Reportable
BY THE COURT:-
1) This is defendants' second appeal directed against the judgment of the learned Civil Judge, Alwar dated 15/4/1985, dismissing his appeal against the judgment and decree passed by the Munsiff Magistrate, Alwar dated 3/1/1977 whereby, suit for eviction filed by the plaintiff-respondent against the defendant-appellant was decreed.
2) Plaintiff-respondent filed a suit for ejectment, recovery and arrears of rent against the defendant-appellant on 20/7/1972. It was pleaded in the plaint that the plaintiff are the partners of M/s. Chhoteylal Palawat, Bazaza Bazar, Alwar. They are owners of a Nohra admeasuring 80′× 29″, details of which were given in para 1 of the plaint. Aforesaid ‘nohra’ along with tin-shed was let out to the defendants', who are partners of M/s. Krishna Oil Mills on 9/8/1955 for a period of 20 years @ Rs. 55/- per month. Rent-deed was executed on 9/8/1955 and was got registered. The rent of the disputed premises was due from 9/7/1968. Plaintiff served a notice dated 3/7/1971 upon the defendants to make payment of the arrears of rent from 9/7/1968. Telegraphic notice was also sent to the defendants on 16/7/1971. One of the defendants Birdhi Chand replied to the notice stating that upto date rent has been deposited in the court. Another notice was given to the defendants on 21/9/1971 demanding arrears of rent but so far no payment has been made. The defendants made default in payment of rent. It was also averred that defendants have parted with or assigned part of the premises to some third person and have thereby violated the condition of the lease-deed. It was further pleaded in the plaint that defendants have neither vacated the suit premises nor paid mesne profit of a sum of Rs. 2576.75 and also further mesne profit of Rs. 55/- per month during the pendency of the suit.
3) Defendant No. 2 Birdhi Chand filed written statement denying the allegations in the plaintiff. It was asserted that he did not commit any default in payment of rent and no rent was due upto 9/7/1968. The rent was offered to the plaintiff but since he refused to accept the same, defendant sent the money order but when the plaintiff also refused to accept the same, defendant deposited the rent in court under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Defendants asserted that they always tendered the rent in time and when plaintiff refused to accept the same, rent was deposited in the court. It was denied that defendants have parted with or assigned part of the premises to a third person. No such details have been furnished by the plaintiff.
4) Learned trial court framed five issues out of the pleadings of the parties, which are as follows:-
“1. Whether the defendants have committed default in payment of rent?
2. Whether the defendants have parted with possession of the suit premises?
3. Whether the tenancy has been terminated by a valid notice?
3A. Whether the tenancy has been terminated by efflux of time and the plaintiffs are entitled to a decree of eviction on that account?
4. Whether the defendants are entitled to special cost?
5. Relief?”
5) Plaintiff No. 1 Nanak Chand in support of his case, examined himself as PW1, plaintiff No. 2 Radhakrishna as PW2 and plaintiff No. 3 Ramjilal as PW3 and got exhibited 13 documents. Whereas, from the side of the defendants, defendant No. 1 Birdhi Chand examined himself as DW1 and defendant No. 2 Bhagwat Prasad as DW2 and they got 30 documents exhibited. Learned trial court vide its judgment and decree dated 3/1/1977 decreed the suit of the plaintiff. Aggrieved thereby, defendant-appellant filed appeal before the District Judge, Alwar who transferred the same to the court of learned Civil Judge, Alwar for disposal. The learned first appellate court dismissed the appeal and upheld the judgment and decree passed by the learned trial court. Hence, this appeal.
6) The present appeal was admitted for hearing vide order dated 9/5/1985 on the following substantial questions of law:-
1. Whether the tenancy was for a fixed period of 20 years, on the basis of which the tenant spent huge amount in making constructions and the suit could not have been filed before the expiry of period of 20 years?
2. Whether the payments made towards rent under Section 19A could not be adjusted for determination of rent under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950?
3. Whether the rent paid after filing of the suit under Section 19A could be considered to be valid payment of rent for the purpose of Section 13(5) of the Act?
4. Whether the acceptance of rent by the plaintiff of the amount sent by the defendants on 7.8.71 would amount to waiver of earlier defendants payment of rent?
5. Whether the finding in respect of sub-tenancy given by the first appellate court can be maintained in view of the fact that Mukhija Roadways was a partnership firm of the defendant?
