FLORA ELIAS NAHOUM & ORS. versus IDRISH ALI LASKAR on 25 January 2018

272

SUPREME COURT REPORTS

[2018] 1 S.C.R.

A

FLORA ELIAS NAHOUM & ORS.

v.

IDRISH ALI LASKAR

(Civil Appeal No. 4189 of 2007)

JANUARY 25, 2018

B

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Rent Control and Eviction:

West Bengal Premises Tenancy Act, 1956 –s.13(1)(a) –Eviction suit – Claim of, on four grounds, default in payment ofCmonthly rent, bonafide need, sub-letting and unauthorizedconstruction in the suit shop by the tenant – Suit partly decreedagainst the tenant on the ground of sub-letting and unauthorizedconstruction by the tenant in the suit shop – However, the HighCourt dismissed the suit holding that no ground of either sub-lettingor an unauthorized construction was made out – On appeal, held:DEven if the landlord is able to make out only one ground out ofseveral grounds of the eviction, he is entitled to seek the eviction ofhis tenant from the suit premises on the basis of that sole ground –It is not necessary for the landlord to make out all the groundswhich he has taken in the plaint for claiming eviction of the tenantEunder the Rent Act – On facts, landlords were able to prove thecase of sub-letting against the tenant – In view thereof, it is notnecessary to examine the other ground relating to making ofunauthorized construction by the tenant in the suit shop – Thus, theorder of the High Court is set aside and that of the trial court isrestored.F

Allowing the appeal, the Court

HELD: 1.1 Even if the landlord is able to make out onlyone ground out of several grounds of the eviction, he is entitledto seek the eviction of his tenant from the suit premises on theGbasis of that sole ground which he has made out under the RentAct. It is not necessary for the landlord to make out all the groundswhich he has taken in the plaint for claiming eviction of the tenantunder the Rent Act. If one ground of eviction is held made outagainst the tenant, that ground is sufficient to evict the tenantfrom the suit premises. [Paras 16, 17][276-F-G]

H

1.2 Section 13(1)(a) of the West Bengal Premises TenancyAct, 1956 deals with the ground of sub-letting and provides thatwhere the tenant or any person residing in the premises let tothe tenant without the previous consent in writing of the landlordtransfers, assigns or sublets in whole or in part the premisesheld by him, then it is a ground for the tenant’s eviction from thetenanted premises. Keeping in view the pleadings and the natureof the evidence adduced by the parties, the ground of sub-letting,as contemplated under Section 13(a) is made out. [Paras 33-34][279-C-D]

1.3 In the first place, the respondent-tenant, since inception,was taking inconsistent stand on the question of sub-letting. Thecontradictory stand of the respondent and that too without anyevidence clearly leads to an inference that the respondent wasunable to prove, in categorical terms, as to which capacity, ‘JM’was sitting in the suit shop - whether as an “employee” or a“business partner” or in any “other capacity”. Since therespondent had admitted the presence of JM in the suit shop,the burden was on him to prove its nature and the capacity inwhich he used to sit in the suit shop. If ‘JM’ was the respondent’semployee then, he should have proved it by filling a declarationform, which he had submitted under the Shops and EstablishmentAct to the authorities. But it was not done. Rather he admittedthat he did not disclose the name of ‘JM’ in the declaration form.That apart, the respondent could have proved this fact by filingpayment voucher, or any other relevant evidence to show that‘JM’ was his employee and that he used to sit in the suit shop inthat capacity only. It was, however, not done. [Paras 35, 38, 40and 41][279-E, G-H; 280-B-C]

1.4 If ‘JM’ was a partner of the respondent in the tailoringbusiness then the respondent could have proved this fact by filinga copy of the partnership deed. However, he again failed toproduce the copy of partnership deed. In this way, he failed toprove even this fact. Appellants appear to have discharged theirinitial burden by pleading the necessary facts and then by provingit by evidence that firstly, they let out the suit shop to therespondent and secondly, the respondent has sub-let the suit shopto ‘JM’, who was in its exclusive possession without their consent.

