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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.4189 OF 2007

Flora Elias Nahoum & Ors. .... Appellants

Versus

Idrish Ali Laskar …. Respondent

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal arises from the final judgment and

final order/decree dated 07.07.2005 passed by the

High  Court  of  Calcutta  in  F.A.  No.416  of  1984

whereby  the  Division  Bench  of  the  High  Court

dismissed the eviction suit  filed by the appellants

against the respondent and set aside the decree for

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eviction passed by the  Trial  Court  in their  favour

and against the respondent.  

2. In order  to  appreciate  the  issues involved in

this appeal, it is necessary to set out the facts in

detail herein-below.

3. The  appellants  are  the  plaintiffs  (landlords)

whereas the respondent is the defendant (tenant) in

the eviction suit out of which this appeal arises.

4. The  appellants  (plaintiffs)  are  the

owners/landlords  of  one  shop  (room)  bearing

premises No.1, Hartford Lane, Calcutta (hereinafter

referred to as “the suit shop”), which was originally

owned  by  Late  Nahoum  Elias  and  Miss  Resmah

Nahoum.  The  present  appellants  are  the

successors-in-interest of the suit shop. They had let

out the suit shop to one - Alfajuddin Laskar on a

monthly  rent  of  Rs.40/-.   In  the  suit  shop,

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Alfajuddin Laskar used to do the business of sale of

eggs under the name “24, Parganas Egg Stores”.  

5. Alfajuddin  Laskar  expired  in  1976.  The

respondent being his son became the tenant of the

appellants  on  same  terms  and  conditions.  The

respondent, however, closed his father's business of

selling  of  eggs  and  started  his  tailoring  business

under  the  name  “New  India  Tailors”  in  the  suit

shop.

6.   In 1978, the appellants filed an Eviction Suit

against the respondent under the provisions of the

West  Bengal  Premises  Tenancy  Act,  1956

(hereinafter  referred  to  as  “the  Act”.  The  eviction

was  claimed  on  four  grounds,  viz.,  default  in

payment  of  monthly  rent,  bona  fide need,

sub-letting  and  lastly,  making  of  unauthorized

construction in the suit shop by the respondent.

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7. The respondent filed the written statement and

denied all the four grounds. Parties adduced their

evidence.  The  Trial  Court,  by  order  dated

30.01.1984, partly decreed the suit. It was held that

so far as the grounds relating to default of rent and

bona fide need are concerned,  both are not made

out  whereas  the  other  two  grounds,  namely,

sub-letting  and  making  of  unauthorized

construction in the suit shop, both stood made out

against the respondent.  

8. In this view of matter, the appellants’ suit was

decreed  in  part  against  the  respondent  and  the

decree for eviction on the ground of sub-letting and

unauthorized construction made by the respondent

in the suit shop was passed. The respondent was

granted six  months’  time  to  vacate  the  suit  shop

and  handover  its  vacant  possession  to  the

appellants.

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9. Being  aggrieved  by  the  said  order,  the

respondent  filed  appeal  before  the  High  Court  at

Calcutta. The appellants, however, did not file any

cross appeal or cross-objection against that part of

the  order  by  which  two  grounds,  viz.,  default  in

payment of rent and  bona fide need were held not

made  out.  The  judgment  of  the  Trial  Court  thus

became final to that extent.

10.  Therefore, the only question before the High

Court was whether the Trial Court was justified in

decreeing  appellants’  suit  on  the  grounds  of

sub-letting  and  making  of  unauthorized

construction in the suit shop.  

11. In other words, the question was whether the

Trial Court was right in holding that the ground of

sub-letting  and  making  of  unauthorized

construction in the suit shop was made out.

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12. The  High  Court,  by  impugned  judgment,

allowed the respondent’s appeal and dismissed the

appellants’ eviction suit. The High Court held that

no ground of either sub-letting or an unauthorized

construction  was  made  out,  hence,  the  suit  was

liable  to  be  dismissed  in  its  entirety.  It  was

accordingly, dismissed.

13. Against  this  judgment,  the  landlords  felt

aggrieved  and  filed  this  appeal  by  way  of  special

leave in this Court.  

14. Heard Ms. Daisy Hannah, learned counsel for

the  appellants  and  Mr.  Zakiullah  Khan,  learned

senior counsel for the respondent.

15. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while  setting

aside of the impugned judgment, we restore that of

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the  Trial  Court  and,  in  consequence,  decree  the

appellants’ suit in part, as indicated below.

16. There  can  be  no  dispute  to  the  legal

proposition that even if the landlord is able to make

out only one ground out of several grounds of the

eviction,  he  is  entitled  to  seek the  eviction of  his

tenant from the suit premises on the basis of that

sole ground which he has made out under the Rent

Act.   

17. In  other  words,  it  is  not  necessary  for  the

landlord to make out all the grounds which he has

taken  in  the  plaint  for  claiming  eviction  of  the

tenant under the Rent Act. If one ground of eviction

is held made out against the tenant, that ground is

sufficient to evict the tenant from the suit premises.

18. As mentioned above, the Trial Court held that

the appellants were able to make out two grounds

for  respondent's  eviction,  namely,  sub-letting  and

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unauthorized construction made by him in the suit

shop.  The  High  Court,  accordingly,  reversed  the

findings on these  two grounds and dismissed the

suit.

19. We  consider  it  proper  to  examine  first,  the

ground of sub-letting with a view to find out as to

whether the plaintiffs (appellants) were able to make

out  this  ground  against  the  respondent.  In  other

words, let us first examine as to whether the Trial

Court was right or the High Court was right on this

issue.  

20. In  order  to  examine,  whether  the  ground  of

sub-letting is made out or not, it is necessary to see

as to how this ground was pleaded and sought to be

proved by the parties.     

21. The appellants, in Para 4 of the plaint, pleaded

the case of sub-letting as under:

“4. The  defendant  after  acquiring right of tenancy in respect of the said shop

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room  after  his  father’s  death,  wrongfully transferred possession of the said shop room to one Joynal Mallick evidently for creating a sub-tenant in his favour in respect of the suit shop room without obtaining the permission and consent of the plaintiffs.”

22. The  respondent,  in  reply  to  Para  4  of  the

plaint,  gave  the  following  reply  in  Para  9  of  his

written statement as under:

“9. The  defendant  denies  the allegations made in paragraph 4 of the plaint and in particular denies the allegations that he  has  transferred  possession  of  the  shop under his tenancy to one Joynal Mullick or anybody as falsely alleged.”

23. It  is  clear  from the  perusal  of  the  pleadings

that  the  case  of  the  appellants  was  that  the

respondent has sub-let and parted with possession

of  the  suit  shop  to  one  Joynal  Mullick  without

appellants’ consent.

24.  So  far  as  the  respondent  is  concerned,  he

simply denied the appellants’ case in para 9 saying

that  he  has  not  sub-let  the  suit  shop to  anyone,

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much  less  to  Joynal  Mullick,  as  claimed  by  the

appellants.

25.  The respondent examined himself as witness

No.1 and examined Joynal Mullick as witness No.2.

26. In  examination-in-chief,  the  respondent

changed his stand and said that he has not sub-let

the  suit  shop to  Joynal  Mullick  but  he  is  in  his

employment. This is what he said:

“It is not a fact that I sublet the shop room in suit to one Jainal Mullick.  Jainal Mullick is in my employment.”

27. The  respondent  further  in  his

cross-examination again changed his stand and in

answer  to  a  specific  question  put  to  him  as  to

whether he has employed any person in his tailoring

business said "no". This was his reply:-

“No.    In  the  tailoring  business  I  have  no employee but the work is done on contract basis.”

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28. The  respondent  then  in  answer  to  another

question put to him as to how many persons work

for you on contract basis in his tailoring business,

his reply was- four persons and out of four,  Joynal

Mullick and Jahangir Mullick were his employees.

This is what he said:-

“Najrul Islam and Sayed, Volunteers – Besides these  persons  there  are  two  other  persons who look after the business in my absence. They are Jainal Mullick and Zahangir Mullick volunteers.   These  two  persons  are  my employee.”

29. The  respondent  then  was  asked  another

question, viz., Did he disclose the name of any of his

employee  while  submitting  the  declaration  form

under the  Shops and Establishment Act, his reply

was “no”. This is what he said:-  

“I  am  the  owner  of  the  tailoring  shop. Volunteers  –  fresh  declaration  has  been submitted about 10/12 days back.   In that declaration  I  have  not  declared  that  these two  persons  Jainal  and  Zahangir  are  my employees.”

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30. The respondent  was then asked last  pointed

question - whether Joynal Mullick is doing business

in the suit shop.  To this, his reply was that Joynal

Mullick  is  his  business  partner.  This  is  what  he

said:-

“I  obtained  the  trade  license  from  the Corporation  of  Calcutta  for  the  business carried  in  the  shop  showing  Jainal  Mullick and Zahangir Mullick as my partners in the business.   It  is  not  a  fact  that  Jainal  and Zahangir are not my employees.”

31. Joynal Mullick then in his evidence said that

he is an employee of the respondent for the last 7/8

years and whatever the respondent (his owner) tells

him to do, he does it while sitting in the suit shop.

He stated that, in his presence, the respondent had

constructed "Macha" in the suit shop. He said that

he joined the business under the name "New India

Tailor".

32. Keeping  in  view  the  statements  of  the

respondent and Joynal Mullick, the question arises

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as to whether a case of sub-letting and parting of

possession  of  the  suit  shop  in  favour  of  Joynal

Mullick, whether whole or in part, is made out.

33. Section  13(1)(a)  of  the  Act  deals  with  the

ground of sub-letting and provides that where the

tenant or any person residing in the premises let to

the tenant without the previous consent in writing

of  the  landlord  transfers,  assigns  or  sublets  in

whole or in part the premises held by him, then it is

a ground for the tenant’s eviction from the tenanted

premises.

34. In our considered opinion, keeping in view the

pleadings and the nature of the evidence adduced

by  the  parties,  the  ground  of  sub-letting,  as

contemplated under Section 13(a) ibid, is made out.

This we say for the following reasons.

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35. In the first place, we find that the respondent

(tenant),  since  inception,  was  taking  inconsistent

stand on the question of sub-letting.  

36. To  begin  with,  he  denied  having  sub-let  the

suit shop to anyone in his written statement. Then,

contrary  to  what  he  alleged  in  the  written

statement, he said in his examination-in-chief that

Joynal  Mullick  was  his  employee.  Then,  again

contrary to this statement,  he said, in next breath,

that  Joynal  Mullick  is  his  partner  in  tailoring

business.  

37. So  far  as  Joynal  Mullick  is  concerned,  he

admitted that he has been sitting in the suit shop

for the last 7/8 years but he has been sitting in a

capacity as an “employee” of the respondent.  

38. In our opinion, the contradictory stand of the

respondent  and  that  too  without  any  evidence

clearly  leads  to  an  inference  that  the  respondent

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was  unable  to  prove,  in  categorical  terms,  as  to

which capacity,  Joynal  Mullick  was sitting  in  the

suit shop - whether as an "employee" or a "business

partner" or in any “other capacity”.  

39. It seems that the respondent was not sure as

to what stand he should take to meet the plea of

sub-letting.   He,  therefore,  went  on  changing  his

stand one after the other and could not prove either.

40. In our view, since the respondent had admitted

the presence of Joynal Mullick in the suit shop, the

burden  was  on  him  to  prove  its  nature  and  the

capacity in which he used to sit in the suit shop.   

41. In  other  words,  if  Joynal  Mullick  was  the

respondent’s employee then, in our view, he should

have proved it by filling a declaration form, which

he  had  submitted  under  the  Shops  and

Establishment Act to the authorities. But it was not

done.  Rather he admitted that he did not disclose

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the name of Joynal Mullick in the declaration form.

That apart, the respondent could have proved this

fact by filing payment voucher, or any other relevant

evidence  to  show  that  Joynal  Mullick  was  his

employee and that he used to sit in the suit shop in

that capacity only.  It was, however, not done.

42. Second, if Joynal Mullick was a partner of the

respondent  in  the  tailoring  business  then  the

respondent could have proved this fact by filing a

copy  of  the  partnership  deed.  However,  he  again

failed to produce the copy of partnership deed.  In

this way, he failed to prove even this fact.   

43. Now so far  as  the  appellants  are  concerned,

they appear to have discharged their initial burden

by pleading the necessary facts in Para 4 and then

by proving it by evidence that firstly, they let out the

suit  shop  to  the  respondent  and  secondly,  the

respondent  has  sub-let  the  suit  shop  to  Joynal

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Mullick,  who  was  in  its  exclusive  possession

without their consent.  

44. In a case of sub-letting, if the tenant is able to

prove  that  he  continues  to  retain  the  exclusive

possession  over  the  tenanted  premises

notwithstanding any third party’s induction in the

tenanted premises, no case of sub-letting is made

out against such tenant.

45.  In other words, the sin qua non for proving the

case of the sub-letting is that the tenant has either

whole or in part transferred or/and parted with the

possession  of  the  tenanted  premises  in  favour  of

any third person without landlord's consent.

46. This  Court  in  Bharat Sales  Ltd.  vs.  Life

Insurance Corporation of India  (1998) 3 SCC 1,

while dealing with the case of sub-letting succinctly

explained the concept of  sub-letting and what are

its attributes.

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47. Justice  Sagir  Ahmad,  speaking  for  the  Two

Judge Bench, held as under:

“4. Sub-tenancy  or  sub-letting  comes into  existence  when  the  tenant  gives  up possession of  the tenanted accommodation, wholly or in part, and puts another person in exclusive  possession  thereof.  This arrangement comes about obviously under a mutual agreement or understanding between the  tenant  and  the  person  to  whom  the possession  is  so  delivered.  In  this  process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord,  concealing  the  overt  acts  and transferring  possession  clandestinely  to  a person  who  is  an  utter  stranger  to  the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is  the  actual,  physical  and  exclusive possession  of  that  person,  instead  of  the tenant,  which  ultimately  reveals  to  the landlord  that  the  tenant  to  whom  the property  was  let  out  has  put  some  other person into  possession of  that  property.  In such a situation, it would be difficult for the landlord  to  prove,  by  direct  evidence,  the contract  or  agreement  or  understanding between  the  tenant  and  the  sub-tenant.  It would  also  be  difficult  for  the  landlord  to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary  consideration  to  the  tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in

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lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically.  Since  payment  of  rent  or monetary consideration may have been made secretly,  the  law  does  not  require  such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession  to  infer  that  the  premises  were sub-let.”

48. In  our  considered  opinion,  the  aforesaid

principle  of  law fully  applies  to  the  case  at  hand

against  the  respondent  due  to  his  contradicting

stand and by admitting Joynal Mullick’s presence in

the suit shop but not being able to properly prove

the nature and the capacity in which he was sitting

in the suit shop.

49. In view of  the  foregoing  discussion,  we  have

formed an opinion that the appellants were able to

prove  the  case  of  sub-letting  against  the

respondent.

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50. We cannot thus concur with the reasoning and

the  conclusion  arrived  at  by  the  High  Court  and

instead prefer to agree with the conclusion of the

Trial  Court  insofar  as  it  relates  to  the  ground of

sub-letting.  In view of  this,  it  is  not  necessary to

examine  the  other  ground  relating  to  making  of

unauthorized construction by the respondent in the

suit shop.

51. In  the  result,  the  appeal  succeeds  and  is

allowed. The impugned judgment is set aside and

that of the Trial Court is restored.

52. The  respondent  is,  however,  granted  three

months’ time to vacate the suit shop, subject to the

respondent filing in this Court a usual undertaking

that he will deposit the entire arrears of rent up to

the date as per the agreed rate within one month

and will also deposit the mesne profits for a period

of  three  months  up  to  the  date  of  vacation  in

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advance at  the  agreed rate  and would vacate  the

suit shop on or before 30.04.2018.   

………...................................J. [R.K. AGRAWAL]

                                     …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; January 25, 2018