Sunita Agarwal, J.
Heard Shri Arvind Srivastava, learned counsel for the revisionist and Shri M.K. Gupta, learned counsel for the respondent.
The present revision has been preferred against the judgment and order dated 22.1.2001 passed by the Xth Additional District Judge/Small Causes Court10, Gorakhpur in Small Causes case no. 1/92(Shri Prakash Bhalotiya Vs. Indra Prakash Goyal).
The suit for eviction on the ground of default in payment of rent was filed by the revisionist landlord with respect to shop no.4 situated in Mohalla Begpur Muglani, Ram Prasad Bholotia Market, District Gorakhpur.
The suit was filed on the ground that shop in question was given on rent for a period of five years at the rate of Rs. 330/ per month and period of five years had expired on 1.7.1985. As such the tenancy of the respondent came to an end. The other grounds were that premises in dispute was assessed for the first time in the year 1988 and the rent of the building was more than Rs. 2000/per month as such building in question is exempted from the provision of U.P. Urban Buildings( Regulation of Letting, Rent and Eviction) Eviction Act 1972( hereinafter referred to as the ''Act 1972'') in view of section 2(1) (g) and section 2(2) of the Act. More over the tenant has not paid rent and is doing business of sale of medicines in partnership without the permission of the landlord. Notice dated 9.7.1991 determining the tenancy on the ground mentioned above was served upon the tenant on 9.7.1991. Despite service of notice, neither tenant had vacated the premises nor paid rent with water tax and house tax. The small causes court framed various issues and after discussion of the evidence on record dismissed the suit.
Assailing the judgment and order passed by the Small Causes Court dated 22.1.2001 dismissing the suit, learned counsel for the revisionist submitted that court below had committed illegality and order passed by it calls for interference in the supervisory jurisdiction under section 25 of the Provincial Small Causes Court Act( hereinafter referred to as the Act) .
Shri Arvind Srivastava,learned counsel for the revisionist has made following submissions:
1) Notice was given by the Tax Department Nagar Palika, Gorakhpur in the year 1976 tentatively assessing the premises no. C/129/128 which was cancelled after the premises was surveyed in the year 1978. Again on the basis of survey made in the year 1978, the provincial assessment was finalized on 31.3.1984 without hearing the landlordrevisionist. On appeal filed against the said order, the matter was remitted back and during the pendency of the appeal,out of the remaining vacant shop, one was given on rent to the respondenttenant, namely, Indra Chandra Goel. Thus respondenttenant is not in occupation of the premises at the time of assessment made on 31.3.1984. Upon remand, fresh assessment was made on 8.8.1988 and as such the date of first assessment of the building would be 8.8.1988. The assessment made in the year 1988 can not relate back to the year 1976. Thus taking into account the year of assessment 1988, shop in dispute is exempted under sections 2(2) of the Act.
2) The premises No. C/129/128 in which the disputed shop no. 4 occupied by the respondent tenant exist has been assessed for more than Rs. 2000/and, therefore, the premises as a whole including the shop in dispute is exempted from the applicability of 1978 Act.
3) Respondenttenant has sublet the premises without permission of the landlord by entering into partnership with two persons who are not members of his family. Further the business of medicine is being run in the name of Firm M/s Durga Pharma. The shop was given on rent to the respondenttenant namely Indra Chandra Goyal and not to the firm M/s Durga Pharma. Now the shop in question is occupied by the firm M/s Durga Pharma.
4) Tenancy was for fixed term and the term of tenancy had expired on 1.7.1990. Moreover, the tenant had not paid rent and damages from April 1990 to March 1991.
While assailing the order passed by the trial court, learned counsel for the revisionist submits that trial court had grossly erred in law in treating the year of first assessment of the premises in question, the year 1976. It further erred in law in holding that monthly rent of the shop occupied by the tenantrespondent would only be seen to determine as to whether the building in question is exempted from the provisions of the Act.
On issue of subtenancy the court below had not considered properly the statement of tenant in which he had admitted that taxes were paid by one Mata Deen and Smt.Uma Devi from the business of firm M/s Durga Pharma. On the question of default in payment of rent, the court below had committed material irregularity and illegality in holding that tenant is entitled to benefit of section 20(4) of the Act, though there is no evidence on record that landlord had ever refused to accept the rent tendered by the tenant and moreover, there is shortfall in payment/deposits made by the tenant before the first date of hearing. He further submits that court below has wrongly adjusted the deposits made under section 30 (1) of 1972 Act. The finding that there is no default in payment of rent and the tenant is entitled to the benefit of section 30 (1) of the Act is totally perverse and contrary to the records.