A

B

CD

E

F

G

H

AIn other words, the sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferredor/and parted with the possession of the tenanted premises infavour of any third person without landlord’s consent. [Paras 42,43 and 45][280-D-F, G]

B1.5 The appellants were able to prove the case of sub-lettingagainst the respondent. The reasoning and the conclusion arrivedat by the High Court cannot be concurred with and instead theconclusion of the trial court insofar as it relates to the ground ofsub-letting is accepted. In view of this, it is not necessary toexamine the other ground relating to making of unauthorizedCconstruction by the respondent in the suit shop. The impugnedjudgment is set aside and that of the trial court is restored. [Paras50-51][282-C-D]

Bharat Sales Ltd. v. Life Insurance Corporation of India(1998) 3 SCC 1 : [1998] 1 SCR 711 – referred to.D

Case law reference

[1998] 1 SCR 711referred toPara 46

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4189of 2007.

E

From the Judgment and Order dated 07.07.2005 of the DivisionBench of the High Court at Calcutta in F.A. No. 416 of 1984.

Ms. Daisy Hannah, Ms. Kasturika Kaumudi, Ms. Ekta Pradhan,Ms. Sreoshi Chatterjee, Shekhar Kumar, Advs. for the Appellants.

Zakiullah Khan, Sr. Adv., Ms. Shipra Ghose, Kisalaya Shukla,Ms. Gaurango Das, K. K. Shukla, Advs. for the Respondents.

F

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal arises fromthe final judgment and final order/decree dated 07.07.2005 passed byGthe High Court of Calcutta in F.A. No.416 of 1984 whereby the DivisionBench of the High Court dismissed the eviction suit filed by the appellantsagainst the respondent and set aside the decree for eviction passed bythe Trial Court in their favour and against the respondent.

2. In order to appreciate the issues involved in this appeal, it isHnecessary to set out the facts in detail herein-below.

3. The appellants are the plaintiffs (landlords) whereas therespondent is the defendant (tenant) in the eviction suit out of which thisappeal arises.

4. The appellants (plaintiffs) are the owners/landlords of one shop(room) bearing premises No.1, Hartford Lane, Calcutta (hereinafterreferred to as “the suit shop”), which was originally owned by LateNahoum Elias and Miss Resmah Nahoum. The present appellants arethe successors-in-interest of the suit shop. They had let out the suit shopto one - Alfajuddin Laskar on a monthly rent of Rs.40/-. In the suit shop,Alfajuddin Laskar used to do the business of sale of eggs under thename “24, Parganas Egg Stores”.

5. Alfajuddin Laskar expired in 1976. The respondent being hisson became the tenant of the appellants on same terms and conditions.The respondent, however, closed his father’s business of selling of eggsand started his tailoring business under the name “New India Tailors” inthe suit shop.

6. In 1978, the appellants filed an Eviction Suit against therespondent under the provisions of the West Bengal Premises TenancyAct, 1956 (hereinafter referred to as “the Act”. The eviction was claimedon four grounds, viz., default in payment of monthly rent, bona fideneed, sub-letting and lastly, making of unauthorized construction in thesuit shop by the respondent.

7. The respondent filed the written statement and denied all thefour grounds. Parties adduced their evidence. The Trial Court, by orderdated 30.01.1984, partly decreed the suit. It was held that so far as thegrounds relating to default of rent and bona fide need are concerned,both are not made out whereas the other two grounds, namely, sub-letting and making of unauthorized construction in the suit shop, bothstood made out against the respondent.

8. In this view of matter, the appellants’ suit was decreed in partagainst the respondent and the decree for eviction on the ground of sub-letting and unauthorized construction made by the respondent in the suitshop was passed. The respondent was granted six months’ time to vacatethe suit shop and handover its vacant possession to the appellants.

9. Being aggrieved by the said order, the respondent filed appealbefore the High Court at Calcutta. The appellants, however, did not fileany cross appeal or cross-objection against that part of the order by A

B

C

D

E

F

G

H

Awhich two grounds, viz., default in payment of rent and bona fide needwere held not made out. The judgment of the Trial Court thus becamefinal to that extent.

