FLORA ELIAS NAHOUM AND ORS. vs. IDRISH ALI LASKAR

REPORTABLE<br>IN THE SUPREME COURT OF INDIA<br>CIVIL APPELLATE JURISDICTION<br>CIVIL APPEAL No.4189 OF 2007<br>Flora Elias Nahoum & Ors. .... Appellants<br>Versus<br>Idrish Ali Laskar …. Respondent<br>J U D G M E N T<br>Abhay Manohar Sapre, J.<br>1. This appeal arises from the final judgment and<br>final order/decree dated 07.07.2005 passed by the<br>High Court of Calcutta in F.A. No.416 of 1984<br>whereby the Division Bench of the High Court<br>dismissed the eviction suit filed by the appellants<br>fied<br>L<br>against the respondent and set aside the decree for<br>1
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eviction passed by the Trial Court in their favour<br>and against the respondent.<br>2. In order to appreciate the issues involved in<br>this appeal, it is necessary to set out the facts in<br>detail herein-below.<br>3. The appellants are the plaintiffs (landlords)<br>whereas the respondent is the defendant (tenant) in<br>the eviction suit out of which this appeal arises.<br>4. The appellants (plaintiffs) are the<br>owners/landlords of one shop (room) bearing<br>premises No.1, Hartford Lane, Calcutta (hereinafter<br>referred to as “the suit shop”), which was originally<br>owned by Late Nahoum Elias and Miss Resmah<br>Nahoum. The present appellants are the<br>successors-in-interest of the suit shop. They had let<br>out the suit shop to one - Alfajuddin Laskar on a<br>monthly rent of Rs.40/-. In the suit shop,<br>2
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Alfajuddin Laskar used to do the business of sale of<br>eggs under the name “24, Parganas Egg Stores”.<br>5. Alfajuddin Laskar expired in 1976. The<br>respondent being his son became the tenant of the<br>appellants on same terms and conditions. The<br>respondent, however, closed his father's business of<br>selling of eggs and started his tailoring business<br>under the name “New India Tailors” in the suit<br>shop.<br>6. In 1978, the appellants filed an Eviction Suit<br>against the respondent under the provisions of the<br>West Bengal Premises Tenancy Act, 1956<br>(hereinafter referred to as “the Act”. The eviction<br>was claimed on four grounds, viz., default in<br>payment of monthly rent, bona fide need,<br>sub-letting and lastly, making of unauthorized<br>construction in the suit shop by the respondent.<br>3
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7. The respondent filed the written statement and<br>denied all the four grounds. Parties adduced their<br>evidence. The Trial Court, by order dated<br>30.01.1984, partly decreed the suit. It was held that<br>so far as the grounds relating to default of rent and<br>bona fide need are concerned, both are not made<br>out whereas the other two grounds, namely,<br>sub-letting and making of unauthorized<br>construction in the suit shop, both stood made out<br>against the respondent.<br>8. In this view of matter, the appellants’ suit was<br>decreed in part against the respondent and the<br>decree for eviction on the ground of sub-letting and<br>unauthorized construction made by the respondent<br>in the suit shop was passed. The respondent was<br>granted six months’ time to vacate the suit shop<br>and handover its vacant possession to the<br>appellants.<br>4
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9. Being aggrieved by the said order, the<br>respondent filed appeal before the High Court at<br>Calcutta. The appellants, however, did not file any<br>cross appeal or cross-objection against that part of<br>the order by which two grounds, viz., default in<br>payment of rent and bona fide need were held not<br>made out. The judgment of the Trial Court thus<br>became final to that extent.<br>10. Therefore, the only question before the High<br>Court was whether the Trial Court was justified in<br>decreeing appellants’ suit on the grounds of<br>sub-letting and making of unauthorized<br>construction in the suit shop.<br>11. In other words, the question was whether the<br>Trial Court was right in holding that the ground of<br>sub-letting and making of unauthorized<br>construction in the suit shop was made out.<br>5
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12. The High Court, by impugned judgment,<br>allowed the respondent’s appeal and dismissed the<br>appellants’ eviction suit. The High Court held that<br>no ground of either sub-letting or an unauthorized<br>construction was made out, hence, the suit was<br>liable to be dismissed in its entirety. It was<br>accordingly, dismissed.<br>13. Against this judgment, the landlords felt<br>aggrieved and filed this appeal by way of special<br>leave in this Court.<br>14. Heard Ms. Daisy Hannah, learned counsel for<br>the appellants and Mr. Zakiullah Khan, learned<br>senior counsel for the respondent.<br>15. Having heard the learned counsel for the<br>parties and on perusal of the record of the case, we<br>are inclined to allow the appeal and while setting<br>aside of the impugned judgment, we restore that of<br>6
