1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4189 OF 2007
Flora Elias Nahoum & Ors. .... Appellants
Versus
Idrish Ali Laskar …. Respondent
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal arises from the final judgment and
final order/decree dated 07.07.2005 passed by the
High Court of Calcutta in F.A. No.416 of 1984
whereby the Division Bench of the High Court
dismissed the eviction suit filed by the appellants
against the respondent and set aside the decree for
2
eviction passed by the Trial Court in their favour
and against the respondent.
2. In order to appreciate the issues involved in
this appeal, it is necessary to set out the facts in
detail herein-below.
3. The appellants are the plaintiffs (landlords)
whereas the respondent is the defendant (tenant) in
the eviction suit out of which this appeal arises.
4. The appellants (plaintiffs) are the
owners/landlords of one shop (room) bearing
premises No.1, Hartford Lane, Calcutta (hereinafter
referred to as “the suit shop”), which was originally
owned by Late Nahoum Elias and Miss Resmah
Nahoum. The present appellants are the
successors-in-interest of the suit shop. They had let
out the suit shop to one - Alfajuddin Laskar on a
monthly rent of Rs.40/-. In the suit shop,
3
Alfajuddin Laskar used to do the business of sale of
eggs under the name “24, Parganas Egg Stores”.
5. Alfajuddin Laskar expired in 1976. The
respondent being his son became the tenant of the
appellants on same terms and conditions. The
respondent, however, closed his father's business of
selling of eggs and started his tailoring business
under the name “New India Tailors” in the suit
shop.
6. In 1978, the appellants filed an Eviction Suit
against the respondent under the provisions of the
West Bengal Premises Tenancy Act, 1956
(hereinafter referred to as “the Act”. The eviction
was claimed on four grounds, viz., default in
payment of monthly rent, bona fide need,
sub-letting and lastly, making of unauthorized
construction in the suit shop by the respondent.
4
7. The respondent filed the written statement and
denied all the four grounds. Parties adduced their
evidence. The Trial Court, by order dated
30.01.1984, partly decreed the suit. It was held that
so far as the grounds relating to default of rent and
bona fide need are concerned, both are not made
out whereas the other two grounds, namely,
sub-letting and making of unauthorized
construction in the suit shop, both stood made out
against the respondent.
8. In this view of matter, the appellants’ suit was
decreed in part against the respondent and the
decree for eviction on the ground of sub-letting and
unauthorized construction made by the respondent
in the suit shop was passed. The respondent was
granted six months’ time to vacate the suit shop
and handover its vacant possession to the
appellants.
5
9. Being aggrieved by the said order, the
respondent filed appeal before the High Court at
Calcutta. The appellants, however, did not file any
cross appeal or cross-objection against that part of
the order by which two grounds, viz., default in
payment of rent and bona fide need were held not
made out. The judgment of the Trial Court thus
became final to that extent.
10. Therefore, the only question before the High
Court was whether the Trial Court was justified in
decreeing appellants’ suit on the grounds of
sub-letting and making of unauthorized
construction in the suit shop.
11. In other words, the question was whether the
Trial Court was right in holding that the ground of
sub-letting and making of unauthorized
construction in the suit shop was made out.
6
12. The High Court, by impugned judgment,
allowed the respondent’s appeal and dismissed the
appellants’ eviction suit. The High Court held that
no ground of either sub-letting or an unauthorized
construction was made out, hence, the suit was
liable to be dismissed in its entirety. It was
accordingly, dismissed.
13. Against this judgment, the landlords felt
aggrieved and filed this appeal by way of special
leave in this Court.
14. Heard Ms. Daisy Hannah, learned counsel for
the appellants and Mr. Zakiullah Khan, learned
senior counsel for the respondent.
15. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and while setting
aside of the impugned judgment, we restore that of
7
the Trial Court and, in consequence, decree the
appellants’ suit in part, as indicated below.
