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Dattatraya Kaluram Jadhav Vs. Narayandas Badridas Rathi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1064 of 1969
Judge
Reported inAIR1974Bom189; 1974MhLJ251
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order; Constitution of India - Article 227
AppellantDattatraya Kaluram Jadhav
RespondentNarayandas Badridas Rathi and anr.
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateR.N. Deshpande, Adv.
Excerpt:
.....the premises, which clearly shows that the premises given on rent carry a big board in the name of ratanlal narayandas agarwal, oil merchant, pratap-chouk, amravati. it cannot be said therefore that a licensee who is inducted in the house and who also continued to pay the rent is necessarily excluded from the definition of the term 'tenant'.the only requirement for the purpose of that definition appears to be that there must be a liability to pay the rent, it is well-settled that mere fact that rent is paid or charged is not decisive to create a lease as such; 10. now for the purpose of clause 13 (1) the word 'tenant' clearly indicates a lessee, for it postulates a landlord determining the lease. it is well-known that prior to the enactment of this order, the landlord could determine the..........controverted the allegations made against him by the landlord. further the story pleaded by the tenant narayandas in his written statement was not of occupation by a friend but merely permissive user on behalf of narayandas himself. the written statement stated:'the n.a. no. 1 is using the premises for his own use. he has also allowed the n.a. no. 2 to use the premises on his behalf. the n.a. no, 2 is using the premises as such for the last several years. the previous owner had full knowledge about this and he has acquiesced in this.'so the plea was that non-applicant no. 2, i.e., ratanlal, was using the premises on behalf of narayandas or for his purposes. when narayandas took oath-and to his evidence i have made a brief reference-it became clear that narayandas was not concerned at.....
Judgment:
ORDER

1. The petitioner is the landlord of the premises, being house No. 9/857, located in Pratap chouk Amravati. He purchased the same for valuable consideration on January 27, 1967 from the original landlady one Dhapuabi widow of Deorao. The respondent No. 1 Narayandas was inducted as a tenant prior to the date of purchase and the present petitioner moved an application against him under the provisions of C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereafter called the Order), Seeking permission to determine the lease of Narayandas under Clauses 13 (3) (I) (ii) and (iii) of the Order. To this application he also added respondent No. 2 Ratabla Aggarwal alleging that he was inducted by the tenant without any written permission from the landlord.

2. It does appear that both these respondents were properly served. Only respondent No. 1 Narayandas chose to file written statement. respondent No. 2 i.e. Ratanlal did not file any statement before the Rent control authority and it is patent from the records of that case that he even did not enter the witness-box. He was neither examined by Narayandas.

3. Now the case which falls for consideration in this petition is that the Rent Controller had found upon evidence that this Ratanlal was inducted by Narayandas and the requirements of clause 13 (3) (iii) of the Order have been fully satified. That finding is recorded after taking into account the plea of Narayandas and the earlier conduct of the landlady in which she had complained against the said non-applicant under Exh. N.A. 6, that Ratanlal was a sub-tenant inducted on a monthly rent of Rs. 40/- The submission that was made to the controller was that there was an endorsement which cancelled the notice so given and, therefore, the landlady mau be presumed to have given consent to the sub-tenancy. The rent controller found, as there was no written consent, the requirements of item (iii) of clause 13 (3) were fully satified. Then the matter went up in appeal and the appellate court took the view in the last paragraph of his order that on the reverse of a rent receipt there was an endorsement to the effect that the earlier notice given by the pleader was cancelled and from this fact, the learned appellate court observed:

'.........Though this cancellation of the notice cannot be taken to mean that previous landlord had permitted the sub-tenancy, it certainly means that respondent No. 2 is not exactly a sub-tenant of the appellant.'

After drawing such an inference from theendorsement it is further observed that 'There is no evidence on record to show that the appellant accepted the rent from the subtenant for the use of the premises.' Further fact that Ratanalal was occupying the suit premises before the purchase was treated as relevant and a conclusion is drawn that the state of affairs of the evidence was discrepant to arrive at a definite finding that respondent No. 2 was a sub-tenant of the appellant and that he was receiving the rent from him. There is some such observation also that may mean that the landlord was estopped from saying that Ratanlal was a sub-tenant, and that is how the appellate authority allowed the appeal as far as the plea under item (iii) of clause 13 (3) was concerned.

4. Now, in this court, therefore, the learned counsel for the petitioner pointed out that this is all against evidence. The material facts which were brought on record have not at all been considered by the appellate authority. He drew my attention to the photograph which was admitted by the defendant being that of the premises, which clearly shows that the premises given on rent carry a big board in the name of Ratanlal Narayandas Agarwal, Oil Merchant, pratap-chouk, amravati. It is fully occupied by that business, is clear if a look one takes to what is exhibited by the photograph. In the evidence Naryandas has come out with a case that Ratanlal Narayandas was his friend, that he does not take any rent from him and that he is using the premises since about three years. He further stated that he is also using the very same premises. In the cross examination of this witness, it has been brought out that he was dealing in business of silver and gold, but it appears, he further admitted, that he was no establishment for the same purpose since about 4 or 5 years. Now, he further says, he is merely dealing in agency business. Exhibit A-1 he admits, to be the photograph of the premises, in which Ratanlal is seen sitting. He admits that the board which is exhibited there is of Ratanala. He further admits that Ratanlal has a shop which deals in oil.

