CR No.6349 of 2008 (O&M) -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6349 of 2008 (O&M) Date of decision:17.05.2011. Shri Gopal Singh and another ...Petitioners Versus Gurdeep Singh and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Avnish Mittal, Advocate, for the petitioners. Mr. Arun Palli, Senior Advocate, with Mr. K.V.S.Kang, Advocate, for respondent No.1. ***** Rakesh Kumar Jain, J. The following questions are involved in this revision petition: - 1. Whether the tenant facing allegation of subletting, who has neither filed his written statement nor adopted the written statement of other co-tenants, is deemed to have admitted the averments made in the eviction petition in terms of Order 8 Rule 5 of CPC? 2. Whether an adverse inference has to be drawn of parting with the possession for consideration against a tenant who leaves the country for 3-4 years leaving the possession with his wife or other family members who have failed to prove that the shop was run in his absence and the person against whom the allegation is made by the landlord that the demised premises has been sublet to him remains elusive? The tenants are in revision against the orders of the Courts below CR No.6349 of 2008 (O&M) -2- ******* by which the eviction petition filed by the landlord has been allowed and they have been ordered to vacate the demised premises. In brief, the landlord filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short “the Act”] alleging that he had inducted Gopal Singh (respondent No.1 in the eviction petition) as tenant in the demised premises (shop) at the monthly rent of `350/- plus house tax on 01.06.1984 after executing a rent deed dated 30.05.1984. The eviction was sought, inter alia, on the grounds that respondent No.1 is in arrears of rent w.e.f. 01.04.2001 to 30.06.2002 besides house tax, he has sublet the shop to respondent Nos.2 and 3, he has left India and is no more in possession or active control over the demised premises and respondent Nos.2 and 3 have changed the purpose of tenancy. Respondent No.1 did not appear and was proceeded against ex-parte on 08.01.2003, but later on he was allowed to join the proceedings vide order dated 04.03.2005 but after joining the proceedings he did not file any written statement nor he adopted the written statement of the other respondents. Respondent No.2 filed her written statement. She denied that she is in arrears of rent, rather she had pleaded that the shop in dispute was let out to her husband who has gone abroad but has not left India forever and he is still in possession of the demised premises. She alleged that she is the wife of respondent No.1 and is doing photography work in the demised premises and the respondent No.3 has no concern with it. Respondent No.3 also filed his written statement to deny that he is in possession of the demised premises. However, he did not appear in the witness box. Thus, the position emerges that respondent No.1 neither filed his written statement nor adopted the written statement of other respondents, respondent No.2 filed her written statement and appeared in the witness box, respondent No.3 filed his written statement but did not appear as a witness. The learned Rent Controller, vide its order dated 04.02.2006, framed the following issues: - “1. Whether the respondents are liable to be evicted from the premises in dispute as the respondent No.1 is in arrears of rent w.e.f. 01.04.2001 to 30.06.2002 amounting to Rs.5250/- besides house tax?OPP. CR No.6349 of 2008 (O&M) -3- ******* 2. Whether the respondents are liable to be evicted from the premises in dispute as the respondent No.1 has sub-let the disputed premises to the respondents No.2 and 3 without the permission and consent of the petitioner?OPP. 3. Whether the respondents are liable to be evicted from the disputed premises as the respondents No.2 and 3 have changed the purpose of tenancy by suing the shop as STD/PCO booth without the permission of the petitioner?OPP. 4. Whether the petition is false and frivolous and is liable to be dismissed as such?OPR. 5. Relief.” After appreciating the evidence on record, the order of eviction was passed by the learned Rent Controller only on the ground of subletting which has been upheld by the learned Appellate Authority. While assailing the orders of both the Courts below, learned counsel for the petitioners has vehemently argued that the Courts below have erred in recording the finding on the issue of subletting as neither the tenant (petitioner No.1 herein) had parted with exclusive possession nor the landlord has proved that it was for consideration, therefore, in the absence of any positive finding of parting with possession by the tenant in favour of another person without the consent of the landlord for a consideration, the eviction cannot be ordered on the ground of subletting. He further submitted that petitioner No.2 herein is the wife of petitioner No.1 who has stated that her husband has gone to some foreign country for four years and has not permanently parted with possession of the shop and she has been running the shop on his behalf and had not sublet it to respondent No.2 herein, therefore, the Courts below have committed an error of law in passing the order of eviction on the ground of subletting. In this regard, he has relied upon the following judgments: - 1. Bhagat Matu Ram V. Basti Ram Bhola, 2005(2) RCR 649; 2. Jagan Nath V. Vasdev, 1993(1) P.L.R. 371; CR No.6349 of 2008 (O&M) -4- ******* 3. Smt. Sushila Devi Gandhi V. Hira Lal and others, 2007 (1) RCR 575; 4. Jayakrishnan V. Vrindha, 1998(1) Rent Control Reporter, 70 (D.B.); 5. Smt. Vidya Wanti and others V. Banarsi Dass and another, 2004(1) Rent Control Reporter 99; 6. Udmi Ram and another