Case Summary
| Citation | Gill & Co. v. Bimla Kumari Jolly 1986 RLR 370 |
| Keywords | Order XLI Rule 27 read with Section 151, Code of Civil Procedure Order XII Rule 8 of the Code read with Section 66 of the Evidence Act, |
| Facts | On 12th February 1975, the respondent landlady moved an application for eviction of the appellants on the grounds of (a) non-payment of rent ; (b) mis-user, (c) bonafide requirement as residence for herself and members of her family ; and (d) Sub-letting,assignment or parting with possession of the demised premises by appellant No. I in favour of appellant No. 2. The eviction petition was contested hotly by the appellants on various grounds. Eventually, however, an order of eviction was made by an Additional Rent Controller, Delhi on 20th November 1979 only on the ground that appellant No. 1 had parted with possession of the premises in question in favour of appellant No. 2 without the consent of the respondent landlady |
| Issues | |
| Contentions | The application for production of additional evidence was opposed tooth and nail by the respondent who pointed out that reliance was never placed by the appellants on any of the documents sought to be produced by them at the appellate stage.According to them, the fault, if any, in not producing the said documents was of the appellants themselves and they were simply adopting dilatory tactics and to fill up the gaps in their evidence which they deliberately omitted to produce in the trial Court. On a consideration of the matter the learned Rent Control Tribunal disallowed the said application for reasons stated in the impugned order itself. |
| Law Points | |
| Judgement | appeal is devoid of any merit. It is accordingly dismissed with costs |
| Ratio Decidendi & Case Authority |
Full Case Details
J.D. JAIN, J. – 1. The facts giving rise to this second appeal by the tenant M/s. Gill and Company Pvt. Ltd. appellant No 1, and Sohan Lal Ahuja, appellant No 2 succinctly are that the premises in question viz, a portion of property No. A-41. Kirti Nagar, New Delhi were let to appellant No. 1 (hereinafter referred to as “the tenant company”) at the rate of Rs. 750.00 per month way back in 1966. Sohan Lal Ahuja, appellant No. 2 was employed with appellant No. 1 as Manager at Delhi and he was put into occupation of the same for residence in his capacity as Manager. On 12th February 1975, the respondent landlady moved an application for eviction of the appellants on the grounds of (a) non-payment of rent ;(b) mis-user, (c) bonafide requirement as residence for herself and members of her family ; and (d) Sub-letting, assignment or parting with possession of the demised premises by appellant No. I in favour of appellant No. 2. The eviction petition was contested hotly by the appellants on various grounds. Eventually, however, an order of eviction was made by an Additional Rent Controller, Delhi on 20th November 1979 only on the ground that appellant No. 1 had parted with possession of the premises in question in favour of appellant No. 2 without the consent of the respondent landlady. The eviction petition on grounds falling under Clauses (c) & (e) of the proviso to Sub- section (1) of Section 14 of the Delhi Rent Control Act (“the Act”) was, however, dismissed. As regards the ground of non-payment of rent despite due service of notice of demand on appellant No. 1, the Additional Rent Controller found that there was a default on the part of appellant No. 1 in the payment of rent for the period with effect from 1st August 1974 onwards but the tenant was entitled to benefit of the provisions embodied in Section 14(2) of the Act as he had duly complied with an order made earlier by the Additional Rent Controller under Section 15(1) of the Act. Feeling aggrieved by the said order, the appellants preferred an appeal but met with no success, the same having been dismissed by the Rent Control Tribunal vide his judgment dated 9th February 1983. Still not satisfied they have come up in second appeal to this Court.