5. As already indicated, Ratanlal himself has not filed any written statement not has denied the fact of his occupation. The evidence, i.e. the photograph, and the admission given by Narayandas itself are enough to find that the premises are in occupation of Ratanlal. Tat much can be firmly found.

6. The terms of clause 13 (3) (iii) require the proof for the satisfaction of the controller that 'the tenant has without the written permission of the landlord sublet the entire house or any portion thereof.'

7. Now the landlord can for the purpose of satisfying the controller point out who is in actual occupation of either the entire house or the portion thereof, from which certain reasonable inferences, which are permissible in law, can be drawn.

8. It is argued on behalf of the respondent in this petition that landlord cannot succeed unless he shows that there is subletting as such, in that there is a transfer within the meaning of section 105 of the Transfer of property Act and he must establish the contract of sub-tenancy between the tenant and the actual occupier. A mere induction of a licensee is not enough, for the word is 'sub-let' . The learned counsel argues that unless actual sub-tenancy is established beyond pale of any doubt, the protection given to the tenant cannot be relaxed and the landlord cannot be permitted to determine the lease. He further submits that there is a marked distinction between the words of item (v) and item (iii) of sub-clause (3) and that distinction should bear importance while interpreting and applying the terms of item (iii). He further submitted that as far as the jurisdiction under Article 227 of the constitution of India is concerned, at least this is a case where a court of fact did not accept evidence as enough or sufficient to establish the ground under item (iii) and irt is not open to this court to interfere with a finding of fact which is based on some evidence.

9. All these submission require some close consideration. The word 'tenant' has been defined by the order and it means 'any person by whom or on whose account rent is payable for a house and includes a subtenant and a person continuing in possession after the term of his tenancy his expired.' It must be at the outset pointed out therefore, that the word 'tenant' has not been equated with the word lessee. It is of much wider import. A person on whose account a rent may be payable is made a tenant and it further appears that that term has been made to include a person who continues in possession even after the term of tenancy has expired and takes in a sub-tenant. The definition of the term landlord is similarly wide and is inclusive one. In these definition the main ingredients appear to be the person occupying at rent the premises belonging to others. It cannot be said therefore that a licensee who is inducted in the house and who also continued to pay the rent is necessarily excluded from the definition of the term 'tenant'. The only requirement for the purpose of that definition appears to be that there must be a liability to pay the rent, It is well-settled that mere fact that rent is paid or charged is not decisive to create a lease as such; there must be further proof of transfer of interest in property . It is, therefore, designedly clear that the word 'tenant' has been used in wider import and may in a given case, take in a licensee who is liable to a pay rent or premium for use and occupation. That term a;lso includes a subtenant and that is too indicative of legislature policy. This wider import of the term tenant has to be read along with the opening words of clause 2 of the order where it is provided that 'unless there is anything repugnant in the subject or context, this term will have the meaning indicated by that term.

10. Now for the purpose of clause 13 (1) the word 'tenant' clearly indicates a lessee, for it postulates a landlord determining the lease. It further follows that the protection afforded by clause 13 (3) is available to a proper lessee as such and not to any occupant or licensee. But when we come toi the ground upon which the satisfaction of the rent Controller depends in item (iii) the word is not that a tenant has created a 'sub-tenant', but the state of affairs contemplated is that the tenant has without the written permission of the landlord 'sub-let' the entire house or any portion thereof. The word sub-let itself has not been defined by the Order and must be understood in its own ordinary meaning. The word 'let' means, among other things, to allow. ordinary meaning. The word 'let' means, among other things, to allow.permit, suffer, to grant to a tenant or hirer (See chambers Twentieth Century) Dictionary page 755, Edn. 1972). It is thus indicative that a lessee may grant the premises to a hirer who may not be a tenant but still be within the mischief of subclause (3) (iii). A tenant who enjoys the property under lease alone is ought to be protected and a construction which would prohibit inducting persons upon the permises appears to be necessary to give effect to the very purpose underlying the provision; otherwise, the landlord who is prohibited from determining the lease will have no remedy against such a tenant who lets in licensees and recovers moneys from them. It is well-known that prior to the enactment of this order, the landlord could determine the lease of such a monthly tenant by resorting to quit notice. Nothing more was required, Therefore, while construing the grounds enumerated in the order, a construction which will suppress the mischief and further the remedy should alone be adhered to. Looking to the context, therefore, I am inclined to hold that the word 'sub-let' is of wider amplitude and takes in the letting even to licensees or their occupation at the instance of the tenant either for some consideration like rent or premium and if such induction is without the written permission of the landlord, the requirements of sub-clause (3) (iii) will be fully answered.

