# Sri Sunil Kumar Verma v. Devendra Prakash Bansal and another

- **Citation:** (2010) 1 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-16
- **Case number:** Civil Misc. Writ Petition No. 36117 of 2009
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-sunil-kumar-verma-v-devendra-prakash-bansal-and-another-41534
- **Pages:** 21

## Headnote

Sri K.M. Garg
1 All] Sri Sunil Kumar Verma V. Devendra Prakash Bansal and another
169
U.P.
Urban
Building
(Regulation
of
Letting Rent & Eviction Act 1972-Section
2, 12-Eviction on ground of sub letting
and
default
in
rent-after
receiving
notices entire amount deposited first
date of hearing-and prior that the rent
on refusal of land lord deposited under
section 30-held- proper-so far sub letting
concern land lord has to prove first that
the person occupying the premises or
selling on shop is neither family member
nor partner-No such prove given nor any
finding is more-held-order passed by
courts below illegal-suit for eviction
dismissed.

Held: Para 18

Though, the judgement cited on behalf
of petitioner to this effect that burden
was upon the landlord to prove that it
was a case of sub letting. As soon as
landlord
discharges
the
burden,
immediately the burden shifted upon the
tenant
to
prove
that
premises
in
occupation of some one else or a person
sitting in the shop in question is a
member of the family of the tenant and
not a partner and if he is not able to
prove the same, then he is liable for
ejectment. There is no dispute to this
effect that if it is established that tenant
carrying on business in a building admits
a person who is not a member of a family
as
a
partner
or
a
new
partner,
immediately the vacancy will be there.
But from the perusal of the judgement
passed by courts below, in my opinion,
the burden has not been discharged
properly by the landlord, therefore, in my
opinion,
the
order
passed
by
the
respondents is not sustainable in law.
Case law discussed:
(2005) 1 Supreme Court Cases 31, Allahabad
Rent Cases, 1990(1) 93, 2000 (2) Allahabad
Rent Cases, 103, (1988) 3 Supreme Court
Cases, 57, Allahabad Rent Cases, 1992(2) 456,
AIR 1999 Supreme Court, 3087, 7. (1987) 4
Supreme Court Cases 161, A.I.R. 1977
Supreme Court, 2262, 2006(1) AWC 256,
2005(1) AWC 138 (SC), Allahabad Rent Cases,
1999 (2), 1992 (2) ARC 456, (2005) 1
Supreme Court Cases 31, 2003 (2) ARC 347,
AIR 1998 Supreme Court, 1240, (1989) 1
Supreme Court Cases 19, AIR 1988 Supreme
Court 396, AIR 1976 SC 712, AIR 1981
Supreme Court 2235, 2003 (2) ARC 347, 1982
ARC 647, (2003) 12 Supreme Court Cases 728,
2003 (1) AWC 126 (SC), 2005(1)AWC 138
(SC), 1995 (1) ARC, 220, AIR 1999 SC, 3087.

## Text

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168 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
arithmetical error. In fact the impugned
order is an order of review, as the earlier
order was reversed, which could not have
been done as there is no such provision
under the Code of Criminal Procedure,
but there is an interdict against it."

8. In another judgment Hari Singh
Mann Vs. Harbhajan Singh Bajwa, AIR
2001 SC 43, the Supreme Court has again
laid down as under:-

"Section 362 of the Code mandates
that no Court, when it has signed its
judgment or final order disposing of a
case shall alter or review the same except
to correct a clerical or arithmetical error.
The Section is based on an acknowledged
principle of law that once a matter is
finally disposed of by a Court, the said
Court in the absence of a specific
statutory provisions becomes functus
officio and the disentitled to entertain a
fresh prayer for the same relief unless the
former order of final disposal is set aside
by a Court of competent jurisdiction in a
manner prescribed by law. The Court
becomes functus officio the moment the
official order disposing of a case is
signed. Such an order cannot be altered
except to the extent of correcting a
clerical
or
arithmetical
error.
The
reliance of the respondents on Talab Haji
Hussain's case (A.I.R. 1958 SC 376 :
1958
Cri.
L.J.
701)
(supra)
is
misconceived. Even in that case it was
pointed that inherent powers conferred on
High Courts under Section 561 A (Section
482 of the new Court) has to be exercised
sparingly, carefully and with caution and
only where such exercise is justified by
the tests specifically laid down in the
Section itself. It is not disputed that the
petition filed under Section 482 of Code
had been finally disposed of by the High
Court on 07.01.1999. The new Section
362 of Code which was drafted keeping in
view the recommendations of the 41st
Report of the Law Commission and the
Joint Select Committees appointed for the
purpose, has extended the bar of review
not only to the judgment but also to the
final orders that than the judgment."

