R.C. Lahoti, J.
1. The landlord-plaintiff has come up in second appeal aggrieved by the judgment and decree of the lower appellate Court dismissing his suit for eviction of the defendant/respondents.
2. The suit premises admittedly owned by the appellant are non-residential one. The appellant filed a suit for ejectment of the defendant/respondents on the grounds available Under Section 12(l)(a), (b) and (f) of M. P. Accommodation Control Act, 1961 (Act, for short). Appellant's entitlement to seek eviction under clauses (a) and (f) has been negatived by the Courts below and those findings have not been challenged. The appellant has persisted in pressing claim for eviction under clause (b) and hence facts relevant to that ground only need be noticed.
3. At this stage, it is no longer in dispute that the two defendant/respondents are real brothers, No. l being the elder one. The tenancy commenced on 1-5-1968. The rate of rent is Rs. 26/- per month. The plaintiff alleged that though his shop was let out to defendant No. 1 alone, he had sub-let the same to the defendant/respondent No. 2 in breach of the contract of tenancy. The plea taken in reply in the written statement is loosely worded. Though the allegation as to sub-tenancy has been denied, it is stated that the shop was taken on tenancy jointly by the two defendants. At another place, in the written statement, it is stated that the shop was taken for the joint family business of the defendants and they were members of a joint Hindu family.
4. The trial Court found the allegation as to sub-tenancy proved. The finding and consequently the decree for ejectment, were confirmed in first appeal in an earlier round when the appeal was disposed of on 3-4-1981. Those judgment and decree were subject-matter of second appeal before this Court, disposed of by an order of remand dated 13-1-1987. This Court in its order noticed the defendant Laxmansingh having stated that he had himself started sitting again in the shop. This Court was of the opinion that it was not necessary to examine whether earlier there had been a sub-letting or not; in view of the law laid down in Hasmat Rai v. Raghunath Prasad, AIR 1981 SC 1711, Courts below, before passing the decree for eviction Under Section 12(1)(b) of the Act, were obliged to determine whether on the date on which they were invited to pass the decree, the disability which the tenant had suffered did exist in fact or not. To quote from that order : -
'I have no doubt that it has to be determined by the Court below before passing the decree for eviction Under Section 12(l)(b) as to whether on the date on which the Court was invited to pass the decree the disability which the tenant suffered did exist in fact, or, in other words, whether the 'tenant', namely, the first defendant was defaulter and was to be penalised for infraction of landlord's right envisaged Under Section 12(l)(b). Because of the clear statement made by him in his evidence that he used to sit in and run the suit shop and was in possession of the suit shop for the last 2/3 years, it has to be determined whether he could still be held liable to be evicted Under Section 12(l)(b) despite other evidence on record.'
5. The matter reached back the lower appellate Court and the appeal was re-heard. This time, by judgment and decree dated 14-5-1987, the appeal preferred by the defendant/respondent has been allowed entailing dismissal of the suit for ejectment for dual reasons. Vide para 11 of the impugned judgment it has been held that there was no sub-tenancy. Vide para 13, it has been held that assuming the shop was sub-let, the sub-tenancy had ceased to exist and hence the disqualification, if any, incurred by the tenant earlier, had become non-existent and the landlord was not entitled to a decree for ejectment.
6. By order dated 7-11-1987, the second appeal was admitted for hearing parties by this Court on the following three substantial questions of law : -
(i) Whether the first appellate Court's finding that the respondent No. 1 Laxmansingh did not part with the possession of the suit shop in favour of respondent No. 2 Balla and that there was no creation of sub-tenancy in favour of Balla is perverse ?
(ii) Whether the lower appellate Court's finding that respondent No. 2 Balla had ceased to sit in the suit shop for the last 2 or 3 years is perverse ?
(iii) Whether the lower appellate Court's finding that the disability, if any, attaching to respondent No. 1 under clause (b) of Sub-section (1) of Section 12 of the M. P. Accommodation Control Act, 1961 had to subsist upto the decree is contrary to the aforementioned provisions of law ?
