FLORA ELIAS NAHOUM & ORS.versusIDRISH ALI LASKAR

272                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 272                [2018] 1 S.C.R.


A                     FLORA ELIAS NAHOUM & ORS.
                                        v.
                             IDRISH ALI LASKAR
                         (Civil Appeal No. 4189 of 2007)
B                             JANUARY 25, 2018
        [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
            Rent Control and Eviction:
             West Bengal Premises Tenancy Act, 1956 – s.13(1)(a) –
      Eviction suit – Claim of, on four grounds, default in payment of
C     monthly rent, bonafide need, sub-letting and unauthorized
      construction in the suit shop by the tenant – Suit partly decreed
      against the tenant on the ground of sub-letting and unauthorized
      construction by the tenant in the suit shop – However, the High
      Court dismissed the suit holding that no ground of either sub-letting
D     or an unauthorized construction was made out – On appeal, held:
      Even if the landlord is able to make out only one ground out of
      several grounds of the eviction, he is entitled to seek the eviction of
      his tenant from the suit premises on the basis of that sole ground –
      It is not necessary for the landlord to make out all the grounds
      which he has taken in the plaint for claiming eviction of the tenant
E     under the Rent Act – On facts, landlords were able to prove the
      case of sub-letting against the tenant – In view thereof, it is not
      necessary to examine the other ground relating to making of
      unauthorized construction by the tenant in the suit shop – Thus, the
      order of the High Court is set aside and that of the trial court is
      restored.
F
            Allowing the appeal, the Court
             HELD: 1.1 Even if the landlord is able to make out only
      one ground out of several grounds of the eviction, he is entitled
      to seek the eviction of his tenant from the suit premises on the
G     basis of that sole ground which he has made out under the Rent
      Act. It is not necessary for the landlord to make out all the grounds
      which he has taken in the plaint for claiming eviction of the tenant
      under the Rent Act. If one ground of eviction is held made out
      against the tenant, that ground is sufficient to evict the tenant
      from the suit premises. [Paras 16, 17][276-F-G]
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                                       272
       FLORA ELIAS NAHOUM v. IDRISH ALI LASKAR                          273


