M.A. Venugopal vs N.R. Shankar

K. Kalvanasundaram, J.—The unsuccessful Tenant has filed this Revision challenging the concurrent findings of the Rent Controller and the Appellate Authority.

The first Respondent initiated Eviction proceedings against the Petitioner and the Second Respondent on the grounds of wilful default, and subletting. The Landlord has contended that the Petitioner herein was inducted as a Tenant on monthly rent of Rs. 1,200/- and he used to deposit the monthly rent in the account of the Landlords in Valsarvakkam Vyasya Bank Chennai However, from February 2001, the Tenant was irregular in payment of monthly rent, which necessitated the Landlord to issue Notice on 29.12.2002, calling upon the Tenant to pay arrears of rent and to vacate and deliver the vacant possession of the Petition property. Though the Tenant received the Notice, but he neither complied with the demand nor sent any reply. It is further alleged that the Petitioner herein/main Tenant has sublet the Petition premises to the Second Respondent without the consent of the Landlord and that the Second Respondent is carrying on business in the Petition premises.

The Tenant filed Counter denying the allegations in the Eviction Petition stating that there is no arrears as he had deposited every month rent in the Bank Account of the Landlord, that he has not inducted the Second Respondent as Sub-Tenant.

The Rent Controller after considering the oral and documentary evidence ordered eviction on both the grounds. Aggrieved by the Order, the Tenant filed an Appeal in R.C.A No.26 of 2008 The Appellate Authority confirming the finding of the Rent Controller, dismissed the Appeal. Questioning the Order, the present Revision has been filed.

Mr. M. Velmuragan learned Counsel for the Petitioner submitted that both the Authorities have not properly appreciated the exhibits produced by the Tenant, which would establish that there was no default. The learned Counsel relying upon the Judgment in Rajendra Kumar Jain v. S. Jaikrishnan, 2011 (2) MWN (Civil) 769, submitted that subletting was not proved, in that case the Sub-Tenant was the brother of the main Tenant. Further the Landlord merely alleged that the Tenant had sublet without any concrete evidence This Court considering the relationship of the parties and the evidence held that the Landlord has not proved the case of Sub-Lease.

On the other hand Mr. P. Sivamani, learned Counsel for the Respondent made submission in support of the findings reached by the Authorities below.

There is no dispute with regard to the jural relationship of the parties and quantum of rent The case of the Landlord is that the Tenant defaulted paying rent from February 2001 Under Ex. P2, the Landlord requested the Tenant to deposit the arrears of rent of Rs.4,675/-. Again under Ex.P3, the Landlord issued a Notice through his Advocate to the Tenant stating that he was in arrears of Rs.21,600/- up to 30.9.2002 Under Ex,P4, the Tenant received the Notice. Again on 5.7.2003, the Landlord issued a Notice through his. Counsel mentioning that the Tenants were in arrears of rent of Rs.8.350/- up to 30.6.2003 and further stated that the main Tenant had sublet a portion of the shop to the Second Respondent without written consent of the Landlord. Ex.P6 shows receipt of the Notice. In the evidence the deposed that he had been paying rent to the brother of the Landlord, but in the Counter he has specifically stated that he deposited rents in the account of the Landlord.

It is settled law that the burden of proof on the Tenant to prove the rent was being paid regularly. Though the Tenant has given evidence that he has paid rent for the relevant period to the brother of the Landlords, he has not produced any material to substantiate his case Ex.P17-Statement of Accounts and the Ex.P18-Pay and Slip would reveal that the Tenant has deposited Rs.2,400/- on 16.6.2003 and Rs.7,000/- on 10.9.2003. In spite of the initiation of the Eviction proceedings on the ground of wilful default, the Tenant was not prompt in paving rent regularly.

This Court in Sulochana v. R. Pangajam and others, 2013 (I) MWN (Civil) 245 : 2013 (2) MLJ 108, held that even during the Eviction proceedings, the Tenant was not regular in depositing of rent and the deposit of rents pursuant to the Order passed by the Rent Controller will not erase the wilful default committed by the Tenant.

