MUKAND LAL Vs. SHRI GOVIND LAL

JUDGEMENT

(1.) THE landlord has directed this revision petition against the order dated 1st February, 1988 of the Appellate Authority, Karnal, dismissing his appeal by confirming the order of the Rent Controller. In brief the facts are that Mukand Lal landlord rented out the shop in dispute situated at Gharaunda to Gobind Lal respondent vide rent note Ex.A.1 dated 5th January, 1967, with effect from 1st January, 1967 at monthly rent of Rs. 34/-. Aforesaid Gobind Ram is running the business of commission agent in the shop, in the name and style of M/s Diwan Dass Rameshwar Dass. The landlord sought ejectment of the tenant from the shop in dispute on the ground of subletting a portion of the same to respondent No. 2, i.e. Haryana Warehousing Corporation, without his written consent for a certain period. The tenant, respondent No. 1, denied the allegations of the landlord regarding subletting. However, the Warehousing Corporation admitted having taken a portion of the shop in dispute to be used as a Godown after payment of rent to M/s Jivan Dass Rameshwar Dass on two occasions, i.e. from 3rd July, 1969 to 7th August, 1969 and 14th November to 3rd December, 1969. The learned Rent Controller dismissed the application by holding that the tenant has not parted with possession of the property in dispute and thus it was not a case of subletting to the Haryana Warehousing Corporation. It was further held that as both the parties agreed to enhance the rent before the Rent Controller on 24th March, 1976 in an application under Section 4 of the Act, a new tenancy came into force and the default of the tenant committed in the year 1969 regarding subletting even if taken to be true is of no consequence. In appeal, the learned Appellate Authority, Karnal, vide its impugned order partly accepted the contentions of the landlord, that it was a case of subletting but in view of the creation of a new tenancy with effect from 1st January, 1976 the above-referred default of the tenant in the year 1969 was held to be of no consequence.

(2.) MR . Sanjay Majithia, learned counsel for the petitioner, contended that in view of the specific provisions of Section 13(2)(ii) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, no amount of acquiescence by conduct or otherwise on the part of the landlord will condone an act of subletting by the tenant as the statute provided the consent of the landlord in writing. He had placed reliance on the findings of this Court in Shambhu Datt and another v. Balwant Lal, 1968 P.L.R. 790 as well as in Kartar Singh v. Shri Vijay Kumar and another, 1978(1) R.L.R. 608 Mr. C.B. Goel, learned counsel for the respondent on the other hand, admitted that a consent of the landlord in writing is required for subletting, but maintained that in the present case the findings of the Appellate Authority regarding subletting are erroneous as the tenant had not parted with the possession of the any portion of the shop in dispute, as it is a simple case of allowing the Warehousing Corporation to place some bags containing grains at the shop for a few days at a rent of 6 paise per bag per month. Reliance in this regard has been placed on the findings of the Supreme Court in Jagan Nath v. Chander Bhan and others, 1988(1) RCR 629 (SC) : AIR 1988 Supreme Court 1362.

(3.) THE question then arises whether under the circumstances of this case, the tenant had exclusively parted with the possession of the portion of the shop in dispute in favour of Warehousing Corporation. The learned Appellate Authority had relied upon the statement of A.W.2 Kulbhushan, Manager of the Warehousing Corporation, who deposed having kept 85 bags of grains from 3rd July to 7th August, 1969 at Godown No. 22, i.e. in a portion of the shop in dispute at the rate of 6 paise per bag. He further deposed that from 14th November to 3rd December, 1969, 1500 bags of grains were kept in Godown No. 31, i.e. a portion of the shop in dispute at the above referred rate. He also proved the relevant entries in the original record copies of which are Exhibit A.W.2/1-2, besides proving Ex.A.W.2/3 and A.W.3/4 copies of the receipts for payment of rent to the above referred firm of the tenant. No doubt, the tenant simply denied having sublet a portion of the shop in dispute to the Warehousing Corporation, but under the circumstances of the case, this denial on the part of the tenant is not of much consequence as in his heart of hearts, he thought that act of allowing the Warehousing Corporation to place some bags of grains on a portion of the shop in dispute would not amount to subletting. It is noteworthy that the shop is being used for running an arhtia business or commission agents business and the perusal of the plan exhibit A.5 shows that it comprises of two rooms in the front with opening at the GT Road passing through Gharaunda while there is a big hall at the back of these two rooms and again a big hall and then there are two rooms which in turn lead to a regular Verandah. Then there is another improvised Verandah having roof of C.G.I. sheets. Thereafter there is open space. It is noteworthy that the only access to the building is through the front two rooms. The landlord has not elicited from A.W.2 Kulbhushan as to whether a room was specifically rented out to the Warehousing Corporation for placing the above referred bags during the relevant period. It is not even stated by Shri Kulbhushan or Shri Senapati, A.W.3 a Mechanic of the Warehousing Corporation, who used to work as a peon in the office of the Corporation at Gharaunda during the relevant period, that a separate room was taken on rent by the Corporation and it remained under the lock and key of the Corporation. Under these circumstances, it cannot be said by any stretch of imagination that the tenant had parted with the exclusive possession of a portion of the shop in dispute, especially when the rent was being charged on the basis of the number of stacked bags. It appears to be a case of that type where the Warehousing Corporation after purchasing of some grains from the Ahrtia's shop of the tenant had allowed the same to remain on the premises of the tenant for a few days only before transporting the same to its regular Godowns and the tenant had retained the right of re-possession of this portion. This view is supported by the findings of the Supreme Court in Jagan Nath's case (supra). In that case it was held that the tenant cannot be said to have parted with the possession of the property so long as the tenant retained the leagal possession or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession, there is no parting with possession in terms of clause (b) of Section 14(1) of the Delhi Rent Controller Act. The wording of the said section are the same as the corresponding wording of Section 13(2)(ii) of the Haryana Urban (Control of Rent and Eviction) Act, 1973. Under these circumstances, the findings of the Appellate Authority are not legally sustainable.