-1- IN THE HIGH COURT OF BOMBAY AT GOA LETTER PATENT APPEAL NO. 5 OF 2009 Shri Kestur Siddalingappa Rajsekhar presently residing at 887 (17) 2, Plot No. 10, Kamat Nagar, Porvorim, Bardez, Goa 403 501. ...... Petitioners V e r s u s 1. The Administrative Tribunal, by its Chairman, Panaji, Goa. 2. The Rent Controller, Collectorate, Panaji, Goa. 3. Smt. Savitri Tima[[a Naik, w/o. Timappa Naik, presently residing at Bombay herein represented by her Attorney, her son Naguesh Timappa Naik, as constituted by Power of Attorney dated 23-1-1991, residing at Savitri Niwas, Dr. Dada Vaidya Road, Panaji-Goa. 4. Shri Kishore E. Valvaikar, Shop No. 2, Savitri Niwas, Dada Vaidya Road, Panaji, Goa. ...... Respondents Mr. Agnelo F. Diniz, Advocate for the Appellant. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar and Ms. Gemini Xettigar, Advocates for the Respondent no.3. -2- CORAM : P. B. MAJMUDAR & U. D. SALVI, JJ. DATE : 17 th March, 2009 . ORAL ORDER (Per P. B. MAJMUDAR, J ) This Letters Patent Appeal is directed against the Judgment and Order of the learned Single Judge in Writ Petition No. 83/2009 dated 06.02.2009. By the impugned Order, the learned Single Judge has dismissed the Petition filed by the present Appellant in limine by confirming the Order passed by the Rent Controller and Administrative Tribunal, Panaji, Goa. The proceedings arise under the Goa Daman & Diu Buildings (Lease, Rent & Eviction) Control Act, 1968, ('Act' for short). 2. The Respondent no. 3 is a widow landlady of the suit premises. She instituted eviction proceedings being Eviction Case no. Rent/ARC/02/92 under the Act before the Rent Controller, Panaji, seeking eviction Decree against the present Appellant in connection with a shop located on the ground floor of “Savitri Niwas”, Panaji, Goa. Respondent no.3 instituted the said proceeding on the ground that the appellant/tenant has sublet the suit premises to respondent no.4. The Rent Controller after examining the evidence on record, came to the -3- conclusion that the landlady has proved the case of subletting and, accordingly, granted Decree for Eviction under the provisions of Section 22(2)(b) of the Goa, Daman and Diu Buildings (Lease, Rent & Eviction) Control Act, 1968. The Appellant was respondent no.1 and the alleged sub-tenant was the respondent no.2 in the said proceedings and both were directed to vacate the suit premises within 30 days from the date of the Order. The aforesaid Order of the Rent Controller was challenged by the present Appellant by way of an appeal, being Eviction Appeal No. 26/08 before the Administrative Tribunal at Panaji. The Tribunal, by its Order dated 29.12.2008, dismissed the said appeal. The Appellant- original tenant, thereafter, carried the matter further by way of Writ Petition under Articles 226 and 227 of the Constitution of India. The learned Single Judge of this Court, by the impugned Order, dismissed the said Writ Petition in limine. The learned Single Judge found that respondent no.3-landlady, has proved her case about subletting and it is found that the Appellant-respondent no.1-tenant, had sublet the suit premises to the present Respondent no.4, who was the respondent no.2 in the eviction case. 3. Being aggrieved by the said Order, the Appellant has filed this Letters Patent Appeal. -4- 4. Learned Counsel Mr. Diniz, appearing for the Appellant, submitted that the learned Single Judge has clearly erred in dismissing the Writ Petition in limine. It is submitted by the learned Counsel for the Appellant that there is a variance in the pleadings in the application and in the evidence given by the Power of Attorney of the landlady, who is the son of the said landlady. Learned Counsel for the Appellant Mr. Diniz further submitted that the Single Judge has misread the evidence on record and, therefore, this Court may interfere with the said Order of the learned Single Judge. Learned Counsel further submitted that respondent no.4, herein, was merely an employee of the Appellant and somewhere in the year 1991, the Appellant expanded his business and he had shifted part of his activity at Campal. It is further submitted by learned Counsel for the Appellant that inspite of the fact that the Appellant had shifted his part of his activity at the newly occupied premises, he continued to occupy the suit premises wherein he carried on his workshop business. Learned Counsel further submitted that there is nothing in evidence to show that the Appellant had parted with the possession in favour of the respondent no.4 and that respondent no.4 was merely his employee. It is submitted that even though the eviction proceedings were filed on the ground of subletting, no particulars about the same have been given in the application nor in the evidence. Learned Counsel for the Appellant submitted that if the -5- finding is not supported by evidence on record, this Court can still interfere with the said finding in this Letters Patent Appeal. It is also submitted by learned Counsel Mr. Diniz that the Appellant has also produced wage register on record to show that respondent no.4 was his employee and at the relevant time i.e. at the time when the proceedings were filed, he was paid Rs.1500/- per month, which salary was subsequently increased to Rs.2000/-. Learned Counsel for the Appellant submitted that the evidence on record does not establish subletting and that the learned Single Judge, therefore, without appreciating the evidence from proper perspective has dismissed