Flora Elias Nahoum And Ors. vs Idrish Ali Laskar

Flora Elias Nahoum & Ors. .... Appellants

Versus

Idrish Ali Laskar …. Respondent

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal arises from the final judgment and

final order/decree dated 07.07.2005 passed by the

High Court of Calcutta in F.A. No.416 of 1984

whereby the Division Bench of the High Court

Signature Not Verified dismissed the eviction suit filed by the appellants Digitally signed by ASHA SUNDRIYAL Date: 2018.01.25

against the respondent and set aside the decree for 16:22:28 IST Reason: 1 eviction passed by the Trial Court in their favour

and against the respondent.

2. In order to appreciate the issues involved in

this appeal, it is necessary to set out the facts in

detail herein-below.

3. The appellants are the plaintiffs (landlords)

whereas the respondent is the defendant (tenant) in

the eviction suit out of which this appeal arises.

4. The appellants (plaintiffs) are the

owners/landlords of one shop (room) bearing

premises No.1, Hartford Lane, Calcutta (hereinafter

referred to as “the suit shop”), which was originally

owned by Late Nahoum Elias and Miss Resmah

Nahoum. The present appellants are the

successors-in-interest of the suit shop. They had let

out the suit shop to one - Alfajuddin Laskar on a

monthly rent of Rs.40/-. In the suit shop,

2 Alfajuddin Laskar used to do the business of sale of

eggs under the name “24, Parganas Egg Stores”.

5. Alfajuddin Laskar expired in 1976. The

respondent being his son became the tenant of the

appellants on same terms and conditions. The

respondent, however, closed his father's business of

selling of eggs and started his tailoring business

under the name “New India Tailors” in the suit

shop.

6. In 1978, the appellants filed an Eviction Suit

against the respondent under the provisions of the

West Bengal Premises Tenancy Act, 1956

(hereinafter referred to as “the Act”. The eviction

was claimed on four grounds, viz., default in

payment of monthly rent, bona fide need,

sub-letting and lastly, making of unauthorized

construction in the suit shop by the respondent.

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7. The respondent filed the written statement and

denied all the four grounds. Parties adduced their

evidence. The Trial Court, by order dated

30.01.1984, partly decreed the suit. It was held that

so far as the grounds relating to default of rent and

bona fide need are concerned, both are not made

out whereas the other two grounds, namely,

sub-letting and making of unauthorized

construction in the suit shop, both stood made out

against the respondent.

8. In this view of matter, the appellants’ suit was

decreed in part against the respondent and the

decree for eviction on the ground of sub-letting and

unauthorized construction made by the respondent

in the suit shop was passed. The respondent was

granted six months’ time to vacate the suit shop

and handover its vacant possession to the

appellants.

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9. Being aggrieved by the said order, the

respondent filed appeal before the High Court at

Calcutta. The appellants, however, did not file any

cross appeal or cross-objection against that part of

the order by which two grounds, viz., default in

payment of rent and bona fide need were held not

made out. The judgment of the Trial Court thus

became final to that extent.

10. Therefore, the only question before the High

Court was whether the Trial Court was justified in

decreeing appellants’ suit on the grounds of

sub-letting and making of unauthorized

construction in the suit shop.

11. In other words, the question was whether the

Trial Court was right in holding that the ground of

sub-letting and making of unauthorized

construction in the suit shop was made out.

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12. The High Court, by impugned judgment,

allowed the respondent’s appeal and dismissed the

appellants’ eviction suit. The High Court held that

no ground of either sub-letting or an unauthorized

construction was made out, hence, the suit was

liable to be dismissed in its entirety. It was

accordingly, dismissed.

13. Against this judgment, the landlords felt

aggrieved and filed this appeal by way of special

leave in this Court.

14. Heard Ms. Daisy Hannah, learned counsel for

the appellants and Mr. Zakiullah Khan, learned

senior counsel for the respondent.

15. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while setting

aside of the impugned judgment, we restore that of

6 the Trial Court and, in consequence, decree the

appellants’ suit in part, as indicated below.

16. There can be no dispute to the legal

proposition that even if the landlord is able to make

out only one ground out of several grounds of the

eviction, he is entitled to seek the eviction of his

tenant from the suit premises on the basis of that

sole ground which he has made out under the Rent

Act.

17. In other words, it is not necessary for the

landlord to make out all the grounds which he has

taken in the plaint for claiming eviction of the

tenant under the Rent Act. If one ground of eviction

is held made out against the tenant, that ground is

sufficient to evict the tenant from the suit premises.

