Case: Smt. Rajbir Kaur &amp; Another Vs. Messrs S. Chokesiri and Company

is permissible. However it is not necessary to pronounce on this question as even the other evidence on record relied upon by the trial Court and the appellate Court supports their finding as to the exclusive possession of the ice-cream seller. (21.) Dipak Banerjees case (AIR 1987 SC 2055 ) on which strong reliance was placed by Dr. Chitaley does not, in our opinion, advance the case of the respondent any further. There, the question was whether the tenant had sublet two rooms in the premises to a tailor who is stated to have established therein a tailoring business. The tenant denying the subletting contended that the tailor was allowed to occupy a part of the premises "due to pity and charity" and that he was "sewing in the house without any rent". It would appear that the tenant also did some service for the landlord and the members of his family. The alleged sub-tenant not having entered the box, the plea of subletting had come to be accepted. In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged subtenant and that, therefore, one of the essential ingredients of a sub-lease was lacking. It was further held that providing of services could not also be construed as consideration for purposes of the Rent Acts and that, therefore, the second ingredient was also absent. The decision turned on the particular facts of the case. That case could be of no assistance to the respondents. Likewise, the decisions in Kallil Ahmeds case (AIR 1988 SC 184 ), where also, on the facts of the case, it was held that the case of a sub-lease had not been made good. (22.) Dr. Chitaley then urged that there was not even a pleading by the 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 : "... ....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 pleading 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 draftmanship of a Chalmers". There is no substance in this contention of Dr. Chitaley either. (23.) The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that 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 got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that appellants having been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised-premises and the explanation of the transaction offered by the respondent having been found by the Courts below, to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found.

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

Explanation:
1[ds]In the present case, it is no doubt true, that the order dated 3-2-1975 of the trial court appointing a Commissioner did not in terms direct the parties to appear before the Commissioner. There is this infirmity in the proceedings of the CommissionerBut it is possible to construe the power to appoint a Commissioner to inspect the extant state and nature of structures as not confined to Rule 9 of Order 26 but referable to Rule 7 of Order 39CPC where the court can dispense with prior notice, should it appear to the court that the very object of making of appointment of a Commissioner would be defeated and frustrated by the issue of prior notice. On the scope of Rule 8 of Order 39 as it stood even prior to its amendment, High Courts have held that an ex parte order appointing a Commissioner is permissible. However it is not necessary to pronounce on this question as even the other evidence on record relied upon by the trial Court and the appellate Court supports their finding as to the exclusive possession of the ice-cream seller(21.) Dipak Banerjees case (AIR 1987 SC 2055 ) on which strong reliance was placed by Dr. Chitaley does not, in our opinion, advance the case of the respondent any further. There, the question was whether the tenant had sublet two rooms in the premises to a tailor who is stated to have established therein a tailoring business. The tenant denying the subletting contended that the tailor was allowed to occupy a part of the premises "due to pity and charity" and that he was "sewing in the house without any rent". It would appear that the tenant also did some service for the landlord and the members of his family. The alleged sub-tenant not having entered the box, the plea of subletting had come to be accepted. In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged subtenant and that, therefore, one of the essential ingredients of a sub-lease was lacking. It was further held that providing of services could not also be construed as consideration for purposes of the Rent Acts and that, therefore, the second ingredient was also absent. The decision turned on the particular facts of the case. That case could be of no assistance to the respondents. Likewise, the decisions in Kallil Ahmeds case (AIR 1988 SC 184 ), where also, on the facts of the case, it was held that the case of a sub-lease had not been made good(22.) Dr. Chitaley then urged that there was not even a pleading by the 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(23.) The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that 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 got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that appellants having been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised-premises and the explanation of the transaction offered by the respondent having been found by the Courts below, to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found.