CHAPTER 5 IMPLEMENTATION OF EVICTION: JUDICIAL...

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131 CHAPTER 5 IMPLEMENTATION OF EVICTION: JUDICIAL RESPONSES The major source of rate of return from housing is capital gains on the value of the house. By making evictions and increase in rents over time difficult, the Rent Control Act has affected the rate of return adversely 149 5.1“Evict” meaning To “evict” literally means “to dispossess by law or expel by legal process”, eviction consists in physical act of throwing out the tenant from the building which he is occupying. The phrase “in accordance with the provisions of this section”, only means “in the method or mode provided by the section”, that is, by means of obtaining an order for eviction from the Collector. The eviction shall not take place except “in accordance with the provisions of this section”. This may legitimately be construed to mean that the eviction shall take place only in the manner provided by the section. In other words, it is not the order of eviction that is required to be “in accordance with the provisions” of the sections, but the eviction is required to take place as provided by the section. 150 5.2Grounds of Eviction under The Haryana Urban (Control of Rent and Eviction) Act, 1973 5.2.1 S.13(2)(i) Arrears of rent 149 National Institute of Urban Affairs (1989: 190). 150 Ram Parshad v. Mukhtiar Chand, ILR 1958 Punjab 1553 (P&H) (DB).

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CHAPTER 5

IMPLEMENTATION OF EVICTION: JUDICIAL

RESPONSES

The major source of rate of return from housing is capital gains

on the value of the house. By making evictions and increase in

rents over time difficult, the Rent Control Act has affected the

rate of return adversely149

5.1 “Evict” meaning

To “evict” literally means “to dispossess by law or expel by legal

process”, eviction consists in physical act of throwing out the

tenant from the building which he is occupying. The phrase “in

accordance with the provisions of this section”, only means “in the

method or mode provided by the section”, that is, by means of

obtaining an order for eviction from the Collector. The eviction

shall not take place except “in accordance with the provisions of

this section”. This may legitimately be construed to mean that the

eviction shall take place only in the manner provided by the

section. In other words, it is not the order of eviction that is

required to be “in accordance with the provisions” of the sections,

but the eviction is required to take place as provided by the

section.150

5.2 Grounds of Eviction under The Haryana Urban (Control

of Rent and Eviction) Act, 1973

5.2.1 S.13(2)(i) Arrears of rent

149 National Institute of Urban Affairs (1989: 190).

150 Ram Parshad v. Mukhtiar Chand, ILR 1958 Punjab 1553 (P&H) (DB).

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5.2.1.1 Interpreting the expression “arrears of rent”

In Behari Lal v. Ajudhia Das, the Delhi High Court while

interpreting S. 13 of the East Punjab Urban Rent Restriction Act,

1949 took the view that the terminology used therein did not show

that any duty was cast on the Rent Controller to assess the arrears

of rent due independently of the stand taken by the landlord. It was

held therein that in a case where the demand of the landlord had

been met availing of the proviso to S. 13(2)(i) of the said Act, the

Rent Controller had no authority to enter into an inquiry to find out

as to what the rate of rent was, before dismissing the application of

the landlord on this aspect. The duty of the Rent Controller was

confined to see whether on the date of hearing the tenant has paid

or tendered the arrears of rent asked for by the landlord along with

interest and costs. The moment that was done, it was the duty of

the Rent Controller to dismiss the application for eviction. It was

also held therein that the mere fact that the tenant had paid the rent

while reserving his right to recover the excess paid by him, the

payment on his behalf could not be termed conditional.151

5.2.1.2 Deposit of rent with costs and interest before

first date of hearing

Like all other Rent Control Acts in the other States in the country,

the Rent Act is a piece of social legislation which seeks to strike a

just balance between the rights of the landlords and the

requirements of the tenants. The Act prevents the landlord from

taking the extreme step of evicting the tenant merely on the ground

of default in payment of rent if the landlord is guaranteed entire

151 1970 Rent C. J. 671: 1970 RCR 76.

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payment of the entire arrears of rent, cost and interest. Thus, the

proviso affords a real and sanctified protection to the tenant which

should not be nullified by giving a hyper technical or literal

construction to the language of the proviso which instead of

advancing the object of the Act may result in its frustration.

The statutory provisions of the proviso which is meant to give a

special protection to the tenant, if properly and meaningfully

construed, lead to the inescapable conclusion that the rent together

with cost and interest, etc., should be paid on or before the date of

the first hearing and once this is done, there would be a sufficient

compliance with the conditions mentioned in the proviso.152

5.2.1.3 Object of the act

Rent Act is a beneficial legislation in favour of the tenant. When

any default is committed by the tenant in tendering or paying rental

arrears in Court alongwith interest and cost, but unless the Court

finds him guilty of wilful default his eviction cannot be ordered.153

In Jaswant Singh v. Chuni Lal154 it was held:-

"Under Section 13(2)(i) the tenant has been made liable to be

ejected on the ground of non-payment of arrears of rent and under

second proviso thereto the term "arrears of rent" has been restricted

to a period of three years immediately preceding the date of

application for ejectment. It is true that under Section 4(1) of the

Act the fair rent fixed becomes operative from the date of the

application and in certain cases the period covered there under may

152 Mangat Rai v. Kidar Nath, AIR 1980 SC 1709.

153 Sukhwinder Singh v. Ashok Kumar, 1997(2) RCR(Rent) 410 (P&H) (DB).

154 AIR 1980 PH 137.

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be more than three years. The fact that the fair rent fixed exceeds

the contractual rent and becomes operative for period more than

three years would not enlarge the scope of "arrears of rent" given in

second proviso to Section 13(2)(i) in the context of that section; In

other words, a tenant would not be liable to be ejected on the

ground of non-payment of arrears of rent if he tenders rent, for a

period of three years immediately preceding the date of application

for ejectment irrespective of the fact that the fair rent fixed exceeds

the, contractual rent and is operative for a period more than three

years. It is admitted that the respondent tenant did tender arrears of

rent on the first date of hearing for a period of three years

immediately preceding the date of the application. The Rent

Controller, therefore, rightly concluded that the respondent was not

liable, to be ejected on the ground of non-payment of arrears of

rent."

Sub-section (2) of Section 13 envisages filing of the application by

the landlord for eviction of the tenant and passing of an order by

the Rent Controller if he is satisfied that the tenant had not paid or

tendered the rent due from him in respect of the building or rented

land within 15 days after expiry of the time fixed in the agreement

of tenancy or in the absence of any proviso to Section 13(2) (i)

contains a deeming fiction, it lays down that if the tenant, within a

period of fifteen days of the first hearing of the application for

ejectment after due service, pays or tenders the arrears of rent and

interest, to be calculated by the Rent Controller at eight per centum

per annum on such arrears together with such costs of the

application, if any, as may be allowed by the Rent Controller, the

tenant shall be deemed to have duly paid or tendered rent within

the time specified in Clause(i), Second proviso lays down that the

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landlord shall not be entitled to claim arrears of rent for a period

exceeding three years immediately preceding the date application.

The expression "fair rent" finds mention in Sections 4, 5(1) and

6(1) and the expression 'arrears of rent" finds mention in the first

and second provisos to Section 13(2)(i). The word "rent" appears in

Sections 6-A(1) and 8(1). The same word appears in Clause (i) of

Section 13(2) in conjunction with the word "due". There is nothing

in the plain language of Section 13(2)(i) and two provisos

appearing below it which may suggest that the expression "arrears

of rent" used therein should receive different interpretations for

different types of cases i.e. one in the cases in which the landlord

applies for eviction after determination of fair rent under Section 4

so as to entitle him to claim arrears of rent for a period exceeding

three years immediately preceding the date of application for

eviction and the other in the cases in which the landlord applies for

eviction without seeking determination of fair tent. In our opinion,

even if the fair rent fixed under Section 4(1) exceeds the

contractual rent and becomes operative for a period of more than

three years, the landlord cannot seek a direction for payment of

arrears of rent exceeding three years and non-payment thereof

cannot be made a ground for eviction of the tenant.

In view of the above discussion, we hold that the scope of the

expression "arrears of rent" used in second proviso to Section

13(2)(i) of the Act cannot be enlarged simply because the fair rent

fixed by the Rent Controller may exceed the contractual tent and

become operative for a period exceeding three years. As a logical

corollary, we hold that the proposition laid clown by the learned

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Single Judge in Jaswant Singh's155 case represents correct position

of law and does not warrant re-consideration.

In Basant Ram v. Gurcharan Singh156, a Division Bench of this

Court interpreted Section 13(2)(i) of Pepsu Urban Rent Restriction

Ordinance and held as under;-

"Where the tenant complies with the demand of the landlord with

respect of the arrears of rent due from him constituting the cause of

action for the petition for eviction the tenant should be deemed to

have satisfied his landlord's claim. The rights and liabilities of the

parties as they exist on the date of the initiation of the , proceedings

atone fall within the scope of the investigation of which the

tribunal is properly seized and it is generally incompetent for a

tribunal to adjudicate upon any controversial matter which does not

find place in the pleadings of the parties. Thus the proviso to

Section 13(2)(i) means that the amount to be deposited by the

tenant should only be the amount due as arrears according to the

landlord's application up to the date on which the application for

ejectment is made and not the entire amount due as arrears up to

the date of the first hearing when the deposit is made in court"

Second proviso to Section 13(2)(i) of the Haryana Urban (Control

of Rent and Eviction) Act, 1973 is applicable to claim or arrears of

rent after an application for fixation of fair rent has been decided

and the landlord is not entitled to claim arrears of rent for a period

exceeding three years."157

155 Supra note 6.

156 A.I.R. 1959 Punjab 578.

157 Balwant Singh and others v. Neki Ram (2003) 134 PLR 452.

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Son is tendering the rent. While tendering the arrears of rent son

never claimed that he was tendering as the sub tenant. In his

statement son deposing that he tendered the rent on behalf of his

father. It was held that the tender of rent by the son was as a

member of the family of the tenant. When rent is tendered by any

member of the family of the tenant to the landlord without any

inconsistent claim it cannot be termed as invalid tender.158

In a case where a substantial amount had been received as advance

at the time of letting, which was liable to be refunded without

interest on the expiry of the lease, it was held in Modern Hotel v.

K. Radhakrishnaiah, (1989) 2 SCC 686, that when the amount of

arrears of rent was smaller than the advance amount held by the

landlord on account of the tenant, there was no default in payment

of rent and the grant of eviction on the ground of arrears of rent

was not justified.159

5.2.1.4 Ejectment on ground of non-payment of rent

The tenant can be ejected from the premises where he has not paid

or tendered the rent due by him within fifteen days after the expiry

of the time fixed in the agreement of tenancy with his landlord or

in the absence of any such agreement, by the last day of the month

next following that for which the rent is payable.

The tenant however cannot be ejected if he on the first hearing

pays or tenders the arrears of rent and interest at six percent per

annum on such arrears together with the cost of application

158 Rama Kant and others v. Sona Devi, AIR 2002 SC 1154: 2002 (2) JCR 133 SC: 2002(1)

Rent LR (SC) 299: 2002 (2) SCR 14 .

159 G. Reghunathan v. K.V. Varghese, 2005(2) L.A.R. 178 (SC).

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assessed by the Controller, the tenant shall be deemed to have duly

paid or tendered the rent within the time aforesaid.

It was held by the Supreme Court that if a suit for eviction is based

on the ground set forth in clause (a) of sub-section (1) of Section

13 of the Act, the landlord must allege and prove three

requirements, namely,

(i) the tenant is in arrears of rent,

(ii) such arrears of rent were due for more than six months

and

(iii) the tenant has failed to pay such arrears of rent to the

landlord.

Excepting these requirements there is no other requirement of law

which a landlord is to plead and prove for obtaining decree of

eviction.160

5.2.1.5 Interpretation of the phrase “the first

hearing of the application”

As to what would be the first date of hearing, was considered by

the Apex Court in Sham Lal (Dead) by L.Rs. v. Atma Nand Jain

Sabha (Regd.) Dal Bazar161, Suraj Ahmad Siddiqui v. Prem Nath

Kapoor162 and Advaita Nand v. Judge, Small Cause Court,

Meerut and others163. In Sham Lal's case, proviso to clause (i) of

Sub-section (2) of Section 13 of the Act was under consideration,

whereas in Suraj Ahmad Siddiqui's and Advaita Nand's case, the

provision of U.P. Urban Buildings (Regulation of Letting, Rent and

160 Ladu Ram v. Ganesh Lal, 1999(2) RCR 220 (SC).

161 (1987-1)91 PLR 1 (SC).

162 (1993)4 SCC 406.

163 (1995) 3 SCC 407.

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Eviction) Act, 1972, were under consideration. Their Lordships of

the Supreme Court in all these three judgments have held that the

first date of hearing means the date on which mind is applied by

the Court to determine the case and not the day fixed for return of

the summons. Their Lordships observed that the day when the

Court applies its mind to the case, would be the time when either

issues are determined or evidence taken.164

It is imperative that the word "the first hearing of the application"

have to be interpreted in a manner which promote the object of this

beneficial legislation. Viewed from this aspect it must be held that

the words "first hearing of the application" as used in proviso (i) to

sub-section 2 of section 13 of the said Act does not mean the day

fixed for return of the summons or the returnable day but the day

when the Court applies its mind to the case.

In Mangat Rai v. Ved Prakash165 the views expressed in para 15

of the judgment were:-

"15. The principles that can be deduced from the plethora of case

law on the point, including the authorities referred to above, are

consistent with the literal meaning of word 'hearing' which in its

Dictionary sense means 'the listening of evidence and pleading in

Court of law, the trial of a cause'. It seems to be abundantly clear

that in order to constitute, 'first hearing' within the meaning of Sec.

13(2)(i) proviso, the following prerequisites must co-exist:--

(i) There should be a 'hearing' which presupposes the

existence of an occasion enabling the parties to be

164 Abnash Chander v. Mulakh Raj (Died) Through His Lrs., 1997(1) RCR(Rent) 673(P&H).

165 1969 Vol. 1 Rent control Reporter p. 96.

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heard and the court to hear them in respect of the

cause.

(ii) Such hearing should be the first in point of time after

due service of the summons/notice on the tenant. Both

these essentials are positive, and in the absence of

either of them, there can be no "first hearing".166

The High Court by the orders impugned in these appeals has

reversed the judgment of trial court and defence of the petitioners -

tenants in each of the cases has been struck off on the alleged

ground of non-deposit of arrears of rent within the specified period

in accordance with provisions of Order XV Rule 5167 of the Code

166 Sham Lal (Dead) By LRs. v. Atme Nand Jain Sabha (Regd.), Dal Bazar 1987 AIR 197,

1987 SCR (1) 509.

167 "5. Striking off defence for failure to deposit admitted rent. - (1) In any suit by a lessor for

the eviction of a lessee after the determination of his lease and for the recovery from him of

rent or compensation for use and occupation, the defendant shall, at or before the first

hearing of the suit, deposit the entire amount, admitted by him to be due together with

interests thereon at the rate of nine per cent per annum and whether or not he admits any

amount to be due, he shall throughout the continuation of the suit regularly deposit the

monthly amount due within a week from the date of its accrual, and in the event of any default

in making the deposit of the entire amount admitted by him to be due or monthly mount due as

aforesaid, the Court may, subject to the provisions of Sub-rule (2) strike off his defence.

Explanation 1.- The expression "first hearing" means the date for filing written statement or

for hearing mentioned in the summons or where more than one of such dates ore mentioned,

the last of the dates mentioned.

Explanation 2.- The expression "entire amount admitted by him to be due" means the entire

gross amount whether as rent or compensation for use and occupation, calculated at the

admitted rate of rent for the admitted period of arrears after making no other deduction

except the taxes, if any, paid to a local authority in respect of the building on lessor's account

and the amount, if any, deposited in any Court.

Explanation 3.- (1) The expression "monthly amount due" means the amount due every month,

whether as rent or compensation for use and occupation of the admitted rate of rent, after

making on other deduction except the taxes, if any, paid to a local authority, in respect of the

building on lessor's account.

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of Civil Procedure. The trial court by separate orders passed in

each of the cases had rejected the prayer of the landlords for

striking off the defence and allowed the applications of the

appellants - tenants seeking permission to deposit the arrears of

rent.