9. The other judgments of Hon'ble
the Apex Court on the same controversy
are the following:-

1. Suredra Singh Vs. State of Bihar
(2005)12 SCC 361.
2.
Sunita Jain Vs. Pawan Kumar Jain,
(2008) 2 SCC 705.
3.
State Vs. K.V.Rajendran & Others,
(2008) 8, SCC 673.

In
view
of
the
above
pronouncements, the present application
is not maintainable.

The
application
is
therefore,
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2010

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 36117 of 2009

Sri Sunil Kumar Verma
...Petitioner
Versus
Devendra Prakash Bansal and another

 ...Respondents

Counsel for the Petitioner:
Sri K.K. Arora

Counsel for the Respondents:
Sri K.M. Garg
1 All] Sri Sunil Kumar Verma V. Devendra Prakash Bansal and another
169
U.P.
Urban
Building
(Regulation
of
Letting Rent & Eviction Act 1972-Section
2, 12-Eviction on ground of sub letting
and
default
in
rent-after
receiving
notices entire amount deposited first
date of hearing-and prior that the rent
on refusal of land lord deposited under
section 30-held- proper-so far sub letting
concern land lord has to prove first that
the person occupying the premises or
selling on shop is neither family member
nor partner-No such prove given nor any
finding is more-held-order passed by
courts below illegal-suit for eviction
dismissed.

Held: Para 18

Though, the judgement cited on behalf
of petitioner to this effect that burden
was upon the landlord to prove that it
was a case of sub letting. As soon as
landlord
discharges
the
burden,
immediately the burden shifted upon the
tenant
to
prove
that
premises
in
occupation of some one else or a person
sitting in the shop in question is a
member of the family of the tenant and
not a partner and if he is not able to
prove the same, then he is liable for
ejectment. There is no dispute to this
effect that if it is established that tenant
carrying on business in a building admits
a person who is not a member of a family
as
a
partner
or
a
new
partner,
immediately the vacancy will be there.
But from the perusal of the judgement
passed by courts below, in my opinion,
the burden has not been discharged
properly by the landlord, therefore, in my
opinion,
the
order
passed
by
the
respondents is not sustainable in law.
Case law discussed:
(2005) 1 Supreme Court Cases 31, Allahabad
Rent Cases, 1990(1) 93, 2000 (2) Allahabad
Rent Cases, 103, (1988) 3 Supreme Court
Cases, 57, Allahabad Rent Cases, 1992(2) 456,
AIR 1999 Supreme Court, 3087, 7. (1987) 4
Supreme Court Cases 161, A.I.R. 1977
Supreme Court, 2262, 2006(1) AWC 256,
2005(1) AWC 138 (SC), Allahabad Rent Cases,
1999 (2), 1992 (2) ARC 456, (2005) 1
Supreme Court Cases 31, 2003 (2) ARC 347,
AIR 1998 Supreme Court, 1240, (1989) 1
Supreme Court Cases 19, AIR 1988 Supreme
Court 396, AIR 1976 SC 712, AIR 1981
Supreme Court 2235, 2003 (2) ARC 347, 1982
ARC 647, (2003) 12 Supreme Court Cases 728,
2003 (1) AWC 126 (SC), 2005(1)AWC 138
(SC), 1995 (1) ARC, 220, AIR 1999 SC, 3087.

(Delivered by Hon'ble Shishir Kumar, J.)

1. This writ petition has been filed
for quashing the order passed
by
respondent dated 6.9.2008 (Annexure 15
to writ petition) and order dated 2.3.2009
(Annexure 17 to writ petition).

