Mohan Lal Sood and ors. Vs. Vinod Dogra and ors. - Court Judgment

Excerpt:
tenancy - eviction - sub- letting - h.p. urban rent control act, 1987 - present revision petition filed by petitioners against order whereby order of eviction passed against respondent on ground of sub letting, by rent controller was set aside - whether sub letting of suit premises by petitioner stood proved - held, two things which are required to be proved are that firstly, tenant has transferred his rights after commencement of act, without written consent of landlord and secondly, that he has parted with possession of any portion of tenanted premises - from evidence led by parties, it is clear that there is no evidence to show that possession was parted with by original tenant/respondent no.1 in favour of respondent nos. 2 and 3, since there is no separate entrance for shop or a separate cabin for photo copier being run by respondent nos. 2 and 3, who are not strangers, but are related to respondent no. 1 - since petitioners had failed to prove that respondent no. 1 has parted with possession in any manner of tenanted premises or part of it, findings of first appellate court holding that petitioners have failed to prove plea of sub-tenancy, do not call for an interference by this court in exercising its revisional jurisdiction - therefore, no merit in present revision and so, same is dismissed accordingly - code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.v.k. ahuja, j.1. this is a civil revision petition filed by the petitioners under section 24(5) of the h.p. urban rent control act, 1987, hereinafter referred to as 'rent act', against the order passed by the learned appellate authority-i, dated 1.4.2003, vide which the appeal filed by the petitioners against the order dated 28.4.2001 of rent controller, kangra at dharamshala, ordering the eviction of the respondents was allowed and the order of eviction passed by the rent controller was set aside.2. briefly stated, the facts of the case are that the petitioners as landlords filed a petition for eviction of the respondents/tenants from the disputed premises consisting of a shop in question, which was rented out to the respondents. it was alleged that the shop was originally rented out to one badri nath on 3.9.1948 at rental of rs. 45/- per month, which was subsequently enhanced to rs. 75/- per month with effect from 1985. in 1956, the said badri nath shifted and handed over possession of the shop to his brother-in-law hans raj. the said badri nath died in the year 1984 and hans raj also died in the year 1989. after the death of hans raj, the shop was occupied by respondent no. 1 as tenant. the eviction of the respondent was sought on the grounds of arrears of rent, that he has sublet the premises to respondents no. 2 and 3, that the nature and utility of the shop has been materially impaired since respondent no. 3 has placed one photostat machine in a portion of the shop and lastly, on the ground that the premises are required bonafide for use of the petitioners, since his son is to start practice as ayurvedic doctor.3. the respondents denied these allegations in regard to nonpayment of rent etc. on the plea of sub-letting, it was denied that the premises have been sub-let to respondents no. 2 and 3 by respondent no. 1.4. the petition was tried by the learned rent controller, who allowed the same on the ground of arrears of rent and on the ground of sub-letting. on appeal, the learned appellate authority(i) observed that the rent has been paid in full by the respondents and accordingly, it considered the findings of the learned rent controller in regard to subletting and allowed the appeal holding that the premises have not been sub-let and order of eviction passed by the rent controller was set aside.5. the present revision petition is confined to the findings of the learned first appellate court in regard to sub-letting, whether it stood proved as held by the learned rent controller or the petitioners had failed to prove that the premises were sub-let as held by the learned appellate authority.6. i have heard the learned counsel for the parties and have gone through the record of the case.7. the submissions made by the learned counsel for the petitioners/appellants were that respondents no. 2 and 3 cannot inherit the suit property from respondent no. 1. it was also submitted that since respondents no. 2 and 3 have installed a photostat machine in the premises in question, which were earlier occupied by respondent no. 1 for running his photographic business. in regard to the consent given by one of the landlords, namely, anil kumar sood, petitioner no. 4, it was submitted that at that time alleged permission was given vide ext. pw2/a. he was not owner of the premises in question and as such, the said consent letter relied upon by the learned appellate court does not substantiate the case of the tenants. thus, it was submitted that the findings of learned appellate court to the contrary are liable to be set aside.8. on the other hand, the learned counsel for the respondents submitted that two things were required to be proved by the landlords, firstly, that the premises have been sub-let to sub-tenant without the written consent of the landlord and secondly, there has been parting of possession in favour of the sub-tenant, even though it may be partly. it was further submitted that there were no pleadings of the landlords that the premises have been sub-let without their written permission and there is the alleged permission given by one of the landlords which has been proved in evidence also. it was submitted that the said landlord may not be the owner of the premises in question. it was further submitted that there is no proof of parting of possession since there is no separate entry for the shop or portion of it, which is being used allegedly for running a photostat machine. thus, it was submitted that the findings of the learned first appellate court, which are based upon correct appreciation of facts and law, call for no interference by this court.9. on appraisal of the 'rent act', it is clear that the ground of eviction of the tenant is available under section 14(2)(ii)(a) of the act, which reads as under:2 (ii) that the tenant has after the commencement of this act without the written consent of the land lord -(a) transferred his rights under the lease or sublet the entire building or rented land or any portion thereof, or10. it is, therefore, clear that the two things which are required to be proved are that firstly, the tenant has transferred his rights after the commencement of this act without written consent of the landlord and secondly, that