LAKHWINDER SINGH Vs. VIJAY SHAMSHER SINGH

JUDGEMENT

(1.) This is tenants' revision petition challenging the impugned order dated 15.06.2010 passed by the Appellate Authority, whereby order dated 25.09.2008 of the Rent Controller, ordering his eviction was upheld.

(2.) Respondent No.1 filed an ejectment petition against the petitioners from the demised premises on various grounds i.e.non-payment of rent, subletting by petitioner No.1 in favour of petitioner No.2 without written consent of respondent No.1 and material alterations in the basic structure of the building which has materially impaired the utility of the premises in question. However, the eviction was ordered by the Rent Controller, only on the ground of subletting by petitioner No.1 in favour of petitioner No.2.

(3.) The relevant paragraphs of the order dated 25.09.2008 of Rent Controller read thus: "I have given a careful thought to the respective submissions and have also gone through the evidence, which has come on the file. One thing which clearly stands out in the present petition is the parting of possession by respondent No.1 in favour of respondent No.2. The fact that it was respondent No.2 who had to file the suit for mandatory injunction and for permanent injunction for restoration of electric connection after the same was disconnected at the instance of the landlord shows that it is respondent No.2 who is in effective control of the premises in dispute. The power of attorney Ex.P1 is dated 23.04.2001, no doubt vide the same respondent No.1 tenant has ratified the acts of respondent No.2 qua the premises in dispute, the court cannot but help observe that the general power of attorney qua demised premises and the business in the said premises is a ploy to wriggle out of the bar of subletting. No doubt, in the present case, nothing has come on record to show that there was monetary consideration for the parting of possession, in the case titled Bimal Kumar & anr.vs.Ajay Kumar in 2008 (2) RCR 97 it was held that where it is established that tenant parted with possession of premises in favour of another person then proof of payment of monetary consideration is not sine-qua-non to establish subletting. In fact even in the case titled Nirmal Kanta vs.Ashok Kumar(supra) while discussing subletting, it was held that subletting came into existence when tenant inducts a third party/stranger to the rented accommodation and parted with possession thereof wholly or in part in favour of such third party and landlord produced proper evidence to that effect, the creation of sub-tenancy stands established. In the said case, the plea of landlord was dismissed on the ground that landlord had failed to prove the parting of possession by the tenant and not on the ground that the landlord had failed to prove the monetary consideration. In fact in the case titled Ashwani Kumar Prashar vs.Anil Kapoor(supra) the Honourable High Court went to the extent of observing that even the transfer of business by the tenant to his brother amounted to subletting and that it can be presumed that possession has been transferred for some consideration. In the instant case, respondent No.2 is not a blood relation of respondent No.1. Respondent No.1 Lakhwinder Singh happens to be a friend of brother in law of respondent No.2. Though it is the stand of respondent No.2 that Lakhwinder Singh has been visiting India o and on, not even once during the trial of present case did respondent No.1 come present in the court and deem it fit to depose as his own witness. As per respondent No.2, Lakhwinder Singh lastly visited India in Jan. 2008, yet no effort was made by said Lakhwinder Singh to come present in the Court and to depose qua his possession and control of business being run in the demised premises. The respondent No.2 has failed to bring on record any documentary evidence showing the share of profits by respondent No.1 rather it is his categorical statement in his cross-examination that he prepares polythene bag in the said premises. The onus to prove that respondent No.1 has parted with possession of demised premises was on the petitioner which onus has been duly discharged by the petitioner. Thereafter, it was for the respondents to explain the circumstances, in which respondent No.2 is in exclusive possession of the premises. The said circumstances have been tried to be explained by producing on record the power of attorney in favour of respondent No.2. However,nothing has come on record to show that the profits of the business are being sent to respondent No.1 or that it is the respondent No.1 who is in effective control of the business being tenant in the demised premises. Rather, respondent No.1, is reportedly residing abroad for the last number of years and is no longer in possession of the premises. In these circumstances, it can safely be said that respondent No.1 has sublet the premises in dispute to respondent No.2 without the consent of petitioner. This issue is held in favour of petitioner against the respondent.