{"id":94419,"date":"2006-05-24T00:00:00","date_gmt":"2006-05-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gurubachan-singh-and-anr-vs-ram-niwas-on-24-may-2006"},"modified":"2017-08-27T13:24:36","modified_gmt":"2017-08-27T07:54:36","slug":"gurubachan-singh-and-anr-vs-ram-niwas-on-24-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gurubachan-singh-and-anr-vs-ram-niwas-on-24-may-2006","title":{"rendered":"Gurubachan Singh And Anr vs Ram Niwas on 24 May, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gurubachan Singh And Anr vs Ram Niwas on 24 May, 2006<\/div>\n
Author: D A Lakshmanan<\/div>\n
Bench: Dr. Ar. Lakshmanan, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  3536 of 2004\n\nPETITIONER:\nGURUBACHAN SINGH AND ANR.\n\nRESPONDENT:\nRAM NIWAS\n\nDATE OF JUDGMENT: 24\/05\/2006\n\nBENCH:\nDR. AR. LAKSHMANAN & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
DR. AR. LAKSHMANAN, J. :\n<\/p>\n
The unsuccessful tenants are the Appellants before us in this appeal. The
\nRespondent is the landlord. The premises in question is situated at Station
\nRoad, Ajmer, Rajasthan on a monthly rent of Rs. 300.\n<\/p>\n
The Respondent\/Plaintiff filed a suit for eviction of the tenants on the
\ngrounds of default in payment of rent and for change of user and
\nsubletting. It was alleged that the tenants committed default in payment of
\nrent for more than six months. It has further been averred that the tenants
\nhave sublet the premises to Rajasthan Tourism Development Corporation (in
\nshort “RIDC”) for running a Beer shop at a rent of Rs. 2100\/- per month
\nwithout taking prior permission of the landlord.\n<\/p>\n
The Appellants filed written statement denying the allegations made in the
\nplaint. The Appellants contended that they had not committed any default in
\npayment of rent and the same has been deposited in the Court. It was stated
\nthat the Respondent-Landlord refused to accept the rent. The same was sent
\nby money order which was also not accepted. Being left with no other
\nchoice, the tenants deposited the said rent in Court under Section 19A of
\nthe Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (in short
\n“the Act”). It has also been specifically stated that the premises in
\nquestion was given to RTDC only for a period of 20 days as the RTDC’S shop
\nwas under construction and renovation.\n<\/p>\n
During the pendency of the Suit rent came to be determined under the
\nprovisions of Section 13(3) of the Act. The counsel for the Respondent-
\nLandlord admitted the deposit of rent from 1.4.1991 to 31.12.1994. i.e. for
\na period of 32 months at the rate of Rs. 300 per month under Section 19A of
\nthe Act. Therefore, it is submitted that there is no dispute regarding
\ndeposit of the rent in the Court.\n<\/p>\n
The Trial Court decreed the suit in favour of the landlord on the ground of
\ndefault in payment of rent and subletting. The landlord did not press the
\nground of change of user. The tenants aggrieved by the above order of the
\nTrial Court, filed an Appeal before the Additional District Judge in Civil
\nAppeal No. 115\/1997. The Appellate Court dismissed the Appeal and observed
\nthat the deposit made under Section 19A of the Act was not a valid deposit.
\nThe Appellate Court also affirmed the finding of the Trial Court on the
\nground of subletting.\n<\/p>\n
Being aggrieved by the order of the First Appellate Court, the tenants
\nfiled a Second Appeal before the High Court being S.B. Civil Second Appeal
\nNo. 234\/1998. The High Court admitted the Appeal and framed the necessary
\nsubstantial questions of law. The High Court by its Judgment dated
\n26.8.2003 dismissed the Second Appeal filed by the tenants. Being
\naggrieved, the tenants have filed the above Appeal before this Court by way
\nof Special Leave. Notice was ordered on the Special Leave Petition on
\n21.11.2003 and interim stay of the operation of the High Court’s order was
\nalso granted on the same date. The interim order was also continued on
\n26.4.2004 pending further orders subject to the condition that the arrears
\nof rent shall be deposited to the credit of the proceedings before the