7. I would take up the third question first because the learned counsel for the parties have also addressed the Court in this order. It was submitted at the Bar that if this Court were of the opinion that the third question was to be answered against the landlord appellant then there was no necessity of entering into the first two questions.
8. Ordinarily, tenancy is created under a contract between the landlord and the tenant. Their mutual rights and obligations are governed by the contract. In the absence of a contract or local usage to the contrary their rights and liabilities are to be worked out Under Section 108 of the Transfer of Property Act, 1882. In the post-war period, necessity of governing such relationship by special legislation was felt on account of paucity of accommodation and with the noble object of curbing unscrupulous and avaricious activities on the part of the landlords. The rent control legislations in major part of the country have been temporary enactments, the Legislatures making frequent amendments and replacements. This had to be done to usefully utilise the lessons learnt from time to time and also so as to adapt the law with the changing times and tendencies. Landlord-tenant disputes have constituted a substantial part of litigation at most of the times. Initially it was felt that the tenants needed to be protected virtually under an umbrella. At times, it was felt that over-protection was defeating the very purpose sought to be achieved as the landlords were discouraged from undertaking the building construction activity which no more remained profitable and this ultimately contributed to hike in rent and harassment of the tenants because of increasing shortage of the buildings as the population continued to grow. The Legislative protection extended to tenants, overzealousy stretched, at times, by Courts, boomerangs striking at the larger interest of the tenants as a class, because of its discouraging effect on building activity of landlords.
8.2 The Apex Court in Prabhakaran Nair v. State of Tamil Nadu and Ors., AIR 1987 SC 2117, vide para 36, has observed : -
'Tenants are in all cases not the weaker sections. There are those who are weak both among the landlords as well as the tenants.'
The common stock argument must often than not made in the Courts on behalf of the tenants that they are the weaker sections of the society and the Rent Control law being a beneficial piece of Legislation should be liberally construed in their favour has been rebuffed by their Lordships of the Supreme Court in Ganpat Ram Sharma and Ors. v. Smt. Gayatri Devi, AIR 1987 SC 2016, vide para 21:-
'This is a beneficial legislation, beneficial to both the landlord and tenant. It protects the tenant against unreasonable eviction and exorbitant rent. It also ensures certain limited rights to the landlord to recover possession on stated contingencies.'
8.3. The stated contingencies having occurred i.e. the tenant having shown to have sub-let the premises or parted with possession thereat, would it be within competence of the Court to devise and enact a protection which the Legislature has not chosen to enact and provide ?
8.4. The popular, apt and sarcastic saying - 'fools build houses for wise men to live in' was judicially noticed by Majority in Raval and Co. v. K. G. Ramchandran and Ors., AIR 1974 SC 818, and quoted in para 21 by their Lordships in Prabhakaran Nair's case (supra). Their Lordships hearing kept in view the necessity of encouraging building and rebuilding activities while interpreting the Rent Control legislation vide para 36, observed : -
'More houses must, therefore, be built, more accommodation and more spaces made available for the people to live in. The laws of landlord and tenant must be made rational, human, certain and capable of being quickly implemented.'
And said Vide para 33 :
'It is true that the Act must be so construed that it harmonises the rights of the landlords and at the same time protects the tenants and also serves best the purpose of the Act and one of the purposes of the Act is to solve the acute shortage of accommodation by making a rational basis for eviction and to encourage building and rebuilding which is at the root of all causes of shortage of accommodation.'
8.5. How should the Court read in the law the protections, restrictions and the reaxations available in a Rent Control Law, their Lordships said in Prabhakaran Nair (supra) vide para 27 : -
'The nature, the form and the extent of the restrictions to be imposed on the landlord's right and the consequent extent of protection to be given to the tenants is a matter of legislative policy and judgment.'
'There can be no fixed and inflexible criteria or grounds governing imposition of restrictions on the landlord's right or for relaxation of those restrictions in certain cases. Ultimately it is a matter of legislative policy and judgment.'
