Case: Ram Murti Devi Vs. Pushpa Devi

3. The brief facts of the case, giving rise to this appeal are:The appellant in this appeal is landlord who let out a shop situated at ground floor of the house to tenant named Amar Nath(since deceased). Landlord issued a notice terminating the tenancy of the tenant.Landlord filed suit in the Court of Judge Small Causes Court praying for decree of eviction of the tenant on the grounds of arrears of rent as well as subletting.Appellant claimed that monthly rent was Rs. 950 per month along with house tax and water charges. The tenant is in default of the rent since 01.01.1995. It was further pleaded thathad kept another person, namely, Mohd. Ezaj Khan, S/o Mohd. Zafar as subtenant in one portion of the shop and rent is being taken at the rate of Rs. 50 per day from him.The Ezaj Khan was undertaking the repair work of the watches in the above shop.had rebutted the averments made in the plaint, it was pleaded that rate of monthly rent is Rs. 710/. It was denied that tenant is in arrears of rent. It was also mentioned in written statement thatAppellant plaintiff had filed various documentary evidence and in oral evidence Ram Murthi Devi PW.1, PW.2 Vineet Kumar, Pratap Singh PW.3 and Zalim Singh PW.4 were examined. On behalf of thecertain documentary evidence were filed and Kishan Kumar appeared as DW.1 and Dilip Kumar appeared as DW.2. Trial Court framed several issues. Issue No. 4 was with regard to subtenancy, which was to the followingWhether defendants have kept Shri Moh. Ezaj as a subtenant at the shop in question for Rs. 50 per day or for consideration of some other amount. If so, itsTrial Court after considering the evidence on record held that tenants were in arrears of rent and were not entitled to the benefit under Section 20(4) of the U. P. Urban Building(Regulation of Letting, Rent and Eviction)Act 1972 (hereinafter referred to as Act 1972). On Issue No. 4, it was held that Moh. Ezaj had been kept as subtenant, who was held to be in partial possession of the shop. The suit was decreed directing theto hand over the vacant possession. Thewas also held liable to pay rent and damages.6. Aggrieved by the judgment dated 21.02.2013 of Judge Small Causes Court, a Revision under Section 25 of Provincial Small Cause Act, 1887 (hereinafter referred to as Act 1887)was filed by the tenant in the High Court. The High Court vide its impugned judgment has set aside the judgment of the Trial Court. High Court held that tenant was not in arrears of rent and the Trial Court committed an error in accepting the case of the appellant that tenant had sublet to Moh. Ezaj subtenant.7. Aggrieved by the judgment of the High Court appellant has come up in this appeal. We have heard Miss Aruna Gupta, learned counsel for the appellant and Shri S. R. Singh, learned senior counsel, assisted by Shri Mangal Prasad Yadav for the respondents.

Reasoning:
23. From the pronouncements of this Court as noticed above, following statement of law can be culledIn a suit by the landlord for eviction of the tenant on the ground of subletting the landlord has to prove by leading evidence that(a) A third party was found to be in exclusive possession of the whole or part of rented property.(b) Parting of possession thereof was for monetary consideration.(ii) The onus to prove subletting is on the landlord and if he has established parting of possession in favour of a third party either wholly or partly, the onus would shift to the tenant to explain.(iii) In the event, possession of the tenant wholly or partly is proved and the particulars and the instances of the transactions are found acceptable, in particular facts and circumstances of the case, it is not impermissible for the Court to draw an inference that the transaction was entered with monetary consideration. It may not be possible always to give direct evidence of monetary consideration since such transaction ofare made between tenant and the subtenant behind the back of the landlord.In each case, the proof of subletting/subtenancy thus, has to be established on the parameters of law, as laid down in the above cases.When the appellant pleaded that tenant had allowed one Moh. Ezaj to stay in a portion of the establishment and was realising a handsome amount of Rs. 50/per day, we fail to see how it can be said that there was no pleading of parting of possession wholly orfurther has clearly pleaded that said Ezaj was carrying a business of repairing watches, more so, when thehimself admitted that Moh. Ezaj was working in the shop, lack of pleading of parting of possession as found by High Court is misplaced.27. The Trial Court had referred to deposition of PW.1 as extracted above, who had mentioned and proved that Moh. Ezaj undertook the repair work of music systems and watches and was paying at the rate of Rs. 50/per day. Thus, the ingredients of pleading that tenant had parted with the possession of shop partly, is fully proved and High Court erred in observing that there is no pleading to that effect.28. High Court in Para 29 has further observed that Trial Court had nowhere recorded any finding that Moh. Ezaj had the exclusive control or possession, wholly or partly of tenantedthe above two reasons given by the High Court cannot be sustained.Present is not a case wherein Trial Court had considered any irrelevant factor or has ignored any relevant factor. It may be noticed that Trial Court had also held that althoughclaimed that Mohd. Ezaj was their worker but they had not brought on record any evidence to prove the same. Requisite proof of the intimation of name of Mohd. Ezaj had not been given, as required by statutory provisions of UP Shops & Commercial Establishments Act 1962.The Trial Court has observed that no document has been produced by the tenant to prove that the name of Mohd. EZaj is intimated as employee of the shop which is required as per above statutory requirement. The Trial Court did not commit any error in drawing adverse inference against the tenant to the effect that Mohd. Ezaj was not the employee of the tenant, in view of theof any relevant document which could have been produced by the tenant had Mohd. Ezaj was an employee of the shop.39. The above reason was also a valid consideration on which Trial Court based its decision. We are of the view that judgment of the High Court deserves to be set aside and that the judgment of Judge Small Causes Court dated 21.2.2013 is to be restored.