ORDER
M. Karpagavinayagam, J.
1. R. Nagarathinam Ammal, landlady of the petition premises, filed a petition for eviction against the first respondent, namely, M.Raja @ Govindaraj, who is the tenant, and the second respondent, namely, S.Shanmugam, who is the sub-tenant, on the grounds of owner’s occupation and subletting. The learned Rent Controller, holding that the ground of subletting has been proved, ordered for eviction of the respondents, by an order dated 28.06.2002. Aggrieved over the same, the respondents filed an appeal before the Rent Control Appellate Authority, which, in turn, allowed their appeal and set aside the order of eviction, passed by the learned Rent Controller. Hence, this Civil Revision Petition, by the landlady.
2. According to the petitioner/landlady, the petition premises was let out in the year 1980 to Raja @ Govindaraj, first respondent herein, on the condition that there should not be any subletting without her permission; despite that, the petition premises was leased out to the second respondent/sub-tenant, without her permission; notice was issued to both the respondents; the first respondent sent a reply, denying the allegation and the second respondent did not choose to receive the notice and the same was returned, as ‘not claimed’; since the petition premises was required for owner’s occupation to allow her grandson to run business, an eviction petition was filed, both on the grounds of owner’s occupation and subletting.
3. According to the respondents/tenants, the claim for owner’s occupation is not bona fide; the premises is not sublet by the first respondent to the second respondent; the second respondent is a partner of the first respondent and, as such, they are not liable to be evicted.
4. The Rent Controller, after analysing the evidence adduced by both the parties, accepting the case of the landlady, ordered for eviction in respect of subletting, even though the other ground of owner’s occupation was rejected.
5. In the appeal filed by the respondents herein, the Appellate Authority set aside the order of eviction and allowed the appeal, mainly on the ground that the aspect of subletting has not been proved and established and, as such, the petitioner/landlady is not entitled to the relief prayed for.
6. Assailing the order of the Appellate Authority, reversing the order of eviction passed by the Rent Controller, in this Civil Revision Petition, Mr. A.E.Chelliah, learned Senior Counsel for the petitioner, would mainly contend that the Appellate Authority has not applied its mind legally and when there are sufficient materials to indicate that the first respondent/tenant has sublet the premises to the second respondent and the second respondent, as a sub-tenant, is in exclusive possession and also when the respondents have not placed any documentary evidence to prove that the second respondent is a partner of the first respondent, the Appellate Authority should not have set aside the order of eviction passed by the learned Rent Controller, in the absence of any reasons to hold that the grounds, on the basis of which the eviction was ordered, are wrong.
7. In support of his contention, Mr. A.E.Chelliah, learned Senior Counsel for the petitioner, would cite the decisions, namely, 1991 (II) M.L.J.174 (Vijaya Traders, by Executive Partner V. Saradha v. C.K. Sampath and Anr.) and 1998 (3) L.W. 661 (V.T. Asokan and Anr. v. Bowjiya Begam).
8. Refuting the submissions made by the learned Senior Counsel for the petitioner, Mr. M. Venkatachalapathy, learned Senior Counsel for the respondents, justifying the order of the Appellate Authority, would cite the authorities, namely, 1997 (2) L.W.66 (S.K. Raffudin and Ors. v. N. Yeswantha Rao and Ors.); (P. Senniappan and Ors. v. Kannammal and two Ors.) and 2001 (3) CTC 618 (Bentool Steel Products Private Limited, v. O.M.A. Mohammed Omar) and contend that there is no proper pleading in the petition nor any material is placed before the authorities below to show that the second respondent is a sub-tenant under the first respondent and, as such, he is in exclusive possession, in pursuance of the sub-lease made by the tenant in favour of the sub-tenant.
9. Both the learned Senior Counsel would point out various portions of the evidence, oral and documentary, and try to establish their respective pleas.
10. I have carefully considered the submissions made by the learned Senior Counsel for the parties and gone through the records.
