Bodhanlal vs Kewalchand

Shivdayal, J.—This second appeal arises out of a suit for ejectment of the tenant on the ground of subletting. There is no disput before me about the arrears of rent. The trial Judge passed a decree for eviction and it has been confirmed by the first appellate Court.

The only point raised by Shri Dharmadhikari is that the suit for ejectment should have been dismissed because the plaintiff did not prove the subletting to be without his direct or indirect permission. That the defendent had sublet a part of the suit premises to one Abdul Sattar cannot be questioned here because there in a concurrent finding of fact of both the Courts below and that finding is based on the evidence produced by the parties.

The case is to be decided by applying the provisions of Section 4 (e) of the M. P. Accommodation Control Act which is now in force. Under this law subletting is a ground of eviction but if it took place before the commencement of this Act with the direct or indirect permission of the landlord, the tenant is not liable to eviction. Under the former law subletting was a ground for eviction unless it was made under a permmission of the landlord in writing. The present law omits the requirement of the permission to be in writing and enlarges the scope of the exemption by employing the words "direct or indirect permission".

This appeal is, therefore, confined to the question whether the subletting by the defendent to Abdul Sattar was direct or indirect permission of the plaintiff. I must observe at the outset that the pleading in the written statement was defective. Permission was not specifically alleged. In answering paragraph 6 (a) of the plaint where it was averred that the defendent sublet one-third of the accommodation without direct or indirect permission of the plaintiff. This was traversed in the corresponding paragraph 6 (a) of the written statement in these words:

It is denied that it was done with direct or indirect permission of the plaintiff.

This kind of pleading is objectionable. The defendent should have come forward with a specific plea whether there was plaintiff''s direct or indirect permission. A literal traverse of the allegations made in the plaint is not always a desirable practice. The plea must be clear and explicit. Issue No. 4 (a) was also not properly worded. It read thus;

Whether the defendant sublet one-third of the accommodation to one Abdul Sattar watch-maker without the permission of the plaintiff on or about November 1957?

However, it is clear from the statements of the plaintiff and the defendant that the parties knew full well that the question of permission of the landlord was in dispute. The plaintiff stated that he had objected to the subletting. The defendant stated that he had sublet with the permission of the landlord. The trial Judge reached a definite conclusion that the subletting to Abdul Sattar was without the plaintiff''s permission. He also took into consideration all the surrounding circumstances. It is true that the first appellate Court has not recorded a clear findiding as to the question of permission. Although he has upheld the decision of the trial Judge on the question of subletting, yet his judgment does not disclose an application of the mind as to the particular point really in issue, that is, whether subletting was or was not without the permission of the landlord. There is no mention even of the statements of the parties on that point. His only finding is that "in the year 1957 the defendant had sublet a portion of his house to Abdul Sattar." Ordinarily I would have sent back this case to the lower appellate Court but I think that this is a fit case where I should take recourse to the provisions contained in Order 41, Rule 24, C. P. C.

Apart from the fact that in the written statement the defendant did not plead permission nor give any particulars of their plea, his statement to the Court does not establish it. Admittedly, Abdul Sattar was occupying a part of the suit premises from November 1957 to October 1958. The sub-tenant had placed there a show-case, a stool and a chair. He made a bold statement in a single sentence; "Abdul Rattar ko maine vadi ki ijazat lekar dukan me baithala tha". He admitted that in his statement before the Rent Controller (Ex.-P-4) he had stated: "Maine Avedak se nahi batay ki kiraya se dukan dena hai" That statement belies the defendant''s assertion in his statement in the present suit. If he did not even mention to the, plaintiff that he was going to sublet to Abdul Satter it cannot be said that he obtained permission from the plaintiff. And it is wealthy of note that the case now set up by him in his statement is that the permission was prior to subletting "Ijazat lekar dukan men baithola tha". The plaintiff stated that in November 1957 he saw that a partition had been put by the defendant to separate out the portion sublet to Abdul Sattar and he immediately protested. The learned trial Judge has rightly pointed out certain relevant circumstances. In my opinion the conclusion reached by him was sound and correct.

No other point is urged.

The appeal is dismissed with costs.