REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 11106 OF 2017  

(Arising out of Special Leave Petition (C) NO. 7149 OF 2015)  

Prem Prakash                  .... Appellant(s)

                             Versus

Santosh Kumar Jain & Sons (HUF) and Another               .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.

1) Leave granted.  

2) This appeal is directed against the final judgment and order

dated 07.11.2014 passed by the High Court of Delhi at New

Delhi  in  C.M.  (M)  No.  478  of  2014  whereby  learned  single

Judge of the High Court allowed the eviction petition filed by

the original owner-Respondent No. 1 herein while setting aside

the judgments and orders dated 08.09.2011 and 24.03.2014

passed by the Court of Additional Rent Controller, North Delhi

and the Rent Control Tribunal, Delhi, respectively.

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3) Brief facts:

(a)   Shri Santosh Kumar Jain- Respondent No. 1 herein filed

an application for  increase of  standard rent  and eviction of

tenant being Eviction Petition No. 956 of 2007 before the Rent

Controller,  Delhi under Section 14(1)(a)  and (b) of  the Delhi

Rent Control Act, 1958 (in short ‘the DRC Act’) on the ground

that the premises in question, i.e., Shop No. 16 (Private No.

15), Gali Kunjas, Ward No. IV, Dariba Kalan, Delhi 110 006

has  been  sub-let,  assigned  and  otherwise  parted  with

possession illegally by the original tenant-the appellant herein

to  his  sub-tenant-Respondent  No.  2  herein,  who  is  in  the

unauthorized occupation of the same and is carrying on his

own  independent  business  and  also  that  the  original

tenant-the  appellant  herein  is  in  arrears  of  rent  from

01.01.2002.

(b) Learned  Additional  Rent  Controller,  North  Delhi,  vide

judgment  and  order  dated  08.09.2011  in  E.No.  02/2009

dismissed the claim of eviction while directing the appellant

herein to deposit  the  rent  as agreed for  preceding 3 (three)

years from the date of filing of the eviction petition.   

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(c) Being  aggrieved  by  the  order  dated  08.09.2011,

Respondent  No.  1  went  in  appeal  before  the  Rent  Control

Tribunal,  Delhi.   The Rent  Control  Tribunal,  vide  judgment

and  order  dated  24.03.2014  in  RCT-203/2013/2011,

dismissed the appeal.

(d) The  owner-Respondent  No.  1  herein,  aggrieved  by  the

judgments and orders dated 08.09.2011 and 24.03.2014, filed

a  petition  being  C.M.  (M)  No.  478 of  2014 before  the  High

Court.  Learned single Judge of the High Court, vide judgment

and order dated 07.11.2014, allowed the petition filed by the

owner-Respondent No. 1 herein.   

(e) Aggrieved by the judgment and order dated 07.11.2014,

the appellant has preferred this appeal by way of special leave

before this Court.      

4) Heard  Mr.  Braj  K.  Mishra,  learned  counsel  for  the

appellant-tenant and Ms. Bharati  Tyagi,  learned counsel for

Respondent No.2 and Mr.  Satish Kumar Jain – the original

owner, Respondent No. 1 herein, argued in person.

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Point for consideration:

5) The  only  point  for  consideration  before  this  Court  is

whether in the present facts and circumstances of the case the

order  of  eviction  passed  by  the  High  Court  was  just  and

proper?

Rival Submissions:

6) Learned counsel for the appellant-the tenant contended

before this Court that Respondent No. 2 herein was looking

after the entire small business affairs of the appellant herein

and is using and occupying the suit premises in the capacity

of an employee.  Learned counsel further contended that the

appellant  herein  was  paying  commission  by  way  of

cash/cheque or as per the convenience and outcome of  the

business  to  Respondent  No.  2  in  lieu  of  his  services.  It  is

further  contended  that  Respondent  No.  2  herein  got  the

business cards printed for the promotion of the business of

the appellant herein. The appellant herein is the lawful tenant

and has never parted with the possession or sublet the suit

property either to Respondent No. 2 or to any other person

and no notice of demand as alleged has been served upon him.

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Learned counsel further contended that Respondent No. 2 is

only a friend of the appellant herein and for this reason only

he was employed and allowed to sit in the suit premises and

no business was being carried out in the name of M/s R.R.

Jewellers from the suit premises by Respondent No. 2 who is

alleged  to  have  changed  the  firm’s  name  as  “M/s  Ashima

Jewellery” later on. It was further contended that even if the

original  owner was having knowledge  of  sub-tenancy of  the

suit premises in December, 2001, no action was initiated by

him to  vacate  the  same from the  sub-tenant and hence he

failed  to  prove  that  Respondent  No.  2  is  in  exclusive

possession of the suit premises and the appellant herein has

divested himself from the physical and legal possession of the

same.   Learned  counsel  for  the  appellant  herein  finally

contended that the present petition is not maintainable and

the High Court has committed a grave illegality in allowing the

eviction petition.   