2. The facts arising out of present
writ petition are that dispute relates to a
shop situated in Mohalla Kajijadgan,
Qasba and Tehsil Chandpur, District
Bijnor. The defendant-petitioner is a
tenant on monthly rent of Rs.425/-. The
shop in dispute is under tenancy for more
than 30 years. Initially rent was Rs.145/-
but subsequently it has been enhanced to
Rs.425/-. There is no dispute to this effect
that plaintiff-respondent No.1 is the
landlord. On 3.1.2007, a notice was issued
by respondent no.1 with an averment that
defendant-petitioner
has
committed
default in payment of rent from 12.2.2004
to 11.4.2006 amounting to Rs.14,450/-
and further has sublet the aforesaid shop
to his brother Sri Rakesh Kumar Verma,
respondent No.2, hence he is liable for
eviction from shop in dispute. In order to
create a ground for eviction, plaintiffrespondent had been refusing to receive
rent
from
petitioner.
In
that
circumstances, petitioner after making an
application deposited rent under Section
30(1) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972. The said application was
registered as Misc. Case No.73 of 2006
and on being issued notices, respondent-
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
landlord appeared and stated that he has
never refused to accept rent and said to
have been sent him through money order
and he was still ready and willing to
accept rent and to issue rent receipt. On
the aforesaid statement the application
was rejected by order dated 15.9.2006.
Before giving notice in question, plaintiffrespondent no.1 has served another notice
dated 23.9.2006 through which tenancy of
petitioner has been determined on account
of non-payment of rent. After receiving of
notice, a reply refuting the allegations
made was done and it was specifically
stated that there is no default on the part
of petitioner as money-orders were
refused by landlord sent by petitioner time
and again. A reference to proceedings
under Section 30 was also made. It was
also stated that there was no sub-letting.
Sri Rakesh Kumar Verma was engaged in
the business of supply of jewellery items
and in this connection used to visit the
shop of defendant-petitioner. Petitioner
again tried to pay rent due up-to-date
through money orders but it was refused.
A suit was filed which was numbered as
SCC Suit No. 6 of 2007 on the averment
that defendant-petitioner has defaulted in
payment of rent from 12.2.2004 to
11.12.2006 and has also sub-letted the
shop in dispute to defendant-respondent
no.2. A written statement was filed and an
application
was
made
on
6.4.2007
depositing rent to the tune of Rs.22,185/-
for the purposes of claiming benefit under
Section 20(4) of the Act No. XIII of 1972.
The said amount was deposited on the
aforesaid date. In the written statement
filed by petitioner, a specific averment
was made that he has never committed
any default and he was sending rent
through money-orders but after refusal,
petitioner tried to deposit it under Section
30(1) of the Act but on the statement
made by respondent-landlord that he is
ready to accept rent, the application was
dismissed. But anyhow, claiming benefit
of Section 20 Sub Section 4, the amount
has already been deposited. Respondent
no.2 was also engaged in the business of
manufacturing and selling of jewellery
items and in this connection he often
visits the shop of petitioner, therefore,
there cannot be any presumption that it
has been sub-let to respondent No.2.
Petitioner is an exclusive owner of shop
in dispute and doing business. Certain
photographs
has
been
filed
by
respondents
showing
therein
that
respondent no.2 is sitting in the shop and
two cash memos of M/s Rakesh Jewellers
have been filed. Petitioner denied the
factum of this fact that photographs which
have been filed does not belong to
disputed shop. Nor has the petitioner ever
put any Board in the name of Meerut
Jewellers thereof. Petitioner has also
brought on record an application duly
supported by his affidavit bringing
therewith on record photographs which
was also result of trick photography and
which showed Sri Man Mohan, son of
plaintiff- landlord to be sitting in the shop
in dispute. In such situation, petitioner
wanted to prove that such photographs
cannot be an exclusive prove for the said
purpose.

3. It has been submitted that in
support of the plaint case plaintiff Sri
Devendra Prakash Bansal did not examine
himself and instead in his place his son
Sri Manmohan Bansal was examined who
alleged himself to be a power of attorney
and only his statement was recorded as
P.W.-1. Therefore, in view of Section 120
of the Evidence Act, the statement of son
who deposed as P.W.-1 cannot be taken
into consideration. Petitioner also in
1 All] Sri Sunil Kumar Verma V. Devendra Prakash Bansal and another
171
support thereof has produced himself as
D.W.-1 and his brother as D.W.-2 and one
Sri Anil Kumar as D.W.-3 and Sri
Chandra as D.W.-4 who deposed and
supported the case of petitioner. Sri
Rakesh Kumar Verma, respondent No.2
has clearly deposed before the Court as
D.W.2 as he never did any business from
the shop in dispute and supported the case
of petitioner that petitioner is doing
business from the shop in question but in
spite of aforesaid fact though it was fully
established from the record, the Judge
Small Causes Court vide its judgement
and order dated 6.9.2008 (Annexure 15 to
writ petition) has decreed the suit.
Petitioner feeling aggrieved by the
judgement and decree filed a revision but
revisional court without considering these
questions
raised
by
petitioner
has
dismissed the revision vide its judgement
and order dated 2.3.2009. Hence, the
present writ petition.