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the Trial Court and, in consequence, decree the<br>appellants’ suit in part, as indicated below.<br>16. There can be no dispute to the legal<br>proposition that even if the landlord is able to make<br>out only one ground out of several grounds of the<br>eviction, he is entitled to seek the eviction of his<br>tenant from the suit premises on the basis of that<br>sole ground which he has made out under the Rent<br>Act.<br>17. In other words, it is not necessary for the<br>landlord to make out all the grounds which he has<br>taken in the plaint for claiming eviction of the<br>tenant under the Rent Act. If one ground of eviction<br>is held made out against the tenant, that ground is<br>sufficient to evict the tenant from the suit premises.<br>18. As mentioned above, the Trial Court held that<br>the appellants were able to make out two grounds<br>for respondent's eviction, namely, sub-letting and<br>7
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unauthorized construction made by him in the suit<br>shop. The High Court, accordingly, reversed the<br>findings on these two grounds and dismissed the<br>suit.<br>19. We consider it proper to examine first, the<br>ground of sub-letting with a view to find out as to<br>whether the plaintiffs (appellants) were able to make<br>out this ground against the respondent. In other<br>words, let us first examine as to whether the Trial<br>Court was right or the High Court was right on this<br>issue.<br>20. In order to examine, whether the ground of<br>sub-letting is made out or not, it is necessary to see<br>as to how this ground was pleaded and sought to be<br>proved by the parties.<br>21. The appellants, in Para 4 of the plaint, pleaded<br>the case of sub-letting as under:<br>“4. The defendant after acquiring<br>right of tenancy in respect of the said shop<br>8
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room after his father’s death, wrongfully<br>transferred possession of the said shop room<br>to one Joynal Mallick evidently for creating a<br>sub-tenant in his favour in respect of the suit<br>shop room without obtaining the permission<br>and consent of the plaintiffs.”<br>22. The respondent, in reply to Para 4 of the<br>plaint, gave the following reply in Para 9 of his<br>written statement as under:<br>“9. The defendant denies the<br>allegations made in paragraph 4 of the plaint<br>and in particular denies the allegations that<br>he has transferred possession of the shop<br>under his tenancy to one Joynal Mullick or<br>anybody as falsely alleged.”<br>23. It is clear from the perusal of the pleadings<br>that the case of the appellants was that the<br>respondent has sub-let and parted with possession<br>of the suit shop to one Joynal Mullick without<br>appellants’ consent.<br>24. So far as the respondent is concerned, he<br>simply denied the appellants’ case in para 9 saying<br>that he has not sub-let the suit shop to anyone,<br>9
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much less to Joynal Mullick, as claimed by the<br>appellants.<br>25. The respondent examined himself as witness<br>No.1 and examined Joynal Mullick as witness No.2.<br>26. In examination-in-chief, the respondent<br>changed his stand and said that he has not sub-let<br>the suit shop to Joynal Mullick but he is in his<br>employment. This is what he said:<br>“It is not a fact that I sublet the shop room<br>in suit to one Jainal Mullick. Jainal Mullick<br>is in my employment.”<br>27. The respondent further in his<br>cross-examination again changed his stand and in<br>answer to a specific question put to him as to<br>whether he has employed any person in his tailoring<br>business said "no". This was his reply:-<br>“No. In the tailoring business I have no<br>employee but the work is done on contract<br>basis.”<br>10
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28. The respondent then in answer to another<br>question put to him as to how many persons work<br>for you on contract basis in his tailoring business,<br>his reply was- four persons and out of four, Joynal<br>Mullick and Jahangir Mullick were his employees.<br>This is what he said:-<br>“Najrul Islam and Sayed, Volunteers – Besides<br>these persons there are two other persons<br>who look after the business in my absence.<br>They are Jainal Mullick and Zahangir Mullick<br>volunteers. These two persons are my<br>employee.”<br>29. The respondent then was asked another<br>question, viz., Did he disclose the name of any of his<br>employee while submitting the declaration form<br>under the Shops and Establishment Act, his reply<br>was “no”. This is what he said:-<br>“I am the owner of the tailoring shop.<br>Volunteers – fresh declaration has been<br>submitted about 10/12 days back. In that<br>declaration I have not declared that these<br>two persons Jainal and Zahangir are my<br>employees.”<br>11
