PETITIONER:
JAGAN NATH (DECEASED) THROUGH L.Rs.
Vs.
RESPONDENT:
CHANDER BHAN AND OTHERS
DATE OF JUDGMENT11/05/1988
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
NATRAJAN, S. (J)
CITATION:
1988 AIR 1362 1988 SCR Supl. (1) 325
1988 SCC (3) 57 JT 1988 (2) 441
1988 SCALE (1)1079
CITATOR INFO :
RF 1990 SC1208 (4)
ACT:
Delhi Rent Control Act, 1958 Sections 14(1)(a), (b),
(2) c,. 15-Tenant-Eviction of-on ground of
subletting/Parting with possession-User of Premises by
another person is not parting with possession.
HEADNOTE:
The respondent-landlord had filed a petition against
the appellant-tenant under section 14(1)(a) and 14(1)(b) of
the Delhi Rent Control Act, 1958 for eviction from a
residential-cum-commercial premises, inter alia, on the
ground that the appellant had sublet, assigned or otherwise
parted with possession of the premises to his sons who were
running their partnership business in the name of Bindra
Tent House with which the tenant had no concern. The tenant
contested the petition on the ground that he was in
exclusive possession of the premises and was carrying on his
business therein with the help of his sons who were members
of his Joint Hindu Family.
In support of his plea that the tenant had parted with
possession, the landlord had produced documentary evidence
which included copy of a statement made by the tenant before
the Income Tax officer, which indicated that the tenant had
sold his proprietary business to his sons.
The Additional Rent Controller held that there was no
subletting by the tenant, but he had unlawfully parted with
the possession of the premises in favour of his sons and as
such was liable to be evicted.
During the pendency of the appeal the tenant sought
permission under order 6 Rule 17 of the Code of Civil
Procedure to amend his written statement to state that the
property was taken on rent by M/s Bindra Tent House. The
Tribunal did not permit this belated amendment as this would
have introduced an entirely new case. On merits, the
Tribunal dismissed the appeal of the tenant. The High Court
did not find any substantial question of law in the tenant's
second appeal and dismissed the same.
Allowing the appeal, it was,
326
^
HELD: (1) The only ground perhaps upon which the
landlord A was seeking eviction was parting with possession.
It is well-settled that parting with possession meant giving
possession to persons other than those to whom possession
had been given by the lease and the parting with possession
must have been by the tenant. User by other person is not
parting with possession so long as the tenant retains the
legal possession himself, or in other words, there must be
vesting of possession by the tenant in another person by
divesting himself not only of physical possession but also
of the right of possession. So long as the tenant retains
the right to possession there is no parting with possession
in terms of clause (b) of section 14(1) of the Act. [329G-H;
330A]
(2) Even though the father had retired from business
and the sons had been looking after the business in the
facts of this case, it cannot be said that the father had
divested himself of the legal right to be in possession.
[330B]
(3) In the instant case, if the father was carrying on
the business with his sons and the family was a joint
family, it is difficult to presume that the father had
parted with possession legally to attract the mischief of
section 14(1)(b) of the Act. [330D-E]
(4) In these days of acute shortage of accommodation
both for living and for vocation, one has to take the
reality with a pinch of salt and the manner in which the
original tenant has conducted himself in shifting his
defence would not disentitle him to the benefit of the law.
[330Gl
Subashini Mojumdar v. Krishna Prasad Mahatoo, A.I.R.
1956 Assam 79; M/s Modi Spinning and Weaving Mills Co. Ltd.
v. M/s Ladha Ram and Co., [1977] 1 SCR 728 and Smt.
Krishnawati v. Shri Hans Rai, [1974] 1 SCC 289, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1127 of
1985.
From the Judgment and order dated 29.8.84 of the Delhi
High Court in S.A.O. No. 40 of 1984.
Rajinder Sachhar and Mrs. Rani Chhabra for the
Appellants.
A.K. Ganguli and E.M.S. Anam for the Respondents.
The Judgement of the Court was delivered by
327
SABYASACHI MUKHARJI, J. This appeal by special leave is
directed against the judgement and order of the High Court
of Delhi dated 29th August, 1984. One Jagan Nath, since
deceased, was the original tenant of the premises in
question. He died during the pendency of this appeal here.
His sons have been substituted. The tenancy in question
started on 1st January, 1962. It appears that on 7th
November, 1967 notice was addressed to Shri Baldev Raj,
describing him as sole proprietor of M/s Bindra Tent House,
New Delhi, for eviction. There was an increase in rent in
July, 1970. The respondent herein filed the petition against
the appellant herein Jagan Nath under section 14(1)(a) and
14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter
called the Act) for eviction of the appellant from the
premises consisting of one room forming part of premises No.