18. As mentioned above, the Trial Court held that

the appellants were able to make out two grounds

for respondent's eviction, namely, sub-letting and

7 unauthorized construction made by him in the suit

shop. The High Court, accordingly, reversed the

findings on these two grounds and dismissed the

suit.

19. We consider it proper to examine first, the

ground of sub-letting with a view to find out as to

whether the plaintiffs (appellants) were able to make

out this ground against the respondent. In other

words, let us first examine as to whether the Trial

Court was right or the High Court was right on this

issue.

20. In order to examine, whether the ground of

sub-letting is made out or not, it is necessary to see

as to how this ground was pleaded and sought to be

proved by the parties.

21. The appellants, in Para 4 of the plaint, pleaded

the case of sub-letting as under:

“4. The defendant after acquiring right of tenancy in respect of the said shop

8 room after his father’s death, wrongfully transferred possession of the said shop room to one Joynal Mallick evidently for creating a sub-tenant in his favour in respect of the suit shop room without obtaining the permission and consent of the plaintiffs.”

22. The respondent, in reply to Para 4 of the

plaint, gave the following reply in Para 9 of his

written statement as under:

“9. The defendant denies the allegations made in paragraph 4 of the plaint and in particular denies the allegations that he has transferred possession of the shop under his tenancy to one Joynal Mullick or anybody as falsely alleged.”

23. It is clear from the perusal of the pleadings

that the case of the appellants was that the

respondent has sub-let and parted with possession

of the suit shop to one Joynal Mullick without

appellants’ consent.

24. So far as the respondent is concerned, he

simply denied the appellants’ case in para 9 saying

that he has not sub-let the suit shop to anyone,

9 much less to Joynal Mullick, as claimed by the

appellants.

25. The respondent examined himself as witness

No.1 and examined Joynal Mullick as witness No.2.

26. In examination-in-chief, the respondent

changed his stand and said that he has not sub-let

the suit shop to Joynal Mullick but he is in his

employment. This is what he said:

“It is not a fact that I sublet the shop room in suit to one Jainal Mullick. Jainal Mullick is in my employment.”

27. The respondent further in his

cross-examination again changed his stand and in

answer to a specific question put to him as to

whether he has employed any person in his tailoring

business said "no". This was his reply:-

“No. In the tailoring business I have no employee but the work is done on contract basis.”

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28. The respondent then in answer to another

question put to him as to how many persons work

for you on contract basis in his tailoring business,

his reply was- four persons and out of four, Joynal

Mullick and Jahangir Mullick were his employees.

This is what he said:-

“Najrul Islam and Sayed, Volunteers – Besides these persons there are two other persons who look after the business in my absence. They are Jainal Mullick and Zahangir Mullick volunteers. These two persons are my employee.”

29. The respondent then was asked another

question, viz., Did he disclose the name of any of his

employee while submitting the declaration form

under the Shops and Establishment Act, his reply

was “no”. This is what he said:-

“I am the owner of the tailoring shop. Volunteers – fresh declaration has been submitted about 10/12 days back. In that declaration I have not declared that these two persons Jainal and Zahangir are my employees.”

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30. The respondent was then asked last pointed

question - whether Joynal Mullick is doing business

in the suit shop. To this, his reply was that Joynal

Mullick is his business partner. This is what he

said:-

“I obtained the trade license from the Corporation of Calcutta for the business carried in the shop showing Jainal Mullick and Zahangir Mullick as my partners in the business. It is not a fact that Jainal and Zahangir are not my employees.”

31. Joynal Mullick then in his evidence said that

he is an employee of the respondent for the last 7/8

years and whatever the respondent (his owner) tells

him to do, he does it while sitting in the suit shop.

He stated that, in his presence, the respondent had

constructed "Macha" in the suit shop. He said that

he joined the business under the name "New India

Tailor".

32. Keeping in view the statements of the

respondent and Joynal Mullick, the question arises

12 as to whether a case of sub-letting and parting of

possession of the suit shop in favour of Joynal

Mullick, whether whole or in part, is made out.

33. Section 13(1)(a) of the Act deals with the

ground of sub-letting and provides that where the

tenant or any person residing in the premises let to

the tenant without the previous consent in writing

of the landlord transfers, assigns or sublets in

whole or in part the premises held by him, then it is

a ground for the tenant’s eviction from the tenanted

premises.