16. There can be no dispute to the legal
proposition that even if the landlord is able to make
out only one ground out of several grounds of the
eviction, he is entitled to seek the eviction of his
tenant from the suit premises on the basis of that
sole ground which he has made out under the Rent
Act.
17. In other words, it is not necessary for the
landlord to make out all the grounds which he has
taken in the plaint for claiming eviction of the
tenant under the Rent Act. If one ground of eviction
is held made out against the tenant, that ground is
sufficient to evict the tenant from the suit premises.
18. As mentioned above, the Trial Court held that
the appellants were able to make out two grounds
for respondent's eviction, namely, sub-letting and
8
unauthorized construction made by him in the suit
shop. The High Court, accordingly, reversed the
findings on these two grounds and dismissed the
suit.
19. We consider it proper to examine first, the
ground of sub-letting with a view to find out as to
whether the plaintiffs (appellants) were able to make
out this ground against the respondent. In other
words, let us first examine as to whether the Trial
Court was right or the High Court was right on this
issue.
20. In order to examine, whether the ground of
sub-letting is made out or not, it is necessary to see
as to how this ground was pleaded and sought to be
proved by the parties.
21. The appellants, in Para 4 of the plaint, pleaded
the case of sub-letting as under:
“4. The defendant after acquiring
right of tenancy in respect of the said shop
9
room after his father’s death, wrongfully
transferred possession of the said shop room
to one Joynal Mallick evidently for creating a
sub-tenant in his favour in respect of the suit
shop room without obtaining the permission
and consent of the plaintiffs.”
22. The respondent, in reply to Para 4 of the
plaint, gave the following reply in Para 9 of his
written statement as under:
“9. The defendant denies the
allegations made in paragraph 4 of the plaint
and in particular denies the allegations that
he has transferred possession of the shop
under his tenancy to one Joynal Mullick or
anybody as falsely alleged.”
23. It is clear from the perusal of the pleadings
that the case of the appellants was that the
respondent has sub-let and parted with possession
of the suit shop to one Joynal Mullick without
appellants’ consent.
24. So far as the respondent is concerned, he
simply denied the appellants’ case in para 9 saying
that he has not sub-let the suit shop to anyone,
10
much less to Joynal Mullick, as claimed by the
appellants.
25. The respondent examined himself as witness
No.1 and examined Joynal Mullick as witness No.2.
26. In examination-in-chief, the respondent
changed his stand and said that he has not sub-let
the suit shop to Joynal Mullick but he is in his
employment. This is what he said:
“It is not a fact that I sublet the shop room
in suit to one Jainal Mullick. Jainal Mullick
is in my employment.”
27. The respondent further in his
cross-examination again changed his stand and in
answer to a specific question put to him as to
whether he has employed any person in his tailoring
business said "no". This was his reply:-
“No. In the tailoring business I have no
employee but the work is done on contract
basis.”
11
28. The respondent then in answer to another
question put to him as to how many persons work
for you on contract basis in his tailoring business,
his reply was- four persons and out of four, Joynal
Mullick and Jahangir Mullick were his employees.
This is what he said:-
“Najrul Islam and Sayed, Volunteers – Besides
these persons there are two other persons
who look after the business in my absence.
They are Jainal Mullick and Zahangir Mullick
volunteers. These two persons are my
employee.”
29. The respondent then was asked another
question, viz., Did he disclose the name of any of his
employee while submitting the declaration form
under the Shops and Establishment Act, his reply
was “no”. This is what he said:-
“I am the owner of the tailoring shop.
Volunteers – fresh declaration has been
submitted about 10/12 days back. In that
declaration I have not declared that these
two persons Jainal and Zahangir are my
employees.”
12
30. The respondent was then asked last pointed
question - whether Joynal Mullick is doing business
in the suit shop. To this, his reply was that Joynal
Mullick is his business partner. This is what he
said:-
“I obtained the trade license from the
Corporation of Calcutta for the business
carried in the shop showing Jainal Mullick
and Zahangir Mullick as my partners in the
business. It is not a fact that Jainal and
Zahangir are not my employees.”