11. Whether the Appellate Authority is correct in holding that it is for the landlady to prove by acceptable materials through oral and documentary evidence that the first respondent, in violation of the terms of agreement of lease, subleased the petition premises in favour of the second respondent and that it is not necessary for tenant and sub-tenant to establish that there is no sub-lease ? This is the question posed before this Court in this Civil Revision Petition.
12. Let me, at the outset, quote the relevant observations made by the Supreme Court and also this Court in the judgments referred to above, cited by both the Senior Counsel :
(i) In (Smt. Rajbir Kaur and Anr. v. S. Chokesiri and Co.), the Supreme Court held as under :
If exclusive possession is established and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, as in the present case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are, in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. It is often a matter for legitimate inference.
(ii) In 1991 (II) M.L.J. 174 (Vijaya Traders, by Executive Partner V. Saradha v. C.K. Sampath and Anr.), this Court observed as follows :
Whether there is a sub-lease in favour of a sub-lessee is always a matter for inference from the evidence. The landlord cannot be expected to prove that there is a transaction of lease between the tenant and the alleged sub-lessee. The Court has to draw the necessary inference only from the evidence placed before it.
(iii) In (Dipak Banerjee v. Smt. Lilabati Chakroborty), the Supreme Court held as under :
In order to prove tenancy or sub-tenancy, two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must in lieu of payment of some compensation or rent.
(iv) In 1998 (2) Supreme 91 (Bharat Sales Ltd. v. L.I.C. of India), the Apex Court, while discussing as to how inference can be drawn regarding the payment of monetary consideration, observed as follows :
Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person into exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overtacts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property….
(v) In (Delhi Stationers and Printers v. Kaiendra Kumar, the Supreme Court held as under :
A tenant can be said to sublet the demised premises to a third party only when the tenant had permitted the third party to occupy the premises and divested himself completely of the possession of the premises or part thereof….
13. A perusal of the above judgments would indicate the following principles and guidelines, with reference to the appreciation, regarding the ground of subletting :
(1) In order to prove the tenancy or sub-tenancy, the main ingredient that has to be established is that the alleged sub-tenant is in exclusive possession of or part of the premises and the tenant retains no control over that part of the premises.
(2) A tenant can be said to sublet the demised premises to a third party only when the tenant had permitted the third party to occupy the premises and divested himself completely of the possession of the premises or part thereof. If a tenant had permitted a third party to use the premises along with him while the tenant retains legal possession, it will not amount to subletting.
(3) It is only when a person other than the tenant sits in the shop in exercise of his own right, the presumption of subletting can arise. As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, subletting flowing from the presence of a person other than the tenant in the shop cannot be assumed.
(4) If exclusive possession is established, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are, in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. It is not, unoften, a matter for legitimate inference. Though the burden of proof, as a matter of law, remains constant throughout a trial, the evidential burden, which rests initially upon a party bearing the legal burden, shifts according to the weight of the evidence adduced by the party during the trial.
(5) It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property has been sublet has paid monetary consideration to the tenant. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises was sublet.
(6) As regards the question whether there is a sub-lease in favour of the sub-tenant, it is always a matter for inference from the evidence. The landlord cannot be expected to prove that there is a transaction of lease between the tenant and the alleged sub-tenant. The Court has to draw the necessary inference only from the evidence placed before it.
14. In the light of the above principles, this Court has to analyse the facts of the present case, in order to find out whether there are materials to show that there is sub-lease by the tenant/first respondent in favour of the sub-tenant/second respondent, in violation of the lease agreement.