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30. The respondent was then asked last pointed<br>question - whether Joynal Mullick is doing business<br>in the suit shop. To this, his reply was that Joynal<br>Mullick is his business partner. This is what he<br>said:-<br>“I obtained the trade license from the<br>Corporation of Calcutta for the business<br>carried in the shop showing Jainal Mullick<br>and Zahangir Mullick as my partners in the<br>business. It is not a fact that Jainal and<br>Zahangir are not my employees.”<br>31. Joynal Mullick then in his evidence said that<br>he is an employee of the respondent for the last 7/8<br>years and whatever the respondent (his owner) tells<br>him to do, he does it while sitting in the suit shop.<br>He stated that, in his presence, the respondent had<br>constructed "Macha" in the suit shop. He said that<br>he joined the business under the name "New India<br>Tailor".<br>32. Keeping in view the statements of the<br>respondent and Joynal Mullick, the question arises<br>12
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as to whether a case of sub-letting and parting of<br>possession of the suit shop in favour of Joynal<br>Mullick, whether whole or in part, is made out.<br>33. Section 13(1)(a) of the Act deals with the<br>ground of sub-letting and provides that where the<br>tenant or any person residing in the premises let to<br>the tenant without the previous consent in writing<br>of the landlord transfers, assigns or sublets in<br>whole or in part the premises held by him, then it is<br>a ground for the tenant’s eviction from the tenanted<br>premises.<br>34. In our considered opinion, keeping in view the<br>pleadings and the nature of the evidence adduced<br>by the parties, the ground of sub-letting, as<br>contemplated under Section 13(a) ibid, is made out.<br>This we say for the following reasons.<br>13
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35. In the first place, we find that the respondent<br>(tenant), since inception, was taking inconsistent<br>stand on the question of sub-letting.<br>36. To begin with, he denied having sub-let the<br>suit shop to anyone in his written statement. Then,<br>contrary to what he alleged in the written<br>statement, he said in his examination-in-chief that<br>Joynal Mullick was his employee. Then, again<br>contrary to this statement, he said, in next breath,<br>that Joynal Mullick is his partner in tailoring<br>business.<br>37. So far as Joynal Mullick is concerned, he<br>admitted that he has been sitting in the suit shop<br>for the last 7/8 years but he has been sitting in a<br>capacity as an “employee” of the respondent.<br>38. In our opinion, the contradictory stand of the<br>respondent and that too without any evidence<br>clearly leads to an inference that the respondent<br>14
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was unable to prove, in categorical terms, as to<br>which capacity, Joynal Mullick was sitting in the<br>suit shop - whether as an "employee" or a "business<br>partner" or in any “other capacity”.<br>39. It seems that the respondent was not sure as<br>to what stand he should take to meet the plea of<br>sub-letting. He, therefore, went on changing his<br>stand one after the other and could not prove either.<br>40. In our view, since the respondent had admitted<br>the presence of Joynal Mullick in the suit shop, the<br>burden was on him to prove its nature and the<br>capacity in which he used to sit in the suit shop.<br>41. In other words, if Joynal Mullick was the<br>respondent’s employee then, in our view, he should<br>have proved it by filling a declaration form, which<br>he had submitted under the Shops and<br>Establishment Act to the authorities. But it was not<br>done. Rather he admitted that he did not disclose<br>15
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the name of Joynal Mullick in the declaration form.<br>That apart, the respondent could have proved this<br>fact by filing payment voucher, or any other relevant<br>evidence to show that Joynal Mullick was his<br>employee and that he used to sit in the suit shop in<br>that capacity only. It was, however, not done.<br>42. Second, if Joynal Mullick was a partner of the<br>respondent in the tailoring business then the<br>respondent could have proved this fact by filing a<br>copy of the partnership deed. However, he again<br>failed to produce the copy of partnership deed. In<br>this way, he failed to prove even this fact.<br>43. Now so far as the appellants are concerned,<br>they appear to have discharged their initial burden<br>by pleading the necessary facts in Para 4 and then<br>by proving it by evidence that firstly, they let out the<br>suit shop to the respondent and secondly, the<br>respondent has sub-let the suit shop to Joynal<br>16