7) Shri M.M Ranjan, Senior counsel appearing for the defendant-appellant has argued that the learned courts below have committed serious error of law as also of facts in deciding Issue No. 1 against the defendants. Burden of proving Issue No. 1 was on the plaintiff. He miserably failed to prove the same that the defendants have neither tendered nor paid the amount of rent for a period of six months. Learned courts below have not recorded a specific finding that the defendants have neither tendered nor paid any rent for a period of six months. There was neither any pleading nor any evidence to that effect. Since the amount of rent subsequent to 9/7/1968 was refused by the plaintiff as such, defendants deposited the entire rent with the court in the proceedings under Section 19A of the Act of 1950. In those proceedings, the rent upto 10/7/1971 was deposited by the defendants and thereafter the rent for the period from 10/7/1971 to 10/8/1971 was sent through money order, which was not accepted by the plaintiff. When the plaintiff again refused to accept the rent, defendants filed an application under Section 19A of the Act of 1950 on 20/7/1972 asserting that money order for the rent of 10/7/1971 to 10/8/1971 was sent but the plaintiff did not accept the same as such, they are depositing the rent in court under Section 19A of the Act. Learned Magistrate vide order dated 22/5/1974 directed the defendants to deposit the rent under Section 19A and plaintiffs were allowed to withdraw the rent. Defendants therefore cannot be said to have committed any default in payment of rent. It is submitted that the learned Munsiff Magistrate vide order dated 22/5/1974 directed the defendants to deposit the rent under Section 19A and the plaintiffs were allowed to withdraw the same. That order was never challenged by the plaintiffs as such it became final. It was not open to the learned Munsiff Magistrate to examine the legality and validity of the order under Section 19A.
8) Shri M.M Ranjan, Senior counsel further argued that the learned first appellate court has committed serious error of law in holding that for valid deposit under Section 19A supra, first condition is that the amount should be offered to the landlord and on his refusal to accept the same, it should be sent to him by money order and if the same is refused, only then it could be deposited with the court. This is not correct interpretation of Sections 19A, 19B and 13(3) of the Act. The rent was deposited after making full compliance of the provisions of Sections 19A and 19B of the Act. Learned first appellate court has committed serious error of law in holding that plaintiff Nanak Chand has not been cross-examined on the point that rent was offered to him whenever it became due. Rent can be sent by sending the money order also. Number of letters placed are on record, which sufficiently proved refusal by the plaintiff. Learned first appellate court has simply proceeded on surmises and conjectures when it held that since the plaintiff accepted the same by money order dated 17/8/1971 Exh.A.1 & Ex.A.3, it shows that the plaintiff never refused to accept the rent sent by money order. Provisions of Section 13(7) Old Act, now under Section 13(6) of the New Act, could not be applied to the facts of the present case.
9) It was argued that first appellate court has wrongly held that even if plaintiff withdrew the amount during pendency of appeal, question of waiver does not arise and that mere withdrawal of the amount deposited by the tenant does not amount to waiver. Appeal is continuation of the proceedings of the suit. Allegation with regard to parting with possession is absolutely vague and no specific plea was made with regard to the case contained in Section 13(1)(e) therefore no decree can be passed in favour of the plaintiff. Plaintiff being landlord was under an obligation to plead regarding possession of the whole or part of the premises. Neither has it been pleaded that the possession of premises in whole or in part was parted with or assigned to a third person without the permission of the landlord nor is there any evidence as to subletting or parting of possession of the suit premises to a third person without the permission of the plaintiff that the defendants sublet and parted possession of the suit premises to Mukhija Roadways. Defendant Birdhi Chand has categorically stated that he is one of the partners in Mukhija Roadways but the learned first appellate court failed to appreciate the fact that Birdhi Chand is one of the partners therefore, he ought to be treated in possession of the title of suit premises as one of the partners of that firm. There is therefore no question of parting with possession.
10) Shri M.M Ranjan, learned Senior Advocate argued that learned first appellate court has erred in law in not considering the statement of plaintiff Nanak Chand, who has stated that defendant tenant had earlier sublet part of the premises to some other person and now to Mukhija Roadways. The admitted case of the plaintiff is that he already arranged eviction against defendants. In the suit, no ground of subletting or assignment or parting with possession was taken. Once, the plaintiff accepted the rent on 8/7/2001, he could not raise any objection, even if part of the premises is let out to a third person. No notice was given to the defendants in compliance of Section 106 of the Transfer of Property Act, 1882. It is submitted that defendants produced certain documents on the record of the first appeal, which refer to money orders, they include application filed under Section 19A of the Act, reply thereof by the landlord, orders passed on the application under Section 19A and also money orders receipts. Learned senior counsel further argued that even if it was a case of default, prerequisite conditions for proceeding further in the suit was to make compliance of Section 13(3) of the Act of 1950, according to which if a tenant has remitted any amount of rent due from him by money order to the landlord at his ordinary address, he shall be deemed to have paid or tendered the amount of any rent due from him, as provided under clause (a) of sub-Section (1) of Section 13 of the Act of 1950. Learned senior counsel for the appellant has in support of his argument, placed reliance upon the Division Bench judgment of this Court in 1985 (1) WLN 150 and Full Bench judgment of this Court in Kailash Chand v. State of Rajasthan.
