C.R.No.5648 of 2010 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.5648 of 2010 Date of decision: 26.9.2011 Lakhwinder Singh and another ...Petitioners vs Vijay Shamsher Singh and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.B.R.Mahajan, Advocate, for the petitioners. -- Rakesh Kumar Garg,J. This is tenants' revision petition challenging the impugned order dated 15.06.2010 passed by the Appellate Authority, whereby order dated 25.09.2008 of the Rent Controller, ordering his eviction was upheld. Respondent No.1 filed an ejectment petition against the petitioners from the demised premises on various grounds i.e.non-payment of rent, subletting by petitioner No.1 in favour of petitioner No.2 without written consent of respondent No.1 and material alterations in the basic structure of the building which has materially impaired the utility of the premises in question. However, the eviction was ordered by the Rent Controller, only on the ground of subletting by petitioner No.1 in favour of petitioner No.2. The relevant paragraphs of the order dated 25.09.2008 of Rent Controller read thus: “ I have given a careful thought to the respective submissions and have also gone through the evidence, C.R.No.5648 of 2010 2 which has come on the file. One thing which clearly stands out in the present petition is the parting of possession by respondent No.1 in favour of respondent No.2. The fact that it was respondent No.2 who had to file the suit for mandatory injunction and for permanent injunction for restoration of electric connection after the same was disconnected at the instance of the landlord shows that it is respondent No.2 who is in effective control of the premises in dispute. The power of attorney Ex.P1 is dated 23.04.2001, no doubt vide the same respondent No.1 tenant has ratified the acts of respondent No.2 qua the premises in dispute, the court cannot but help observe that the general power of attorney qua demised premises and the business in the said premises is a ploy to wriggle out of the bar of subletting. No doubt, in the present case, nothing has come on record to show that there was monetary consideration for the parting of possession, in the case titled Bimal Kumar & anr.vs.Ajay Kumar in 2008 (2) RCR 97 it was held that where it is established that tenant parted with possession of premises in favour of another person then proof of payment of monetary consideration is not sine-qua-non to establish subletting. In fact even in the case titled Nirmal Kanta vs.Ashok Kumar(supra) while discussing subletting, it was held that subletting came into existence when tenant inducts a third party/stranger to the rented accommodation and parted C.R.No.5648 of 2010 3 with possession thereof wholly or in part in favour of such third party and landlord produced proper evidence to that effect, the creation of sub-tenancy stands established. In the said case, the plea of landlord was dismissed on the ground that landlord had failed to prove the parting of possession by the tenant and not on the ground that the landlord had failed to prove the monetary consideration. In fact in the case titled Ashwani Kumar Prashar vs.Anil Kapoor(supra) the Hon'ble High Court went to the extent of observing that even the transfer of business by the tenant to his brother amounted to subletting and that it can be presumed that possession has been transferred for some consideration. In the instant case, respondent No.2 is not a blood relation of respondent No.1. Respondent No.1 Lakhwinder Singh happens to be a friend of brother in law of respondent No.2. Though it is the stand of respondent No.2 that Lakhwinder Singh has been visiting India off and on, not even once during the trial of present case did respondent No.1 come present in the court and deem it fit to depose as his own witness. As per respondent No.2, Lakhwinder Singh lastly visited India in January 2008, yet no effort was made by said Lakhwinder Singh to come present in the Court and to depose qua his possession and control of business being run in the demised premises. The respondent No.2 has failed to bring on record any C.R.No.5648 of 2010 4 documentary evidence showing the share of profits by respondent No.1 rather it is his categorical statement in his cross-examination that he prepares polythene bag in the said premises. The onus to prove that respondent No.1 has parted with possession of demised premises was on the petitioner which onus has been duly discharged by the petitioner. Thereafter, it was for the respondents to explain the circumstances, in which respondent No.2 is in exclusive possession of the premises. The said circumstances have been tried to be explained by producing on record the power of attorney in favour of respondent No.2. However,nothing has come on record to show that the profits of the business are being sent to respondent No.1 or that it is the respondent No.1 who is in effective control of the business being tenant in the demised premises. Rather, respondent No.1, is reportedly residing abroad for the last number of years and is no longer in possession of the premises. In these circumstances, it can safely be said that respondent No.1 has sublet the premises in dispute to respondent No.2 without the consent of petitioner. This issue is held in favour of petitioner against the respondent. Petitioners filed an appeal against the aforesaid order dated 25.09.2008 of the Rent Controller before the Appellate Authority challenging the said order of eviction. The said appeal, on behalf of petitioner No.1 was filed by petitioner No.2 being his attorney. C.R.No.5648 of 2010 5 While dismissing the appeal, the appellate authority observed as under: I have considered the contentions as raised by counsel for the parties. From the pleadings and evidence on the record, it is clear that the respondent No.1 has left India for England in the year 2000 and it is also admitted that the respondent No.2 is in exclusive possession of the demised premises. However, the stand of the respondent No.2 is that he is in possession of the demised premises as caretaker/general power of attorney of respondent No.1. However, no permission was taken by respondent No.1 from the landlord for delivering the possession to respondent No.2 as a caretaker/power of attorney. Our Hon'ble High Court in the judgment reported as 2004(2) Rent Control Reporter page 174 Ashwani Kumar Prashar and another vs.Anil Kumar has held that in case tenant transferred his own business to another town and handed over