\ntrial Court within six weeks from that date. On 6.7.2004, leave was granted
\nand the stay was ordered to continue. At the request of both the parties,
\nthis Court passed an order on 20th March, 2006 and posted the Appeal for
\nhearing finally during the summer vacation.\n<\/p>\n
We have heard Mr. Sushil Kumar Jain, the learned counsel for the
\nAppellants-tenants and Mr. K.S. Bhati, the learned counsel for the
\nRespondent-Landlord. Mr. Jain took us through the entire pleadings and the
\norders passed by all the three courts. So far as the eviction on the ground
\nof deposit of rent in the Court is concerned, Mr. Jain submitted that when
\nthe tenants had deposited the rent by resorting to the provisions of
\nSection 19A of the Act after permission of the Court, there is presumption
\nof compliance of the provisions of Section 19A of the Act and, therefore,
\nthe Courts below were not justified in holding that the deposit under
\nSection 19A of the Act was not legal as the tenants did not follow the
\nproceedings of money order. According to Mr. Jain once the rent has been
\ndeposited in Court after due permission of the Court, there is presumption
\nof compliance under Section 114E of the Evidence Act. He further contends
\nthat the present case is not a case of rent default and that the deposit of
\nrent in the Court under Section 19A of the Act and the admission of the
\nLandlord for determination of the rent under Section 13(3) of the Act that
\nthe amount of rent had already been deposited in the Court from 1.4.1991 to
\n31.12.1994 at the rate of Rs. 300 per month, the Appellants are entitled
\nfor the benefit of Section 13 sub-clauses (3), (4) and (6) of the Act. He
\nfurther submitted that under the provisions of Section 13 of the Act, a
\ndecree for eviction cannot be passed against the tenants when they were
\nalways ready and willing to pay rent and have deposited the rent in the
\nCourt prior to the filing of the suit.\n<\/p>\n
Insofar as the eviction on the ground of subletting is concerned, Mr. Jain
\nsubmitted that the tenants had sublet the premises to the RTDC when the
\npremises had been given only for a period of 20 days to accommodate them as
\ntheir shop was under reconstruction and renovation and, therefore, when the
\ntenants had not sublet the premises to the RTDC and permitted them to have
\nexclusive possession of the shop, there cannot be any subletting. Mr. K.S.
\nBhati, the learned counsel appearing for the landlord submitted that the
\ncontentions put forward by Mr. Jain have absolutely no merit and that all
\nthe three courts have concurrently found that the tenants have willfully
\ndefaulted in the payment of rent and also sublet the premises, though
\ntemporarily, for a period of four months and collected a sum of Rs. 2100\/-
\nper month. Mr. Bhati also invited our attention to the categorie findings
\nrendered by the High Court.\n<\/p>\n
The provisions of clause (e) of sub-section (1) of Section 13 of the Act
\nread as under :\n<\/p>\n
13. Eviction of tenants, – (1) Notwithstanding anything contained in any
\nlaw or contract, no Court shall pass any decree or make any order, in
\nfavour of a landlord, whether in execution of a decree or otherwise,
\nevicting the tenant so long as he is ready and willing to pay rent therefor
\nto the full extent allowable by this Act, unless it is satisfied.\n<\/p>\n
(a)\tthat the tenant has assigned, sub-let or otherwise parted with the
\npossession of, the whole or any part of the premises without the permission
\nof the landlord; or”\n<\/p>\n
The High Court on a consideration of the evidence tendered by the parties
\nherein came to the conclusion that the tenant had clearly sublet the three
\nshops to RTDC for a period of four months and received Rs. 2100 as rent
\nfrom RTDC. The Court also held that there are concurrent findings that the
\npossession of the suit shop was with RTDC to carry on the business of Beer
\nshop and during that period tenants had no control whatsoever over the suit
\nshop. It was also further held that there is no evidence to show that the
\ntenants were continuing in possession of the suit shop during that period.
