Prasenjit Mandal, J.@mdashThis second appeal is directed against the judgment and decree dated August 12, 2009 passed by the learned Additional District Judge, Fast Track Court-III, Sealdah in Title Appeal No.30 of 2006 thereby affirming the judgment and decree dated January 25, 2006 passed by the learned Judge, Small Causes Court, Sealdah in Title Suit No.1 of 1991. The plaintiff / appellant herein being the sole trustee to the Trust Estate of R.N. Mukherjee is the landlord in respect of the premises in suit as described in the schedule to the plaint and the defendant / respondent was the tenant in respect of the said premises in suit at a rental of Rs.9,035/- as per English Calendar Month. The plaintiff filed the suit for ejectment, recovery of khas possession, mesne profits, damages and other reliefs against the defendant contending, inter alia, that the defendant / respondent sublet the premises in suit to other companies. They made additions and alterations of the premises in suit without the consent of the landlord and defaulted in payment of rent for the month of July and August 1990. The plaintiff served a notice to quit upon the defendant, but the defendant did not vacate the premises in suit. So, the plaintiff / appellant has filed the suit for the reliefs already stated.
2. The defendant / respondent is contesting the said suit by filing a written statement denying the material allegations contained the plaint. The tenant has contended that the alleged notice to quit was bad in law, invalid and not sufficient. The plaintiff / appellant issued another notice of eviction subsequently. The allegation of subletting for consideration without the consent of the landlord was not true. The tenant is not a defaulter as claimed by the plaintiff and so, the suit should be dismissed.
3. The learned Trial Judge dismissed the suit on contests without costs. Being aggrieved, the plaintiff / appellant preferred an appeal being Title Appeal No.30 of 2006 and that title appeal was also dismissed on contests without costs thereby affirming the judgment and decree passed by the learned Trial Judge. Being aggrieved, this second appeal has been preferred by the plaintiff / appellant.
4. At the time of the admission of the appeal, the following substantial questions of law have been framed:-
(a) Whether the learned courts below committed substantial error of law in dismissing the suit on the ground of subletting by overlooking the fact that the alleged subtenant is a separate entity under the provisions of the Companies Act and as such, the fact that some of the directors of the said sub-tenant is also the directors of the defendant is immaterial?
(b) Whether the learned courts below committed substantial error of law in holding that theplaintiff failed to prove that exclusive possession was given to the subtenant by overlooking the admission made by the defendant in the written statement wherein specific plea was taken that possession was given to the subtenant with the prior consent of the plaintiff on payment of huge amount but such fact could not be proved by the defendant?
(c) Whether the learned court of appeal below committed substantial error of law in holding that the plaintiff failed to prove passing of any monetary transaction for the creation of the alleged sub-tenancy by overlooking the fact that in this type of a transaction, the plaintiff is under no obligation to prove such passing of any monetary transaction for such secret deal?
5. Upon hearing the learned Advocates for the parties and on going through the materials on record, I find that admittedly, the defendant / respondent was a tenant under the plaintiff in respect of the premises in suit as described in the schedule to the plaint at a monthly rental of Rs.9,035/- per month payable according to English Calendar Month. Practically, the question of sub-tenancy is involved in the second appeal. Admittedly, M/s. Strassenburg Pharmaceuticals Pvt. Ltd. (henceforth shall be called as ''Strassenburg'' for brevity) is in occupation of a room of the premises in suit. The defendant / respondent has contended that this company is a sister concern of the defendant / respondent and directors of the two companies are almost the same. Moreover, the plaintiff / appellant gave consent to allow the Strassenburg to occupy a room to keep some records and the defendant / respondent paid a huge money in advance to the plaintiff on a clear understanding. Moreover, the plaintiff gave the consent to take electrical lines for the said concern and so, the allegation of subletting is not true.
6. In order to decide the question of subletting, the Hon''ble Apex Court has laid down the legal position in the case of Celina Coelho Pereira (Ms) & ors. v. Ulhas Mahabaleshwar Kholkar & ors. at paragraph no.25 and the legal proposition as narrated in paragraph no.25 is quoted below:-
25. The legal position that emerges from the aforesaid decisions can be summarised thus:
(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving sub-letting is on 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 shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
7. Another decision of the Apex Court in the case of
18. It is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of the scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property.
19. It would be impossible for the landlord to prove, by direct evidence, the arrangement between the tenant and sub-tenant. It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. Such arrangement which may have been made secretly, cannot be proved by affirmative evidence and in such circumstances, the court is required to draw its own inference upon the facts of the case proved at the enquiry. Delivery of exclusive possession by the tenant to a stranger to the landlord and without the prior permission of the landlord is one dominant factor based on which the court could infer as to whether the premises were sub-let.
8. While deposing on behalf of the plaintiff, the P.W. 1 has stated that he does not know what is the relationship between the defendant-company and Strassenburg. But, he has denied that the Strassenburg is a sister concern of the defendant/tenant. This statement is not enough to decide that the said concern is a subtenant under the defendant.
