Non-Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.9198 of 2017

(Arising out of SLP (C) No.24689 of 2011)

BHAIRON SAHAI (D) THROUGH LRS. .... Appellant(s)

Versus

BISHAMBER DAYAL (D) THROUGH LRS. & ORS.

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.

The  petition  filed  under  Section  14  of  the  Delhi  Rent

Control Act, 1958 by the Appellant-Landlord for eviction of the

Respondents was allowed by the Rent Controller.  The Tribunal

set aside the Judgment of the Rent Controller in the appeal filed

by the Respondents. The second appeal filed by the Appellant

was dismissed by the High Court of Delhi, aggrieved by which

the Appellant has filed the present appeal.     

2. Respondent No.1 became the tenant of a shop measuring

138  square  feet  in  Karol  Bagh,  New  Delhi  after  a  family

partition in the year 1963 on payment of a rent of Rs.54/- per

month.   The  Appellant  purchased  the  premises  from  its

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previous owner in the year 1974.  The Appellant issued a notice

terminating the tenancy on the ground that Respondent No.1

had parted  with  the  possession  of  the  premises  without  his

consent  and that  he  had caused substantial  damage to  the

premises.   In the Eviction Petition,  the Appellant stated that

Respondent  No.1  had  sub-let  a  part  of  the  premises  to

Respondent No.2 who was running a ration shop.  In the written

statement, the Respondents denied the averments made in the

Eviction Petition and stated that the ration shop was being run

by Respondent No.1, though the licence was in the name of

Respondent No.2.  It was further stated that in a portion of the

premises,  Respondent  No.1 was having a  provision store  for

selling pulses, rice,  tea, oil,  ghee, etc.  and the other portion

was being utilized for a fair price shop.  It was also stated that

the entire premises was being used as a fair price shop after

01.10.1976 and that Respondent No.2 was taken as a partner

by Respondent No.1 w.e.f.  01.01.1977.   The Rent Controller

held that Respondent No.2 was given a Food Grain Licence in

March, 1964 in his own name and that Section 4 of the Delhi

Rationing  Order,  1964  prohibits  any  person  other  than  the

licensee from running the shop.  After examining the provisions

of  the  Delhi  Rationing  Order,  1964  and  after  drawing  an

adverse inference against Respondent No.1 for not producing

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the relevant records, the Rent Controller held that Respondent

No.1 was not running the fair price shop.  The Rent Controller

also held that Respondent No.2 was running his business as an

Authorised  Ration  Distributor  of  a  fair  price  shop  in  the

premises.  It was further held that Respondent No.1 parted with

possession of the shop in favour of Respondent No.2 without

the consent of the landlord.  The Rent Controller decided the

Eviction Petition  in  favour  of  the Appellant  and directed  the

Respondents to hand over vacant peaceful possession of the

shop to the Appellant within a period of two months.   

3. The Rent Control Tribunal, Delhi on a re-appreciation of the

evidence on record reversed the findings of the Rent Controller

and  concluded  that  it  was  Respondent  No.1  and  not

Respondent No.2 who was carrying on the business of a fair

price  shop.   The High  Court  confirmed the  judgment  of  the

Appellate Tribunal by holding that it had not been proved that

Respondent  No.2  was  in  exclusive  possession  of  the  suit

premises.    

4. The point that arises for our consideration in this case is

whether  a  landlord  is  entitled  to  seek  eviction  of  the

Respondents on the ground of parting with possession without

his consent.   Admittedly, Respondent No.1 is the tenant.   A

fair  price  shop  is  being  run  in  a  portion  of  the  premises.

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Respondent No.2 is  the licensee of  the fair  price shop since

1964.  A fair price shop under the Delhi Rationing Order is not

transferable. It is the case of the Respondents that a portion of

the premises was being utilized for running the fair price shop

for  which Respondent No.2 held the licence.   The remaining

portion of the premises was being used by Respondent No.1 for

carrying  on  business  of  a  provision  store.  Respondent  No.1

entered into a partnership with Respondent No.2 in the year

1977.  Undisputedly, all this was done without the consent of

the Appellant.  

5. Section 14 (1) (b) of the Act provides that a tenant is liable

for eviction if he sub-lets, assigns or otherwise parts with the

possession of the premises without the consent of the landlord.

In  case  the  Rent  Controller  decides  that  the  partnership

entered into by the tenant is not genuine and there is parting

of the possession, Section 14 (4) deems it to be sub-letting. The

principal  contention  of  the  Appellant  before  us  is  that  the

tenant had parted with the possession of a part of the 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) he is

entitled to evict the tenants.   

6. Mr.  Huzefa  Ahmadi,  learned  Senior  Counsel  for  the

Appellant in support of his submission that the Respondent No.

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1 is liable for eviction as he parted with possession in favour of

Respondent No.  2 without the consent of  the landlord relied

upon a judgment of this Court in Munshi Lal v. Smt. Santosh

and Others    (Civil Appeal No. 1327 of 2017, decided on

01.02.2017), wherein the scope and purport of Section 14 (1)

(b)  and  Section  14  (4)  was  examined.  This  court  held  as

follows:

“11. Section 14(1) of the Act reads as under:

(14)(1)  Notwithstanding  anything  to  the  contrary contained in  any other  law or  contract,  no order  or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:

Provided  that  the  Controller  may,  on  an  application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:

(a) That the tenant has neither paid nor tendered the whole  of  the  arrears  of  the rent  legally  recoverable from him within  two months of  the date on which a notice  of  demand  for  the  arrears  of  rent  has  been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882;

(b)  That the tenant has,  on or  after  the 9th day of June, 1952, sub-let, assigned or otherwise parted with the  possession  of  the  whole  or  any  part  of  the premises without obtaining the consent in writing of the landlord.