It follows that all has to be left to the Legislative policy and judgment and the Court would not embark upon devising other relaxations or restrictions or protections.
9.1. Section 12 of the Act provides as many as 16 grounds for eviction of the tenants contemplated by clauses (a) and (p) of Sub-section (1) of Section 12 of the Act. An analysis of the several grounds permits their classification into two broad categories. First category would be of the grounds where concentration is on the landlord; the legislature having called upon the Courts to look into the facts and circumstances attaching with the landlords, availability of which would entitle them to bring a suit for ejectment, lifting away the bar imposed by the opening words of Sub-section (1) of Section 12. Such provisions are to be found contained in clauses (e), (f), (h), (n). The second category is of the grounds riveting legislative eye on the tenant, where the tenant has done something and it is on account of his act, omission or conduct creating such circumstances or bringing into existence such facts which would disqualify him from enjoying the protection otherwise available to him under the Accommodation Control Law.
9.2. A resume of judicial pronouncements indicates that in the first category of cases, the Courts have invariably held that the ground for ejectment pleaded and proved by the landlord must continue to exist until the decree for ejectment achieves finality and any subsequent event causing such change in the facts and circumstances as renders the ground non-existent at any stage of the litigation until the decree has achieved a finality and unless Courts' power to notice subsequent events has been taken away, would entail denial of a decree for ejectment to the landlord. In the second category of cases, the Courts have always held that once the tenant has incurred a disqualification depriving him of the protection of the Act, a subsequent event would not reverse the operation of law which would take its course to its normal end unless the tenant in spite of disqualification, is still statutorilly protected. Such protections are illustrated by the provisions contained in sub-sections (3), (8), (9), (10) and (11) of Section 12 of the Act.
10. To take the case of bona fide requirement, if there happens any subsequent event which renders the requirement of the landlord non-existent, the Court would not grant a decree for ejectment though the requirement had existed on the date of the suit. Even after the decree by the trial Court a superior Court seized of the litigation for the time being would not refuse to notice a subsequent event and set aside the decree for ejectment if the requirement has ceased to exist or has been satisfied otherwise. On the contrary if the tenant has sub-let or parted with possession of the premises or has done any act injurious to the interest of the landlord, cause of action having once accrued to the landlord, the Court would not deny the relief of ejectment even after the tenant was prepared to reverse or had in fact reversed the factual possession. The defendant having once built or acquired vacant possession of or allotted vacant possession of a suitable residence the entitlement of the landlord for ejectment would not be negatived merely because the tenant had subsequently deprived himself of such an accommodation. So would have been the position under clauses (j), (k), (m) and (o) of Section 12(1) if only sub-sections (8) to (11) were not there.
11. Disqualification attaching with a tenant consequent to his having sub-let the disputed premises belongs to second of the abovesaid categories. That is why, having provided for lifting away the bar imposed on filing a suit for eviction against a tenant, by virtue of clause (b) of Sub-section (1) of Section 12 of the Act, the Legislature has not provided for such disability being cured or removed by enacting anything in the subsequent sub-sections of Section 12 of the M. P. Accommodation Control Act, 1961, analogous with the provisions contained in sub-sections (8) to (11). The provision rendering tenant liable to ejectment on the ground of sub-letting, parting with possession or assignment of interest is founded on the principle that the tenant who has shown by his such conduct that he does no more need the premises for himself must yield it to the landlord and no one else nor he should be permitted to enrich himself at the cost of the landlord.
12. In Gajanan Dattatraya v. Sher Banu Hosang Patel and Ors., AIR 1975 SC 2156, pari materia provision contained in Section 13(l)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) came up for consideration before the Apex Court. There too the phrase used is 'has sublet', (just as it has been used in the M. P. Act). A notice for ejectment was served on 1-4-1967 and the sub-tenant vacated the premises on 14-4-1967. When the suit was filed, the sub-tenant was not in occupation of the premises. The contention of the tenant/appellant was that the plaintiff/respondent was not entitled to a decree. Having explained and distinguished therein decision in Gappulal's case, AIR 1969 SC 1291, their Lordships laid down the law as under : -
'The provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of Section 13(l)(e), namely, that he has sub-let. The language is that if the tenant has sublet, the protection ceases. To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub-tenant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the sub-tenant to vacate the premises. The tenant's liability to eviction arises once the fact of unlawful subletting is proved. At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted.'