11) On the other hand, Ms. Suruchi Kasliwal, learned counsel appearing for the plaintiff-repsondent argued that compliance of Section 19A was not fully made because defendant-appellant could not have directly deposited the rent with the court. Requirement of law is that he should have first offered the rent to the plaintiff-landlord and if he refused, then only, the money order could be sent to him. Even otherwise, no receipt of money order or coupon has been produced to prove that the money order was actually sent. Deposit with the court could be made only if money order was refused by the landlord in each instance. The star witness of the defendant Birdhi Chand DW1, in his examination-in-chief, has not uttered a single word whether he offered the rent to the landlord in person or through any other person. He has merely stated that the money order was sent but it was returned back and therefore application under Section 19A was filed on 9/8/1988 and the rent was deposited on 28/11/1968. Birdhi Chand further stated that whenever money order was sent by post, entry to this effect was made by him in his record books (bahikhata) but no such account book has been produced, therefore, an adverse inference should be drawn against the defendant that he did not send money orders. Defendants thus failed to pay arrears of rent w.e.f 9/7/1968 till date of filing of the suit i.e 20/7/1972. The suit was filed by the plaintiff on the ground of default. Even though the defendant has produced copy of the application filed under Section 19A as also copies of number of challans depositing the money with the court. But he has failed to prove that he ever sent any money order to the plaintiff-respondent. Reference was made to the application filed under Section 19A along with application under Order 41 Rule 27 CPC, which has been produced on record. The defendant failed to produce any of the four money orders and the receipts in token thereof. Defendant-appellant Birdhi Chand (DW1) has stated that four money order receipts were there but he does not know as to whether they were produced on record or not. He also did not remember as to how much money was sent and on which date, through money orders. He also does not remember as to when he sent the money order and how much money was sent after 10/8/1971. He further admitted that rent was not sent with any other person except by money order and further that whenever money order for the rent was sent by them, entry to this effect was made in the account books. Whenever the money orders returned back, entries were similarly made in the account books. No such account book has been produced in evidence. In this connection, learned first appellate court has thoroughly examined the evidence and made discussion on law in paras 14 to 22 & 25 of the judgment.
12) Ms. Surushi Kasliwal, learned counsel for the plaintiff-respondent in support of her argument, relied on the judgment of Supreme Court in Atma Ram v. Shakuntla Rani: (2005) 7 SCC 211 and judgment of this Court in Vishwanath Singh v. Gopilal: 1970 WLN 446 on the question of subleting. She argued that defendant-appellants admitted in cross examiantion the fact regarding subletting. Defendant stated that office of Mukhija Roadways was situated in ‘nohra’. He himself, Ramlal, Prakash, Sudarshan and the wife of Mukhija, Advocate were partners in the firm of Mukhija Roadways. No rent was paid to any one. There was written partnership-deed of Mukhija Roadways. Despite being required, the defendant failed to produce any partnership-deed. He failed to prove that he was partner in the said firm. Defendant failed to produce in evidence any of the other partners namely; Ramlal, Prakash, Sudarshan and the wife of Mukhija, Advocate. It was argued that admission made by the defendant was sufficient to discharge the burden to prove the fact of subletting by the appellant. In support of her this argument, learned counsel placed reliance upon the judgment of Supreme Court in Bhagwan Das v. S. Rajdev Singh: (1971) 3 SCC 852 and judgment of this Court in Hari Prasad v. Jagdish Prasad: 2005 (5) WLC (Raj.) 584.
13) I have given my anxious considertion to the rival submissions and carefully studied the impugned-judgment and the cited case law.
