1. This petition arises under Section 50(1) of the Karnataka Rent Control Act, 1961 from the judgment and order dated 20th March, 1991 delivered by Sri K.G. Lakshmipathi, IV Additional Judge of Small Causes, Mayo Hall, Bangalore, in House Rent Case No. 10842 of 1983 initiated and instituted under Section 21(f) and (h) of the Karnataka Rent Control Act, 1961, hereinafter referred to as "the Act", for short.
2. The petitioners filed the petition under Section 21 of the Act for decree of possession of the premises in dispute by eviction of the tenant therefrom on the grounds mentioned in clauses (f) and (h) of the Act, namely illegal subletting of the premises or part of the premises and as well as the other ground, namely that premises in question was reasonably and bona fide required by the landlord for occupation by them and the members of their family. The petitioners alleged and claimed themselves to be the owners of the premises bearing No. 5, Seppings Road, Bangalore and further that the 1st respondent A.M. Abdul Rahman is and has been the tenant of the said premises on a monthly rental of Rs. 150/-. According to the petitioners' case the tenancy was a monthly tenancy as per English Calendar month.
The 1st respondent as per" petitioners' case acted contrary to the terms of tenancy, as and without taking consent and permission of the petitioner, he has sublet the premises in favour of 2nd respondent by accepting pagadi, advance and rent and he is also collecting a sum of Rs. 10 per day. That apart, the tenant had sublet the premises also in breach of provisions of the Karnataka Rent Control Act. Therefore, the tenant i.e., defendant-respondent 1 was liable to be evicted and the petitioners have been entitled to get the decree for eviction against the 1st respondent-tenant and the persons under him. Petitioners further took the plea and asserted, as mentioned in the judgment of the Court below that the petitioners required the accommodation in dispute for use of self and members of the family, for the purpose of running the business. Petitioners' case has been that, since after grant of tenancy the family members and children born have become capable of carrying on business, so the petitioners require the accommodation in dispute to settle them in business. The claimants-petitioners asserted that, if a decree for eviction is not granted the petitioners are likely to suffer a great hardship but if it is passed against respondent 1, he can secure alternative accommodation and so no hardship would be caused to the respondents.
3. The respondents' technical pleas about the maintainability of the petition were taken into consideration by the Judge of the Small Cause Court.
4. The Judge of the Small Causes Court, on the basis of the pleadings of the parties framed the following issues:
1. Whether the petitioners prove that the first petitioner just prior to his death has bequeathed the petition schedule property in favour of a third party and therefore, the petitioners cannot maintain the present petition?
2. Whether the petitioners prove that the first respondent has sublet the petition schedule premises in favour of the second respondent for unlawful gains and therefore, he is liable to be evicted from the petition schedule premises?
3. Whether the petitioners prove that they reasonably and bona fide require the petition schedule premises for their own use and occupation?
4. On whom the comparative hardship lies?
5. What order?
5. The Court below on a consideration of the material on record, answered Issue No. 1 in the negative, but the contention of the respondents that the 3rd party or a third person is the owner of the property has been negatived. As such it held that the petition was maintainable at the instance of the petitioners. The Court below further found and held that the petitioner failed to establish that respondent 1 has sublet the premises in question in favour of respondent 2. It further found that the petitioners have failed to prove their bona fide need or requirement of the premises in dispute.
6. Having recorded the above findings, the Court below opined that there is no need to answer Issue No. 4 and dismissed the petition of the landlords for eviction of the tenant vide the order dated 20th of March, 1991.
7. Having felt aggrieved from the order of the learned Additional Judge of the Small Causes Court referred above the landlords-owners have come before this Court by filing this revision petition under Section 50, sub-section (1) of the Karnataka Act No. 22 of 1961. I have heard Sri M.S. Subbarayappa, learned Counsel for the revision petitioners (landlords) and Sri S. Shekar Shetty, on behalf of the respondents.