12.1. Gajanan Dattatraya's case (supra) has been followed consistently by this Court in cases Under Section 12(1)(b) of the Act in a series of decisions. [See, Arun Kumar v. Bipin Kumar, 1977 JLJ SN 850-DB; Kewalsingh v. Tribhuvansingh, 1984 MPRCJ SN 8; Ramesh Kumar v. Shri Sudarshanlal, 1984 MPRCJ SN 41 and Santosh v. Kavita Devi, 1986 (II) MPWN 135.]
13. The order of remand (referred to in para 4 above) directed the Court below to find out the effect of the sub-tenant having vacated the premises on the right of the landlord to seek eviction but did not in so many words say that if the sub-tenant had vacated the premises during the pendency of the suit, the plaintiffs suit would be liable to be dismissed on that finding being recorded by the lower appellate Court. The lower appellate Court should have, therefore, not overlooked the law of the land laid down by the Apex Court in Gajanan Dattatraya's case (supra) and followed by this Court thereafter in several decisions.
14. The next question which arises for consideration is whether unlawfully sub-letting, assigning or otherwise parting with possession within the meaning of Section 12(l)(b) of the Act has been made out or not. Laxman, the tenant, and Balla, the alleged sub-tenant, have both been joined as defendants. Vide paras 4, 5(b) and (D) of the plaint it is specifically stated that the defendant No. 1 had unlawfully sub-let the premises to defendant No. 2 by inducting him into possession of the premises and though the shop was let out to defendant No. 1 for running a cycle shop the defendant No. 2 was carrying on loud-speakers business also in the premises. The written statement jointly filed by the two defendants states that they are real brothers forming a joint family and that the suit shop was taken for the joint family business of the defendants. Vide para 10 of the written statement, it is said that the two defendants had jointly taken the shop on tenancy.
15. The suit was filed on 2-1-1976. The trial commenced in July 1978. It seems that in the meantime the defendant No. 2 vacated the shop and someone else was inducted into possession of the premises. However, that subsequent sub-letting was not made a foundation of the suit nor such other person was impleaded in the suit. Navalmal, the plaintiff stated that the shop was let out to defendant No. 1 who had discontinued sitting in the shop for last 6 to 7 years whence the defendant No. 2 had started sitting in the shop, followed now by someone else in occupation. He disowned any knowledge about the two defendants being real brothers, residing or carrying on business jointly. Tarachand (P.W.5) has supported the plaintiff.
16. Vide paras 7 and 14 Laxmansingh, D.W.I, stated in his deposition dated 3-7-1978 that he had started sitting on the shop only for the last 2 or 3 years and earlier it was the defendant Balla who used to sit in the shop while he himself used to go to Mandi (grain market). He also admitted that the cycle business of Balla, the defendant No. 2 was 'separate and also joint' with him. Balla, D.W.2, on the contrary stated that the cycle and loud-speakers business run in the shop was of both the defendants. He further admitted that on the date of his statement, it was one Patiram who was carrying on his shop in the suit premises, though he hastened to add that Patiram was also his brother, Devlal, D.W.3, is the person who, according to the defendants, had been mediator in securing premises on tenancy for the defendants. He stated that Balla, defendant No. 2, had one cycle shop while Patiram and Laxman (defendant No. 1) had one i.e. some other cycle shop; the suit shop was presently in occupation of Laxman and Patiram. Munnilal, D.W.4, stated that though it is Balla, defendant No. 2, who used to sit at the suit shop, but now he had opened another shop at Sindhi Colony locality of the city, certainly away from the locality where the suit shop is situated.
