Rakesh Pal Singh vs Gurnam Singh and Others

K. Kannan, J.—The petition for eviction was allowed by the two courts below on the grounds of subletting and change of user. The tenant who is aggrieved is the revision petitioner. Originally, I had passed the order dismissing the petition in the absence of the counsel for the petitioner. The order, however, was recalled on 10.03.2009, when before the dictation was concluded, the counsel appeared and sought for permission for arguments and for disposal on merits after the submissions. I had, therefore, directed that the case would be taken as not disposed of and posted it for arguments. After several adjournments, the case is being brought for hearing again.

The learned counsel appearing on behalf of the petitioner, points out that two Courts have acted on the plea of the 2nd respondent that he was a sub-tenant under the tenant who was in active collusion with the landlord making the 2nd respondent to suffer a self-damning statement, that he was a sub-tenant. Indeed there was no form of tenancy between the 1st respondent and the 2nd respondent. The counsel makes reference to the fact that the lease was in respect of the front portion of the shop measuring 16ft. X 50 feet and he was running the business, in spare part while the 2nd respondent was admittedly a repairer. There was an admission in his evidence that he never kept his equipments within the demised premises. The counsel also read to me his evidence that he was only occupying the verandah portion immediately adjoining the shop which was a common verandah for several shops which was lying contiguously. There was a basement which the landlord himself had occupied in a measurement of about 16 ft. x 12 ft. and there was a small space adjoining the demised premises as an access to go to the basement through a staircase. The 2nd respondent was actually keeping his equipment in the staircase and no part of the building which was demised to the tenant had been sublet to him. The counsel would also argue that admittedly neither the verandah nor the staircase was a subject of lease.

The counsel appearing on behalf of the respondent would only read the whole of the judgment of the trial Court and the Appellate Court that had dealt with the case of the sub-tenancy. In my view, two courts below have failed to appreciate that a sub-lease contemplates a transfer of interest in the property and a surrender of possession of the whole or part of the demised premises. The crucial aspect of the tenant''s own admission that he never kept his equipment within the demised premises or his evidence that he was carrying on a repair works of automobiles was not appreciated in the manner that it should have been done. It was nobody''s case that the tenant had himself vacated the premises and allowed the sub-tenant to run a repair shop. The landlord had only stated that a portion of the demised premises had been given to the sub-tenant for carrying out repairs.

The tenant has filed the photographs showing the physical features of the property and the manner of alleged occupation to the tenant. The photographs reveal that the verandah runs across the facade of the rented premises and adjoining properties. In the portion immediately adjacent to the demised premises is a small passage leading to the basement and immediate next portion is the staircase. Neither verandah nor the staircase is a part of the demised premises. The occupation of the 2nd respondent cannot be taken to be an occupation dislodging the possession of the tenant. Even if the 2nd respondent''s admission were to be that he was paying Rs. 200/- to the tenant I will not take that to be a proof of subletting of portions of the demised premises itself. The subletting contemplates a transfer for consideration. If the tenant were to allow user of the property opposite to the shop, the vacant portion or the verandah portion I cannot take that to be a consideration for portion of the demised premises.

It has also been held in several cases, that a mere authority or promise granted to a person who uses a portion of the building along with the tenant cannot be taken to be a sublease of the premises. In Jagdish Prasad Vs. Smt. Angoori Devi, , the Supreme Court has held that merely from presence of person other than tenant in shop sub-letting cannot be presumed. It is the grant of possession of the property in whole or in part to yet another person for consideration that can constitute a subletting. I will not find that there is proof of such aspect of parting with possession. I cannot, therefore, uphold the finding of the Courts below that there is any subletting. This is taking the worst case scenario that the 2nd respondent is occupying along with the tenant some portion of the building. I have already observed that the alleged sub-tenant was only carrying on his works in the verandah and the staircase, which were not the subject of lease.

The other ground of eviction is a change of the user. The law of change of user has certain purpose to fulfil. The user must be with reference to the purpose which was not authorized. In this case, there was first of all no written instrument evidencing the purpose of lease. If the property was put to use by the tenant for running a shop in spare parts and the tenant was also using the same premises to canvass the insurance policies, I cannot say as to this could be termed as a change of user. A person canvassing the insurance business could be doing essentially only an outdoor activity and cannot be confined only to the premises. If a tenant, therefore, running a spare part shop was also utilizing his time for canvassing insurance business, I will not take that to involve any change in character of building. Even change of user as a ground of eviction has been subjected to judicial interpretations that would require the change in character which could cause serious prejudice to the landlord. In Hari Rao Vs. N. Govindachari and Others, , the tenant changed his business from what was originally a shoe trade to sale of readymade garments. The Supreme Court held that it could not be taken to an actionable change of user while considering similar provisions of Tamil Nadu Rent Act. In yet another judgment in Gurdial Batra Vs. Raj Kumar Jain, 1982 (2) RCR 233, the court while interpreting the provisions of the Rent Act held that the premises which were let out for repair of cycle and rickshaws which was changed for sale of televisions could not amount to change of user.

In this case, the tenant has not abandoned his spare part business and begun a new business. Even if such a new avocation is said to have been started, there is no actionable change of user without proof of prejudice.

The counsel appearing on behalf of the respondent, argued that the reversion Court will not interfere with the findings of fact. The facts are not really very difficult to analyze. It is the case of person admitting sub-tenancy and the courts'' findings were that there was nothing else to be examined when there was an admission by subtenant. The court failed to note an important defence taken by the defendant that the landlord was actually setting up a person as his sub-tenant in collusion and that his statement cannot be relied on. The Courts below failed to note properly the line of defence adopted by the tenant. It also failed to note that sub-tenant involves a transfer or surrender of possession of the whole or part of the building. Nowhere do we find that there any specific finding that the tenant has surrendered any part of the building to the sub-tenant. Two courts below have, therefore, failed to bring what was crucial for assessing subletting. In the same way, two Courts below also failed to assess that the change of user could not have been taken as a ground without proof that the original letting was confined to a particular mode of user. In the absence of specific terms of lease, such an inference could not have been made. In any event, the change of user, must have been seen through the interpretation, brought by the Hon''ble Supreme Court outlined above which were not considered by the Court below.

The order is erroneous and order of eviction is set aside and the civil revision petition is allowed.