8. On behalf of the revision petitioners, it has been contended that the Court below erred in law as well on facts in dismissing the petition under Section 2(f) and (h) of the Act moved by the present petitioners for eviction of the first respondent and erred in holding that the petitioners have failed to prove the subletting to the contrary without consent of the landlords and the petitioners have not proved the consideration of rent. Learned Counsel further contended that the learned Court below acted illegally in ignoring from consideration, the provisions of sub-section (3) of the Section 21 of the Act which provides for a deeming clause tantamounts to a presumption under the law in respect of subletting as well as Section 23 of the Act. Sri Subbarayappa, further contended that the finding recorded by the Court below to the effect that respondent 2 was an employee of the 1st respondent is illegal and erroneous in law and on facts. Counsel submitted that the register-Rl which has been relied upon by the Court below has been inadmissible and unreliable, as it did not relate to the relevant period, that is the period prior to the filing of the petition. That document is the one subsequently concocted one for the purpose of this case, as will appear from the perusal of the evidence of R,Ws. 1 and 2, particularly circumstances emerging therefrom. Learned Counsel contended that evidence of R.W. 3 is also an interested one and is unreliable. Learned Counsel contended that the respondents have not produced relevant material or other registers relating to the period prior to 1983 and upto 1983. Also neither the register of payment of wages nor register of attendance have been produced. Therefore, learned Counsel contended that, really they have no registers, otherwise they would have produced all the registers. He further submitted that explanation given by respondents that the registers for the relevant period are with the Auditor, so these have not been produced is unreliable and concocted story.
The learned Counsel submitted that respondent 1 could have summoned those registers from the officer i.e., Auditor of 2nd respondent and produced them, but they have neither produced them nor it is indicated that, who is that Auditor. He further submitted that reading of evidence of R.Ws. 1 and 2 will itself reveal the transaction to make the information furnished by respondent 1 which is unreliable. Sri Sub-baraya submitted that so far as subletting is concerned, it is, really a matter between the tenant and the landlord and the best evidence could be that they, if the respondent 1 has set up a plea it was his duty to produce that document to establish that plea that respondent 2 was its servant which he has not done. Any person in possession or occupation of the property let out to a tenant, who is neither the servant nor the member of the family of the tenant, ordinarily in such cases, it has to be deemed that the person, who has been allowed to make use of the property is one to whom the property has been sublet. This presumption of the Court below failed to raise in the present case and, as such the finding recorded by the Court below about subletting is illegal and bad in law. Learned Counsel further submitted the finding recorded by the Court below that the petitioners have failed to make a case of bona fide need and requirement of the accommodation for use of self and members of their family, was erroneous in law as Court below did not apply its mind to the subsequent developments, particularly the children, who were minors at the time of letting out had become aged and required accommodation, and certainly for settling them in business as well and as such to accommodate the petitioners, they did require the accommodation and particularly after the death of first petitioner. Learned Counsel contended that the 1st petitioner and the 2nd petitioner, both have children. The increase in the family required more accommodation for settling in the business of both the petitioners. Learned Counsel contended, as such the order of the learned Judge of Small Causes Court needs to be set aside and the petitioners claim for decree for eviction be decreed and the order for eviction of respondents be passed. He submitted that, when the tenant has illegally let out, he has to be evicted and any person claiming through him or under him would have to be evicted in pursuance of the decree.
9. On behalf of the respondents, it has been contended by Sri Shekar Shetty that this Court should not interfere with the finding of fact and the Court below having recorded a finding to the effect that the petitioners have failed to prove the subletting as well as bona fide need, as the scope of Section 50 is not exactly the same, as that of a Court of appeal which has power to reappreciate the evidence and on the basis of appreciation of evidence, can take a different view in the case. Learned Counsel contended that such as the order is the one concluded by the finding of fact, the revision may be dismissed as not maintainable. Sri Shekar Shetty, learned Counsel for the respondents further submitted that as per language of Section 50 of the Act the revision itself has not been maintainable, because no right has been conferred on a party to file the revision, it is, only that the power has been given to this Court to act suo inotu in view of the language of sub-sections (1) and (2) of Section 50. He submitted that, if Section 50 along with Section 12 is read, from there also this position emerges. Learned Counsel contended that under Section 12 of the Act a right has been conferred on an aggrieved person to file the appeal, but in that respect Section 50's language as used indicates different intent. There is no right conferred on party aggrieved to file revision. It is only power of the Court and it is suo motu exercisable for purposes, and in conditions indicated, in the interest of justice.