The contention advanced on behalf of the tenants that the arrears of

rent were duly deposited within the specified period from the first

effective 'date of hearing' also gets support from the decision of

this Court in the case of Sham Lal (Dead) By LRs. v. Atme Nand

Jain Sabha (Regd.), Dal Bazar168. In that case, the words 'first

hearing of the application,' as used in Section 13(2)(i) of East

Punjab Urban Rent Restriction Act, came up for interpretation. It

was held that to promote object of the legislation contained in the

provisions, the expression used therein has to be construed

reasonably. The use of the expression 'first hearing' is held not to

mean 'the date fixed for return of summons or the returnable date

which is the day of appearance' before the court of the parties. See

the following observations of this Court in above respect :-

It appears that there is consensus in regard to the interpretation of

the expression 'first day' in the context of the rent legislations of

(2) Before making on order for striking off defence, that Court may consider any

representation made by the defendant in that behalf provided such representation is made

within 10 days, of the first hearing or, of the expiry of the week referred to in Subsection (1) as

the case may be.

(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff :

Provided that such withdrawal shall not have the effect of prejudicing any claim by the

plaintiff disputing the correctness of the amount deposited :

Provided further that if the amount deposited includes any sums claimed by the depositor to

be deductible or any account, the Court may require the plaintiff to furnish the security for

such sum before he is allowed to withdraw the same."

168 Supra note 17.

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several other States, for instance, the Gujarat High Court in Shah

Ambalal Chhotalal v. Shah Babaldas Dayabhai, dealing with the

identical question as to the meaning of the words "the first day of

the hearing of the suit" as provided in Sub-section 3(b) of Section

12 of Bombay Rents, Hotel end Lodging House Rates (Control)

Act, 1947 has observed after considering several decisions that "the

words 'the first day of hearing' as meaning not the day for the

return of the summons or the returnable day, but the day on which

the court applies its mind to the case which ordinarily would be at

the time when either the issues are determined or evidence taken".

In the instant cases before us, the trial court accepted the deposit of

arrears of rent by the tenants and refused to strike off defence for

more than one valid reason. The most important reason assigned by

the trial Judge is that there is a serious question of jurisdiction of

the civil court involved in the cases. The court also came to the

conclusion that as the arrears of rent were deposited in the Bank,

there were no mala fides on the part of the tenants. The rent was

not withheld for any ulterior purpose. The arrears of rent were,

thereafter, deposited in court with an application or representation

which was made in accordance with Sub-rule (2) of Rule 5 of

Order XV of the Code. The impugned orders dated 25.2.2002 of

the High Court in all these cases are hereby set aside. These cases

are remitted to the trial court for proceeding with the suits In

accordance with law.169

169 M/s Mangat Singh Trilochan Singh through. Mangat Singh (D)through LRs and others v.

Satpal 2003(2) Rent Control Reporter 567 (S.C.).

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5.2.1.6 Non-payment of rent after opportunity given

for tendering rent

Landlord claimed the rate of rent to be Rs. 150/-. The stand of

tenant was that rate of rent was Rs. 72/- per month. The learned

Rent Controller came to the conclusion that the rate of rent was Rs.

150/- per month and consequently held that the tender having not

been made as per the demand of the landlord he was liable to be

ejected. It was held inter alia;

(i) Rent Controller directed to issue notice to the parties and

thereafter determine the arrears of rent along with interest

payable thereon and the costs, which are required to be

paid by the tenant by fixing the date of hearing for the

said purpose.

(ii) An opportunity would be provided to the tenant/petitioner

for making the tender.

(iii) The learned Rent Controller will be at liberty to pass

eviction order in case of non-payment of rent.170

Determination of rate of rent of demised premises is not covered

either expressly or impliedly by the provisions of the East Punjab

Urban Rent Restriction Act, 1949 or by the Haryana Urban

(Control of Rent and Eviction) Act, 1973. In the case of Sawan

Ram v. Gobinda Ram and another171, it was held that jurisdiction

of Civil Court was impliedly barred from the field covered

specifically and squarely by the provisions of the Rent Control Act.

However, that case pertained to ejectment of tenant from the

demised premises. Field of ejectment of tenant is specifically and

170 Parkash Chand v. Lachhman Dass, 2009(2) RCR(Rent) 165(P&H).

171 AIR 1980 (P&H) 106.

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squarely covered by the provisions of the Rent Control Act, and

therefore, jurisdiction of Civil Court is impliedly barred regarding

the same. On the contrary, Civil Court is the only Court of

competent jurisdiction to determine the rate of rent as well as to

pass the decree for recovery of arrears of rent. Rent Controller

under Rent Control Act cannot even pass order or decree for

recovery of arrears of rent. Jurisdiction of Civil Court to try the

instant suit for recovery of arrears of rent is definitely not barred by

provisions of the Rent Control Act.172

5.2.2 S. 13(2)(ii)(a) Sub-letting

5.2.2.1 Receiving of letter by son on address of shop

does not make him sub-tenant

Where the tenant has after the commencement of this Act without

the written consent of the landlord transfers his right under the

lease or sublets the entire building or rented land or any portion

thereof, he is liable to ejectment under this Act. The initial onus to

prove subletting is on landlord but the moment a third person is

found in possession, it must not be inferred that it is a case of

subletting.

In all cases of subletting, the law is well settled that if a third

person is in occupation then inference of subletting can be drawn.

It is for the tenant or that person to explain the position. However,

if it is explained that he is merely a licensee having no right or

legal possession of the premises, in that event, it is improper to

draw inference of subletting and it must be taken that the position

has been explained. It cannot be accepted as a broad principle of

172 Surjit Singh v. Vikas Talwar, 2012(2) RCR(Rent) 183(P&H).

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law that the moment a third person is found in possession, it must

be inferred that it is a case of subletting. The facts of each case

must be examined, scrutinized and thereupon inference should be

drawn.

This controversy has been considered more often than once.

Reference to some of the precedents would be in the fitness of

things. In the case of Smt. Krishnawati v. Hans Raj173, a petition

for eviction was filed under the Delhi Rent Control Act, 1958. It

was alleged that the property has been sublet. Smt. Krishnawati

had taken the premises on rent. The shop was being run by her

husband. The question in controversy arose before the Supreme

Court was as to if the property was sublet or not. The contention

was repelled and it was held that if two persons live together in a

house as husband wife and if one of them own the house and allow

the other to carry on the business, it would be rash inference to

draw that it has been sublet.

More close to the facts of the present case is the decision of the

Delhi High Court in the case of Chander Kishore Sharma v. Smt.

Kampa Wati174, The tenanted premises had been taken by the

father. He was living with his son. The question arose as to

whether when the son had set up his independent business in the

suit premises it was subletting or not. It was held that the

presumption would be otherwise and the Court went on to

conclude as under :

“It is true that there is no presumption in law that a father or a son

can never sublet, assign or otherwise part with possession of the

tenanted premises in favor of the other. But it will be disastrous to

173 AIR 1974 SC 280.

174 AIR 1984 Delhi 14.

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hold that because the parent or progeny of the tenant lives or

carries on business in the tenanted premises one must presume that

there is some kind of parting with possession. Such an approach is

not permitted by law, unless there are facts which unequivocally

compel one to do so. The accepted way of life in this country is

that a father and a son are normally expected to live together, earn

together and spend their separate earnings for each other and the

family. Cogent and strong facts are required to displace this life

style. For these observations I will draw support from Smt.

Krishnawati v. Shri Hans Raj175, wherein the Supreme Court held

that if two persons live together in a house a husband and wife and

if one of them who owns the house allows the other to carry on

business in a part of it, it will be, in the absence of any other

evidence a rash inference to draw that the owner has let out that

part of the premises.”

Supreme Court in the case of Jagan Nath (deceased) through L.

Rs. v. Chander Bhan176, held:

"It is well settled that parting with possession meant giving

possession to persons other than those to whom possession had

been given by the lease and the parting with possession must have

been by the tenant, user by other person 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 possession there is no parting with

possession in terms of Clause (b) of Section 14(1) of the Act. Even

175 1974 AIR 280.

176 AIR 1988 SC 1363.

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though the father had retired from the business and the sons had

been looking after the business in the facts of this case, it cannot be

said that the father had divested himself of the legal right to be in

possession. If the father has a right to displace the possession of the

occupants, i.e. his sons, it cannot be said that the tenant had parted

with possession."

Once again in the case of Delhi Stationers & Printers v. Rajendra

Kumar177, the tenanted premises consisted of three rooms, a

kitchen and a toilet. The landlord filed an eviction petition and one

of the grounds was that the property has been sublet. It was held

that merely if the brother-in-law of the tenant was using the latrine

and kitchen was not enough to conclude that the property has been

sublet. The Supreme Court held as under :--

"If the instant case is considered in the light of the aforesaid

principles laid down by this Court it cannot be said that the

appellant has either sub-let or parted with the possession of a part

of the premises in favour of Mahendra Singh who is brother-in-law

of the appellant and is also employed with the appellant. Mahendra

Singh is a tenant under the respondent in respect of room marked J.

in the site plan (Ex. A-1). The mere user of the kitchen and latrine

by Mahendra Singh while residing in the portion let out to him by

the respondent cannot mean that the appellant has transferred the

exclusive right to enjoy the kitchen and latrine and has parted with

the legal possession of the said part of the premises in favour of

Mahendra Singh".

Similarly, in the case of Shamsher Singh v. Sampuran Singh178,

eviction petition was filed on the ground of subletting. Sampuran

177 1990 HRR 263 : (AIR 1990 SC 1208).

178 (1998) 2 Rent LR 584.

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Singh respondent had taken the premises on rent. He started the

business in the said property. Respondent No. 2, son of the tenant

who was residing with the tenant, conducted some business from

the said premises. It was held that when legal possession was

retained by the tenant and that they were closely related, it cannot

be inferred that it is a case of subletting.

Reverting back to the facts of the present case, it had already been

found that the son of the petitioner has given his postal address and

receiving the letters at the address of the shop in question. He has

got installed a telephone in the suit premises and the advertisement

that appear with respect to the business was also showing the

address of the suit premises. But it cannot still be inferred that he

was in legal possession of the same to the ouster of the tenant. The

tenant himself was carrying on the business, admittedly, from the

front portion of the shop. A Local Commissioner had been

appointed in the trial Court and he has reported that the petitioner

is carrying on his business. There were some tables and chairs on

the back portion of the shop. Even if it be taken that it was being

used by the son of the petitioner, still it cannot be termed that he

was in legal possession of the suit premises. This is for the added

reason that the only approach to the back portion is from the front

portion of the shop where the tenant-petitioner has been carrying

on his business. By no stretch of imagination in the facts of the

present case, it can be termed that legal possession had ceased to be

with tenant-petitioner.179

5.2.2.2 Heritable tenancy

179 Om Parkash v. Kailash Chander, AIR 2000 P&H 88.

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In the case of Associated Hotels of India Ltd., Delhi v. S.B.

Sardar Ranjit Singh 180, this Court held that when eviction is

sought on the ground of subletting, the onus to prove subletting is

on the landlord. It was further held that if the landlord prima facie

shows that the third party is in exclusive possession of the premises

let out for valuable consideration, it would then be for the tenant to

rebut the evidence.

The aforesaid legal position was also noticed by this Court in the

case of Smt. Krishnawati v. Hans Raj181.

In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and

others182, this Court held that in a case where a tenant becomes a

partner of a partnership firm and allows the firm to carry on

business in the demised premises while he himself retains legal

possession thereof, the act of the landlord does not amount to

subletting. It was held that whether there is genuine partnership or

not must be judged in the facts of each case in the light of the

principles applicable to partnership.

There was death of tenant. His legal heirs tried to divide tenancy

premises by metes and bounds. Each heir in exclusive possession

of premises fell to his share. It does not amount to sub-letting.

Contention that tenancy was heritable and not divisible is not

tenable.183

Tenancy is heritable. Tenant died and tenancy inherited by brother

of deceased. It was held not to be a sub-letting.184

180 AIR 1968 SC 933.

181 (1974) 1 SCC 280.

182 (1987) 3 SCC 538.

183 Bawa Daswanda Singh v. Saswant Singh and Others, 1997(1) RCR 261(P&H).

184 Hargopal v. Hem Raj, 2009(1) RCR(Rent) 56 (P&H).

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5.2.2.3 An employee of tenant continuing after death

of tenant is not a sub-tenant

It is the nature of activity run at the demised premises itself that is

relevant. If the demised property itself was being run as a Hair-

Cutting Salon from the days of his father when alleged sub-tenant

(employee) was associated and after the lifetime of the father, the

business had continued and the employee was being paid a share of

income, one need not expect a partnership deed for such an

activity. We are considering the case of a small time hair-cutting

salon in a small town and it would be too artificial to look for

salary receipts or account books for the same.

Thus, an employee, who is a barber and who is engaged in the

activity of hair-cutting in the premise which is demised from the

time when the tenant's father was himself a tenant, could give rise

to a case of subletting. The appellate Court has adopted the very

same reasoning of the Rent Controller which, in my view, is very

artificial. The findings rendered by the Courts below are clearly

erroneous and cannot be taken as a proper rendering of

appreciation of facts. The orders of eviction passed by the Courts

below are set aside.185

5.2.2.4 Waiver of right to evict

In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co AIR 1959

SC 689186, it has been held by the Apex Court that it is not open to

185 Subhash Chand v. Sham Sunder Mehta, 2012(2) RCR (Rent) 515 (P&H).

186 In Corpus Juris Secundum, Vol. 92, at p. 1068, the law as to waiver is stated as follows:-

"............ a waiver in derogation of a statutory right is- not favoured, and a waiver will be

inoperative and void, if it infringes on the rights of others, or would be against public policy or

morals............... In Bowmakers Limited v. Barnet Instruments Ltd. the same rule was laid

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the tenant to contend that landlord has waived his right to evict the

tenant on the plea of sub-letting. In that case also, a contention was

raised that right to evict a tenant on the ground of unlawful sub-

letting was a statutory right while like any other right could be

waived by the landlord. But this contention was not accepted on

the ground that the provisions prohibiting sub-tenancy are based on

public policy and that it is not permissible for the tenant to contend

that this statutory right has been waived.187

5.2.2.5 Delay is not waiver

Once a third person asserts an independent title and the tenant does

not claim his tenancy rights, an inference of sub-letting is obvious.

Landlord would be a stranger to any agreement between tenant and

the third person. Contention of sub-tenant that tenant had

surrendered the tenancy rights and he (sub-tenant) was accepted as

tenant by the landlord and he (sub-tenant) was directly making

payment of rent to landlord. No evidence brought on record when

the tenant surrendered his tenancy and when sub tenant was taken

down. Mulla in his Contract Act at page 198 has stated the law as to waiver of an illegality as

follows:-

" Agreements which seek to waive an illegality are void on grounds of public policy.

Whenever an illegality appears, whether from the evidence given by one side or the other, the

disclosure is fatal to the case. A stipulation of the strongest form to waive the objection would

be tainted with the vice of the original contract and void for the same reasons. Wherever the

contamination reaches, it destroys ".

Waiver is the abandonment of a right which normally everybody is at liberty to waive. A

waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not

to insist upon the right. It may be deduced from acquiescence or may be implied.

187 Smt. Niki Devi and others v. Smt. Saroj Bala, 1997(1) RCR 634 (P&H).

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as direct tenant. It was sub-letting. Delay on part of landlord to take

action will not make sub-tenant as direct tenant.188

5.2.2.6 Parting of legal possession means

"Possession with the right to include and also right to

exclude others"

The conclusion on the question of sub-letting is a conclusion on a

question of law derived from the findings on the materials on

record as to the transfer of exclusive possession and as to the said

transfer of possession being for consideration. In the case of M/s.

Shalimar Tar Products Ltd. v. H.C. Sharma & Others189it was

held that in order to construe subletting there must be parting of

legal possession of the lessee and parting of legal possession means

"Possession with the right to include and also right to exclude

others".

It is settled position of law that to establish sub-letting the onus is

on the landlord to prove through evidence that sub-tenant was in

exclusive possession of the property in question; that between the

sub-tenant and the tenant there was relationship of lessee and

lessor190 and that possession of the premises in question was parted

with exclusively by the tenant in favour of the sub-tenant.191

The principle of law is well settled that in case of subletting of the

premises, the landlord being a stranger to any agreement between

188 M/s Ashish Enterprises through Smt. Aruna Luthra v. M/s Kochhar Industries, 1999(1)

RCR(Rent) 591 (P&H).

189 1988 (1) SCR 1023.

190 Benjamin Premanand Rawade(Dead) by Lrs. v. Anil Joseph Rawade, 1998 (9) SCC 688.

191 Resham Singh v. Raghbir Singh & another, AIR 1999 SC 3087: 1999(7) SCC 263: 1999(3)

PLR 527 (SC).