      1.2 Section 13(1)(a) of the West Bengal Premises Tenancy          A
Act, 1956 deals with the ground of sub-letting and provides that
where the tenant or any person residing in the premises let to
the tenant without the previous consent in writing of the landlord
transfers, assigns or sublets in whole or in part the premises
held by him, then it is a ground for the tenant’s eviction from the
                                                                        B
tenanted premises. Keeping in view the pleadings and the nature
of the evidence adduced by the parties, the ground of sub-letting,
as contemplated under Section 13(a) is made out. [Paras 33-
34][279-C-D]
      1.3 In the first place, the respondent-tenant, since inception,
was taking inconsistent stand on the question of sub-letting. The       C
contradictory stand of the respondent and that too without any
evidence clearly leads to an inference that the respondent was
unable to prove, in categorical terms, as to which capacity, ‘JM’
was sitting in the suit shop - whether as an “employee” or a
“business partner” or in any “other capacity”. Since the                D
respondent had admitted the presence of JM in the suit shop,
the burden was on him to prove its nature and the capacity in
which he used to sit in the suit shop. If ‘JM’ was the respondent’s
employee then, he should have proved it by filling a declaration
form, which he had submitted under the Shops and Establishment
Act to the authorities. But it was not done. Rather he admitted         E
that he did not disclose the name of ‘JM’ in the declaration form.
That apart, the respondent could have proved this fact by filing
payment voucher, or any other relevant evidence to show that
‘JM’ was his employee and that he used to sit in the suit shop in
that capacity only. It was, however, not done. [Paras 35, 38, 40        F
and 41][279-E, G-H; 280-B-C]
       1.4 If ‘JM’ was a partner of the respondent in the tailoring
business then the respondent could have proved this fact by filing
a copy of the partnership deed. However, he again failed to
produce the copy of partnership deed. In this way, he failed to         G
prove even this fact. Appellants appear to have discharged their
initial burden by pleading the necessary facts and then by proving
it by evidence that firstly, they let out the suit shop to the
respondent and secondly, the respondent has sub-let the suit shop
to ‘JM’, who was in its exclusive possession without their consent.
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274            SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     In other words, the sin qua non for proving the case of the sub-
      letting is that the tenant has either whole or in part transferred
      or/and parted with the possession of the tenanted premises in
      favour of any third person without landlord’s consent. [Paras 42,
      43 and 45][280-D-F, G]
B           1.5 The appellants were able to prove the case of sub-letting
      against the respondent. The reasoning and the conclusion arrived
      at by the High Court cannot be concurred with and instead the
      conclusion of the trial court insofar as it relates to the ground of
      sub-letting is accepted. In view of this, it is not necessary to
      examine the other ground relating to making of unauthorized
C     construction by the respondent in the suit shop. The impugned
      judgment is set aside and that of the trial court is restored. [Paras
      50-51][282-C-D]
            Bharat Sales Ltd. v. Life Insurance Corporation of India
            (1998) 3 SCC 1 : [1998] 1 SCR 711 – referred to.
D
                               Case law reference
            [1998] 1 SCR 711            referred to               Para 46
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4189
      of 2007.
E
           From the Judgment and Order dated 07.07.2005 of the Division
      Bench of the High Court at Calcutta in F.A. No. 416 of 1984.
            Ms. Daisy Hannah, Ms. Kasturika Kaumudi, Ms. Ekta Pradhan,
      Ms. Sreoshi Chatterjee, Shekhar Kumar, Advs. for the Appellants.
F          Zakiullah Khan, Sr. Adv., Ms. Shipra Ghose, Kisalaya Shukla,
      Ms. Gaurango Das, K. K. Shukla, Advs. for the Respondents.
            The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J. 1. This appeal arises from
      the final judgment and final order/decree dated 07.07.2005 passed by
G     the High Court of Calcutta in F.A. No.416 of 1984 whereby the Division
      Bench of the High Court dismissed the eviction suit filed by the appellants
      against the respondent and set aside the decree for eviction passed by
      the Trial Court in their favour and against the respondent.
            2. In order to appreciate the issues involved in this appeal, it is
H     necessary to set out the facts in detail herein-below.
       FLORA ELIAS NAHOUM v. IDRISH ALI LASKAR                                275
              [ABHAY MANOHAR SAPRE, J.]

      3. The appellants are the plaintiffs (landlords) whereas the            A
respondent is the defendant (tenant) in the eviction suit out of which this
appeal arises.
       4. The appellants (plaintiffs) are the owners/landlords of one shop
(room) bearing premises No.1, Hartford Lane, Calcutta (hereinafter
referred to as “the suit shop”), which was originally owned by Late           B
Nahoum Elias and Miss Resmah Nahoum. The present appellants are
the successors-in-interest of the suit shop. They had let out the suit shop
to one - Alfajuddin Laskar on a monthly rent of Rs.40/-. In the suit shop,
Alfajuddin Laskar used to do the business of sale of eggs under the
name “24, Parganas Egg Stores”.
                                                                              C
       5. Alfajuddin Laskar expired in 1976. The respondent being his
son became the tenant of the appellants on same terms and conditions.
The respondent, however, closed his father’s business of selling of eggs
and started his tailoring business under the name “New India Tailors” in
the suit shop.
                                                                              D
       6. In 1978, the appellants filed an Eviction Suit against the
respondent under the provisions of the West Bengal Premises Tenancy
Act, 1956 (hereinafter referred to as “the Act”. The eviction was claimed
on four grounds, viz., default in payment of monthly rent, bona fide
need, sub-letting and lastly, making of unauthorized construction in the
suit shop by the respondent.                                                  E