14) The defendant-appellant produced before the first appellate court number of copies of challans as proof of deposit of rent with the court under Section 19A. He also produced two copies of applications filed under Section 19A and order-sheet dated 10/8/1961, notice Exh.A.3 dated 6/1/1960, another notice dated 20/10/1962 and receipt of rent dated 10/8/1968. What has to this Court therefore examine is whether courts below have committed any error of law in still holding that defendant-appellant committed default in payment of rent? Section 19A of the Act of 1950 inter-alia provides that subject to the provisions of this section, evry tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next folliwng the month for which it is payable. Every tenant, who makes a payment on account of rent, shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent. Sub-section (3) provides alternative modes for payment of rent in clause (a) by remitting the rent by postal money order at the ordinary address of the landlord requiring the landlord in clause (b) to specify his bank account number and if he does so, deposit the rent in such account with such bank and continue to deposit the same whenever it again subsequently becomes due. Clause (c) further provides that where the tenant has remitted the rent by postal money order under clause (a) and the money order is received back to him under a postal endorsement of refusal or unfound and where the landlord does not specify a bank and account number under clause (b) or where there is bonafide doubt as to the person or persons to whom rent is payable, the tenant may deposit such rent with the court within fifteen days of the expiry of the period of ten days referred to in clause (b) and in the case of such bonafide doubt as aforesaid, within fifteen days of the time referred to in sub-sec.(1). It is thereafter that sub-Section (4) provides that for the puprose of clause (a) of sub-sec. (1) of sec.13; a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has paid, remitted or deposited the amount of rent by any of the methods specified in sub-section (3).
15) The Supreme Court in Kuldeep Singh v. Ganpat Lal: (1996) 1 SCC 243 while interpreting Section 19A of the Act of 1950 when it found the tenant to be lacking in not remitting rent by postal money order nor calling upon the landlord to specify the bank account number in which rent should be deposited, in para 8 of the report, held as under:-
“8. In the present case, the appellant is seeking to avail the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See: The Bengal Immunity Company Limited v. The State of Bihar]. The appellant can avail the benefit of Section 19-A(4) if the deposit of Rs. 3,600 made by him in the Court of Munsiff (South), Udaipur, on October 29, 1982, by way of rent for the months of May, 1982 to October, 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the Court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in Court on October 29, 1982 cannot, therefore, be regarded as a deposit made in accordance with Clause (c) of Sub-section (3) of Section 19-A and the appellant cannot avail the protection of Sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May, 1982 to October, 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.”
16) In Mr. Bhaskar v. J. Venkatarama Naidu, analogous provision of Section 10(2)(1) of the A.P Buildings (Lease, Rent and Eviction) Control Act, 1960 came up for consideration before the Supreme Court. The Supreme Court while upholing the decree for eviction, observed that if the tenant finds that the landlord is evading the payment of rent, procedure has been prescribed under Section 8 of the Act to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file an application before the Rent Controller for permission to deposit the rents. The appellant did not avail of that remedy. The omission to avail of the procedure under Section 11 does not disentitle the landlord to seek eviction for willful default.
17) In Ram Bagas Taparia v. Ram Chandra Pal: (1989) 1 SCC 257, the Supreme Court considered the West Bengal Premises Tenancy Act, 1956. That Act provided that payment shall be made by 15th of succeeding month. In that case, tenant claimed benefit of Section 17(4) of the Act. High Court held that since the tenant failed to comply with the provisions of Section 17(1) because he did not deposit the rent under Section 17(1) within one month from the date of service of summons on him or from the date of his appearance in the suit in the court or with the controller, he would be guilty of default in making payment of rent.
18) In E. Palanisamy v. Palanisamy (Dead) by LRs: (2003) 1 SCC 123, the Supreme Court while considering the T.N Buildings (Lease and Rent Control) Act, 1960, which has analogous provisions to the provisions in Sections 13A and 19A of the Act of 1950, held that the rent legislation is normally intended for the benefit of the tenants. At the same time, it is well-settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance of the statutory provisions. Equitable considerations have no place in such matters. The statute contains express provisions. It prescribes various steps, which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance of the procedure is necessary. The tenant cannot straight away jump to the last step i.e to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. (emphasis supplied)
19) In Vishwanath Singh v. Gopilal: 1970 WLC 466, this Court while considering provisions of Section 19A(2) observed that the language of sub-sec. is plain and unambiguous and the words ‘such rent’ occurring in sub-sec. (2) refer to ‘any rent’ in the later part of sub-sec. (2) which is tendered by the landlord. Whether it be the first deposit or subsequent deposit, the condition precedent of tender and refusal by the landlord has to be satisfied. Otherwise, it will not be regarded as a valid deposit so as to be a full discharge of the tenant from liability to pay rent to the landlord. This therefore would not make any difference if the defendant in the present case has made number of deposits on different occasions.
