Surya Prakash Kesarwani, J. - (1.) Heard Sri R.K. Gupta, learned counsel for the defendant-revisionist and Sri Manish Tandon, learned counsel for the plaintiff-respondent no.1.
(2.) This revision under Section 25 of the Provincial Small Causes Court Act, 1887, has been filed praying to set aside the judgment and decree dated 14.11.2017 in S.C.C. Suit No.299 of 2014 (Shri Krishna Pandey v. The Oriental Insurance Company Ltd and others ) passed by the Judge Small Cause Court/ Additional District Judge (Court No.6), Kanpur Nagar, challenging the same judgment dated 14.11.2017, which is also impugned in the present revision. The aforesaid S.C.C. revision of the Oriental Insurance Company Ltd. was dismissed by this Court by order dated 9.1.2018 passed in S.C.C. Revision No.2 of 2018, as under : "Heard Sri Arun Kumar Shukla, learned counsel for the defendants-revisionists/tenants and Sri P.K. Jain, learned Senior Advocate assisted by Sri Manish Tandon, learned counsel for the plaintiff-respondent no.1/landlord. This revision under Section 25 of the Provincial Small Causes Court Act, 1887 has been filed praying to set aside the judgment dated 14.11.2017 and decree dated 28.11.2017 in J.S.C.C. Suit No.299 of 2014 (Shri Krishna Pandey Vs. The Oriental Insurance Company Ltd. and others), passed by the Judge Small Cause Court/Additional District Judge, Court No.6, Kanpur Nagar. Facts Briefly stated facts of the present case are that one Smt. Kamla Devi was the original owner and landlord of house No.24/51, Birhan Road, Kanpur Nagar, in which the defendant-revisionist was the tenant of the first floor at monthly rent of Rs.75/- excluding tax, from the period much prior to the enactment of U.P. Act No.13 of 1972. The aforesaid Smt. Kamla Devi sold the disputed house to the plaintiff-respondent no.1 by registered sale deed dated 27.9.2011. When the rent was not paid by the defendant-petitioner to the plaintiff-respondent no.1 then the plaintiff-respondent no.1 issued a notice dated 7.10.2013 terminating the tenancy and demanding arrears of rent. According to the defendant-revisionist the rent was deposited by him under Section 30(1) of the Act. On the allegation of default in payment of rent as well as subletting by the defendant-revisionist to the defendant-respondent nos.2 and 3, the plaintiff-respondent no.1 filed J.S.C.C. Suit No.299 of 2014 (Shri Krishna Pandey Vs. The Oriental Insurance Company Ltd and others) which has been decreed by the impugned judgment dated 14.11.2017. Aggrieved with this judgment and decree, the defendant-revisionist has filed the present revision under Section 25 of Provincial Small Cause Court Act, 1887. Submissions Sri Arun Kumar Shukla, learned counsel for the defendant-revisionist/tenant submits as under: (i) The defendant-revisionist/tenant has paid rent for the alleged defaulted period from 1.10.2011 to 30.11.2012 by e.M.O., dated 9.11.2012 for Rs. 1800/- which includes the payment of rent for the defaulted period also. Since the rent was paid for the alleged defaulted period to the original owner Smt. Kamla Devi, therefore, it can not be said that the defendant-revisionist has defaulted in payment of rent. (ii) The rent with interest upto the period 31.5.2015 amounting to Rs.13,624/- was also deposited by the defendant-revisionist in the court below and thus there was no default in payment of rent. (iii) The defendant-revisionist has not made any subletting rather the defendant-respondent nos.2 and 3 being Choukidar and Trade Union were occupying the said premises on behalf of the defendant-revisionist. Thus there was no subletting. Sri P.K. Jain, learned Senior Advocate for the plaintiff-respondent no.1/landlord, submits as under: (i) The defendant-revisionist has defaulted in payment of rent for the period from 1.10.2011 to 30.11.2012, which fact could not be denied by the defendant-revisionist by any evidence. The amount allegedly paid to the erstwhile owner by the alleged e.M.O. does not even discloses the period for which the amount was paid. That apart, even if any amount has been paid to a third person that can not be treated as a valid payment of rent to the plaintiff-respondent. (ii) The alleged payment through e.M.O. has not been stated even in the written statement to be a payment of rent for the defaulted period. There is no pleading that the rent for the