Refuting the submissions made by the learned counsel for the revisionist Shri Manoj Gupta, learned counsel for the respondenttenant drawn attention of the Court to the provisions as contained in Explanation I (a) to subsection (2) of section 2 of the Rent Control Act. He submits that for the purposes of exemption from the operation of 1972 Act, the date of construction of the building has been explalned in Explanation I (a) to subsection (2) of Section 2 of the Act. As per the said provision, the construction of a building shall be deemed to have completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case building subject to assessment, the date on which the first assessment thereof comes into effect, however, where the said dates are different, the earliest of the said dates. While elaborating his submissions he submits that in the instant case construction of the building in question shall be deemed to have completed on the date on which first notice of assessment was given to the landlord i.e. the year 1976.
Submissions of the learned counsel for the revisionist is that the final order of assessment was passed on 8.8.1988, notice given by the local authorities in the year 1976 is of no consequence is totally misconceived and cannot be accepted.
In so far as submission of the learned counsel for the revisionist that as a building as a whole has been assessed for more than Rs.2000/ same would be exempted from the operation of the 1972 Act and the tenant is not entitled for any protection of Rent Control Act cannot be accepted at all. He categorically submitted that for the purpose of suit in question ''building'' means the shop in occupation of the tenant only. Clause (g) of section 2 (1) of the Act applies to building in occupation by the concerned tenant and the tenement which is subject matter of dispute in a given case would be considered as an independent unit under the scheme of the Act. The other portion of the building completed which had been let out the said tenancy cannot be taken into account and rent cannot be added with that of the accommodation in a question for the purposes of determining ceiling limit of the Act as contained in Clause (g) of 1972 Act.
On the question of subtenancy he submits that from the plalnt averments itself it is clear that revisionistlandlord has not come out with clear case and there is specific pleadings that who has been inducted as subtenant. No case has been made out for the deemed tenancy so as to evict the tenant. There is no question of any clandestine arrangement on the stray statement of the tenant made in his cross examination, the same cannot be used against him. The specific and consistent stand of the tenant has been that since the beginning that he is sole owner of the firm, namely, M/s Durga Pharma and is in occupation of premises in question and is carrying on business of sale of medicines from the same. The categorical statement of the tenant in his examination in chief that he is paying income tax from his business and he has shown himself as proprietor (sole owner) of firm, namely, M/s Durga Pharma. Moreover said tenancy as alleged being a deeming fiction has to be proved beyond doubt by the revisionistlandlord and burden of proof is upon the landlord and in the instant case landlord having failed to discharge the same, court below has rightly decided the issue against the landlord.
On the issue of deposits of rent, counsel for the respondent submits that tenant had tendered the rent till March 1990. From April 1991, the landlord had refused to accept the rent. The rent was tendered through money orders prior to receipt of the notice and money orders coupons are on record. When the landlord had refused to accept the money order the rent was deposited in the Court under section 30 of the Rent Control Act. The court below had considered the documents on record, namely, money order receipt and coupons and also application moved by the tenant for deposits of rent and order passed under section 30 (1) of 1972 Act. The deposits were made under section 30 of the Act and further during pendency of the suit benefit of section 20(4) of the Act was rightly accorded to the tenant.
Lastly he submits that finding recorded by the trial court are the findings of fact on the basis of evidence on record. This court in its limited revisional jurisdiction cannot reappreciate the evidence on record. All the points raised by the counsel for the revisionist have been dealt with by the court below taking into consideration of the provision of law and oral and documentary evidences on record. The findings recorded by the trial court do not require any interference by this court.
In support of their submissions the learned counsel for the parties relied upon several judgments of Apex Court which would be considered hereinafter.
Considered the submissions of the learned counsel for the parties and perused the judgments relied upon by them and judgment of the court below.
So far as the first point raised by the learned counsel for the revisionist that building is exempted from operation of 1972 Act for the reason that it was assessed for the first time on 8.8.1988. It may be seen that court below has also recorded that in the lease deed plalntiff/landlord had stated that shop was constructed in the year 1970 and was assessed for the first time in April 1976. It is further recorded that the appeal filed by the plalntiff/landlord was with respect to the quantum of tax assessed by the authorities. The earlier order of assessment was modified and annual valuation of the building was reassessed on 8.8.1988.
