IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 2972 of 2007 Date of decision: 30.10.2008 Lal Singh. ....... Petitioner through Shri Akshay Bhan,Advocate. Versus Yashpal and another. ....... Respondent no.1 through Shri Rajinder Goyal, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This is a tenant's revision petition directed against judgment dated 8.5.2007 passed by the Appellate Authority, Jind by which he has been ordered to be evicted from the premises in question. The premises in dispute is a shop situated in Anaj Mandi, Jind. It was owned by one Om Parkash and after his death, Yashpal- respondent no.1 and other legal heirs of Om Parkash were impleaded as legal representatives before the Courts below. It was pleaded by the respondent-landlord, who filed a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act,1973 (for short, `the Act') that the shop in question had been leased out to Lal Singh-petitioner vide rent note dated 11.12.1989 at a montly rent of C.R.No.2972 of 2007 -2- .... Rs.1583.33 for a period of two months, but by the mutual consent, the rent was increased to Rs.1875/- per month w.e.f. 1.1.1996. The ejectment of the petitioner was sought on the following grounds:- 1. The petitioner was in arrears of rent w.e.f. 1.1.1997 to 28.2.1998 at the rate of Rs.1`875/- per month. 2. The petitioner had sub-let the tenanted premises to the proprietor of M/S Bajrang Trading Company without the consent of the landlord. The petition was contested by the petitioner, who denied the claims made by the respondent-landlord. On the pleadings of the parties, the following issues were framed by Rent Controller, Jind: 1. Whether the respondent is liable to be evicted from the shop in dispute on the grounds mentioned in para no.3 of the petition?OPP 2. Whether the petition is false and frivolous and the same is liable to be rejected?OPR 3. Whether the rent w.e.f. 1.1.97 to 31.12.97 was not due against the respondent, as alleged?OPR 4. If issue no.3 is proved, whether the respondent is entitled to the adjustment of the same with interest, as alleged?OPR 5. Relief. After examining the evidence led by the parties, the Rent Controller came to the conclusion that the petitioner was not liable to be C.R.No.2972 of 2007 -3- .... evicted from the premises in question. The ejectment petition was accordingly dismissed, which resulted in the filing of the appeal which was accepted by the impugned judgment by the Appellate Authority. It may be mentioned here that the issue of rent was rendered redundant because of the fact that the rent was tendered on 10.1.1998 with costs and interest as assessed by the Rent Controller. A counter claim of Rs.22500/- was made by the petitioner, but the same was given up on the statement made by the learned counsel for the petitioner. Therefore, the only surviving ground of challenge is that the premises in question was sub-let which was determined against the petitioner by the Appellate Authority. Assailing the finding of the Appellate Authority, it was contended by the learned counsel for the petitioner that there was no evidence to suggest that the premises in question was sub-let. He further contended that the finding that in the year 1997, the rent had been given by way of cheques from the account of the sub-tenant is wrong as these cheques have erroneously been considered as indicative of the premises in question being further let out. It was submitted that there was sufficient explanation which the petitioner had given to say that this was not actually the rent from the sub-tenant, but it was the loan amount from him which was handed over to the respondent – landlord by way of payment of rent. It was also contended that the evidence on which the Appellate Authority has relied upon to upset the findings of the Rent Controller was not worthy of credence and merely because the cheques had been issued would not imply C.R.No.2972 of 2007 -4- .... that the shop in question had been sub-let. Reliance was placed on Smt.Shanti Devi Versus Puran Chand and others, 1975 P.L.R. 654 wherein this Court held as under:- “`Sub-letting' is not defined in the Act. A leassee would be said to have sublet the property if he has transferred his rights under the lease and by delivering possession of the said property becomes a stranger, and has no right to have its possession restored to him. There can be non sub-letting without the lessee's parting with the legal possession of the demised premises, the real test to determine subletting is whether the tenant has walked out of the demises premises and has handed over its exclusive possession and control to the sub-tenant. A tenant is entitled to use the demised property for any business he likes and if he takes someone as partner in his business the partner does not get the right of tenancy and and cannot claim the status of a tenant or sub-tenant. If the tenant takes someone as partner in his business, it cannot be treated as subletting of the premises to the partner.” Learned counsel for the petitioner