Civil Appeal No 1127 of 1985
From the Judgment and order dated 29884 of the Delhi High Court in SAO No 40 of 1984
Rajinder Sachhar and Mrs Rani Chhabra for the Appellants
AK Ganguli and EMS Anam for the Respondents
The Judgement of the Court was delivered by 327 SABYASACHI MUKHARJI J
This appeal by special leave is directed against the judgement and order of the High Court of Delhi dated 29th August 1984
One Jagan Nath since deceased was the original tenant of the premises in question
He died during the pendency of this appeal here
His sons have been substituted
The tenancy in question started on 1st January 1962
It appears that on 7th November 1967 notice was addressed to Shri Baldev Raj describing him as sole proprietor of Ms Bindra Tent House New Delhi for eviction
There was an increase in rent in July 1970
The respondent herein filed the petition against the appellant herein Jagan Nath under section 141a and 141b of the Delhi Rent Control Act 1958 hereinafter called the Act for eviction of the appellant from the premises consisting of one room forming part of premises No N 80 Kirti Nagar New Delhi as the appellant herein had not paid rent with effect from 1st May 1975 till 30th April 1977 at the rate of Rs75 per month despite service of the demand notice dated 8th January 1976
It was the further case of the respondent herein that the appellant had after 9th June 1962 sublet assigned or otherwise parted with possession of the premises to Shri Baldev Raj Bindra and Sat Pal Bindra without the consent in writing of the respondent landlord
The suit was filed before the Additional Rent Controller and the same was contested on various grounds
It was contended that the petition was not maintainable because of non joinder of Shri Baldev Raj Bindra and Sat Pal Bindra
The premises in question is residential cum commercial
It was stated that Shri Baldev Raj Bindra and Sat Pal Bindra are the sons of the original appellant since deceased
The said tenant was in exclusive possession of the premises and was carrying on his business therein with which it was stated Baldev Raj and Sat Pal had no concern
They are the sons of the tenant since deceased and had constituted a Hindu Undivided Family
No demand notice was ever served upon the tenant
The tenant tendered the rent to the landlord by money order for an amount of Rs450 which he refused to accept
The Additional Rent Controller so far as the ground of nonpayment of rent was concerned held that there was a compliance with the order passed under section 151 of the Act
The Additional Rent Controller gave the tenant the benefit under section 142 of the Act
The petition of the landlord on the ground of non payment of rent was therefore dismissed
The other ground was the ground of eviction claimed by the landlord for subletting assignment or parting with the possession of the premises in question by the tenant hl favour of his sons Baldev Raj and Sat Pal Bindra
The landlord in his deposition had stated that since 328 1st July 1971 Baldev Raj and Satpal were running their business in the name of Ms Bindra Tent House in partnership and they were in possession of the premises in question
The tenant had no concern with the business carried on in the demised premises and the tenant had retired
The tenant in his cross examination had stated that he had sent partnership document and Form II to the Income tax Department
13 The landlord had denied the suggestion that the said Jagan Nath was in possession of the premises and his sons had been helping him from the very beginning
The landlord had produced on the record one statement made by the appellant herein Jagan Nath before the Income Tax officer photostat copy of which is Exhibit AW 31 on the record which indicated that Jagan Nath who was the proprietor of the Bindra Tent House sold the same for Rs18000 on 111970 to his sons Baldev Raj and Sat Pal and he got cash of Rs8000 and he gifted the other amount into two equal shares to his sons Baldev Raj and Sat Pal
In his statement Jagan Nath had stated that Sat Pal and Baldev Raj had entered into a partnership in the same name Ms Bindra Tent House in the same premises
This document was heavily relied upon before us by Shri Sachhar in aid of his submissions that the tenant had parted with possession
There is another document Exhibit AW 21
According to this document which is a photostat copy of the stamp vendor register non judicial papers for Rs13 Rs2 and Rs20 were purchased by Baldev Raj for partnership purposes in the name of Ms Bindra Tent House
Our attention was also drawn to the fact that an application for electricity connection was made by Sat Pal Bindra in the name of Ms Bindra Tent House on 25th July 1975 as the sole proprietor of the same
From these and other documents it was contended that there was parting of possession and as such the tenant was liable to be 
evicted
The Additional Rent Controller ordered the eviction under section 141b of the Act
He held that there was no subletting by the tenant Jagan Nath since deceased but he had unlawfully parted with the possession of the demised premises in favour of his sons Sat Pal and Baldev Raj without the consent in writing of the landlord
During the pendency of the appeal the tenant preferred an application under order 6 Rule 17 of the Code of Civil Procedure seeking permission to amend his written statement
The appellant contended that the landlord filed eviction petition in respect of the said premises against the appellant and his two sons which was assigned to Shri AP Chaudhary Additional Rent Controller
Another objection raised was that the property was taken on rent by Ms
Bindra Tent House 329 and therefore the petition for eviction was not maintainable
The application had been contested in which it had been admitted that the earlier petition for eviction was filed but according to the respondent it was not properly instituted and the same was withdrawn
It was denied that the application was not maintainable
The Tribunal on an analysis of the matter came to the conclusion that belated amendment could not be permitted
It was emphasised that the tenant had admitted in the written statement that he was a tenant in the property in question
He could not subsequently be allowed to wriggle out of this situation and withdraw the admission
If the amendment was allowed they would take valuable right of the other side and altogether a new plea would be taken it was held
This cannot be permitted