2. The learned counsel for the appellants has not assailed the order of the Rent Control Tribunal and for that matter the order of the Additional Rent Controller as regards the ground of eviction under Clause (a) of the proviso to Section 14(1) of the Act. Obviously they felt content with the relief awarded to them under Section 14(2) of the Act, it being a case of first default. So, the only ground which survives for determination by this Court is with regard to the Sub-letting, assignment or parting with possession of the premises in question by appellant No. 1 in favour of appellant No. 2. It may be pertinent to state here that appellant no. 2 had been occupying the premises in question in his capacity as Manager of appellant No 1 and Delhi from the very inception of the tenancy. Admittedly, the head office of appellant No. 1 is at Bombay and they were still carrying on their business from there. The cause of action for eviction on ground under clause (b) of the proviso to Section 14(1) allegedly arose because the service of appellant No. 2 was terminated on 31st March 1972 but he was allowed to continue in occupation of the premises in question unauthorisedly by appellant No 1 even thereafter. The stand of the appellants, however, is that even after the termination of service of appellant No. 2 as Manager of appellant No. 1, the former continued to act as their local representative at
Delhi and negotiated many a business deal on behalf of appellant No. 1 with several parties and as such his occupation of the premises in question was permissive and the legal possession thereof vested in and remained with appellant No. 1 at all material times.
3. During the pendency of the first appeal, the appellants made an application dated 24th March 1981 under Order XLI Rule 27 read with Section 151, Code of Civil Procedure (‘the Code’) for permission to produce some additional evidence viz. documents and accounts books etc. It was stated that the trial Court had arrived at the finding that appellant No. 1 had Sub-let, assigned or otherwise parted with possession of the premises to appellant No. 2 primarily for the reason that the appellants did not produce the relevant records and documents despite their having been served with a notice dated 7th March 1978 purporting to be under Order XII Rule 8 of the Code read with Section 66 of the Evidence Act (copy marked XI) but such notice was never served on appellant No. 1 and as such the trial Court was in error in assuming that the records and documents mentioned in the notice marked ‘XI’ had been with-held deliberately, and, therefore, the presumption that if produced, the same would not have supported the case of the appellants, would be well warranted. Secondly, it was asserted that the office premises of appellant No. 1 at Bombay were raided by the Income-tax Department in August 1976 and the entire record pertaining to the employment, payment of salary and wages and books of account etc. pertaining to the years 1971, 1972 and 1973 onwards were seized and taken away by the said department and were still in their custody. They further averred that for the purpose of Delhi office, appellant No. 1 had maintained an account in the name of appellant No. 2 in the Central Bank of India, Kirti Nagar and the appellants had already produced evidence to the effect that all the moneys in the said account were received from appellant No. 1 and were disbursed by appellant No. 2. in whose name the account stood, according to the needs of the business. So, they sought to produce the pass books in respect of the said account and some statements of account of Delhi office of the years 1972, 1973 and 1974, the copies of which were found lying in some very old papers.
4. The application for production of additional evidence was opposed tooth and nail by the respondent who pointed out that reliance was never placed by the appellants on any of the documents sought to be produced by them at the appellate stage. Further, no effect was made to produce the said evidence or cause the same to be produced through income-tax department although several opportunities were afforded to the appellants for producing their evidence. It was further contended that whatever evidence was sought to be produced by the appellants was allowed by the trial Court and they could not make any grievance with regard to the same. Thus, according to them, the fault, if any, in not producing the said documents was of the appellants themselves and they were simply adopting dilatory tactics and to fill up the gaps in their evidence which they deliberately omitted to produce in the trial Court. On a consideration of the matter the learned Rent Control Tribunal disallowed the said application for reasons stated in the impugned order itself.