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Mullick, who was in its exclusive possession<br>without their consent.<br>44. In a case of sub-letting, if the tenant is able to<br>prove that he continues to retain the exclusive<br>possession over the tenanted premises<br>notwithstanding any third party’s induction in the<br>tenanted premises, no case of sub-letting is made<br>out against such tenant.<br>45. In other words, the sin qua non for proving the<br>case of the sub-letting is that the tenant has either<br>whole or in part transferred or/and parted with the<br>possession of the tenanted premises in favour of<br>any third person without landlord's consent.<br>46. This Court in Bharat Sales Ltd. vs. Life<br>Insurance Corporation of India (1998) 3 SCC 1,<br>while dealing with the case of sub-letting succinctly<br>explained the concept of sub-letting and what are<br>its attributes.<br>17
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47. Justice Sagir Ahmad, speaking for the Two<br>Judge Bench, held as under:<br>“4. Sub-tenancy or sub-letting comes<br>into existence when the tenant gives up<br>possession of the tenanted accommodation,<br>wholly or in part, and puts another person in<br>exclusive possession thereof. This<br>arrangement comes about obviously under a<br>mutual agreement or understanding between<br>the tenant and the person to whom the<br>possession is so delivered. In this process,<br>the landlord is kept out of the scene. Rather,<br>the scene is enacted behind the back of the<br>landlord, concealing the overt acts and<br>transferring possession clandestinely to a<br>person who is an utter stranger to the<br>landlord, in the sense that the landlord had<br>not let out the premises to that person nor<br>had he allowed or consented to his entering<br>into possession over the demised property. It<br>is the actual, physical and exclusive<br>possession of that person, instead of the<br>tenant, which ultimately reveals to the<br>landlord that the tenant to whom the<br>property was let out has put some other<br>person into possession of that property. In<br>such a situation, it would be difficult for the<br>landlord to prove, by direct evidence, the<br>contract or agreement or understanding<br>between the tenant and the sub-tenant. It<br>would also be difficult for the landlord to<br>prove, by direct evidence, that the person to<br>whom the property had been sub-let had paid<br>monetary consideration to the tenant.<br>Payment of rent, undoubtedly, is an essential<br>element of lease or sub-lease. It may be paid<br>in cash or in kind or may have been paid or<br>promised to be paid. It may have been paid in<br>18
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lump sum in advance covering the period for<br>which the premises is let out or sub-let or it<br>may have been paid or promised to be paid<br>periodically. Since payment of rent or<br>monetary consideration may have been made<br>secretly, the law does not require such<br>payment to be proved by affirmative evidence<br>and the court is permitted to draw its own<br>inference upon the facts of the case proved at<br>the trial, including the delivery of exclusive<br>possession to infer that the premises were<br>sub-let.”<br>48. In our considered opinion, the aforesaid<br>principle of law fully applies to the case at hand<br>against the respondent due to his contradicting<br>stand and by admitting Joynal Mullick’s presence in<br>the suit shop but not being able to properly prove<br>the nature and the capacity in which he was sitting<br>in the suit shop.<br>49. In view of the foregoing discussion, we have<br>formed an opinion that the appellants were able to<br>prove the case of sub-letting against the<br>respondent.<br>19
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50. We cannot thus concur with the reasoning and<br>the conclusion arrived at by the High Court and<br>instead prefer to agree with the conclusion of the<br>Trial Court insofar as it relates to the ground of<br>sub-letting. In view of this, it is not necessary to<br>examine the other ground relating to making of<br>unauthorized construction by the respondent in the<br>suit shop.<br>51. In the result, the appeal succeeds and is<br>allowed. The impugned judgment is set aside and<br>that of the Trial Court is restored.<br>52. The respondent is, however, granted three<br>months’ time to vacate the suit shop, subject to the<br>respondent filing in this Court a usual undertaking<br>that he will deposit the entire arrears of rent up to<br>the date as per the agreed rate within one month<br>and will also deposit the mesne profits for a period<br>of three months up to the date of vacation in<br>20
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advance at the agreed rate and would vacate the<br>suit shop on or before 30.04.2018.<br>………...................................J.<br>[R.K. AGRAWAL]<br>…...……..................................J.<br>[ABHAY MANOHAR SAPRE]<br>New Delhi;<br>January 25, 2018<br>21
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