- (1.) The landlord-petitioner has filed this petition against the order of the Appellate Authority, Ludhiana, dated 17th January, 1974, whereby the order of the Rent Controller, directing ejectment of the tenant, was set aside and the appeal was accepted.
(2.) On 18th February, 1971, an application for eviction was presented by Kartar Singh, landlord-petitioner, with the allegations that the shop was on rent with Harbhajan Singh, respondent, at the rate of Rs. 50/- per month. The tenant was said to have been in arrears for the period from 1st January, 1966 to 28th February, 1971. It was further alleged that the tenant has sublet a portion of the shop to Darshan Singh, without his consent. The application was contested by Harbhajan Singh alone. He raised the plea that the rent fixed between the parties was at the rate of Rs. 15/- per month and that it had subsequently been increased to Rs. 19/- per month. At that rate, the arrears were paid on the first date of hearing. The allegations of subletting any portion of the shop to Darshan Singh were emphatically denied. On the pleadings of the parties, the Rent Controller framed the following issues :- 1. What is the rate of rent of the premises in dispute, i.e. whether it is Rs. 50/- p.m. and not Rs. 19/- p.m. 2. Whether the respondent No. 1 has sublet the premises to respondent No. 2 without the consent of the applicant
(3.) Whether the value and utility of the premises has been materially impaired by the respondents 3. A Whether respondent No. 1 took the shop in dispute for opening a cycle repair shop and later on converted it into a dry cleaning business, if so, its effect On issue No. 1, the Rent Controller came to the conclusion that the rate of rent was Rs. 50/- per month and thus the tenant was liable for eviction on the ground of non-payment of rent. The finding on issue No. 2 was also against the tenant holding that Harbhajan Singh has sublet the premises to Darshan Singh without the consent of the landlord. The other issues were decided in favour of the tenant. In appeal, the learned Appellate Authority has reversed the findings of the Rent Controller on both issue Nos. 1 and 2. On issue No. 1, it has been held that the rent payable by the tenant was at the rate of Rs. 19/- per month. Thus, having paid the whole of the arrears at that rate on the first date of hearing, he is not liable to be evicted on the ground of non-payment of rent. On issue No. 2, the learned Appellate Authority confirmed the finding of the Rent Controller to the effect that it was established that Dharshan Singh was working at the premises as a lalari. The relevant observations made are, "from the evidence itself it was established that Darshan Singh was working at the premises as a lalari. I am of the view that even by accepting the position disclosed by the evidence of the landlord to be correct, Darshan Singh cannot be held to be a sub-tenant. The original tenant would forfeit the right only if it can be shown that he had sublet the premises and himself ceased to remain legal possession. There cannot be a sub-letting unless the lessee parted with legal possession. The mere fact that some other person is allowed to use the premises while the lessee retains a legal possession is not enough to create a sub-lease". For this proposition, reliance was placed on a case reported in Dev Dutt Verma v. Ajit Singh and others, 1965 CurLJ 341, in which it was held that the burden is on the landlord to show that there has been sub-letting. This burden is not discharged by merely showing that some third party was using a part of the premises. Taking this view of the matter, it was ultimately held that Darshan Singh could not be taken to be a sub-tenant. Consequently, the appeal was accepted and the order of the Rent Controller was set aside. Feeling aggrieved against this order, the landlord has come in revision to this Court. 3. The learned counsel for the petitioner has contended that the learned Appellate Authority has wrongly placed reliance on Dev Dutt Verma's case . If once this finding given by the Appellate Authority that Darshan Singh was working at the premises as a lalari, is accepted then the burden will be shifted on the tenant. Harbhajan Singh to shows that in what capacity Darshan Singh was working at the premises. According to the learned counsel, the proposition of law laid down in Dev Dutt Verma's case has been explained subsequently by this Court in Civil Revision No. 1009 of 1965, decided on 26th August, 1966, wherein it has been observed by I.D. Dua, J., (as he then was), that "I do not think the Court by these observations intended to law down an abstract rule of law, as suggested by Shri Gupta, that it is always for the landlord to prove affirmatively by direct evidence that there has been a sub-letting a proposition which seems to me to be too widely put and of doubtful validity. A landlord is almost always a stranger to such agreements of sub-lease between his tenant and sub-lessee and he has generally to rely on attending circumstances to establish sub-letting by necessary inference. It must be very rarely indeed that direct evidence of subletting without the landlord's consent whether in the form of a lease deed or of testimony of witnesses in whose presence the sub-lease is created can come to the hands of landlord. The proof of sub-letting thus depends upon the probability of the premises having been sublet, and all that is required is material on which the Court can, like a prudent person guided by his own experience and judgment, regard being had to the ordinary course of human conduct, reasonably act upon the supposition that the premises have been sublet." On the basis of this authority, the learned counsel submitted that the position taken by the tenant in his statement, who appeared as RW 4, is that he did not let out any portion of this shop to Darshan Singh, nor he received any rent from him. His statements reads - "I did not let out any proton of this shop to Darshan Singh nor I receive any rent from him. He works as a dyer and sits on the rod under Neem tree usually and sometimes sits on other side of roads on committee space near my shop". Having taken this position, the burden is on the tenant to show that in which capacity Darshan Singh is in occupation of the rented premises. Moreover, he also pointed out that the finding of the Rent Controller which has been affirmed by the Appellate Authority is that 'Keeping in view all these circumstances of the case it can be safely inferred that Darshan Singh respondent occupied a portion of the shop in dispute and that too, as a sub-tenant under the respondent No. 1 as respondent No. 1 has failed to set up any such case that he occupied any such portion of the shop as a licensee under him".;