5. The learned counsel for the appellants, has, therefore, submitted at the very outset that the order of the learned Rent Control Tribunal rejecting the application of the appellants for producing additional evidence is not sustainable, being bad at law. He has urged that they awoke to the dire need of producing additional evidence only when they found that the Additional Rent Controller had wrongly admitted evidence of the respondent- landlady with
regard to the service of alleged notice under Order XII Rule 8 of the Code read with Section 66 of the Evidence Act although no such notice was ever served upon appellant No. 2. He has pointed out that the documents marked X1, X2 and X3 which are copies of the notice under Order XII Rule 8 of the Code, postal receipt and A.D. receipt respectively, were not tendered in evidence by the respondent-landlady at any proper stage of the trial and it was only during the cross-examination of appellants’ witness S.L Ahuja that they were shown to him and he was confronted with the same. Thus, according to him, these documents were not duly proved. Further, the appellants were not afforded any opportunity to lead any evidence in rebuttal thereof. I shall deal with this aspect of the matter a little later but the crucial question at present is whether the learned Tribunal was justified in rejecting the prayer of the appellants for producing additional
6. The general rule is that an appellate court shall decide an appeal on the evidence led by the parties before the lower Court and shall not admit additional evidence for the purpose of disposal of an appeal. Rule 27 of Order XLI of the Code opens with the words, “The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.” However, it empowers the Appellate Court to admit additional evidence in appeal under certain circumstances specified therein, namely, (i) where the lower Court has improperly refused to admit evidence ; (ii) where such additional evidence was not within the knowledge of the party or could not after the exercise of due diligence be produced by him at the time when the lower Court passed the decree ; or (iii) where the Appellate Court itself requires the evidence (a) to enable it to pronounce the judgment, or (b) for any other substantial cause. This provision has been repeatedly considered by the Privy Council as well as the Supreme Court and the law as to the reception of evidence not produced before the trial Court is now well settled. The discretion given to the Appellate Court to receive and admit additional evidence is not arbitrary but is judicial one circumscribed by the limitations specified in Rule 27 itself. Evidently it is not a case where the lower Court had improperly refused to admit evidence. It was never tendered. Likewise, it is not the case of the appellants that the additional evidence sought to be produced by them at the appellate stage was not within their knowledge or that the same could not be produced after exercise of due diligence They were well aware that their records had been seized by the income-tax department and, therefore, it was open to them to requisition the records from the said department by summoning the concerned official. No such effort seems to have been made. Indeed, the learned counsel for the appellants frankly conceded that they woke up to the need for producing additional evidence because of the finding of the trial Court that they did not produce the same despite service of notice under Order XII Rule 8 of the Code on them. Indeed, the documents sought to be placed on record and proved by way of additional evidence are not the ones of from amongst these which had been seized by the income-tax department, rather it would appear from a perusal of the affidavit dated 20th March 1981 of the Secretary of appellant No. 1 and the application itself that these documents are being produced from their own possession because the documents seized by the income-tax department had not been released till the date of the application under Order XLI Rule 27 of the Code to them. So, the only question which falls for consideration is whether the additional evidence was required by the Appellate Court for enabling it to pronounce judgment or was there any other substantial cause for allowing the same.
7. In Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143], the Judicial Committee observed that:
THE provisions of Section 107 as elucidated by Order XLI Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak pans of his case and fill up omissions in the Court of appeal. Under Rule 27, Clause (1) (b) it is only where, the Appellate Court “requires” it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in cither case it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.
8. Reliance is, however, placed by the learned counsel for the appellants on the decision of the Supreme Court in K. Venkataramiah v. A. Seetharama Reddy wherein the Supreme Court held that:
THERE may well be cases where even though the Court finds that it is able to pronounce judgment, on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code. Such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence.
9. It is, therefore, urged that the Rent Control Tribunal ought to have allowed additional evidence on the ground of substantial cause as postulated in Rule 27 (1) (b) of Order XLI of the Code. However, this argument is totally misconceived inasmuch as it overlooks the fact that the requirement of law is not that the Court should readily permit a party to fill up the lacuna in the evidence which it deliberately chose not to produce at the trial stage. The basic idea underlying the above observations of the Supreme Court is that in case the Court feels that the evidence already on record suffers from such inherent obscurity or ambiguity that it should be cleared, if possible, by production of additional evidence, it may require production of such evidence. But it is not permissible to do so merely because the additional evidence may help the Appellate Court to pronounce judgment in a particular way. A five Judges Bench of the Supreme Court elucidated the legal position further in The Municipal Corporation of Greater Bombay v. Lala Pancham, saying that:
BUT the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a
lacuna in the evidence that the appellate Court is empowered to admit additional evidence.
10. It may be noticed that in K. Venkataramiah, the Supreme Court declined to re-assess the need for additional evidence saying that:
THE requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable us to pronounce judgment.
11. So, it was primarily for the Appellate Court to decide whether it required the additional evidence for pronouncing the judgment in a more satisfactory way or not and it would not be just and proper for this Court to examine for itself and come to its own conclusion whether the Appellate Court did require additional evidence to steer clear of any ambiguity or obscurity from which the evidence existing on record suffered, if at all. The plea, that the importance of the documents was not realized by the appellants before the finding of the trial Court with regard to the withholding of those documents despite service of notice under Order XII Rule 8 of the Code and the adverse inference drawn against the appellants by the said Court would not bring the case within the expression “other substantial cause” in Order XII Rule 27 (1) (b) of the Code. Indeed, as shall be presently seen, the evidence already on record is quite sufficient for recording a proper and satisfactory judgment.