V. Ved Parkash and another, 2003(2) Rent Control Reporter, 170; and 7. Kirpal Singh V. Sardha Ram, 2003(2) Rent Control Reporter 324. In reply, learned counsel for the landlord (respondent No.1 herein) has submitted that since Gopal Singh (petitioner No.1 herein/principal tenant) had neither filed the written statement to the eviction petition nor had adopted the written statement of co-tenants (petitioner No.2 and respondent No.2 herein) despite opportunity, the averments made in the eviction petition by the landlord are deemed to have been admitted by him in terms of Order 8 Rule 5 of the Code of Civil Procedure, 1908 [for short “CPC”]. In this regard, he has relied upon a decision of the Karnataka High Court in the case of Sakina Bee V. Mohamed Ameer and others, 1976 Rent Control Reporter 458. He further submitted that the statement of Gopal Singh (principal tenant) cannot be taken into consideration by the Courts below in the absence of his pleadings. It is also argued that the judgments relied upon by learned counsel for the petitioners are not applicable as though the petitioner No.2 had alleged in the written statement that she has been running the shop on behalf of her husband in his absence, but she had not produced any cogent evidence in this regard, meaning thereby she was not running the shop and was, thus, not in possession and the person against whom the allegation is that the shop has been sublet to him has only filed the written statement but did not appear in the wittiness box in support of his case being afraid of cross-examination, therefore, the Court has to take adverse inference against him. He also argued that in the case of sub-letting, if exclusive possession of a sub-tenant, wholly or partly, is proved, then presumption can be drawn about consideration as well. In this regard, he has relied upon the following judgments: - CR No.6349 of 2008 (O&M) -5- ******* 1. Anil Kumar V. Sita Devi and another, 2007(1) Civil Court Cases (P&H) 49; 2. Lajwanti and another V. Daulat Ram, 1990(2) P.L.R. 426; 3. Ashwani Kumar and another V. Sashi Bala and others, 2005(1) HRR, 402; 4. Tilak Raj Anand V. Surinder Kumar, 2005(1) R.C.R. (Rent) 505; and 5. CR No.91 of 2008 titled as `M/s Trade Link Limited and another V. Varinder Kumar and others, decided on 20.09.2010. I have heard both the learned counsel for the parties and perused the record with their able assistance. As I have already observed that the landlord had filed eviction petition by impleading three persons, namely, Gopal Singh (principal tenant), his wife Asha Rani and one Ved Parkash and the allegation made is that the principal tenant Gopal Singh has left India for South Korea and is no more in possession or control of the demised premises and has sublet it to his wife and Ved Parkash who have changed the purpose of tenancy by using the shop as STD/PCO booth without the consent of the landlord. Initially, the principal tenant Gopal Singh was proceeded against ex-parte, but he was allowed to join the proceedings but despite that he neither filed the written statement nor adopted the written statement filed by the other co-tenants, namely, Asha Rani and Ved Parkash. The question which has been posed is as to whether in the absence of the written statement filed by him, the averments made by the landlord are deemed to have been admitted in terms of Order 8 Rule 5 of CPC or not? In this regard, the provisions of Order 8 Rule 5 of CPC are first required to be noticed, which is reproduced as under: - “5. Specific denial.-- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion CR No.6349 of 2008 (O&M) -6- ******* require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.” According to the aforesaid provision, if an allegation made in the plaint is not specifically denied, it shall be taken to be admitted except against a person under disability. The Karnatka High Court in Sakina Bee's case (supra) was dealing with some views expressed by the other High Courts about Order 8 Rule 5 of CPC where the written statement was filed but the facts were not specifically denied. It was, however, observed in terms of the decision of the Bombay High Court in the case Shriram Surajmal V. Shriram Jhun Jhunwalla, AIR 1936 Bom. 285 that “in my opinion, there is nothing in the language employed in Order 8 Rule 5 CPC to limit its application only to cases where a pleading has been lodged by the defendant. I fail to see how it makes any difference in principle as to whether the defendant has filed a written statement but not denied the allegations of fact made by the plaintiff specifically or by necessary implications or he does not at all file any written statement”. I also concur with the view expressed by the Karnataka High Court in Sakina Bee's case (supra) and hold that if the averments made in the plaint CR No.6349 of 2008 (O&M) -7- ******* is not specifically denied by the defendant by not filing the written statement, then the averments are taken to be admitted in view of Order 8 Rule 5 of CPC. Hence, the first question is decided accordingly. The effect of this observation is that since the principal tenant Gopal Singh has not denied the averments made in the eviction petition by filing written statement or by adopting the written statement of other co-tenants, therefore, the averments made therein are deemed to have been admitted that he had sublet the demised premises to petitioner No.1 and respondent No.2 herein without the consent of the landlord. In respect of the second question, learned counsel for the petitioners has relied upon number of judgments in which the wife or the brother of the tenant continued in business. For example, in Smt. Sushila Devi Gandhi's case (supra), after the death of the tenant, his wife inherited the tenancy and continued the business along with the brother of her husband, but the Court had held that it is not a case of subletting because the possession was not parted with and it was not for consideration. In Jayakrishnan's case (supra), the tenant was conducting tailoring shop. He left for Gulf countries in 1989. In his absence, his nephew was doing the business on his behalf and was giving income to his wife after taking his remuneration. The tenant came back as he could not get permanent job. It was held that it was not a case of subletting. In the case of Smt. Vidya Wanti and others (supra), brother of the tenant was doing the business of repair of stoves in the shop and since there was no evidence that the tenant had parted with possession or his brother was in exclusive possession, therefore, no case of subletting was found. In the case of Udmi Ram and another (supra), the tenant was unwell. His nephew was sitting at shop and doing his work. Exclusive possession of his nephew was not proved and as such, eviction was not ordered on the ground of subletting. In the case of Kirpal Singh (supra), the tenant was doing the business in the shop jointly with his brother. There was no proof that the tenant had parted with possession of shop in favour of his brother and as such no subletting was found. There was no dispute with the proposition that where in the absence of the tenant, his family members are running the shop on his behalf, then it would not be a case of subletting as there was no proof of parting with exclusive possession in their favour by the tenant, but where there is no CR No.6349 of 2008 (O&M) -8- ******* evidence that in the absence of the tenant, his family members have been doing the business as in the present case where Asha Rani wife of the principal tenant Gopal Singh could not prove on record anything that she has been doing the business of photography and the other respondent, namely, Ved Parkash, against whom the allegation is that he has been doing the business in the demised premises, had not appeared, the inference can easily be drawn that in the absence of the principal tenant, since his wife could not run his business, he had let out the demised premises to a person who has no concern with his family and due to fear of cross-examination, he did not come forward to state on oath whatever he had pleaded in the written statement. In the case of Anil Kumar (supra), it has been held that when exclusive possession of a sub- tenant either wholly or partly in the premises is proved then presumption can be drawn for consideration as well. In Lajwanti and another's case (supra), it was held that the initial onus is upon the landlord to prove subletting which may be discharged by his statement on oath, then it shifts upon the tenant to explain the nature of possession of the person other than the tenant and if the tenant fails to prove his exclusive possession due to relationship of principal tenant with the sub-tenant(s), the presumption of consideration can be drawn by the Court. In the case of Ashwani Kumar and another (supra), the principal tenant had gone to Delhi after giving the demised premises to his brother. It was termed that he had parted with possession and the burden was shifted upon the tenant to prove that he was still in exclusive possession of the leased premises. In the case of Tilak Raj Anand's case (supra), it was held that if the exclusive possession of a person other than tenant is established, it will be natural to draw an inference that the passing on of possession to the sub-tenant by the tenant is for consideration. In the case of M/s Trade Link Limited and another (supra), after taking into consideration the various judgments cited by both the learned counsel for the parties and specially the decision of the Supreme Court in the case of M/s Celina Coelho Pereira and others V. Ulhas Mahabaleshwar Kholkar and others, 2009(2) R.C.R.(Rent) 456 (S.C.), it has been held that “in order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with CR No.6349 of 2008 (O&M) -9- ******* exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent”. It was also held that “initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises”. In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of subletting may then be raised and would amount to proof unless rebutted”. The interesting feature of this case is that there is no pleadings/written statement by Gopal Singh (principal tenant) though he had appeared. His wife though filed written statement and appeared as well but could not lead evidence that she has been running the business of photography in the demised premises for 4 long years in the absence of her husband who had gone to South Korea and Ved Parkash, who though had filed written statement that he is not in possession of the demised premises had not appeared in the witness box to make a statement on oath of whatever he had pleaded. Hence, the second question is decided to the effect that in the absence of the principal tenant for a long period, if his wife, brother or any other family member is unable to prove by cogent evidence on record that they have been running the business on his behalf, then it can be presumed that the possession has been parted with by principal tenant specially when the other person who is alleged to be sub-tenant, is not coming forward to prove his case after the initial burden of proof is discharged by the landlord by his appearance in the witness box. In view of the above discussion, the present revision petition is found to be without any merit and as such, the same is hereby dismissed, however, without any order as to costs. May 17, 2011. (Rakesh Kumar Jain) vinod* Judge