ivil Appeal No 1728 of 1989
From the Judgment and Order dated 1541982 of the Allahabad 838 High Court in Civil Misc
Writ Petition No 6324 of 1980
RK Garg MKD Namboodiri and section Balakrishnan for the Appellant
SN Kaicker Pradeep Kumar Jain for the Respondents
This tenant s appeal by special leave arises out of a suit for ejectment and recovery of arrears of rent and damages
The suit was brought by the respondents who claimed that a shop owned by them had been let to the appellant that the appellant had fallen in arrears of rent from 1 February 1968 and had not paid the arrears notwithstanding a notice of demand dated 8 January 1975 served on the appellant
The suit was decreed ex parte by the Trial Court and the decree was set aside by the first Appellate Court
In writ Petition before the High Court it was urged on behalf of the appel lant that the appellant had deposited the arrears of rent under sub section
4 of section 20 of the UP Urban Buildings Regulation of Letting Rent  Eviction Act 1972 and that therefore the Court should have made an order relieving the appellant against his liability for eviction on the ground of arrears of rent
The High Court noted that the suit was filed on 12 February 1975 and as the appellant did not appear on 4 April 1975 the day fixed in the summons the suit proceeded ex parte and was decreed
The High Court also noticed that upon subsequent application made by the appel lant the ex parte decree was set aside on 24 March 1977 and on 30 May 1977 the fresh date now fixed the appellant made a deposit of Rs2912 accompanied by an application stating that the said date was the first date of hearing and he was making a deposit of the entire arrears of rent
The appellant first stated that he was not obliged to deposit the entire arrears of rent as they were barred by time
However the appellant prayed for amendment of his plead ings
On 29 September 1977 the appellant sought to deposit the time barred arrears also and got the tender passed for that purpose
In pursuance of the tender the amount was deposited on 1 October 1977
The amendment application was allowed but when the matter came before the learned First Additional District Judge he took the view that the appel lant had failed to comply with the conditions of sub section
4 of section 20 of the Act
He held that 30 August 1977 was 839 the date of first hearing in the suit within the meaning of sub section
4 of section 20
He recorded that the parties did not dispute that the time barred arrears claimed by the respond ents were also required to be deposited under sub section
4 of section 20
As the time barred arrears had been deposited by the appellant on 1 October 1977 only the High Court took the view that the entire arrears of rent had not been deposited on or before the date of first hearing
The High Court declined to go into the further question whether the depos its made by the appellant on 1 October 1977 ought to relate back to 29 September 1977
In the result the High Court dismissed the Writ Petition
We have heard learned counsel for the parties and we see no reason to take a different view from that adopted by the High Court
The High Court was plainly right in holding that 30 August 1977 was the date of first hearing in the suit
As the suit was in the nature of a small cause suit and as the Provincial Small Causes Courts Act did not contemplate the fixation of any date for settlement of issues it must be taken that 30 August 1977 was the date of first hearing in the suit and inasmuch as the entire amount due as ar rears of rent had not been deposited within time the High Court was right in dismissing the writ petition
Accordingly the appeal is dismissed but there As no order as to costs
HLC Appeal dis missed


Summary:
The respondent Landlord filed a suit for eviction against the appellant tenant on 3 grounds namely 1 that the tenant had parted with possession of the roof of the shop let out to him by putting up an advertisement board ii by fixing the advertisement board on the roof of the shop with iron angles the tenant had caused material alter ation to the premises and iii the tenant had defaulted in the payment of rent
The tenant asserted that though he was carrying on optical business in the shop he was also running the business of advertisement by way of display of various advertisements hoardings hoards at various places in the city
The Trial Court decreed the suit on the ground of default in payment of rent material alteration and sub letting
The appellant preferred an appeal and the District Judge remanded the case back to the Trial Court for trial on all issues on the ground that the appellant had not been al lowed to cross examine the respondent or to adduce evidence in defence
On remand the Trial Court held that the appellant had caused material alteration by fixing the board on the roof had parted with possession of the roof by such fixing of the board had committed default in payment of rent and passed a decree for eviction against the appellant for causing material alteration and for parting with the possession of the roof
No decree was however passed on the ground of default because the default was held to be the first de fault