12. Apart from the consideration referred to above this must weigh with an Appellate Court for permitting additional evidence, it goes without saying that the new evidence sought to be adduced should have direct and important bearing on the main issue in the case. So, in order to satisfy myself of this aspect of the matter I have looked into additional evidence sought to be produced by the appellants and I find that apart from the pass books pertaining to Central Bank Account No. 3184 which stood in the name of Sohan Lal Ahuja, Appellant No. 2, statements of account of cash book relating to Delhi office for the period April 1972 to January 1974 and a couple of letters, all other documents pertained to the period 1976 to 1978 .By and large they consisted of correspondence between appellant No. 1 and appellant No. 2 etc. Certainly any evidence with regard to dealings between the appellants inter-se subsequent to the filing of the eviction petition would have no bearing on the point in issue because there is a lurking danger of self-serving evidence being created by the parties in order to holster up their case to the prejudice of the opposite party. As for the pass books and statements of account, the appellants have already placed on record some documents to countenance their stand that account No. 3184 which was admittedly in the name of Sohan Lal Ahuja was being operated solely for the purposes of appellant No. 1. Some letters have been placed on record to show there remittances were made of various amounts by appellant No. 1 to the said account from time to time. So, there is absolutely no justification for permitting the additional evidence, which was admittedly in the possession of the appellants, on the flimsy ground that they did not realise their importance till adverse finding was given by the trial Court; for the reasons stated above. Hence, I find absolutely no justification for taking a view different from that of the learned Rent Control Tribunal in this behalf.
13. As regards the service of notice under Order XII Rule 8 of the Code read with Section 66 of the Evidence Act, there is considerable force in the submission of the learned counsel for
the appellants that both the courts below slipped into a grave error in assuming that the said notice was duly served on appellant No. 1. Postal receipt marked ‘X2’ and the acknowledgement receipt marked ‘X3’ would no doubt show that a letter addressed to appellant No. 1 at their correct address of Bombay was sent by registered A.D. post and the same was duly delivered to someone on behalf of the addressee. This certainly raises a presumption in favour of official acts having been duly performed not only under Section 114 (f) of the Evidence Act but also under Section 27 of the General Clauses Act. Indeed, raising of such a presumption under Section 27 of the General Clauses Act would appear to be mandatory in view of the words “the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post” appearing in the said Section. These receipts were put to Shri Ahuja, appellant No. 2 when he was in the witness box and he denied receipt of any such notice. However, he could not say whose signatures appear on the acknowledgement receipt “X3”. No doubt, presumption arising under both Section 114, illustration (f) of the Evidence Act and Section 27 of the General Clauses Act is rebuttable one but it is well settled that mere denial of service without anything more is not enough to discharge the onus which lies on the addressee to disprove the receipt of letter and he must prove some circumstances which would show that the notice never reached the addressee. Reference in this context may be made with advantage to Madan Lal Sethi v. Amar Singh Bhalla [1980 (2) RCJ 543], in which it was held by Sultan Singh, J that mere denial by the tenant does not rebut the presumption raised under Section 114, illustration (f) of the Indian Evidence Act. The tenant must produce some other evidence to show that the usual course of the post was interrupted by disturbances .So, no exception can be taken to the presumption raised by the learned Rent Controller and for that matter sent the Tribunal with regard to the delivery of a letter sent to appellant No. 1 by registered A.D. post vide X2 & X3. However, the critical question which would still arise is whether it could be further inferred from this mere fact that notice, of which copy is marked X1, was sent in the said envelope to appellant No 1. There is not an iota of evidence with regard to the same as the said notice was produced at the stage of cross-examination of Ahuja and it was then placed on record. Neither the respondent nor any other witness testified to the fact that the registered envelope contained the original document, of which marked X 1 is a copy. Evidently it was incumbent on the appellants to adduce evidence to the effect that the registered letter contained the notice of which X 1 is the copy. Hence, both the courts below slipped into a grave error in presuming that the notice marked XI was contained in the registered letter which was delivered to appellant No. I vide acknowledgement receipt marked X3. If that be so, no adverse inference can be drawn against the appellants that they withheld the documents which they were called upon to produce vide notice marked Xl probably because the said documents, if produced, would not have supported the case of the appellants.