he has parted with possession of any portion of the tenanted premises. thus, it has to be alleged and proved that transfer has been effected by the tenant in favour of sub-tenant exclusively and he has parted with the possession of the remises or part of it and this has been done after commencement of the act without the written consent of the landlord. a perusal of the amended petition filed by the petitioner of para-18 shows that the second ground was taken that respondent no. 1 has further sub-let the portion of the premises to respondents no. 2 and 3. however, there were no allegations made in the petition that this has been done by respondent no. 1 without the written consent of the landlord after coming into force of the act and as such, the allegations in this regard were silent and no such pleadings were there, which were necessary as per the requirement of the provisions mentioned above. coming to the evidence of petitioners, pw-6 krishan lal, petitioner no. 3, has simply stated in regard to the sub-tenancy created in favour of the respondents, who were allegedly not related to respondent no. 1, but he did not state that sub-tenancy was created without the consent of any of the landlords. thus, he was silent in regard to these allegations of written consent.11. however, coming to the evidence, this fact stands established as has been discussed by the learned appellate court also that respondent no. 2 was brother of respondent no. 1 and respondent no. 3 was the son of respondent no. 2. therefore, they are not strangers to the original tenant/respondent no. 1. it is not the case of pw-6 krishan lal that respondent no. 1 has stopped doing the work of photography in the premises in question. he also stated that he has no knowledge and again stated that it is fact that no separate cabin has been made in the shop where photostat machine has been installed. there is nothing in the statements of any of the witnesses that there is any separate entrance for the portion where photostat machine is being run. neither there were any allegations nor any proof that respondents no. 2 and 3 are also paying rent or compensation to respondent no. 1 for the use of part of the premises for running a photostat machine.12. the petitioners had also proved ext. pw2/a, which shows that some loan was taken by the original tenant vinod dogra from the bank and the consent was allegedly given by owner anil kumar sood, petitioner no. 4. on the strength of this document, it was sought to be proved by the petitioners that since loan has been taken by respondent no. 2 who was not the original tenant and it suggests that the possession has been parted with by the tenants. it was also sought to be argued that according to the testimony of pw-6 krishan lal, petitioner, his father died on 16.12.1994 and this document is dated 31.1.1991, which shows that petitioner no. 4 was not a owner and, therefore, this does not amount to any written consent having been given by the owners.13. in regard to the first submission that the loan was applied by respondent no. 2, this fact stands established that he has started the business of photo copier in the shop and it is not disputed that it was started in the shop in question. however, this does not prove that the original tenant has parted with the possession in favour of sub-tenant. moreover, in regard to the second plea that petitioner was not the owner on the date, in case he was not a owner what was the occasion for the tenant to get the signatures of petitioner no. 4 on his loan application, which was signed by petitioner no. 4 as a owner. this application was submitted by the tenant who had also taken the signature of owner for obtaining the loan, which clearly suggests that this fact was within the knowledge of respondent no. 2 that anil kumar sood was one of the owners and on that date, he may not be a owner since his father was alive, but he was not a stranger and being a son of the original owner, he can be a landlord. he also can be said to be one of the landlords, in case, he had been dealing with the said property. his right to sign the document as owner was not disputed by respondent no. 2, who had rather taken his signatures to obtain the loan, though this document does not amount to written permission having been given by the landlord, but this document can be used by the respondents that the photostat machine was installed with the consent of one of the landlord.14. from which ever angle, the evidence led by the parties is seen, it is clear that there is no evidence to show that the possession was parted with by the original tenant in favour of respondents no. 2 and 3, since there is no separate entrance for the shop or a separate cabin for the photo copier being run by respondents no. 2 and 3, who are not strangers, but are related to respondent no. 1. i need not refer to the evidence in this regard again, since these facts stand established from the evidence as discussed by the learned appellate court and has not been disputed by the petitioners to be incorrect.15. learned counsel for the respondents to substantiate his plea that there was no parting of possession has relied upon the decision of this court in dr. pushap lata sharma and ors. v. smt. ramesh kumari 2000(2) s.l.j. 1692, wherein it was observed by the then hon'ble chief justice c.k. thakker, that the landlord must prove that the tenant has parted with exclusive possession of the demised premises in favour of the stranger and that he had not retained possessory right or control over the demised premises. it was further observed that once the landlord is able to establish that fact, it is open to a court or rent controller to draw an inference that such parting of possession by the tenant in favour of a stranger is with valuable consideration. it is then for the tenant to rebut the said presumption by leading evidence and by showing to the court or the rent controller that there is no sub-letting and the case does not fall within the mischief of the relevant provisions of law.16. the above decision clearly applies to the present facts and since the petitioners had failed to prove that respondent no. 1 has parted with possession in any manner of the tenanted premises or the part of it, the findings of learned first appellate court holding that the petitioners have failed to prove the plea of sub-tenancy, do not call for an interference by this court in exercising its revisional jurisdiction.17. in view of the above discussion, it follows that there is no merit in the revision petition filed by the petitioners, which is dismissed accordingly. however, the parties are left to bear their own costs.