       7. The respondent filed the written statement and denied all the
four grounds. Parties adduced their evidence. The Trial Court, by order
dated 30.01.1984, partly decreed the suit. It was held that so far as the
grounds relating to default of rent and bona fide need are concerned,
both are not made out whereas the other two grounds, namely, sub-             F
letting and making of unauthorized construction in the suit shop, both
stood made out against the respondent.
       8. In this view of matter, the appellants’ suit was decreed in part
against the respondent and the decree for eviction on the ground of sub-
letting and unauthorized construction made by the respondent in the suit      G
shop was passed. The respondent was granted six months’ time to vacate
the suit shop and handover its vacant possession to the appellants.
      9. Being aggrieved by the said order, the respondent filed appeal
before the High Court at Calcutta. The appellants, however, did not file
any cross appeal or cross-objection against that part of the order by         H
276             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     which two grounds, viz., default in payment of rent and bona fide need
      were held not made out. The judgment of the Trial Court thus became
      final to that extent.
             10. Therefore, the only question before the High Court was whether
      the Trial Court was justified in decreeing appellants’ suit on the grounds
B     of sub-letting and making of unauthorized construction in the suit shop.
              11. In other words, the question was whether the Trial Court was
      right in holding that the ground of sub-letting and making of unauthorized
      construction in the suit shop was made out.
              12. The High Court, by impugned judgment, allowed the
C     respondent’s appeal and dismissed the appellants’ eviction suit. The High
      Court held that no ground of either sub-letting or an unauthorized
      construction was made out, hence, the suit was liable to be dismissed in
      its entirety. It was accordingly, dismissed.
             13. Against this judgment, the landlords felt aggrieved and filed
D     this appeal by way of special leave in this Court.
           14. Heard Ms. Daisy Hannah, learned counsel for the appellants
      and Mr. Zakiullah Khan, learned senior counsel for the respondent.
             15. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we are inclined to allow the appeal and while
E
      setting aside of the impugned judgment, we restore that of the Trial
      Court and, in consequence, decree the appellants’ suit in part, as indicated
      below.
             16. There can be no dispute to the legal proposition that even if
      the landlord is able to make out only one ground out of several grounds
F
      of the eviction, he is entitled to seek the eviction of his tenant from the
      suit premises on the basis of that sole ground which he has made out
      under the Rent Act.
              17. In other words, it is not necessary for the landlord to make out
      all the grounds which he has taken in the plaint for claiming eviction of
G     the tenant under the Rent Act. If one ground of eviction is held made out
      against the tenant, that ground is sufficient to evict the tenant from the
      suit premises.
            18. As mentioned above, the Trial Court held that the appellants
      were able to make out two grounds for respondent’s eviction, namely,
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       FLORA ELIAS NAHOUM v. IDRISH ALI LASKAR                               277
              [ABHAY MANOHAR SAPRE, J.]

sub-letting and unauthorized construction made by him in the suit shop.      A
The High Court, accordingly, reversed the findings on these two grounds
and dismissed the suit.
        19. We consider it proper to examine first, the ground of sub-
letting with a view to find out as to whether the plaintiffs (appellants)
were able to make out this ground against the respondent. In other words,    B
let us first examine as to whether the Trial Court was right or the High
Court was right on this issue.
       20. In order to examine, whether the ground of sub-letting is made
out or not, it is necessary to see as to how this ground was pleaded and
sought to be proved by the parties.                                          C
       21. The appellants, in Para 4 of the plaint, pleaded the case of
sub-letting as under:
      “4. The defendant after acquiring right of tenancy in respect
      of the said shop room after his father’s death, wrongfully
      transferred possession of the said shop room to one Joynal             D
      Mallick evidently for creating a sub-tenant in his favour in
      respect of the suit shop room without obtaining the
      permission and consent of the plaintiffs.”
      22. The respondent, in reply to Para 4 of the plaint, gave the
following reply in Para 9 of his written statement as under:                 E
      “9. The defendant denies the allegations made in paragraph
      4 of the plaint and in particular denies the allegations that
      he has transferred possession of the shop under his tenancy
      to one Joynal Mullick or anybody as falsely alleged.”
                                                                             F
      23. It is clear from the perusal of the pleadings that the case of
the appellants was that the respondent has sub-let and parted with
possession of the suit shop to one Joynal Mullick without appellants’
consent.
      24. So far as the respondent is concerned, he simply denied the
appellants’ case in para 9 saying that he has not sub-let the suit shop to   G
anyone, much less to Joynal Mullick, as claimed by the appellants.
     25. The respondent examined himself as witness No.1 and
examined Joynal Mullick as witness No.2.