31. Joynal Mullick then in his evidence said that
he is an employee of the respondent for the last 7/8
years and whatever the respondent (his owner) tells
him to do, he does it while sitting in the suit shop.
He stated that, in his presence, the respondent had
constructed "Macha" in the suit shop. He said that
he joined the business under the name "New India
Tailor".
32. Keeping in view the statements of the
respondent and Joynal Mullick, the question arises
13
as to whether a case of sub-letting and parting of
possession of the suit shop in favour of Joynal
Mullick, whether whole or in part, is made out.
33. Section 13(1)(a) of the Act deals with the
ground of sub-letting and provides that where the
tenant or any person residing in the premises let to
the tenant without the previous consent in writing
of the landlord transfers, assigns or sublets in
whole or in part the premises held by him, then it is
a ground for the tenant’s eviction from the tenanted
premises.
34. In our considered opinion, keeping in view the
pleadings and the nature of the evidence adduced
by the parties, the ground of sub-letting, as
contemplated under Section 13(a) ibid, is made out.
This we say for the following reasons.
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35. In the first place, we find that the respondent
(tenant), since inception, was taking inconsistent
stand on the question of sub-letting.
36. To begin with, he denied having sub-let the
suit shop to anyone in his written statement. Then,
contrary to what he alleged in the written
statement, he said in his examination-in-chief that
Joynal Mullick was his employee. Then, again
contrary to this statement, he said, in next breath,
that Joynal Mullick is his partner in tailoring
business.
37. So far as Joynal Mullick is concerned, he
admitted that he has been sitting in the suit shop
for the last 7/8 years but he has been sitting in a
capacity as an “employee” of the respondent.
38. In our opinion, the contradictory stand of the
respondent and that too without any evidence
clearly leads to an inference that the respondent
15
was unable to prove, in categorical terms, as to
which capacity, Joynal Mullick was sitting in the
suit shop - whether as an "employee" or a "business
partner" or in any “other capacity”.
39. It seems that the respondent was not sure as
to what stand he should take to meet the plea of
sub-letting. He, therefore, went on changing his
stand one after the other and could not prove either.
40. In our view, since the respondent had admitted
the presence of Joynal Mullick in the suit shop, the
burden was on him to prove its nature and the
capacity in which he used to sit in the suit shop.
41. In other words, if Joynal Mullick was the
respondent’s employee then, in our view, he should
have proved it by filling a declaration form, which
he had submitted under the Shops and
Establishment Act to the authorities. But it was not
done. Rather he admitted that he did not disclose
16
the name of Joynal Mullick in the declaration form.
That apart, the respondent could have proved this
fact by filing payment voucher, or any other relevant
evidence to show that Joynal Mullick was his
employee and that he used to sit in the suit shop in
that capacity only. It was, however, not done.
42. Second, if Joynal Mullick was a partner of the
respondent in the tailoring business then the
respondent could have proved this fact by filing a
copy of the partnership deed. However, he again
failed to produce the copy of partnership deed. In
this way, he failed to prove even this fact.
43. Now so far as the appellants are concerned,
they appear to have discharged their initial burden
by pleading the necessary facts in Para 4 and then
by proving it by evidence that firstly, they let out the
suit shop to the respondent and secondly, the
respondent has sub-let the suit shop to Joynal
17
Mullick, who was in its exclusive possession
without their consent.
44. In a case of sub-letting, if the tenant is able to
prove that he continues to retain the exclusive
possession over the tenanted premises
notwithstanding any third party’s induction in the
tenanted premises, no case of sub-letting is made
out against such tenant.
45. In other words, the sin qua non for proving the
case of the sub-letting is that the tenant has either
whole or in part transferred or/and parted with the
possession of the tenanted premises in favour of
any third person without landlord's consent.