10. Therefore, the only question before the High Court was whetherthe Trial Court was justified in decreeing appellants’ suit on the groundsBof sub-letting and making of unauthorized construction in the suit shop.

11. In other words, the question was whether the Trial Court wasright in holding that the ground of sub-letting and making of unauthorizedconstruction in the suit shop was made out.

12. The High Court, by impugned judgment, allowed theCrespondent’s appeal and dismissed the appellants’ eviction suit. The HighCourt held that no ground of either sub-letting or an unauthorizedconstruction was made out, hence, the suit was liable to be dismissed inits entirety. It was accordingly, dismissed.

13. Against this judgment, the landlords felt aggrieved and filedDthis appeal by way of special leave in this Court.

14. Heard Ms. Daisy Hannah, learned counsel for the appellantsand Mr. Zakiullah Khan, learned senior counsel for the respondent.

15. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and whileEsetting aside of the impugned judgment, we restore that of the TrialCourt and, in consequence, decree the appellants’ suit in part, as indicatedbelow.

16. There can be no dispute to the legal proposition that even ifthe landlord is able to make out only one ground out of several groundsFof the eviction, he is entitled to seek the eviction of his tenant from thesuit premises on the basis of that sole ground which he has made outunder the Rent Act.

17. In other words, it is not necessary for the landlord to make outall the grounds which he has taken in the plaint for claiming eviction ofGthe tenant under the Rent Act. If one ground of eviction is held made outagainst the tenant, that ground is sufficient to evict the tenant from thesuit premises.

18. As mentioned above, the Trial Court held that the appellantswere able to make out two grounds for respondent’s eviction, namely,H

sub-letting and unauthorized construction made by him in the suit shop.The High Court, accordingly, reversed the findings on these two groundsand dismissed the suit.

19. We consider it proper to examine first, the ground of sub-letting with a view to find out as to whether the plaintiffs (appellants)were able to make out this ground against the respondent. In other words,let us first examine as to whether the Trial Court was right or the HighCourt was right on this issue.

20. In order to examine, whether the ground of sub-letting is madeout or not, it is necessary to see as to how this ground was pleaded andsought to be proved by the parties.

21. The appellants, in Para 4 of the plaint, pleaded the case ofsub-letting as under:

“4. The defendant after acquiring right of tenancy in respectof the said shop room after his father’s death, wrongfullytransferred possession of the said shop room to one JoynalMallick evidently for creating a sub-tenant in his favour inrespect of the suit shop room without obtaining thepermission and consent of the plaintiffs.”

22. The respondent, in reply to Para 4 of the plaint, gave thefollowing reply in Para 9 of his written statement as under:

“9. The defendant denies the allegations made in paragraph4 of the plaint and in particular denies the allegations thathe has transferred possession of the shop under his tenancyto one Joynal Mullick or anybody as falsely alleged.”

23. It is clear from the perusal of the pleadings that the case ofthe appellants was that the respondent has sub-let and parted withpossession of the suit shop to one Joynal Mullick without appellants’consent.

24. So far as the respondent is concerned, he simply denied theappellants’ case in para 9 saying that he has not sub-let the suit shop toanyone, much less to Joynal Mullick, as claimed by the appellants.

25. The respondent examined himself as witness No.1 andexamined Joynal Mullick as witness No.2.

A

B

C

D

E

F

G

H

A26. In examination-in-chief, the respondent changed his stand andsaid that he has not sub-let the suit shop to Joynal Mullick but he is in hisemployment. This is what he said:

“It is not a fact that I sublet the shop room in suit to oneJainal Mullick. Jainal Mullick is in my employment.”B

27. The respondent further in his cross-examination again changedhis stand and in answer to a specific question put to him as to whetherhe has employed any person in his tailoring business said “no”. This washis reply:- “No. In the tailoring business I have no employee but theCwork is done on contract basis.”