In order to decide the controversy raised by the learned counsel for the landlord/revisionist, reference may be taken to Explanation I (a) to subsection (2) of section 2 of the Act which provides that the construction of the building shall be deemed to have been completed on the date on which the completion thereof is reported to or "otherwise recorded" by the local authority having jurisdiction. Subsection (2) of Section 2 of the Act is applicable in case of building for a period of 10 years from the date on which construction is completed.
A conjoint reading of both the provisions clearly indicates that as soon as completion of building is either reported or "otherwise recorded" by the local authority having jurisdiction, deeming fiction will come into play and construction of the building shall be deemed to have been completed.
Admittedly in the present case, notice for assessment of tax was issued by the local authorities in the year 1976, this fact itself is sufficient to hold that construction of the building was recorded by the local authority having jurisdiction and,therefore, date of completion of construction of the building would be the year 1976 and not the year 1988 as asserted by the counsel for the revisionist.
The contention of the learned counsel for the revisionist is that previous assessment order was set aside and reassessment order was passed in the year 1988 and, therefore, the date of completion of building should be 8.8.1988 cannot be accepted.
Reference may be made to the decisions of the Apex Court relied upon by the learned counsel for the respondent in (1997) 9 SCC 298, Suresh Kumar Jain Vs. Shanti Swarup Jain and others; 1995 Supp. (3)SCC 413, Surendra Kumar Jain alias Sunni Vs. Shanti Swaroop Jain and others and judgement of this court dated 28.8.2012 in Writ Petition No. 42223 of 1999.
In Suresh Kumar Jain (supra) building was inspected and a report was filed recording the fact of completion of construction. Apex Court has considered the import of the expression "otherwise recorded" used in Explanation I to Section 2 (2) of the Rent Control Act and held that such recording of the date of completion of the tenanted premises in question fully satisfied the recording of deemed date of construction under Section 2 (2) of the U.P. Rent Control Act and it is not necessary to investigate whether for the purpose of assessment rates and taxes of a building inspection of the building had been done strictly in accordance with the Municipalities Act.
In Surendra Kumar Jain alias Sunni(supra) it was held that notice for assessment given by the Municipal Authorities should be held to be the date when the Municipal Authorities had already taken note of the construction of the building, since that date is the earliest of the dates as referred to in ExplanationI (a).
Same view was taken by this court in its judgement dated 28.8.2012 in writ petition no. 42223 of 1999.
In view of the above discussion, The issue decided by the trial court and the finding recorded by it calls for no interference by this court.
The second question raised by the learned counsel for the revisionist is that as the rent of the building in question is more than Rs. 2000/ ,therefore, same is exempted under the provisions of section 2(1)(g) of Rent Control Act. The contention of the learned counsel for the revisionist is that for the purposes of section 2(1) (g) of the Act, rent of entire building including other shop in occupation of other tenant has to be taken into consideration for computing monthly rent of the building and further notice has been issued for more than Rs. 2000/. Therefore, the same is exempted. The court below considered the submissions of the plalntiff/landlord and after perusal of the same has rightly held that for the purposes of section 2 (1) (g) of the Rent Control Act, monthly rent of the shop in dispute only is to be taken into account which is admitted to less than Rs. 2000/, therefore, provisions of Rent control Act would apply in the instant case.
Learned counsel for the revisionist has relied upon the judgement of the apex court in (1987) 2 SCC 707, Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and others and B. Kandasamy Reddiar Vs. O. Gomathi Ammal reported in (2001) 4 SCC 394 in order to submit that "part of a building" is entire building. The controversy in this case relate to eviction suit filed by the landlord and the word "building" has been interpreted with reference to the facts of those cases. After perusal of the above judgment it is clear that ratio lald down in the same is not applicable at all in the instant case.
On the other hand, learned counsel for the respondent relied upon the judgment in Ajai Kumar Jaiswal Vs. Shanti Singh reported in 1998 (3) AWC 1792 and Kuldeep Singh Vs. Rent Control & Eviction Officer reported in 1997(1) ARC 376.