N-80, Kirti Nagar, New Delhi, as the appellant herein had
not paid rent with effect from 1st May, 1975 till 30th
April, 1977 at the rate of Rs.75 per month despite service
of the demand notice dated 8th January, 1976. It was the
further case of the respondent herein that the appellant had
after 9th June, 1962 sublet, assigned or otherwise parted
with possession of the premises to Shri Baldev Raj Bindra
and Sat Pal Bindra without the consent in writing of the
respondent-landlord. The suit was filed before the
Additional Rent Controller and the same was contested on
various grounds. It was contended that the petition was not
maintainable because of non-joinder of Shri Baldev Raj
Bindra and Sat Pal Bindra. The premises in question is
residential-cum – commercial. It was stated that Shri Baldev
Raj Bindra and Sat Pal Bindra are the sons of the original
appellant, since deceased. The said tenant was in exclusive
possession of the premises and was carrying on his business
therein with which, it was stated, Baldev Raj and Sat Pal
had no concern. They are the sons of the tenant, since
deceased, and had constituted a Hindu Undivided Family. No
demand notice was ever served upon the tenant. The tenant
tendered the rent to the landlord by money order for an
amount of Rs.450 which he refused to accept. The Additional
Rent Controller so far as the ground of nonpayment of rent
was concerned held that there was a compliance with the
order passed under section 15(1) of the Act. The Additional
Rent Controller gave the tenant the benefit under section
14(2) of the Act. The petition of the landlord on the ground
of non-payment of rent was, therefore, dismissed.
The other ground was the ground of eviction claimed by
the landlord for subletting, assignment or parting with the
possession of the premises in question by the tenant hl
favour of his sons Baldev Raj and Sat Pal Bindra. The
landlord in his deposition had stated that since
328
1st July, 1971 Baldev Raj and Satpal were running their
business in the name of M/s. Bindra Tent House in
partnership and they were in possession of the premises in
question. The tenant had no concern with the business
carried on in the demised premises and the tenant had
retired. The tenant in his cross-examination had stated that
he had sent partnership document and Form II to the Income-
tax Department. 13 The landlord had denied the suggestion
that the said Jagan Nath was in possession of the premises
and his sons had been helping him from the very beginning.
The landlord had produced on the record one statement made
by the appellant herein, Jagan Nath before the Income Tax
officer, photostat copy of which is Exhibit A.W. 3/1 on the
record which indicated that Jagan Nath who was the
proprietor of the Bindra Tent House sold the same for
Rs.18,000 on 1.1.1970 to his sons Baldev Raj and Sat Pal and
he got cash of Rs.8,000 and he gifted the other amount into
two equal shares to his sons Baldev Raj and Sat Pal. In his
statement, Jagan Nath had stated that Sat Pal and Baldev Raj
had entered into a partnership in the same name M/s. Bindra
Tent House in the same premises. This document was heavily
relied upon before us by Shri Sachhar in aid of his
submissions that the tenant had parted with possession.
There is another document Exhibit A.W-2/1. According to
this document which is a photostat copy of the stamp vendor
register, non-judicial papers for Rs.13, Rs.2 and Rs.20 were
purchased by Baldev Raj for partnership purposes in the name
of M/s. Bindra Tent House. Our attention was also drawn to
the fact that an application for electricity connection was
made by Sat Pal Bindra in the name of M/s. Bindra Tent House
on 25th July, 1975 as the sole proprietor of the same. From
these and other documents, it was contended that there was
parting of possession and as such the tenant was liable to
be . evicted. The Additional Rent Controller ordered the
eviction under section 14(1)(b) of the Act. He held that
there was no subletting by the tenant, Jagan Nath since
deceased but he had unlawfully parted with the possession of
the demised premises in favour of his sons Sat Pal and
Baldev Raj without the consent in writing of the landlord.
During the pendency of the appeal the tenant preferred
an application under order 6 Rule 17 of the Code of Civil
Procedure seeking permission to amend his written statement.
The appellant contended that the landlord filed eviction
petition in respect of the said premises against the
appellant and his two sons which was assigned to Shri A.P.
Chaudhary, Additional Rent Controller. Another objection
raised was that the property was taken on rent by
M/s.Bindra Tent House
329
and, therefore, the petition for eviction was not
maintainable. The application had been contested in which it
had been admitted that the earlier petition for eviction was
filed but according to the respondent it was not properly
instituted and the same was withdrawn. It was denied that
the application was not maintainable. The Tribunal on an
analysis of the matter came to the conclusion that belated
amendment could not be permitted. It was emphasised that the
tenant had admitted in the written statement that he was a
tenant in the property in question. He could not
subsequently be allowed to wriggle out of this situation and
withdraw the admission. If the amendment was allowed, they
would take valuable right of the other side and altogether a
new plea would be taken, it was held. This cannot be
permitted. In this connection, the Rent Tribunal relied upon
the observations of the Assam High Court in Subashini
Majumdar and another v. Krishna Prasad Mahatoo and Ors.,
A.I.R. 1956 Assam 79. The same view was reiterated by this
Court in M/s. Modi Spinning and Weaving Mills Co. Ltd. and
another v. M/s. Ladha Ram and Co., [1977] l SCR 728 where
the proposed amendment introduced an entirely new case
seeking to displace the other side completely from the
admission made then. It was held that such an amendment
could not be allowed. We are of the opinion that the Rent
Tribunal was therefore right in refusing the amendment on
the basis of the aforesaid principle. The Tribunal on an
analysis of evidence and facts came to the conclusion that
there was no merit in the appeal and dismissed the appeal
and affirmed the eviction order.
