Sardar Gurucharan Singh and anr. Vs. Priya Ranjan Bhagat - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 5. it is well settled and as can be seen from jagdish prasad v. it was, therefore, necessary for the landlord to clearly plead and prove that the tenant had parted with possession of the whole or a part of the building let out to him and that such transfer amounted to a lease in the eyes of law. the appellate court failed to see that what it had to look for was whether the tenant had transferred possession of the whole, or part of the building or had transferred the right in the building to another for a consideration. this, according to me, clearly negatives any case of sub-letting is somewhat difficult to fathom. thus, i am satisfied that the so called finding rendered by the lower appellate court is so unreasonable that it cannot be accepted as a final finding of fact. thus, i am satisfied that a substantial error of law has. therefore, i answer the first substantial question of law by holding that the plaintiff landlord had failed to plead and prove a case of sub-letting justifying a decree for eviction under section 11(1)(a) of the act. going by the normal course of human conduct especially in the background of the fact that the landlord is an advocate, well versed in the affairs of the world, it appears to me that the tenant's case in the context of exhibit 1 is more probable and is more consistent with the normal course of human conduct. the defendant examined two employees of the concerned bank to prove the drafts were purchased by him, or his nephew in the name of the landlord in due time for the moths of july and august, 2000. the evidence clearly discloses that such drafts were purchased and that case of the tenant has not been rejected by the trial court or by the lower appellate court.p.k. balasubramanyan, c.j.1. this second appeal is by the defendants in a suit for eviction under the bihar buildings (lease, rent and eviction) control act, 1982 (hereinafter referred to as the act). the plaintiff, the landlord, claimed eviction on the ground of sub-letting under section 11(1)(a) of the act, and on the ground that the tenant had committed wilful default in payment of rent under section 11 (1)(a) of the act. the tenant, the first defendant resisted the suit by denying both the claims. the trial court overruled the contentions of the defendants and decreed the suit. the appeal filed by the tenant was dismissed by the lower appellate court. this second appeal challenges the concurrent decrees for eviction passed by the courts below.2. though various questions of law are indicted as substantial questions of law arising for decision in the memorandum of second appeal on hearing the parties, i find that the following two substantial questions of law arise for decision. i may indicate here and i have already noticed the same in the order dated 6.8.2004, that when the second appeal came up for hearing under order xli, rule 11 of the code of civil procedure the respondent-plaintiff had appeared and at the instance of both counsel the second appeal itself was taken up for final hearing and disposal. having commenced the hearing on 6.8.2004, i called for the records from the courts below. arguments were not completed that day. they were subsequently resumed on receipt of the records from the court below and the second appeal as requested by counsel is being heard and finally disposed of. in that context, i find that the following two substantial questions of law arise for decision :(i) whether on the pleadings and the evidence in. the case, the courts below were right in law in ordering eviction under section 11(1)(a) of the act?(ii) whether on the pleadings and the evidence in the case, the courts below were justified in decreeing eviction under section 11(1)(d) of the act, on the ground that the tenant had wilfully defaulted in payment of rent for two consecutive months?3. section 11 (1) (a) of the act, provides that a land lord could seek eviction of the tenant for breach of conditions of the tenancy or for subletting the building or any portion thereof, without the consent of the landlord. the courts below have found that even though there was no formal lease-deed executed when the tenant had entered into possession of the building, the tenant had written ext. 1 letter to the landlord containing the terms of the tenancy. that letter contains a provision that the tenant shall not sub-let the building. therefore, if the landlord established that the tenant had sub-let the building without obtaining specific subsequent consent form him, the landlord would be entitled to claim a decree for eviction under section 11(1)(a) of the act.4. the case of the landlord is that the first defendant, the tenant, occupied the building in the month of june, 2000 and thereafter he brought a lady and her son to reside in the building and this amounts to sub-letting of the building. the tenant pleaded that the lady was his widowed sister and the young-man was her son, his nephew and that there was no sub- letting involved. it must be noted that the landlord had no case in the plaint that the first defendant, the tenant had abandoned the possession of the building or had shifted his residence elsewhere, , leaving his widowed sister and nephew to occupy the building. his case was that the lady and her son were living with the tenant in the plaint-schedule building. the tenant gave clear evidence to the effect that the lady was his widowed sister and the young man was his nephew, and since the family house in which the family members were residing had become over crowded, he had taken the plaint schedule building on rent and was living there with his widowed sister and nephew since they had no other place to go to and there was no question of subletting. the landlord, when examined, was confronted with the question whether the lady residing with the tenant was not his widowed sister and the young man residing in the building along with the tenant was not the nephew of the tenant. the landlord could not deny the suggestion. thus, the sternest sum total of evidence was that the tenant after taking the building on rent had started residing therein and his widowed sister and her son, his nephew were also residing with him. the trial court though it posed the question did not actually decide it in the judgment except recording a conclusion that there was sub-letting. the lower appellate court proceeded to consider the definition of the