11. As indicated above, in this case, there is absolutely no manner of doubt that Ratanlal has been properly inducted and is in occupation of the premises at least over a period of three years before the application was filed in 1967. The tenant was not concerned with his business. In fact, he admits that Ratanlal was carrying the business in oil and he runs his own shop in the leased premises. The only ground that was put forth by the tenant was that he was his friend. Firstly, such a story cannot be accepted on the fact of it, for Ratanalal himself was available and was not emained. On what terms Ratanlal was inducted was a matter exclusively within the knowledge of this Narayandas and ratanlal. The submission that Narayandas's oath is enough or should be accepted under such circumstances cannot for a moment be entertained, for Ratanlal has not denied by filing any written statement the allegation of the landlord that he was inducted as a sub-tenant. It was clearly, therefore, for Narayandas to establish by putting all the material before the authorities under what circumstances Ratanlal was inducted.

12. This is not a case, as the learned counsel argued, where the finding is based on appreciation of evidence. In fact, a look at para 7 of the appellate order shows that he ahs not taken into account all the evidence that was avilable. It was the duty of that authority before disturbing the finding of fact to consider the fact that Ratanlal had not come out with any case whatsoever and has not controverted the allegations made against him by the landlord. Further the story pleaded by the tenant Narayandas in his written statement was not of occupation by a friend but merely permissive user on behalf of Narayandas himself. The written statement stated:

'The N.A. No. 1 is using the premises for his own use. He has also allowed the N.A. No. 2 to use the premises on his behalf. The N.A. No, 2 is using the premises as such for the last several years. The previous owner had full knowledge about this and he has acquiesced in this.'

So the plea was that non-applicant No. 2, i.e., Ratanlal, was using the premises on behalf of Narayandas or for his purposes. When Narayandas took oath-and to his evidence I have made a brief reference-it became clear that Narayandas was not concerned at all with the business of Ratanlal who was dealing independently in his own shop. Thus this business showed that as far as Narayandas was concerned his oath could not be relied upon. There was further evidence which was accepted by the Rent Controller that the previous landlady had issued a notice to this Narayandas, Exh. N.A. 6. In that notice she has stated that Ratanlal was the tenant paying Rs. 40/- per month to Narayandas. That was in 1966. To meer that, this Narayandas came out with a receipt Exh. A-7 which appears to have been signed by some Deorao for Dhapubai and at the back of it, there is an endorsement of 14-8-1966 upon which reliance is placed to the effect that the notice given through lawyer should be treated as cancelled. Now considering this documentary evidence, the Rent Controller had found that it was patently clear that Ratanlal was inducted by Narayandas and this endorsement did not help the tenant to establish the plea that the subtenancy was with the written consent. This finding has been merely brushed aside by the learned appellate court while considering the case and observing that there was nothing to show that Narayandas was receiving the rent from which the conclusion was drawn that requirements of sub-clause (3) (iii) were not satified. That was really placing a negative burden on the landlord. Narayandas had admitted that he was not keeping any account and tried to assert that he was not receiving the rent. Now the only person who could have thrown light on the relationship of Ratanlal and Narayandas was non-applicant No. 2 who had not filed any written statement nor denied the allegations of the landlord. It was for Narayandas to examine Ratanlal who appears to be carrying business and to prove that he was not paying any rent to Narayandas. These basic factors have been completely disregarded by the appellate authority. There was no independent evidence either to show that Narayandas and Ratanlal were friends, except a bare statement. There was neither any proof submitted by Narayandas to show why at all Ratanlal needed the premises as a friend and why at all he was carrying the business in the premises let out to Narayandas who had admittedly stopped his original business for the last 5 or 6 years. Under such circumstances, it was not proper for the appellate authority to distrub the finding which was based on evidence and inferences drawn from the records of the case.

13. The order, therefore, of the appellate authority thus contains a basically wrong approach and is patently erroneous upon the facts and circumstances available on record. As I have said above, the learned counsel complains that I am transgressing the limits of Art. 227 of the Constitution, in that I am appreciating the evidence myself. The jurisdiction under Art. 227 is no doubt supervisory, but in its process it is also implicit to find out whether the authority whose order is under challenge has taken into account all the evidence that was led by the parties to reach a conclusion upon which rights of parties depend. If basic evidence is not taken into account and is completely ignored ort overlooked, it will be an error apparent on the fact of record. Thus the appellate order in the present petition contains that error and it is perfectly permissible for this court to find out which order should be maintained.

14. If the entire evidence is taken into account, an adverse inference against such a tenant ought to have been drawn and the case of the landlord accepted, for the tenant had admitted that Ratanlal was inducted for the last so many years and was carrying on his nosiness there. The only inference that could have been reasonably drawn from the facts was that the premises must have been let out by Narayandas to Ratanlal and that requirements of sub-clause (3) (iii) were fully satisfied.

15. In the result, the present petition is allowed. The order made by the Resident Deputy Collector, Amravati is set aside and the order of the rent Controller is restored. The landlord is given permission under clause 13 (3) (iii) to enable him to give quit notice to the tenant. The petition thus succeeds and is allowed with costs.

16. petition allowed.


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