Shri Shekar Shetty, the learned Counsel submitted that in view of paragraph 2 of the petition filed under Section 21 of the Act, the burden did lie on the revision petitioners, who have been the landlords to establish the allegations made in paragraph 2. Shri Shekar Shetty contended that respondent 1 has not sublet the premises to anyone nor to respondent 2. He further submitted that no amount of evidence can be looked into in respect of facts or matter which have not been pleaded. He submitted that pagadi having been paid by respondent 2 and realised by respondent 1 is not a case in the pleadings and so such case should not be considered. Shri Shekar Shetty further submitted that finding of the Court below to the effect that the revision petitioner-landlord had failed to prove or make out a case of subletting is a pure and simple finding of fact and similarly is the finding recorded by the learned Judge on the question of bona fide requirement and balance of convenience, in favour of the present respondent 1 that is that plaintiff failed to establish bona fide requirement and need for the eviction of the respondent 2. The respondent 1 will be subjected to irreparable loss if he is evicted and further the case is concluded on findings of fact which do not suffer from error of law or fact. As such the revision petition deserves to be dismissed.
10. I have applied my mind to the contentions raised by the learned Counsels for the parties.
11. As regards the question of jurisdiction of this Court the power of revision has been conferred on this Court under Section 50 of sub-section (1) of the Karnataka Rent Control Act, 1961 (for short 'the Act'). Section 50 of the Karnataka Rent Control Act, 1961 reads as under.-
"50. Revision.--(1) The High Court may, at any time call for and examine any order passed or proceeding taken by (the Court of Small Causes or the Court of Civil Judge) under this Act or any order passed by the Controller under this Act or any other passed by the Controller under Section 14, 15, 16 or 17 for purpose of satisfying itself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as it thinks fit.
(2) The District Judge may, at any time call for and examine any order passed or proceeding taken by the Court of Munsiff referred to in sub-clause (iii) of clause (d) of Section 3 for the purpose of satisfying himself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto as he thinks fit. The order of the District Judge shall be final".
Under this sub-section (1) of Section 50 the power has been conferred on this Court to call for the records of a case or proceedings taken by Small Causes Court or by Civil Judge or with reference to order passed by Controller to satisfy the Revisional Court, as to the legality or correctness of order or proceedings and this section confers power on this Court to pass such orders in reference to these proceedings, as this Court deems fit, while sub-section (2) confers same power on the District Judge in relation to proceedings taken by the Court or Munsiff. When a power has been given to this Court to examine the legality or correctness of the proceedings or order and interest of justice requires the exercise of power in eases covered by this section in the specified conditions, then naturally a right flows in favour of the persons aggrieved or persons, who feel aggrieved from the order of the Judge's Small Causes Court or from the order of the Civil Judge in proceedings under the Act by necessary implications, even though no expression has been used to the effect that any party aggrieved may file revision. It by necessary implications follows that, if any party is aggrieved and according to it the order by which he is aggrieved, suffers from illegality or irregularity etc., which results in injustice or failure of justice to a party, he has right to approach the Court to remedy the wrong and an obligation does emerge and it stands fastened on the Court, in cases, satisfying those conditions to do as interest of justice requires to remedy the wrong, as power conferred does necessarily carry the obligation to exercise the power when exercise is needed and is necessary to subserve the cause of justice. No doubt apart from party's right to approach the Court the Revisional Court under sub-section (1) or (2) of Section 50 of the Act, can also exercise those powers suo motu on such facts or circumstances being brought to the notice of the Court that the proceedings in the Court below or orders of the Controller suffers from illegality, perversity, incorrectness or the like, I mean to say the power is exercisable both ways either it may be exercised suo motu or on an application for revision being filed when there is the power. Powers under Section 50, no doubt are wider than the jurisdiction