17. It is well settled that sub-tenancy cannot be proved by direct evidence. Mostly it is a matter of inference to be drawn from the facts and circumstances brought on record. A mere temporary occupation by someone or where the possession is retained by the tenant through its use is permitted even by someone else, the tenant may not incur disqualification Under Section 12(l)(b) of the Act. Because the exact relationship of tenant and the alleged sub-tenant or the person in possession would be within the knowledge of the tenant and such person, the law expects them to come with a clear statement of facts and satisfy the conscience of the Court that law had not been breached. The burden of proof lies on the landlord in the sense that he has to make out the availability of the ground for ejectment; nevertheless once it is shown that the tenant had parted with possession or there was a stranger in the premises the onus would shift on the tenant whom the law would expect to discharge his obligation in shifting the onus back. [See Narayan v. Indian Mill Stores, Raipur, 1977 MPLJ 161 = 1977 JLJ 434; Gouribai v. Ranidan, 1977 MPLJ 456 and Rajaram v. Prahladdas, 1961 MPLJ Note 233 = 1961 JLJ 478].
18. The abovesaid legal position is not disputed. However, the learned counsel for the defendant/respondents has submitted that in view of the close relationship as brothers between the tenant and the alleged sub-tenant, it must be presumed that possession of one would be possession of the other and really speaking there was no such parting with possession as to attract the applicability of Section 12(l)(b) of the Act. On the contrary the learned counsel for the plaintiff/appellant has submitted that the relationship between the parties was wholly besides the point because the evidence available on record pointed out irresistibly to the fact that Laxman, defendant No. 1, alone was the tenant and if he had permitted the defendant No. 2 alone to carry on his business in the suit premises, a case of sub-tenancy or at least one of parting with possession was made out.
19. Admittedly, there is no written contract of tenancy. The receipts Exs. D/l, D/2, D/3, D/4 and D/5 spread over a period of about 10 years between 1965 and 1975 go to show that the receipts were issued in the name of Laxman, the defendant No. 1 alone. Nothing convincing has been brought on record to show that the business run by any of the defendants was not his alone but was joint of the two brothers or was the joint family business: In Hindu Law there is no presumption that a business run by a brother is necessarily a joint family business of other brother constituting the family for the time being.
19.1. In Bhairavchand Nandan v. Randhir Chand Dutt, 1988 MPRCJ 67 SC, the facts before their Lordships of the Apex Court were that the respondent had ceased to live in the leased out residential accommodation and had shifted his residence to another place inducting his brother in the suit premises. This was done without the consent of the landlord. Their Lordships held that there was no question of the tenant's brother being only a licensee and not a sub-tenant.
19.2. In a Division Bench decision of this Court in Satyabhama Choubay v. Ram Kishore, 1974 MPLJ 906, the Lawyer tenant had shifted to a newly purchased house, inducting his brother, also a Lawyer, in the tenanted accommodation. The Lawyer tenant used to go occasionally to his brother's office in the tenanted premises for referring to books left in the office and to help the brother. As there was no written consent of the landlord, it was held to be a case of unlawfully parting with possession.
20. In order to prove tenancy or sub-tenancy two ingredients have to be established : firstly, the tenant (or the sub-tenant) must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent. [See Dipak Banerjee v. Smt. Lilabati Chakraborty, AIR 1987 SC 2055 and Delhi Stationers and Printers v. Rajendra Kumar, AIR 1990 SC 1208].
21. Even if a tenant parts with possession of whole or any part of the premises without assigning or sub-letting the premises, he would still be liable to be evicted from the premises. (Roop Chand v. Gopi Chand, AIR 1989 SC 1416).