In Ajai Kumar Jaiswal( supra) the scope of section 2(1) (g) of the Act was considered and the word ''building'' used in Clause (g) was examined with reference to purpose and object of the Act including the amending Act and examine the entire scheme of the Act. This court has held that Clause(g) applies to a building in occupation of the concerned tenement which is the subject matter of dispute and not to the whole building complex which may be having several separate and independent tenements. The mere fact that another portion in the building complex has been let out to some other tenant at a monthly rent of Rs. 4,500/ will not make the Act inapplicable so far as tenement in dispute. The rent of other tenement cannot be added with that of the disputed accommodation for the purposes of determining the ceiling limit of rent as contained in Clause (g) of section 2 (2)of the Act. The same view was taken by this court in Kuldeep Singh (supra) considering the judgement of the Apex Court 1977 ARC 182 Mohd. Shaft Vs. VIIth Additional District Judge, Allahabad and others.
Thus in view of the settled position of law word "building" with reference to the provisions of Rent Control Act would mean the accommodation which is subject matter of tenancy excluding other portion of the super structure consist of two or more tenement because each tenement would an independent unit distinct and separate from other,the submission of the learned counsel of the revisionist that provisions of Rent Control Act would not apply as the rented building as a whole is assessed for more than Rs. 2000/ is unworthy of acceptance. There is no infirmity in the judgment of the trial court in deciding the said issue against the plalntiff.
Coming to the third submission made by the learned counsel for the revisionist that shop in dispute has been sublet by entering into partnership with Smt. Uma Devi and Mata Deen, who are not the members of the family of the tenant. The shop was given on rent to Indra Chandra Goyal and not to M/s Durga Pharma. Counsel for the revisionist placed reliance upon the statement of respondenttenant in crossexamination that initially in the income tax papers name of Uma Devi and Mata Deen has been shown and the income tax was given accordingly.
Relied upon the said statement, learned counsel for the revisionist submits that in view of the aforementioned admission made by the tenant it would be deemed that he is doing business in partnership in the shop in question in the name of M/s Durga Pharma. Learned counsel revisionist relied upon the judgements of the Apex court to substantiate his argument that induction of the partner or partners in the business would invoke deeming provision of section 12(2) of 1972 Act.
On the other hand learned counsel for the respondent/tenant submits that tenant in his statement had categorically submits that he is sole owner of the firm namely M/s Durga Pharma and the documents of income tax filed by him also suggest that the status of the firm is individual. Even in examination inchief consistent stand of the tenant is that he is sole owner of M/s Durga Pharma and is doing business of sale of medicines from the same. In view of the categorical denial regarding partnership made by the tenant, it will be seen as to whether there was evidence on record to substantiate the contention of the learned counsel for the revisionist.
It is well settled that while the initial onus of proving subletting or transfer of the lease holding is upon the landlord yet once the court is satisfied that there has been transfer of possession, onus may shift on the tenant. Learned counsel for the respondent tenant also relied upon the judgments of Apex Court and submits that even assuming for the sake of arguments that any partnership has been created. This fact itself would not amount to subletting so long as the legal possession remains with the tenant, mere factum of tenant having entered into partnership for the purpose of carrying business in tenancy premises would not amount to subletting.
Having considered the submissions of both the counsels on the question of subletting it would be appropriate to consider the law regarding subletting.
On the question of induction of partnership or partners having entered into by the tenant, the Apex Court in Parvinder Singh Vs. Renu Gautam and others reported in (2004) 4 SCC 794 lald down the test and held that :
"Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If a tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant."
The judgments relied upon by the learned counsel for the revisionist being considered below have no relevancy in the facts and circumstances of the instant case.
In 2004(7) SCC 1 Singer India Ltd. Vs. Chander Mohan Chadha and others, the fact of the case was that an American company to whom shop was given on rent parted with the possession of the premises in favour of Indian Company. In 2010 (1) SCC 217, Celina Coelho Pereira (Ms) and others Vs. Ulhas Mahabaleshwar Kholkar and others the facts are that the original tenant without permission or consent of the landlord has transferred/sublet tenancy interest in the premises to another and transferee/sublessee was exclusively running the business in the said rented accommodation, building was let out to the tenant for grocery shop and that no grocery shop was being run by the tenant in the said premises. In the case Harish Tandon Vs. Additional District Magistrate, Allahabad U.P. and others reported in (1995) 1 SCC 537 the position was that original tenant admitted that he had inducted his soninlaw as one of the partner for carrying business in textiles in the disputed premises. So controversy in all three cases relied upon by the learned counsel for the revisionist is different from the facts of the present case.