4. It has been submitted by Sri K.K.
Arora, learned counsel appearing for
petitioner that while recording a finding
on the question of sub-tenancy, courts
below has failed to appreciate that
photographs
brought
on
record
by
landlord
cannot
be
taken
into
consideration for the said purpose. Further
presence of Sri Rakesh Kumar Verma in
the shop in dispute does not lead to this
conclusion that he was in exclusive
possession of the shop in dispute. It was
also proved from the record that Rakesh
Kumar Verma having his own shop and
doing his exclusive business. Further,
court below has erred in holding that shop
in dispute is treated to be vacant within
the meaning of Section 12 of Act No.13
of 1972 due to sub-letting to respondent
No.2. There is no default on the part of
petitioner, therefore, petitioner is entitled
to get benefit under Section 20 Sub
Clause 4 of the Act. One of the point
raised by petitioner is that plaintiff
himself has not come before the witness
box and his son being power of attorney
has made statement, he was not a
competent person to make a statement on
behalf of landlord because he cannot have
any personal knowledge and averment
made in the plaint does not show or
establish that shop in question has been
sub-let to respondent No.2. There must be
two ingredients for the purpose of
subletting the premises in question, one is
that it has been permanently given to
another person and second is that there is
some prove regarding transaction between
the parties. No finding to this effect has
been recorded. Only it has been stated that
respondent No.2 has been found sitting in
the shop. This cannot lead to the fact that
shop in question has been sub-letted.
Further submission has been made that
there is no pleading in the plaint as
regards subletting. Respondent's case is
not in consonance to the provision of
Section 12 of the Act No.13 of 1972. The
three ingredients mentioned under Section
12 has to be fulfilled while declaring
vacancy in certain cases (a) that tenant is
substantially removed his effects (b) he
has allowed it to be occupied by any
person who is not a member of his family
and (c) in the case of residential building,
he as well as members of his family have
taken up residence, not being temporary
residence, elsewhere. Sub-Section 2 states
that in a case of non-residential building,
where a tenant carrying on business in the
building admits a person who is not a
member of his family as a partner as a
new partner, as the case may be, the
tenant shall be deemed to have ceased to
occupy the building. Further submission
has been made that in view of Section 25,
172 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
there is a prohibition of sub-letting, it can
only with the permission of the landlady
and District Magistrate.

5. In such situation, learned counsel
for petitioner submits that in view of
settled position of law and in view of facts
of this case, there cannot be any opinion
to this effect that there is any subletting
and admittedly on the first date of hearing
total rent has been deposited, therefore, it
cannot be held that ingredients of Section
12 as mentioned above has been fulfilled
and petitioner in any means have sub-let
the shop in question. The finding contrary
to this effect is against the evidence on
record. Learned counsel for petitioner on
various issues has relied upon various
judgements of this Court as well as the
Apex Court which is being reproduced
below:-

1. (2005) 1 Supreme Court Cases 31
Joginder Singh Sodhi Vs. Amar Kaur

"22. It was then contended by the
learned counsel for the appellant that
Respondent
No.2
was
the
son
of
Respondent 1 and since he was not a
stranger, no presumption could be raised
that he was a sub-tenant. We are unable
to uphold even that contention. In our
judgment, for deciding the question
whether the tenant had created subtenancy, the relationship between the
tenant and sub-tenant is not material.
There is no privity of contract between the
landlady and Respondent 2. He was,
therefore, a "stranger" to the landlady.
She let the property to Respondent 1 who
was the tenant. Respondent 1 was bound
to occupy the property as per the rent
note executed by him wherein even
undertaking was given by him that he
would not part with possession or allow
any other person to occupy the property.
In spite of the rent note and undertaking,
if without the written consent of the
landlady, Respondent 1 had inducted
Respondent 2 as his tenant or had parted
with possession in favour of Respondent
2, who was staying separately and yet
found to be in exclusive possession of the
shop, sub-tenancy was established."