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278             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A            26. In examination-in-chief, the respondent changed his stand and
      said that he has not sub-let the suit shop to Joynal Mullick but he is in his
      employment. This is what he said:
            “It is not a fact that I sublet the shop room in suit to one
            Jainal Mullick. Jainal Mullick is in my employment.”
B            27. The respondent further in his cross-examination again changed
      his stand and in answer to a specific question put to him as to whether
      he has employed any person in his tailoring business said “no”. This was
      his reply:-
            “No. In the tailoring business I have no employee but the
C           work is done on contract basis.”
             28. The respondent then in answer to another question put to him
      as to how many persons work for you on contract basis in his tailoring
      business, his reply was- four persons and out of four, Joynal Mullick
      and Jahangir Mullick were his employees. This is what he said:-
D           “Najrul Islam and Sayed, Volunteers – Besides these
            persons there are two other persons who look after the
            business in my absence. They are Jainal Mullick and
            Zahangir Mullick volunteers. These two persons are my
            employee.”
E            29. The respondent then was asked another question, viz., Did he
      disclose the name of any of his employee while submitting the declaration
      form under the Shops and Establishment Act, his reply was “no”. This
      is what he said:-
            “I am the owner of the tailoring shop. Volunteers – fresh
F           declaration has been submitted about 10/12 days back. In
            that declaration I have not declared that these two persons
            Jainal and Zahangir are my employees.”
             30. The respondent was then asked last pointed question - whether
      Joynal Mullick is doing business in the suit shop. To this, his reply was
G     that Joynal Mullick is his business partner. This is what he said:-
            “I obtained the trade license from the Corporation of
            Calcutta for the business carried in the shop showing Jainal
            Mullick and Zahangir Mullick as my partners in the
            business. It is not a fact that Jainal and Zahangir are not
            my employees.”
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        FLORA ELIAS NAHOUM v. IDRISH ALI LASKAR                                279
               [ABHAY MANOHAR SAPRE, J.]

       31. Joynal Mullick then in his evidence said that he is an employee     A
of the respondent for the last 7/8 years and whatever the respondent
(his owner) tells him to do, he does it while sitting in the suit shop. He
stated that, in his presence, the respondent had constructed “Macha” in
the suit shop. He said that he joined the business under the name “New
India Tailor”.
                                                                               B
       32. Keeping in view the statements of the respondent and Joynal
Mullick, the question arises as to whether a case of sub-letting and parting
of possession of the suit shop in favour of Joynal Mullick, whether whole
or in part, is made out.
       33. Section 13(1)(a) of the Act deals with the ground of sub-           C
letting and provides that where the tenant or any person residing in the
premises let to the tenant without the previous consent in writing of the
landlord transfers, assigns or sublets in whole or in part the premises
held by him, then it is a ground for the tenant’s eviction from the tenanted
premises.
                                                                               D
       34. In our considered opinion, keeping in view the pleadings and
the nature of the evidence adduced by the parties, the ground of sub-
letting, as contemplated under Section 13(a) ibid, is made out. This we
say for the following reasons.
      35. In the first place, we find that the respondent (tenant), since      E
inception, was taking inconsistent stand on the question of sub-letting.
       36. To begin with, he denied having sub-let the suit shop to anyone
in his written statement. Then, contrary to what he alleged in the written
statement, he said in his examination-in-chief that Joynal Mullick was
his employee. Then, again contrary to this statement, he said, in next         F
breath, that Joynal Mullick is his partner in tailoring business.
       37. So far as Joynal Mullick is concerned, he admitted that he has
been sitting in the suit shop for the last 7/8 years but he has been sitting
in a capacity as an “employee” of the respondent.
       38. In our opinion, the contradictory stand of the respondent and       G
that too without any evidence clearly leads to an inference that the
respondent was unable to prove, in categorical terms, as to which capacity,
Joynal Mullick was sitting in the suit shop - whether as an “employee”
or a “business partner” or in any “other capacity”.
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280             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A           39. It seems that the respondent was not sure as to what stand he
      should take to meet the plea of sub-letting. He, therefore, went on
      changing his stand one after the other and could not prove either.
            40. In our view, since the respondent had admitted the presence
      of Joynal Mullick in the suit shop, the burden was on him to prove its
B     nature and the capacity in which he used to sit in the suit shop.
             41. In other words, if Joynal Mullick was the respondent’s
      employee then, in our view, he should have proved it by filling a declaration
      form, which he had submitted under the Shops and Establishment Act to
      the authorities. But it was not done. Rather he admitted that he did not
C     disclose the name of Joynal Mullick in the declaration form. That apart,
      the respondent could have proved this fact by filing payment voucher, or
      any other relevant evidence to show that Joynal Mullick was his employee
      and that he used to sit in the suit shop in that capacity only. It was,
      however, not done.