The legal position as emerged from the judgments relied upon by the learned counsel for the respondent in 2008 (7) SCC 722, Nirmal Kanta (Dead) Through LRS. Vs. Ashok Kumar and another; (2005) 1 SCC 481 Mahendra Saree Emporium (II) Vs. G.V. Srinivasa Murthy; Celina Coelho Pereira (Ms.) and others (Supra) and Parvinder Singh (Supra) is that inducting the partner/partners in the business or profession by a tenant by itself does not amount to subletting.
If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be alongwith partners, the tenant may not be said to have parted with possession .
Initial burden of proving subletting is upon the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shift to the tenant to prove the nature of occupation of such third party and that he continues to hold the legal possession in tenancy premises.
In view of the said legal position ,now finding recorded by the court below on the issue of subtenancy may be examined.
The court below recorded the finding of fact that shop in question has been shown ''individual'' in the papers of income tax which were filed by the tenant. The consistent stand of the tenant in his statement is that he has not inducted any partner in the business and carrying on business in the name of M/s Durga Pharma. The court below further recorded that in the notice the landlord had not disclosed the name of the person who has been inducted as partner. The landlord lald much emphasis upon the statement of the tenant in his cross examination and apart from the same there is no document on record to establish that the tenant had inducted any partner or partners after execution of lease deed in the year 1986. The findings recorded by the court below are finding of fact based on appreciation of oral and documentary evidence on record. It is not the case of the revisionist that document filed by him was not taken into consideration while arriving at the said finding.
Counsel for the respondents further relied upon the judgment in Boramma Vs. Krishna Gowda and others reported in (2000)9 SCC 214 to submit that it will not be a sound rule of appreciation of evidence to pick up an answer from the cross examination of a witness and draw inference taking it in isolation. The court must see as to how consistent the testimony of the witness is and as to how that answer fits in with the rest of the evidence and probabilities of the case.
Upon consideration made above, this court is of the firm view that findings recorded by the court below in issue no. 2 regarding subtenancy are finding based on oral and documentary evidence on record and do not suffer from any illegality or perversity.
Now the question of default in payment of rent raised by the learned counsel for the revisionist. While considering the said issue the court below had recorded the finding of fact that rent was tendered by tenant but was refused. Upon refusal, the same was deposited under section 30 of the Rent Control Act. On the question of grant of benefit of section 20(4) of the Act to the tenant, it appears from the judgment of the trial court that only ground taken by the counsel for the landlord was that as the provisions of Rent Control Act are not applicable ,therefore, tenant cannot take benefit of section 20(4) of the Rent Control Act. The said argument was rejected as it has already been held that provisions of Rent Control Act would apply in the instant case .On the issue of default in payment of rent the court below had recorded the finding of fact on the basis of evidence on record that amount was deposited by the tenant during the pendency of the suit as the landlord had refused to accept the same. The said finding being finding of fact calls for no interference by this court.
This apart it may be seen that several grounds were raised by the learned counsel for the landlord and detail chart has been given to assail that finding recorded by the court below and to establish that there was shortfall in payment of tax. All these disputed questions of fact were not raised before the court below and are being raised for the first time in the present revision. It is well settled that jurisdiction of revisional court under section 25 of Provincial Small Causes Court Act, 1887, is supervisory jurisdiction and the court can not reappreciate the evidences and come to a different conclusion.
It may further be noted that as by order dated 20.3.2001 passed by this court while issuing notice to the respondent, this court had called for record of the court below. The court has also perused the record in order to arrive at a conclusion as to whether it should interfere in the finding recorded by the court below. After perusal of the record there is nothing to indicate that any material evidence filed by the revisionist has escaped the attention of the court below. Only argument is that evidences have not been properly considered by the court. The court is aware of the fact that it can not reappreciate the evidence on record. No case has been made out so as to warrant interference by this court in its revisional jurisdiction.
For the reasons stated above the judgment and order dated 22.1.2001 passed by Xth Additional District Judge, Small Causes Court 10 Gorakhpur is hereby affirmed.
Accordingly the revision is dismissed. There shall be no order as to cost.