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the tenant and the sub-tenant ordinarily will not know the precise

agreement between the tenant and the sub-tenant. If a third person

is in possession, in that event, the Courts would be well within

their right to infer subletting of the premises unless possession of

the third person is explained by the tenant. In the case of Bharat

Sales Limited v. Life Insurance Corporation of India192 the

Supreme Court held as under (at page 1241 of AIR):--

"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 over the demised property. It is the actual, physical and

exclusive 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 into 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 the property had been sublet had paid monetary

192 1998 Haryana Rent Reporter 150: AIR 1998 SC 1240.

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consideration to the tenant. Payment of rent, undoubtedly, is an

essential element of lease or sublease."

Before it could be termed that the property has been sublet, a third

person should be in legal possession. If the tenant retains the legal

possession or the right to possession, it cannot be termed that the

property has been sublet or parted with.193

5.2.2.7 Sub-letting and parting with possession

It is well known that expression "subletting and parting with

possession" have not specifically been defined under the Act. They

have well known meanings. In the case of subletting the third

person should be in occupation for consideration. At times it has

been said that he should be a tenant in the premises of the tenant. In

case of parting with possession, the tenant should have parted with

the legal possession. The position herein is identical' The tenants

claim that they are having no right in the property and have already

vacated the premises. A third person sets up the right. The

conclusions are obvious that it is a clear case of parting with

possession/subletting. Supreme Court in the case of M/s. Delhi

Stationers and Printers v. Rajendra Kumar194 held:-

"The tenant is liable to be evicted, if he has assigned, sub-let or

otherwise parted with the possession of the whole or any part of the

premises without the permission of the landlord. Sub-letting means

transfer of an exclusive right to enjoy the property in favour of the

third party and the said right must be in lieu of payment of some

compensation or rent. Parting of the legal possession means

possession with the right to include and also a right to exclude

193 Umrao v. Smt. Minu @ Manju and others, AIR 2000 P&H 38: 2000(2) PLR 96.

194 AIR 1990 SC 1208.

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others. Mere occupation is not sufficient to infer either sub-tenancy

or parting with possession." 195

Ejectment of the respondents sought on the ground of sub-letting.

Respondent No. 1 admitted that he has parted with the possession

of the demised premises in favour of respondent No. 2. Allegation

of collusion with the petitioner is not supported by any material on

record. There is nothing on record to attribute any motive on the

part of respondent no. 1 to collude with the petitioner. No adverse

inference could be drawn against the petitioner.

In Kharar Saw Mill Industry and Furniture Production,

Industrial Co-operative Society Limited and another v. Prem

Kaur (Smt.) and another,196 it was held that burden of proof is on

the landlord initially to prove the fact of sub-letting. However, the

landlord is only to prove that in place of the original tenant

somebody else is in occupation of the premises, independently.

Once that is proved, then it is for the sub-letter to show in which

capacity he is occupying the Premises. Sub-tenant’s claim being

the owner on account of adverse possession, already stands

negative. In this view of the matter, the statement of tenant that he

had put sub-tenant in possession of the shop in dispute and thereby

sub-let it, stands proved. Eviction petition allowed.197

5.2.2.8 Burden of proof

195 Narinder Pal Singh Bindra v. Harminder Kaur Dhindsa and Other., 2000(3) PLR 596:

2000 HRR 670 (P&H).

196 1995(2) Rent Law Reporter 729.

197 Hanuman Ji Ka Bara Mandir v. Nagar Mal and another, 2004 L.A.R. 420 (P&H).

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Tenancy premises at Karnal and the tenant is residing at Delhi.

Once tenant-petitioner is shown to be residing at Delhi, then the

burden shifted on him to explain by adducing positive evidence

that he was continuing his business at Karnal. The following

observations of the Supreme Court in Bala Shankar Maha

Shanker Bhattjee and other v. Charity Commissioner, Gujarat

State198 may be quoted:-

"Burden of proof would mean that a party has to prove an

allegation before he is entitled to a judgment in his favour. The one

or the other of the contending parties has to introduce evidence on

a contested issue. The question of onus is material only where the

party on which it is placed would eventually lose if he failed to

discharge the same, Where, however, parties joined the issue, led

evidence, such evidence can be weighed in order to determine the

issue; The question of burden becomes academic."

The parting of possession by tenant petitioner to his brother has

been proved. Once the parting of possession exclusively has been

proved, then the law permits raising of an inference with regard to

consideration because such transactions concerning sub-letting in

the guise of license are in their very nature clandestine

arrangements between the tenant and the sub-tenant.199

Four shops have been stated to be sub let by tenant. The fact that

one person has been given four shops i.e. landlord has given four

shops to tenant on one occasion, does not appeal to the reason. In

case a person wants to carry on the shop, he will take one shop on

rent and not three shops.

198 AIR 1995 SC 167.

199 Ashwani Kumar and another. v. Sashi Bala and others, 2005(1) L.A.R.442 (P&H).

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In Ram Dhan Sharma v. Shri Bishan Sarup Mittal and

another200, Court held that landlord has to prove two ingredients to

prove the sub-tenancy :-

(i) tenant had parted with the exclusive possession of the

property ; and

(ii) the same is for valuable consideration.

The initial burden to prove sub tenancy is always upon

the landlord and not on the sub-tenant.201

5.2.2.9 Mere knowledge of sub-letting cannot estop

landlord from seeking eviction

In Ram Saran v. Pyare Lal and another202, the Hon'ble Apex

Court held that the mere knowledge of the landlord about the

creation of sub-tenancy which was never authorised by the

landlord, cannot estop him from seeking eviction of the tenant on

the ground of sub-letting. The Hon'ble Apex Court has held as

under:-

The Rent Act is a special statute governing and regulating tenancy

and sub-tenancy. Such provisions in the special statute supersede

the general law of tenancy if the provisions of the special statute

are incompatible with the general law of tenancy. Mere knowledge

of the landlord about occupation of the tenanted premises by the

said registered society and acceptance of rent for the tenanted

premises tendered by the tenant in the name of the registered

society, will not create a sub-tenancy unless induction of a sub-

tenant is made with the written consent of the landlord. It is

200 1994-1 PLR 492.

201 Ved Parkash and others v. Tulsi Dass and others, 2012(2) RCR(Rent) 91 (P&H).

202 1996 Haryana Rent Reporter 137.

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nobody's case that the landlord has given any written consent for

induction for sub-tenant: There is no estoppel against statute.

Hence, even if the landlord has accepted payment of rent for the

disputed premises from the said society, such acceptance of rent

will not constitute legal and valid sub-tenancy in favour of the

registered society. Consequently, landlord will not be estopped

from claiming eviction of unauthorised sub-tenant along with the

tenant indulging in inducting sub-tenant without lawful

authority.203

5.2.2.10 Sub-letting in favour of sons

If a landlord was able to prove parting of possession then inference

of subletting can reasonably be drawn unless the tenant is able to

show some other relationship between him and the sub-tenant. The

fact being in the personal knowledge of the tenant it would be for

him to prove the nature of relationship with him and if the tenant is

not able to satisfactorily explain the nature of that relationship it

would be reasonable for the Court to accept the assertion of the

landlord that the exclusive possession has been parted for valuable

consideration. Proof of monetary consideration by the sub-tenant to

the tenant was not a sine qua non to establish subletting.

Tenant had taken the shop in his individual capacity and thereafter

it was sublet by him in favour of his sons. The mere fact that tenant

had been helping in the business would not make the possession or

control over the business of tenant as legal.204

5.2.2.11 Sub-letting to brothers

203 Ram Kishan v. Moti Ram and another, 2006(2) L.A.R. 36 (P&H).

204 Ramji Dass and others v. Smt. Kamla Rani and others, 2006(2) L.A.R. 350 (P&H).

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The Hon'ble Supreme Court held in Bhairab Chandra Nandan v.

Manadhir Chandra Dutt 205that a tenant's brother's exclusive

possession of the shop during the business was sufficient proof of

sub-tenancy.

Brother of tenant in exclusive possession of shop and getting

electricity connection in his name. held, it was sub-letting. Tenant

contended that he had partnership with brother. Partnership deed

not produced. Contention of the tenant not tenable.

The nearness of relationship between the parties by themselves will

not give rise to a presumption that such relationship could not

establish sub-tenancy. The exclusive possession of a person other

than the tenant must be adequately established by such person, who

is not a tenant and there will be a presumption drawn in favour of

the landlord and transaction is only sub-tenancy.206

5.2.2.12 Father coming for assistance is not a sub-

tenant

Tenant running business in shop. Eviction of tenant sought on the

ground that he had shifted from Ambala to Ludhiana and had

sublet the shop to his father. Eviction petition dismissed. Children

of tenant were studying at Ambala. This showed that tenant had not

shifted. The fact that father of tenant was regularly coming to shop

to assist his son does not amount to sub-letting.207

205 1988 HRR 199.

206 Abhey Singh v. Shri Arjun Singh Kirpa Ram Charitable Trust, 2009(2) RCR(Rent)

286(P&H).

207 Dev Samaj Society v. Sudhir Kumar and another, 2009(1) RCR(Rent) 321: 2009(1)

RCR(Civil) 804:2009(2) P.L.R. 235.

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5.2.2.13 Association of younger brother is no sub-

tenancy

In social setting of this country, an elder brother could always

associate his younger brother in business. The fact that tenant had

another business in same town is irrelevant.208

The law regarding sub letting summed up:

(i) In order to prove mischief of subletting as a ground for

eviction under rent control laws, two ingredients have to be

established, (one) parting with possession of tenancy or part

of it by tenant in favour of a third party with exclusive right

of possession and (two) that such parting with possession

has been done without the consent of the landlord and in lieu

of compensation or rent.

(ii) Inducting a partner or partners in the business or profession

by a tenant by itself does not amount to subletting. However,

if the purpose of such partnership is ostensible and a deed of

partnership is drawn to conceal the real transaction of sub-

letting, the court may tear the veil of partnership to find out

the real nature of transaction entered into by the tenant.

(iii) The existence of deed of partnership between tenant

and alleged sub-tenant or ostensible transaction in any other

form would not preclude the landlord from bringing on

record material and circumstances, by adducing evidence or

by means of cross-examination, making out a case of sub-

letting or parting with possession in tenancy premises by the

tenant in favour of a third person.

208 Satish Kumar and another v. Shri Nanu Ram Jain Charitable Trust, 2009(2) RCR(Rent)

134: 2009(3) R.C.R.(Civil) 783(P&H).

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(iv) If tenant is actively associated with the partnership

business and retains the control over the tenancy premises

with him, may be along with partners, the tenant may not be

said to have parted with possession.

(v) Initial burden of proving subletting is on landlord but once

he is able to establish that a third party is in exclusive

possession of the premises and that tenant has no legal

possession of the tenanted premises, the onus shifts to tenant

to prove the nature of occupation of such third party and that

he (tenant) continues to hold legal possession in tenancy

premises.

(vi) In other words, initial burden lying on landlord would

stand discharged by adducing prima facie proof of the fact

that a party other than tenant was in exclusive possession of

the premises. A presumption of sub-letting may then be

raised and would amount to proof unless rebutted.

A three-Judge Bench in Parvinder Singh v. Renu Gautam and

others209 commented upon the device adopted by tenants many a

time in creating partnership as a camouflage to circumvent the

provisions of the Rent Control Act. The following observations are

worth noticing :

The rent control legislations which extend many a protection to the

tenant, also provide for grounds of eviction. One such ground, most

common in all the legislations, is sub-letting or parting with

possession of the tenancy premises by the tenant. Rent control laws

usually protect the tenant so long as he may himself use the

premises but not his transferee inducted into possession of the

209 (2004) 4 SCC 794.

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premises, in breach of the contract or the law, which act is often

done with the object of illegitimate profiteering or rack-renting. To

defeat the provisions of law, a device is at times adopted by

unscrupulous tenants and sub-tenants of bringing into existence a

deed of partnership which gives the relationship of tenant and sub-

tenant an outward appearance of partnership while in effect what

has come into existence is a sub-tenancy or parting with possession

camouflaged under the cloak of partnership. Merely because a

tenant has entered into a partnership he cannot necessarily be held

to have sub-let the premises or parted with possession thereof in

favour of his partners. If the tenant is actively associated with the

partnership business and retains the use and control over the

tenancy premises with him, maybe along with the partners, the

tenant may not be said to have parted with possession. However, if

the user and control of the tenancy premises has been parted with

and deed of partnership has been drawn up as an indirect method of

collecting the consideration for creation of sub-tenancy or for

providing a cloak or cover to conceal a transaction not permitted by

law, the court is not estopped from tearing the veil of partnership

and finding out the real nature of transaction entered into between

the tenant and the alleged sub-tenant.

A person having secured a lease of premises for the purpose of his

business may be in need of capital or finance or someone to assist

him in his business and to achieve such like purpose he may enter

into partnership with strangers. Quite often partnership is entered

into between the members of any family as a part of tax planning.

There is no stranger brought on the premises. So long as the

premises remain in occupation of the tenant or in his control, a

mere entering into partnership may not provide a ground for

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eviction by running into conflict with prohibition against sub-

letting or parting with possession. This is a general statement of

law which ought to be read in the light of the lease agreement and

the law governing the tenancy. There are cases wherein the tenant

sub-lets the premises or parts with possession in defiance of the

terms of lease or the rent control legislation and in order to save

himself from the peril of eviction brings into existence, a deed of

partnership between him and his sub-lessee to act as a cloak on the

reality of the transaction. The existence of deed of partnership

between the tenant and the alleged sub-tenant would not preclude

the landlord from bringing on record material and circumstances,

by adducing evidence or by means of cross-examination, making

out a case of sub- letting or parting with possession or interest in

tenancy premises by the tenant in favour of a third person. The rule

as to exclusion of oral by documentary evidence governs the

parties to the deed in writing. A stranger to the document is not

bound by the terms of the document and is, therefore, not excluded

from demonstrating the untrue or collusive nature of the document

or the fraudulent or illegal purpose for which it was brought into

being. An enquiry into reality of transaction is not excluded merely

by availability of writing reciting the transaction.

In Parvinder Singh v. Renu Gautam210 a three-Judge Bench of

this Court devised the test in these terms:211

"If the tenant is actively associated with the partnership business

and retains the use and control over the tenancy premises with him,

maybe along with the partners, the tenant may not be said to have

parted with possession. However, if the user and control of the

210 (2004) 4 SCC 794.

211 SCC p. 799, para 8.

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tenancy premises has been parted with and deed of partnership has

been drawn up as an indirect method of collecting the

consideration for creation of sub-tenancy or for providing a cloak

or cover to conceal a transaction not permitted by law, the court is

not estopped from tearing the veil of partnership and finding out

the real nature of transaction entered into between the tenant and

the alleged sub- tenant".

In Nirmal Kanta (Dead) Through LRs. v. Ashok Kumar and

another212 this Court held thus :

What constitutes sub-letting has repeatedly fallen for the

consideration of this Court in various cases and it is now well-

established that a sub-tenancy or a sub-letting comes into existence

when the tenant inducts a third party stranger to the landlord into

the tenanted accommodation and parts with possession thereof

wholly or in part in favour of such third party and puts him in

exclusive possession thereof. The lessor and/or a landlord seeking

eviction of a lessee or tenant alleging creation of a sub-tenancy has

to prove such allegation by producing proper evidence to that

effect. Once it is proved that the lessee and/or tenant has parted

with exclusive possession of the demised premises for a monetary

consideration, the creation of a sub-tenancy and/or the allegation of

sub-letting stands established.

In Vaishakhi Ram and others v. Sanjeev Kumar Bhatiani213, it

was held that the following ingredients must be satisfied before an

order of eviction can be passed on the ground of sub-letting:

212 (2008)7 SCC 722.

213 (2008) 14 SCC 356.

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(1) the tenant has sub-let or assigned or parted with the

possession of the whole or any part of the premises;

(2) such sub-letting or assigning or parting with the possession

has been done without obtaining the consent in writing of the

landlord.

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.214

5.2.2.14 Additional evidence to prove sub-tenancy

Landlord filed suit for eviction against tenant and sub-tenant on the

ground of sub-letting. Sub-tenant claimed in written statement that

he was also a tenant. Sub-tenant failed to produce certain

documents showing him a tenant. Subsequently at the stage of

argument sub-tenant sought to produce documents wherein

landlord had admitted him as a tenant. It was held that documents

sought to be produced in additional evidence are vital piece of

evidence which go to the root of the case to decide the real

controversy. Mere fact that tenant was negligent and has not

produced documents at earlier stage is not a sufficient ground to

negate his prayer. Tenant was allowed to adduce additional

evidence.215

5.2.2.15 Sub-letting of part of the building

214 Celina Coelho Pereira and others v. Ulhas Mahabaleshwar Kholkar, 2009(2) RCR(Rent)

458: 2009(6) R.A.J. 248 (SC).