The High Court on an analysis of the evidence and
relevant authorities came to the conclusion that there was
no substantial question of law and dismissed the second
appeal. Hence this appeal.
The question for consideration is whether the mischief
contemplated under section 14(1)(b) of the Act has been
committed as the tenant had sublet, assigned, or otherwise
parted with the possession of the whole or part of the
premises without obtaining the consent in writing of the
landlord. There is no dispute that there was no consent in
writing of the landlord in this case. There is also no
evidence that there has been any subletting or assignment.
The only ground perhaps upon which the landlord was seeking
eviction was parting with possession. It is well-settled
that parting with possession meant giving possession to
persons other than those to whom possession had been given
by the lease and the parting with possession must have been
by the tenant; user by other person is not parting with
possession so long as the tenant retains the legal
possession himself, or in other words there
330
must be vesting of possession by the tenant in another
person by divesting himself not only of physical possession
but also of the right to possession. So long as the tenant
retains the right to possession there is no parting with
possession in terms of clause (b) of section 14(1) of the
Act. Even though the father had retired from the business
and the sons had been looking after the business, in the
facts of this case, it cannot be said that the father had
divested himself of the legal right to be in possession. It
the father has a right to displace the possession of the
occupants, i.e., his sons, it cannot be said that the tenant
had parted with possession. This Court in Smt. Krishnawati
v. Shri Hans Raj, [1974] 1 SCC 289 had occasion to discuss
the same aspect of the matter. There two persons lived in a
house as husband and wife and one of them who rented the
premises, allowed the other to carry on business in a part
of it. The question was whether it amounted to sub-letting
and attracted the provisions of sub-section (4) of section
14 of the Delhi Rent Control Act. This Court held that if
two persons live together in a house as husband and wife and
one of them who owns the house allows the other to carry on
business in a part of it, it will be in the absence of any
other evidence, a rash inference to draw that the owner has
let out that part of the premises. In this case if the
father was carrying on the business with his sons and the
family was a joint Hindu family, it is difficult to presume
that the father had parted with possession legally to
attract the mischief of section 14(1)(b) of the Act.
Shri Ganguly appearing for the landlord contended that
the con duct of the tenant, Jagan Nath had been as sitting
on the fence and avoiding the issue. It is true that Shri
Ganguly rightly pointed out that Jagan Nath, the erstwhile
tenant had not been fair and frank. But this is no ground to
disentitle him to the benefit of the law if the facts have
been proved that he had not parted with possession. After
all, it has to be borne in mind that this is a residential-
cum-commercial premises. Jagan Nath was carrying on business
in part of the building with his two sons. Jagan Nath had
died, therefore, it will be just and proper to presume that
they were carrying on business, though perhaps the stand of
the Jagan Nath was not always fair. In these days of acute
shortage of accommodation both for living and for vocation,
one has to take the reality with a pinch of salt and the
manner in which Shri Jagan Nath has conducted himself would
not disentitle him the benefit of the law in the present
climate.
In the view we have taken, this appeal must be allowed
and the judgment and order of the High Court of Delhi and
the Courts below are set aside. The eviction order is
accordingly set aside.
331
It has, however, to be borne in mind that rent in these
areas has increased enormously. So while exercising our
jurisdiction under Article 136 of the Constitution, we will
enhance the rent to four times. We are told that the mesne
profit at present payable was Rs.75 per month. We direct
that mesne profit/rent should be Rs.300 per month. We
further direct that this will not prejudice the rights of
the respondent herein to file any proceedings for eviction
on the ground of bona fide need, if there is such a need or
on any other ground available to the respondent for eviction
under the Act. We give this direction in view of the facts
alleged in the affidavit of Shri Chander Bhan Mehta affirmed
on ‘6th April, 1988. About the correctness or validity of
the statements made therein, we had no occasion to examine
in this appeal. We have also taken into consideration the
affidavit of Shri Baldev Raj Bindra affirmed on the 2nd May,
1988 about the veracity of which also we express no opinion.
In the facts of this case, the appellants will pay to
the respondent the costs of the appeal.
R.S.S. Appeal allowed.
332