46. This Court in Bharat Sales Ltd. vs. Life
Insurance Corporation of India (1998) 3 SCC 1,
while dealing with the case of sub-letting succinctly
explained the concept of sub-letting and what are
its attributes.
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47. Justice Sagir Ahmad, speaking for the Two
Judge Bench, held as under:
“4. Sub-tenancy or sub-letting comes
into existence when the tenant gives up
possession of the tenanted accommodation,
wholly or in part, and puts another person in
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 overt acts 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. 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 had been sub-let had paid
monetary consideration to the tenant.
Payment of rent, undoubtedly, is an essential
element of lease or sub-lease. It may be paid
in cash or in kind or may have been paid or
promised to be paid. It may have been paid in
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lump sum in advance covering the period for
which the premises is let out or sub-let or it
may have been paid or promised to be paid
periodically. 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 were
sub-let.”
48. In our considered opinion, the aforesaid
principle of law fully applies to the case at hand
against the respondent due to his contradicting
stand and by admitting Joynal Mullick’s presence in
the suit shop but not being able to properly prove
the nature and the capacity in which he was sitting
in the suit shop.
49. In view of the foregoing discussion, we have
formed an opinion that the appellants were able to
prove the case of sub-letting against the
respondent.
20
50. We cannot thus concur with the reasoning and
the conclusion arrived at by the High Court and
instead prefer to agree with the conclusion of the
Trial Court insofar as it relates to the ground of
sub-letting. In view of this, it is not necessary to
examine the other ground relating to making of
unauthorized construction by the respondent in the
suit shop.
51. In the result, the appeal succeeds and is
allowed. The impugned judgment is set aside and
that of the Trial Court is restored.
52. The respondent is, however, granted three
months’ time to vacate the suit shop, subject to the
respondent filing in this Court a usual undertaking
that he will deposit the entire arrears of rent up to
the date as per the agreed rate within one month
and will also deposit the mesne profits for a period
of three months up to the date of vacation in
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advance at the agreed rate and would vacate the
suit shop on or before 30.04.2018.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4189 OF 2007
Flora Elias Nahoum & Ors. .... Appellants
Versus
Idrish Ali Laskar …. Respondent
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal arises from the final judgment and
final order/decree dated 07.07.2005 passed by the
High Court of Calcutta in F.A. No.416 of 1984
whereby the Division Bench of the High Court
dismissed the eviction suit filed by the appellants
against the respondent and set aside the decree for
2
eviction passed by the Trial Court in their favour
and against the respondent.
2. In order to appreciate the issues involved in
this appeal, it is necessary to set out the facts in
detail herein-below.
3. The appellants are the plaintiffs (landlords)
whereas the respondent is the defendant (tenant) in
the eviction suit out of which this appeal arises.
4. The appellants (plaintiffs) are the
owners/landlords of one shop (room) bearing
premises No.1, Hartford Lane, Calcutta (hereinafter
referred to as “the suit shop”), which was originally
owned by Late Nahoum Elias and Miss Resmah
Nahoum. The present appellants are the
successors-in-interest of the suit shop. They had let
out the suit shop to one - Alfajuddin Laskar on a
monthly rent of Rs.40/-. In the suit shop,
3
Alfajuddin Laskar used to do the business of sale of
eggs under the name “24, Parganas Egg Stores”.
5. Alfajuddin Laskar expired in 1976. The
respondent being his son became the tenant of the
appellants on same terms and conditions. The
respondent, however, closed his father's business of
selling of eggs and started his tailoring business
under the name “New India Tailors” in the suit
shop.
6. In 1978, the appellants filed an Eviction Suit
against the respondent under the provisions of the
West Bengal Premises Tenancy Act, 1956
(hereinafter referred to as “the Act”. The eviction
was claimed on four grounds, viz., default in
payment of monthly rent, bona fide need,
sub-letting and lastly, making of unauthorized
construction in the suit shop by the respondent.
