VIJAYA TRADERS Vs. C K SAMPATH

JUDGEMENT

(1.) THE concurrent finding of the courts below is that the tenant is guilty of subletting. THE case of the tenant was that the second respondent herein, who was previously lessee of the premises, had with the consent of the landlord given possession of premises to the petitioner for carrying on business and the second respondent had his business to some other premises in another locality. THE case that the respondent is doing business elsewhere has not been proved by production of even one document. THE Courts below are right in holding that the second respondent has failed to establish that he is doing business elsewhere.

(2.) AS regards the question whether there is a sublease in favour of the second respondent, is always a matter for inference from the evidence. The landlord cannot be expected to prove that there is a transaction of lease between the tenant and the alleged sub-lessee. The Court has to draw the necessary inference only from the evidence placed before it. In this case, admittedly the telephone which belonged to the second respondent continues to be in the petition premises. The second respondent's name-board is also in the petition premises. The case put forward by the petitioner to explain the presence of the name-board and telephone is that the second respondent permitted the petitioner herein to use the telephone and in order to show to the telephone department that the second respondent continues to do business in the premises, the name-board was kept there and when the telephone department made inspection it was represented that the second respondent was doing business there. The evidence of R.W.I is as follows:

(3.) LEARNED counsel for the petitioner places reliance on the decision of this court in Nadar and Sons v. Rajathi Ammal, (1982)1 M.L.J. 161. It is held in that case that the main criterion is whether the tenant had permitted a third party to occupy the premises and had divested himself completely of the possession of the premises or a part thereof, and that if the tenant had permitted another person to use the premises along with him it may not amount to sub-letting. The ruling in that case has to be understood on the facts of that case. It is seen from the facts that of that case, the partners of T.Pappammal and Company were dependants of the tenant and not third parties and the tenant was looking after the business of Pappammal and Company, which was alleged to be the sub-lessee. The evidence given by the tenant to that effect was not controverted by the landlord, and the Court held that there was no transfer of possession of the premises or part thereof by the tenant. It was only in the facts and circumstances of that case the Court took the view that there was no sub letting.