the Petition in limine. It is submitted by the learned Counsel for the Appellant that the Appellant all throughout has retained the possession with him and he has never let out the possession in favour of respondent no.4 and simply because the presence of respondent no.4 was found in suit premises, it cannot be inferred that the Appellant had sublet the premises to respondent no.4 as respondent no.4 was an employee of the Appellant since long and, therefore, the learned Single Judge as well as the learned Trial Judge and the Tribunal have committed error in passing the Decree for Eviction on the ground of subletting. The learned Counsel for the Appellant has also read the evidence before us and has argued the matter before us at great length by taking us through the Judgment of the Single Judge as well as to the -6- Judgment of the Rent Controller and Tribunal. 5. Learned Senior Counsel Mr. Lotlikar, on the other hand, submitted that the Administrative Tribunal and the Rent Controller have given concurrent findings of fact about subletting and that this Court, therefore, cannot re-appreciate the evidence as the jurisdiction of the Single Judge was limited under Articles 226 and 227 of the Constitution of India and, therefore, this Letters Patent Appeal is required to be dismissed. 6. We have considered the arguments of both the sides and we have also gone through the Judgment of the learned Single Judge, the Rent Controller and the Tribunal.. We have also gone through the evidence which is made available for our perusal as the same is annexed with the Appeal Memo. 7. The Principal question which requires consideration is as to whether the Single Judge as well as the Tribunal and as also the Rent Controller have committed any error of law in passing the Decree on the ground of subletting against the present Appellant and whether the evidence on record has been misread either by the learned Single Judge or by the Administrative Tribunal or by the Rent Controller ? -7- 8. In this connection, though we are conscious that this Court cannot re-appreciate the evidence on record, but, with a view to find out whether from the available evidence on record, the Rent Controller was justified in passing the Decree for Eviction, we have also gone through the evidence produced by the Appellant along with the Appeal Memo. . 9. The landlady has examined her son to whom Power of Attorney was given. In his evidence, he has stated that the shop premises was leased out at a monthly rent of Rs.130/- by his father and after his death, the rent was paid to her mother and for that receipts were also issued from time to time. In the said evidence, it is stated on behalf of the applicant that the shop premises was leased out to respondent no.1 for a tractor agency and a workshop relating to his tractors. After 1980, the respondent no.1 shifted the tractor agency to another place at Campal, opposite Football ground in the name of 'Shiv and Shiva'. The said witness has stated that in August 1991, one person came to the first floor of the premises wherein the applicant was residing and inquired as to where the Hanuman Garage is located. On inquiry, the applicant came to know that Hanuman Garage was being operated from his building by the respondent no.2. Though learned Senior Counsel Mr. Lotlikar for the original applicant submitted that the said name was not displayed outside the shop, ultimately, having -8- realised that the original tenant-respondent no.1 has sublet the premises to the respondent no.2, that the plaintiff filed the aforesaid proceeding on the ground of subletting. On behalf of the original applicant, acknowledgement receipt was also produced on record dated 23.10.1992, which is addressed to the respondent no.2 (alleged sub- tenant) at the address of the suit premises from Goa Dental College, which confirms the fact that respondent no.2 was doing his business in the name of Hanuman Garage from the suit premises. It is argued by Mr. Lotlikar, Senior Advocate, that the original tenant-respondent no.1, had already left the suit premises and started his business at a different place altogether and the suit premises was handed over exclusively to the original respondent no.2. 10. In this connection, it is required to be noted that it is the case of the original tenant that he used to pay salary to the respondent no.2 and that he had taken the premises for the purpose of running a workshop for the repairs of vehicles. The respondent no.1, in his evidence, has stated that for the purpose of his business, he used to employ about 15 to 20 employees. He has stated that respondent no. 2 is his employee and that he was employed in the year 1979 as a mechanic. In his cross examination, he has stated that in the year 1991-92, he was operating under the firm named as 'Shiv & Shiva' at -9- three places i.e. one at Savitri Niwas, the other at Trimurti Building, Campal and the third at Betim. In his cross examination, he has stated that respondent no.2 was in his employment since the year 1972 for which initially he used to maintain a wage register by giving names of all the employees, but, thereafter, on the basis of the advise of his C.A., he started maintaining a wage register by allotting one page for each employee to facilitate the annual accounting. In his cross examination he further stated that respondent no.2 has been in employment since 1972 and he used to pay Rs.1500/- per month at that time. In the cross examination, the