4
7. The respondent filed the written statement and
denied all the four grounds. Parties adduced their
evidence. The Trial Court, by order dated
30.01.1984, partly decreed the suit. It was held that
so far as the grounds relating to default of rent and
bona fide need are concerned, both are not made
out whereas the other two grounds, namely,
sub-letting and making of unauthorized
construction in the suit shop, both stood made out
against the respondent.
8. In this view of matter, the appellants’ suit was
decreed in part against the respondent and the
decree for eviction on the ground of sub-letting and
unauthorized construction made by the respondent
in the suit shop was passed. The respondent was
granted six months’ time to vacate the suit shop
and handover its vacant possession to the
appellants.
5
9. Being aggrieved by the said order, the
respondent filed appeal before the High Court at
Calcutta. The appellants, however, did not file any
cross appeal or cross-objection against that part of
the order by which two grounds, viz., default in
payment of rent and bona fide need were held not
made out. The judgment of the Trial Court thus
became final to that extent.
10. Therefore, the only question before the High
Court was whether the Trial Court was justified in
decreeing appellants’ suit on the grounds of
sub-letting and making of unauthorized
construction in the suit shop.
11. In other words, the question was whether the
Trial Court was right in holding that the ground of
sub-letting and making of unauthorized
construction in the suit shop was made out.
6
12. The High Court, by impugned judgment,
allowed the respondent’s appeal and dismissed the
appellants’ eviction suit. The High Court held that
no ground of either sub-letting or an unauthorized
construction was made out, hence, the suit was
liable to be dismissed in its entirety. It was
accordingly, dismissed.
13. Against this judgment, the landlords felt
aggrieved and filed this appeal by way of special
leave in this Court.
14. Heard Ms. Daisy Hannah, learned counsel for
the appellants and Mr. Zakiullah Khan, learned
senior counsel for the respondent.
15. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and while setting
aside of the impugned judgment, we restore that of
7
the Trial Court and, in consequence, decree the
appellants’ suit in part, as indicated below.
16. There can be no dispute to the legal
proposition that even if the landlord is able to make
out only one ground out of several grounds of the
eviction, he is entitled to seek the eviction of his
tenant from the suit premises on the basis of that
sole ground which he has made out under the Rent
Act.
17. In other words, it is not necessary for the
landlord to make out all the grounds which he has
taken in the plaint for claiming eviction of the
tenant under the Rent Act. If one ground of eviction
is held made out against the tenant, that ground is
sufficient to evict the tenant from the suit premises.
18. As mentioned above, the Trial Court held that
the appellants were able to make out two grounds
for respondent's eviction, namely, sub-letting and
8
unauthorized construction made by him in the suit
shop. The High Court, accordingly, reversed the
findings on these two grounds and dismissed the
suit.
19. We consider it proper to examine first, the
ground of sub-letting with a view to find out as to
whether the plaintiffs (appellants) were able to make
out this ground against the respondent. In other
words, let us first examine as to whether the Trial
Court was right or the High Court was right on this
issue.
20. In order to examine, whether the ground of
sub-letting is made out or not, it is necessary to see
as to how this ground was pleaded and sought to be
proved by the parties.
21. The appellants, in Para 4 of the plaint, pleaded
the case of sub-letting as under:
“4. The defendant after acquiring
right of tenancy in respect of the said shop
9
room after his father’s death, wrongfully
transferred possession of the said shop room
to one Joynal Mallick evidently for creating a
sub-tenant in his favour in respect of the suit
shop room without obtaining the permission
and consent of the plaintiffs.”
22. The respondent, in reply to Para 4 of the
plaint, gave the following reply in Para 9 of his
written statement as under:
“9. The defendant denies the
allegations made in paragraph 4 of the plaint
and in particular denies the allegations that
he has transferred possession of the shop
under his tenancy to one Joynal Mullick or
anybody as falsely alleged.”
23. It is clear from the perusal of the pleadings
that the case of the appellants was that the
respondent has sub-let and parted with possession
of the suit shop to one Joynal Mullick without
appellants’ consent.
24. So far as the respondent is concerned, he
simply denied the appellants’ case in para 9 saying
that he has not sub-let the suit shop to anyone,
10
much less to Joynal Mullick, as claimed by the
appellants.
25. The respondent examined himself as witness
No.1 and examined Joynal Mullick as witness No.2.
26. In examination-in-chief, the respondent
changed his stand and said that he has not sub-let
the suit shop to Joynal Mullick but he is in his
employment. This is what he said:
“It is not a fact that I sublet the shop room
in suit to one Jainal Mullick. Jainal Mullick
is in my employment.”
27. The respondent further in his
cross-examination again changed his stand and in
answer to a specific question put to him as to
whether he has employed any person in his tailoring
business said "no". This was his reply:-
“No. In the tailoring business I have no
employee but the work is done on contract
basis.”
11
28. The respondent then in answer to another
question put to him as to how many persons work
for you on contract basis in his tailoring business,
his reply was- four persons and out of four, Joynal
Mullick and Jahangir Mullick were his employees.
This is what he said:-
“Najrul Islam and Sayed, Volunteers – Besides
these persons there are two other persons
who look after the business in my absence.
They are Jainal Mullick and Zahangir Mullick
volunteers. These two persons are my
employee.”
29. The respondent then was asked another
question, viz., Did he disclose the name of any of his
employee while submitting the declaration form
under the Shops and Establishment Act, his reply
was “no”. This is what he said:-
“I am the owner of the tailoring shop.
Volunteers – fresh declaration has been
submitted about 10/12 days back. In that
declaration I have not declared that these
two persons Jainal and Zahangir are my
employees.”
12
30. The respondent was then asked last pointed
question - whether Joynal Mullick is doing business
in the suit shop. To this, his reply was that Joynal
Mullick is his business partner. This is what he
said:-
“I obtained the trade license from the
Corporation of Calcutta for the business
carried in the shop showing Jainal Mullick
and Zahangir Mullick as my partners in the
business. It is not a fact that Jainal and
Zahangir are not my employees.”
31. Joynal Mullick then in his evidence said that
he is an employee of the respondent for the last 7/8
years and whatever the respondent (his owner) tells
him to do, he does it while sitting in the suit shop.
He stated that, in his presence, the respondent had
constructed "Macha" in the suit shop. He said that
he joined the business under the name "New India
Tailor".
32. Keeping in view the statements of the
respondent and Joynal Mullick, the question arises
13
as to whether a case of sub-letting and parting of
possession of the suit shop in favour of Joynal
Mullick, whether whole or in part, is made out.
33. Section 13(1)(a) of the Act deals with the
ground of sub-letting and provides that where the
tenant or any person residing in the premises let to
the tenant without the previous consent in writing
of the landlord transfers, assigns or sublets in
whole or in part the premises held by him, then it is
a ground for the tenant’s eviction from the tenanted
premises.
34. In our considered opinion, keeping in view the
pleadings and the nature of the evidence adduced
by the parties, the ground of sub-letting, as
contemplated under Section 13(a) ibid, is made out.
This we say for the following reasons.
14
35. In the first place, we find that the respondent
(tenant), since inception, was taking inconsistent
stand on the question of sub-letting.
36. To begin with, he denied having sub-let the
suit shop to anyone in his written statement. Then,
contrary to what he alleged in the written
statement, he said in his examination-in-chief that
Joynal Mullick was his employee. Then, again
contrary to this statement, he said, in next breath,
that Joynal Mullick is his partner in tailoring
business.
37. So far as Joynal Mullick is concerned, he
admitted that he has been sitting in the suit shop
for the last 7/8 years but he has been sitting in a
capacity as an “employee” of the respondent.
38. In our opinion, the contradictory stand of the
respondent and that too without any evidence
clearly leads to an inference that the respondent
15
was unable to prove, in categorical terms, as to
which capacity, Joynal Mullick was sitting in the
suit shop - whether as an "employee" or a "business
partner" or in any “other capacity”.
