HARSHACHANDRA HARIBHAI PATEL Vs. IBRAHIM HAJI KHUBANBHAI

JUDGEMENT

(1.) The respondent-original plaintiff is the owner of a shop which was let out by him to petitioner No. 1 original defendant No. 1 on a monthly rent of Rs. 125.00 on 12-1-1968. It was one of the terms of the tenancy not to sublet or assign or transfer the suit premises to anybody else. Defendant No. 1 after taking the suit premises on lease. carried on business therein in the name and style of Vijay Traders. The case of the respondent-plaintiff is that defendant No. 1 wound up his business sometime in April 1973 and sublet the suit premises to defendant No. 2 who is at present running a hotel therein. On this basis the petitioner filed Regular Civil Suit No.388 of 1973 in the Court of the learned Civil Judge (Junior Division) Sankheda for recovering possession of the suit premises after giving a notice to defendant No. 1 terminating his tenancy and calling upon him to hand over vacant and peaceful possession of the suit premises.

(2.) It was not in dispute before the learned trial Judge that defendant No. 1 was no longer in possession and that defendant No. 2 was in possession of the suit premises on the date of the suit. Defendant No. I did not file any written statement; but he was examined as a witness by defendant No. 2. The case of defendant No. 2 was that the suit premises were vacated by defendant No. 1 sometime in February 1973 and possession thereof was handed over by him to the plaintiff He then obtained the premises on lease from the plaintiff on 1 at a monthly rent of Rs. 125.00. The learned trial Judge believed the evidence of the plaintiff that he had not given the suit premises on lease to defendant No. 2: and he disbelieved the version of defendant No. 2 as it was not supported by any reliable evidence. He therefore passed a decree for eviction. Both the defendants jointly filed Regular Civil Appeal No. 200 of 1974 in the Court of the District Judge. Baroda. The learned Second Extra Assistant Judge who heard the said appeal. dismissed the same as he agreed with the findings recorded by the learned trial Judge. Original defendants have. therefore. filed this revision application under sec. 29(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereafter referred to as the Rent Act).

(3.) It was next urged by Mr. Majmudar that even assuming that possession of the suit premises was transferred by defendant No. 1 to defendant No. 2 it cannot be said that the premises were sublet by him as the plaintiff has failed to prove that the transfer was for some consideration. He pointed out that neither in the pleadings nor in the evidence it is stated by the plaintiff that the suit premises were transferred by defendant No. 1 to defendant No. 2 for some consideration. He therefore. urged that in absence of such evidence it cannot be said that defendant No. 1 had sublet the suit premises to defendant No. 2 In support of his submission. he relied upon a decision of this Court in DAHIBEN V. ADMINISTRATIVE OFFICER 21 G.L.R. PAGE 90. It has been held in that case that in order to prove an act of unlawful sub-letting under sec. 13(1)(e) of the Rent Act. it is necessary to prove two things: (1) exclusive possession of the suit premises or a part thereof by the sub-tenant and (2) that the transfer was for a valuable consideration. But even in that case also it has been observed that existence of valuable consideration may be proved either expressly or inferred from other circumstances. In BHAGWATI SPG. & WVG. V. NEW COTTON MILLS 20. G.L.R. PAGE 932 also. it is held that existence of valuable consideration can be inferred from other surrounding circumstances. It is further pointed out that in cases where the sub-tenant is a total stranger to the tenant and yet he is inducted in a part of the suit premises. then an inference can be drawn that the possession was transferred for valuable consideration. In both these cases this Court was concerned only with the question as to what amounts to sub-letting. Moreover. it must be remembered that sec. 13(1)(e) of the Rent Act is much wider and it is not confined merely to the acts of unlawful sub-letting. It also provides that if a tenant has assigned or transferred in any other manner his interest in the premises taken on lease by him then also the landlord will become entitled to a decree for possession of the said premises. The words transfer in any other manner are much wider and would include within their meaning and ambit a transfer made in favour of a relative or a known person once it is proved that he has left the premises and the transferee is put in exclusive possession. To give these words a restricted meaning and equate such a transfer with sub-letting is to make that part of the sub-section redundant. The facts of this case clearly show that defendant No. 1 had transferred his interest in the suit premises to defendant No. 2. If it is found that the premises were transferred for valuable consideration then it will certainly amount to sub-letting. Even if it is not possible to come to that conclusion then also it amounts to a transfer in any other manner. There is no material on record to show that defendant No. 2 was in any manner related to defendant No. 1. The evidence on record merely shows that he is the father-in-law of one of the partners of the firm. In view of the specific term in the rent note that defendant No. I was not entitled to assign his interest or part with possession of the suit premises in favour of anybody else it is very unlikely that he had transferred the suit premises to defendant No. 2 without taking any consideration from him. Existence of valuable consideration can certainly be inferred in this case; and therefore the act of defendant No. I can be regarded as unlawful sub-letting within the meaning of sec. 13(1)(e) of the Rent Act. Assuming for the sake of argument that it is not possible to draw such an inference even then in my opinion once it is established by the plaintiff that defendant No. 1 had transferred possession of the suit premises to defendant No. 2 and that thereafter defendant No. 2 was in exclusive possession the said act would be covered by the later part of sec. 13(1)(e). Thus there being no substance in the second contention also it deserves to be rejected. (The rest of the Judgment is not material for the reports) Application dismissed.