witness has clearly admitted that he did not keep the salary register for more than ten years and he did not know who was running Hanuman Garage. During cross examination, he was shown the bill dated 13.12.1991, titled as 'Hanuman Garage', having address as shop no.2, Savitri Niwas, Dada Vaidya Road, Panaji, Goa, (suit premises), Proprietor Kishor E. Volvoikar, issued to Mathais Plaza, Panaji, for one new cable pipeline for new oil seal, cable greasing, cleaning and filing. Having been confronted on the said bill, the Appellant-respondent no.1, has stated that he does not know Kishor Valvaikar (the original respondent no.2 alleged sub-tenant). In the cross examination, various documents were shown to the respondent no.1 (present Appellant) but he has denied the knowledge of the same. The relevant part of that cross examination is at pages 68 and 69 of the -10- compilation. The said witness has also stated in his cross examination that he shifted his business to the premises at Campal as his business grew but he also continues his business in the suit premises. The alleged sub-tenant, who was respondent no.2, in the original proceedings, was also examined before the Trial Court and also led his evidence before the Trial Court. In his examination in chief he has stated that he is employed as mechanic since last 20 years and he has joined somewhere in the year 1979-80. At this stage, it is required to be appreciated that the original respondent no. 1, (present Appellant), has stated that he was employed initially in 1970 and there is a variance in the date of appointment in the evidence of original respondent nos. 1 and 2. Even regarding salary, there is discrepancy in the evidence of alleged sub-tenant and the original tenant as the alleged sub-tenant has said that initially he was paid Rs.1200/- and subsequently his salary was increased by Rs.200/-. The said witness, of course, has denied the suggestion that he is running business in the name of Hanuman Garage in the suit premises. However, in his cross examination, he has admitted that since people know him, he has given his address as shop no. 2 of Savitri Niwas (present premises) and that he has printed bills under the name of Hanuman Garage. In the cross examination, the said witness had clearly stated that “I have printed bills in the name of Hanuman Garage.” However, subsequently, he has denied the said -11- aspect that he has printed such bills. The said bills are also produced on record. On behalf of original respondent no.1, (present appellant), one Ganesh Rao, was also examined as Rw.3. In his chief examination, the said witness has stated that the shop in question is being run by the Manager Shri Volvoikar (the alleged sub-tenant-respondent no.2 in the trial Court). In cross examination, the said witness has said that initially in the suit premises, respondent nos.1 and 2, both used to remain present and after respondent no.1 started his business at Betim and Campal, respondent no.1 was not regularly seen in the suit premises. He further stated in his cross examination that respondent no.1 is running his business at Campal selling HMT Tractors under the name of “Shiv and Shiva”. Even the said witness in his examination in chief has clearly stated that the said shop is being run by Manager Shri Volvoikar. Said witness is not supposed to know whether he is Manager or not but he has also admitted in his cross examination that said shop is being run and managed by respondent no.2, (alleged tenant). 11. Considering the aforesaid evidence on record coupled with other circumstances, the fact finding authorities i.e. the Rent Controller and the Administrative Tribunal came to the conclusion that the landlady has proved the case of subletting. The learned Single Judge while exercising powers under Articles 226 and 227 of the Constitution of -12- India, has also found that the Decree for eviction is rightly passed on the ground of subletting. 12. Though we are conscious of the fact that this Court is not required to minutely examine the evidence on record, however, learned Counsel for the Appellant vehemently submitted that the Courts below have misread the evidence and we have discussed the evidence which is part of the compilation of the Appeal Memo. It is required to be noted that even regarding payment of salary, the version of respondent nos. 1 and 2 differs. It is an admitted fact that respondent no. 2 has received letters in the name of Hanuman Garage at the suit premises itself. As per the evidence on record which we have discussed, certain transactions were carried out by respondent no.2, for which bills are produced on record, from the suit premises in the name of Hanuman Garage. It is required to be noted that the original respondent no.1, (present appellant), after shifting his business to new premises at Campal since 1991, has not produced any document to show that he was still doing business in the suit premises. He has neither produced any electricity bills or any letters which he might have received at the suit premises. Respondent no.1 has not led any evidence to show that he continued his business in the suit premises after 1991. -13- 13. As per the evidence on record, it is clear that since 1991, the respondent no.1 has not operated his business from the suit premises and the entire premises were handed over to original respondent no.2, who is carrying his business in the name of Hanuman Garage and, as per the evidence of the witness