Mrs. Kanta Sagar vs Mr. Vinod Khanna

V.S. Aggarwal, J.—The present revision petition has been filed by Smt. Kanta Sagar, hereinafter described as "the petitioner" directed against the judgment of the learned Appellate Authority, Jalandhar dated 24.12.1988. By virtue of the impugned judgment, the learned Appellate Authority had set aside the order of the learned Rent Controller and instead dismissed the petition for eviction.

The relevant facts are that Smt. Kanta Sagar had filed an eviction petition against respondents. The ground of non-payment of rent does not survive nor was pressed during the course of hearing. However, it was asserted that the respondents have made material additions and alterations in the property and in that process had impaired the value and utility of the property. It was further asserted that the tenant had sublet the premises to one Devinder Kumar respondent No. 3 without the consent in writing of the petitioner.

The petition for eviction was not contested by Devinder Kumar respondent No. 3. However, the other respondents denied the assertions made by the petitioners. It was denied that the property had been sublet to Devinder Kumar without the consent in writing of the petitioner. According to the petitioner, Devinder Kumar is an employee of respondents No. 1 and 2. He has been paid a salary of Rs. 950/- per month. As regards the contention of the respondents having materially impaired the value and utility of the property, the defence offered was that the disputed shop is in the same condition as it was at the time of the inception of the tenancy.

The learned Rent Controller framed the issues and held that respondent No. 3 is a sub-tenant in the suit premises. Accordingly, the said issue was decided against the respondents. however, with respect to other contentions, it was held that the respondents have not made additions and alterations which have materially impaired the value and utility of the premises.

Aggrieved by the said order of eviction passed on the found that the property had been sublet, respondents No. 1 and 2 had preferred an appeal. The learned Appellate Authority held that respondent No. 3 was only an employee, and it cannot be termed that he had been sublet the premises. As regards other contention that the property has been materially impaired in its value and utility, the learned Appellate Authority agreed with the findings of the learned Rent Controller. With these basic findings, the appeal was allowed.

Aggrieved by the same, present revision petition has been filed.

Learned counsel for the petitioner at the outset assailed the finding of the learned Rent Controller and the learned Appellate Authority by alleging that the verandah had been covered into a room. In support of his argument that the conversion of the verandah into a room must be held to be materially impairing the value and utility of the premises, the learned counsel relied upon the decision of the Supreme Court in the case of Vipin Kumar Vs. Roshan Lal Anand and Others, . In the cited case, the tenant of the shop had constructed a wall and put up a door which had stopped the flow of air and light, it was held that inference of impairing the value and utility of the building is obvious. Reliance was also placed on the decision of this Court in the case of Narinder Nath (now dead) through L.Rs. v. Lt. Col. Jaswant Singh (1993)104 P.L.R. 401 and yet another decision in the case of Kasturi Lal Vs. Muni Lal and Others, .

In the facts of the present case, it is totally unneccessary to go into the ratio decidendi of the precedents. This is for the reason that a finding of fact had been arrived at by the learned Rent Controller approved by the learned Appellate Authority that the property in question is in the same condition. Once there is a finding of fact based on evidence, then this Court would be reluctant to interfere. The expression, which permits the High Court to interfere under sub-section(5) to Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") in exercise of its revisional jurisdiction, "as to the legality or propriety of such order" necessarily convey that there should be patent mistake of jurisdiction or misreading of evidence which would permit this Court to interfere. Once it is so and both the learned Rent Controller and the learned Appellate Authority had considered the evidence, there is no scope for interference. To that extent, therefore, the argument must fail.

However, pertaining to the ground as to if the property has been sublet or not, it was urged that the learned Rent Controller had rightly held that the property had been sublet to respondent No. 3 and there were no cogent reasons to set aside those findings.

A Local Commissioner was appointed. Smt. Shashi Sharma, Advocate, Local Commissioner, had visited the sport and submitted her report Exhibit AW4/1. She reported that it is a tailor shop and respondent No. 3 was found standing on the counter and dealing with the customers. Respondent No. 3 told that he is an employee of respondents No. 1 and 2 at a monthly salary of Rs. 950/-.

Respondent No. 1 Vinod Khanna when appeared as RW1 had admitted that he was not present in the shop when the Local commissioner had visited the shop, he admitted that at that time he had gone to Delhi to make purchases for the shop. However, he was feeling shy in telling as to what were those purchases.

Immediately the question that comes up for consideration is as to whether this explanation of the respondents No. 1 and 2 as to if respondent No. 3 is an employee of the tenants or not is to be accepted or not.

Respondents No. 1 and 2 were served at the address of Delhi. While it is stated that respondent No. 3 is an employee, reluctance on the part of the respondents to produce the employees register or any other record to show that respondent No. 3 was an employee is a guess work. There are no account books forthcoming that respondent No. 3 is an employee. Respondent No. 1 admitted that he is Income Tax assessee. Even the returns of income tax are being withheld. That was the best evidence to indicate that respondent No. 1 had engaged respondent No. 3 as an employee and had been paying salary to him. In other words, the best evidence which could be in possession of the respondents had been withheld. The inferences are obvious that it has not been established that respondent No. 3 is an employee of the tenant.

It is well known that when a third person is in possession and the possession is not explained, the landlord being a stranger to any agreement between the tenant and the sub-tenant cannot prove anything better, the Court is justified in drawing the inference of subletting in the absence of satisfactory explanation.

Supreme Court in the case of Shah Phoolchand Lalchand Vs. Parvathi Bai, also came to the same conclusion. Another firm was carrying on business at the shop other than the tenant. A notice was given to the firm to produce their tax returns, assessment orders and account books. The same were withheld. it was held that inference of subletting could easily be drawn. The same principle had been accepted by this Court in the case of Chaudhary Ram Vs. Liba Sood and Others, . It was held that when a third person''s possession is established and the same has not been explained, inference of subletting can easily be drawn. In paragraph 13 of the judgment, it was held as under :-

"The controversy further narrows down to a straight-jacket. It is established principle that landlord is a stranger to any agreement between the tenant and sub-tenant. When possession of a third party is established and tenancy subsists, inferences of subletting can easily be drawn. It is for the tenant and the third person to explain the position. In the present case the explanation is not to be believed and both the courts below rightly concluded that ground of eviction of subletting was available. Even the rent had not been tendered on the first date of hearing and on that ground also the order of eviction necessarily was passed".

No different was the view of this Court in the case of Rajbir Kaur and Another Vs. Joginder Associates, Architect, Designer and Decorator and Others, .

Keeping in view the aforesaid principles in mind, it is obvious that the findings of the learned Appellate Authority were erroneous. They were not based on evidence, it could not be said that respondent No. 3 was an employee of respondents No. 1 and 2. Thus, it must follow that in the absence of satisfactory explanation, inferences of subletting were obvious.

For these reason, the revision petition is accepted and the impugned judgment of the learned Appellate Authority is set aside. Instead, an order of eviction is passed against the respondents awarding them three months time to vacate the premises.