15. It shall be stated that the pleading contained in the petition would reveal that the petition for eviction was filed both on the grounds of owner’s occupation and the sub-lease. It is stated in para 4 of the petition that since there was a loss in the business, the first respondent/tenant has subleased the petition premises in favour of the second respondent, after getting a huge sum as pagadi. It is also stated therein that when the agent of the landlady went to the petition premises, he found the second respondent doing business and when he asked for rent, the second respondent told the agent that he is the sub-lessee and, therefore, the agent could contact the tenant and collect rent. It is also noticed from the petition that on 06.08.1999, the landlady sent notice to both the tenant and the sub-tenant, namely, the respondents, terminating the tenancy on the ground that the tenant is guilty of subletting the premises in favour of the second respondent.
16. On the above lines, evidence has been let in by P.W.1, the grandson of the petitioner/landlady.
17. According to P.W.1, originally, the tenant was running a Xerox Shop and, after some years, the second respondent/sub-tenant is running a Watch Repairing Shop. He sent notice to both the tenant and the sub-tenant on 06.08.1999. Ex.P-1 is the copy of the notice. The same was received by the first respondent/tenant and acknowledgement is Ex.P-2. The first respondent sent a reply Ex.P-4 on 28.08.1999, just denying the subletting. He did not say anything with regard to the second respondent. It is also stated by P.W.1 that the second respondent/sub-tenant refused to receive the notice and the same was returned as ‘not claimed’. The returned cover is Ex.P-3. When a suggestion had been put to P.W.1 that both the respondents 1 and 2 jointly run the Watch Repairing Shop, the same was denied by P.W.1.
18. On the other hand, on behalf of the petitioner, P.W.2 was examined to show that P.W.2 went to the petition premises for collecting rent and the second respondent was running the Watch Repairing Shop and that the second respondent told P.W.2 that already he has taken possession as sub-tenant and been paying rent to the tenant and, as such, he could collect the rent from tenant. This fact, which has been spoken to by P.W.2, has already been mentioned in Ex.P-1 notice and in the evidence of P.W.1. Interestingly, this aspect of the evidence has not been challenged in the cross-examination.
19. On the side of the respondents/tenants, first respondent alone examined himself. According to him, both the respondents are running the Watch Repairing Shop and the second respondent is a partner.
20. In this context, it is relevant to note, as indicated above, that this aspect of the defence has not been referred to in the reply, sent by the tenant. It is also relevant to note that the second respondent/sub-tenant has refused to receive the notice sent by the petitioner, by returning the same as ‘not claimed’.
21. Thus, it is clear that the plea of partnership has never been raised initially by the respondents and only when they filed counters, both of them stated in their respective counters that it is a partnership business.
22. According to R.W.1/first respondent, second respondent invested money for running the Watch Repairing Shop. However, he admits that no agreement was entered into with reference to the partnership between him and the second respondent. But, he specifically stated that licence for the Watch Repairing Shop is in his name.
23. Originally, the name of the shop was different and the present name is Sundaram Watch Repairing Shop. Even though the first respondent admits that Sundaram Watch Repairing Shop is in his name, he has not chosen to adduce any documentary evidence. To make the matter worse, the second respondent, who is alleged to be the sub-tenant, has not chosen to come to the Witness Box, to prove his defence mentioned in the counter.
24. As indicated above, this Court and the Supreme Court would say that once there is a pleading that the premises is subleased to the sub-tenant and there is a proof that possession is in the control of the sub-tenant, it is for the tenant to prove that it is not a subletting. However, the first respondent, having chosen to send reply, has failed to mention that the second respondent is not a sub-tenant and he is a partner. Similarly, the second respondent also has not chosen to inform the landlady that he is not the sub-tenant and he is a partner. That apart, the second respondent/sub-tenant has not come to the Court to establish his plea and both the respondents have failed to produce any document to show that it is a partnership business.
25. On the other hand, the evidence of P.Ws.1 and 2, as adduced in the eviction petition, would clearly indicate that the second respondent was contacted by P.W.2 on the instructions of the landlady, for collecting rent and, at that time, the second respondent told P.W.2 that he is running the Watch Repairing Shop as a sub-tenant and, as such, P.W.2 could contact the main tenant to collect rent.