of this Court under Section 115 of the Code of Civil Procedure, for short "the CPC". Even the correctness of the order can be examined, but no doubt it has to be taken note of that ordinarily where decisions and findings of fact are based on appreciation of evidence, as a matter of guidance, it is well- settled orders are not to be interfered with unless some very substantial error has been shown or some material on record, or relevant provision of law has escaped notice and interference is called and if interference is not made the injustice is likely to emanate. Under this provision, merely because two opinions are possible, the findings may not be interfered with. A reference in this connection may be made to the decisions of the Supreme Court in the case of Dattopant Gopalvarao Devakate v Vithalrao Marutirao Janagaval and in the case of Bhoolchand v Kay Pee Cee Investments and Another. In Bhoolchand's case, supra, their Lordship lay it down as under:
"Against the decision of the Trial Court, the provision made in Section 50 of the Act is of a revision and not an appeal to the High Court. However, the power of revision is not narrow as in Section 115, CPC but wider requiring the High Court to examine the impugned order 'for the purpose of satisfying itself as to the legality or correctness of such order or proceeding" which enables the High Court to 'pass such order in reference thereto as it thinks fit'. It is clear that the High Court in a revision under Section 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also its correctness. The power of the High Court, therefore, extends to correcting not merely errors of law but also errors of fact. In other words, the High Court in a revision under Section 50 of the Act is required to examine the correctness of not only findings on questions of law, but also on questions of fact. It is significant that the revision provided is directly against the Trial Court's order and not after a provision of appeal on facts. All the same, the power in revision under Section 50 of the Act cannot be equated with the power of the Appellate Court under Section 107(2) of the Code of Civil Procedure which is the same as that of the original Court; and the revisional power under Section 50 of the Act even though wide as indicated must fall short of the Appellate Court's power of interference with a finding of fact where the finding of fact depends on the credibility of witnesses, there being a conflict of oral evidence of parties", (vide para 6)
12. For release or for eviction against tenant the application in the present case was filed on two grounds, that is one of illegal subletting by the tenant and the other ground is that the landlord bona fide requires the accommodation in dispute for his own use. Section 21, sub-section (1) very clearly provides that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for recovery of possession of any premises or eviction of a tenant from a premises shall be made by any Court or authority in favour of the landlord. This subsection (1) clearly bars the jurisdiction and authority of the Court, ordinarily to pass an order of decree for recovery of possession against a tenant from the premises and in favour of the landlord.
Proviso to Section 21 carves an exception to the general principle under Section 21(1) and it provides that order of recovery of possession of premises can be made, on the application of the landlord, by the Court on any one or more of the grounds as specified in clauses (a) to (p) being made, it means if the jurisdictional facts or conditions are established, whereunder the decree can be passed for eviction of the tenant, the Court can grant the decree for eviction, otherwise eviction of tenant is barred. The bar is removed only when one of the conditions mentioned in proviso to Section 21, sub-section (1) is established. So the finding on the question covered by any of the grounds under clauses (a) to (p) has been established or made, no doubt is a finding of fact, but it is not a pure finding of fact instead it is a finding on a jurisdictional fact, establishment which has the effect of removing or unlocking the bar created by basic and main clause of sub-section (1) of Section 21 of the Act against the power of Court to decree suit for eviction of a tenant.
13. In the present case, as mentioned earlier the first ground for decree for possession has been alleged that the tenant has unlawfully sublet or assigned his interest in the part of accommodation let out to him to the sub-tenant, that comes under clause (f) of Section 21. The other case pleaded is that the premises were required bona fide and reasonably by the landlord for himself and the members of the family under clause (h). I first propose to take the case of subletting.