14. Finding himself in this predicament, the learned counsel for the respondent chose to fall back upon the rule of best evidence and urged that even if notice marked XI was not served on appellant No. 1, it was the bounden duty of the appellants to produce all the relevant material in their power and possession irrespective of the abstract doctrine of onus of proof. Reliance in this context is placed on Gopal Krishnaji Ketkar v. Mohamed Haji Latif, in which it was held that even if the burden of proof does not lie on the party the Court may draw an adverse
inference if he withholds important document in his possession which can throw light on the facts at issue. Said the Supreme Court:
IT is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
15. So, it will have to be seen whether having regard to the facts and circumstances of the case such a presumption would be well warranted against the appellants in the instant case.
16. That brings me to the merits of the ease, viz. the most crucial question : whether appellant No. 1 can be said to have sublet, assigned or parted with possession of the premises in question in favour of appellant No. 2 as contemplated in Clause (b) of the proviso to Sub- section (1) of Section 14 of the Act. The distinction between the three expressions “sublet”, “assigned” and “otherwise parted with possession” appearing in the aforesaid clause has been clearly brought out by a Division Bench of this Court in Hazari Lal & Ram Babu v. Gian Ram [1972 RCR 74], as under :
CLAUSE (b) to the proviso to Sub-section (1) of the Delhi Rent Control Act uses three expressions, namely “Sub-let”, “assigned” and “otherwise parted with possession” of the whole or any part of the premises without obtaining the consent in writing of landlord. These three expressions deal with three different concepts and apply to different circumstances. In Sub-letting there should exist the relationship of the landlord and tenant as between the tenant and his Sub-tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises Sub-let. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression “parted with possession” undoubtedly postulates the parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been given by the main lease and “the parting with possession” must have been by the tenant. The mere user by other persons is not parting with possession, so long as the tenant retains the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration, it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with the possession so long as, during his absence, the tenant had a right to return to the premises and be in possession thereof. A mere privilege or license to use the whole or a part of the demised premises which privilege or license can be terminated at the sweet will and pleasure of the tenant at any time
would not amount to parting with possession. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession.
17. It has, therefore, to be seen whether inference of Sub-letting, assignment or parting with possession of the premises by appellant No. 1 in favour of appellant No. 2 can be validly drawn having regard to the material on record. It is common ground between the parties that the premises were taken on rent by appellant No. 1 way back in 1966 and appellant No. 2 has been in occupation of the same ever since the inception of the tenancy. He was then looking after the business of appellant No. I at Delhi in his capacity as Manager of appellant No. 1. In other words, his possession over the premises was in his capacity as their employee. So, it may well be regarded as service license. A servant in occupation of premises belonging to his master may be a tenant of a licensee. Lord Justice Denning explained the legal position in this respect as follows in Torbett v. Faulkner [(1952) 2 TLR]:
PREVIOUSLY the holding of a servant was classified either as a service occupation or as a service tenancy. There was no third category. But nowadays, it is recognized that there is an intermediate position. He may be a licensee. A service occupation is, in truth, only one form of license. It is a particular kind of license whereby a servant is required to live in the house in order the better to do his work. But it is now settled that there are other kinds of license which a servant may have. A servant may in some circumstances be a licensee even though he is not required to live in the house, but is only permitted to do so because of its convenience for his work [See Ford v. Longford (1949) 65 The Times L R. 138. per Lord Justice Azquith and Webb. Ltd v. Webb (unreported, October 24, 1951) ]and even though he pays the rates, Gorham Contractors Ltd. v. Field (unreported March 26, 1952), and even though he has exclusive possession Cobb v. Lane [(1952) 1 the Times L.R. 1037]. If a servant is given a personal privilege to stay in a house for the greater convenience of his work, and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of the house is quantified in money; but he is given an interest in the land, separate and distinct from his contract of service, at a sum properly to be regarded as a rent, then he is a tenant, and none the less a tenant because he is also a servant. The distinction depends on the truth of the relationship and not on the label which the parties choose to put upon it.[See Facchini v. Bryson, (1952) 1 The Times L.R. 1386].
18. This statement of law was quoted with approval by the Supreme Court in B.M. Lall v. M/s. Dunlop Rubber Co. (India) Ltd. The Supreme Court elucidated the legal position saying that the test of exclusive possession is not conclusive and a servant in occupation of premises belonging to his master may be a tenant or licensee. The service occupation is a particular kind of license whereby a servant is required to live in the premises for the better performance of his duties. The Supreme Court further said, “now it is well settled law that a servant may be a licensee though he may not be in service occupation. Hence, the service license as distinguished from a service tenancy can exist even though the servant has exclusive possession of the premises.” Applying this criterion to the facts of the instant case, it would undoubtedly appear that the occupation of the premises in question by Ahuja, who was Manager of appellant No. 1 at the time of inception of the tenancy and who had apparently negotiated the tenancy in question, was in the nature of the service license. It is not the case of the appellants that the
occupation was tantamount to service tenancy. Indeed such a plea may have been self-defeating & suicidal. If that were so, the license automatically came to an end on the termination of service of appellant No. 2 in March 1972, it being only a personal privilege to occupy the premises for the greater convenience of his work. It may be noticed in this context that in B.M. Lull case under the standard form of agreement of license the occupation of the officer was to cease not only on the termination of his employment but also on his transfer from Calcutta and on his death. For obvious reasons a service license cannot survive the termination of service of the concerned servant and, therefore, he has to surrender vacant possession of the premises in his occupation on the termination of his service. Admittedly, this was not done in the instant case. So, the crucial question for determination would be whether continuation of occupation of the premises in question by appellant No. 2 even after March 1972 was a mere license, it being purely a personal privilege or whether it amounts to Sub-letting, assignment or parting with possession thereof by appellant No. 1.
19. The law is well settled that a person who is let into exclusive possession is prima facie to be considered to be a tenant. Nevertheless, he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a license merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege, with no interest in the land, he will be held to be a licensee only. It is equally well settled that the initial burden lies on the landlord to establish that any of the conditions mentioned in Clauses (a) to (1) of the proviso to Section 14(1) exists. The power of the Controller to pass an order for recovery of possession of the premises under Clause (b) depends upon the fact whether the premises in question have been sub-let, assigned or otherwise parted with possession thereof. Since the factum of appellant No. 2 being in exclusive possession of the premises in question subsequent to the termination of his service is not in dispute, it will prima facie warrant an inference that there has been a transfer of possession. Hence, the onus will shift on the appellants within whose special knowledge the facts explaining the manner in which such possession has been transferred and they have to discharge the burden of proving such facts which would negative the assumption of Sub-letting, assignment or parting with possession of the premises in question. In the words of I.D. Dua, J. (as His Lordship then was):
A landlord is almost always a stranger to agreements of Sub-letting 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 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 the landlord. The proof of sub-letting thus depends upon the probability of the premises having been sub-let, 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 sub-let. [Kishan Chand v. Kundal Lal, 1967 (69) PLR (SN) 95]
20. Reference in this context may also be made to Abdul Azia v. Mohd. Taqub, (1971 RCJ 492), Abu v. Chekkyil Poonambath Beebi [1970 RCJ 970] and Dharam Chand v. Kasturi
Lal [1977 (2) RCJ 276]. The gist of all these authorities is that the burden of proof in civil proceedings is not something static that it keeps on changing on the proof of certain facts from which the court can legitimately draw an inference of subletting. Hence, it is for the appellants to prove the facts within their special knowledge and to establish that appellant No. 2, whose presence in the premises in question is admitted, is neither a sub-tenant nor an assignee nor a person in whose favour possession of the premises has been parted with. As shall be presently seen, the learned Rent Control Tribunal has been rightly guided by this principle of law and he has come to the right conclusion that the appellants have failed to establish by preponderance of probabilities that appellant No. 1 still retains and he has not divested itself of the legal possession of the premises in question.