In the case on hand, the Landlord issued Notice under Ex. P2, P3 & Ex P5 in the year 2001, 2002 & 2003. In spite of the Notice issued by the Landlord, the Tenant was regular in paying the monthly rent.

In B. Anraj Pipada v. V. Umayal, 1998 (2) MLJ 524, it has been held that even after initiation of proceedings on the ground of wilful default, if the Tenant fails to pay the rent regularly, it would amount to a wilful default The finding of the fact arrived at by the Authorities on appreciation of evidence does not warrant interference of this Court.

The Landlord contend that the Petitioner has sublet the premises to the Second Respondent. The Notice issued by the Landlord under Ex.P5 to the Petition premises was received by the Second Respondent. Further admittedly the Second Respondent has deposited the rent in the account of the Landlord, but the Landlord returned the amount under Ex.P8, and also issued a Letter to the Bank requesting them not to allow deposit of rent by the Sub-Tenant. Ex.P5 to Ex.P9 shows that the Second Respondent was in possession of the Petition premises. The contention of the Tenant is that the Second Respondent is neighbour and he used to pay rent through Iran But RW1, the Chief-Tenant in his evidence admitted that he was not aware of returning of the rents deposited by the Sub-Tenant, which reveals that the Sub-Tenant was looking after the business. The Landlord has proved that the Second Respondent was in exclusive possession of the Petition premises.

It is settled law that if the initial burden of proof of subletting is discharged by the Landlord, the onus shifts on the Tenant to prove the nature of occupation of the Second Respondent and that he has retained to legal possession.

In Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, 2010 (3) MWN (Civil) 408 (SC) : 2010 1 SCC 217, the Hon''ble Apex Court, has held as follows:

"The legal position that emerges from the aforesaid decisions can be summarised thus:

(i) In order to prove mischief of subletting as a ground for eviction under Rent Control Laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by Tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the Landlord and in lieu of Compensation or Rent.

(ii) Inducting a partner or partners in the business or profession by a Tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a Deed of Partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out tire real nature of transaction entered into by the Tenant.

(iii) The existence of Deed of Partnership between Tenant and alleged Sub-Tenant or ostensible transaction in any other form would not preclude the Landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of subletting or parting with possession in tenancy premises by the Tenant in favour of a third person.

(iv) If Tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the Tenant may not be said to have parted with possession.

(v) Initial burden of proving subletting is on Landlord but once he is able to establish that a third party is in exclusive possession of the premises and that Tenant has no legal possession of the tenanted premises, the onus shifts to Tenant to prove the nature of occupation of such third party and that he (Tenant) continues to hold legal possession in tenancy premises.

(vi) In other words, initial burden lying on Landlord would stand discharged by adducing prima facie proof of the fact that a party other than Tenant was in exclusive possession of the premises. A presumption of subletting may then be raised and would amount to proof unless rebutted."

In the present case, the Landlord has proved that the Second Respondent was in possession of the Petition premises, but the Tenant has not established the nature of occupation of the Second Respondent. Both the Authorities on proper appreciation of evidence held that the Tenant has sublet the premises to the Second Respondent. In view of the above finding, the Judgment relied on by the Petitioner is not helpful to him.

In Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, 2014 (5) CTC 217, it has been held that-

"We hold, as we must, that none of die above Rent Control Acts entitles the High Court to interfere with fire findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below The consideration or examination of the evidence by the High Court Revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its Revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned Order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or Order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness legality or propriety of the impugned decision or the Order, the High Court shall not exercise its power as an Appellate power to re-appreciate or re-assess the evidence for coining to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of tact as a Court of first Appeal. Where the High Court is required to be satisfied that, the decision is according to law, it may examine whether the Order impugned before it suffers from procedural illegality or irregularity."

In the light of the above Judgment of the Hon''ble Apex Court, I do not find any illegality or irregularity in the Order passed by the Rent Control Appellate Authority.

In the result, the Revision Petition fails and the same is dismissed. Consequently connected Miscellaneous Petition is closed. No costs. The Tenant is granted six months'' tune to vacate and hand over the possession to the Landlord.