In paragraph 2 of the petition, the landlord has stated as under:
Respondent 1 has committed breach of tenancy by his having unauthorisedly and illegally sublet the portion of the premises, that is the front portion of the premises and has transferred interest to respondent 2 and respondent 2 is doing the business of general stores and paying Rs. 107- per day to respondent 1, apart from advance, pagadi etc., collected by respondent 1 from respondent
Hence respondent 2 is made a party, even though not a necessary party. The revision petitioner in the application under Section 21 has stated that a legal notice was also issued to the tenant on 20-7-1983 terminating the tenancy on the expiry of 30th August, 1983, but no compliance, instead respondent 2 has sent a untenable reply on 9-8-1993.
14. In the written statement it has been stated that it is false to allege that respondent 2 is doing the business of general stores and paying Rs. 10/- per day to respondent 1. The respondent 1 denied that respondent 2 was sublessee, to the contrary it was asserted by the 1st respondent that respondent 2 was 1st respondent's employee.
15. The Trial Court has opined that plaintiff failed to establish subtenancy. That only P.W. 1 has given the statement in the witness box, but there is no corroborative evidence in this regard and found that the witness has advanced his case by further showing in the evidence that 2nd respondent paid advance of Rs. 3,000/- and Rs. 10,000/- as pagadi, but he has not disclosed his source of knowledge, so the Court opined that it was untenable. The Trial Court further found that 1st respondent has taken the plea to the effect that 2nd respondent was his employee and paid servant, that R.W. 3, that is 2nd respondent has denied that he is the tenant of 1st respondent and that the plaintiff failed to prove the subletting or payment of rent or settlement of rent, so the plaintiff, that is the revision petitioner failed to establish the case of subletting.
16. The parties had led oral evidence. The landlord-P.W. 1 in his examination-in-chief has stated that 2nd respondent is the sub-tenant of a portion of the petition premises under 1st respondent. The 1st respondent is collecting rent of Rs. 10/- per day from 2nd respondent and the 2nd respondent is occupying the premises. The sub-lease to the 2nd respondent is without our consent.
17. In the cross-examination, P.W. 1 has stated:
"I have not seen any document pertaining to subletting of a portion of the premises in favour of 2nd respondent. Second respondent has not paid a sum of Rs. 10,000/- as pagadi in my presence. I have not checked Moosa's Office, whether 2nd respondent is an employee under 1st respondent. I have not also verified as to who pays the professional tax of the business carried on in the petition premises".
18. No doubt apart from the revision petitioner's examination, no other witness has been examined. On behalf of the 1st respondent, respondent 1 was examined as R.W. 1. R.W. 1's statement is to the effect that:
"At present my son is running my business. I have not sublet the petition schedule premises to anybody".
R.W. 1 states that: "respondent 2 in this case was his employee on a monthly salary of Rs. 150/-. He denied that 2nd respondent was the tenant of 1st respondent at Rs. 10/- per day. R.W. 1 states that: "I have got documents to show that respondent 2 is an employee under me".
19. According to the statement in para 3 of the deposition of R.W. 1, respondent 2 was in his employment for almost 15 years, that is almost since 1972-73. Initially he was paid Rs. 30/- per month and gradually his salary was enhanced to Rs. 150/-, that he has not given any letter of appointment and that he is maintaining the salary register as well as attendance register of his employees including 2nd respondent. That there were 19 employees under respondent 1. That every month Labour Inspector inspected the registers maintained by him and put his signature. That Labour Inspector comes for inspection every month. That the only documents which evidence the name of his employees and their salaries are the above stated registers only and they are with me, since inception. He says he has to search and if available he will produce them".
20. R.W. 1 has stated in para 4 that:
"I have not taken any licence from Bangalore City Corporation for running the petty shop".
21. R.W. 2, the son of respondent 1 stated that:
"Respondent 2-Moosa was an employee of respondent 1 and he was working under my father for the past 13 years. He joined my father as a cleaner and continues to be so. He is drawing monthly salary of Rs. 364-20 ps. I have not sublet the petition schedule shop to Ismail".
