IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR S.A.No. d /2005 fiBII^ APPELLANT 'DEFENDANTNo.l 1. Smt. Priti Dubey, W/o. Shri Pradeep Dubey, Aged about 35 years, R/o. In front of Kankali Hospital, Tatyapara, Raipur (C.G.) VER S U S RESPONDENTS ^PLAINTIFF ,^1. ,. Pramod Kumar Agrawal, Aged A^M^^ about 50 years, S/o. Late Shri Krishna Sewak Agrawal, R/o. Krishna Bhawan, Tamerapara, Durg, District Durg (C.G.) y^^ ^p ^y" ^^- ^ DEFENDANT No.2. 2. Subhash Inamdar, Aged about 55 years, S/o. Shri Haribhau Inaindar, R/o. Prasadhana Beutiparlor, Flat No.l, Kamla Sadan, In front of Kankali Hospital, Tatyapara, Raipur (C.G.). SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE '^ ^ HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No»66of 2005 SmtPriti Dubey Vs. Pramod Kumar Agrawal JUDGMENT ^ ^ <^^>^>;r f^€^-^' ^"c^" ^ ~ ^'^\^ ^- Post for 2Sr .04.2005 Sd/- Sunil Kumar Sinha Judge @ ^-1 /^^. mGH COURT OF CHHATTISGARH, BILASPUR Second Apoeal N0*66 of 2005 SmtPdti Dubey Vs. Pramod Kum.ar ^rawal Appearance: Shri Anaad Kum.ar Tiwad, counsel for fhe appellant. Shri Malay Kuiaar Bhaduri, counsel for the respondent No.l on Caveat Petition No. 10/2005. None for respondent no.2. JUDGMBNT (2-5-.4.2005) Sunil Kumar Sinha, J, This appeal under section 100 of fhe Code of Civil Procediire has been directed agaiast fhe Judgment aad Decree dated 20.12.2004 passed ia Civil Appeal No.ll-A/2003 by the District Judge, Raipur (C.G) arisiag out ofjudgment aad decree dated 01.2.2003 passed in CivU Suit No.l32-A/2002 by the 3rd Additional Judge to fhe Court of First CivU Judge, Class-I, Raipur (C.G). (2) Briefly stated facts are that the plamtiff namely Pramod Kuinar Agrawal filed a civil siiit for eviction in rclation to a tenaated premises identified as Flat No.l ia building Kamla Sadaa, Brahinaapara, Raipur. The plamt atlegations are fhat this preinises was given on monfhly rent to defendant :^i^%'?I*¥^s;^i^^;=®^^Rft^^y^^^i''N -I- no.l for residential purposes under a written Agrcenient (Ex.P/1). It was beiag used for residential purposes fhrough out. However, ia fhe year 1995, fhe wife of defendaat no. 1 started the work ofbeauticiaa ia one part offhe said premises which was objected by fhe plaiatiff, It was not stopped but later on, defendaat no. 1 and his entire famUy left fhe city an.d froni June 1995 defendaat no. 1 haaded over the vacaat possession of fhe suit premises to defendaat no.2. This was done wifhout prior peraiission of fhe plaiatfcff. Defendaat no.2 also contmued fhe busio^ess of beauty parlor ia fhe said prcinises. Siace fhe rented preniises was not vacated even after notice of the plaiatifF, fhe plaintiff was consta-amed to ffle fhe iastaat suit on fhe ground of sub-lettmg by defendao^t no. 1 to defendaat no.2 under section 12(l)(b) of the M.P. Accommodation Control Act (hereiaafter referred to as sfhe ActJ) and also on fhe ground of usiag of preniises for a different purpose (for commercial purpose) which is iaconsistent wifh fhe purpose (residential purpose) for which fhe tenant was admitted to fhe tenaacy of fhe accoiainodation, under section 12(l)(c) ofthe said Act. (3) The defendants filed fheir joiat written statenient denyiag fhe contentions of fhe plaintiff. It was contended by fhein fhat fhe said premiises was taken on rent by defendant no. 1 bofh. for residential aad cominercial purposes. It was contended fhat fhe wife of defendaat no. 1 was doiag fhe work ofbeauticiaa ia one portion of the preinises aad rest of fhe pordon was used as -3>- a residential buUdiag siace long back an.d the plaintiflF did not take any objection to it. About sub-letting it was speci&caUy denied that defendaat no.l has given fhe prcinises on subletting to defendaat no.2. It was also denied fhat defendant no.2 is running a busiaess ofbeauty parlor ia fhe naine aad style of PrascuSana Beauty Parlor ia fhe said preniises. (4) Leamed torial Judge frained various issues ia this case aad after recordiag fhe evidence of fhe parties decreed fhe siiit of the plaiatiff on bofh fhe groiinds ie., grounds xnentioned under section 12(1)(b) as weU as 12(l)(c) offhe Act Agamst the aforesaid judginent and decree passed by the trial Court fhe defendaats filed an appeal before fhe lower appellate Court, but fhe lower appellate Court disinissed their appeal confirming fhe judginent aad decree passed by fhe trial Coiirt. (5) Haviag lost ia bofh