34. In our considered opinion, keeping in view the

pleadings and the nature of the evidence adduced

by the parties, the ground of sub-letting, as

contemplated under Section 13(a) ibid, is made out.

This we say for the following reasons.

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35. In the first place, we find that the respondent

(tenant), since inception, was taking inconsistent

stand on the question of sub-letting.

36. To begin with, he denied having sub-let the

suit shop to anyone in his written statement. Then,

contrary to what he alleged in the written

statement, he said in his examination-in-chief that

Joynal Mullick was his employee. Then, again

contrary to this statement, he said, in next breath,

that Joynal Mullick is his partner in tailoring

business.

37. So far as Joynal Mullick is concerned, he

admitted that he has been sitting in the suit shop

for the last 7/8 years but he has been sitting in a

capacity as an “employee” of the respondent.

38. In our opinion, the contradictory stand of the

respondent and that too without any evidence

clearly leads to an inference that the respondent

14 was unable to prove, in categorical terms, as to

which capacity, Joynal Mullick was sitting in the

suit shop - whether as an "employee" or a "business

partner" or in any “other capacity”.

39. It seems that the respondent was not sure as

to what stand he should take to meet the plea of

sub-letting. He, therefore, went on changing his

stand one after the other and could not prove either.

40. In our view, since the respondent had admitted

the presence of Joynal Mullick in the suit shop, the

burden was on him to prove its nature and the

capacity in which he used to sit in the suit shop.

41. In other words, if Joynal Mullick was the

respondent’s employee then, in our view, he should

have proved it by filling a declaration form, which

he had submitted under the Shops and

Establishment Act to the authorities. But it was not

done. Rather he admitted that he did not disclose

15 the name of Joynal Mullick in the declaration form.

That apart, the respondent could have proved this

fact by filing payment voucher, or any other relevant

evidence to show that Joynal Mullick was his

employee and that he used to sit in the suit shop in

that capacity only. It was, however, not done.

42. Second, if Joynal Mullick was a partner of the

respondent in the tailoring business then the

respondent could have proved this fact by filing a

copy of the partnership deed. However, he again

failed to produce the copy of partnership deed. In

this way, he failed to prove even this fact.

43. Now so far as the appellants are concerned,

they appear to have discharged their initial burden

by pleading the necessary facts in Para 4 and then

by proving it by evidence that firstly, they let out the

suit shop to the respondent and secondly, the

respondent has sub-let the suit shop to Joynal

16 Mullick, who was in its exclusive possession

without their consent.

44. In a case of sub-letting, if the tenant is able to

prove that he continues to retain the exclusive

possession over the tenanted premises

notwithstanding any third party’s induction in the

tenanted premises, no case of sub-letting is made

out against such tenant.

45. In other words, the sin qua non for proving the

case of the sub-letting is that the tenant has either

whole or in part transferred or/and parted with the

possession of the tenanted premises in favour of

any third person without landlord's consent.

46. This Court in Bharat Sales Ltd. vs. Life

Insurance Corporation of India (1998) 3 SCC 1,

while dealing with the case of sub-letting succinctly

explained the concept of sub-letting and what are

its attributes.

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47. Justice Sagir Ahmad, speaking for the Two

Judge Bench, held as under:

“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

18 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. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.”

48. In our considered opinion, the aforesaid

principle of law fully applies to the case at hand

against the respondent due to his contradicting

stand and by admitting Joynal Mullick’s presence in

the suit shop but not being able to properly prove

the nature and the capacity in which he was sitting

in the suit shop.

49. In view of the foregoing discussion, we have

formed an opinion that the appellants were able to

prove the case of sub-letting against the

respondent.

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50. We cannot thus concur with the reasoning and

the conclusion arrived at by the High Court and

instead prefer to agree with the conclusion of the

Trial Court insofar as it relates to the ground of

sub-letting. In view of this, it is not necessary to

examine the other ground relating to making of

unauthorized construction by the respondent in the

suit shop.

51. In the result, the appeal succeeds and is

allowed. The impugned judgment is set aside and

that of the Trial Court is restored.

52. The respondent is, however, granted three

months’ time to vacate the suit shop, subject to the

respondent filing in this Court a usual undertaking

that he will deposit the entire arrears of rent up to

the date as per the agreed rate within one month

and will also deposit the mesne profits for a period

of three months up to the date of vacation in

20 advance at the agreed rate and would vacate the

suit shop on or before 30.04.2018.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

January 25, 2018

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