215 Amarjit Singh v. Baldev Singh, 2009(2) RCR(Rent) 508 (P&H).

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Tenant had to say about the nature of possession of the sub-tenant

that "He has permitted alleged sub-tenant to live in the exclusive

room of the barsati portion for a few months but he never parted

with possession of the demised premise to alleged sub-tenant."

Exclusive possession was not available which is pointed out by the

following circumstances:

(i) the access to the barsati portion was only through stair

case that was a part of the demised premise;

(ii) the barsati portion could have been reached only through

the stair case in the possession of the tenant;

(iii) the tenant was never prevented from going to the barsati

portion at any time and

(iv) the barsati portion had not been shown to be under the

lock and key of the sub-tenant.

The understanding of what is exclusive possession could

also be seen by an explanation on a logical query of what

would not be exclusive possession. If there was a first

floor access through a stair case and that the stair case

was a part of the tenanted premise, it cannot make

impossible the exclusivity of possession for the first floor

premises. If such an argument must be taken that a tenant,

who takes on possession of property with one stair case

even if he allows one floor of the premises to be sublet as

a matter of fact and the access was only through a

particular stair case which was in the portion of the

tenant, he could easily get over by saying that there was

no independent stair case apart from the property in his

possession and therefore, exclusivity of possession was

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not established. It is wholly illogical to make such an

argument.

The law does not require subletting to be created in

respect of whole of the property that was rented out. The

expression used in Section 13 is subletting of entire

building or any part thereof. A barsati portion was such

other portion of the demised premises.216

5.2.2.16 A person other than tenant occupying the

premises is a sub-tenant

It has been found that a third person who is a stranger and was not

related to the tenant or her husband has been occupying part of the

demised premises and his possession was exclusive. Contention of

the tenant is that said person has been kept there to protect his

forcible eviction by the landlord. It was held to be a sub-letting.217

5.2.2.17 Sub-letting effected prior to commencement

of Act is inapposite

A tenant who had validly sublet the building in Chandigarh before

the commencement of the Rent Act could not be evicted on the

ground of subletting. The Hon'ble Supreme Court had also

categorically laid down in decision of Tirath Ram Gupta v.

Gurubachan Singh and another, (1987) 1 SCC 712 that a sub

lease effected prior to the commencement of the Rent Control Act

in the area made the Act itself inapplicable.218

216 Om Parkash Goyal v. Ram Piari Waryam Singh, 2013(1) RCR(Rent) 515 (P&H).

217 Sandesh Kumar Sethi v. Tilak Raj Sharma, 2008(2) RCR(Rent) 550 (P&H).

218 M/S Bombay Motors v. Smt. Bhagwanti, 2009(1) RCR(Rent) 275 (P&H).

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In the decision of the Supreme Court in Vora Rahimbhai Haji

Hasanbhai Popat v. Vora Sunderlal Manilal219, the Hon'ble

Supreme Court held that sub-letting made before coming into force

of the Act would not be actionable and that a tenant could not be

ejected on the ground of sub letting.220

5.2.2.18 Sub-letting is a question of law

The High Court in exercise of its revisional jurisdiction has power

to satisfy itself as to whether the question of subletting which is a

question of law was properly decided by the courts below based on

the evidence.221

Law as enumerated by Supreme Court is summed up:

(i) a sub-tenancy is invariably a secret arrangement and the

Court will only look to the conduct of the parties in

evidence to determine whether the case of sub-tenancy is

true or not and the exclusive possession of the sub-tenant

is established or not;

(ii) production of records may have an important bearing on

the nature of enjoyment of a tenant or a sub-tenant and

adverse inference could be drawn against the person, who

has the custody of records which can establish his own

control and disprove that another person who was said to

be a sub-tenant had no connection with such business.222

219 AIR 1986 SC174.

220 Harbans Lal v. Smt. Sushma Kapil alias Nikky Kapil, 2009(1) RCR(Rent) 481 (P&H).

221 Shashi Jain v. Tarsem Lal, 2009(1) RCR(Rent) 486.

222 Parikshat Suri v. Ashok Kohli, 2009(2) RCR(Rent) 87 (P&H).

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In Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and

others223, it was held that the tenant person remaining in possession

after the determination of tenancy shall become a statutory tenant,

but he cannot enforce the terms of original tenancy. This decision

was rendered in the context of Bombay Rents, Hotel and Lodging

House Rates Control Act, 1947 where the sub-lessee from a

statutory tenant claimed protection against eviction. The Hon'ble

Supreme Court held that a tenant's entitlement to sublet under the

terms of the lease should not be exercised after the lease period had

expired and when the tenant held a right only to possession as

statutory tenant.224

5.2.3 S. 13(2)(ii)(b) Change of user

5.2.3.1 Scope and interpretation

On analyzing clause (b)225, it seems plain that the pride of place for

its interpretation must first obviously go to "the purpose for which

the building or rented land was leased. For precision of

terminology this may be labeled as the specific original purpose.

This indeed is the sheet anchor or the anvil on which either the

immediate or the subsequent change of user is to be tested.

Consequently herein the basic premise is to first determine with

precision as to what was the original purpose of the lease of the

premises; For this, one has to examine closely the language of the

lease deed if there is a written document to this effect. Failing that

the Controller must determine the terms of the oral or the

223 AIR 1965 SC 414.

224 Chanan Ram Lal Chand, Karyana Merchant and others v. Prem Chand and others,

2009(2) RCR(Rent) 227 (P&H).

225S. 13(2)(ii)(b): used the building or rented land for a purpose other than that for which it

was leased.

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documentary evidence established on the record regarding the

specific original purpose of the lease. The lease deed or the

established contract on the point of the specific original purpose

has then to be precisely construed with regard to its scope and what

can reasonably come within its terms. Once this is settled then

alone can one proceed to the next stage of the enquiry.

Have the premises been used for a purpose 'other' than that for

which they were leased is the next question. To put it in well-

known phraseology the issue is--has there been a change of user or

not? The Controller has to be satisfied that the subsequent user is

'other' of different from the specific original purpose. Though on

principal and the language of the statute, the intent seems to be

clear yet there is not gainsaying the fact that in its practical

application this somewhat ambivalent issue has posed serious

problems.226

5.2.3.2 Added user of the premises which is an

adjunct or ancillary to original purpose would not

amount to change of user

The Supreme Court in Maharaj Kishan Kesar v. Milkha Singh227.

holding that the setting up a petrol pump was part of the business

of an automobile workshop, their Lordships categorically observed

as follows:--

"While we would net call the business of selling petrol as an allied

business of the workshop we have little doubt that it can well be

regarded as part of the business. There is no evidence to show that

in the trade a petrol pump is not regarded as a part of a motor

226 Sikandar Lal v. Amrit Lal, 1984(1) RCR(Rent) 218 (P&H) (FB).

227 1966 Cur LJ 273.

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workshop business. Upon this view we allow the appeal with costs

throughout. There will be only one act of hearing fees."

Equally it seems to emerge from a long line of authority. That

where the subsequent use of the premises is merely ancillary to the

specific original pure then also it would imply no change f user

within the meaning of the statute. If by custom or convention. or on

the finding of the Court it can be held that the added use of the

premises is ancillary to the main original purpose then in the eye of

law it would be deemed to have been within the terms of original

lease.

Therefore, both on principle and on binding precedent it emerges

that the specified original purpose cannot be extended by adding to

it any and every allied purpose thereto, and the same must be

confined within the limitation of being either a part and parcel of,

or ancillary to the original purpose.

In Mehta Baldev Dutt v. Puran Singh228, it was held that where

premises have been originally leased for a specific purpose, then

any subsequent use thereof, which is a part of, or ancillary to, the

said specified purpose, would not amount to a change of user

within the meaning of S. 13 (2) (ii) (b) of the Act.

In the present case, it is common ground that the premises were

originally leased for the business of handlooms (brai karobar

kheddie). It deserves notice that this original purpose was not even

in terms specified as handlooms alone, but a somewhat larger

connotation, generally of the business of handlooms. It is

inescapable that this would be somewhat wider and broader. It is

not in dispute that, in pursuance of the original lease, the tenant did

228 (1980) 1 Ren CR 130.

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set up handlooms (Khaddis) on the premises and equally it is

common ground that these handlooms continue on the spot and the

original purpose thus also subsists. The straw upon which the

landlord wished to clutch was the mere addition of a small carding

machine not occupying a space of more than 4 feet x 4 feet on the

premises. It is the concurrent finding of the Courts below that this

carding machines merely converts old cloth into thread which

again is the basic wherewithal for running the handlooms and

hence there is no change of user.229

5.2.3.3 Change of user from commercial to

residential

Demised premises was taken for running a school which is

admittedly, a commercial activity. A perusal of the record further

reveals that the learned Appellate Authority has recorded a positive

finding to the effect that the site plan shows the demised premises

to be a house and on one side thereof, a school is being run.

Admittedly, no permission was taken from the Rent Controller to

convert the residential premises into commercial premises for the

said user. Hence, this Court is in absolute agreement with the

findings of the learned Appellate Authority, that without there

being any direction from the Rent Controller to change the nature

of the building, it has to be held that there was a change of user by

the tenants.230

5.2.3.4 Change of user where letting purpose not

established

229 Sikandar Lal v. Amrit Lal, 1984(1) RCR(Rent) 218 (P&H) (FB).

230 Mrs. Darshana Sharma v. Dr. Vinod Veena, 2013(1) RCR(Rent) 478 (P&H).

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Normally speaking, the property would be let out for residential,

commercial, manufacturing or charitable purposes etc. In only rare

cases the landlord would let out the property for specific purpose.

This question as to whether in the particular facts whether it would

amount to change of user or not, had been considered by the

Supreme Court in the case of Mohan Lal v. Jai Bhagwan231. In the

cited case the property was let out for carrying on the business of

English Liquor Vend. The tenant changed it from liquor vend to

general merchandise. The Supreme Court held that in one sense it

could be called an allied business in expanding concept of

departmental stores.

The purpose of letting shown has been only commercial. Otherwise

also earlier bidies were being sold. Presently the sanitary and pipe

fittings were sold. Not only the property is being used as a shop but

it is an extension of the business for sale of certain goods. Just like

in the case of Mohan Lal it would be an extension of a big business

store rather than a case of change of user. Therefore, it cannot be

termed that the ground of eviction as such was available.232

The premises in dispute was rented out to the respondent tenant for

karyana shop, whereas the respondent tenant converted its use to a

tea vending shop, by installing bhatti. He also led evidence to

prove, that because of change of user, value and utility of the

building had diminished, as the roof of shop had blackened, and the

wall also developed cracks.

231 1988(1) RCR 444 (SC).

232 Des Raj Ashok Kumar v. Raj Kumar and others, (1999) 123 PLR 111.

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In Gurdial Batra v. Raj Kumar Jain233, the Apex Court was seized

of a similar proposition. In their wisdom their Lordships were

pleaded to approve a broad categorisation of residential and

commercial tenancies to hold that change of user from one

category to other, without the prior permission of the landlord,

would attract the liability to ejectment but otherwise keeping in

view the modern concept of trade and business, it would be defying

the logical aspiration of a progressive society if a tenant were

restrained from shifting from one commercial venture to the other.

Of course, the shift could not be stretched or permitted to the extent

of causing any damage to the property or prejudice to the landlord

or from retail business to the manufacturing process and vice versa.

It appears that the "Bhatti" used by the tenant for the preparation of

tea etc. was affixed outside the shop premises. So, it is difficult to

understand as to how such a small affixture, necessary for running

the business of tea stall, could damage the demised premises. After

all it was neither a furnace nor cauldron of the type which could

have any irredeemable impact on the building.

The Hon'ble Supreme Court in Bharat Lal Baranwal v. Virendra

Kumar Aggarwal234was pleased to hold, that when the premises

were let out for selling copies and books, the installation of

printing press amounted to change of user.

The landlord did not produce any rent note showing the purpose for

which the premises were let out. Once it was given for business

purposes and merely because there was change of business, would

233 1989(2) Rent Control Reporter 233.

234 2003(1) Rent Control Reporter 178.

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not change the category from one to another, therefore, would not

be a ground to seek eviction by alleging change of user.235

5.2.3.5 New business added to original business does

not amount to change of user

When a question arose that when earlier business is still being

carried out as per terms of the lease and another business had been

added, whether it would amount to change of user or not? The

Supreme Court in the case of Mohan Lal v. Jai Bhagwan236,

where the property had been let for a liquor vend. The business of

general merchandise had been started. The Supreme Court held

that this was the expanding concept of departmental store and

would not amount to change of use.

In the present case business of sale of ice which was the purpose of

letting is continuing. In addition to that, sale of coal and wood has

been started in the property. It is not even held by any Court that it

would impair the value and utility of the property. If immediately

another business is started and the business for which it was let was

also continuing the said ground of eviction without it having

impaired the value and utility of the premises or detrimental to the

interest of the landlord cannot be available.237

5.2.3.6 No change of user where it is established that

property let out for commercial purpose

It is not established on the record that immediately after the letting

out of the premises, tenant had been using this property for

235 Chhat Ram v. Lakhpat, 2009(2) RCR(Rent) 510 (P&H).

236 1988(1) RCR(Rent) 444 (SC).

237 Shri Ram Parkash v. Surinder Pal Singh, 1999(2) RCR(Rent) 502 (P&H).

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residential purposes. Rather it is established by documentary

evidence that tenant applied to the Municipal Committee for

raising construction of the mid premises, as he wanted to install

engine, Chakki Kohlu etc. and this site plan was sanctioned. The

application by tenant was moved in the month of January, 1950.

Once it is established that the demised premises in question were

taken on rent for commercial use, it will not be open for the

landlord to say that the respondents have changed the user of the

property within the meaning of Section 13(2)(ii)(b) of the Act.238

5.2.3.7 Shop let out for tea-stall, started running it

for welding work, changed the user of the shop.

In Ghansharn Dass v. Gurdwara Shri Guru Nanak Sat Sangh

Sabha Regd., Sonepat through Sardar Singh, Secretary of the

Sabha resident of Sonepat239 wherein it was observed "it is a

matter of common knowledge that oxygen is highly inflammable.

When cylinders full of this gas are kept in a shop there are greater

possibilities of their catching fire by accident. Even original user is

not specified and the shop is let out for business, that would imply

that the shop is being acquired by the tenant for carrying on a

business in innocuous articles. When that user is changed in the

sense that highly inflammable articles for sale are kept in the shop,

it shall have to be held that there is a change of user which

disqualifies the tenant to retain the shop as a tenant."240

238 Bawa Daswanda Singh v. Saswant Singh and others, 1997(1) RCR 261 (P&H).

239 1983(1) Rent Law Reporter 664.

240 Deepak Kumar and others v. Jai Narain and others, 1997(2) RCR(Rent) 399 (P&H).

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5.2.3.8 Selling plastic goods and rubber shoe in shop

let out for general merchandise does not change user of

the property

Two shops had been let out. One of the shops was being used for

sale of vegetables and the other for general merchandise. The

petitioner's case was that besides the same, the plastic goods and

rubber shoes were being sold also in the other shop.

The sale of plastic goods and shoes business is being run but on a

small portion of the shop. The matter in this regard requires no

probing. It is concluded by the decision of the Supreme Court in

the case of Gurdial Batra v. Raj Kumar Jain241. Therein the

premises were let out for commercial purpose i.e. for running of

cycle/rickshaw repair shop. In addition to that the tenant started

sale of televisions. It was held that this will not give rise to the

ground of eviction under Section 13(2)(ii)(b) of the East Punjab

Urban Rent Restriction Act. Identical is the position herein.

Obviously, it must follow that there is no change of user.242

5.2.3.9 Mere use of one room for disposing of office

work does not change classification of property from

residential to non-residential

Merely because one portion has been used for residential purposes

would not result into a valid conclusion that there is change of user

from commercial to residential.

