading nor any proof satisfying the requirements contemplated under S. 12(2) of U.P. Act No. 13 of 1972 the mere presence of a person who was not in the employment of the defendants or was not a member of his family could hot be made the basis for raising the presumption of fact about the portion of the premises in dispute having been sub-let so as to attract the ground envisaged under S. 20(2)(e) of the aforesaid Act for granting a decree of ejectment in favour of the plaintiff.
9. Learned counsel for the respondents has, however, urged that the question as to whether a portion of the premises in dispute had been sub-let or not was a question of fact and a concurrent finding in that regard having been returned by both the courts below in favour of the landlord after appraising the evidence on record cannot be interfered with by this court and the said finding was sufficient for justifying the decree in respect of the entire accommodation in dispute as for attracting the provisions contained in Section 20(2)(e) of the U. P. Act No. 13 of 1972 even subletting of a portion of the accommodation let out to the defendant was sufficient. It was further asserted that the provisions contained in Sections 12(1) and 12(2) of the Act have different areas of operation which do not overlap in any manner whatsoever. In this connection it was asserted that the present was a case whichattracted S. 12(1)(b) and not S. 12(2) of the Act. It was further asserted that for attracting the provisions contained in S. 12(1)(b) of the Act it was sufficient to establish that any portion of the premises in dispute was allowed by the tenant to be occupied by any person who was not a member of his family and in case it was so found the presumption of fact of sub-tenancy having come into existence as provided under the explanation to sub-section (25) would at once become available to the landlord making out a ground envisaged under S. 20(2)(e) of the Act having the effect of lifting the bar against filing of the suit contemplated under S. 20(1) of the said Act. It has further been asserted that in the present case the pleadings contained in para 3 of the plaint were more than sufficient and the burden of proof which initially rested on the plaintiff to establish the existence of subtenancy stood discharged on the proof that a portion of the premises in dispute was in actual occupation of a person who was neither in the employment of the defendant nor was a member of his family and the onus of proof thereafter stood shifted on the defendant to show that the person in actual occupation of the premises in dispute did not fall in the category of the aforesaid persons. It was asserted that the defendant had totally failed to discharge this onus of proof which in the circumstances of the case, stood shifted on him. Learned counsel further contended that even if there was a sub-letting of a part of a building, the bar against filing of the suit stood lifted and the decree for eviction of the tenant from the entire demised premises could be validly passed and there was no legal impediment in this regard. The learned counsel for the respondent has further asserted that the decree passed by the trial court as affirmed by the revisional court is in consonance with the direction issued by this court in its order of remand and no ground at all has been made out for any interference therein.
10. I have given my anxious thought to the rival contentions of the learned counsel for the parties and have carefully perused the record.
11. In the cases involving sub-letting it isdifficult for the landlord to produce direct evidence in this regard showing the existence of the relationship of tenant-in-chief and the alleged sub-tenant because the matter is specially within their knowledge, therefore, in order to prove sub-letting the landlord has to rely on attending circumstances. It is in this view of the matter that the Legislature has provided for a presumption of fact about coming into existence of sub-tenancy taking recourse to a legal fiction. Once a sub-letting takes place the impediment in the way of the landlord to recover possession stands removed inducing him to go to court and ask for recovery of possession. The tenant's liability to eviction arises once the fact of unlawful sub-letting is proved.
12. It cannot, however, be overlooked, that while the initial onus of proving subletting or a transfer of the lease holding is upon the landlord yet once the, court is satisfied that there has been a transfer of possession, the onus may shift and within whose special knowledge the facts explaining the manner in which such possession has been transferred lie, may have to bear the burden thereafter. It is, therefore; clear, that when once the parting of possession is proved the burden shifts on to the tenant to show that the alleged sub-tenant is in occupation not as a sub-tenant but only as a licencee or as a person in permissive occupation. The initial onus to prove the ground of eviction, thus, rests on the landlord. But the facts which are in the special knowledge of the tenant must be proved by tenant and the tenant cannot take advantage of the onus of proof to withhold the best evidence in his possession or power to satisfy the court with regard to the correctness of the case set up by him.
13. On proof of the fact that the tenant has parted with the possession, even in respect of a part of accommodation let out to him and that the alleged sub-tenant is in exclusive possession of that portion of the demised premises an inference of sub-letting can be legitimately drawn unless the tenant is able to prove satisfactorily some arrangement between him and the alleged sub-tenant which negatives the inference of sub-letting.
Section 20(2)(e) of the U.P. Act No. 13 of 1972 provides as under:--
'Section 20(2)(e) that the tenant has sublet, in contravention of the provisions of S. 25, or as the case may be of the old Act the whole or any part of the building.'
13A. Section 25 of the Act provides asunder:--
'25. Prohibition of sub-letting,--
1) No tenant shall sub-let the whole of the building under his tenancy.
2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building,
Explanation.-- For the purposes of this section-
i) where the tenant ceases, within the meaning of clause (b) of sub-sec. (1) or sub-sec. (2) of S. 12, to occupy, the building or any part thereof, he shall be deemed to have sublet that building or part;
ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting.'
14. The explanation to S. 25 referred to above contemplates raising of a presumption of fact regarding sub-letting of the demised building either as a whole or in part on the proof of the tenant ceasing to occupy the building or any part thereof within the meaning of the provisions contained in S. 12(1)(b) or S. 12(2) of the Act. The relevant portion of S. 12 of the Act provides as under:--
'Section 12. Deemed vacancy of building in certain cases-
1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if;
(a)...... or,
(b) He has allowed it to be occupied by any person who is not a member of his family; or
(c).....
2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.'