D             42. Second, if Joynal Mullick was a partner of the respondent in
      the tailoring business then the respondent could have proved this fact by
      filing a copy of the partnership deed. However, he again failed to produce
      the copy of partnership deed. In this way, he failed to prove even this
      fact.

E            43. Now so far as the appellants are concerned, they appear to
      have discharged their initial burden by pleading the necessary facts in
      Para 4 and then by proving it by evidence that firstly, they let out the suit
      shop to the respondent and secondly, the respondent has sub-let the suit
      shop to Joynal Mullick, who was in its exclusive possession without their
      consent.
F
            44. In a case of sub-letting, if the tenant is able to prove that he
      continues to retain the exclusive possession over the tenanted premises
      notwithstanding any third party’s induction in the tenanted premises, no
      case of sub-letting is made out against such tenant.
             45. In other words, the sin qua non for proving the case of the
G
      sub-letting is that the tenant has either whole or in part transferred or/
      and parted with the possession of the tenanted premises in favour of any
      third person without landlord’s consent.
           46. This Court in Bharat Sales Ltd. vs. Life Insurance
      Corporation of India (1998) 3 SCC 1, while dealing with the case of
H
       FLORA ELIAS NAHOUM v. IDRISH ALI LASKAR                             281
              [ABHAY MANOHAR SAPRE, J.]

sub-letting succinctly explained the concept of sub-letting and what are   A
its attributes.
      47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held
as under:
      “4. Sub-tenancy or sub-letting comes into existence when
      the tenant gives up possession of the tenanted                       B
      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        C
      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                D
      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        E
      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 sub-let had paid monetary consideration
      to the tenant. Payment of rent, undoubtedly, is an essential         F
      element of lease or sub-lease. It may be paid in cash or in
      kind or may have been paid or promised to be paid. It may
      have been paid in lump sum in advance covering the period
      for which the premises is let out or sub-let or it may have
      been paid or promised to be paid periodically. Since                 G
      payment of rent or monetary consideration may have been
      made secretly, the law does not require such payment to
      be proved by affirmative evidence and the court is
      permitted to draw its own inference upon the facts of the
      case proved at the trial, including the delivery of exclusive
      possession to infer that the premises were sub-let.”                 H
282                SUPREME COURT REPORTS                        [2018] 1 S.C.R.


A            48. In our considered opinion, the aforesaid principle of law fully
      applies to the case at hand against the respondent due to his contradicting
      stand and by admitting Joynal Mullick’s presence in the suit shop but not
      being able to properly prove the nature and the capacity in which he was
      sitting in the suit shop.
B            49. In view of the foregoing discussion, we have formed an opinion
      that the appellants were able to prove the case of sub-letting against the
      respondent.
             50. We cannot thus concur with the reasoning and the conclusion
      arrived at by the High Court and instead prefer to agree with the
C     conclusion of the Trial Court insofar as it relates to the ground of sub-
      letting. In view of this, it is not necessary to examine the other ground
      relating to making of unauthorized construction by the respondent in the
      suit shop.
           51. In the result, the appeal succeeds and is allowed. The impugned
D     judgment is set aside and that of the Trial Court is restored.
              52. The respondent is, however, granted three months’ time to
      vacate the suit shop, subject to the respondent filing in this Court a usual
      undertaking that he will deposit the entire arrears of rent up to the date
      as per the agreed rate within one month and will also deposit the mesne
E     profits for a period of three months up to the date of vacation in advance
      at the agreed rate and would vacate the suit shop on or before 30.04.2018.


      Nidhi Jain                                                    Appeal allowed.


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