21. It bears repetition that the stand of the appellants precisely is that after appellant No. 2 ceased to be in the employment of appellant No. 1 he was acting as a local representative of the latter at Delhi. According to appellant No. 2 who appeared in the witness box for himself as also on behalf of appellant No 1. flaunting, as he did, special power of attorney dated 11th January 1979 Ex. RW 4/1 executed by appellant No. 1 in his favour that after leaving the service of appellant No. 1 he was serving as their sole representative at Delhi in negotiating various transactions and business deals and he was earning brokerage as well as commission from appellant No. 1. He further asserted that he was not paying any rent or remuneration for the use of the premises in question to appellant No. I and the rent of the premises were being paid by him all along on behalf of appellant No. 1. He also explained that he was operating an account being Account No 3184 with the Central Bank of India, Najafgarh Road Branch, New Delhi, in his own name but the said account pertained wholly and solely to the business of appellant No 1 and he was being reimbursed for all the amounts disbursed by him from time to time by appellant No. 1. It would, no doubt, appear from certain correspondence which has come on record that appellant No. 2 was working in representative capacity on behalf of appellant No. I in negotiating certain business deals. For instance, vide letter dated 28th April 1972, Ex. RW4/24, the Delhi Cloth & General Mills intimated appellant No. I that appellant No. 2 had left some samples of Greek and Turkish cotton with them. The opening words of the letter “Your Shri Sohan Lal” are obviously indicative of the fact that he acted on behalf of appellant No. 1. Further, vide letter dated Ist June 1973, Ex. RW4/42, appellant No. 1 informed the Delhi Cloth & General Mills that Ahuja was company’s business representative in Delhi for the period Ist April 1973 to 1st March 1974 and they had authorized him to negotiate matters with them i.e. D.C.M.relating to sale of cotton. Ex. PW4/25 is letter dated 13th November 1975 written by appellant No. 2 to Ahuja informing them that they had dispatched certain samples to him and they would appreciate his advice in due course whether the cotton had tested satisfactorily for requirements. The words “We have dispatched to your goodselves” with which the letter opens are very pertinent to note. They are obviously meant to convey that dealings between the parties were not as between an employer and a servant but between two independent businessmen. Likewise, vide letter dated 19th December 1973 Ex. RW4/26. appellant No. 2 wrote to Ahuja to ask the Mills mentioned therein to send them their formal application for sale promotion addressed to the Indian Cotton Mills Federation, Bombay. Ex. RW4/27 is yet another letter dated 22nd January 1974 vides which appellant No. 1 sent a copy of the telex sent by them to the S.T.C., New Delhi and requested Ahuja to contact the S T.C. and try to find out their reaction and if possible, get their counter offer and let them i.e. appellant No. 1, know.
There are some more letters placed on record which are almost on the same lines and they cumulatively tend to show that appellant No. 1 used to do odd jobs for appellant No. 2 and he even represented the latter while negotiating certain business deals. However, as pointed out by the learned Rent Control Tribunal for reasons best known to them they have not brought any material on record to prove what were the terms and conditions on which appellant No. 2 was functioning on behalf of appellant No. 1 subsequent to March 1972. Indeed, appellant No. 1 did not even think it advisable to examine one of its directors or senior officials to throw light on the true nature of relations between the appellants interse subsequent to March 1972. The evidence produced by the appellants does not even remotely indicate that the possession of appellant No. 2 over the premises in question was pursuant to the terms and conditions on which he was working for appellant No. 1 and that it was purely a personal privilege of appellant No. 2 for the better performance of the duties on behalf of appellant No. 1. It is true that some letters have been placed on record which will indicate that certain sums for money have been remitted by bank drafts or telegraphic transfers from the Bombay bank account of appellant No. 1 to account No. 3184 of appellant No. 2 with Central Bank of India, Najafgarh Road Branch, but those payments are perfectly in conformity with the nature of the jobs and services which appellant No. 2 was performing and rendering to appellant No. 1 subsequent to March 1972. On his own showing appellant No. 2 used to receive remuneration and brokerage etc. from appellant No. 1 for the work done by him. It is also admitted by him that be was doing his own business as a broker in the name of M/s. Eskay Cotton Links. However, he denied that he was carrying on the said business at the premises in question. This contention of his is apparently negatived by letter dated 25th January 1975, Ex. R13 addressed by appellant No. 1 to M/s. Eskay Cotton Links, A-41, Kirti Nagar. No explanation or evidence in rebuttal thereof except bare denial has come on record. The least he could do was to disclose the particular of the premises where he was running his aforesaid business.