7) Shri Santosh Kumar Jain-the original owner, Respondent

No.  1  herein  argued  in-person  and  submitted  that  the

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appellant  herein  had sub-let,  assigned and parted with  the

possession of the suit premises in favour of Respondent No. 2

herein, who is in illegal and unauthorized possession of the

same.  Respondent No. 1 further submitted that though the

appellant herein has claimed that the Respondent No. 2 was

his  employee  and  was  being  paid  commission  for  the  job

booked by him, no document has been produced on record to

show that  Respondent  No.  2  was  being  paid  any  salary  or

commission  by  the  appellant.   Respondent  No.  1  further

stressed upon the point that the sub-tenant has admitted to

have fixed a bill board under the name and style of “M/s R.R.

Jewellers” in the suit premises.  Further, the sub-tenant of the

appellant herein got printed visiting cards in his name with

the address of the suit premises and the very same fact has

been admitted in the statement given by him.  Respondent No.

1 further submitted that, undoubtedly, the onus of proving the

presence of other person in the suit premises is on the owner

and once it is proved, it shifts to the tenant to disapprove the

same.  Respondent No. 1 finally  submitted that High Court

was right in allowing the eviction petition while setting aside

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the judgments and orders passed by the Court of Additional

Rent  Controller  and Rent  Control  Tribunal  holding that  the

suit premises was sub-let and the appellant herein had parted

with the possession and prayed that no interference is sought

for by this Court in the case.      

Discussion:

8) It would be appropriate to reproduce Section 14 of the

DRC Act in order to arrive at a conclusion in the case which is

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,  sublet,  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;…..”

[

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9) Respondent  No.  1  herein-the  original  owner,  filed  an

eviction petition on the ground that the property in question

has been sub-let by the original tenant-appellant herein to the

sub-tenant  i.e.,  Respondent  No.  2.   The  tenant  denied  the

assertion  that  the  property  has  been  assigned  to  the

sub-tenant stating that Respondent No. 2 is his friend and is

an employee who attends his customers in his absence.  It was

further  explained  that  Respondent  No.  2  was  working  on

commission basis in order to send customers to the appellant

herein who was having a  shop in an interior  location from

where he does polishing and cleaning work of silver items and

for  that  purpose  only  he  was  allowed  to  sit  in  the  suit

premises.   

10) During examination, it has been admitted by the owner

that the first and only rent was received on 26.02.2002 for the

period 01.02.2001 to 31.12.2001 from the tenant.  It is evident

from  the  record  that  a  legal  notice  dated  10.05.2002  was

served upon the appellant herein that he is in arrears of rent

from 01.01.2002.   Though the  appellant  herein-the  original

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tenant has admitted the relationship of landlord and tenant

between  the  parties  but  has  denied  any  sub-letting  to  any

other person.  The tenant has his small workshop nearby the

suit  shop where he personally does the work in addition to

attending the customers in the premises in question.  It is the

case of  the appellant that Respondent No. 2 looks after the

customers of the appellant herein in his absence but the fact

of being paid by way of commission or salary has not been

proved as no evidence have been brought to substantiate this

claim.  It is Respondent No. 2 whose duty is to open and close

the  shop in his  absence  and to  hand over  the  keys  to  the

appellant herein who was residing along with his family on the

first floor of the aforesaid property at the relevant time.

11) Respondent  No.  1-the  original  owner  has  placed  on

record two business cards which do not contain the name of

the appellant herein at all, showing the same address as that

of the property in question in order to prove that Respondent

No. 2 was doing independent business of diamond jewellery,

gold and stones.  Out of two cards, one card is in the name of

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Respondent  No.  2  with  the  printing  “Ashima  Jewellery,

Diamond Jewellery, Gold & Stones”.  Respondent No. 2 has

admitted by way of filing an affidavit that he was doing the

business of manufacturing of diamond jewellery, silver articles

and  also  silver  fancy  articles.   He  has  also  admitted  the

printing  of  the  cards  placed  on  record  for  the  purpose  of

placing orders at the said address.  He admitted to have doing

business in the name and style of M/s Ashima Jewellary but

denied the claim that earlier he was doing the business in the

name and style of M/s R.R. Jewellers.  It was further admitted

that when he started to sit in the suit property, a bill board in

the name of M/s R.R. Jewellers was fixed in the suit property

in the year 1996.   