2. Allahabad Rent Cases, 1990(1) 93
Badri Nath Garg Vs. Sheo Prasad
Tandon

"22. Further it is borne out from the
record that the "Standard Book Depot"
and "Adarsh Pustak Bhandar" are being
run from the accommodation in question.
It has come in evidence that the "Standard
Book Depot" was incepted some time in
the year 1965 in the accommodation in
question, though the rent receipts were
issued by the opposite-party in the name
of the applicant Badri Nath Garg. It is on
this premise that the opposite-party has
alleged that Badri Nath Garg has sub-let
the accommodation to Kailash Nath
Garg. The allegation of the opposite-party
that Kailash Nath Garg is the sub-tenant
of the applicant (Badri Nath Garg) is
incredulously abhorrent and is unworthy
of acceptance. It smacks of the lack of
understanding of relationship amongst the
Hindus. Joint family was the bane of
Hinduism.
Assimilation
and
not
separation was the key-note of Indian
culture. Brothers have lived in harmony,
thus, culogising the precepts of Hinduism.
One amongst such members being the
head was the 'karta' of the family. He was
the patriarch, who looked after the
interest and comfort of each and every
member
of
the
family.
He
was
Machiavellian sovereign, whose word and
dictate was resounding and acceptable to
1 All] Sri Sunil Kumar Verma V. Devendra Prakash Bansal and another
173
each and every one in the family. With the
passage of time modern environment
plagued the Hindu society and individual
interest tarnished the very sanctity of joint
Hindu family system. Badri Nath Garg
was the karta of the family as is emerging
from the record and if the rent receipts
are issued only in his name it would not
tentamount that the other brothers had no
interest in the business carried by the
family. Members of family start various
business which are looked after by one of
them. Opposite-party was well aware
about the fact that Kailash Nath Garg is
the real brother of Badri Nath Garg,
applicant. The opposite -party still
camouflaged
this
fact
by
initial
concealment but later on admitting it.
There is nothing on record to suggest that
at the time or even today family is not
well knit or is not united. It does not
happen looking tot he present day
background that for the advancement of
the business as has been stated, one of the
brothers is directed to look after one
business. There is not an iota of evidence
even to suggest that Badri Nath Garg has
in any case parted with the possession
and that too with a permanent intention. A
presumption cannot be raised in such
circumstances that Badri Nath Garg has
nothing to do with the business or has lost
all interest therein. It was incumbent on
the opposite-party to have established and
proved to the hilt that the alleged
occupant is the sub-tenant enjoying
possession exclusively and secondly that
sub-tenancy has been created for valuable
consideration. Sub-tenancy can neither be
presumed not inferred. It has to be proved
to the satisfaction of the Court that the
two cardinal ingredients as enumerated
above has been satisfied. Instantly the
opposite-party has failed to prove to the
hilt that the alleged sub-tenant Kailsh
Nath Garg is exclusively enjoying the
possession of the accommodation in
question. Kailash Nath Garg might have
been directed to transact the business for
the benefit of the family. Even assuming
that Kailash Nath Garg is sitting on the
shop in question it cannot be safely
assumed nor presumed that he is enjoying
exclusive possession in lieu of a valuable
consideration. It would be a sad day to
infer that one of the real brothers would
be the sub-tenant of the other brother in
the absence of any evidence or weighty
material. It is an imaginative and fanciful
allegation, which cannot throne truth that
brother cannot be sub-tenant. Agreements
are not arrived at between the brothers
often but the mutual understanding
pervades showing affinity and kinship.
The oral dictate of the karta of the family
is more than an agreement in writing. The
opposite-party has failed to discharge the
burden which lay heavily on him to show
that he profits of the Firm do not go to the
family. It could have been shown by
documentary evidence that Kailash Nath
Garg is the sole occupant of the
accommodation in question enjoying its
possession exclusively for his benefit but
such a proof is utterly wanting. An
inference in such circumstances cannot be
raised much to the detriment of the
applicant. In the case of Ajit Singh v.
Naresh Chand Gupta and others, 1981
ARC 332, it has been held as stated above
that onus of proving sub-letting is on the
landlord who has to establish that the
occupant is the alleged sub-tenant and is
in exclusive possession of the tenanted
accommodation and that too for a
valuable consideration. I respectfully
agree to this view. The first essential
ingredient for holding that the person,
who is an occupant as a sub-tenant is in
exclusive
possession
of
the
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
accommodation in question. This could
have been proved by the opposite-party
but in vain. The second ingredient that the
person has occupied the accommodation
in
question
for
some
valuable
consideration may be established by the
circumstances from the relationship of
lessor and lessee between the tenant and
the alleged sub-tenant found to be in
exclusive possession may be inferred. It
is, thus, clear that the first ingredient that
the person is in exclusive possession as a
sub-tenant has to be established beyond
doubt. The opposite-party has miserably
failed to establish such a cardintal fact.
Further in the absence of such a
categorical
finding
of
exclusive
possession, the trial court's order finding
Kailash Nath Garg to be sub-tenant is
manifestly erroneous and is not in
accordance with law. Even if, as
discussed above, Kailash Nath Garg is in
exclusive possession then the element of
having exclusive possession over the
accommodation in question for a valuable
consideration is utterly lacking. The
Court below vaguely proceeded that it is
not possible to extract the reality as
regards of valuable consideration. It was
liable to be investigated. In the case of
Smt. Krishnavati v. Sri Hansraj, AIR 1974
SC 280, it was held that onus to prove
sub-letting is on the landlord. It is only
after the landlord prima facie satisfies
that the occupant, who was in exclusive
possession of the accommodation in
question
let
out
for
valuable
consideration. It is only after such
satisfaction that the tenant would be
required to rebut the allegation. The onus
in any case in absence of the twin
consideration unless satisfied cannot be
shifted to the tenant. The learned Counsel
for the opposite-party tried to support the
finding recorded by the trial Court I am
unable to agree as to how such finding
can be deemed to be sacrosanct. I am
clearly of the opinion that the Court
below did not approach the issue on
correct legal principle. The Court below
has lost sight of factual common sense
and has drawn inference in the teeth of
the view taken in the case of Smt.
Krishnavati."

3. 2000 (2) Allahabad Rent Cases, 103
Suraj Mukhi and another Vs. IInd
ADJ, Shahjahanpur and others.