Findings recorded by both the Courts below do not leave any room

for a doubt that the dominant purpose for which the demised shop

has been used by the tenant-petitioner is the residential one. There

241 AIR 1989 SC 1841.

242 Shri Tek Chand v. Shri Anant Ram, 1999(3) PLR 680.

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is no requirement of law as envisaged by Section 13(2)(ii)(b) of the

Act that the whole premises should be put to a changed use. In-

other words, if a tenanted premises has been partially put to a

changed use, even then the ejectment of the tenant could be

ordered. It is well settled that a landlord could rent out a building

for residential business or manufacturing purposes and if the tenant

continues to maintain the dominant purpose for which the building

was let out, then he himself becomes liable to be evicted, but if the

dominant use of the building is changed then the tenant would be

liable to be evicted. The afore-mentioned principle has been laid

down by the Supreme Court in the cases of Bharat Lal Baranwal

v. Virender Kumar Agarwal243. The view of their Lordships is

evident from paras 12 and 13 of the judgment which reads as

under; "Broadly speaking, a building can be let out for three

purposes;

1. Residential

2. Business

3. Manufacturing.

If the dominant purpose for which a building is let out is

maintained, a tenant may not become liable to be evicted. But if the

building is let out for residential or business purposes and the

tenant starts manufacturing activity or vice versa, then it would

amount to change of user subject to the provisions of the Act in

reference."

It is evident that if a building is let out for residential purpose and

its use is changed to business or vice-versa, then the tenant-

petitioner becomes liable to be evicted. In the present case, the

243 (2003)2 S.C.C. 343.

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demised shop was rented out for a commercial purpose and it has

been established on record that the same is being used for

residential purpose, inasmuch as nine members of the family are

residing in the demised shop with- out the consent of the landlord.

Even the marriage of the daughter of the tenant petitioner was

solemnised at the address of the demised shop. There is an

overwhelming evidence on record to prove these fuels. The

dominant purpose to which the building has been put is the'

residential and not the commercial. Therefore, the tenant-petitioner

is liable to be evicted.244

5.2.3.10 Change of user without written consent

The demised premises was given for running photography business

but tenant is doing the business of in the name of M/s Delight Boot

House. There was a condition enumerated in the Rent Note that in

case of any change in user, written consent is required. It was

change of user.245

5.2.3.11 Change of user and nuisance

The premises have been let out for residential purposes and the

tenant used to carry the business of Band Master and the

photographs have been taken which show that the tenants parked

their vehicle having musical instruments fixed therein. Therefore, a

room let out for residential purpose, has been changed to shop and

not only it amount to change of user, but by playing musical

instruments in a locality it can be safely inferred that the tenant has

caused nuisance in the locality. It was held that there has been

244 Chhotey Lal and others v. Rajinder Kumar, 2005(1) L.A.R. 638 (P&H).

245 Surjit Singh v. Tejinder Singh, 2008(2) RCR(Rent) 590 (P&H).

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change of user from residential to the commercial and permanent

nuisance has been caused by the tenant.246

5.2.4 S. 13(2)(iii) Material impairment

5.2.4.1 Material alterations contemplate change of

substantial nature of affecting the form and character

of building

The Supreme Court in Om Prakash v. Amar Singh and

another247, while referring to the expression of as to what could be

the 'material impairment' held:-

"The material alterations contemplate change of substantial nature

of affecting the form and character of building. Many a time

tenants make minor constructions and alterations for the

convenient use of the tenanted accommodation. The Legislature

does not provide for their eviction instead the construction so made

would furnish ground for eviction only when they bring about

substantial change in the front and structure of the building.

Construction of a Chabutra, Almirah, opening a window or closing

a verandah by temporary structure or replacing of a damaged roof

which may be leaking or placing partition in a room or making

similar minor alterations for the convenient use of the

accommodation do not materially alter the building as inspite

constructions the front and structure of the building may remain

unaffected. The essential element which needs consideration is as

to whether the constructions are substantial in nature and they alter

the form, front and structure of the accommodation."

246 Khazan Singh and others v. Prithvi Singh Sharma, 2009(1) RCR(Rent) 173 (P&H).

247 A.I.R. 1987 S.C. 617: 1987(1) RCR(Rent) 326 (SC).

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5.2.4.2 Meaning and scope of materially “impair”

and “alter”

The definition of the word 'impair" in the Law Lexicon by P.

Ramanatha Aiyar (Reprint Edition) 1987 at page 548 'Impair. To

diminish in quality value excellence or strength of a thing.

The word `impair' means to make worse; to weaken; to unfeeble To

make or become worse or less; to lessen reduce or diminish the

quantity or quality."

"A landlord, in order to be entitled to the grant of permission to

terminate the tenancy, is required not only to prove an act of waste

on the part of the tenant but also to prove that the said act is likely

to impair materially the value or the utility of the house," Smt.

Savitri Devi v. U.S. Bajpai248, and Charan Singh v. Shrimati

Ananthi & others249.

"Mere construction of a false roof which is only wooden or the

setting of a wooden stair or making of a few holes in the roof for

letting out the smoke from the hotel, cannot be held to be such

material alterations which may result in changing the character or

nature of the premises. " Shri Anup Chand & others v. Shri Trilok

Singh250.

In Om Prakash v. Amar Singh & others251, it was held that the

raising of a temporary wall of 6 feet height in a hall in the demised

premises, without digging any foundation in the floor of the hall so

as to convert the hall into two portions for convenient use without

the consent of the landlord and the extension of a pre-existing tin

248 AIR 1956 Nagpur 60.

249 (1966) 6 PLR 780.

250 (1977) I RCJ 752.

251 (1987) l SCC 458.

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shed on the open land adjacent to the accommodation by

constructing a wall made by bricks or mud and enclosing it by

bamboo tatters would not amount to making of any structural

change of a substantial character either in the form or structure of

the accommodation and as such the construction did not materially

alter the accommodation It was observed that "the expression

'materially alter' means a substantial change in the character, form

and the structure of the building without destroying its identity."

The question whether the constructions materially altered the

accommodation is a mixed question of fact and law which should

be determined on the application of the correct principles.

The meaning of the expression "to impair materially" in common

parlance would mean to diminish in quality, strength or value

substantially. In other words to make a thing or substance worse

and deteriorate. The word "impair" cannot be said to have a fixed

meaning. It is a relative term affording different meaning in

different context and situations. Here in the context the term

"impair materially" has been used to mean, considerable decrease

in quality which may be measured with reference to the antecedent

state of things as it existed earlier in point of time as compared to a

later stage after the alleged change is made or affected suggesting

impairment. Further the use of the word "value" means intrinsic

worth of a thing. In other words utility of an object satisfying,

directly or indirectly, the needs or desires of a person. Thus, the

ground for eviction of a tenant would be available to a landlord

against the tenant, if it is established that the tenant has committed

such acts as are likely to diminish the quality, strength or value of

the building or rented land to such an extent that the intrinsic worth

or fitness of the building or the rented land has considerably

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affected its use for some desirable practical purpose. The decrease

or deterioration, in other words the impairment of the worth and

usefulness or the value and utility of the building or rented land has

to be judged and determined from the point of view of the landlord

and not of the tenant or anyone else.252

5.2.4.3 Material impairment means something more

than mere impairment

It is abundantly clear from the bare provisions of the relevant

ground of eviction that every impairment of the suit property does

not make the tenant liable to be evicted. It has to be a material

impairment in the value and utility of the building or the rented

land. The material impairment necessarily means something more

than a mere impairment. It will go with the facts and circumstances

of each case that value and utility of the property has materially

been impaired or not.253

Mere fact that the rent has been increased after the disputed

alterations does not deprive a landlord of his right to eject the

tenant on the ground of impairing the value and utility of the

property.254

It was incumbent upon the landlord to allege and prove that the

alterations had been made after that date, when the premises was

rented out to the tenant. Adjacent shop belonging to the same

landlord, similar additions and alterations had also been made.

252 Gurbachan Singh and another v. Shivalak Rubber Industries, AIR 1996 SC 3057.

253 Ravinder Kumar v. Surinderjit Singh.

254 Inderpal v. Sat Narain, 2004(2) Rent Control Reporter 441.

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Landlord resided in the same premises and, therefore, could not be

unaware of the date on which the alterations had been made.255

The landlord's perception of what constituted the impairment of

value and utility would be relevant. Altering the door for a shutter

may not constitute impairment, but if a verandah is converted

differently with glass cases, it surely alters the appearance of the

construction.256

As regards the case of material alteration, the landlord's plea was

that the tenant had without written consent raised a wall, which

was removed by the landlord earlier when the building was let out

to him. The specific terms of the lease, which contains inter alia a

clause that the tenant shall not make any alteration and shall not

install any machinery and that apart from the above said business

(sweet shop, tea or bakery or grocery or general merchant), he shall

not do any other business. It also states that the tenant shall not be

able to establish a hearth and that he will use only a gas stove.

What the tenant had done was a clear violation of every one of the

terms.

The placement of bhattis, which was specifically barred under the

lease terms and construction of walls, which was again specifically

stated as being impermissible clearly showed what the parties were

bargaining for. The tenant cannot contend in the face of such

express terms that he was at liberty to make any alteration to suit

his own business. It is a trite law that the nature of impairment that

255 Jawahar Lal v. Bal Krishan (Died) Through Lrs., 2006(1) L.A.R. 53 (P&H).

256 Harpal Singh v. Joint Hindu Family M/s. Kishore Lal Rajinder Kumar, 2012(2)

RCR(Rent) 523 (P&H).

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the Court would be considered should be through prism of the

landlord's perspective. Surely it cannot be arbitrary but they have to

be inevitably considered in the light of whether the landlord's

objection was reasonable or not and whether the tenant's act

constituted violation of statutory terms. The tenant had indulged in

acts which were contemplated by parties as actionable and which

the law sanctions as making possible for a landlord to secure an

order of eviction.257

5.2.5 S. 13(2)(iv) Nuisance

Initially, shop was given on rent to run a Clinic. Petitioner put up a

PCO/STD booth, being situated on the road, many customers

started visiting the same, which has resulted into causing nuisance

to the landlords. Hence tenant is liable to eviction.258

5.2.6 S. 13(2)(v) Cease to occupy

The suit premises were locked for one year and two months. Not

only that, the tenant had surrendered his sales tax number which is

clear pointer that he is not doing any business. To crown it all, the

tenant, who claims to be doing business in the suit premises, has

not produced any document of account books to show that, in fact,

any business was transacted from the suit premises. These findings

clearly show that it had been proved that the petitioner was not

carrying on any business in the suit property and, in fact, had

ceased to occupy the premises for the relevant period. Eviction

order is upheld.259

257 Mulakh Raj v. Neeraj Kumar, 2013(1) RCR (Rent) 262 (P&H).

258 Dr.Lakhi Ram v. Girdhari Lal and another, 2006(1) L.A.R. 417 (P&H).

259 Ram Lok v. Tarloki Nath, 2000(2) PLR 713.

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Mere closure of a business for some period cannot be termed with

the “ceased to occupy”. Initial onus is upon the landlord that tenant

has ceased to occupy the demised premises.260

5.2.7 S. 13(3)(a) & 13(3)(b) Bonafide

requirement/personal necessity

5.2.7.1 A landlord, under the Act, can seek eviction

of a tenant from a non-residential building on the

ground that he requires it for his own use

The East Punjab Urban Rent Restriction Act, 1949 (the Act), prior

to 1956, permitted a landlord to evict his tenant from a non-

residential building on the ground of bona fide requirement for his

own use, however, the said right of the landlord was taken away by

the East Punjab Urban Rent Restriction (Amendment) Act, 1956

(Punjab Act 29 of 1956) (the Amendment) which came into force

on September 24,1956. Before us the constitutional validity of the

Amendment has been challenged.

The non-residential premises in dispute was given on rent by the

landlord’s father to the predecessor-in-interest of

respondent/tenant. After the death of landlord's father the landlord,

who was in Government service, became owner of the shop. The

landlord retired from service. According to the landlord he is a

Registered Medicines. While he was in service his employer

granted him permission to practice as Homeopath Physician after

office hours. It is the case of the landlord that he intends to start

260 Amar Nath v. Guru Ramdass Textile Mills (Paul Silk Industries), 2002(1) PLR 75.

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practice as Homeopath Physician and for that purpose he bona fide

requires the shop in dispute for his personal use and occupation.

Prior to the coming into force of the amendment a landlord could

seek eviction of his tenant from a non-residential premises for his

bona fide requirement but the amendment has taken away the said

right of the landlord.

The provisions of the Act, prior to the amendment, were uniformly

applicable to the residential and non-residential buildings. The

amendment, in the year 1956, created the impugned classification.

The objects and reasons of the Act indicate that it was enacted with

a view to restrict the increase of rents and to safeguard against the

mala fide eviction of tenants. The Act, therefore, initially provided,

conforming to its objects and reasons, bona fide requirement of the

premises by the landlord, whether residential or non-residential, as

a ground of eviction of the tenant. The classification created by the

amendment has no nexus with the object sought to be achieved by

the Act. To vacate a premises for the bona fide requirement of the

landlord would not cause any hardships to the tenant. Statutory

protection to a tenant cannot be extended to such an extent that the

landlord is precluded from evicting the tenant for the rest of his life

even we he bona fide requires the premises for his personal use and

occupation. It is not the tenants but the landlords who are suffering

great hardships because of the amendment. A landlord may

genuinely like to let out a shop till the time he bona fide needs the

same. Visualise a case of a shopkeeper (owner) dying young. There

may not be a member in the family to continue the business and the

widow may not need the shop for quite some time. She may like to

let out the shop till the time her children grow-up and need the

premises for their personal use. It would be wholly arbitrary, in a

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situation like this, to deny her the right to evict the tenant. The

amendment has created a situation where a tenant can continue in

possession of a non-residential premises for life and even after the

tenant's death his heirs may continue the tenancy. We have no

doubt in our mind that the objects, reasons and the scheme of the

Act could not have envisaged the type of situation created by the

amendment which is patently harsh and grossly unjust for the

landlord of a non-residential premises.

The amendment was declared as constitutionally invalid and as a

consequence the original provisions of the Act were restored which

were operating before coming into force of the amendment. The

net result is that a landlord, under the Act, can seek eviction of a

tenant from a non-residential building on the ground that he

requires it for his own use.261

The landlord is carrying on his business from a shop premise

located in a narrow lane, the tenant is in occupation of the premises

located on the main road which the landlord considers to be more

suitable for his own business. The materials on record, in fact,

disclose that the landlord had offered to the tenant the premises

located in the narrow lane in exchange for the tenanted premises

which offer was declined by the tenant. The tenant contends that

the landlord has several other shop houses from which he is

carrying on different business and further that the landlord has

other premises from where the business proposed from the tenanted

premises can be effectively carried out. It would hardly require any

reiteration of the settled principle of law that it is not for the tenant

261 Harbilas Rai Bansal v. The State Of Punjab and another, 1996 AIR 857, 1996 (1) SCC 1.

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to dictate to the landlord as to how the property belonging to the

landlord should be utilized by him for the purpose of his business.

Also, the fact that the landlord is doing business from various other

premises cannot foreclose his right to seek eviction from the

tenanted premises so long as he intends to use the said tenanted

premises for his own business.262

5.2.7.2 Bonafide need to run independent business

The landlord cannot be forced to carry on business jointly with his

brother. The tenant has another ration shop in the village whereas

the landlord has no other shop from where he can carry on his

business independently. The landlord would have greater hardship

if the said shop is not made available to him. On evaluation of

pleadings, documents and evidence on record, it is abundantly clear

that the landlord has a genuine and bona fide need of the shop in

question to carry on independent business.263

5.2.7.3 Landlord living with mother is entitled to

eject tenant on his mother’s asking him to vacate

Landlord used to live in the house belonging to his mother. Mother

asked him to vacate. Landlord is entitled to eject tenant from his

own building. Occupation of building by landlord has to be in his

own right and not at the sufferance of another.264

262 Anil Bajaj & another v. Vinod Ahuja, 2014 STPL(Web) 369 SC.

263 Dhan Raj v. Legal Representatives of Nemi Chand, 2013(2) RCR(Rent) 1(SC).

264 Bal Kishan v. Raj Kumar, 1997(2) RCR 197(P&H).

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5.2.7.4 Landlord can seek eviction from residential

building which was converted into non-residential

building

It was pleaded that the premises in question were non-residential

and the same were rented out to the tenant for commercial purposes

and, therefore, the ground of personal necessity was not available

to the landlord. The premises as found by the courts below are

residential in nature and this finding being a pure finding of fact

and based as it is on the evidence led by the parties cannot be

interfered with in the present proceedings. However, even if we

assume that the premises in question were non residential, the

landlord is entitled to seek eviction of the tenant on the ground of

personal necessity.265

5.2.7.5 Aged landlord not having good relations with

his son and daughter-in-law can seek eviction

As regards the ground of personal necessity of the landlord, he is

about 85 years old and at the fag end of his life has a right to live in

his own house. The fact that he is living at Delhi with his son is no

ground to deny him the right to live in his own house. There is

nothing to disbelieve the testimony of the landlord that he is not

having good relations with his son and daughter-in-law, which is

not unusual in the modern trend of the society. The concept of joint

family living is not liked now and the grown up children like to

live independently.266

265 Shiv Shankar House Pvt. Ltd. v. Anant Pal Singh Grewal, 1997(2) RCR 701 (P&H).

266 Shri Madan Mohan Kaphai v. Sh. Amar Nath Malhotra, 1998(1) RCR(Rent) 247 (P&H).

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5.2.7.6 Landlord is the best judge of his need.