22. On the other hands, the learned counsel for respondent has adverted to some documentary evidence which goes to show that serious differences had arisen between the parties and as a sequel thereto appellant No. 1 even informed the respondent that they would be vacating the premises in question on 31st January 1975. To narrate the events in a proper sequence it may be stated that notice dated 11th November, 1974 Ex. AW3/3 was sent by the respondent to appellant No. 1 intimating that they had not paid rent with effect from 1st August 1974 and thus a sum of Rs. 3,000/-had fallen due from them. They also informed appellant No. 1 that the tenancy was being terminated with effect from 31st December 1974. In reply to the said notice, a telegram dated 6th January 1975 Ex. AW3/7 was sent by appellant No. 1 to the respondent informing them that they would be vacating the premises on 31st January 1975. They also instructed Ahuja to inform the respondent accordingly. This telegram was confirmed by appellant No. 1 vide letter dated 8th January 1975, Ex. AW3/8 and they reiterated that they would be vacating the premises in question on 31st January 1975 Its copy too was sent to Ahuja. However, vide their telegram dated 23rd January 1975 appellant No. 1 withdrew their commitment and they informed the respondent vide their letter dated 22nd January 1975, Ex. AW3/9 that their previous telegram and letter had been issued inadvertently, improperly and under a misapprehension. They further stated that the appellant would not be vacating the premises in question on 31st January 1975 as wrongly advised to her i.e. the respondent. Thus, they revoked the telegram and the letter Ex. AW3/7 and AW3/8 respectively. Another
significant offshoot of this correspondence was that appellant No. 2 wrote a letter to the husband of the respondent who was then in Kuwait on 2nd January 1975, Ex. R 7, which reads as under: “On your last visit here, I told you that I have developed some differences with my Company and I may have to vacate your house shortly. Now a sort of settlement with the Company has arrived at according to which they have offered me that choice to retain this house of the Company may keep it for its own use. I can have the house only if you transfer the rent receipts in my name.”
23. It is thus manifest that on account of some serious differences having arisen between the appellants inter se, appellant No. 1 had decided to surrender vacant possession of the premises in question to the respondent on 31st January 1975. However, they seem to have patched up their differences and come to an amicable settlement. It is anybody’s guess what the differences were and how they were resolved. It was certainly incumbent upon the appellants to place on record all the relevant facts in order to show that under the terms and conditions of the settlement only a personal privilege to occupy the premises in question was granted by appellant No. 1 to appellant No. 2 and that the former did not divest itself totally of control over and legal possession of the premises in question. Hence, the initial presumption of parting with possession of the premises in question in favour of appellant No. 2 remains absolutely unrebutted and I find no cogent ground to take a different view of the matter on the basis of the material on record and interfere with the concurrent findings of the courts below. The language of Section 14(1) is wide enough not only to include any sub-lease but even assignment or any other mode by which possession of the tenanted premises is parted. Needless to say that power of attorney Ex. PW4/1 which is of a much later date is of hardly any consequence and can have no possible bearing on the point in issue. I may also advert in this context to the interdict contained in Sub-section (2) Section 39 of the Act which debars an appeal from an order made by the Tribunal unless it involves some substantial question of law. In other words, the jurisdiction of the High Court in second appeal is confined to determination of substantial question of law and not to reverse the findings of fact. Hence, the High Court in second appeal cannot re-appreciate the evidence and interfere with the findings of fact reached by the lower appellant Court, unless of course, it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse.[See Vinod Kumar v. Ajit Singh Ahluwalia, 1969(1) RCR 181], wherein it was held that the High Court was incompetent to re-assess the evidence afresh and it was bound by the decision of the Tribunal on questions of fact.
24. The upshot of the whole discussion, therefore, is that this appeal is devoid of any merit. It is accordingly dismissed with costs