768 The appellant filed an appeal and the District Judge allowed the appeal on the ground that by displaying the advertisement board the appellant had not caused any mate rial alteration of the premises and that by displaying such advertisement board did not amount to parting with posses sion of the roof of the premises
With regard to default on an analysis of the dates of the payment the District Judge held that there was no default in payment of rent for six months but held that the default was the first default and consequently there could be no decree for eviction
The respondent preferred an appeal before the High Court
The appeal was allowed only on the issue of parting with possession holding that the display of the advertise ment board amounted to parting with possession of the prem ises
The High Court noted that the appellant had not dis puted that the advertisement board was installed on the roof of the shop and that he was getting the rent for this board and the document which was tendered viz Exhibit 6 showed that the company Paramount Services had written a letter to the respondent landlord that they had installed the board on the terrace of the shop and the site was with them for the last six months
The High Court accordingly concluded that there was parting with possession by the tenant and the landlord was therefore entitled to a decree for eviction under section 131e of the Act
In view of this finding under section 131e of the Act the High Court held it was unnecessary to go into the other grounds and passed a decree for eviction
In the appeal by the tenant to this Court on the ques tions 1 Whether the appellant was carrying on his own advertising business 2 Whether such an act can be termed as parting with possession of the roof or any part thereof by the appellant in favour of the advertiser because by putting up such hoarding he was getting a return 3 If it is found that it was not a business of the appellant to carry on the advertising but the appellant had also an advertising agency to put up its advertising board then would such an act amount to parting with possession of the roof or any part thereof by the appellant 4 In any event can any case or cause of action for the suit filed in 1974 on the basis of Exhibit 6 a letter dated January 20 1977 be maintained Allowing the appeal and setting aside the order of eviction the Court
HELD 1
Under the Rajasthan Premises Control of Rent and Eviction Act
1950 the tenant must be guilty either of an assignment or 769 sub letting or otherwise parting with possession either of the whole or any part of the business without the permission of the landlord
787A 2a Sub letting means transfer of an exclusive right to enjoy the property in favour of the third party 787B 2b The concept of parting with possession in private contracts between the landlord and tenant was also known in India and it means parting with legal possession to the exclusion of the grantor himself
787H 788A Stening vs Abrahams 1931 1 LR Chancery Division 470 referred to
Shalimar Tar Products vs HC Sharma  Others   Gundalpalli Rangamanner Chetty vs Desu Rangiah AIR 1954 Madras 182 Jackson vs Simons and Chaplin vs Smith  referred to
Gee vs Hazleton and Others 1932 1 King s Bench Divi sion 179 distinguished
Vishwa Nath vs Chaman Lal AIR 1975 Delhi 117 Madras Bangalore Transport Co West vs Inder Singh and Others  Dr Vijay Kumar and Others vs Ms Raghbir Singh Anokh Singh  BM Lal dead by LRs
vs Dunlop Rubber  Co Ltd   Rajbir Kaur vs Ms section Chokosiri and Co  and Shri Dipak Banerjee vs Smt
Lilabati Chakroborty 4 Judgment Today  referred to
In the instant case on the facts found it cannot be said or even argued that there was any assignment by the tenant
The tenant or the sub tenant did not have any exclu sive possession or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation
Having regard to the quality nature and degree of the occupation of the transferee it cannot be said that either there was any assignment or sub letting or parting with possession to such a degree by permitting the hoarding that the tenant had lost interest
He was using this premises for his benefit
Unless the tenant has in fracted the prohibition of the Act he is not liable to be evicted
1789B G 3
The question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality 770 of occupation given to the licensee or the transferee
Mere occupation is not sufficient to infer either sub tenancy or parting with possession
786A Associated Hotel of India Ltd Delhi vs SB Sardar Ranjit Singh  and Smt
Krishnawati vs Shri Hans Raj  referred to
The case rests on the express provision of the Act and there is no scope to explore the latent purpose of the Act
789G 5
The plaintiff landlord had not subjected himself to crossexamination in spite of the order of the court on remand
It would therefore not be safe to rely on the examination in chief which was not subjected to cross exami nation before the remand was made
If that is so it will appear that there is no evidence of the plaintiff in respect of the allegations in the plaint
There was no question of cross examining the plaintiff travelling beyond the evidence of the plaintiff given in examination in chief and thereby giving an opportunity to make out a case in cross examina tion
It therefore appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding
779D G