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

(1.) This Appeal, by Special Leave, by the Landlord arises out of and is directed against the judgment and order dated 23-8-1982 of the High Court of Punjab and Haryana in Civil Revision Application No. 2588 of 1980, allowing the Respondent-tenants appeal and - in reversal of the concurrent findings of the court below that there was an unauthorised subletting - dismissing Appellants application under Section 13 ofthe East Punjab Urban Rent Restriction Act, 1949 (Act) for an order for grant of possessionThere were other grounds for eviction - one of them that there were unauthorised structural alterations; but having regard to the limited scope of the proceedings before the High Court, those other points do not survive(2.) The two appellants - mother and son - as owners of the commercial premises S.C.O. No. 15, Sector 17E, Chandigarh, granted a lease, under deed dated 25-11-1970, in favour of M/s. S. Chokesiri and Co., respondent herein. The lease was for a term certain of 10 years from 1-1-1971 under the terms and on conditions particularised in the Deed Rent was initially Rs. 3,000.00 per month subject to certain increases stipulated in the lease deed. Respondent carries on a business in clothing and textiles under the name and style "Saree Sansar" in the demised premisesThe principal ground - and the only ground that survives - on which eviction was sought was that the respondent had, in about the year 1973, unauthorisedly and without the consent of the appellants, inducted two sub-tenants in two portions of the premises who, thereafter, carried-on their respective businesses of their own in the respective portions so sublet. One was a tailor, a certain Banwari Lal, who carried on his business under the name and style "Royal Star Tailors" and the other, Agia Ram Lamba, Proprietor of M/s. Kwality Restaurant who established a business under the name and style "M/s. Kwality Ice Cream" in the portion sublet(3.) The specific defence to this charge of subletting and the explanation for the admitted presence of those two other business establishments in the premises had better be excerpted from the respondents additional written statement :"The respondents have not sublet any part of the demised premises to any one. The whole of the demised premises are in the exclusive possession of the respondents and are being used for the purpose of carrying on the business of the respondents, namely, selling cloth and ready-made garments and for purpose subsidiary and ancillary to the said business ... .""No part of the demised premises has been sublet by the respondent to M/s. Kwality Ice Cream or any tailors. Section 17 is the most fashionable shopping centre of the city. Most of the customers who frequent this shopping centre are ultra modern persons. It is a matter of common knowledge that in modern shopping centres, the owners of show-rooms, whatever the nature of their business keep small booths to provide cold drinks, ice-cream and pop-corns etc., to the customers, who come there with their children and spend considerable time making purchases in the show-rooms. The maintenance of such booths has become a necessary adjunct of all big shops in modern shopping centres.""Similarly, it is well known that in order to run the business of selling cloth efficiently, it is necessary to have a tailoring shop on the premises. Every customer, who makes purchase of cloth in any cloth shop of any consequence wants to consult a tailor in order to know exactly the length of the material that will be required by him for preparation of garments of his choice and most of the customers also like to have the garments stitched by the tailoring outfit on the premises of the cloth shop, more especially when the customers belong to sophisticated upper class."The respondent also produced and relied upon the agreements dated 13-9-1973 entered into between Respondent and the said Banwari Lal of "Royal Star Tailors" (Ex. Mark B) and dated 17-9-1973 between the Respondent and the said Agia Ram Lamba of "M/s. Kwality Restaurant" (Ex. Mark A) the terms of which, according to the respondent, clearly excluded any possibility of subletting(4.) Appellants, in support of their allegation of subletting relied, particularly, on the Report and evidence of Sri S. K. Chhabra, Advocate-Court-Commissioner (A.W.1) who in his report substantially corroborated appellants charge of subletting; of Ram Lal Malhotra (A.W. 2) and Inspector in the Enforcement Office who spoke to the notices stated to have been issued by the authorities in regard to the partitions effected in the premises to accommodate the Tailor and the Ice Cream Vendor; of Ravinder Pal Singh (A.W. 4) a customer of the Ice Cream Parlour who spoke about the exclusiveness of its possession; of Nirmal Singh (A.W. 5) who gave a similar account respecting the tailoring establishment; of Davinder Singh (A.W. 7), the husband of the first appellant and father of the second, who spoke about the nature and extent of the alleged subletting and of the exclusiveness of the possession of the sub-tenants of the portions in their respective occupation and certain other matters; and of Kul Rajinder Lal (A.W. 8) who took photographs (Exhibits AW 8/1 to 4) which are stated to disclose that the Ice Cream Parlour was open late in the night even after the respondents textile business had been closedMehtab Singh Gill, the second appellant, tendered evidence as A.W.9. Some documents were marked and relied upon in evidence on appellants sideRespondent examined, amongst others, Vijinder Kumar (R.W. 2) stated to be an attestor of Exhibits Mark A and Mark B; M. L. Sharma (R.W. 3) a Senior Architect, in Chandigarh administration who produced the Plans at (Ext. R. 4); Surinder Mohan (R.W. 5) the tailors son; Swatantar Kumar (R.W.6) a partner of "M/s. Kwality Restaurant"; Parveen Jain (R.W.7) who was examined to contradict A.W. 8 in regard to the time at which the photographs Exts. AW 8/1 to 4 were taken; Baldev Raj (R.W. 8) the Manager of "M/s. Kwality Restaurant"; Krishan Lal (R.W. 9) an employee of "M/s. Kwality Ice Cream" and Des Raj Jain (R.W. 10) a partner of the respondent firmThe relevant portions of document (Mark A) dated 17-9-1973 say :"(1) That 1st part(y) will provide Softy Ice Cream Machine along with one employee at their premises and the whole Softy Ice Cream will be supplied by the 1st party at his own risk and costs(8) That both the parties can terminate the system at any time without any notice. In that case the 1st party will take away the machine from the premises."The relevant recitals in the document (Mark B) dated 13-9-1973 provide :"(1) That the first part(y) will do tailoring work only in the portion, i.e., back courtyard and he will keep the employees with the prior consent of the second party and the premises will be locked in the evening by the second party. The possession will remain with the second party(2) That the arrangement has been done as it is beneficial to both the parties and it will boost the business of second party and the first party be licencee in the premises and licence can be revoked will only (sic) at any time without any notice and in that case the 1st party will remove his machine and other articles. The 2nd party will not liable to pay any damages."