Om Parkash and Ors. vs Jagdesh Kumar

Plaintiffs suits for ejectment against the defendants is dismissed by the trial court by its judgment and decree that 11101976. On appeal the

District Judge reversed the finding on issue No. 4 which related to the subletting of a portion of shop by defendants 1 to 7 in favour of defendant

No. 8 and consequently the suit for ejectment was decreed against the appellants in favour of the respondent.

Plaintiffs suit was that portion of shop was sublet by defendants 1 to 7 in favour of defendant No. 8 who was paying rent to defendants 1 to 7.

The shop was needed by the plaintiffs for reconstruction to achieve public benefit. The defendants in their written statement had denied the

allegations of subletting as also the plea regarding the reasonable requirement of the shop for reconstruction. The parties led evidence. Courts

below have found that there was no reasonable requirement of the landlord to have the shop vacated for reconstruction to achieve public benefit.

In this regard there is a concurrent finding of fact. It is accordingly found by the two eourts below that reconstruction is not for the pubiic benefit.

On the other hand it will reduce the size of the shop considerably. It may be stated that under the provisions of Ribbon Development Act, while

reconstructing the shop in question, plaintiff is required to leave a specified distance from the centre of the road. After leaving that distance the size

of the shop is reduced to half of its present size. Therefore two courts were of the opinion that no public benefit is to be achieved by

reconstruction. On the other hand the accommodation of the shop is going to shrink which will be disadvantageous to the tenant as also to the

landlord. The two courts below have relied on evidence as also on documents and on the provisions of Ribbon Development Act in repelling the

contention of the landlord regarding reasonable requirement of the shop, for the reconstruction. So the rinding on this issue has become final which

cannot be disturbed in second appeal.

Mr. Sharma appearing for the respondentlandlord has submitted that finding on issue regarding reconstruction of the shop may be reopened. He

submits that the issue is to be decided in the light of section 11 (h) of the Houses and Shops Rent Control Act and the provisions of Ribbon

Development Act should not cause any obstruction in the way of the landlord to seek tbe relief of eviction on the ground of requirement of the

shop for reconstruction. He submits that the defendants had not pleaded bar to reconstruction on the basis of provisions of Ribbon Development

Act. That was introduced at the argument stage.

I have found that a commissioner was appointed by the courts below to ascertain the size of the shop and its distance from the centre of the

road. The permission obtained by the plaintiff for reconstruction contained a condition that the shop was to be constructed in accordance with the

provisions of Ribbon Development Act which enjoins upon the landlord to leave some distance from the centre of the road while undertaking the

reconstruction of the shop. Therefore it was permissible for the courts below to go into that aspect of the matter and thereafter judge as to whether

any public benefit was to be achieved by reconstruction of the shop. Plaintiff has not to prove only requirement of reconstruction, he has to further

prove that it was to achieve public benefit. If it was against the public benefit then reasonable requirement of the reconstruction cannot be held to

be proved. I would, therefore, hold that the findings of the courts below on the issue of reconstruction of the shop by the landlord are based on

evidence and that finding is reasonable.

Mr. R. P. Bakshi appearing for the appellant tenant has argued vehemently that subletting was not proved and merely because defendant No. 8

was occupying portion of the shop measuring 2' x 3' for purposes of tailoring would not amount to subletting and would not be parting with the

possession by the tenant of the demised premises. He has referred to the evidence adduced in the case by ths parties and has argued that the

defendant No. 8 was to discharge certain previous commitments therefore he was occupying small portion of the shop and that was not occupied

by him for the statutory period of more than seven months nor was hepaying any rent in lieu of his occupation to the defendants 1 to 7. It was

contended by Mr. Bakshi that the possession and control of the demised premises was with the defendants 1 to 7. Therefore finding on issue of

subletting given by the 1st. appellate court was erroneous.

Subletting connotes parting with possession of the demised preraises by the tenant in favour of third person. It also postulates that tenant must

be receiving rent from the subtenant in lieu of subtenant's occupation of the demised premises. The subletting must be for more than seven months.

In M/s S. Chokesri and company Vs. Smt. Rajbir Kaur and anr reported in Rent control Reporter 1982(2): 670, Punjab and Haryana, it has

been held that where the tenant was running a cloth business in the demised premises and he allowed third parties to use part of the premises for

selling of IceCream and do tailoring work and the control and possession of the premises remained with the tenant, no rent was paid by the third

parties except the electricity charges, it cannot be held to be subletting because tenant was actually in control and possession of the tenanted

premises. He also cited 1985 (2) Rent control Reporter: 314 (Shri Bhagwan P. Sanjnani Vs. Shri Ranbir Singh). The Delhi High Court was

considering the meaning of parting with possession by tenant in favour of third person. It held that mere user of premises by a person other than

tenant I is no parting with possession by tenant.

Houses and Shop Rent Control Act makes a tenant liable to be evicted under section 11(i)(c) if he has sublet the whole or major porti n of the

house or shop for more than seven consecutive months. Under this subsection subletting will be ground of eviction if following things are proved:

i. Whole or major portion of the shop is sublet, ii. It is sublet for more than seven consecutive months.

In the present case on facts, it is proved that defendant No. 8 is in occupation of a portion measuring 2"" x 2' where he is doing tailoring and control

and possession of tbe major portion of the demised premises is with the defendants 1 to 7. Therefore the first ingredient under the Act that whole

or major portion must be proved to have been sublet is not proved. The subletting for more than seven months also is not proved. The plea of

subletting is raised in para No. 5 of the plaint. It is as vague as anything. The allegation is that defendants 1 to 7 have given a portion to the

subtenant from whom rent is being collected. Neither time nor the period of subletting is stated in the pleadings.

The first appellate court's finding on issue No. 4 therefore is not sound. The finding on issue No. 4 is erroneous and that of the trial court seems

to be sound. I have gone through the record as also the evidence adduced by the parties in the case. In my opinion there has been no subletting by

the defendants 1 to 7 in favour of defendant No. 8 of the major portion or whole of the shop in question nor is subletting proved for more than

seven months.

No proof is adduced that defendant 1 to 7 have parted with the legal possession of the shop which is occupied by defendant No. 8. On the

other hand the possession and control of the shop in question is with the defendants 1 to 7 and defendant No. 8 only occupies 2' x 3' for purposes

of tailoring. He cannot be said to be in possession and control of demised premises.

11 I thefefore hold that the plea of subletting covered by issue No. 4 in the case is not proved by the plaintiff and the finding on this issue of the first

appellate court is liable to be set aride.

Accordingyl the appeal is allowed and the judgment and decree of the 1st appellate court where by appellants, are evicted from the suit

premises is set aside and the suit of the plaintiffrespondent is dismissed and the judgment and decree of the trial court dated 11101976 is restored.

No order as to costs.