\nTherefore, the High Court has concluded that the use of the said shop for a
\nperiod of four months by RTDC on payment of Rs. 2100\/- as rent, certainly
\namounts to subletting within the meaning of clause (e) of sub-section (1)
\nof Section 13 of the Act.\n<\/p>\n
Section 13 sub-clause (1), (e) deals with subletting, The said Section says
\nthat if the tenant has assigned, sub-let or otherwise partied with the
\npossession of, the wholly or any part of the premises without the
\npermission of the landlord, the tenant is liable to be evidence from the
\npremises. In the instant case it has been clearly established by the
\nevidence of the Senior Officer Assistant in RTDC from 1982. It is his
\nevidence that RTDC had taken the disputed shop on rent from 11.4.1991 on
\ntemporary basis because in the shop in front of KEM, the repair work was
\ngoing on. He further stated that RTDC remained in possession for four
\nmonths on payment of rent.\n<\/p>\n
He further deposed that RTDC had given the rent of Rs. 2100\/- per month of
\nthe disputed shop from 11.4.1991 to 15.8.1991 and the rent was paid to
\nGurbachan Singh, the tenant. In the cross-examination nothing has been
\nelicited to discredit his testimony and to disprove their case with regard
\nto subletting and the receipt of the rent.\n<\/p>\n
The learned counsel for the tenants has cited Delhi Stationers and Printers
\nv. Rajendra Kumar,<\/a> [1990] 2 SCC 331. This is also a case of subletting. In
\nthis case, this Court had held that mere user of the tenant-appellant’s
\nkitchen and latrine by the co-tenant who was residing in the portion let
\nout to him by the respondent-landlord cannot mean that the appellant had
\ntransferred the exclusive right to enjoy the kitchen and latrine and had
\nparted with the legal possession of the said part of the premises in favour
\nof the co-tenant. This judgment, in our opinion, has no application to the
\ncase on hand. In the above case, the tenant has permitted to use the
\nkitchen and latrine on a temporary basis. He has not transferred the
\nexclusive right to enjoy the kitchen and latrine. He had also not parted
\nwith the legal possession of the part of the premises in his possession and
\ncollected any amount by way of rent. This case, therefore, is
\ndistinguishable on facts and law.\n<\/p>\n
Mr. Jain has also cited the case of Dev Kumar v. Swaran Lata,<\/a> [1996] 1 SCC
\n25 at Page 30 (Pragraph 9), which reads thus :\n<\/p>\n
\t“9. Coming to the second question the expression `sub-letting’ has
\n\tnot been defined in the Act. The conclusion on the question of sub-
\n\tletting is a conclusion on a question of law derived from the
\n\tfindings on the materials on record as to the transfer of exclusive
\n\tpossession and as to the said transfer of possession being for
\n\tconsideration. As to what is the true meaning of the expression
\n\t“sub-letting”, this Court considered the same in the case of
\n\tJagdish Prasad v. Angoori Devi, [1984] SCC 590 in an eviction
\n\tproceeding under U.P. Urban Buildings (Regulation of Letting, Rent
\n\tand Eviction) Act. The Court held that merely from the presence of
\n\tthe person other than the tenant in the shop, sub-letting cannot be
\n\tpresumed and as long as control over the premises is kept by the
\n\ttenant and the business run in the premises is of the tenant, sub-
\n\tletting flowing from the presence of the person other than the
\n\ttenant in the shop cannot be assumed. It was further held that in
\n\tan application for eviction of a tenant from a shop which is based
\n\ton the allegations that the premises has been sub-let, the
\n\tallegation has to be proved. The question of sub-letting was
\n\tconsidered by this Court in the case of Shalimar Tar Products Ltd.
\n\tv. H.C. Sharma,<\/a> [1988] 1 SCC 70 and it was held that in order to
\n\tconstrue sub-letting there must be parting of legal possession of
\n\tthe lessee and parting of legal possession means “possession with
\n\tthe right to include and also right to exclude others”.\n<\/p>\n
It is seen from the above paragraph that subletting cannot be presumed as
\nlong as control over the premises is kept by the tenant and the business
\nrun in the premises is of the tenant. This Judgment also says that in an
\napplication for eviction of a tenant from a shop which is based on the
\nallegations that the premises has been sublet, the allegation has to be
\nproved. As already noted in the instant case, the allegation of subletting
\nhas been clearly established by the evidence of the employee of the RTDC
\nand also by payment of rent. This Judgment is also of no assistance to the
\nAppellants.\n<\/p>\n
Reliance has also been placed on the case of Gappulal v. Shriji
\nDwarkadheeshji, AIR (1969) SC 1291. This case also deals with the Rajasthan
\nPremises (Control of Rent and Eviction) Act (17 of 1950). Section 13(1)(e)
\nwas also considered by this Court in the said Judgment. This Judgment held
\nthat in the event of subletting without permission of landlord, eviction is
\nthe only proper remedy and that the subletting of the premises whether
\nbefore or after the commencement of the Act, is immaterial. If the tenant
\nhas sublet the premises without the permission of the landlord either
\nbefore or after the coming into the force of the Act, he is not protected
\nfrom eviction under Section 13(1)(e) of the Act and it matters not that he
\nhad right to sublet the premises under Section 108(j) of the Transfer of
\nProperty Act. In this case also, the Landlord has established the ground of
\neviction under Section 13(1)(e) with regard to the two shops on the
\nnorthern side of the staircase of the temple. This Court on a consideration
\nof the Section 13(1)(e) of the Act and of the evidence came to the
\nconclusion that the landlord is entitled to a decree for ejectment of the
\ntenant from the two shops. This Court also held that the concurrent
\nfindings of fact cannot be interfered with in a Second Appeal.\n<\/p>\n
In the case of Jagdish Prasad v. Angoori Devi, [1984] 2 SCC 590, this Court
\nhas held as under :\n<\/p>\n
“(1) It is only when a person other than the tenant sits in the shop in
\nexercise of his own right that the presumption of subletting can arise. As
\nlong as control over the premises is kept by the tenant and the business
\nrun in the premises is of the tenant, subletting flowing from the presence
\nof a person other than the tenant in the shop cannot be assumed. The Act
\ndoes not require the Court to assume a subtenancy merely from the fact of
\npresence of an outsider. The allegation that the premises has been sublet
\nto a person has to be proved as a fact by the landlord and merely on the
\nbasis of a photograph showing presence of that person or his son within the
\npremises, subletting cannot be presumed.”\n<\/p>\n
Reliance has also been placed on the case of Shalimar Tar Products Ltd. v.