the possession of demised premises to his brother without permission of landlord. It can be presumed that possession has been transferred for some consideration. In another judgment reported as 2008 (2) Rent Control Reporter page 97(supra), it has been observed that when it is established that the tenant has parted with possession of premises in favour of C.R.No.5648 of 2010 6 another person then proof of payment of monetary consideration is not sine-qua-non to establish subletting. Further, as per judgment reported as 1998 (2) Rent Control Reporter page 279(supra) wherein it was observed that if the landlord establishes parting of possession in favour of third party, the onus is shifted to the tenant to establish in what capacity is this party's possession. It has been further pleaded by the landlord that the alleged power of attorney is camouflage to forfeit the claim of landlord. In that situation the onus has shifted to the respondent to prove the fact that respondent No.2 is in possession of the demised premises as a caretaker/power of attorney and actually the business is being run by the respondent No.1. The business has expanded, the load of electricity was increased, which is clear from the civil suit pending between the parties and copy of the judgment of the Court of Sh.Bhupinder Singh Sidhu, Additional District Judge, Nawanshahar, Ex.R7 for regulating the electricity supply to the respondents allegedly disconnected at the instant of the landlord. But no document worthwhile has been produced on the record by the respondent No.2 in his statement that entire business is being run by the respondent No.1 and he is just a caretaker/power of attorney. Moreover, the respondent No.1 has not stepped into the C.R.No.5648 of 2010 7 witness box to say that the entire business is being run by him and that respondent No.1 is just a attorney. Therefore, where the best evidence has been withheld by the respondents, then adverse inference is to be taken against the respondents. Mere execution of power of attorney is not sufficient that the respondent No.2 is a power of attorney, that may be device for subletting the premises. Moreover, the respondent No.2 is not in any way related to the respondent No.1 that he will allow his business to be run by respondent No.2. In this context, the judgment 2004(2) Rent Control Reporter page 174(supra) is fully applicable to the facts and circumstances of the case. The judgment so relied upon by the counsel for the appellants 1992 (2) Rent Law Reporter page 376(supra) deals that sub- tenant has to prove that he is working as caretaker or in other capacity. But in view of the observations given above, the respondents have not been able to prove on record that respondent No.2 is actually working as caretaker/power of attorney of respondent No.1 or that the entire business is in the name of respondent No.1. Moreover, for a certain period, i.e.before execution of the power of attorney dated 23.04.2001, there is no power of attorney in favour of respondent No.2 and respondent No.1 has left India in the year 2000. Therefore, during the intervening C.R.No.5648 of 2010 8 period, even respondent No.2 was not a power of attorney of respondent No.1. So far as the judgment relied upon by the counsel for the appellant AIR 1971 Supreme Court page 761(supra) first power of attorney was not fully authenticated, whereas second power of attorney duly validates transaction and registration. The second has ratified the first and the ratification relates back to the date of act done. But in this case the power of attorney for the first time was given with effect from 23.04.2001. There is no averment in the power of attorney that he will take over from the date, in any date in the year 2000 when respondent No.1 had left India. Therefore, ratification of this power of attorney as it is, cannot be taken way back to the year 2000. Taking the case of parties, this Authority is of the opinion that the learned Rent Controller was fully justified in holding that the respondent No.1 has sublet the demised premises in favour of respondent No.2. Therefore, the findings of the learned Rent Controller on issue No.2 are hereby affirmed. It is also relevant to mention that on 2.8.2011, this Court passed the following order:- “This is tenant's revision petition challenging the impugned order of the Appellate Authority dated 15.6.2010 whereby his appeal against the order of eviction was dismissed. The aforesaid order has never C.R.No.5648 of 2010 9 been stayed till date. Let an affidavit of the petitioner be filed regarding the status of the execution of the impugned order. List on 2.9.2011.” Petitioner No.2 has filed an affidavit of Jaskaran Singh to state that the petitioners have put in appearance before the Executing Court. I have heard the learned counsel for the petitioner and perused the impugned order/judgment. Both the Courts below on appreciation of evidence have recorded a finding that petitioner No.1 has left India for England in the year 2000 and admittedly petitioner No.2 is in exclusive possession of the demised premises. It is the pleaded case of the petitioners that petitioner No.2 is in possession of the demised premises as care taker/general power of attorney of petitioner No.1. However, it has been found that the alleged power of attorney is camouflage to defeat the claim of the respondent landlord. The petitioners have not been able to prove that petitioner No.2 is actually working as caretaker/general power of attorney of petitioner No.1 or entire business is in the name of petitioner No.1. It could not be disputed that before executing the power of attorney dated 23.4.2001, there was no power of attorney in favour of the petitioner No.2 whereas petitioner No.1 has left India in the year 2000. Thus, even on the basis of the aforesaid power of attorney, the petitioners have no case and the Courts below were justified in holding that petitioner No.1 had sublet the demised premises in favour of respondent No.2. It is well settled that if the landlord establishes parting of possession in favour of third party, the onus is shifted to the tenant to C.R.No.5648 of 2010 10 prove in what capacity is his party's possession Learned counsel for the petitioners is unable to challenge the findings of the Courts below by pointing out any material/irregularity in the impugned judgment/orders of the Courts below. Thus, I find no merit in this revision petition and the same is dismissed. (Rakesh Kumar Garg) Judge September 26, 2011 rk