22. In the present case, it has already been noticed that in face of the specific averment made in the plaint, alleging defendant No. 1 to be the tenant and possession of the premises having been parted with by him exclusively in favour of the defendant No. 2, the defendants in their written statement have not come out with a specific case. The stand taken by them in the written statement does not make a clean breast of the correct facts. Rather, the pleas taken by them are oscillating. So is the case with their evidence. It is vague, indefinite and at times conflicting. It follows irresistibly that the defendant No. 1 alone was the tenant in the premises. He had at one point of time parted with possession exclusively in favour of the defendant No. 2. The defendant No. 1 had shifted his business to elsewhere, leaving the defendant No. 2 totally in-charge of and in exclusive possession of the tenanted premises. The business run by the defendant No. 2 in the suit premises was exclusively his own. Thus a clear case of parting with possession has been made out, attracting the applicability of Section 12(l)(b) of M. P. Accommodation Control Act, 1961. Finding to the contrary recorded by lower appellate Court is perverse.
23. Admittedly, the defendants do not have any consent, not to talk of any consent in writing, of the landlord. It has been held in Shalimar Tar Products Ltd. v. H. C. Sharma, AIR 1988 SC 145 : -
'It is necessary for the tenant to obtain the consent of the landlord in writing to subletting of the premises. The mere permission or acquiescence will not do. The consent must be to the specific subletting and must be in writing. The requirement that consent should be in writing cannot be regarded as director as the requirement of consent to be in writing is intended to serve a public purpose i.e., to avoid dispute as to whether there was consent or not. As this requirement of the statute is in the public interest, there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord.'
24. The fact that the tenant having once parted with possession of the tenanted premises in favour of someone else has been held to have been established, the consideration that the person in possession subsequently vacated the premises restoring possession to the tenant was totally irrelevant and should not have prevailed with the lower appellate Court for non-suiting the plaintiff.
25. As already noticed, ground Under Section 12(l)(f) of M. P. Accommodation Control Act, 1961 has not been pressed by the landlord/appellant. However, it was feebly argued and a question that had cropped up for consideration may be stated so as to speak a word about the decision rendered by me in Ramchandra Singh Jadon v. Satya Prakash Gupta, 1990 MPLJ 405. In that case, vide para 12, it has been said that a landlord of Section 23-J category is not required to prove his ownership, while seeking eviction of a tenant on the ground of genuine requirement. The observation has been worded widely per incuriam. Section 23-A of Chapter III 'A' of M. P. Accommodation Control Act, 1961 added by Act No. 27/89 has a distinction between clauses (a) and (b) thereof. The phrase 'if he is the owner thereof is found to be missing in clause (a), while it is to be found in clause (b), meaning thereby that a landlord seeking ejectment from accommodation let for residential purposes under clause (a) is not required to prove his ownership but he is required to prove the same if he seeks eviction from the accommodation let for non-residential purpose under clause (b).
26. Inasmuch as, the lower appellate Court has adopted an approach not permitted by law and has failed to take into consideration the pleadings and evidence of the parties in the light of the correct legal position and has also proceeded upon an incorrect exposition of the law, inconsistent with the law laid down by the Apex Court in Gajanan Dattatraya's case supra, the findings of the lower appellate Court are perverse, not binding in second appeal and are liable to be set aside.
27. For the foregoing reasons, the appeal is allowed. The judgment and decree of the lower appellate Court are set aside. The plaintiff/appellant's suit for ejectment of the defendant/respondent is decreed for availability of ground Under Section 12(l)(b) of M. P. Accommodation Control Act, 1961. The plaintiff/appellant shall be entitled to his costs throughout. Counsel's fee as per Schedule, if certified.
28. Still to save the defendant/respondents, from the peril of sudden ejectment they have to be granted a breathing time. It is directed that the decree for ejectment shall not be available for execution until 30-6-1991 subject to the defendant/respondents filing undertakings on affidavits before the executing Court to the effect that on or before 30-6-1991 they shall hand over peaceful vacant possession to the plaintiff/appellant and in between shall not induct anyone else in the premises nor part with possession in favour of anyone else. They shall also be obliged to deposit the amount of costs along with the arrears of rent, if any and up-to-date, on or before 30-4-1991 with the executing Court. Thereafter, they shall continue to pay to the landlord or deposit with the executing Court rent falling due month by month by the 15th day of that month. Failing the filing of the undertaking or in the event of breach of any of the conditions abovesaid, the decree for ejectment shall be available for execution forthwith.