26. On behalf of the second respondent, no challenge is made to the evidence let in by P.W.2. Therefore, it has to be inferred that the landlady/petitioner has established that there is a subletting, and, on the other hand, neither the tenant nor the sub-tenant, namely, respondents 1 and 2, have even made any attempt to disprove the same.
27. The Rent Controller, in my view, has given clear reasonings to hold that the tenant is guilty of subletting. But, the Appellate Authority, without considering the merits of the reasonings of the Rent Controller, has simply allowed the appeal, mainly on the ground that the pleading mentioned in the petition has not been proved, which is not factually correct. Yet another factual error, which has been committed by the Appellate Authority, is that the said Authority has observed that no steps have been taken on the side of the landlady, to seek for appointment of Commissioner, to visit the petition premises, with reference to subletting. In fact, such an application was filed on behalf of the landlady and the same was dismissed by the Rent Controller, holding that the same could be proved by producing the materials before the Court at the time of trial.
28. The above discussion would result in the following conclusions :
(1) There is no dispute in the fact that the tenant/first respondent was put in possession of the premises by the landlady on condition that there should not be subletting without permission. Admittedly, no permission was sought for and granted.
(2) Through the evidence of P.Ws.1 and 2, who are examined on behalf of the landlady, it is clear that in the notice sent by the landlady to the tenant and the sub-tenant/respondents, intimating the termination of the tenancy on the ground of subletting, the address of the second respondent/sub-tenant is the petition premises. The notice was, admittedly, returned as ‘not claimed’. Though the first respondent/tenant received the notice, wherein it is specifically mentioned about the running of the Watch Repairing business by the second respondent as sub-tenant, the first respondent, in his reply, never stated that the Watch Repairing Shop is run by him and the second respondent is not a sub-tenant but is a partner.
(3) Through the evidence of P.W.2, it has been established by the landlady that the second respondent, as sub-tenant, is in exclusive possession of the premises and when P.W.2 contacted the sub-tenant, he, in turn, told P.W.2 that he could contact the tenant for collection of rent as he is the sub-tenant, which gave rise to the cause of action for issuance of notice.
(4) When it is deposed by P.W.2 that a person, other than the tenant, is sitting in the shop and running the business in exercise of his own right, naturally, the presumption of subletting would arise.
(5) It is a settled law that if exclusive possession by the sub-tenant, as spoken to by P.W.2, which has been mentioned in Ex.P-1, the earliest document/notice, is established, it is permissible for the Court to draw an inference that there is a sub-lease through the agreement entered into between the tenant and the sub-tenant for monetary consideration. Of course, it is open to the respondents, namely, tenant or alleged sub-tenant, to rebut the same. It is to be stated that such transactions of subletting are only clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. But, in this case, admittedly, there is no whisper about the defence relating to the partnership by the respondents in the reply to the notice and, for the first time, only in the counter, they pleaded that it is a partnership concern and the second respondent is one of the partners. Except the statement in the counter, no other evidence had been adduced either by the tenant or by the sub-tenant, to rebut the presumption, which is raised in this case in favour of the landlady. Further, the sub-tenant/second respondent, even though filed a separate counter, has not chosen to examine himself as one of the witnesses on the side of the respondents. In addition, R.W.1/tenant, though admitted that there are records to show that both the respondents are partners in the Watch Repairing Shop, had not produced any document to that effect.
(6) The above aspects have not been taken into consideration by the Appellate Authority. Therefore, I am of the view that the Appellate Authority has committed a grave illegality in brushing aside the vital materials referred to above, which would prove the exclusive possession of the sub-tenant, and also in not taking into consideration the fact that the tenant or the sub-tenant has not chosen to rebut the inference through oral and documentary evidence. As such, the judgment of the Rent Control Appellate Authority is set aside and the order of the Rent Controller is restored.
29. Civil Revision Petition is allowed. No costs.