the coiirts below, defendaat no.2 only (wrongly written as defendant no. 1 ia fhe ineino of appeal) has chaUenged the legaUty of judginent aiid decrce passed by fhe two courts below. (6) The contention of learaed counsel for fhe appellant is fhat both the courts below erred ia law ia holdiag that fhere was a change ia the "purpose^ for which fhe accominodation was taken on rent. He iasisted fhat ia fact, fhe prenuses was taken for residential as weU as non-residential purposes aad fhe findiag ui this regard fhat the prenuses was taken for -^- residential purposes oiily vitiates. He further argues fhat the sub-tenaacy has not been proved and ia fact, fhe landlord has been failed to prove fhat defendaat no.2 is ia excluswe possession of the rcnted preinises aad parting of possession by tenant was for inonetary consideration. The finding of subletting is perverse and erroneous as passing of inonetary consideration is also not estabUshed. Referring to para 21 of fhe evideuce of fhe plamtiff, he also argues that ia fact, fhere was soine settlenient between the plaiatiffaad defendaat no.2 ia relation to tenaacy, fherefore, ui Ught offhe said settleiaent, both the grounds of eviction frustorate and the plaiatiff waives his right to retam fhe suit aad defendant no.2 on such admission offhe plaintiff, shaU be deemed to be his tenaat aad shaU not be subject to eviction. On fhese iwm grounds, leamed coiinsel for fhe appeUant prays for admission of fhe appeal by framing substaatial questions oflaw. (7) So far as fhe first ground rcgardmg the use for differcnt purpose is conceraed, fhe pleadiags of pardes are importaat. The defendaiits have joiafly contended fhat fhe prendses was let out for rcsidential as weU as non-residential purposes and fhe wtfe of defendaat no.l was canyiag on busiaess of beauticiaa ia one pordon of fhe preniises and the family of defeudant no.l was residing in rest of the portion of fhe said premises. The agreement ia relation to tenon.cy has been filed as Ex.P. 1. Clause 14 of fhe agreement deals with fhe purpose aad nature of teuaacy which clearly indicates fhat fhe -5'- accorajnodation was given on rent for residential purposes only, It has also been inentioned ia fhis clause that except for residence no ofher busiaess/occupation shaU be carried out ia fhe said premises. The trial Court has also dealt with the niatter vide Para 8 of fhe judgment under discussion of issues no. 1 aad 3. This docuinent (Ex.P. 1) has been held to be proved aad has not been disputed by the defendaats. In Ught of the aforesaid clause in the lease deed it has been held that fhe preinises was given for residential purposes only, the plea taken by fhe defendaats fhat fhe sanie was given for residential as weU as non-residential purposes has been rejected. (8) Relyiag on decision of fhe Apex Court reported ia AXR 1978 S.C. Py. 1601 fSemtreun, cwpeUcint -Vs- Kctfinder Lal cmd athersf, leamed counsel for fhe appeUaxit ai^ues fhat if ia a pordon of rented preiaises for residential purpose, busiaess ofbeauticiaa is done, it caanot be held fhat fhere was a chaage of user aad the premises was used for a different purpose. The aforesaid judgment of fhe Apex court is not on this pomt The judgment rclates to fhe inanner of determination of piupose, conuaercial or conuiiercial-cuia-residential, ia a inatter when fhe ffpurposew is not disclosed in the lease deed. ta the said case, fhe appeUaat, a Harijaa Cobbler was a lessee offhe sniall portion of a shop in SHnUa, The lease deed disclosed no purposes. The siiit was fiLled on ffae ground that fhe preinises was being used for a purpose ofher fhaa one for which it was let out. The appeUaat on soiae days cooked his food aad -6- stayed at n^ht ia the rear pordon of the shop, It was said by fhe Apex Court fhat it could not be held fhat fhe purpose was exclusively coinniercial and inconipatible wititi aay residential use, even of a pordon. The legal mference to be drawn finom a lease deed was conditioned by prevailmg circumstaaces. The iatention offhe pardes frojsi which the purpose offhe lease was speUed out was to be ganiered froin fhe social nuUeu. The Apex Court further held that it is impossible to hold fhat, if a tenaat, who takes out petly preiaises for canyiEig on a sniaU trade, also stays ia fhe rear portion, cooks aad eats, he so disastrously perverts fhe purpose of fhe lease. A different