family in the act and came to the conclusion that the widowed sister or the nephew, were not members of the family of the tenant as contained in the definition. the appellate court also noticed that the trial court did not properly consider the question. thus, finding that the definition of a family as contained in the act did not take in a widowed sister and her son, the appellate court held that the sister and the nephew of the tenant were not members of the family of the tenant and since they were residing with the tenant, it amounted to sub-letting. it proceeded to speculate that since in the reply-notice or in some of the documents produced the address of the tenant was shown as a hotel premises when a hotel was being run by the family of the tenant, it gave room for doubt whether the tenant was really residing in the building. i have to observe that this was a case which even the landlord did not have in his plaint. thus, the lower appellate court found that the tenant, defendant no. 1 had not been able to prove that he inducted into the suit premises defendant no. 2 and his mother on permission and therefore the decree for eviction was liable to be confirmed.5. it is well settled and as can be seen from jagdish prasad v. angoori devi, 1984 (2) scc 590, that the onus to prove sub- letting was on the landlord. the burden therefore lay on the landlord to plead and prove that there was sub-letting. in dev kumar v. swarnalata, 1996 (1) scc 25, it was held that the burden to prove that the tenant had parted with possession of the premises and the premises was in the exclusive possession of the sub-tenant lies on the landlord seeking eviction of the tenant on the ground of unauthorized subletting. unless the essential ingredients are pleaded and proved by the landlord, a decree for eviction on the ground of unauthorized sub-letting cannot be sustained. it was, therefore, necessary for the landlord to clearly plead and prove that the tenant had parted with possession of the whole or a part of the building let out to him and that such transfer amounted to a lease in the eyes of law. the pleading in that behalf in paragraph 5 of the plaint is to the effect that defendant no. 1, the tenant, has inducted and brought defendant no. 2 in the premise and had sub-let the same in favour of the latter in violation of and contrary to the condition of the tenancy and without the consent of the plaintiff and has made himself liable for eviction. neither the trial court nor the lower appellate court has even considered whether this amounted to an adequate pleading in support of the claim for eviction on the ground that the tenant had sub-let the building to another. it has to be noticed that the landlord did not have the case in the plaint that defendant no. 1, the tenant had moved away from the building or had ceased occupation of the building and inducted some others into the building. his case appears to have been and it was so stated by his counsel mr. v. shivanath before me, that the tenant had brought with him a lady and her son to live with him and this amounted to subletting without the consent of the landlord. the evidence discloses that the lady was the widowed sister of the tenant and the second defendant was her son, the nephew of the tenant. when a tenant who continues to occupy a building brings his widowed sister and her son to live with him it is impossible to postulate that there has been sub-letting by the tenant in favour of another. it is to be noted that there was no case that the lady and her son had been put in exclusive possession of any portion of the building. there is also no plea in the plaint that the tenant had left the premises leaving it to be occupied by the two persons and that amounted to sub-letting in the eye of law. as i have noticed, the trial court did not apply its mind to the question at all. the lower appellate court, in my view, misdirected itself by proceeding to consider whether the persons who came to live with the tenant were members of the family as defined in the act. the appellate court failed to see that what it had to look for was whether the tenant had transferred possession of the whole, or part of the building or had transferred the right in the building to another for a consideration. the fact that the tenant after taking the building on rent brings to live with him, his widowed sister and her son and continues his occupation cannot be said to have sub- let the building or any portion thereof to his widowed sister and his nephew. similarly, the mere staying of the widowed sister and her son with the tenant in the building cannot constitute sub-letting in the eye of law. an attempt made to argue that the tenant had shifted his residence cannot be countenanced in the absence of a pleading in that behalf; for no amount of evidence can be looked into on a plea never put forward. moreover, the evidence of the tenant which has not been discredited shows that the family was residing in another building that there was a hotel business being conducted by the family in yet another building and the family residence became too crowded and therefore, he had to move into the plaint schedule building along with his widowed sister and her son since his widowed sister had no place to live in and she was also living in the family residence, before shifting along with him to the plaint schedule building. this, according to me, clearly negatives any case of sub-letting is somewhat difficult to fathom. suffice it to say that no court, trained in law could have come to the conclusion that the plaintiff landlord had established a sub-letting by the tenant on the pleading and evidence in the case justifying decree for eviction under section 11(1)(a) of the act. by entering the finding based on an incorrect premise and without understanding the effect of the evidence, a substantial error of law has been committed by the appellate court. such a finding is not binding on the second appellate even within the confines of section 100 of the code of civil procedure. thus, i am satisfied that the so called finding rendered by the lower appellate court is so unreasonable that it cannot be accepted as a final finding of fact. according to me, the decree for eviction under section 11(1)(a) of the act, is not supported by the necessary finding justifying that decree for eviction. thus, i am satisfied that a substantial error of law has. been committed by the lower appellate court. the trial court had not even considered