9. On the other hand, while deposing on behalf of the defendant, the D.W.1 has made assertive statement to the effect that Strassenburg is a sister concern of the defendant-company and that the directors of the two concerns are almost the same. It has kept certain papers at the tenanted premises. It is also the specific statement of the D.W.1 that the defendant-company is in exclusive possession of the entire tenanted portion and no possession had been transferred or parted with to the said Strassenburg. Nor does Strassenburg possess any specific portion of the premises in suit. The P.W. 1 also could not state that the so-called sub-tenant was in possession of the specific portion of the premises in suit. The evidence on record proves that the plaintiff gave consent for installation of a separate electric meter in the name of Strassenburg and the plaintiff never raised any objection for separate electric connection in the name of Strassenburg. Unless and until, the consent was given, no separate electric connection could be installed in the name of such a company. So, the specific contention of the defendant that the electric connections were obtained separately for the defendant and Strassenburg with the consent of the plaintiff on an understanding is fortified by direct and circumstantial evidence. Mr. Banerjee has contended that the tenant has failed to prove that the tenant had paid a sum of Rs.1,50,000/- to the landlord for giving consent to have an electric line at the premises in suit in the name of Strassenburg. So, no consent has been proved. It is difficult to accept such contention. Since, Strassenburg is keeping some documents in the Office of the defendant contending that it is a sister concern of the defendant and that the Directors of the two companies are almost the same, I am of the view that it has not been proved at all that Strassenburg is in exclusive possession of any portion of the premises in suit. There is no evidence at all on behalf of the plaintiff that such possession in favour of the so called sub-tenant had been given in lieu of compensation or any rent.
10. Mr. Banerjee has referred to the decision of Siddik Mahomed Shah v. Mt. Saran & ors. reported in AIR 1930 P C 57(1) and thus, he submits that when a new plea raised and such plea was not raised earlier in defence, no evidence can be looked upon it. This decision, I hold, has no relevance with the present dispute before us on the ground that the contention raised by the respondent as to subletting had already been recorded above and such contention was taken in their written statement.
11. Both the Courts below have analysed the evidence in this regard and have come to the same conclusion on the matters (i) exclusive possession of a part of the premises in suit by Strassenburg has not been proved, (ii) the tenant has legal possession over such premises in suit alleged to have been parted with, (iii) the landlord gave consent to Strassenburg to have a separate electric meter in the suit premises, and (iv) the landlord has failed to prove that any amount had been paid by Strassenburg to the tenant for subletting referred to above and I do not find any perversity in the said findings.
12. Mr. Haradhan Banerjee, learned Advocate appearing for the appellant has referred to the decision of
13. Mr. Banerjee has also referred to the decision of
14. Mr. Banerjee has also referred to the decision of D.R. Rathna Murthy v. Ramappa reported in 2010(6) S 769 and thus, he submits that the High Court can interfere with the findings of the fact even in the Second Appeal, provided the findings recorded by the Courts below are found to be perverse. Although, there is no absolute bar on the re-appreciation of evidence in second appeal, such a course is permissible only in exceptional circumstances.
15. This is with regard to the jurisdiction of the Hon''ble Court in entertaining the second appeal.
16. Mr. Banerjee has also referred to the decision of Smt. Minati Sen v. Mr. Kalipada Ganguly reported in (1997) 2 CHN 487, particularly the paragraph no.s 12, 13 & 14 and thus, he submits that simply because no step was taken by the landlord against the tenant for inducting a sub-tenant for a long time, the right to evict the tenant on the ground of subletting cannot be said to have been waived. Mere knowledge of subtenant is not enough unless the written consent of the landlord had been obtained. agree on this proposition.
17. Relying on the decision of
18. A Division Bench of this Hon''ble Court in the case of
19. So far as allowing Strassenburg to keep the documents without a fixed place to keep on is concerned, I am of the view that this cannot be taken as an admission on behalf of the defendant on the matter of subletting. Admission, if any, is to be considered as a whole and the same cannot be taken up in a dissected manner in view of the decision of 1915 Privy Council 2. The defendant-company keeps control over the possession of the premises in suit as a whole as per evidence of the D.W.1. In such a situation according to the decision of (1987) 2 SCC 538, there is no subletting at all.
20. In that view of the matter, I am of the opinion that the appellant has failed to prove that exclusive possession had been given to Strassenburg by the tenant without prior consent of the landlord and that the so-called possession was given in lieu of any compensation or rent. Though, as per decision of
21. In the above facts and circumstances, the concurrent views arrived at by the Courts below which do not suffer from perversity, should not be interfered with in the second appeal. Accordingly, the Courts below have rightly held that the ground of subletting has not been proved by the plaintiff / appellant. So, there are no substantial errors of law in coming to the conclusion by the courts below on the matter of subletting. The substantial questions of law are, thus, answered.
22. In the result, this second appeal fails to succeed and is, therefore, dismissed.
23. However, there will be no order as to costs.
C.A.N. No.5512 of 2010:
24. So far as the C.A.N. application No.5512 of 2010 is concerned, this C.A.N. application has been filed for directing the landlord / appellant to restore the service of elevator (lift) forthwith and to see that the same is not interrupted deliberately and willfully not kept stalled and for other reliefs. This application has not been specifically mentioned before this Bench. Since, the second appeal is dismissed and the respondent is to possess the premises in suit. The tenant is at liberty to move the appropriate authority to get such type of benefits as were being enjoyed by it previously.
25. This application is disposed of accordingly.
C.A.N. No.6731 of 2012:
26. This application has been filed by the respondent for keeping the appeal no. S.A. 211 of 2010 in abeyance till the disposal of the instant application. Since the appeal is disposed of today, this application is become infructuous and, therefore, the same is rejected. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