"6. The question was whether, the
tenant had sub-let the accommodation,
the Apex Court emphasised that it is not
mere possession but there must be other
relevant
circumstances
particularly
exclusive possession of such person. In
Resham Singh v. Raghubir Singh and
another, AIR 1999 SC 3087: 1999
SCFBRC 372, where the brother of the
tenant was carrying on the business and it
was found that he was only looking after
the business particularly when his brother
was involved in a criminal proceeding
and absconding, it was held that subletting was not proved. In Ram Prakash
v. Shambhu Dayal, AIR 1960 All 395,
where the parties were close relations and
one of them came from Pakistan to take
shelter with the other, there was no
presumption that a sub-tenancy was
crated merely because the host and his
wife allowed the refugee guest to live with
them and then, for the sake of enlarging
available
accommodation
shifted
to
another house but left a part of their
family in the old house.
7. The Court has to examine the nature of
possession of such person who is alleged
not be a member of the family of the
tenant. If his possession is in the nature of
a licence without putting him in exclusive
1 All] Sri Sunil Kumar Verma V. Devendra Prakash Bansal and another
175
possession, it cannot be taken that it was
sub-letting
by
the
tenant
to
him.
Respondent No.1 has to examine the
matter afresh in accordance with law."

4. (1988) 3 Supreme Court Cases, 57
Jagan Nath (deceased) through Lrs. Vs.
Chander Bhan and others

"6. The question for consideration is
whether the mischief contemplated under
S. 14(1)(b) of the Act has been committed
as the tenant had sublet, assigned, or
otherwise parted with the possession of
the whole or part of the premises without
obtaining the consent in writing of the
landlord. There is no dispute that there
was no consent in writing of the landlord
in this case. There is also no evidence that
there
has
been
any
subletting
or
assignment. The only ground perhaps
upon which the landlord was seeking
eviction was parting with possession. It is
well settled that parting with possession
meant giving possession to persons other
than those to whom possession had been
given by the lease and the parting with
possession must have been by the tenant,
user by other person is not parting with
possession so long as the tenant retains
the legal possession himself, or in other
words there must be vesting of possession
by the tenant in another person by
divesting himself not only of physical
possession but also of the right to
possession. So long as the tenant retains
the right to possession there is no parting
with possession in terms of Cl. (b) of S.
14(1) of the Act. Even though the father
had retired from the business and the sons
had been looking after the business in the
facts of this case, it cannot be said that
the father had divested himself of the
legal right to be in possession. If the
father has a right to displace the
possession of the occupants, i.e., his sons,
it cannot be said that the tenant had
parted with possession. This court in Smt.
Krishnawati v. Hans Raj, (1974) 1 SCC
289 : (AIR 1974 SC 280) had occasion to
discuss the same aspect of the matter.
There two persons lived in a house as
husband and wife and one of them who
rented the premises allowed the other to
carry on business in a part of it. The
question was whether it amounted to subletting and attracted the provisions of
subsection (4) of S. 14 of the Delhi Rent
Control Act. This Court held that if two
persons live together in a house as
husband and wife and one of them who
owns the house allows the other to carry
on business in a part of it, it will be in the
absence of any other evidence a rash
inference to draw that the owner has let
out that part of the premises. In this case
if the father was carrying on the business
with his sons and the family was a joint
Hindu family, it is difficult to presume
that the father had parted with possession
legally to attract the mischief of S.
14(1)(b) of the Act."

5. Allahabad Rent Cases, 1992(2) 456
Gur Dayal Khanna and others Vs. Smt.
Malti Devi and others

"11. In the cases involving subletting it is difficult for the landlord to
produce direct evidence in this regard
showing the existence of the relationship
of tenant-in-chief and the alleged subtenant because the matter is specially
within their knowledge, therefore, in
order to prove sub-letting the landlord
has to rely on attending circumstances. It
is in this view of the matter that the
Legislature
has
provided
for
a
presumption of fact about coming into
existence of sub-tenancy taking recourse
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
to a legal fiction. Once a sub-letting takes
place the impediment in the way of the
landlord to recover possession stands
removed inducing him to go to Court and
ask for recovery of possession. The
tenant's liability to eviction arise once the
fact of unlawful sub-letting is proved.

12. It cannot, however, be overlooked that
while the initial onus of proving subletting or a transfer of the lease holding is
upon the landlord yet once the Court is
satisfied that there has been a transfer of
possession, the onus may shift and within
whose
special
knowledge
the
facts
emplaining the manner in which such
possession has been transferred lie, may
have to bear the burden thereafter. It is,
therefore, clear that when once the
parting of possession is proved, the
burden shifts on to the tenant to show that
the possession is proved, the burden shifts
on to the tenant to show that the alleged
sub-tenant is in occupation not as a subtenant but only as a licensee or as a
person in permissive occupation. The
initial onus to prove the ground of
eviction, thus, rests on the landlord. But
the facts which are in the special
knowledge of the tenant must be proved
by tenant and the tenant cannot take
advantage of the onus of proof to
withhold the best
evidence in
his
possession or power to satisfy the Court
with regard to the correctness of the case
set up by him.