In this connection the Rent Tribunal relied upon the observations of the Assam High Court in Subashini Majumdar and another vs Krishna Prasad Mahatoo and Ors AIR 1956 Assam 79
The same view was reiterated by this Court in Ms Modi Spinning and Weaving Mills Co Ltd and another vs Ms Ladha Ram and Co 1977 l SCR 728 where the proposed amendment introduced an entirely new case seeking to displace the other side completely from the admission made then
It was held that such an amendment could not be allowed
We are of the opinion that the Rent Tribunal was therefore right in refusing the amendment on the basis of the aforesaid principle
The Tribunal on an analysis of evidence and facts came to the conclusion that there was no merit in the appeal and dismissed the appeal and affirmed the eviction order
The High Court on an analysis of the evidence and relevant authorities came to the conclusion that there was no substantial question of law and dismissed the second appeal
Hence this appeal
The question for consideration is whether the mischief contemplated under section 141b 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 330 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 clause b of section 141 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
It the father has a right to displace the possession of the occupants ie his sons it cannot be said that the tenant had parted with possession
This Court in Smt
Krishnawati vs Shri Hans Raj 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 sub letting and attracted the provisions of sub section 4 of section 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 section 141b of the Act
Shri Ganguly appearing for the landlord contended that the con duct of the tenant Jagan Nath had been as sitting on the fence and avoiding the issue
It is true that Shri Ganguly rightly pointed out that Jagan Nath the erstwhile tenant had not been fair and frank
But this is no ground to disentitle him to the benefit of the law if the facts have been proved that he had not parted with possession
After all it has to be borne in mind that this is a residential cum commercial premises
Jagan Nath was carrying on business in part of the building with his two sons
Jagan Nath had died therefore it will be just and proper to presume that they were carrying on business though perhaps the stand of the Jagan Nath was not always fair
In these days of acute shortage of accommodation both for living and for vocation one has to take the reality with a pinch of salt and the manner in which Shri Jagan Nath has conducted himself would not disentitle him the benefit of the law in the present climate
In the view we have taken this appeal must be allowed and the judgment and order of the High Court of Delhi and the Courts below are set aside
The eviction order is accordingly set aside
331 It has however to be borne in mind that rent in these areas has increased enormously
So while exercising our jurisdiction under Article 136 of the Constitution we will enhance the rent to four times
We are told that the mesne profit at present payable was Rs75 per month
We direct that mesne profitrent should be Rs300 per month
We further direct that this will not prejudice the rights of the respondent herein to file any proceedings for eviction on the ground of bona fide need if there is such a need or on any other ground available to the respondent for eviction under the Act
We give this direction in view of the facts alleged in the affidavit of Shri Chander Bhan Mehta affirmed on 6th April 1988
About the correctness or validity of the statements made therein we had no occasion to examine in this appeal
We have also taken into consideration the affidavit of Shri Baldev Raj Bindra affirmed on the 2nd May 1988 about the veracity of which also we express no opinion
In the facts of this case the appellants will pay to the respondent the costs of the appeal
RSS Appeal allowed


Summary:
The appellant sued his wife for dissolution of marriage on the ground of her adultery
On the evidence the trial court found that it was not possible to hold that adultery had been committed though it found that one of the letters contained a large substratum of truth
The High Court in appeal concurred with the decision
On appeal to the Supreme Court it was contended for the appellant that the finding of the courts below was vitiated because certain pieces of evidence had been misread and some others ignored
As a matter of legitimate and proper inference the Court should not have arrived at any other conclusion but that the wife was guilty of adultery with respondent NO 2
The evidence showed that the wife went to Patna and stayed in a hotel with respondent NO 2 under an assumed name that they occupied the same room in the hotel that the conduct of the respondent indicated a guilty inclination and that so far as the wife was concerned her conduct was entirely consistent with her guilt  Held that the nature of the evidence adduced was such as would satisfy the requirements of section 14 of the Divorce Act and that the finding of the Courts below that an inference of adultery could not be drawn therefrom must be set aside
Although it is not usual for the Supreme Court to interfere 1411 on questions of fact where however the courts below ignore or misconstrue important pieces of evidence in arriving at their finding and this Court is of the opinion that no tribunal could have come to such a finding oil the evidence taken as a whole such finding was liable to be interfered with by this Court
Held further that the words satisfied on the evidence in section 14 Of the Divorce Act 1869 imply that it is the duty of the Court to pronounce a decree only when it is satisfied that the case lhas been proved beyond reasonable doubt as to the commission of a matrimonial offence
The evidence must be clear and satisfactory beyond mere balance of probabilities
It is not neccessary and rarely possible to prove the issue by any direct evidence
The rule laid down in Preston Jones vs Preston Jones  lays down the principle that should be followed by tile courts under section 7 Of the Divorce Act
State of Madras vs A vaidanatha Iyer   Purvez Ardeshir Poonawala vs The State of Bombay Cr A 122 Of 1954 decided on December 20 1957 Stephen Seneviratne vs The AIR 1936 PC 289 Mordaunt vs Moncrieffe 1874 30 649 and Gower vs Gower 1950 1 All
ER 804 referred to
Loveden vs Loveden  1810 2 Hag
13 referred to
Preston Jones vs Preston Jones  relied upon