28. The respondent then in answer to another question put to himas to how many persons work for you on contract basis in his tailoringbusiness, his reply was- four persons and out of four, Joynal Mullickand Jahangir Mullick were his employees. This is what he said:- D“Najrul Islam and Sayed, Volunteers – Besides thesepersons there are two other persons who look after thebusiness in my absence. They are Jainal Mullick andZahangir Mullick volunteers. These two persons are myemployee.”

E29. The respondent then was asked another question, viz., Did hedisclose the name of any of his employee while submitting the declarationform under the Shops and Establishment Act, his reply was “no”. Thisis what he said:- “I am the owner of the tailoring shop. Volunteers – freshFdeclaration has been submitted about 10/12 days back. Inthat declaration I have not declared that these two personsJainal and Zahangir are my employees.”

30. The respondent was then asked last pointed question - whetherJoynal Mullick is doing business in the suit shop. To this, his reply wasGthat Joynal Mullick is his business partner. This is what he said:- “I obtained the trade license from the Corporation ofCalcutta for the business carried in the shop showing JainalMullick and Zahangir Mullick as my partners in thebusiness. It is not a fact that Jainal and Zahangir are notmy employees.”

H

31. Joynal Mullick then in his evidence said that he is an employeeof the respondent for the last 7/8 years and whatever the respondent(his owner) tells him to do, he does it while sitting in the suit shop. Hestated that, in his presence, the respondent had constructed “Macha” inthe suit shop. He said that he joined the business under the name “NewIndia Tailor”.

32. Keeping in view the statements of the respondent and JoynalMullick, the question arises as to whether a case of sub-letting and partingof possession of the suit shop in favour of Joynal Mullick, whether wholeor in part, is made out.

33. Section 13(1)(a) of the Act deals with the ground of sub-letting and provides that where the tenant or any person residing in thepremises let to the tenant without the previous consent in writing of thelandlord transfers, assigns or sublets in whole or in part the premisesheld by him, then it is a ground for the tenant’s eviction from the tenantedpremises.

34. In our considered opinion, keeping in view the pleadings andthe nature of the evidence adduced by the parties, the ground of sub-letting, as contemplated under Section 13(a) ibid, is made out. This wesay for the following reasons.

35. In the first place, we find that the respondent (tenant), sinceinception, was taking inconsistent stand on the question of sub-letting.

36. To begin with, he denied having sub-let the suit shop to anyonein his written statement. Then, contrary to what he alleged in the writtenstatement, he said in his examination-in-chief that Joynal Mullick washis employee. Then, again contrary to this statement, he said, in nextbreath, that Joynal Mullick is his partner in tailoring business.

37. So far as Joynal Mullick is concerned, he admitted that he hasbeen sitting in the suit shop for the last 7/8 years but he has been sittingin a capacity as an “employee” of the respondent.

38. In our opinion, the contradictory stand of the respondent andthat too without any evidence clearly leads to an inference that therespondent was unable to prove, in categorical terms, as to which capacity,Joynal Mullick was sitting in the suit shop - whether as an “employee”or a “business partner” or in any “other capacity”.

A

B

C

D

E

F

G

H

A

39. It seems that the respondent was not sure as to what stand heshould take to meet the plea of sub-letting. He, therefore, went onchanging his stand one after the other and could not prove either.

40. In our view, since the respondent had admitted the presenceof Joynal Mullick in the suit shop, the burden was on him to prove itsBnature and the capacity in which he used to sit in the suit shop.

41. In other words, if Joynal Mullick was the respondent’semployee then, in our view, he should have proved it by filling a declarationform, which he had submitted under the Shops and Establishment Act tothe authorities. But it was not done. Rather he admitted that he did notCdisclose the name of Joynal Mullick in the declaration form. That apart,the respondent could have proved this fact by filing payment voucher, orany other relevant evidence to show that Joynal Mullick was his employeeand that he used to sit in the suit shop in that capacity only. It was,however, not done.

42. Second, if Joynal Mullick was a partner of the respondent inthe tailoring business then the respondent could have proved this fact byfiling a copy of the partnership deed. However, he again failed to producethe copy of partnership deed. In this way, he failed to prove even thisfact.

