Holding

The Supreme Court held that the tenant had sublet a portion of the premises without written consent, no waiver of the eviction right existed, and the eviction order was upheld.

Summary

The appellants, led by Vaisakhi Ram, were tenants of a shop in Delhi since 1956. They allowed three relatives (appellants Nos.2‑4) to conduct independent businesses in a portion of the shop without obtaining the landlord's written consent. The present landlord, Sanjeev Kumar Bhatiani, purchased the property and filed an eviction petition under Section 14(1)(b) of the Delhi Rent Control Act, 1958, alleging unauthorised subletting. The Rent Controller, the Rent Control Tribunal, and the Delhi High Court all held that subletting had been proved and that the landlord's right to evict was not waived despite prior knowledge of the arrangement. On appeal, the Supreme Court affirmed these findings, stating that the relatives were not family members within the meaning of the Act, the burden shifted to the tenant to disprove subletting, and no conscious relinquishment of the statutory right occurred. Consequently, the appeal was dismissed and the eviction order upheld.

Issues considered

The existence of unauthorised subletting under Section 14(1)(b) of the Delhi Rent Control Act, 1958.
Whether the landlord's right to evict was waived by the erstwhile landlord or the subsequent purchaser due to knowledge of the subletting.
The allocation of the burden of proof and the requirement of written consent for subletting.

Legislation cited

Delhi Rent Control Act, 1958s. 14(1)(b)

Subjects

sublettingevictionDelhi Rent Control Actwaiverburden of prooffamily memberstenancy

Judgment

(2008] 3 S.C.R. 377

,, I' VAISHAKHI RAM AND ORS. A
v.
SANJEEV KUMAR BHATIANI
(Civil Appeal No. 1559 Qf 2008)
FEBRUARY 25, 2008
B
(TARUN CHATTERJEE & DALVEER BHANDARI, JJ.)

y Rent Control and Eviction:
Delhi Rent Control Act, 1958; S.14(1)(b):
c
Subletting - Appellant No.1-tenant allegedly subletting
part of tenanted premises, a shop - Erstwhile owner ofproperty!
landlord selling the property in question to respondent -
Respondent filing eviction petition on ground of subletting -
Allowed by Rent Controller holding that appellant Nos.2 to 4
D
carrying on business in a portion of suit premises - Appeal
dismissed by Tribunal - Challenge to - Dismissed by High
• -I
Court- Correctness of- Held: Appellant Nos.2 to 4 inducted
by appellant No.1 in a portion of suit premises without
obtaining consent in writing either of the original landlord or
the present landlord - Sub-tenants were neither the family
E
member of appellant No. 1 nor were they residing with him for
a considerable period of time as a family member - Appellant
No. 1 had no control over the business of appellant Nos. 2 to 4
- Burden of proving subletting is on landlord - Since landlord
proved that sub-tenants were in exclusive possession of suit F
}
premises, onus shifted on tenant to prove that there was no
subletting - Appellant No. 1 failed to prove that there was no
subletting of portion of the shop in question to appellant Nos. 2
to 4 - There was no evidence on record to show relinquishment
by the landlords benefit/right of eviction conferred on them by G
the Statute - Hence, subletting by appellant No. 1 in favour of
appellant Nos. 2 to 4 proved - No reason found to interfere
with the judgment of the Courts below.
- 377 H
378 SUPREME COURT REPORTS (2008] 3 S. C.R.

