S G PODDAR Vs. B LEELAVATHI

JUDGEMENT

(1.) THE tenant of the residential premises is the first petitioner herein; the 2nd petitioner is the alleged sub-tenant. Parties, will be referred to hereinafter, with reference to their rankings in the trial Court Petitioner landlady filed the eviction petition under Section 21(1)(a), (f) and (h) of the Karnataka Rent Control Act, 1961 ('the Act' for short). THE claim under clause (a) no more survives, as the landlady has not challenged the order of rejection under this ground. According to the landlady, the residential premises was leased to the 1st respondent on a monthly rent of Rs. 1,850/- and that he had shifted to Bombay as a permanent resident and that he has inducted the 2nd respondent as a sub-tenant. THE rents sent on a few occasions by the 2nd respondent were accepted by the landlady, only as paid on behalf of the 1st respondent. Landlady has 3 daughters, she has no male issue; the elder daughter has completed her MBBS and at the time of filing the eviction petition (i.e., in July, 1983) she was undergoing internship. Landlady, averred in the petition that she required the schedule premises "reasonably and bona fide for the occupation of the said daughter who is to be married and the said daughter is intending to open a clinic of her own and live separately in the schedule premises." Thus, clause (h) was invoked in order to enable the daughter to open a clinic of her own and for her separate residence. Initially the 2nd respondent filed the statement of objections; he stated that the 1st respondent was not served with the notice, as the address of the schedule premises was not correctly stated by the landlady in the notice. He asserted that both the respondents are direct brothers and they have been living in the schedule premises with their respective wives and children as members of "one corporate household" and that they constitute one Hindu joint family. THErefore, question of sublease did not arise. THE negotiations for lease were conducted by the 2nd respondent in the year 1974 and the token advance of Rs. 500/- was paid by the 2nd respondent Negotiations for lease took place at the residence of Mr. Mohamed, Real Estate Agent. Initially, monthly rent was Rs. 1,700/-. It was increased to Rs. 1,750/- when actual lease was granted and within an year, it was further enhanced to Rs. l,850/-. He asserted that the landlady and her husband were trying to enhance the rent subsequently also. An advance of Rs. 10,000/- was with the landlady, a fact not disclosed in the eviction petition. According to this respondent, landlady had no children of her own and hence disputed her claim under clause (h) to establish her daughter. THE premises under the occupation of the landlady, is quite spacious to accommodate her children and in the vacant space, clinic can be put up. THE 1st respondent filed appearance subsequently. 2nd respondent filed his statement of objections in October, 1983 (it is dated 3-10-1983). When paper publication was ordered for service on the 1st respondent, the counsel for second respondent filed a memo dated 30-11-1983, enclosing the vakalat of 1st respondent and sought dispensation of paper publication. Whatever may be the technical legal requirement of a notice, to be served on a respondent in a proceeding, this conduct of 1st respondent keeping himself away from the proceeding inspite of his knowledge of the proceedings seems to be an attempt to delay the Court proceeding. Litigation is a legal warfare But every kind of diversionary tactics cannot be accepted as 'fair' in this warfare. Respondent filed a memo adopting the statement of objections filed by his younger brother (the 2nd respondent). THE trial Court held that the lease was granted in favour of S.G. Poddar (1st respondent) as the Sales Executive of a Company called "Sevenseas Industries Pvt Ltd." This could be seen from his letter dated 15-1-1975; by this letter Sri Gopal Poddar, Sales Executive of Sevenseas Industries Pvt. Ltd., confirmed having taken the schedule premises in pursuance of the lease deed executed by him on behalf of "the above firm" along with the fixtures and fittings stated in Ex. P. 5. This letter is in the letter head of Sevenseas Industries Pvt Ltd. By another letter dated 20-11-1975 (Ex. P.6), 1st respondent stated that he occupied the schedule premises for use of the Company and the agreement executed expired on 14-12-1975 and that the Company renewed the lease for a further period of 11 months on the same terms and conditions. THE trial Court held that the case pleaded by the respondents in the objection statement is quite apposite to these documents and the Real Estate Agent referred to in the statement of objection was not examined and that there was some discrepancies between the depositions of the two respondents. Several notices issued to the 1st respondent at the schedule premises returned unserved and a notice to him was published in the IndianExpress news paper dated 26-12-1983. (From the records I find the vakalat was filed on behalf of 1st petitioner herein, on 1-12-1983, though it is dated 27-11-1983 and probably paper publication was ordered earlier). THE trial Court held that, the respondents failed to prove that the children of the 1st respondent were schooling at Bangalore and though 1st respondent asserted that Meenakshi Departmental Stores in Bangalore was run by both the respondents, no documentary evidence came forth in support of this fact; 1st respondent as R. W. 2 exhibited complete ignorance of the relevant details of the said Departmental stores; As per Ex. P. 7 deposit of Rs. 10.000/- was taken back by the 1st respondent; this was the deposit kept by the 1st respondent, when initial lease was obtained from the landlady. Trial Court held it insufficient to hold that 1st respondent resided in the schedule premises, only because, the telephone number bears his name and his car is registered in the said address, similarly, gas connection being in the name of the 1st respondent was held to be not sufficient to accept bis case of residence at the schedule premises. Consequently, the plea of sub-lease was accepted. From the deposition of the landlady (P.W. 1) and her daughter (P.W. 2), trial Court held that the petitioner made out a case of bona fide and reasonable requirement of the premises for the occupation of P.W. 2 to start a clinic by her. Having regard to the admitted financial status of the respondents, trial Court held that question of any hardship to them would not arise. Mr. Jayaram, the learned senior counsel for the respondents (the tenants) contended before me that the trial Court did not properly appreciate the legal requirements governing proof of a sublease and that the initial onus which is on the landlady was not discharged in the instant case; further, the evidence on record was insufficient to hold that there was legal parting of possession by the 1st respondent in favour of his brother, the 2nd respondent. On the 2nd question under clause (h), the learned counsel pointed out that, while the plea in tie eviction petition required the premises for starting of a clinic by P.W. 2 as well as for her residence, evidence of P. Ws. 1 and 2 sought the premises, only for the purpose of opening a clinic by P.W.

(2.) WHEN admittedly P.W. 2 is now married and her husband also is a Doctor, requirements of P.W. 2 must have stood altered, contended the learned counsel. Re. sub-letting: In Mis, Delhi Stationeries and Printers v Rajendra Kumar, AIR 1990 SC 1208, Supreme Court pointed out that a mere occupation of the premises by a person other than the tenant will not be a case of sub-letting; sub-letting involves parting with legal possession by the tenant The allegation was that the tenant had inducted his brother-in-law as an occupant of the premises. At page 1209, the Supreme Court held: