SUBRAMANIAN Vs. MALAR SELVI

JUDGEMENT

(1.) THIS revision petition is directed against the concurrent finding of fact given by the Rent Controller and the Appellate Authority that the predecessor of the revision petitioners had sublet the premises without the consent of the landladies to respondent-2 in the rent control petition. Though the original claim made by the landladies was under Sections 10(3)(a)(i) and Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter referred to as the Rent Control Act we are concerned in this petition only with the claim of eviction on the ground of subletting. The case of the landladies was that the premises were sublet to one Ibrahim, who was respondent-2 in original rent control petition, without the written consent of the landladies.

(2.) WHEN the matter was taken up by the Rent Controller, the son of the tenant who was examined as R.W. I admitted that a part of the portion was being used as a gilt shop where the business of polishing jewellery was carried on. The Rent Controller found that it was never the case of the tenant either in reply to the notice sent by the landladies or in the written statement that the tenant was carrying on any gilt shop. Therefore, the Rent Controller rejected the case which was put forth in evidence by the son of the tenant that the gilt shop belonged to the tenant herself. Having thus found that the premises were sublet to Ibrahim, eviction was ordered.

(3.) IN this revision petition it is argued by the learned counsel that it was never the case of the landladies that the premises were sublet by the tenant for a gilt shop and no reference whatsoever is made either by P.W. 1 or P.W. 2 to the premises being let out for a gilt shop. Therefore, according to the learned counsel, there is no evidence on the side of landladies that the premises were let out for the purpose of running a gilt shop. It is difficult to appreciate the argument that the finding that the tenant does not own a gilt shop is vitiated merely because none of the witnesses on behalf of the landladies made any reference to the gilt shop. It is open to a party to establish his case on the basis of evidence given or admissions made by the witnesses for the opposite side. In this case, the landladies' story of subletting is really proved by the evidence of the son of the tenant coupled with the fact that it was never the case of the tenant that the tenant herself was running the gilt shop. The tenant's son clearly admitted that there was a jewel polishing shop but according to him it belonged to the tenant. There is no reference whatsoever at all to this shop in the reply notice or in the counter filed by the tenant. On the other hand, the counter filed by the tenant refers to a tea-cum-eatable shop. When the tenant's son himself was referring to the gilt shop, it obviously showed that the gilt shop was in the premises and since it was never the case of the tenant in the written statement or in the notice that the gilt shop belonged to the tenant, the obvious inference which must follow was that the gilt shop does not belong to the tenant at all. The necessary consequence must be that it must follow that gilt shop belonged to some person other than the tenant, Ibrahim has not been examined. If he was a servant of the tenant as alleged, it was for the tenant to examine him. It is now stated that Ibrahim had left the services and that he had given in writing that he was her servant. The writing is sought to be produced as additional evidence in this revision petition. The writing is dated 5th July, 1980 and the petition before Rent Controller was filed on 7th September, 1980. With reference to the date, it is, therefore, clear that this document was in her possession. If it was a genuine document in the hand of the tenant the proper occasion to produce this document was at the time when evidence was given and such document which is capable of being got up at any time cannot now be accepted as evidence in this eviction petition.