Case: Flora Elias Nahoum &amp; Others Vs. Idrish Ali Laskar

with, he denied having sub-let the suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in his examination-in-chief that Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as an “employee” of the respondent.38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shop - whether as an "employee" or a "business partner" or in any “other capacity”.39. It seems that the respondent was not sure as to what stand he should take to meet the plea of sub-letting. He, therefore, went on changing his stand one after the other and could not prove either.40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.41. In other words, if Joynal Mullick was the respondent’s employee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent has sub-let the suit shop to Joynal Mullick, who was in its exclusive possession without their consent.44. In a case of sub-letting, if the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any third party’s induction in the tenanted premises, no case of sub-letting is made out against such tenant.45. In other words, the sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlords consent.46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 , while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:“4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the 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 back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult 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 difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for 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 consideration may have been made 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, including the delivery of exclusive possession to infer that the premises were sub-let.”48. In our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynal Mullick’s presence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case of sub-letting against the respondent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned judgment, we restore that of the Trial Court and, in consequence, decree thesuit in part, as indicated below.16. There can be no dispute to the legal proposition that even if the landlord is able to make out only one ground out of several grounds of the eviction, he is entitled to seek the eviction of his tenant from the suit premises on the basis of that sole ground which he has made out under the Rent Act.17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.premises.34. In our considered opinion, keeping in view the pleadings and the nature of the evidence adduced by the parties, the ground ofTo begin with, he denied havingthe suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in histhat Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as anof the respondent.38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shopwhether as an "employee" or a "business partner" or in any. It seems that the respondent was not sure as to what stand he should take to meet the plea ofHe, therefore, went on changing his stand one after the other and could not prove either.40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.41. In other words, if Joynal Mullick was theemployee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent hasthe suit shop to Joynal Mullick, who was in its exclusive possession without their consent.44. In a case ofif the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any thirdinduction in the tenanted premises, no case ofis made out against such tenant.45. In other words, the sin qua non for proving the case of theis that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlords consent.46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 , while dealing with the case ofsuccinctly explained the concept ofand what are its attributes.47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held asng comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the 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 back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and theIt would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had beenhad paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease orIt may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out orIn our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynalpresence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case ofagainst the respondent.