16. The word 'occupy' as used in Section
12 (1)(b) and Section 12 (2) of the Act
referred to above is quite significant. This
word is a word of uncertain meaning and
sometimes denotes legal possession in the
technical sense. However, at other times,
occupation denotes nothing more than the
physical presence in a place for a
substantial period of time. Its precise
meaning in any particular statute must
depend on the purpose for which and the
context in which it is used. As observed by
the Apex Court, the modern positive
approach is to have a purposeful
construction that is to effectuate the
object and purpose of the Act.

17. Under the scheme of the U.P. Act
No.13 of 1972 the word 'occupy' as used
in Sections 12(1) and 12(2) of the said Act
appears to have been made connoting
different meanings. This word so far as
Section 12 (2) (b) is concerned denotes
physical possession while this word as
used in Section 12(2) of the Act denotes
legal possession in the technical sense. In
order to attract Section 12 (1)(b) it has to
be established that the tenant has allowed
the demised premises or any part thereof
to be physically occupied by any person
who is not a member of his family and
once the fact of the demised premises or
any
part
thereof
being
physically
occupied by a person contemplated under
Section 12 (1)(b) is established as
indicated above the presumption of fact
about the sub-tenancy having come into
existence becomes available to the
landlord by virtue of the legal fiction
envisaged under explanation to Section
25 of the Act."

6. AIR 1999 Supreme Court, 3087
Resham Singh Appellant v. Raghbir
Singh and another, Respondents

"9. As stated above, it is settled position
of law that burden of making a case of
subletting is on the landlord/landlady. In
the present case there is no evidence
regarding parting of possession of the suit
premises by respondent No. 1-Raghbir
Singh in favour of his brother respondent
1 All] Sri Sunil Kumar Verma V. Devendra Prakash Bansal and another
177
No. 2-Kuldip Singh and that said Kuldip
Singh was in an exclusive possession of
the suit premises. There is also no
evidence of relationship of lessee and
lessor between the two brothers. For the
reasons stated above we do not find any
merit
in
the
present
appeal
and
accordingly dismissed."

7. (1987) 4 Supreme Court Cases 161
Dipak
Banerjee
Vs.
Lilabati
Chakraborty

"7. The question in this case is whether
the alleged subtenant was in exclusive
possession of the part of the premises and
whether the tenant had retained no
control over that part of the premises.
There is no evidence on the fact that the
alleged subtenant was in exclusive
occupation of any part of the premises
over which the tenant had not retained
any control at all. On this aspect neither
was there any pleading nor any evidence
at all. No court gave any finding on this
aspect at all. In that view of the matter
one essential ingredient necessary for a
finding, the case of subtenancy has not
been proved. If that is so, the trial court,
the first appellate court and the High
Court were in error in holding that the
subtenancy was proved."

8. A.I.R. 1977 Supreme Court, 2262
Smt. Chander Kali Bail and others V.
Jagdish Singh Thakur and another.

9. 2006(1) AWC 256 J.C.Thind Vs.
Union of India and others

"27. In Navinchandra N. Majithia v. State
of Maharashtra and others, 2000 (4)
AWC 3040 (SC): AIR 2000 SC 2966, the
Hon'ble Supreme Court while considering
the provisions of Clause (2) of Article 226
of the Constitution, observed as under:
"In legal parlance the expression
'cause of action' is generally understood
to mean a situation or state of facts that
entitles a party to maintain an action in a
Court or a Tribunal; a group of operative
facts giving rise to one or more basis for
suing ; a factual situation that entitles one
person to obtain a remedy in Court from
another person..... Cause of action is
stated to be the entire set of facts that
gives rise to an enforceable claim; the
phrase comprises every fact, which, if
traversed, the plaintiff must prove in
order to obtain judgment...... the meaning
attributed to the phrase 'cause of action'
in common legal parlance is existence of
those facts which given a party a right to
judicial interference on his behalf."

10. 2005(1) AWC 138 (SC) Janki
Vashdeo Bhojwanti and another Vs.
Indusind Bank Ltd. and others

13. Order III, Rules 1 and 2, C.P.C.,
empowers the holder of power of attorney
to "act" on behalf of the principal. In our
view the word "acts" employed in Order
III, Rules 1 and 2, C.P.C., confines only in
respect of "acts" done by the power-ofattorney holder in exercise of power
granted by the instrument. The term
"acts" would not include deposing in
place and instead of the principal. In
other words, if the power-of-attorney
holder has rendered some "acts" in
pursuance to power-of-attorney holder
has rendered some "acts" in pursuance to
power-of-attorney, he may depose for the
principal in respect of such acts, but he
cannot depose for the principal for the
acts done by the principal and not by him.
Similarly, he cannot depose for the
principal in respect of the matter which
178 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
only the principal can have a personal
knowledge and in respect of which the
principal
is
entitled
to
be
crossexamined."