Tenant cannot create a clog on the extension of

business

The rented land was required for purpose of business. The premises

which were got vacated during the pendency of the petition from

some other tenant were not sufficient and on one of the premises

which was got vacated, there were buildings which had been let out

to a tent store. The landlord is the best judge of his need. The

demised premises is just adjacent to the factory owned by the

petitioner on which they wish to extend the business and store raw-

material. The tenant cannot dictate terms to the landlord. The

sufficiency or insufficiency of the premises already in occupation

of a landlord is a question which can be judged from the view point

of the landlord. The tenant cannot create a clog on the extension of

landlord's business.267

5.2.7.7 Bonafide requirement of a person to start a

new business even if he has no experience in the new

business

It has been held that a person can start a new business even if he

has no experience in the new business. It does not mean that his

claim for starting the new business must be rejected on the ground

that it is a false claim. Many people start new businesses even if

they do not have experience in the new business, and sometimes

they are successful in the new business also.268

267 Kay Iron Works (P) Ltd. v. Shri Molar Mal, 1998(2) RCR(Rent) 404 (P&H).

268 Ram Babu Agarwal v. Jay Kishan Das, 2009 (2) RCR 455.

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5.2.7.8 No personal necessity where landlord has

become citizen of some other country

In Ram Das v. Ishwar Chander269, it was indicated that "bona fide

need" should be genuine, honest and conceived in good faith. It

was also indicated that landlord's desire for possession, however

honest it might otherwise be, has, inevitably, a subjective element

in it. The "desire" to become "requirement" must have the objective

element of a "need" which can be decided only by taking all

relevant circumstances into consideration so that the protection

afforded to a tenant is not rendered illusory or whittled down.

When a person has become a citizen of other country, he would

prefer to live there and there is no personal necessity ground

available to such person.270

5.2.7.9 Personal necessity established to allow three

married daughters to visit their father’s place

It is proved that the landlords are having three married daughters

and it can never be expected that the married daughters will not

visit the house of the landlords. The tenant has gone to the extent

of denying that the landlords have married daughters and

alternatively pleaded that if it is proved that they have married

daughters then they are living out of Amritsar and rather out of

India and never visit the landlords. It is too harsh to expect the

married daughters not to visit the house of the parents. If the

married daughters are staying out of, Amritsar then, on the

contrary, the landlords will certainly require rooms for them to stay

when they visit. It cannot be said that married daughters will visit

269 AIR 1988 SC 1422.

270 Mukhtiar Singh v. Atma Singh Berar, AIR 2000 (P&H) 27.

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during holidays and for attending some ceremonies only one after

the other and not together. Moreover, it cannot be said that landlord

should not allow his daughters to visit his house and should not

permit any other guest also in order to accommodate his tenant. It

will be too harsh to expect the same. Moreover, there is no drawing

room. Therefore, the say of the respondents that they require the

premises for their accommodation cannot be said to be frivolous.271

Landlady can certainly ask for more accommodation because her

relatives can visit which include her daughters, her son from

United States of America and other relatives. Relatives can come

for her welfare.272

5.2.7.10 Landlord may choose where he wants to put

up after retirement

Landlord requires the building in question for his own use and

occupation and for the use and occupation of his family as

residence. After retirement, he has been putting up in the MLA

quarters at Simla. Government is not permitting him to keep

occupying the MLA quarters at Simla. He belongs to Ludhiana

where he holds ancestral property and most of his relation, nears

and dears are residing in Ludhiana. In the vicinity where this

building is situated number of his close relations are residing. In

old age one looks to his relations for socialising and other needs. In

Himachal Pradesh after retirement, he will be feeling like a fish out

of water. The landlord is the sole arbiter of his choice. It is for the

landlord to choose where he will put up. It is not for the tenant to

271 Surjit Singh v. Hazara Singh, 2000(2) PLR 149.

272 Sumesh Gupta v. Smt. Shamila Gupta, 2000(3) PLR 248.

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impose upon the landlord his choice. Rent Controller cannot

interfere with the choice of the landlord if the same is bona fide. In

this case, there is no evidence to suggest that the choice of landlord

for this premises is not bona fide.273

5.2.7.11 Need for family members is personal need

The need of the landlady is not supposed to be seen for her

individual comforts but for the comforts of her family members

who are supposed to visit her frequently, especially in her old age.

Hence the need of the landlady is bona fide.274

5.2.7.12 Desire of the landlord to live separately from

his son is bona-fide

A large number of family members are living in the premises.

Accommodation in the possession comprises of only three rooms.

The landlord, has expressly asserted that his son has discarded him

and has desired him to contribute expenses for living with him. It is

evident that the landlord is living with his son at his mercy i.e. at

the sufferance of his own son.

In such circumstances, the desire of the landlord to live separately

from his son is bona-fide.275

5.2.7.13 Need for sisters, brothers and other relatives

is personal need

Landlord has purchased this house which was in occupation of so

many tenants. He got possession from some of the tenants. He

273 Surinder Mohan Aggarwal v. Krishan Mohan Madhok, AIR 2001 (P&H) 33.

274 Yogesh Soni v. Smt. Agya Wanti, 2002(1) PLR 432 (P&H).

275 Bhajan Lal v. Roshan Lal, 2002(3) PLR 229.

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requested other tenants also to vacate the accommodation in their

occupation. Other tenants did not oblige him. Instead of opening up

front against all of them simultaneously, he can open up front

against some now and against others afterwards, i.e., may be after

getting possession from the tenants whose ejectment he had sought

earlier and successfully.

Why should the bonafides of landlord be doubted? In Indian

society, sisters, brother and other relations do visit and some times

stay for a number of days together. One has to provide

accommodation for their stay. It may not be unbelievable that his

sisters also visit him and he has to think of providing them

accommodation for their stay on their visits to them. The landlord's

need is bona fide.276

5.2.7.14 Old landlady wishing to reside in her native

land, need bona fide

Old age is itself an ailment. Therefore, if at this stage, she wants to

reside in India in her native land in her house in Chandigarh, her

need cannot be held to be not bona fide.277

5.2.7.15 It is not necessary for the landlord to plead

and prove the specific business which he wants to set

up in non-residential premises in respect of which

eviction is sought

The landlord has explained that due to advanced age, he cannot

continue with agricultural operation and, therefore, he wants to set

up a show room for his sons in rented land when made available to

276 P.L. Chopra v. Arun Aggarwal, 2002(3) PLR 642.

277 Manmohan Sharma v. Smt. Swaran Kaur, 2003 HRR 117.

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him. There is nothing to doubt the veracity of the statement of the

landlord wherein it has been stated that he intends to raise the

construction of a show room to run the business on the rented land.

In Raj Kumar Khaitan and others v. Bibi Abaida Khatun and

another278, the Hon'ble Supreme Court has held that precise nature

of the buisness need not be stated while seeking ejectment of the

tenant.

It was not necessary for the appellants-landlords to indicate the

precise nature of the business which they intended to start in the

premises. Even if the nature of business would have been indicated

nobody could bind the landlords to start the same business in the

premises after it was vacated.

In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kothune

and another279, in para No. 11 of the judgment, Supreme Court

held as under: -

"If a person wants to start new business of his own it may be to his

own advantage if he acquires experience in that line. But to say that

any venture of a person in the business filed without acquiring past

experience reflects lack of his bona fides is a fallacious and

unpragmatic approach. Many a business have flourished in this

country by leaps and bounds which were started by novice in the

field; and many other business ventures have gone haywire despite

vast experience to the credit of the propounders. The opinion of the

learned single Judge that acquisition of sufficient know-how is a

pre-condition for even proposing to start any business, if gains

approval as a proposition of law, is likely to shatter the initiative of

young talents and deter new entrepreneurs from entering any field

278 A.I.R. 1995 Supreme Court 576.

279 A.I.R. 1999 S.C. 2226.

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of business or commercial activity. Experience can be earned even

while the business is in progress. It is too pendantic a norm to be

formulated that "no experience no venture."

In Joginder Pal v. Naval Kishore Behl280, It was so held by the

Hon'ble Supreme Court as follows:

"The expression for his own use as occurring in Section

13(3)(a)(iii) of the Act cannot be narrowly construed. The

expression must be assigned a wider, liberal and practical meaning.

The requirement is not the requirement of the landlord alone in the

sense that the landlord must for himself require the accommodation

and to fulfill the requirement he must himself physically occupy

the premises. The requirement of a member of the family or of a

person on whom the landlord is dependent or who is dependent on

the landlord can be considered to be the requirement of the

landlord for his own use. The expression landlord require for his

own use, is not confined in its meaning to actual physical user by

the landlord personally. The requirement not only of the landlord

himself but also of the normal emanations of the landlord is

included therein. All the cases and circumstances in which actual

physical occupation or user by someone else, would amount to

occupation or user by the landlord himself cannot be exhaustively

enumerated. It will depend on a variety or factors such as

interrelationship and inter-dependence-economic or otherwise,

between the landlord and such person in the background of social,

social-religious and local customs and obligations of the society or

region to which they belong."

280 (2002) 5 SCC 397.

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It is not necessary for the landlord to plead and prove the specific

business which he wants to set up in non-residential premises in

respect of which eviction is sought.

It is also not necessary for the landlord to set up a business before

seeking ejectment on the grounds of bona fide personal use and

occupation. The essential idea basic to the cases of eviction on the

ground of bona fide personal use and occupation is that the need of

the landlord should be genuine and honest, conceived in good faith

and the Court may also consider it reasonable to gratify that need.

The requirement in law must have the objective element of a need.

The Court must take all relevant circumstances into consideration

so that the protection afforded by law to the tenant is not rendered

merely illusory or whittled down.281

5.2.7.16 Need of son is the need of landlord

For the purposes of ejectment on the ground of personal necessity,

no distinction between “residential” and “non-residential” building

could be drawn. Need of son is the need of landlord.

The provision (3)(a)(ii) of section 13 of the Act is to be liberally

construed and the expression ‘for his own use’ has to be interpreted

to include the requirement of wife, husband, sister, children

including son, daughter, a widowed daughter and her son, nephew

etc.282

281 Balwant Singh Chaudhary v. The Hindustan Petroleum Corporation Limited Company,

2004 L.A.R. 137 (P&H).

282 Zile Singh v. Om Parkash and another, 2004 L.A.R. 448 (P&H).

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5.2.7.17 Availability of another shop which is rented

cannot constitute a valid ground to reject the claim of

the landlord

The landlords have another shop rented to another tenant and no

proceedings were initiated against the other tenant, it was held that

the availability of another shop which is rented cannot constitute a

valid ground to reject the claim of the landlords.283

5.2.7.18 Requirement of family is personal

requirement

A tenant cannot be a party to the determination of the requirement

of the landlord, it was so held in Shiv Sarup Gupta v. Mahesh

Chand Gupta284. The need to occupy the demised premises could

be said to be natural, real, sincere and honest then the need has to

be held to be a bonafide. Total number of three married brothers

and parents, one house comprising of six rooms certainly would

not be sufficient.285

5.2.7.19 Requirement of dependent is personal

requirement

Economic difficulty or financial stringency or family reasons may

compel a landlord to let out a building in his occupation. So long as

it is found to be genuine and bona fide it would amount to vacating

a building for sufficient cause. 'His own occupation' does not mean

occupation by the landlord alone and as an individual. It was held

that the requirement of members of family of the landlord or of the

283 Ashwani Kumar and another v. Sashi Bala and others, 2005(1) L.A.R. 442 (P&H).

284 1999(6) S.C.C. 222.

285 Surinder Kumar Jain and another v. Ravinder Kalra, 2005(1) L.A.R. 656 (P&H).

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one who is dependent on the landlord, is the landlord's own

requirement.286

5.2.7.20 Requirement of daughter is father’s

requirement

During the pendency of the said suit landlord died. The submission

that the right to sue did not ensue to the benefit of his daughter

since the requirement pleaded by landlord, her late father, was not

for the benefit of his daughter was negatived. It was held that the

question as to the existence of bona fide personal need is a pure

question of fact.287

5.2.7.21 Suit filed by co-owner without consent of co-

owners is maintainable

The landlord was one of the co-owners and non-joinder of other

co-owners in eviction petition is not fatal.

It is not necessary for the co- owner to show before initiating the

eviction proceeding before the Rent Controller that he had taken

option or consent of the other co-owners. However, in the event, a

co-owner objects thereto, the same may be a relevant fact.288

5.2.7.22 Lease-deed has no over-riding effect over

provisions of Rent Act

Mere filing of a petition under Section 4 of the Haryana Urban

(Control of Rent and Eviction) Act, 1973 for determination of the

fair rent of the premises which was rented out in the year 1985,

286 Kailash Chand and another v. Dharam Dass, 2005(2) L.A.R. 9 (SC).

287 E. Parashuraman (D) By Lrs v. V. Doraiswamy (D) By Lr, 2005(2) L.A.R. 548 (SC).

288 Mohinder Prasad Jain v. Manohar Lal Jain, 2006(1) L.A.R. 250 (SC).

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per- se, is not sufficient enough to draw an adverse inference

against the bona- fides of the landlord. There is not an iota of

evidence led by the Bank to show that the landlord has been

pressurizing the Bank either to increase the rent or to vacate the

premises. On the contrary, the evidence, as discussed by both the

Courts, does reveal that the respondent had gone abroad for higher

education and on his return, filed the ejectment petition with a

specific plea that he wanted to run his own independent business

from the demised premises.

The lease-deed has no over-riding effect over the provisions of the

Rent Act, in terms whereof, a landlord, on the ground of bonafide

personal necessity, can seek ejectment of a tenant.289

5.2.7.23 Commercial use of a room in residential

building cannot disentitle landlord to seek ejectment

Room was constructed as a residential building, though, the same

was let out for commercial purpose. Room is to be used as part and

parcel of residential building, the same cannot be said to be a

commercial building so as to disentitle the petitioner to seek

ejectment.290

5.2.7.24 Requirement of sons is personal requirement

The only residential accommodation in landlord’s possession, is

one kitchen and two rooms on the first-floor and a latrine on the

top-floor. The rooms are of medium size, and a corner of one of

those rooms is being used as a bathroom. Two sons of the landlord

289 Punjab National Bank v. Ankur Singla and others, 2006(1) L.A.R. 532 (P&H).

290 Rajinder Kumar v. Niranjan Lal and another, 2006(2) L.A.R. 510 (P&H).

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are studying. They require atleast one room for their study. The

landlord also requires a guest-room for the stay of his sister who is

married locally and who often visits him along with her two sons.

There is no ground to upset the bonafide requirement of the

landlord.291

5.2.7.25 Mala fide need

Rented premises situated at Sonepat. Landlords who are three in

numbers are well settled at different places i.e. Delhi, Gurgaon and

Chandigarh. No reasons were forthcoming as to what was the

necessity to shift to Sonepat. It was held that need was not bona

fide need and was merely a desire.292

5.2.7.26 Brothers wanting to start independent

business, requirement bona fide

Growth of families and transformation of joint families into nuclear

families, is a recent phenomena. Therefore, if two brothers want to

part gracefully and start independent business, tenant cannot urge

that they are barred from doing so on account of his hardship.293

5.2.7.27 Alternative accommodation does not

disentitle landlord to seek eviction of tenant

Premises is required by the landlord to start his own business.

Other shop owned and run by landlord’s father. No material to

show that he is inclined to land over the shop and business in

291 Shamma Rani v. Shri Mohan Lal and another, 2007(1) L.A.R. 245 (P&H).

292 Vidya Rattan Taneja and another v. Ram Lal Sachdeva and another, 2009(1) RCR(Civil)

640: 2009(1) RCR(Rent) 52 (P&H).

293 Som Nath v. Pankaj, 2009(2) RCR(Civil) 678: 2009(1) RCR(rent) 423(P&H).

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favour of the landlord only ignoring his other children. Eviction of

tenant upheld.

