Supreme Court

Bhairon Sahai (D) through L.Rs. Vs. Bishamber Dayal (D) through L.Rs. and Ors.

MANU/SC/0834/2017

18.07.2017

Tenancy

Subletting is not permitted by camouflaging it as a partnership

In instant case, Petition filed under Section 14 of Delhi Rent Control Act, 1958 by Appellant-Landlord for eviction of Respondents was allowed by Rent Controller. Tribunal set aside judgment of Rent Controller in appeal filed by Respondents. Rent Control Tribunal, Delhi on a re-appreciation of evidence on record reversed findings of Rent Controller and concluded that, it was Respondent No. 1 and not Respondent No. 2 who was carrying on business of a fair price shop. High Court confirmed judgment of Appellate Tribunal by holding that it had not been proved that, Respondent No. 2 was in exclusive possession of suit premises. Principal contention of Appellant is that, tenant had parted with possession of a part of premises in favour of Respondent No. 2 without taking his consent and that in view of Section 14(1)(b) read with Section 14(4) of Act, he is entitled to evict tenants. Point that arises in present case is whether a landlord is entitled to seek eviction of Respondents on ground of parting with possession without his consent.

Section 14(1)(b) of Act provides that, a tenant is liable for eviction if he sub-lets, assigns or otherwise parts with possession of the premises without consent of landlord. In case Rent Controller decides that, partnership entered into by tenant is not genuine and there is parting of possession, Section 14(4) of Act, deems it to be sub-letting. Therefore, if tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of sub-letting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.

Combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by consent in writing from landlord. Requirement of obtaining consent in writing of landlord is retained as a pre-requisite even for purposes of Sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore, allowed to occupy premises or whether partnership is a ruse, requirement of consent in writing as in Sub-section (1) is retained. In present case, there is no evidence that, tenant obtained consent in writing from landlord before allowing son-in-law to occupy premises in pursuance of Partnership deed.

In present case, it is clear from evidence on record and judgments of Courts below that, there has been parting of possession by Respondent No. 1 of a portion of premises in favour of Respondent No. 2 without taking consent of Appellant. Rent Controller found that, from 1964 onwards, there were two shops being run in premises. One portion of premises was being used for a fair price shop, licence of which was in name of Respondent No. 2. Other portion was being used as a provision store which was being run by Respondent No. 1. Averments in Eviction Petition would disclose that, Appellant alleged parting of possession by Respondent No. 1 in favour of Respondent No. 2 between the years 1964 and 1976. Other allegation is that, Respondent No. 1 entered into a partnership with Respondent No. 2 in 1977. No consent was taken from Appellant for either parting with possession of a portion of premises or for entering into a partnership.

Eviction can be sought by a landlord, if tenant sub-lets, assigns or otherwise parts with possession without his consent. Supreme Court is of opinion that, Rent Controller was right in finding that, Respondent No. 2 was carrying on business as Authorised Ration Distributor in a portion of premises from 1964 as he was the licensee. Parting with possession of premises without consent of landlord was sufficient for eviction of tenant without getting into question of sub-letting or assignment. Appeal is allowed on ground of parting of possession by tenant/Respondent No. 1 in favour of Respondent No. 2 without consent of landlord. Respondents are directed to vacate premises within two months.

Tags : Premises Sub-let Eviction

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