R.W. 2 states that there are only 9 employees in the Hotel business, of respondent 1. In his statement he states that he has filed one register of leave and i.e., Ex. R. 1 which is the employees' register of the and contains wage details. He had admitted that Ex. R. 1 register is for the period from April 1988 onwards. Except register Ex. R. 1, no other register had been produced and the explanation for the same is that the two earlier registers are with our Auditor. These registers had been inspected by Labour Inspector from time to time. He states that: Moosa's name has been shown in that register Ex. R. 1 at SI. No. 9.
22. R.W. 3 is another witness produced on behalf of the respondents, whose identity as Moosa has been disputed. R.W. 3 states that, "he was a cleaner and stated himself to be the employee of the proprietor of the Hotel". He deposed that: "I am working for the last 13 years. I am being paid salary of Rs. 364-20 ps. He further states that: "the small shop by the side of the Hotel belongs to respondent 1. Abdul Rahman is selling beedies and cigarettes in the said shop. Abdul Rahman has not given this shop to me".
23. It may be taken note of that Abdul Rahman is respondent 1. In the cross-examination, R.W. 3 states that:
"One Mohamed actually sits in the small shop and does the business for the past 13 years. Mohamed is doing the business there. The full name of Mohamed is Mohamed Kunni. Mohamed Kunni sits in the cash counter of the Hotel and he also sits sometimes in the beedi shop. I have not known Mohamed Kunni is the employee of the 1st respondent. I have not seen Mohamed Kunni signing these registers. I do not know, in whose name the Corporation licence of beedi shop stand. It is not true to suggest that I am not respondent 2 and 2nd respondent-Moosa is a different person. I do not know the terms and conditions under which small shop is being run between 1st respondent and Mohamed Kunni".
In the register, name of Mohamed was mentioned, witness tried to state that fellow was Mohamed Kunni. This is, in all the oral evidence led by the parties.
23-A. The reading of the evidence in entirety reveals and establishes the following:
(1) That shop in which beedis or cigarettes etc., is sold, is there separately, in which though business is done, according to Moosa by some person Mohamed or Mohamed Kunni, no doubt he states that Mohamed Kunni was his employee. But he very clearly says that it is not known, in whose name, the Corporation licence for the shop stands. He also states that he does not know under what terms and conditions the said shop is being run, between Mohamed Kunni and 1st respondent. This reveals further that in the part of accommodation let out, exists beedi, cigarette and tobacco shop and the same has been run, in that Abdul Rahman was not sitting. That shop was being carried on for the last 13 years within his knowledge and Mohamed was doing the business therein, according to Moosa's statement, while according to plaintiff, Moosa was carrying on the business in the shop. Whether he was doing or Mohamed Kunni was doing the business is immaterial. It really shows that the portion of the accommodation in tenancy of respondent 1, was in the exclusive possession and user of person running the business of sale of beedis, cigarettes, tobacco etc., in the form of a shop, be he either by Moosa or by Mohamed, but not the 1st respondent.
24. The question crops up:
(1) Whether the shop actually belongs to respondent 1 and it was run by his employee or the person running the shop was independently running it and was given the right to run the shop therein? The subletting is a very private transaction between the two, the lessor and the sublessee, that is between the respondent 1 and the person carrying on the business, In such a case that 1st respondent-tenant had to establish his case in view of Section 106 of Evidence Act and the law to the effect that facts peculiarly within the knowledge of a party have to be proved by him. See Masud Khan v State of Uttar Pradcsh, as well Section 21(3) of the Act and Gur Dayal v Malti Dew2 and Southern Command Military Engineering Services Employees' Co-operative Credit Society Limited v V.K.K. Nambiar (deceased) by L.R.