(5.) The learned Rent Controller, on an appreciation of the evidence on the point, was persuaded to the view that, while the allegations of subletting in favour of the tailor had not been established, the case of subleting so far as the "M/s. Kwality Ice Cream" was concerned, had clearly been established. It is relevant to mention here that sometime in the year 1976 after the institution of the proceedings the Tailor gave up his business and vacated the portion in his occupation. In about the year 1980 the Ice Cream Vendor is also stated to have gone away. Learned Rent Controller held that the evidence on record indicated the exclusive possession of the Kwality Ice Cream and that in the circumstances of the cases it was also legitimate to draw an inference, and raise a presumption, that monetary consideration alone had prompted the respondent into the transactions. Accordingly, the learned Rent Controller by his order dated 2-3-1979 allowed the appellants application and made an order granting possession(6.) The appeal preferred by the respondent before the District Judge was unsuccessful and the order of eviction came to be upheld. The Appellate Authority also found that even in the case of M/s. Royal Star Tailors, there was a subletting. The Appellate Authority held :"So in the cases in hand, two exclusive portions have been parted with for M/s. Royal Star Tailors and for M/s. Kwality Ice Cream and the only conclusion in view of the evidence on record could be that the premises has been sublet and the documents Mark A and Mark B, could not be termed as licence deeds by any stretch of imagination. Hence, so far as the finding on the ground of subletting is concerned, I do not find any reason to differ with learned Rent Controller and on this point I affirm the finding of the Rent Controller on this part of the issue."(7.) The High Court, by its order dated 23-8-1982, in Civil Revision Application No. 2588 of 1980* however, in exercise of its revision jurisdiction and upon a re-appreciation of the evidence set aside the concurrent findings of the Courts below in regard to the element of exclusive possession and set aside the orders of eviction passed by the Courts below. Consequently appellants application for possession was dismissedIn reaching this conclusion, the High Court placed reliance on the two documents Mark A and Mark B entered into between the respondent on the one hand and M/s. Kwality Restaurant and Banwarilal, the Tailor, respectively, on the other. The High Court observed :"A look at these documents goes to show that it was specifically mentioned therein that the possession of the demised premises will remain with the petitioner-tenant and only the work connected with the supply of Softy Ice Cream and tailoring was allowed to be carried on. Except for the charges for the electricity consumed no rent is payable by the third parties to the petitioner. The agreements further envisage that the licences could be revoked at any time without any notice. The conditions prescribed in these documents do prima facie indicate that it was a case of licences, and not of sub-letting."Referring to what it thought were certain procedural objections in accepting the Report and the evidence of the Court-Commissioner (A.W.1) which had been accepted by the Courts below, the High Court was persuaded to this view :"It appears that the Authorities below have given great importance to a report of the Local Commissioner who was appointed during the trial for inspection of the demised shop. It is not disputed that the order appointing the Local Commissioner was passed by the Rent Controller ex parte without notice to the petitioner.""In the first place, there is nothing on the record to indicate that the petitioner was at any stage afforded an opportunity to file objections to this report as is usually done in such matters."In regard to the correctness of the Report itself, the High Court had this observation to make"The Local Commissioner made a report Exhibit A-1 to the effect that there are three separate portions on the ground floor where the demised premises were situated and each of these portions had a separate access. A material part of this report is that none of the above portion is approachable from inside the demised shop. If this report of the Local Commissioner would have been correct, there may be something to say in favour of the landlords on the points of the conferment of exclusive possession of the portions to the third parties. There are, however, circumstances to show that this report is not factually correct."The High Court placed reliance on certain plans said to have been submitted for effecting certain alterations to the building which are stated to have contained the signature of the first appellant to come to the conclusion that, consistent with the structural dispensations indicated in the plans, the alleged sub-tenants could not have had exclusive possession. On this aspect, the High Court observed :"These plans were proved by M. L. Sharma, Senior Architect (RW.3) who testified that they bear the signatures of Rajbir Kaur respondent-landlady. In fact, their correctness was also admitted by Devinder Singh, Mukhtiar and husband of Rajbir Kaur, landlady. These plans, according to learned counsel for the petitioner, indicate that after entering into the main gate of the shop, one could go into the portion which was permitted to be used by the Kwality Restaurant for supply of Softy Ice Cream. Similar is the case with the portion occupied by the tailor. The learned counsel for the respondents has not been able to rebut this fact. This being so, the question of parting with exclusive possession of any portion of the shop in favour of the two alleged sub-tenants does not arise." (Emphasis Supplied)

Reasoning:
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.