further placed reliance on Raj Kumar Jain Versus Mehnga Ram Bhandari & another, 1981(1) R.C.R., (Rent) 715, a learned Single Judge, while referring to various judgments including the above extracted portion of the judgment in Smt.Shanti Devi Versus Puran Chand and others (supra), observed a sunder:- “Sub-letting is not defined anywhere in the statute but C.R.No.2972 of 2007 -5- .... undisputedly it has repeatedly received consideration of the Supreme Court as well as of the various High Courts. In Smt.Krishnawati vs. Shri Hans Raj, 1974 RCR 163, it has been observed that now it is the settled law that the onus of proving sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the said evidence.........” Learned counsel for the petitioner then referred to Udmi Ram and another Versus Ved Parkash and another, 2003(2) P.L.R. 493 wherein the learned Single Judge of this Court observed in paragraph 8 as under:- “In my view, this petition deserves to be allowed. No doubt, in exercise of revisional jurisdiction, there is inherent limitation unlike appellate jurisdiction, though jurisdiction under Section 15(6) of the Haryana Urban (control of Rent and Eviction) Act, 1973 is wider than revisional jurisdiction under Section 115 CPC, in as much as the court is entitled to examine the legality and propriety of a conclusion arrived at by the lower authorities. As held by the Apex Court in Dev Kumar (supra), conclusion on the question of sub-letting is a conclusion on a question of law derived from the findings on the materia lon record. It was laid down that transfer of exclusive possession for consideration has to be established. Mere presence of a person other than the tenant does not lead to the conclusion C.R.No.2972 of 2007 -6- .... that it was a result of sub-letting. Same is the view taken in Delhi Stationers, Benjamin Premnanand, Jagan Nath and Shamsher Singh (supra). In Shamsher Singh's case, it was held that if tenant had not parted with possession but had joined another person in business who was closely related to him without there being any consideration, sub-letting could not be held to have been proved.” The contentions of the learned counsel for the petitioner were refuted by the learned counsel for respondent no.1, who contended that there was sufficient evidence on record to show that the premises had been sub-let. Apart from the cheques which were issued by the sub-tenant to respondent no.1, it was also pointed out that there were documents to prove that respondent no.2/ sub-tenant was in possession of the premises in question which was also reflected from the statement of account Exhibit P11 of respondent no.2 in the Bank of India and Exhibit P13, the stock inspection report dated 3.4.1993 prepared by the Bankers of the said respondent. These all documents show that Bajrang Trading Company (respondent no.2) is situated in Anaj Mandi, Jind. The communications with the bankers for closure of the accounts revealed the same address of the shop in question. Reference was also made to the photographs which revealed that Bajrang Trading Company is a separate entity. I have heard the learned counsel for the parties and have perused the record. C.R.No.2972 of 2007 -7- .... The oral testimony on record, as also documents Exhibits P12 and P13 leave no room for any doubt that M/S Bajrang Trading Company was in possession of the premises in question and was carrying on the business therefrom. The oral testimony of respondent no.1 coupled with the photographs and the communications made with the bankers is to the same effect. The sub-letting of a premises is always an arrangement between a tenant and sub-tenant which is withheld from the landlord and is shrouded in secrecy as it best serves the interest of the tenant. It is he who extracts a beneficial advantage to the detriment of the landlord and, therefore, once the sub-letting is alleged by the landlord and the possession of the sub-tenant established by way of evidence on record, then it is for the tenant to prove as to in what capacity, the alleged sub-tenant was occupying the premises. From the facts of the instant case, it is clear that respondent no.2-Bajrang Trading Company was in occupation of the premises in question. The photographs, as also other documents, as noticed earlier, also establish this factum of possession and carrying on of business by respondent no.2 therefrom. In this eventuality, when there is no explanation given by the petitioner as to how the same has come into occupation of respondent no.2 when the premises had been let out to him alone, I am of the considered opinion that the findings recorded by the Appellant Authority cannot be faulted with. C.R.No.2972 of 2007 -8- .... Accordingly, it is concluded and held that the petitioner had sub-let the tenanted premises in question and, therefore, there is no force in the contentions raised by the learned counsel for the petitioner. In the result, this revision petition fails and the same is dismissed. October 30,2008 ( Mahesh Grover ) “SCM” Judge