examined by the respondent no.1, namely witness i.e. Rw.3, the shop is being run by the Manager Valvaikar. It is not even the case of original respondent no.1- tenant that he was his Manager. The said fact clearly proves that the shop was entirely in possession of respondent no.2 and as per the evidence on record, certain transactions were carried out by respondent no.2 in the name of Hanuman Garage for which bills are also produced on record. Signatures on the said bills are produced though learned Counsel for the Appellant submitted that his client has denied the signatures. As pointed out by us earlier that the original respondent no.1 has not led any evidence to show that he was actually doing his business in the suit premises even after the year 1991. When the Rent Controller as well as the Tribunal in Appeal have appreciated the evidence and they have ultimately come to the conclusion that the landlady has proved the case of subletting, such findings of fact cannot be disturbed by this Court or this Court cannot re-appreciate the evidence on record in its limited jurisdiction under Articles 226 and 227 of the Constitution of India. -14- 14. Learned Counsel for the Appellant has relied on the decision of the Supreme Court in the case of Dipak Banerjee v. Lilabati Chakraborty reported in (1987) 4 S.C.C. 161. In the said case, it was found that there was no clear evidence on record in connection with sub-tenancy. In Para 7 of the said Judgment, it was found by the Supreme Court that there was no evidence on the fact that the alleged subtenant was in exclusive occupation of any part of the suit premises over which the tenant had not retained any control at all and that there was no pleading nor evidence in this behalf. Considering the said aspect, the High Court as well as the Order passed by the Trial Court were set aside by the Supreme Court. 15. Learned Counsel for the Appellant has also relied upon the decision of the Supreme Court in the case of Delhi Stationers & Printers v. Rajendra Kumar, reported in (1990) 2 S.C.C. 331. In para 5 of the said Judgment, it has been observed by the Supreme Court while construing Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, that the tenant is liable to be evicted if he is assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. It is found that mere occupation is not sufficient to infer either sub-tenancy or -15- parting with possession. 16. Learned Counsel for the Appellant has next relied upon the Supreme Court decision in the case of Kala & anr. v. Madho Parshad Vaidya reported in AIR 1998 S.C. 2773, wherein the Supreme Court while considering the evidence on record, came to the conclusion that the appellate authority committed an error in appreciation of evidence and has misread the evidence on record and that the owner is required to prove subletting. Considering the evidence on record, as a whole, it was found that the subletting was not proved in that case. 17. Learned Counsel for the Appellant has also relied upon the decision in the case of Resham Singh v. Raghbir Singh & anr. reported in AIR 1999 S.C. 3087, wherein it has been held by the Supreme Court in para 7 that it is settled position of law that to establish subletting the onus is on the landlord to prove their evidence that sub- tenant was in exclusive possession of the property in question and that between the sub-tenant and the tenant there was relationship of lessee and lessor and that possession of the premises in question was parted with exclusively by the tenant in favour of the sub-tenant. 18. Learned Senior Counsel Mr. Lotlikar, on the other hand, -16- relied upon the decision of the Supreme Court in the case of Smt. Rajbir Kaur & anr. v. M/s. S. Chokosiri and Co. reported in AIR 1988 S.C. 1845. While examining the question about monetary consideration, it has been held by the learned Supreme Court in Para 22 as under : “Dr. Chitaley then urged that there was not even a pleading by he appellant on the point of money-consideration for the parting of possession and that no amount of evidence adduced on a point not pleaded could at all be looked into. As a general proposition the submission is unexceptionable; but in the present case, the point, in our opinion, is not well taken. Appellants specifically pleaded “subletting”. Respondent understood that pleading as to imply all the incidents of subletting including the element of 'rent' and specifically traversed that plea by denying the existence of consideration. Parties went to trial with full knowledge of the ambit of the case of each other. In the circumstances the pleadings would require to be construed liberally. In Ram Sarup Gupta v. Bishun Narain Inter College AIR 1987 SC 1242 this Court said this of the need to construe pleadings liberally : -17- “…...Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleadings is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal”. (Emphasis supplied) After all, the “parties do not have the foresight of prophets and their lawyers the draftsmanship of a Chalmers”. There is no substance in this contention of Dr. Chitaley either.” 19. In Para 23, the Supreme Court has observed as under : “23. The High Court did not deal specifically with the question whether, in the circumstances of the case, an interference that -18- the parting of the exclusive possession was prompted by monetary consideration could be drawn or not. The High Court, did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence