IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3358 of 2008 Date of Decision: August 31, 2010 Sohan Singh Sidhu …Petitioner Versus Charanjit Singh. … Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Surjit Singh Swaich, Advocate, for the petitioner. Mr. R.L. Sharma, Advocate, for the respondent. **** Alok Singh, J. Tenant has invoked revisional jurisdiction of this Court under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), C.R. No. 3358 of 2008 challenging the judgment dated 06.03.2007 passed by the learned Rent Controller, Rupnagar, as well as judgment dated 15.05.2008 passed by the learned Appellate Authority, Rupnagar, thereby directing the eviction of the tenant – revisionist from the demised shop on the ground of sub tenancy. The brief facts of the present case are that landlord – respondent herein preferred eviction petition against the tenant – revisionist and Rajinder Singh (O.P. No.2 in the eviction petition) with the allegation that tenant has not paid rent w.e.f. 01.04.2001 till the date of filing of the eviction petition. It has further been contended by the landlord that tenant – revisionist has transferred the possession of the shop in dispute to respondent No.2 without the permission of the applicant and that way has created sub-tenancy in favour of O.P. No.2 – Rajinder Singh. It was further contended by the landlord that he is a degree holder of B. Tech Computer and is doing a private job and he wants to run his own business in the shop in dispute for bona fide requirement. Tenant – revisionist herein contested the eviction petition and denied the rate and arrears of rent and also denied sub tenancy. Tenant has also disputed alleged bona fide requirement of the landlord. Learned Rent Controller did not find favour with the landlord on the question of bona fide need, as well as on the 2 C.R. No. 3358 of 2008 question of arrears of rent, however, vide judgment dated 06.03.2010, learned Rent Controller directed the eviction of the tenant and O.P. No.2. Learned Rent Controller in paragraph no. 22 of the impugned judgment has observed as under:- “22. I have gone through the case law cited by learned counsel for the parties. The proposition of law settled by Hon’ble Supreme Court is not disputed. The point raised by learned counsel for the respondent that there should be actual payment of rent by a tenant to original tenant is such a matter which cannot be proved by direct evidence. The subletting is a secret affair which can be gathered from attending circumstances and behaviour of parties and from evidence on the file, inference can be drawn. In the present putting a board of New Star Auto Centre on Shop No.213 which was originally let out to Sohan Singh establishes the case of petitioner that in fact Sohan Singh has sublet the shop to respondent No.2 and Sohan Singh has surrendered the possession of this shop in favour of respondent No.2 and sub tenant Rajinder Singh is in actual possession of this shop. This is also established on the file from report of Local Commissioner. Therefore, it is held that respondent No.1 has sublet the shop in 3 C.R. No. 3358 of 2008 dispute to respondent No.2 and issue No.2 is decided in favour of the applicant and against the respondent.” The learned Appellate Authority also agreed with the view taken by the learned Rent Controller and dismissed the appeal. Landlord has not challenged the judgments of both the Courts below on the question of bona fide need. However, tenant has invoked revisional jurisdiction of this Court under Section 15(5) of the Act. Learned counsel for the tenant – revisionist, while placing heavy reliance on the dictum of the Apex Court in the matter of Resham Singh vs. Raghbir Singh, reported in 1999 (3) P.L.R. 527, vehemently argued that landlord failed to prove that tenant has delivered the possession of the demised shop in favour of the alleged sub tenant for consideration. It is further argued by the revisionist that it has not been further proved by the landlord that revisionist ever accepted any rent or consideration from the sub tenant. Learned counsel for the revisionist further argued that even at the time of spot inspection by Ms. Neetu Singha, Commissioner Advocate, revisionist was found in the possession of the property. Learned counsel for the revisionist further argued that if tenant takes help in the Auto repair workshop from the mechanic, it does not amount to sub-letting. 4 C.R. No. 3358 of 2008 Learned counsel for the landlord – respondent supported the judgments passed by both the Courts below and has argued that inference drawn by both the Courts below, on the basis of Local Commissioner’s report and on the basis of Board found displayed on the shop in question, is correct. Learned counsel for the respondent – landlord further argued that concurrent findings of both the Courts below on the question of sub tenancy should not be interfered with under the revisional jurisdiction. The Apex Court in the matter of Resham Singh (supra) has held in paragraph nos. 5,6 and 7 as under:- “5. The question of sub-letting is a conclusive on question of law derived from the findings on materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. While considering the said sub-section (5) the above view was also expressed by this Court in Dev Kumar (Died) Through LRs v. Swaran Lata (Smt.) and others, 1996(1) SCC 25: 1996(1) RCR 40 (SC). 6. The sub-Section (5) empowers the High Court either on application or in its own motion to call for an examination of the record for the purposes of satisfying itself as to the legality and propriety of such orders or proceedings. In view of the above 5 C.R. No. 3358 of 2008 language of sub-Section (5) we find that the High Court while exercising powers under sub-Section (5) of Section 15 of the Act has got the powers to satisfy itself as to whether the question of sub-letting which is a question of law was properly decided by the courts below. From the impugned judgment of the High Court we find that the Court did not rightly find ingredients of sub-letting. We, therefore, hold that the High Court was justified in setting aside the judgments of courts below. 7. It is settled position of law that to establish sub- letting the onus is on the landlord to prove through evidence that sub-tenant was in exclusive possession of the property in question; 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. (See – Kala and another v. Madhu Parshad Vaidya, 1998(6) 573: 1998(2) RCR (Rent) 279 (SC) and Benjamin Premanand Rawade (Dead) by LRs v. Anil Joseph Rawade, 1998(9) SCC 688: 1999(1) RCR (Rent) 115 (SC). Undisputedly at the time of visit by the Advocate Commissioner, tenant – revisionist was found in possession. Undisputedly, in the shop in question, business of repair of 6 C.R. No. 3358 of 2008 two wheelers is being carried out in the name of New Star Auto Centre. It is nowhere alleged by the landlord that New Star Auto Centre is a proprietorship firm of O.P. No.2 – Rajinder Singh and on the other hand, it is the case of the revisionist that tenant – revisionist is running the two wheelers repair shop in the demised shop. Tenant – revisionist is running two wheelers repair shop in two demised shops, one is subject matter of present petition and second is subject matter of Civil Revision No. 3357 of 2008 – Sohan Singh Sidhu vs. Gurmeet Singh, and in both shops two different persons were introduced as sub tenant who could not be proved as sub-tenants. Landlord could not prove that there is a relationship of landlord-tenant between the tenant and sub tenant. It has not been proved that revisionist ever accepted any rent/consideration from O.P. No.2 – Rajinder Singh. In view of the dictum of the Apex Court, landlord is required to prove that tenant has delivered the possession to the sub tenant for consideration/rent and tenant has no control over the business being run in the shop. In the present case, landlord has failed to prove these important facts. To the contrary, tenant has established that tenant is running two wheelers repair shop and still in occupation of the possession of the shop in dispute. Inference drawn by both the Courts below seems to be unjustified and cannot be said to be legal. 7 C.R. No. 3358 of 2008 Question of sub tenancy is a question of law also. While exercising revisional powers this Court has to satisfy as to whether ingredients of sub tenancy are proved or not. If this court finds that ingredients are not proved then it would be open for this Court to disturb judgments/findings of both the Courts below on the question of sub tenancy. As observed herein above, sub tenancy is not proved. Hence, impugned judgments cannot be allowed to stand. Petition is allowed. The impugned judgments are quashed. August 31, 2010 ( Alok Singh ) vkd Judge 8