A Appellant No.1 was inducted as a tenant by the '· "
erstwhile owners of the suit premises, a shop. The tenant
was conducting the business from the same along with
his brother. Later, another business was started in a
portion of the suit shop in some other name. The original
B owners sold the suit shop to one 'A'. However, the rent of
the suit shop was deposited by appellant no.1 in the court
in different proceedings. 'A' sold the suit shop to the
y
respondent by a registered sale deed. The present owner,
respondent, filed an eviction petition against appellant
C No.1 under Section 14 (1)(b) of the Delhi Rent Control Act
on the ground of subletting before the Rent Controller.
The Rent Controller allowed the eviction petition holding
that appellant No.1 had sublet a portion of the suit shop
in which the business was carried on by appellant Nos. 2
to 4; that the case of subletting was duly proved as from
0
the evidence on record, both oral and documentary, it was
clear that an independent business was run by appellant
Nos. 2 to 4; and that they were in exclusive possession
of a portion of the suit shop. Aggrieved, the appellants
filed an appeal before the Rent Control Tribunal, which
E was dismissed by the appellate Tribunal. The appellants
filed a writ petition before the High Court, which was
dismissed by the High Court. Hence the present appeal.
Appellants-tenant contended that even if subletting
F was done by the appellant no.1 in favour of appellant nos.
2 to 4, then also, the respondent was not entitled to an "'
order of eviction on the ground of subletting under
Section 14 (1) (b) of the Act since appellant nos.2 to 4 have
been carrying on business in the suit shop for a long time
with the knowledge of the respondent-landlord as also
G the erstwhile owner; that the ground of subletting for
eviction of the appellants must be held to have been
waived by the erstwhile owner/landlord and finally by the
respondent, the present landlord as he had, at the time of - "
his purchase, knowledge of the subletting; that appellant
H
VAISHAKHI RAM AND ORS. v. SANJEEV KUMAR 379
" , BHATIANI

nos.2 to 4, being the family members of appellant no.1 A
and carrying on business by some other name in a part
of the suit shop, the subletting as made out by the
respondent for eviction cannot be said to have been
proved; that the question of subletting of the suit shop to
appellant Nos~ 2 to 4 could not arise as appellant No.1 8
had the exclusive possession and legal control of the
r same; that the respondent, who is a subsequent
purchaser of the suit shop was not entitled to take
advantage of the ground of subletting when the erstwhile
landlord had not taken any steps to evict the appellants c
and therefore, had waived the right to evict them on the
ground of subletting.
Dismissing the appeal, the Court
HELD: 1.1 The concurrent findings of fact on the D
• .,. question of subletting can not be upset. (Para - 5) [385-A]
1.2 A plain reading of the provision u/s.14(1 )(b) of the
Delhi Rent Control Act would show that if a tenant has
sublet or assigned or otherwise parted with the
possession of the whole or any part of the premises E
without obtaining the consent in writing of the landlord,
he would be liable to be evicted from the said premises.

- ~
(Para - 6) [385-D, E]
1.3 Appellant Nos. 2 to 4 were inducted in a part of
the suit shop without obtaining the consent in writing, F
either of the original landlord of the suit shop or of the
present landlord, the respondent. (Para - 7) [386-A, BJ
2. Admittedly, appellant Nos. 2 to 4 are neither the ·
spouse, brothers, sisters, sons or daughters of the G
appellant No. 1. Although they are related to appellant
No.1, there is nothing on record to show that appellant
.;
Nos. 2 to 4 were residing with appellant No. 1 for a
considerable period of time as members of the family of
appellant No.1. Therefore, only because they were related H
380 SUPREME COURT REPORTS [2008] 3 S.C.R.
... ..
A to appellant No.1, in the absence of appellant Nos. 2 to 4
being residing with appellant No.1, it cannot be said in
the context of rent control legislation that they were
residing as family members of appellant no.1 and
therefore, the question of subletting would not arise at
B all. (Para·- 8) [386-G; 387-A, B]
Kailasbhai Shukaram Tiwari vs. Jostna Laxmidas Pujara v