\nH.C. Sharma,<\/a> [1988] 1 SCC 70. This is also a case of subletting. In this
\ncase, this Court has dealt with the provisions of Section 14(1) proviso (b)
\nand 16(2) and (3) of the Delhi Rent Control Act. The question posed before
\nthis Court for consideration was whether there was a subletting and whether
\nfor that written consent of landlord has been obtained. This Court held
\nthat concurrent findings of fact on those questions of Tribunal and High
\nCourt would normally be accepted by Supreme Court in Appeal under Article
\n136 of the Constitution of India. This Court also held that the tenant has
\nno right to sublet a portion of the premises without written consent of the
\nlandlord in contravention of the lease deed. Since the premises was let out
\nwithout the written permission of the landlord, this court held that the
\nlandlord is entitled to eviction decree.\n<\/p>\n
Reliance has also been placed on the case of Dipak Banerjee v. Lilabati
\nChakraborty,<\/a> [1987] 4 SCC 161. This is yet another instance of subletting
\nunder the provisions of the West Bengal Premises Tenancy Act, 1956 and
\nSection 13(1)(a) of the said Act. This Court has categorically held that
\nperson alleged to be a subtenant must be shown to be in exclusive
\npossession of the premises over which the main tenant has no control. This
\nCourt also held that the ingredient to prove the tenancy or subtenancy is
\nthat the right to occupy the premises must be in lieu of payment of some
\ncompensation or rent. In the present case, there was clear evidence as to
\nthe subletting and also the receipt of the rent by the tenant from the sub-
\nlessee.\n<\/p>\n
For the foregoing reasons, we are of the opinion that there is absolutely
\nno warrant to interfere with the concurrent findings of the three courts.
\nHowever, we leave open the first question argued by Mr. Jain on the
\ninterpretation of Section 13(3), (4) and (6) to be decided in an
\nappropriate case and Section 19A of the Act.\n<\/p>\n
Mr. Jain in the alternative prayed for some reasonable time to vacate the
\npremises and handover peaceful vacant possession to the landlord. It is not
\nin dispute that the tenants are in occupation of the shop in question from
\nthe year 1970. The tenants have also deposited the rent in the Court as
\nordered by this Court. Considering the long occupation of the premises in
\nquestion, we are of the view that a reasonable time should be given to the
\ntenants so that they will be in a position to collect all the dues due to
\nthem by third parties. Time is also to be given to enable them to find out
\na suitable accommodation. We, therefore, grant nine months’ time to the
\ntenants to vacate the premises and handover peaceful vacant possession by
\nthe end of February, 2007. The tenants shall now pay a sum of Rs. 1500\/-
\nnot by way of rent but by way of compensation for use and occupation
\nwithout any default from 1.6.2006 to end of February, 2007 on or before
\n15th of every succeeding month. The tenants shall file and undertaking in
\nthis Court within a period of three weeks from today. We also make it clear
\nthat the tenants shall not sublet the premises to any other third party
\nduring this period and shall handover peaceful possession to the landlord
\non or before 1st March, 2007.\n<\/p>\n
The Civil appeal is disposed of accordingly. No costs.\n<\/p>\n
The landlord is at liberty to withdraw the rent already deposited as per
\nthe orders of this Court without furnishing any security and if there is
\nany arrear of rent, the Appellants shall pay the same within four weeks
\nfrom today.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gurubachan Singh And Anr vs Ram Niwas on 24 May, 2006 Author: D A Lakshmanan Bench: Dr. Ar. Lakshmanan, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 3536 of 2004 PETITIONER: GURUBACHAN SINGH AND ANR. RESPONDENT: RAM NIWAS DATE OF JUDGMENT: 24\/05\/2006 BENCH: DR. AR. LAKSHMANAN & LOKESHWAR SINGH PANTA JUDGMENT: JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-94419","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGurubachan Singh And Anr vs Ram Niwas on 24 May, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gurubachan-singh-and-anr-vs-ram-niwas-on-24-may-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gurubachan Singh And Anr vs Ram Niwas on 24 May, 2006 - 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