purpose ia the context is not niinor vadations but inajuscule ia inode of enjoyxnent. This was not a case of a maa switchiiig over to a caateen busuiess or closiag down fhe cobbler shop aad converting fhe place iato a residential acconunodation. The case ia hand is totally on a different footmg. Here fhe lease deed clearly disclosed the purpose and it says fhat the tenaacy shall be for the residential piirpose only. It speci&cally prohibits any busiaess ia fhe premises. The case is also not Uke fhis, fhat ia a portion of shop, a person starts residing for fhe purpose of his busiaess. Here fhe case is just opposite fhat ia a speci&ed residential accoicimodation, the tenant has permaaently started a busiaess of beauty parlor. The judgment of fhe Apex Coxirt is distinguishable on fhese poiats aad fhe ai^uinent of fhe learaed counsel for fhe appeUant caanot be sustamed. -7- (9) Ifwe farther examiae fhe case for chaage ofuser, we find that suggestions were given by fhe defendaats ia the cross examuiation ofthe plauitifffhat ia fact, the setflenient between plaintiflF aad defendaat no.2 was ardved at aad fhe taUcs of said setdemient has taken place ia fhe Prasadana Beauty Parlor of defendant no.2. This also goes to show fhat fhe premises iaitially haaded over for residential purpose to defendant no,l ia accordaace with fhe written lease deed was beiag used by flie defendants for residential-cuni-conunercial purposes which goes agaiast clause 14 of fhe lease deed. The trial Court as well as fhe appeUate Court have gone iato fhese facts ia detail and have recorded a concurrcnt fiiidiag which is based on positive evidence on record and fhe same caanot be held to be erroneous or perverse. This arguiaent faUs aiid fhe same cannot be sustaiaed. (10) Now coiuiiag to fhe next question of sub-letting, learaed coiinsel for fhe appeUaat subinits that as an eflTect of fhe settienient between the laadlord aad defendaat no.2, as per adniission of fhe laadlord vide Para 21 of his evidence, the laadlord waives fhe right of eviction on the ground of sublettiag. This arguxnent of learaed counsel cannot be sustamed. First of aU, no such plea of retafcaiag the possession on fhe basis of settlenient or aa agreenient between the plamtfcff axid defendaat no.2 has been taken ia fhe written statement by fhe defendants. The defendaats have coine wifh a case fhat neither -«- defendaat no.l has left fhe possession nor he has parted fhe possession of fhe preniises with defendaat no.2. In fact, the possession was wifh defendaat no.l and not with defendaat no.2. Admittedly, this new ground is being taken ia the second appeal for fhe JSrst tiine which cannot be atlowed to be raised by fhe pardes at this stage. The law on fhe poiat of waiver is weU setfled. The waiver is a question of fact which niust be exprcssly pleaded aad clearly proved. No such plea has been raised eifher by fhe tenant or by fhe sub-tenaat before fhe courts below. The provisions of fhe Act are veiy clear. Section 14 offhe Act provides fhat no tenaat caa sub-let fhe tenaated premises or part fhereof without the written consent of the laadlord. If the sub-lettiag is proved, a belated and bald plea of waiver which has not been pleaded ia fhe written stateiaent caanot defeat fhe statutory provision inade ia fhe larger public iaterest It has been held by the Apex Cmtrt in the nwtter ofPuUn Beharilal -Vs- Mahadeb Duttoa <md others reiwrted in (1993) 1 SCC 629 that a mere kaowledge of sublettmg aad/or acceptaace of rent caanot defeat the laadlord's right to get a decree for ejectinent on fhe ground of subletting. It has been further held fhat to estabUsh waiver of benefit conferred by piovisions of statute, conscious relmquishinent of such benefit has to be proved. Even otherwise also, said admission ia para 21 of fhe evidence of plaiatiff does not give rise to aiiy such situation which inay show that ia. fact, the preniises was wiUfuUy rendered to fhe -a>- possession of defendant no.2 by fhe plauitiff under soiae settleiaent aad ou fhe face of such adniission, fhe plaintifF caanot retam a suit for eviction. The admission ia the cross examination only goes to show fhat some setflement was ardved at between fhe plamtifiF aad defendaat no. 1 but what was fhat setfleinent has not been cleared. (11) Regarduig subletting, fhe law is weU settied. It has been observed by fhe Apex Court in