defaulted period was paid to the plaintiff-respondent no.1 by the defendant-revisionist through the original owner Smt. Kamla Devi. (iii) The findings recorded in the impugned judgment on the question of default in payment of rent and subletting are findings of fact based on consideration of relevant evidences on record. Therefore, these findings of fact can not be interfered with in revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act. (iv) The impugned judgment and decree is valid and does not suffer from any legal infirmity. Therefore, the revision deserves to be dismissed. Discussion and Findings I have carefully considered the submissions of learned counsel for the parties and perused the record of the revision before me. It is Undisputed that the original owner and landlord of the disputed house was one Smt. Kamla Devi who sold the disputed house to the plaintiff-respondent No.1 by a registered sale deed dated 27.9.2011. It is also undisputed that defendant-revisionist was a tenant on the first floor of the disputed house at a monthly rent of Rs. 75/- per month excluding taxes, from the period much prior to commencement of U.P. Act No. 13 of 1972. Thus the landlord-tenant relationship between the plaintiff-respondent No.1 and the defendant-revisionist is wholly undisputed. The question of default in payment of rent for the period from 1.10.2011 to 30.11.2012 has been elaborately dealt with by the court below while deciding the issue No.3. The court below has recorded a finding of fact based on consideration of evidence on record that the defendant-revisionist has not paid rent for the period from 1.10.2011 to 30.11.2012. No material could be pointed out by learned counsel for the petitioner even before this court to show specifically that the rent for the aforesaid defaulted period was deposited by him either in Court or was paid to the plaintiff-respondent no.1. Under the circumstances, the findings recorded by the court below that the defendant-revisionist defaulted in payment of rent for the period from 1.10.2011 to 30.11.2012, can not be interfered with. While deciding issue no.5, the court below has dealt with in detail the question of subletting by the defendant-revisionist to the defendant-respondent nos. 2 and 3. Findings of fact has been recorded based on consideration of evidences of D.W.1, D.W. 2 and own admission of defendant-respondent no.3 that the defendant-respondent no.2 Prem Narayan Gupta is the son of one Smt. Munni Devi, who was doing cleaning work in the office of the defendant-revisionist and had occupied one room as caretaker of the defendant-revisionist. After her death in the year 2006 the defendant-respondent no.2 was appointed as caretaker by the defendant-revisionist and he continued to occupy the accommodation. The name of the defendant-respondent no.2 does not find mention as tenant in Panchashala of Nagar Nigam for the years 1968 to 1973, 1973 to 1978, 1978 to 1987 and 1987 to 1992 which were filed in evidence being paper No. 28-C/1 to 28-C/7 vide list 24-C. Thus, the portion in occupation of the defendant-respondent no.2 was never let out to him rather it was given by the defendant-revisionist to the defendant-respondent no.2. The defendant-respondent no.3 is a legal entity being a registered trade Union. It was never a tenant of plaintiff-respondent No.1 or the original owner of the disputed house. The portion of the disputed house in occupation of the defendant-respondent no.3 was given by the defendant-revisionist to the defendant-respondent no.3. Neither the plaintiff-respondent No.1 nor the original owner of the disputed house had let out to the defendant-respondent no.3 the disputed accommodation of the house in question. Thus, the defendant-respondent nos. 2 and 3 were not valid tenant rather they had occupied the portion as a consequence of subletting by the defendant-revisionist to them. The findings recorded by the court below in this regard are findings of fact based on consideration of relevant evidences on record. Consequently, these findings of fact can not be interfered in revisional jurisdiction. It is settled law that in order to constitute sub-tenancy handing over possession, wholly or partly, of tenanted premises to a stranger or third party, without consent of the landlord, is sufficient. In the present set of fact it is