20) In Atma Ram supra, provisions under the Punjab Relief of Indebtedness Act, 1934 specified statutory provisions i.e proposal of tenant for offering the rent and in the eventuality of non-acceptance of rent by the landlord, depositing the same in the court. Appellant tenant was found to have not complied with such provision and therefore he was held to be in default. It was held that provision in the rent control statute are required to be strictly complied with.
21) In the present case too, even though the defendant-appellant has produced number of documents showing deposit with the court but has failed to prove by his evidence in this respect that he offered the rent to the landlord and if landlord denied to accept the same, whether the tenant/defendant-appellant called upon the landlord/plaintif-respondent to furnish the bank account number and if he did not do so, did he send the money by postal money orders on each occasion and if he did so, whether he received the receipts or the endorsement of refusal by the landlord. By merely producing two applications filed under Section 19A and reference of money order therein but not producing the postal money order receipts on record, does not prove that defendant-appellant has taken required steps to avail of the benefit of Section 19A(4) so as to hold that he was not in default in the meaning of Section 13(1)(e).
22) Adverting now to the fact whether appellant-tenant has assigned, sublet or otherwise parted with possession, whole or in part of the premises without permission of the landlord, in the meaning of Section 13(1)(e) of the Act, it should be noted that the plaintiff has set up a case in the plaint that defendant-appellant has parted with and assigned part of the suit premises thereby violating the condition of the lease deed enabling him to seek his eviction.
23) Shri M.M Ranjan, learned senior counsel for the defendant-appellant has in this respect cited judgment of the Division Bench of this Court in Amir Ahmed v. Yusuf: 1985 (1) WLN 550 to argue that Division Bench in this case while answering the reference to three questions made to it, held that where a tenant merely allows another person to use the premises or part of the premises, he cannot be said to have parted with possession of the premises or part of the premises, so as to entail the liability of eviction u/S.13(1)(e) of the Act.
24) On this aspect, Nanak Chand (PW1) has stated that the defendant has sublet a part of nohra to Mukhija Roadways measuring 60 × 16 feet. Radhakrishna (PW2) has stated that he saw the sign-board of M/s. Mukhija Roadways on the door of ‘nohra’. Defendant Birdhi Chand (DW1) has in his cross examination admitted that office of Mukhija Roadways has been opened in ‘nohra’ and that he himself, Ramlal, Prakash, Sudarshan and wife of Mukhija, Advocates were partners in that firm and partnership-deed of M/s. Mukhija Roadways was prepared in writing. Even though he accepted that he was partner in Mukhija Roadways but he failed to produce any written partnership-deed and therefore learned courts below have drawn adverse inference against them. In fact, no evidence whatsoever was adduced to prove existence of the partnership-firm. None of those partners have been produced to prove the existence of partnership firm. When statement of Nanak Chand (PW1) is analysed in the light of the pleadings in para 12 of the plaint, it is found that though there was no specific plea with regard to subletting of the premises but what was pleaded was parting with possession and assignment. Section 13(1)(e) has three components viz: (i) assignment, (ii) subletting or (iii) otherwise parting with possession, whole or in part, of the premises without permission of the landlord. If any one of them has been proved independently, that would suffice decree of eviction. There is no need to prove all three of them cumulatively. In other words, if the pleadings of the plaintiff landlord broadly incorporate any of three components i.e assignment, subletting or otherwise parting with possession, whole or in part of the premises, without permission of the landlord, such pleading cannot be said to be vague or unspecific.