this question as noticed by the appellate court itself. this justifies interference in second appeal. therefore, i answer the first substantial question of law by holding that the plaintiff landlord had failed to plead and prove a case of sub-letting justifying a decree for eviction under section 11(1)(a) of the act.6. the second substantial question of law that arises for consideration is whether the courts below justified in granting the decree for eviction under section 11(1)(d) of the act? the case of the landlord is that the tenant went into occupation on 1.6.2000. the rent, as per the terms of ext. 1, was to be paid in advance and had to be paid by the 10th of the month. according to the landlord in june, 2000 when the tenant went into occupation of the building the tenant had not paid any rent at all. in other words the tenant had not paid rent for june, 2000 before he entered possession. it appears tome that such a case is totally improbable. even on the terms as indicted by the latter obtained from the tenant, the rent must be paid in advance. when for the first time, the tenant occupied the building no reasonable landlord would have allowed him to occupy the building without receiving the first month's rent in advance. it must be remembered that the plaintiff landlord is an advocate by profession and he had taken care to obtain an elaborate letter from the tenant containing all the terms of the tenancy before the tenant was let into possession. there was also no other special relationship or association between the landlord and the tenant. this improbability in the case regarding the rent for the month of june, 2000 was completely ignored by the trial court and the lower appellate court. of course the case of the tenant was that he had paid the rent in cash and the landlord had received it and that he had occupied the building but the landlord had not granted him any receipt. going by the normal course of human conduct especially in the background of the fact that the landlord is an advocate, well versed in the affairs of the world, it appears to me that the tenant's case in the context of exhibit 1 is more probable and is more consistent with the normal course of human conduct. therefore, i find it difficult to agree with the trial court and the lower appellate court that the rent for the month of june, 2000 was not paid by the tenant.7. as regards the months of july and august, 2000, the case of the landlord was that the rent had not been paid. the case of the tenant was that since the landlord was not issuing receipt, he had paid the rent by way of demand drafts purchased in the name of the landlord and handed over to the landlord. the landlord denied the tender of rent by way of demand draft by the tenant. in that context the burden was on the tenant to show that the rent was in fact, tendered by the tenant by way of demand drafts. the defendant examined two employees of the concerned bank to prove the drafts were purchased by him, or his nephew in the name of the landlord in due time for the moths of july and august, 2000. the evidence clearly discloses that such drafts were purchased and that case of the tenant has not been rejected by the trial court or by the lower appellate court. but the landlord had a further case that the bank drafts were not made over to him or were never tendered to him. in the face of this plea it was for the tenant to establish that the bank drafts were handed over to the landlord and these were, in fact, en-cashed by the landlord, or the landlord was in a position to encash them, if he wanted. the tenant could not adduce any evidence to show that the bank drafts were handed over to the landlord by the tenant or on his behalf. the tenant also did not show that the drafts were, as a matter of fact encashed by the landlord. in this state of evidence or on an appreciation of the evidence on this aspect, the trial court and the lower appellate court held that the tenant had defaulted in payment of rent for the months of july and august, 2000. though 1 am somewhat skeptical about the case of the landlord on this aspect, it appears to me that i would not be justified in interfering with the finding of fact rendered by the trial court and the lower appellate court to the effect that the tenant had not proved that he had actually tendered those two bank drafts of the landlord and that he had not discharged the burden resting on him to show the payment of rent. of course, there is controversy regarding the subsequent sending of the rent by money orders. the tenant produced the money order receipts and the money order coupons containing endorsement of refusal by the landlord. but it appears to me to be not necessary to go into the aspect of the money orders and whether there has been tendering of the subsequent rent since on the terms of the section 11(1)(d) of the act, it is sufficient if the landlord established that the rent for two consecutive months lawfully payable by the tenant and due from him is in arrears by the same not having been paid within the time fixed by the contract. therefore, i find that it would not be proper in exercise of my jurisdiction under section 100 of the code of civil procedure, to interfere with the finding that the rent for the months of july and august, 2000 had not been tendered by the tenant to the landlord by handing over to him the two bank drafts purchased by the tenant or on his behalf. hence, the decree for eviction passed on that ground by the courts below becomes sustainable in law. the provision concerned does not speak of wilful default so as to justify an inquiry whether non-payment of rent was wilful. in this situation, i have to answer the second substantial question of law formulated above against the tenant and confirm the finding in that regard by the trial court and the lower appellate court. in other words the decree for eviction under section 11(1)(d) of the act has to be sustained.8. thus, even though i have vacated the decree for eviction on one of the grounds put forward in the plaint since the decree for eviction is seen justified under section 11(1)(d) of the act, i confirm the decree for eviction on that ground alone.9. thus, the second appeal is partly allowed by vacating the decree for eviction under section 11(1)(a) of the act and partly dismissed by affirming the decree for eviction under section 11(1)(d) of the act. in the circumstances of the case, i direct the par ties to suffer their respective costs in all the courts.