In what capacity when it was used by the beedi shop, i.e., for the purpose otherwise than Hotel being run therein. When it was a shop or a business concern dealing with tobacco or beedi articles etc., and if it was run by respondent 1 then he must be having the Corporation licence, that has not been brought on record. It was for the defendant 2 to have stated this clear case, if there was a shop of beedi etc., and it belonged to the tenant-respondent 1 he should have come with clean hands and stated that the shop was belonging to himself the tenant and the person running the business was not having this independent business therein the shop, but was his i.e., respondent 1's employee. No such case was specifically be pleaded.
25. Neither the said licence as to business has been produced. Really the defendant-lst respondent kept that matter in dark. He had not come with the clean hands while taking the defence pleas.
26. No doubt in the statement of R.W. 2, it is deposed that petitioner's petition premises consists of Hotel and beedi shop. Beedi shop is independent identity from the Hotel. R.W. 2 has stated: We had a licence to sell items from Octroi Department till 5 years back. I have Octroi Licence, but it is not necessary, to sell tobacco and cigarettes. I do not know whether a licence from Corporation is also necessary for the business of beedi shop.
27. If the Octroi Licence had been taken till 5 years back, it should have been produced by the R.W. 2. The question was put to R.W. 2 to the effect that Octroi Licence and Corporation Licence for the shop have not been produced, because it was in the name of respondent 2. It has to be taken note that no Octroi Licence or Corporation Licence even of 5 years back period had been produced in relation to the shop, particularly the licence of Octroi Department, which he admits had taken atleast for periods earlier to 5 years which could have thrown the light for the matter in issue. Failure to produce the same without rhime and reasons clearly reveals that the shop in which business in tobacco items was done, beedi and other items were sold did not belong to him i.e., respondent 1, in other words the business done therein did not belong to respondent 1 and it was independently being done by person running that business be it Moosa or Mohamed.
28. The proviso clauses (f) and (h) to Section 21(1) of the Act read as under.-
Provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely.-
(f) that the tenant has unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of subletting, assignment or transfer to which the provisions of Section 61 are applicable, such subletting, assignment or transfer has been made contrary to any provision of law then in force; or
(h) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of trust".
29. Section 21, sub-section (3) is also a material provision to be taken note of and to be quoted, it reads as under.-
"Section 21(3).--For the purposes of clause (f) of the proviso to sub-section (1) the Court may presume that the premises have been sublet by a tenant.-
(a) in any case where such premises have been let for use as residence if the Court is satisfied that any other person not being a servant or a member of the family of such servant has been residing in the premises or any part thereof for a period exceeding one month otherwise than in commensality with the tenant; or
(b) In any case where such premises have been let for non-residential purposes if the Court is satisfied that the tenant without obtaining the consent in writing of the landlord has allowed any person to occupy the whole or any part of the premises, ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of subletting such premises to that person".
A reading of this section per se reveals that thereunder presumption of subletting has to be raised, or may be raised, that is a rebuttable presumption may be raised about subletting by the tenant in cases covered by clauses (a) and (b) of sub-section (3) to Section 21. Clause (b) deals with the cases of letting for non-residential purposes which provides that in case of the premises let but for non-residential purpose, if the Court is satisfied that without obtaining the consent in writing of the landlord, the tenant has allowed any person to occupy the whole or any part of the premises, then whether it is ostensibly on the ground that such person ostensibly is a partner of tenant in business or profession, and really for the purpose of subletting such premises to that person. This presumption the Court below has failed to take note of. What has to be looked into that, presumption of subletting will apply where the tenant has allowed any person to occupy either whole or part of the premises without obtaining the consent in writing of the landlord in such cases.