25) Shri M.M Ranjan, learned senior counsel for the defendant-appellant has cited the case law to the effect that parting with possession is not proved because defendant tenant allowed Mukhija Roadways to merely use the premises. The Division Bench in Amir Ahmed in the fact situation of that case held that by merely allowing another person to use the premises without parting with possession, the tenant cannot be said to have parted with possession so as to entail liability of eviction under Section 13(1)(e). Division Bench judgment however does not covers situation where premises has been assigned or sublet by the tenant to another person, whether in part or in whole. Even though pleading about subletting is absent, nevertheless the plaintiff has specifically avered in para 13, aside from assignment by the defendant to third party, parting with possession of the tenanted premises. ‘Assignment’, which is one of the components of Section (e) of Section 13(1) is thus independently pleaded and proved. Defendant has failed to prove that he was a partner in the firm. Despite asserting that there was written partnership-deed, he has failed to produce any such written partnership-deed and therefore, the courts below have drawn adverse inference to hold that there did not exist any partnership deed. It must therefore be held that ‘assignment’ of part of the suit premises without the permission of the landlord, by itself is an independent ground under Section 13(1)(e) of the Act to justify decree of eviction. Non use of the word ‘subletting’ would not defeat the case of the plaintiff because the pleadings in para 12 substantially lay down the factual foundation for the ground of eviction contained in clause (e) of sub-Section (1) of Section 13. And an issue was framed thereabout. Parties understood their case and adduced evidence accordingly. Learned first appellate court while dealing with this argument has relied on the judgment of the Supreme Court on that issue in Shri Udhav Singh v. Madhav Rao Scindia : AIR 1976 SC 744, wherein it was held a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation.
26) Regarding absence of pleading about non-receipt of money orders and that defendants have sublet the premises to a third party, reference in this connection may be made to the judgment of the Supreme Court in Sree Swayam Prakash Ashramam v. G. Anandavally Amma: (2010) 2 SCC 689 wherein, the defendant contended that there was absence of pleadings in the plaint regarding implied easementary right in relation to pathway concerned. The trial court passed the decree on the basis of conclusion as to such implied grant. The appeal thereagainst was dismissed by the first appellate court, which was affirmed by the High Court as well. Dealing with similar argument, the Supreme Court held that although no specific issue was framed on the question of implied grant but the parties have understood their case and for the purpose of proving and contesting implied grant, had adduced evidence and the trial court and High Court on that basis came to the conclusion that the plaintiff had acquired the right of easement in respect of the pathway by way of implied grant. Absence of pleadings was held to be immaterial and argument was rejected.
27) In the present case too, the requisite pleadings with regard to default in payment were made in paras 4 to 8 and pleading with regard to parting with possession and assignment was made in para 13 of the plaint. It cannot therefore be said that there was absence of pleading. Even if therefore the non-receipt of money order has not been specifically pleaded on the ground of default and subletting has not been categorically asserted, those pleases were broadly stated in the plaint. Issue No. 1 was framed with regard to subtenancy and Issues No. 2 & 3 were framed with respect to default in the context of deposit made by the defendant u/S.19A of the Act. The parties fully understood their case and therefore the question of lack of pleading by the plaintiff become inconsequential. No prejudice can therefore be said to have been caused to any one of them.
28) This court in Phool Chand v. Girraj Prasad: RLW 1976 437 held that it is very difficult for the landlord to produce direct evidence of subletting, as according to the plaintiff, sub-letting took place without the consent of the landlord. In such type of cases, a landlord is generally a stranger to agreements of sub-letting between his tenant and sub-lessee. The landlord, therefore, in order to prove sub-letting, has no alternative but to rely on attending circumstances. Once it is proved that there has been transfer of possession of the lease-hold property without the permission of the landlord, the only person who can account for it are the lessee and his transferee. On the proof of transfer of possession of the lease-hold property, the onus shifts upon the tenant to make out that transfer of possession cannot be attributed to sub lettinig or assignment.
29) The Supreme Court in Vinaykishore Punamchand Mundhada v. Shri Bhumi Kalpataru: (2010) 9 SCC 129 held that sub tenancy or sub-letting comes into existence when tenant voluntarily surrenders possession of tenanted premises wholly or in part and puts another person in exclusive possession thereof without knowledge of landlord. Such arrangement is always clandestine and takes place behind back of landlord. It is actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is impossible for landlord to prove, by direct evidence, arrangement between tenant and sub-tenant. In those facts, the court is required to draw its own inference upon facts of the case.
30) Similar view was expressed by the Supreme Court in Celina Coelho Pereira (Ms) v. Ulhas Mahabaleshwar Kholkar: (2010) 1 SCC 217 that initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
31) The Supreme Court in Bhagwan Das supra held that the Rent Controller and the Rent Control Tribunal, on consideration of the relevant terms of the agreement and oral evidence and the circumstances found that a clear case of sub-letting was established. On that finding, no question of law, much less a substantial question of law arose. The Supreme Court in M. Meeramytheen v. K. Parameswaran Pillai: (2010) 15 SCC 359 held that question whether sub-tenancy had been created, is factual determination, interference by second or third appellate court is not warranted.
32) In view of aforesaid discussion, I do not find any merit in the appeal, which is accordingly dismissed with no order as to costs.
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