Clause (b) of the proviso to Sub-section (1) provides for the eviction of a tenant who has sub-let, assigned or  otherwise  parted  with  the  possession  of  the premises without obtaining the consent in writing of the landlord.

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Section 14(4) reads as follows:

(14)(4). For the purposes of Clause (b) of the proviso to Sub-section (1), any premises which have been let for  being  used  for  the  purposes  of  business  or profession shall  be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person  to  occupy  the  whole  or  any  part  of  the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.

This Sub-section provides that if a person is allowed to occupy the  premises  ostensibly  as  a  partner  of  the tenant but really for the purpose of sub-letting it, such an arrangement would be deemed to be sub-letting.

Therefore,  if  the  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.

The 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 the consent in writing from the landlord. In other words, the requirement of obtaining  the  consent  in  writing  of  the  landlord  is retained as a pre-requisite even for  the 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  the premises  or  whether  the  partnership  is  a  ruse,  the requirement of consent in writing as in Sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the Partnership deed.”

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7. On  the  other  hand,  Respondent  No.  1  submits  that

entering  into  a  partnership  per  se does  not  amount  to

sub-letting.  It is also the case of the tenant that he did not part

with  possession  of  the  premises  as  he  was  running  the  fair

price shop right from 1964 though the licence was in the name

of Respondent No.2.   According to the tenant,  there was no

need to seek consent as there was no parting with possession

of even a part of the premises.   Mr.S.B. Upadhyay, learned

Senior Counsel appearing for the Respondents relied upon the

judgment of this Court in Parvinder Singh v. Renu Gautam

and Others (2004) 4 SCC 794 wherein it  was held that a

tenant cannot necessarily be said to have sub-let the premises

or parted with the possession thereof in favour of his partners

merely  because  he  had  entered  into  a  partnership.   It  was

further held that a tenant may not be said to have parted with

possession  if  he  is  actively  associated  with  the  partnership

business  and  retains  the  user  and  control  over  the  tenancy

premises.   

8. In the present case, it is clear from the evidence on record

and the judgments of  the courts  below that  there has been

parting of possession by Respondent No.1 of a portion of the

premises  in  favour  of  Respondent  No.2  without  taking  the

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consent of the Appellant.  The Rent Controller found that from

1964 onwards, there were two shops being run in the premises.

One portion of the premises was being used for  a fair  price

shop, the licence of which was in the name of Respondent No.2.

The other portion was being used as a provision store which

was  being  run  by  Respondent  No.1.   The  averments  in  the

Eviction  Petition  would  disclose  that  the  Appellant  alleged

parting  of  possession  by  Respondent  No.1  in  favour  of

Respondent No.2 between the years 1964 and 1976.  The other

allegation is that Respondent No.1 entered into a partnership

with Respondent No.2 in 1977.  No consent was taken from the

Appellant for either parting with possession of a portion of the

premises or for entering into a partnership.   

9. Eviction can be sought by a landlord if the tenant sublets,

assigns or otherwise parts with possession without his consent.

We  are  of  the  opinion  that  the  Rent  Controller  was  right  in

finding that Respondent No.2 was carrying on the business as

Authorised Ration Distributor in a portion of the premises from

1964 as he was the licensee. Parting with the possession of the

premises  without  consent  of  the  landlord  was  sufficient  for

eviction  of  the  tenant  without  getting  into  the  question  of

sub-letting or assignment.

10. No consent was sought before the Respondents entered

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into partnership.  This partnership was formed in 1977 after the

business of a fair price shop was being carried on from 1964.

The  Rent  Controller  held  that  it  is  not  necessary  to  decide

about  the  genuineness  of  the  partnership  in  the  Eviction

Petition.  Even the Appellate Tribunal did not adjudicate on the

partnership between the Respondents.  The High Court refers

to the partnership deed dated 01.01.1977 only for the purpose

of holding that Respondent No.2 was permitted to use a portion

of the premises  but was not given exclusive possession.   

11. The question whether by entering into a partnership deed

dated 01.01.1997, the first Respondent sublet the premises to

the second Respondent does not arise for consideration in this

case.  Hence, the judgment in  Parvinder Singh’s case and

other judgments cited by the learned Senior Counsel for the

Respondents are not relevant.    

12. In view of the above, the appeal is allowed on the ground

of  parting  of  possession  by  the  tenant/Respondent  No.1  in

favour of Respondent No.2 without consent of the landlord. The

Respondents are directed to vacate the premises within two

months from today.   

13. During the pendency of present appeal in this Court, there

was a direction to the tenant to enhance the rent and deposit

the same in this Court.  We are informed that an amount of

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Rs. 16,500/- is lying in the Registry.  The Appellant is entitled to

receive the same. I.A. No. 6 of 2016 filed by him for the said

purpose is allowed.          

              ........................................J                 [S. A. BOBDE]

                  ..……................................J                                                   [L. NAGESWARA RAO]

New Delhi, July 18, 2017

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