39. It seems that the respondent was not sure as
to what stand he should take to meet the plea of
sub-letting. He, therefore, went on changing his
stand one after the other and could not prove either.
40. In our view, since the respondent had admitted
the presence of Joynal Mullick in the suit shop, the
burden was on him to prove its nature and the
capacity in which he used to sit in the suit shop.
41. In other words, if Joynal Mullick was the
respondent’s employee then, in our view, he should
have proved it by filling a declaration form, which
he had submitted under the Shops and
Establishment Act to the authorities. But it was not
done. Rather he admitted that he did not disclose
16
the name of Joynal Mullick in the declaration form.
That apart, the respondent could have proved this
fact by filing payment voucher, or any other relevant
evidence to show that Joynal Mullick was his
employee and that he used to sit in the suit shop in
that capacity only. It was, however, not done.
42. Second, if Joynal Mullick was a partner of the
respondent in the tailoring business then the
respondent could have proved this fact by filing a
copy of the partnership deed. However, he again
failed to produce the copy of partnership deed. In
this way, he failed to prove even this fact.
43. Now so far as the appellants are concerned,
they appear to have discharged their initial burden
by pleading the necessary facts in Para 4 and then
by proving it by evidence that firstly, they let out the
suit shop to the respondent and secondly, the
respondent has sub-let the suit shop to Joynal
17
Mullick, who was in its exclusive possession
without their consent.
44. In a case of sub-letting, if the tenant is able to
prove that he continues to retain the exclusive
possession over the tenanted premises
notwithstanding any third party’s induction in the
tenanted premises, no case of sub-letting is made
out against such tenant.
45. In other words, the sin qua non for proving the
case of the sub-letting is that the tenant has either
whole or in part transferred or/and parted with the
possession of the tenanted premises in favour of
any third person without landlord's consent.
46. This Court in Bharat Sales Ltd. vs. Life
Insurance Corporation of India (1998) 3 SCC 1,
while dealing with the case of sub-letting succinctly
explained the concept of sub-letting and what are
its attributes.
18
47. Justice Sagir Ahmad, speaking for the Two
Judge Bench, held as under:
“4. Sub-tenancy or sub-letting comes
into existence when the tenant gives up
possession of the tenanted accommodation,
wholly or in part, and puts another person in
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 overt acts 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. 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 had been sub-let had paid
monetary consideration to the tenant.
Payment of rent, undoubtedly, is an essential
element of lease or sub-lease. It may be paid
in cash or in kind or may have been paid or
promised to be paid. It may have been paid in
19
lump sum in advance covering the period for
which the premises is let out or sub-let or it
may have been paid or promised to be paid
periodically. 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 were
sub-let.”
48. In our considered opinion, the aforesaid
principle of law fully applies to the case at hand
against the respondent due to his contradicting
stand and by admitting Joynal Mullick’s presence in
the suit shop but not being able to properly prove
the nature and the capacity in which he was sitting
in the suit shop.
49. In view of the foregoing discussion, we have
formed an opinion that the appellants were able to
prove the case of sub-letting against the
respondent.
20
50. We cannot thus concur with the reasoning and
the conclusion arrived at by the High Court and
instead prefer to agree with the conclusion of the
Trial Court insofar as it relates to the ground of
sub-letting. In view of this, it is not necessary to
examine the other ground relating to making of
unauthorized construction by the respondent in the
suit shop.
51. In the result, the appeal succeeds and is
allowed. The impugned judgment is set aside and
that of the Trial Court is restored.
52. The respondent is, however, granted three
months’ time to vacate the suit shop, subject to the
respondent filing in this Court a usual undertaking
that he will deposit the entire arrears of rent up to
the date as per the agreed rate within one month
and will also deposit the mesne profits for a period
of three months up to the date of vacation in
21
advance at the agreed rate and would vacate the
suit shop on or before 30.04.2018.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
January 25, 2018
