NIKI DEVI Vs. SAROJ BALA

JUDGEMENT

(1.) THIS revision petition is directed against the orders of the Authorities below whereby ejectment of petitioners has been ordered on the ground of sub-letting. Both the Authorities below have found that petitioners 1 to 3, namely, tenants have sub-let the premises to petitioners 4 to 6. It is the common case of the parties that the shop in dispute had been let out to Kishori Lal. On his death, shop came into possession of his legal representatives, namely, petitioners 1 to 3. Ejectment of petitioners 1 to 3 and petitioners 4 to 6 was sought by the landlord on the ground that on the death of Kishori lal, petitioners 1 to 3 became tenants and they have sub-let the premises to petitioners 4 to 6. Ejectment application was contested only by petitioners 1 to 3 and in their written statement they pleaded that they have not sub-let the premises to petitioners 4 to 6, but they are their close relations and they are helping them in carrying on business in the demised premises. As a matter of fact, the case set up by petitioners 1 to 3 was that petitioners 4 to 6 are working as their servants. They had also averred that petitioner No. 4 was appointed as attorney by petitioner No. l. The Authorities below on the basis of evidence and also on the admission made by petitioner No. l, namely, Nikki Devi, found that petitioner No. 1 has permanently shifted to Nepal where she is running a shop in Dulhawadi. She is not the resident of Hissar where the tenanted shop is situated. Purshottam Dass, petitioner No. 4, the alleged sub-tenant, though had not filed written statement, but appeared as RW-6 on behalf of petitioners 1 to 3 and in his statement, he admitted that petitioner No. l, Nikki Devi never came to his shop. No document or evidence was brought on record to show that Purshottam Dass is an employee of Nikki Devi. Petitioner No. 1 was also not in a position to state as to what profit and loss had occurred in the business in the year 1987 or what are the dimensions of the shop. She admitted in her statement that she never entered the shop but has seen it from outside. It also came in her statement that when she left India in 1987, some amount was given to her, meaning thereby that on the death of Kishori Lal some money was given to her to leave the shop by petitioners 4 to 6 and she left India and settled down in Nepal and since then the business is being run by petitioners 4 to 6. Counsel for the petitioner while impugning the judgment of the Authorities below has inter-alia contended that some of the documents which have come on record show that sub-tenancy in favour of Purshottam Dass took place during the life time of Kishori Lal and, therefore, petitioners 4 to 6 are not liable to be ejected on the ground that sub-letting has taken place on the death of Kishori Lal. I find no merit in this contention. It is not the case of petitioners 4 to 6 that they are sub-tenants or sub-tenancy in their favour came into being with the written consent of the landlord. As a matter of fact, petitioners 4 to 6 never filed any written statement and the case set up on their behalf by petitioners 1 to 3 was that they are their employees. In AIR 1959 SC 689, it has been held by the Apex Court that it is not open to the tenant to contend that landlord has waived his right to evict the tenant on the plea of sub-letting. In that case also, a contention was raised that right to evict a tenant on the ground of unlawful sub-letting was a statutory right while like any other right could be waived by the landlord. But this contention was not accepted on the ground that the provisions prohibiting sub-tenancy are based on public policy and that it is not permissible for the tenant to contend that this statutory right has been waived. Moreover, in the present case it is not the case of the petitioners that there was a written consent by the landlord for creating sub-tenancy.

(2.) ACCORDINGLY , the revision petition being without any merit is to be dismissed. It is so ordered. However, on the request of counsel, petitioners are allowed three months' time to vacate the premises provided they deposit with the Rent Controller the entire arrears of rent, including that of three months, within one month from today, and also file an undertaking within one month that they shall hand over the vacant possession of the premises to the landlord on expiry of period allowed by this Court.