Bonafides of land lord cannot be doubted on the strength of

conjectures and surmises. Held:-

i) Tenant cannot dictate terms for his landlord as to how the

latter can adjust him without asking for eviction of the

tenanted premises.

ii) Even if an alternative accommodation is available, it is

for the landlord to decide as to how and in what manner

he should fulfill his requirements.

iii) However a tenant cannot be asked to vacate a premises

on mere desire of landlord.294

Landlord is having a family of 16 members. He is occupying two

rooms. One room in another house of landlord fell vacant, but

landlord let out the same. It is no ground to reject the application of

landlord. It was held that even if alternative accommodation was

available, it is for the landlord to decide as to how and in what

manner he should fulfill his requirement. The tenant cannot dictate

terms to his landlord as to how the latter should adjust his family.

Landlord was seeking eviction of tenant on ground of bona fide

requirement though alternative accommodation was available to

him. Landlord is entitled to seek eviction.295

5.2.7.28 Requirement for setting up brother is

personal requirement

294 Yash Pal Juneja v. Satish Kumar Sandooja, 2009(2) RCR(Civil) 681: 2009(1) RCR(Rent)

420 (P&H).

295 Rani Devi v. Shakuntla Devi, 2009(4) RCR(Civil) 74: 2009(2) RCR(Rent) 218 (P&H).

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Landlord is seeking eviction on the ground of personal necessity.

Plea of tenant that petition is liable to be dismissed on the ground

that landlord did not plead about the ownership and occupancy of

other premises and also about the eviction of other tenants from

other premises which is one of the ingredient of section 13.

Contention of landlord repelled. Landlord mentioned all details in

the replication and also proved in evidence that other properties

owned by him were in possession of other family members who

were carrying on their business as sole proprietors.

Landlord is seeking eviction to set up his brother in business who

has completed his studies. There is no evidence that brother is

having any independent premises to carry on his business. Eviction

granted.296

5.2.7.29 Landlady to decide which property is best

suited to her considering her old age

The son of landlady has come back from Dubai and is living in the

house at Delhi with his parents. The son has been doing his work

of consultancy firm from his flat which is in a society and

admittedly on the upper floor. In such given circumstances, it

cannot be said that the averments that were made by the landlady

in her petition regarding requirement of the demised premises for

her son are frivolous. Admittedly, the demised premises is a 500

square yards property whereas the premises where the landlady is

at present residing in Delhi is a much smaller property. Hence, the

argument that the husband of landlady is the owner of a flat in a

society where she is residing with her family does not hold any

296 Puran Chand v. Jai Gopal, 2009(2) RCR(Rent) 549 (P&H).

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forte as it is for the landlady to see as to which property is best

suited to her and where she can reside properly especially when she

is an aged lady and not able to climb stairs. The landlady is not the

owner of the property which is in Delhi and rather, it is her

husband who is owner and thus, it is the sweet will of the landlady

to utilize the property which is under her ownership in the best

possible manner.

The other argument that the landlady has still not applied for the

transfer from Delhi to Gurgaon is also devoid of any merit, for the

reason that the building in Gurgaon(i.e. Demised premises) is

already in occupation of the tenant and does not seem to be be

feasible for the landlady to apply for transfer and after getting

herself transferred from Delhi to Gurgaon, then travel a great

distance from Delhi to Gurgaon and wait till the property is vacated

by the tenant, who is fighting tooth and nail against her. It does not

appeal to a prudent man to get herself transferred from Delhi to

Gurgaon until and unless there is an accommodation to live. The

rate of rent in Gurgaon are extremely high, which is a commercial

hub of Haryana and thus, nobody would like to take a rash decision

and get herself transferred from Delhi to Gurgaon until and unless

the accommodation is available for occupation.297

5.2.7.30 Scope, history of expression “for his own

use”

The question to be determined is; what construction should be

placed on the phrase 'his own use'? Should it be assigned a narrow

meaning that it is the individual requirement of the landlord or in

297 Raj Kumar v. Mrs. Kanak Prabha Bhatia, 2013(1) RCR(Rent) 484 (P&H).

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other words the requirement of the landlord and the landlord alone

which is germane to the provision or should we assign a wide and

liberal meaning to the expression treating it a vibrant one so as to

respect the context in which it has been used feeling the pulse of

the object behind the provision.

It will be useful to state the principles relevant for interpretation of

a provision contained in a Rent Control Law like the one with

which we are dealing. The spurt of provincial rent control

legislations is a necessary consequence of population explosion. In

Prabhakaran Nair and others v. State of Tamil Nadu and

others298, the Court noticed craving for a home, a natural human

instinct, intensified by post-war migration of human-beings en

block place to place, the partition of the country and uprooting of

the people from their hearth and home as vital factors leading to

acute housing shortage persuading the Legislatures to act and enact

Rent Control Laws. The Court emphasized the need of making the

landlord and tenant laws rational, humane, certain and capable of

being quickly implemented. Benefit of society at large needs an

equalistic balance being maintained between apparently conflicting

interests of the owners of the property and the tenant by inducing

and encouraging the landlords to part with available

accommodation for reasonable length of time to accommodate

tenants without unreasonably restricting their right to have the

property being restored to them, more so, when they genuinely

require it. Such limited safeguarding of landlords' interest ensures a

boost to construction activity which in turn results in availability of

more houses to accommodate more human souls with roof on their

298 (1987) 4 SCC 238.

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heads. Sabyasachi Mukharji, J., as His Lordship then was,

articulated the empty truism in such words as have become an oft

quoted quotation "tenants are in all cases not the weaker sections.

There are those who are weak both among the landlords as well as

the tenants".

In Malpe Vishwanath Acharya and others v. State of

Maharashtra and another299 this Court emphasized the need of

social legislations like the Rent Control Act striking a balance

between rival interests so as to be just to law. "The law ought not

to be unjust to one and give a disproportionate benefit or protection

to another section of the society". While the shortage of

accommodation makes it necessary to protect the tenants to save

them from exploitation but at the same time the need to protect

tenants is coupled with an obligation to ensure that the tenants are

not conferred with a benefit disproportionately larger than the one

needed. Socially progressive legislation must have a holistic

perception and not a short- sighted parochial approach. Power to

legislate socially progressive legislations is coupled with a

responsibility to avoid arbitrariness and unreasonability. A

legislation impregnated with tendency to give undue preference to

one section, at the cost of constraints by placing shackles on the

other section, not only entails miscarriage of justice but may also

result in constitutional invalidity.

In Arjun Khiamal Makhijani v. Jamnadas C. Tuliani and

others300, this Court dealing with Rent Control Legislation

observed that provisions contained in such legislations are capable

of being categorized into two : those beneficial to the tenants and

299 (1998) 2 SCC 1.

300 (1989) 4 SCC 612.

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those beneficial to the landlord. As to a legislative provision

beneficial to landlord, an assertion that even with regard to such

provision an effort should be made to interpret it in favour of the

tenant, is a negation of the very principle of interpretation of a

beneficial legislation.

The need for reasonable interpretation of Rent Control Legislations

was emphasized by this Court in Mst. Bega Begum and others v.

Abdul Ahad Khan (dead) by Lrs. and others301. Speaking in the

context of reasonable requirement of landlord as a ground for

eviction the Court guarded against any artificial extension entailing

stretching or straining of language so as to make it impossible or

extremely difficult for the landlord to get a decree for eviction. The

Court warned that such a course would defeat the very purpose of

the Act which affords the facility of eviction of the tenant to the

landlord on certain specified grounds. In Kewal Singh v.

Lajwanti302 it was observed that, while the rent control legislation

has given a number of facilities to the tenants it should not be

construed so as to destroy the limited relief which it seeks to give

to the landlord also. For instance one of the grounds for eviction

which is contained in almost all the Rent Control Acts in the

country is the question of landlord's bona fide personal necessity.

The concept of bona fide necessity should be meaningfully

construed so as to make the relief granted to the landlord real and

practical. Recently in Shiv Sarup Gupta v. Dr. Mahesh Chand

Gupta303, the Court has held that the concept of bona fide need or

genuine requirement needs a practical approach instructed by

301 (1979) 1 SCC 273.

302 (1980) 1 SCC 290.

303 (1999) 6 SCC 222.

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realities of life. An approach either too liberal or too conservative

or pedantic must be guarded against.

The Rent Control Legislations are heavily loaded in favour of the

tenants treating them as weaker sections of the society requiring

legislative protection against exploitation and unscrupulous devices

of greedy landlords.

The Legislative intent has to be respected by the Courts while

interpreting the laws. But it is being uncharitable to Legislatures if

they are attributed with an intention that they lean only in favour of

the tenants and while being fair to the tenants go to the extent of

being unfair to the landlords. The Legislature is fair to the tenants

and to the landlords both. The Courts have to adopt a reasonable

and balanced approach while interpreting Rent Control

Legislations starting with an assumption that an equal treatment

has been meted out to both the sections of the society. In spite of

the overall balance tilting in favour of the tenants, while

interpreting such of the provisions as take care of the interest of

landlord the Court should not hesitate in leaning in favour of the

landlords. Such provisions are engrafted in rent control legislations

to take care of those situations where the landlord too are week and

feeble and feel humble.

Both the learned counsel for the parties submitted that so far as the

expression 'his own use" as occurring in Section 13(3)(a)(ii)(a) is

concerned no occasion has hitherto before arisen enabling this

Court making an authoritative interpretation and pronouncement.

The nearest available decision is Mst. Bega Begum and Ors. which

has been referred to by the High Court in its impugned judgment

and was relied on by Shri Sudhir Chandra, the learned senior

counsel for the landlord-respondent. Section 11(1)(h) of J & K

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Houses and Shops Rent Control Act, 1966 provides for the tenant

being evicted if the landlord requires the house for 'his own

occupation'. The Court held that the provision is meant for the

benefit of the landlord and therefore it must be so construed as to

advance the object of the Act. The word "own occupation"

contemplates the actual possession of the landlord whether for his

own residence or for his business. Furthermore, the provision is

wide enough to include the necessity of not only the landlord but

also of the persons who are living with him as members of the

same family. The words "own occupation" cannot be so narrowly

interpreted as to indicate actual physical possession of the landlord

personally and nothing more than that.

Keeping in view the social or socio-religious milieu and practices

prevalent in a particular section of society or a particular region, to

which the landlord belongs, it may be obligation of the landlord to

settle a person closely connected with him to make him

economically independent so as to support himself and/or the

landlord. To discharge such obligation the landlord may require the

tenancy premises and such requirement would be the requirement

of the landlord. If the requirement is of actual user of the premises

by a person other than the landlord himself the Court shall with

circumspection inquire : (i) whether the requirement of such person

can be considered to be the requirement of the landlord, and (ii)

whether there is a close inter-relation or identity nexus between

such person and the landlord so as to satisfy the requirement of the

first query.

Requirement of landlord for his own use, is an expression capable

of attributing an intention to the legislature that what was intended

to be fulfilled is such requirement as would persuade the landlord

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to have the premises vacated by the tenant, to forego the rental

income, and to put the premises to such use as the landlord would

deem to be his own use and in the given facts and circumstances of

a case the Court too would hold it to be so in contradistinction with

a mere ruse to evict the tenant. The legislature intending to protect

the tenant also intends to lift the protection when it is the

requirement of landlord to put the accommodation to such use as

he intends, away from leasing it out.

We have already noticed that the purpose of the Act is to restrict

increase of rent and the eviction of tenants in urban areas. Still the

Legislature has taken care to provide grounds for eviction, one of

them being the requirement of the landlord. We have to strike a

balance between the need of protecting the tenants from unjustified

evictions and the need for eviction when ground for eviction is one

such as the requirement of the landlord. If we do not meaningfully

construe the concept of requirement the provision may suffer from

the risk of being branded as unreasonable, arbitrary or as placing

uncalled for and unreasonable restrictions on the right of the owner

to hold and use his property. We cannot place a construction on the

expression 'for his own use' in such a way as to deny the landlord a

right to evict his tenant when he needs the accommodation for his

own son to settle himself well in his life. We have to give colour

and content to the expression and provide the skin of a living

thought to the skeleton of the words which the Legislature has not

itself chosen to define. The Indian society, its customs and

requirements and the context where the provision is set in the

legislation are the guides leading to acceptance of the meaning

which we have chosen to assign to the words 'for his own use' in

Section 13(3)(a)(ii) of the Act.

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Our conclusions are crystalised as under:

(i) the words 'for his own use' as occurring in Section

13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act,

1949 must receive a wide, liberal and useful meaning rather

than a strict or narrow construction.

(ii) The expression, landlord requires for 'his own use', is not

confined in its meaning to actual physical user by the

landlord personally. The requirement not only of the

landlord himself but also of the normal 'emanations' of the

landlord is included therein. All the cases and circumstances

in which actual physical occupation or user by someone else,

would amount to occupation or user by the landlord himself,

cannot be exhaustively enumerated. It will depend on a

variety of factors such as inter-relationship and inter-

dependence, economic or otherwise, between the landlord

and such person in the background of social, socio-religious

and local customs and obligations of the society or region to

which they belong.

(iii) The tests to be applied are :

i. whether the requirement pleaded and proved may

properly be regarded as the landlord's own

requirement? and,

ii. Whether on the facts and in the circumstances of a

given case actual occupation and user by a person

other than the landlord would be deemed by the

landlord as 'his own' occupation or user?

(iv) The answer would, in its turn, depend on

i. the nature and degree of relationship and/or

dependence between the landlord pleading the

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requirement as 'his own' and the person who would

actually use the premises;

ii. the circumstances in which the claim arises and is

put forward, and

iii. the intrinsic tenability of the claim. The Court on

being satisfied of the reasonability and genuineness

of claim, as distinguished from a mere ruse to get

rid of the tenant, will uphold the landlord's claim.

(v) While casting its judicial verdict, the Court shall adopt a

practical and meaningful approach guided by the realities of

life.

(vi) In the present case, the requirement of landlord of the

suit premises for user as office of his chartered accountant

son is the requirement of landlord 'for his own use' within

the meaning of Section 13(3)(a)(ii).304

5.2.7.31 “Not occupying another residential building”

The words 'need' and "require' both denote a certain degree of want

with a thrust within demanding fulfillment. 'Need' or 'requirement'

qualified by word 'bonafide' or 'genuine' preceding as an adjective,

is an expression often used in Rent Control Laws. 'Bonafide or

genuine need' of the landlord or that the landlord 'genuinely

requires' or "requires bonafide" an accommodation for occupation

by or use for himself is an accepted ground for eviction and such

expression is often employed by Rent Control legislation

draftsman. The two expressions are interchangeable in practice and

carry the same meaning.

304 Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397.

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Chambers 20th Century Dictionary defines bonafide to mean 'in

good faith: genuine'. The word 'genuine' means 'natural; not

spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whit

ley define bonafide to mean 'good faith, without fraud or deceit'.

Thus the term bonafide or genuinely refers to a state of mind.

Requirement is not a mere desire. The degree of intensity

contemplated by 'requires' is much more higher than in mere

desire. The phrase 'required bonafide' is suggestive of legislative

intent that a mere desire which is outcome of whim or fancy is not

taken note of by the Rent Control Legislation. A requirement in the

sense of felt need which is an outcome of a sincere, honest desire,

in contra-distinction with a mere pretence or pretext to ev.ict a

tenant, on the part of the landlord claiming to occupy the premises

for himself or for any member of the family would entitle him to

seek ejectment of the tenant. Looked at from this angle, any setting

of the facts and circumstances protruding the need of landlord and

its bonafides would be capable of successfully withstanding the test

of objective determination by the Court. The Judge of facts should

place himself in the arm chair of the landlord and then ask the

question to himself-whether in the given facts substantiated by the

landlord the need to occupy the premises can be said to be natural,

real, sincere, honest. If the answer be in the positive, the need is

bonafide. The failure on the part of the landlord to substantiate the

pleaded need, or, in a given case, positive material brought on

record by the tenant enabling the court drawing an inference that

the reality was to the contrary and the landlord was merely

attempting at finding out a pretence or pretext for getting rid of the

tenant, would be enough to persuade the Court certainly to deny its

judicial assistance to the landlord. Once the court is satisfied of the

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bonafides of the need of the landlord for premises or additional

premises by applying objective standards then in the matter of

choosing out of more than one accommodation available to the

landlord his subjective choice shall be respected by the court. The

court would permit the landlord to satisfy the proven need by

choosing the accommodation which the landlord feels would be

most suited .for the purpose; the court would not in such a case

thrust its own wisdom upon the choice Of the landlord by holding

that not one. but the other accommodation must be accepted by the

landlord to satisfy his such need. In short, the concept of bonafide

need or genuine requirement needs a practical approach instructed

by realities of life. An approach either too liberal or two

conservative or pedantic must be guarded against.