11. Allahabad Rent Cases, 1999 (2)
Vishwanath Singh Vs. Special Judge
(E.C.Act), Varanasi and others

"11. Section 12(1)(b) provides that the
building shall be deemed to have been
ceased to be occupied if the landlord or
the tenant has allowed to be occupied by
any person who is not a member of his
family. The word used is "occupation".
This occupation must be on transfer of
possession by the tenant. If the possession
is not transferred to another person it
cannot be treated as occupation of such
third person. If a servant, guest or
relative lives together with the tenant,
they cannot be said to have occupied the
accommodation in their own right on
transfer of possession by the tenant.

14. In Jagdish Prasad v. Smt. Angori
Devi, 1984 (1) ARC 679, interpreting the
provisions of Sections 12 (1) (b), 1292)
and 20 (2)(e) the Court held that merely
from the presence of a person other than
the tenant in the shop, subletting cannot
be presumed. There may be several
situations in which a person other than
the tenant may be found sitting in the
shop; for instance, he may be a customer
waiting to be attended to; a distributor
who may have come to deliver his goods
at the shops for sale; a creditor coming
for collection of the dues; a friend visiting
for some social purpose or the like. As
long as control over the premises is kept
by the tenant and the business run in the
premises is of the tenant, subletting
flowing from the presence of a person
other than the tenant in the shop cannot
be assumed."

6. On the other hand, Sri K.M.Garg,
learned counsel for respondents submits
that in view of allegation made in para 5
of the plaint, a specific averment has been
made that petitioner has sub-let the shop
in question, and therefore, a deemed
vacancy as provided under Section
12(1)(2) of the Act has been created.
Petitioner has deliberately filed forged
photograph which is apparent from the
application
dated
19.8.2008.
Further
finding recorded by courts below are
finding of fact and needs no interference
by this Court. It is well settled in law that
the point which has not been raised before
the court below cannot be raised before
this Court first time. There was no
suggestion before the court below that it
is not the photograph of respondent No.2.
The Judge, Small Causes Court as well as
revisional court has recorded a cogent
finding on the basis of evidence on record
that shop in question has been sub-leted to
respondent No.2 and petitioner is living
and doing business in Kankhal and it is
away from district Meerut and having
shop in Kankhal in front of Ram Krishna
Mission Hospital. In such situation, it
cannot be inferred by any means that shop
in question has not been sub-let by
petitioner
to
respondent
No.2
and
therefore the order passed by court below
is perfectly legal and based on evidence
on record.

7. Learned counsel for respondents
has placed reliance upon paras 11 to 20 of
the case in Gur Dayal Khanna and
others Vs. Smt. Malti Devi and others
reported in 1992 (2) ARC 456. He has
further placed reliance upon paras 13 to
22 in the case of Joginder Singh Sodhi
1 All] Sri Sunil Kumar Verma V. Devendra Prakash Bansal and another
179
Vs. Amar Kaur reported in (2005) 1
Supreme Court Cases 31, reliance has
also been placed upon paras 98 to 101
reported in 2003 (2) ARC 347 Kashi
Nath Vs. Sushila Rastogi. Learned
counsel for respondents has also placed
reliance upon the following judgments
which are quoted below:-

AIR 1998 Supreme Court, 1240
M/s.
Bharat
Sales
Ltd.
v.
Life
Insurance Corporation of India.

"4. Sub-tenancy or sub-letting comes
into existence when the tenant gives up
possession
of
the
tenanted
accommodation, wholly or in part, and
puts
another
person
in
exclusive
possession thereof. This arrangement
comes about obviously under a mutual
agreement or understanding between the
tenant and the person to whom the
possession is so delivered. In this process,
the landlord is kept out of the scene.
Rather, the scene is enacted behind the
back of the landlord, concealing the overt
acts
and
transferring
possession
clandestinely to a person who is an utter
stranger to the landlord, in the sense that
the landlord had not let out the premises
to that person nor had he allowed or
consented to his entering into possession
over the demised property. It is the actual,
physical and exclusive possession of that
person, instead of the tenant, which
ultimately reveals to the landlord that the
tenant to whom the property was let out
has put some other person into possession
of that property. In such a situation, it
would be difficult for the landlord to
prove, by direct evidence, the contract or
agreement or understanding between the
tenant and the sub-tenant. It would also
be difficult for the landlord to prove, by
direct evidence, that the person to whom
the property had been sub-let had paid
monetary consideration to the tenant.
Payment of rent, undoubtedly, is an
essential element of lease or sub-lease. It
may be paid in cash or in kind or may
have been paid or promised to be paid. It
may have been paid in lump-sum in
advance covering the period for which the
premises is let out or sub-let or it may
have been paid or promised to be paid
periodically.