admitted case of the defendant-revisionist that the disputed portion of the house in question was handed over to the defendant-respondent nos.2 and 3 respectively without the consent of the landlord. Thus, the facts and evidences brought on record fairly shows that the findings recorded in the impugned judgment that the defendant-revisionist had made sub-letting, does not suffer from any infirmity. The burden of proof of subletting has been duly discharged by the plaintiff-respondent no.1 as evident from the findings of fact based on evidences recorded by the court below while deciding the issue no.5. The onus stood shifted on the defendant-respondent nos.2 and 3 to explain their possession in respective portion of the disputed house. The defendant-respondent no.3 completely failed to explain their possession rather the evidence including the evidences of D.W.1, D.W. 2 and D.W. 3, clearly established that the defendant-revisionist has made sub-letting to the defendant-respondent nos. 2 and 3. The law of discharging of burden in matters of subletting has been well settled by Hon'ble Supreme Court in the case of Joginder Singh Sodhi v. Amur Kaur, 2005 58 AllLR 683, Smt. Rajbir Kaur and another v. M/s. S. Chokesiri Co., 1989 1 SCC 19 and Kala and another Vs. Madho Parshad Vaidya, 1998 6 SCC 573 and the judgment of this Court in the case of Brijendra Kumar And Others Vs. Suraj Bhan And Others 2014(4) AWC 3366 (paragraphs 21 and 22) as under: 21. It thus cannot be doubted that in order to succeed the plea of ejectment of a tenant on the ground of sub-tenancy the landlord has to prove that tenant has parted away exclusive possession of whole or part of tenanted premises to the alleged third person, i.e., sub-tenant. In the present case both the Courts below have held that exclusive possession of premises in dispute, handed over to a third person, is proved. This concurrent finding, has neither been shown perverse, nor contrary to record, nor otherwise incorrect. In fact the argument raised admits that though possession is handed over, yet sub-tenancy shall not be deemed unless payment of rent is also proved. This assumption that payment of rent is necessary is unfounded and not required in law. 22. In order to constitute sub-tenancy handing over possession, wholly or partly, of tenanted premises to a stranger or third party, without consent of landlord, is sufficient and when legislature has not required anything more in this regard, it will not be permissible, either by judicial interpretation or otherwise, to add one more condition that payment of rent actually should also be proved. The Trial Court committed a manifest error by taking into consideration this requirement so as to constitute, whether sub-tenancy has been proved or not and this patent error committed by Trial Court has rightly been reversed and corrected by Revisional Court by holding that payment of rent is not necessary to be proved since under law if possession has been handed over to a third party, wholly or partly, of tenanted premises to the extent that occupant exercised his independent control over transferred premises, sub-tenancy shall be deemed to have come into existence in view of a deeming provision in the statute which has to be given effect in its entirety and its effect cannot be diluted by adding something which is not provided in the statute. I am, therefore, in the agreement with Revisional Court that once handing over possession to third person is proved, sub-tenancy has to be deemed and for the purpose of holding a case of sub-tenancy there is no further requirement of proving about payment of rent." In view of the aforesaid, since default in payment of rent and subletting have been lawfully proved by the plaintiff-respondent and as such findings of the court below in this regard being findings of fact can not be interfered with in revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act, 1887. In result the revision fails and is hereby dismissed".
(3.) A finding of fact has been recorded in the impugned judgment with regard to sub tenancy of the defendant- revisionist, after due consideration to the relevant evidences on record including the evidences of D.W.1, D.W.2 and D.W.3 which clearly establish that the disputed accommodation was sublet by Oriental Insurance Company Ltd. to the defendant-revisionist.;