D

E43. Now so far as the appellants are concerned, they appear tohave discharged their initial burden by pleading the necessary facts inPara 4 and then by proving it by evidence that firstly, they let out the suitshop to the respondent and secondly, the respondent has sub-let the suitshop to Joynal Mullick, who was in its exclusive possession without theirconsent.F

44. In a case of sub-letting, if the tenant is able to prove that hecontinues to retain the exclusive possession over the tenanted premisesnotwithstanding any third party’s induction in the tenanted premises, nocase of sub-letting is made out against such tenant.

45. In other words, the sin qua non for proving the case of theGsub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of anythird person without landlord’s consent.

46. This Court in BharatSales Ltd. vs. Life InsuranceCorporation of India (1998) 3 SCC 1, while dealing with the case ofH

FLORA ELIAS NAHOUM v. IDRISH ALI LASKAR[ABHAY MANOHAR SAPRE, J.]

sub-letting succinctly explained the concept of sub-letting and what areits attributes.

47. Justice Sagir Ahmad, speaking for the Two Judge Bench, heldas under:

“4. Sub-tenancy or sub-letting comes into existence whenthe tenant gives up possession of the tenantedaccommodation, wholly or in part, and puts another personin exclusive possession thereof. This arrangement comesabout obviously under a mutual agreement or understandingbetween the tenant and the person to whom the possessionis so delivered. In this process, the landlord is kept out ofthe scene. Rather, the scene is enacted behind the back ofthe landlord, concealing the overt acts and transferringpossession clandestinely to a person who is an utterstranger to the landlord, in the sense that the landlord hadnot let out the premises to that person nor had he allowedor consented to his entering into possession over thedemised property. It is the actual, physical and exclusivepossession of that person, instead of the tenant, whichultimately reveals to the landlord that the tenant to whomthe property was let out has put some other person intopossession of that property. In such a situation, it would bedifficult for the landlord to prove, by direct evidence, thecontract or agreement or understanding between the tenantand the sub-tenant. It would also be difficult for the landlordto prove, by direct evidence, that the person to whom theproperty had been sub-let had paid monetary considerationto the tenant. Payment of rent, undoubtedly, is an essentialelement of lease or sub-lease. It may be paid in cash or inkind or may have been paid or promised to be paid. It mayhave been paid in lump sum in advance covering the periodfor which the premises is let out or sub-let or it may havebeen paid or promised to be paid periodically. Sincepayment of rent or monetary consideration may have beenmade secretly, the law does not require such payment tobe proved by affirmative evidence and the court ispermitted to draw its own inference upon the facts of thecase proved at the trial, including the delivery of exclusivepossession to infer that the premises were sub-let.”

A

B

C

DEF

GH

A48. In our considered opinion, the aforesaid principle of law fullyapplies to the case at hand against the respondent due to his contradictingstand and by admitting Joynal Mullick’s presence in the suit shop but notbeing able to properly prove the nature and the capacity in which he wassitting in the suit shop.

49. In view of the foregoing discussion, we have formed an opinionthat the appellants were able to prove the case of sub-letting against therespondent.

B

50. We cannot thus concur with the reasoning and the conclusionarrived at by the High Court and instead prefer to agree with theCconclusion of the Trial Court insofar as it relates to the ground of sub-letting. In view of this, it is not necessary to examine the other groundrelating to making of unauthorized construction by the respondent in thesuit shop.

51. In the result, the appeal succeeds and is allowed. The impugnedDjudgment is set aside and that of the Trial Court is restored.

52. The respondent is, however, granted three months’ time tovacate the suit shop, subject to the respondent filing in this Court a usualundertaking that he will deposit the entire arrears of rent up to the dateas per the agreed rate within one month and will also deposit the mesneEprofits for a period of three months up to the date of vacation in advanceat the agreed rate and would vacate the suit shop on or before 30.04.2018.

Nidhi Jain

Appeal allowed.

F

G

H