fhe matter of AssocsUtted Hatels of Indla Ltmited -Vs- S.B.Scirdcy Rewiit Siiwh reoorted in AJR 1968 S.C. 933 that in a suit by the landlord for eviction of tenaiit on fhe ground of sublettuig, fhe laadlord has to prove by leadiag evidence fhat (i) a third party was found to be ia exclusive possession of fhe rented preniises/property aad (ii) parting of possession fhereof was for laonetary consideration. This pnnciple has further been rciterated ia fhe inatter of Shcima Prashemt Raie -Vs- Gempettrao & athers: (2000) 7 SCC S22 fhot ia fhe sublettmg 2 itigredients uiust be estabUshed, (i) parting wifh possession aad (il) payment of sonie consideration fherefor. (12) It has been further held by fhe Apex Court ia the niatter of Bharcrt Saies Ltd.^ -Vs- Irifc Jnsurancc Coyporation of Jndte, f1998) 3 SCC Ps.l that: ^Sub-'tenmzcy or sub-letting comes into existence when ihe tenant gives up possession of the tenanted accommodation, wholly or in part, dnd pufe another person in ejoduswe possession thereof, This arrangement comes about obviously under a mutual agreement or understanding between the wiii^iaM -fo- 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 bcbck of ihe landlord, concealing the overt acts and transferring possession elandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to fhat person nor had he allowed or consented to his entering into possession over tke demised property. It is the actual, physioal and exdtiswe possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out hcis put some other person into possession ofthat properiy. In such a situation, it would be difficuU 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 difficultfor the landlord to prove, by direct evidence that the person to whom the property had been sub-Jet had paid monetary consideration to the tenant Payment of rent, undoubtedly, is an essential element of lecise or sub'lease. It may be paid in cash or in kind or rnay have been paid orpromised to be paid. It may have beenpaid in lumpsum in ddvanjce covering the periodfor 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 corvsideration may have been fnade 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, inchiding the delivery of exdusive possession to infer that the premises were sub-let" (13) In the matter of SmLRaibir Kaur cmd another -Vs- M/s. S.Chofcesfr£ & Conwan».('t9891 1 SCC 19, the Apex Court held that if the exclusive possession is estabUshed, and the version of fhe respondents as to the particulare aad the incideuts of fhe transaction is found acceptable in the particular faets aad circumstaaces of fhe case, it may not be impermissible for fhe Court to draw aa inference that the transaction was entered iato wifh laonetary consideration in mmd. -\\- (14) It has been furfher held by fhe Apex Court ia the xaatter of Ke^t cmd mi.other -ys- JUtadho Prfis<xd Vcddua f1998) 6 S?CC 573 that fhe burden of proof of subletting is on fhe landlord but once he estabUshes parting of possession by fhe tenaat to third party, fhe onus would shift on fhe tenaat to explaui his possession. Ifhe is unable to discharge fhis onus it is permissible for fhe Court to raise aa inference fhat such possession was for laonetary consideration. (15) The apex Court has also held in the matter of Jwiind.er Sifwh Sedhi -Vs- Anwr Kaur reoorted in 2005/11 S.B.Jt. 97 §^^YTvxawfc ^- ftiat fhe proof of 4ngcfipd®aof xnonetary consideration by sub- tenaat to fhe tenaat is not a siae qua non to estabUsh sublettiag. (16) On fhe basis ofabove principles oflaw, ifwe exanune fhe case on haad for fhe purposes of subletting, we find that a defixute findiag ia relation to sub-letting has been recorded by fhe two courts below. The arguinents advaaced by leamed counsel for the appeUaat that on the basis of admission of fhe plauitiff vide para 21 of his evidence, he waives the ri^ht of eviction on fhe ground of sub-tenaacy caanot be sustained. As has been held by fhe Apex Court, waiver is a question of fact which inust be expressly pleaded and proved. No such plea has been taken by the defendaats even by way of amendnient after fhe said cross examination eifher before fhe tdal Court or before fhe first appellate Court. This question cannot be ^ - ^- allowed to be raised for the first tinie ia this Court. Such vague adinission which is not at aU clear, caanot defeat fhe provisions laid by the statute. If, ia