BANARSI DASS Vs. SHAKUNTALA

JUDGEMENT

(1.) Counsel for the parties have addressed arguments only on issue Nos. 3 and 4. Issue No. 3 arose out of the preliminary objections raised by the deft. that the contract of sub-letting was void being against the provisions of the Act. The stand of the plaintiff in the replication is that the sub-letting in favour of the defendant took place with the consent of the landlord, but even assuming it to be without such consent, the agreement with the deft. is not void ab initio and is enforceable. The onus of the issue is on the defendant. It embraces a factual as well as a legal proposition. Under S; 16 (2) of the Act, no premises which have been sub-let cither in whole or in part on or after the 9.6.1952, without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sub-let. The owner Shri S.C. Kumar has not been produced by the deft. though onus of the issue lay on her. The pff. entered the witness box. In the cross-examination, he deposed that he was allowed to sub-let the building in the rent note and that the rent note is not in his possession and hence he could not produce the same.

(2.) The deft. was relying on the fact that the premises had been sub-let to her after 9.6.1952 without obtaining the consent in writing of the landlord. The pff. had pleaded that the sub-letting in favour of the deft. took place with the consent of the landlord. The deft. wanted the Court to believe the non-existence of the written consent of the landlord to the creation of the sub-tenanry. It was her duty to have led evidence either by summoning the rent note from the owner or by producing him in the witness box to prove the non-existence of a fact. In "M. Krishnaswami Naidu v. Secy. of State", A.I.R. 1943 Madras 15 it was held :-

(3.) The deft. has failed, to discharge the initial ourden which lies on him under issue No. 3. There was no reliable evidence, however, slight to satisfy the Court that the burden had been discharged. She failed to establish that the premises had been sub-let to her without obtaining the consent in writing of the landlord.