12)  A  bare  perusal  of  the  visiting  card  of  M/s  Ashima

Jewellery having the name of Respondent No. 2 clearly proves

that the sub-tenant was neither an employee nor was looking

after the customers of the appellant herein in his absence but

he was carrying on his personal business under such name.

There  is  no  point  in  denying  the  fact  that  why  a

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tenant will allow a person, who is working under him, to print

visiting  cards  in  his  (sub-tenant)  name  for  the  property  in

question.   

13) Further,  the  other  visiting card is  having  the  name of

“M/s R.R. Jewellers”.  The alleged sub-tenant has denied the

claim in the affidavit filed before the courts below that earlier

he was doing the business in the name and style of M/s R.R.

Jewellers.  The respondent-owner has brought on record the

list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.)

Ltd. wherein for R.R. Jewellers, the address mentioned is that

of the suit property and the phone number is exactly the same

as mentioned on the business card of M/s Aashima Jewellery”

i.e.,  ‘3901361’.   Respondent No.  2 has admitted the  fact  of

doing business in the name of M/s Aashima Jewellery” which

is also evident from the business card used by him having the

address  of  the  suit  property  and  the  telephone  number

‘3901361’ whereas he denied to have worked under the name

and style of M/s R.R. Jewellers but the very fact is falsified by

the evidence in the form of subscribers list of Delhi Sanchaar

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Sewa wherein the same telephone number, i.e., ‘3901361’ has

been given.  Meaning thereby, Respondent No.  2 was doing

business in the suit premises independently of the appellant

herein.   

14) Undoubtedly,  the  initial  burden  to  prove  that  the

sub-tenant is in exclusive possession of the property is on the

owner, however, the onus to prove the exclusive possession of

the sub tenant is that of preponderance of probability only and

he has to prove the same prima facie only and if he succeeds

then the burden to rebut the same lies on the tenant.   

15) In this regard, it is appropriate to quote a decision of this

Court  in  Associated Hotels  of  India Ltd.,  Delhi vs. S.B.

Sardar Ranjit Singh  AIR 1968 SC 933 wherein it was held

that when eviction is sought on the ground of sub-letting, the

onus to prove sub-letting is on the landlord. If  the landlord

prima-facie shows  that  the  occupant  who  was  in  exclusive

possession of the premises let out for valuable consideration,

it would then be for the tenant to rebut the evidence.   

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16) Again, in  Kala and Anr. vs. Madho Parshad Vaidya,

(1998)  6  SCC  573,  this  Court  reiterated  the  very  same

principle.  It  was  observed  that  the  burden  of  proof  of

sub-letting is on the landlord but once he establishes parting

of  possession by the  tenant  to third party,  the  onus would

shift on the tenant to explain his possession. If he is unable to

discharge that onus, it is permissible for the court to raise an

inference  that  such  possession  was  for  monetary

consideration.

17) In  Vaishakhi  Ram  &  Ors. vs.  Sanjeev  Kumar

Bhatiani (2008) 14 SCC 356, it was held as under:-

“21. It is well settled that the burden of proving sub-letting is  on  the  landlord  but  if  the  landlord  proves  that  the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting. Reliance can be placed on the decision of  this  Court  in  Joginder  Singh  Sodhi v.  Amar  Kaur. Therefore, we are in full agreement with the High Court as well  as the courts below that since Appellants 2 to 4 had been in exclusive possession of the suit shop and Appellant 1 could not prove that it was not a case of sub-letting, the suit  shop  had  been  sub-let  by  Appellant  1  in  favour  of Appellants 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of sub-letting.”

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18) 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  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 in 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

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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 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.   

19) In the present facts and circumstances of the case, we

are of  the opinion that the original  owner-respondent No.  1

herein  has  proved  beyond  doubt  that  the  property  is  in

exclusive  possession  of  the  sub-tenant  and  the  appellant

herein has not been able to deny the claim of sub-tenancy in

favour  of  Respondent  No.  2.   The  absence  of  evidence  and

failure to discharge the onus lay heavy on appellant and there

could be no presumption other than that the suit  premises

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had been sublet and parted with possession by the appellant

herein to the Respondent No. 2.

Conclusion:-

20) In  view  of  the  foregoing  discussion,  we  are  of  the

considered opinion that the High Court was right in setting

aside the orders passed by the lower courts.  We do not intend

to interfere in the order passed by the learned single Judge of

the  High  Court.  There  is  no  merit  in  this  appeal  and  the

appeal is, therefore, dismissed with no order as to costs.  

    ...…………….………………………J.              (R.K. AGRAWAL)                                  

        .…....…………………………………J.       (ASHOK BHUSHAN)                   

NEW DELHI; AUGUST 30, 2017.  

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