The availability of an alternate accommodation with the landlord

i.e. an accommodation other than the one in occupation of the

tenant wherefrom he is sought to be evicted has a dual relevancy.

Firstly, the availability of another accommodation, suitable and

convenient in all respects as the suit accommodation, may have an

adverse bearing on the finding as to bonafides of the landlord if he

unreasonably refuses to occupy the available premises to satisfy his

alleged need. Availability of such circumstance would enable the

Court drawing an inference that the need of the landlord was not a

felt need or the state of mind of the landlord was not honest,

sincere, and natural. Secondly, wherever another residential

accommodation is shown to exist as available then the court has to

ask the landlord why he is not occupying such other available

accommodation to satisfy his need. The landlord may convince the

court that the alternate residential accommodation though available

is still of no consequence as the same is not reasonably suitable to

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satisfy the felt need which the landlord has succeeded in

demonstrating objectively to exist. Needless to say that an alternate

accommodation, to entail denial of the claim of the landlord, must

be reasonably suitable, obviously in comparison with the suit

accommodation wherefrom the landlord is seeking eviction.

Convenience and safety of the landlord and his family members

would be relevant factors. While considering the totality of the

circumstances, the court may keep in view the profession or

vocation of the landlord and his family members, their style of

living, their habits and the background wherefrom they come.

In M. M. Quasim v. Manohar Lal Sharma305, this Court has held

(vide para 18) that the landlord does not have an unfettered right to

choose the premises but merely showing that the landlord has some

other vacant premises in his possession may not be sufficient to

negative the landlord's claim if the vacant premises were not

suitable for the purpose for which he required the premises. This

Court cautioned that the Court must understand and appreciate the

relationship between the legal rules and necessities of life.

In Ram Pass v. Ishwar Chander and others306, this Court has held

that:-

"the need of the landlord should be genuine and honest, conceived

in good faith; and that, further, the court must also consider it

reasonable to gratify that need. Landlord's desire for possession,

however honest it might otherwise be, has inevitably a subjective

element in it and that, that desire to become a "requirement" in law

must have the objective element of a "need". It must also be such

that the court considers it reasonable and, therefore, eligible to be

305 AIR 1981 SC 1113.

306 AIR 1988 SC 1422.

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gratified. In doing so, the court must take all relevant

circumstances into consideration so that the protection afforded by

law to the tenant is not rendered merely illusory or whittled down".

In Sarla Ahuja v. United India Insurance Co.Ltd.307, this Court

has held that the Rent Controller should not proceed on the

assumption that the landlord's requirement is not bonafide. When

the landlord shows a prima facie case a presumption that the

requirement of the landlord is bonafide is available to be drawn. It

is not for the tenant to dictate terms to the landlord as to how else

he can adjust himself without giving possession of the tenanted

premises. While deciding the question of bonafides of the

requirement of the landlord, it is 'quite unnecessary to make an

endeavour as to how else the landlord could have adjusted himself.

In Prativa Devi (Smt) v. T.V. Krishnan308, this court has held that

in considering the availability of alternative accommodation, not

availability merely but also whether the landlord has the legal right

to such accommodation has to be considered.309

5.2.8 S. 13(3)(c) Unsafe and unfit for human habitation

5.2.8.1 Perverse condition of building make it unsafe

and unfit for human habitation

In the case of Piara Lal v. Kewal Krishan Chopra310, the leased

portion comprised of four rooms on the ground floor. Roof of one

room had fallen. The tenant had replaced the roof only at a cost of

about Rs. 200/-. Eviction petition was filed on the ground that the

307 1998 (8) SCC 119.

308 1996 (5) SCC 353.

309 Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 AIR 2507: 1999(6) SCC 222.

310 A.I.R. 1988 SC, 1432.

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property in question has become unsafe and unfit for human

habitation.

It was recorded as of fact that roof of one room had fallen which

could be repaired at the meager cost of Rs. 200/-. There is no

evidence that the entire building or substantial portion of it was in a

damaged condition. Supreme Court, therefore, held that it cannot

be termed that whole building had become unsafe and unfit for

human habitation.

However in the present case the photographs clearly show that the

condition of the building is not very good. Roof of one room had

fallen. The building admittedly, is old. Even the roof of the

adjoining shop of the landlord had also fallen. It cannot be termed

that it would be a minor repair. It was held that ground of eviction

was available.311

5.2.8.2 Court to see condition of building on the date

of filing of petition and not on the date of ejectment

order

Court has to see whether the demised premises or the building of

which the demised premises is a part, has become unsafe or unfit

for human habitation on the date of the filing of the petition itself

and not on the date of the ejectment order.312

5.2.8.3 Just because construction is old does not

make building unfit and unsafe

Merely because the building is old one, it cannot be said to be

unsafe and unfit for human habitation. Moreover, if the other part

311 Roshan Lal v. Hari Dass, 1999 HRR 614 (P&H).

312 Mahavir Jain Shoe Store v. Dr. Gian Chand Loomba, 2000(1) PLR 35.

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of the building has fallen down by itself it will not mean that the

premises in question are also unfit and unsafe for human

habitation.313

5.2.8.4 Mere length of crack by itself would not be

indicative of bad condition of wall, both length and

depth of crack has to be proved

There are big cracks found by the Commissioner on the beginning

of the wall extending from top to more than middle, and another

big crack on another wall. The report records the depth of the

crack, not merely the length of the crack showing the bad condition

of the two walls of the disputed shop. Mere length of crack by

itself may not have foundation to hold its condition of structure of

the shop to be bad but it would be, where the crack measures 2 x

7.5 depth in one wall on the upper side and 1.5 (illegible) on the

lower side and another crack measuring 2 x 8 from the upper side

and 2 x 7 from the lower side. Once the said local Commissioners

report was brought on the record, as part of evidence to show the

subsequent event or condition of building, it was incumbent on the

High Court to have considered it, which it rightly did and if in

doing so an inference is drawn, that the disputed accommodation is

not fit for human habitation it is not such which calls for

interference.314

5.2.8.5 Appraisers shall be allowed to inspect

present true picture before the court

313 Mohinder Pal v. Hari Das, 2000(3) PLR 563.

314 Lekh Raj v. Muni Lal and others, AIR 2001 SC 996.

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If the expert is permitted to inspect the demised shop after

removing the false ceiling, no prejudice is going to be caused to

any party particularly when the ejectment petition has been filed on

the ground of material impairment and the building being unfit and

unsafe for human habitation. It is always in the interest of justice

that true picture regarding the condition of the demised premises

should come before the Court so that proper adjudication could be

made between the parties.315

5.2.8.6 Merely because the tenant partly

reconstructed the declining premises could not defeat

the landlord's right to seek the tenant's eviction

The original premises is consisting of five rooms out of which the

four had fallen down and the fifth was also at the verge of collapse,

amply proves that the premises had become totally dangerous and

could not be used for human habitation. Merely because the tenant,

without any authority in law, partly reconstructed the premises by

putting the tiled roof, per-se, could not defeat the landlord's right to

seek the tenant's eviction under Section 13(3) of the Act.316

5.2.8.7 When building has become unsafe and unfit,

tenant is not entitled to repair and defeat the claim of

landlord

Photographs annexed with Local Commissioner’s report shows that

building had fallen down and malba was clearly discernible in the

photographs. Tenant’s attempt to reconstruct the building to make

315 Samir (Sameer) and another v. Roshan Puri and others, 2006(1) L.A.R. 118 (P&H).

316 Jai Dev Singh v. M.L. Kapoor, 2007 L.A.R. 631 (P&H).

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it fit for use leads to filing the suit. Tenant changed the nature of

property. Eviction order was upheld.317

The demised premises had remained under water for a period of

one month and as a result, the walls developed cracks and water

started leaking from various parts. Instead of waiting for the

outcome of the petition filed for repair of the tenanted premises,

the tenant unilaterally and without permission, of the Rent

Controller, repaired the building so as to conceal the true nature

and extent of the damage.

A tenant shall not, by a unilateral act of repair, except where the

repairs are minor and inconsequential, defeat a landlord's right to

seek ejectment and the Rent Controller's statutory jurisdiction to

examine whether the building has become unsafe and unfit for

human habitation.

The tenant, who was facing, a petition for ejectment, on the ground

that the building had become unsafe and unfit for human

habitation, carried out repairs without waiting for the decision of

the Rent Controller on his application for directing the landlord to

repair the building. A presumption was, therefore, rightly raised

against the tenant that in case repairs had not been carried out, the

landlord would have succeeded in establishing that the building

had become unsafe and unfit for human habitation.318

5.2.8.8 Portions of building falling down; tenant

liable for eviction even though his portion is safe and fit

for dwelling

317 Gurcharan Singh and others v. M.L.Kapoor and others, 2004 L.A.R. 296.

318 Smt.Geeta Devi v. Smt.Sushila, 2009(1) RCR(Civil) 669 (P&H).

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Tenant is occupying a portion of larger building. Other portions of

the same building are falling down. It will be natural to assume that

portion in occupation of tenant had become unfit. Landlord wanted

to put up whole construction including the portion in occupation of

tenant. Landlord is entitled to evict the tenant even if the portion in

occupation of tenant was fit for residence.319

5.2.8.9 Supreme court on unsafe and unfit for

human habitation

There is a distinction between effecting repairs and in its guise to

make structural alteration or to restructure the building. The tenant

cannot effect structural alteration or reconstruct the building. It is

the right of the landlord alone to exclusively have it done, unless of

course, the landlord having had the tenant evicted from the

building for that purpose and demolished the building and failed to

reconstruct and redeliver possession thereof to the tenant. In a

given case if the tenant acts unilaterally and effects structural

alterations or reconstruct the building, it itself may be a ground for

eviction under the appropriate provision of the statute. The test in

each case is whether it is absolutely necessary to have the tenant

evicted to carry out repairs or structural alteration for making the

demised building safe and fit for human habitation. Further it is to

be asked whether the repairs are so fundamental in character and

extensive which cannot be carried out without evicting the tenant

from the building or while the tenant remained in occupation. If the

repairs could be carried out without disturbing the possession of

the tenant, the need for eviction is mere a wish of the landlord or a

319 Pyare Lal v. Krishan Lal, 2009(2) RCR(Rent) 233: 2009(3) P.L.R. 404 (P&H).

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ruse to have the tenant evicted. Take for instance, a building, in

which commercial activity having established good will, was taken

possession of under section 13(3)(a)(iii) and got no repairs effected

but demolished and no reconstruction was made for a long time.

Prolonged stoppage of business will have a deleterious effect on

the goodwill and cripple the business of the tenant. Each case on its

own facts presents its true colours. Its effect is to be visualised and

considered in its own perspective.320

5.2.8.10 Contradictory reports of tenant and

landlord: Building Unsafe and Unfit for Human

Habitation

Two experts, i.e. one examined by the landlord and the other by the

tenant, had given contradictory reports, the learned Appellate

Authority in order to do substantial justice between the parties

inspected the spot itself and having found the report of

Superintending Engineer (examined by the landlord), trust-worthy

has accepted the same. It was held that the building in question has

become unfit and unsafe for human habitation and the finding of

the appellate Authority in this respect calls for no interference.321

5.3 Scope and interpretation of special procedure for

eviction

In order to satisfy the instinct of a retiring person to live in his own

house and to mitigate his hardship on his retirement having served

the Government the specified landlord i.e. the retiring Government

employee, has been given a right to eject the tenant and take

320 Shadi Singh v. Rakha, 1994 AIR 800, 1992 SCR (2) 726.

321 Chhabil Dass v. Smt. Saroj Garg, 1997(1) RCR 635 (P&H).

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possession without undergoing the stringent longdrawn rigours of a

trial under the Rent laws.

The provisions of the act succinctly point out that a person who

held an appointment in a public service, or the one who held a post

in connection with the affairs of the Union or of a State can seek

ejectment of the tenant from his premises on his retirement. The

rights of the landlord are not shackled by conventional procedure

for ejectment from a dwelling house. The landlord is supposed to

satisfy the authority i.e. the Rent Controller only to the effect that

he is specified landlord he either held an appointment in a public

service or held a post in connection with the affairs of the Union or

of a State and is not in possession of any suitable accommodation

in the locality and further that there is no lack of bona fides. On

providing the conditions imposed, the landlord would be entitled to

take the possession of the dwelling unit. As observed earlier, this

has been provided in order to promote the welfare of a retiring

employee by affording him an opportunity to have a roof over his

head who had served the State during his career on account of the

exigencies of his service, was sometimes provided with a shelter by

his employer which he had to vacate op. his retirement. In the

absence of this helping hand of law the specified landlord would be

left high and dry without a roof at the fag and of his life when one

is supposed to live in peace after giving best part of his life in the

service of the Union of India or the State.322

5.3.1 Specified landlord

322 Vijay Kumar Bhambari v. Ram Nath Bajaj, AIR 1990 P H 208.

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A landlord in order to get benefit of section 13-A must be specified

landlord at the time of his retirement from service of Union of

India.323

If the landlord wants to take the benefit of Section 13-A of the Act

to eject his tenant, he is duty bound to prove the relationship of

landlord and tenant and the Rent Controller before he proceeds in

the matter, has to satisfy that the applicant before him is a landlord

and the person proceeded against is a tenant as defined under the

Act. If the Rent Controller comes to the conclusion that no

relationship of landlord and tenant exists, he has no jurisdiction to

decide the other issues. If there is a dispute about the title, the Rent

Controller is not expected to examine the same and the parties are

to be relegated to the Civil Court.324

If retired teachers of private aided schools receive pension they do

not become Government servants merely for that reason. The best

evidence to establish that the landlord was a Government servant

would have been his letter of appointment as Government servant

or the letter vide which he was sent on deputation to the aided

School. Mere receipt of pension does not make all retired teachers

of private schools Government servants.325

5.3.2 Leave to defend

The Rent Controller does not have the jurisdiction to extend the

period of 15 days specified in the form appended to the Act and if

323 Gurdarshan Singh Mann v. Manmohan singh Kapoor, 1989(2) Rent LR 37 (P&H).

324 Som Nath v. Smt. Krishna Devi Nayal, 1997(1) RCR 694 (P&H).

325 Indrasen Jain v. Rameshwardas, 2005(1) L.A.R. 262 (SC).

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the tenant fails to make an application within 15 days of the service

of summons, he cannot be granted leave to contest the petition filed

by the landlord under Section 13-A of the Act.

The summons sent to the petitioner by registered post were

received by him on 14.1.1992 and that is to be considered as the

date of service of summons upon him for the purpose of computing

the prescribed period of 15 days for filing the affidavit seeking

leave to contest the application.

It was further held that the application filed by the petitioner on

30.1.1992 is barred by time. The Rent Controller does not have the

discretion and jurisdiction to condone the delay in the filing of the

application or to extend the period specified in the form. If at all

the Legislature wanted to make the provisions of Limitation Act

applicable or confer some element of discretion upon the Rent

Controller, nothing prevented it from incorporating an express

provision to that effect.326

No right, title or interest were validly created in favour of the

landlord by way of alleged family arrangement, which was stated

to be a sham transaction, designed and mala fidely aimed at

procuring the eviction of the tenant from the tenanted premises on

false, frivolous and technical grounds by overcoming rigors of rent

law, which is a social legislature enactment for providing

protection to the tenant.

According to the tenant, Eviction Petition titled as Inder Mohan

etc. v. Bhoop Singh Chaudhary, which was pending in the Court

of Rent Controller and in which the present landlord is also one of

326 Ashwani Kumar Gupta v. Shri Siri Pal Jain, 1998(1) RCR(Rent) 222 (P&H)(DB).

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the parties, falsifies the claim in the present petition and puts

indelible question marks on the bona fides of the petitioner.

The landlord was not having any status of landlord what to talk of

specified landlord at the time of his retirement. The perusal of the

application and affidavit filed by the tenant seeking leave to defend

and contest the eviction petition (which have been placed on record

of this petition) would reveal that the tenant has disclosed

sufficient facts with regard to the subsequent partition between the

parties which was stated to be a sham transaction, in order to

enable the landlord to recover possession of the demised premises

as specified landlord under section 13-A of the Act.327

Conclusion

In Haryana there is no provision as to right to temporary recovery

of possession while in Delhi the landlord is entitled to get

possession of the building, if bona fide, it is required by him to

carry out repairs, alterations or additions, which cannot be carried

out without the building being vacated, after which the building

will again be offered to the tenant. This provision shall be inserted

in the Act as it would give an incentive to the landlord to carry out

the renovation from time to time.

327 Lt.Col.Suraj Parkash (Retd) v. Bhoop Singh Chaudhary, 2009(2) RCR(Rent) 470 (P&H).