30. In the present case, no doubt a portion of the premises let out, namely the shop, according to plaintiff was in occupation of Moosa, but according to Moosa, it was in occupation of some Mohamed. It means this portion is and has been in exclusive possession and user of the person running the business. That, R.W. 2 has not produced the licence as above, nor produced any evidence to show that business run therein was and is run by respondent 1 and definitely according to the witness of respondent 1 i.e., R.W. 3 the business is run by Mohamed. Who is that Mohamed, 1st respondent has taken the pleas that Moosa or Mohamed were his employees. The burden was on the defendant-lst respondent to produce the material document relating to the tobacco shop, but none has been produced. The register-Rl has been produced, which purports to be from April 1988 to December 1988. It has been produced after the examination and cross-examination of R.W. 1. Apart from that no registers of salary or attendance have been produced, though according to the respondents, Moosa and Mohamed were employees for more than 13 years or that is from 1973 onwards. A vague explanation has been tried to be given that all those registers are with the Auditors. They had to be summoned and produced from the Auditor or Auditor could be summoned and required to bring those registers for examination of the Court. Really no attempt has been made by the respondent 1 to produce those registers. Explanation of R.W. 1 appears to be vague and unreasonable, because R.W. 1 states that registers were with him. That particular register appears to have been prepared during the course of proceedings of the case, i.e., the case which had been commenced in 1983. The register could not be relied to prove that shop was being run by respondent 1 and some employee was looking after because respondent 1 has failed to prove that shop of tobacco articles belonged to respondent 1. Sometimes it is said that Mohamed Kunni was running the shop. In what capacity he is running it has to be made clear and established by respondent 1. Register by itself cannot be taken to prove that Moosa or Mohamed, who was doing the job, were employees of the relevant time when the shop was sublet. It is not the case of the 1st respondent that it was sublet with the consent in writing of the landlord. In view of Section 21(3) of the Act the consent in writing has to be shown, if some subletting or assignment etc., has or had been done. This not having been done, i.e., consent writing of landlord not been taken, the presumption under Section 21(3), did apply with full force, and taking all the circumstances together, it appears that the facts and circumstances and material on record clearly establishes that respondent 1 has parted with the premises in tenancy giving a portion for shop in the tobacco articles being run by not himself, but by some other person, may be Moosa, or Mohamed or Mohamed Kunni, as has come from the statement of R.W. 3. What is material to be seen is; whether there was subletting, whether there was transfer of possession without landlord's consent in writing being taken by respondent 1 i.e., the tenant therefor.
The above facts, evidence and presumption under Section 21(3) and circumstances which circumstances arising from conduct of defendant-1st respondent, who has concealed the material document, clearly establish that respondent 1 had sublet the part of premises to person running the business of tobacco in his own right, it may be Moosa or Mohamed or Mohamed Kunni and it is where the Court below acted illegally in not applying its mind to the above evidence of R.W. 1, R.W. 2 and R.W. 3, as to their conduct and to statutory presumption under Section 21(3) of the Act. Thus considered in my view as such revision petitioner has been entitled to grant of the decree for eviction of respondents and for recovery of possession of the accommodation in dispute under Section 21(1)(f). The revision petitioners' suit, as such could and ought to have been decreed under Section 21(1)(f) and Court below acted illegally in dismissing the same in illegal manner.
31. The question of bona fide need is also an another ground. Even if for a moment without going on that question on merits, the above finding be taken to be the finding of fact, even then the case having been established on ground under Section 21(1)(f) it is sufficient enough to allow the revision and to set aside the Trial Court's decree dismissing the claim, as well as to decree the claim of revision petitioner for eviction of respondent 1, his heirs and assignees etc., under him.
Thus considered the revision is allowed, the order impugned, i.e., judgment and decree dated 20-3-1991 passed in House Rent Case No. 10842 of 1983 by IV Additional Judge, SC Court, Mayo Hall, Bangalore is set aside, and the claim of the revision petitioner, as for decree seeking for eviction of the respondent 1 or his heirs, assignees etc. the ground of 21(1)(f) of the Act is decreed with direction to evict respondent 1, his heirs, assignees, sub-tenants and servants if any and for possession in favour of plaintiff-revision petitioner. The revision is allowed with costs of both the Courts.
Hari Nath Tilhari, J.
33. After judgment had been delivered, learned Counsel for the applicant, requested that the rent that has been deposited by the respondent in this Court, may be directed to be disbursed and paid to the revision petitioner on an proper application being made. It is directed accordingly. The Registry may allow as above.