15. The word 'occupy' as used in Section 12(1)(b) and Section 12(2) of the Actreferred to above is quite significant. Thisword is a word of uncertain meaning andsometimes denotes legal possession in thetechnical sense. However, at other times,occupation denotes nothing more than thephysical presence in a place for a substantialperiod of time. Its precise meaning in anyparticular statute must depend on the purposefor which and the context in which it is used.As observed by the Apex Court, the modernpositive approach is to have a purposefulconstruction that is to effectuate the objectand purpose of the Act.
16. Under the scheme of the U.P. Act No. 13 of 1972 the word 'occupy' as used in Ss. 12(1) and 12(2) of the said Act appears to have been made connoting different meanings. This word so far as S. 12(2)(b) is concerned denotes physical possession while this word as used in S. 12(2) of the Act denotes legal possession in the technical sense. In order to attract S. 12(1)(b) it has to be established that the tenant has allowed the demised premises or any part thereof to be physically occupied by any person who is not a member of his family and once the fact of the demised premises or any part thereof being physically occupied by a person contemplated under S. 12(1)(b) is established as indicated above the presumption of fact about the sub-tenancy having come into existence becomes available to the landlord by virtue of the legal fiction envisaged under Explanation to S. 25 of the Act.
17. The provisions contained in S. 12(1) of the Act are applicable to both residential as well as non-residential buildings or part thereof. Section 12(2), however, applies only in the case of non-residential building and that too to its entirety and cannot apply to a part of it only. This presumption about the coming into existence of sub-tenancy in respect of the entire demised premises con-templated therein becomes available simply on the landlords establishing that a person who is not a member of the tenant's family has been admitted as a partner or a new partner has been admitted as the case may be. The expression 'where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner' as used in S. 12(2) of the Act has to be understood taking into consideration the provisions contained in S. 31 of the Indian Partnership Act. The word business is a word of wide import and represents some organised activity. So long as there is some real substantive, systematic and organised course of activity with a set purpose it would constitute 'business'. Section 31 of the Indian Partnership Act deals with the introduction of a partner and provides that subject to contract between partners and to the provisions of S. 30 no person shall be introduced as a partner into a firm without the consent of all the existing partners. Admission of a partner is nothing else but introduction of a partner. Introduction of a partner as envisaged under S. 31 of the Partnership Act can be in any existing partnership firm. Section 12(2), therefore, contemplates carrying oh business in a non-residential building by an existing partnership as envisaged under S. 4 of Partnership Act and admission of a person who is not a member of the family of the partners already doing business in that building and occupying the whole of it, as a partner or a new partner as the case may be as envisaged under S. 31 of the said Act. It is in this event alone that the tenant, which may include all the partners can be deemed to have ceased to occupy the building as a whole. The act of introducing/admitting a partner as envisaged under S. 12(2) of the U.P. Act No. 13 of 1972, as indicated above, is by itself sufficient to render the building in question vacant as a whole with a further presumption in regard to the coming into existence of an illegal sab-tenancy. It cannot be overlooked that the malady of passing over rented premises by a tenant to another person under the garb of forming a partnership with him and violation of the provisions of the Act regulating letting etc., was sought to beremedied by introducing the legal fiction in question.
18. It is, thus, obvious that the area of operation of S. 12(1)(b) and 12(2) of U.P. Act No. 13 of 1972 cannot be said to be overlapping and they are mutually exclusive. The assertion of the learned counsel for the petitioner that in order to get the benefit of the presumption of fact about coming into existence of sub-tenancy contemplated by the legal fiction envisaged under the Explanation to S. 25 of the Act, it was incumbent upon the plaintiff to plead and prove the facts making out a case attracting S. 12(2) of the Act is totally misconceived and cannot be accepted.
19. In the present case, therefore. The pleadings contained in the plaint so as to attract the ground envisaged under S. 20(2)(e) of the U.P. Act No. 13 of 1972 and claiming a decree of eviction on that basis cannot be said to be vague so as to cause any prejudice to the tenant in his putting in the proper defence. The concurrent findings recorded by both the courts below show that a person who was not a member of the family of a tenant had been allowed to occupy a portion of the demised premises. With the establishment of this fact the onus of proof initially resting on the plaintiff stood satisfactorily discharged and a presumption of fact about coming into existence of sub-tenancy became available to him as envisaged under the Explanation to S. 25 of the Act. The onus which had shifted on to the defendant as indicated hereinbefore had not been discharged by him. The courts below, therefore, did not commit any error when they believed the case of the plaintiff and the evidence tendered by him in support of his case of sub-letting. The courts below, further, were fully justified in relying upon the report of the Commissioner which amply corroborated the case of the plaintiff. In this connection reference may be made to the decision of the Apex Court in the case of Southern Command Military Engineering Services Employees Co-operative Credit Society v. V. K.M. Nambiar, reported in AIR 1988 SC 2126, wherein it was observed that the High Court was in error in its view that the Commissioner's report could not be reliedupon or be treated as legal evidence. In that case the lower Appellate Court had drawn an inference of sub-letting relying upon the Commissioner's report which showed that the demised premises were no longer in occupation of the tenant but in occupation of strangers. The Apex Court approved of the judgment of the lower Court and set aside the judgment of the High Court which had taken the view that the Commissioner's report could not be acted upon or be treated as legal evidence.
20. The impugned orders do not suffer from any such error much less manifest error of law which may warrant an interference by this Court and taking into consideration the facts found and established in this case the decree passed against the petitioner cannot be said to be vitiated on account of any such legal infirmity which may justify any interference by this Court in the exercise of its extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.
21. In view of the conclusions indicated hereinbefore, the writ petition is clearly devoid of merits and is dismissed. However, there shall be no order as to costs.
22. Petition dismissed.