fact, the laadlord had agrced to give fhe rented premises ia tihe tenaacy of defendant no.2 aad fhe defendaat no.2 was holding the possession of rented prendses on fhe basis of aiiy such agreeiaent between fhe landlord aad herself and a new tenancy was created between herself and the landlord, it was iacuinbent upon her to take fhis plea m fhe wntten statement and to come with a definite case of holdiag the possession of preiuises on the basis of fhe alleged new tenaacy. This is not the case of defendant no.2, rafher on fhe contraiy, she has filed fhe written stateinent fhat she has not parted with fhe possession of fhe rented prenuses aad ia fact, the actual physical possession was ia the haads ofdefendaat no. 1. Ifwe examiiae fhe entire case, fhe scenario regarding possession of fhe tenaated preimses is weU clear. The trial Court as weU as the first appeUate Court have recorded a definite findiag fhat the tenaated premises is beiag exclusively possessed by defendant no.2. No suitable explaaation regardmg dispossession has been brought on record, fherefore, fhe courts were free to draw fheir own inference upon fhe facts of the case proved at the trial, mcludiag the deUveiy of exclusive possession to iafer that fhe prexnises was sub-let to defendaat no.2 by defendaat no. 1. (17) I do not find aay force ia the arguinent advaaced by fhe learaed coiiasel for fhe appellant at fhis stage. The question of r ^ljlli ^) «/3- subletting has been proved ia accordance with law aad fhere is no iafirmity in the sanie. The apex Coiirt has held ia case of Sheuna Prasheint Ra/e^ referred to above, that fhe question of subletting is not a pure question of fact, but it caa be held to be the inixed question of fact aad law. There is a concurrent fbidiag offhe two courts below ia rclation to the above question aad fhe sarae cannot be disturbed ia the second appeal under section 100 ofthe Code ofCivil Procedure. (18) A perusal of section 100 C.P.C. inalces it clear fhat the scope aad exercise of jurisdiction by the High Court in fhe second appeal under section 100 is lunited to fhe substaatial questions of law frained at the tune of adinission of the appeal or additional substaiitial questions of law firamed at fhe later stage after recordiag reasons for the same. This xnakes it clear fhat fhe existence of substaatial questions of law is sine qua non for fhe exercise of junsdiction under the ainended provisions ofsection 100 C.P.C. (Please see (2004) Vol.V SCC 762 - Thiaaeiretfein and athers -Vs- Sri Venuyapala Swemw B. Koil and others) (19) As to which woiild constitute a substaatial question of law, it has been obser^ed by fhe Apex Court ia case of Santosh JStozari -Vs- Purushettcun Thswri fDeceasedf hy L^Rs. (2001) 3 SCC 179 ihsit: <(A point of law which adntits of no two opinions may be a proposition of law but cannot be a substantial cjuestion oflaw, To be <tsubstantiaF a guestion qf law niust be debatable, not previously r (£P -l^t- setiled by law of the land or a binding precedent, and mtist have a material bearing on the dedsion of ihe case^ if answered either way^ insofar as the rights ofthe parties before it are concemed- To be a question of law <einvolving in the case}) there must be first a foundaiion for it laid in Ihe pleadings and the question should emerge from the si.istainabJe fiizdings Qffact arrived at by court offcucts and it rrmst be necessary to dedde that question oflawfor ajust and proper dedsion of the ccuse. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the maiter. ^It will^ therefore, depend on the facts and drcumstance of each case whether a question of law is a substantial one and involved in the cajse, or not; the paramount overall consideration being the needfor striking ajudidous balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life ofany lis^ pEmpheisis suppUed) (20) I do not find aay reason to iaterfere in fhe conciurent fmdiags recorded by fhe two courts below as the counsel for the appellant could not poiat out any perversity ia fhe aforesaid findiags, either on fhe question of chaage of user or on the question of sublettiag. This appeal iavolves no substantial question of law and fhe same cannot be entertained. The appeal staads disnussed. There shaU be no order as to costs. The caveat petition bearuig No. 10/2005 also staads disposed of Sd/- Sunil Kumar Sinha Judge ^^-04.2005 /Rao/