& Anr. (2006) 1 SCC 524] - referred to.
3.1 In view of the admission made by appellant No.1
c to the extent that he had got nothing to do with the
business of the firm in question nor had any control and
supervision over the said business, the onus had shifted
to appellant No.1 to prove that there was no subletting
and that appellant No.1 had legal possession and control
0 over the suit shop or that appellant Nos. 2 to 4, being the
family members, were assisting him in the business of
the firm. Both the courts below, on consideration of the
entire evidence on record including the admission of
appellant No.1 in respect of the business carried on in a
E part of the suit shop in the name of the firm and in view of
the onus having been shifted to appellant No. 1, held that
It could not be proved by cogent evidence that there was
no subletting. The courts below were fully justified in
holding that subletting as alleged was proved since the
F appellant No.1 had failed to prove that appellant Nos. 2 to
...
4 were not conducting their business in the suit shop
Independently but in fact doing the business of appellant
No.1 or assisting him. (Para - 10) [387-C, D, E, F, G]
3.2 It Is well settled that the burden of proving
G subletting 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 subletting. Therefore, this Court
is in full agreement with the High Court as well as the
H courts below that since the appellant Nos. 2 to 4 had been
VAISHAKHI RAM AND ORS. v. SANJ~EV KUMAR 381
• t BHATIANI

in exclusive possession of the suit shop and the appellant A
No.1 could not prove that it was not a case of subletting,
the suit shop had been sublet by the appellant no. 1 in
favour of 'the appellant Nos. 2 to 4. Therefore, no
interference can be made with the findings arrived at by
the High Court as well as the courts below _on the question B
of subletting. (Para - 11) [387-G; 388-A, B]
Joginder Singh Sodhi vs. Amar Kaur(2005) 1 SCC 31 -
relied on.
3.3 An order of eviction can be passed under Section c
14(1)(b) of the Act only if the ingredients enumerated are
satisfied. In order to prove subletting, it must be shown
that appellant Nos. 2 to 4 were inducted without the
consent in writing of the landlord. In this case, admittedly,
no consent in writing, either of the erstwhile owner of the
r D
~
suit shop or of the respondent, who was the subsequent
purchaser of the same, was taken in writing. It is now well
settled that to constitute waiver of benefit conferred by
provisions of the Act, conscious relinquishment of such
benefit must be proved. (Para -12) [388-0, E, F]
E
3.4 The respondent had purchased the suit shop
from the erstwhile owner of the same. A perusal of the
sale deed evidencing the purchase of the suit shop by
,. the respondent from the erstwhile owner of the same
would show that appellant No. 1 was a tenant in respect F
of the suit shop and there was no mention that appellant
Nos. 2 to 4 were also in pc;>ssesslon of the suit shop, either
in its entirety or in a part of it. That being the position and
in the absence of any evidence on record to show that
there was any conscious relinquishment of the benefit
G
conferred by the provisions of the statute, no reason is
found to hold otherwise to the extent that the subletting
-'"'
• made in favour of appellant Nos. 2 to 4 by appellant No.1
was proved and the right to eviction was not waived,
either by the erstwhile landlord or by the respondent.
H
382 SUPREME COURT REPORTS [2008] 3 S.C.R.

~
'
A (Para - 12) [389-A, B, CJ
Duli Chand (Dead) by Lrs. vs. Jagminder Dass (1990) 1
SCC 169 and Pu/in Behari Lal vs. Mahadeb Dutta & Ors.
(1993) 1 sec 629 - relied on.
B United Bank of India vs. Cooks and Kelvey Properties
(P) Limited [(19$4) 5 SCC 9] - held inapplicable.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1559
of 2008.

c From the final Order dated 231112007 of the High Court of
Delhi at New Delhi in CM (M) No. 12612007.
Rajesh Aggarwal and Mridul Aggarwal for the Appellants.
Ranjit Kumar, Mohit Kumar and Navin Prakash for the
Respondent.
D
The Judgment of the Court was delivered by "' ~
TARUN CHATTERJEE, J. 1. Leave granted.
2. This appeal is directed against the final judgment and
E order dated 23rd of January, 2007 passed by the High Court of
Delhi in CM [M] No.126 of 2007 whereby the eviction of the
appellants frqm a shop bearing No. 111-119, Gopi Nath Bazar,
Delhi Cantonment, Delhi (in short "the suit shop") was affirmed
on the ground of subletting under Section 14 [1] [b] of the Delhi
F Rent Control Act, 1958 (for short "the Act"}.
3. The appellant no.1 was inducted as a tenant in the year
1956 by the erstwhile owners of the suit shop, viz., Som Nath
and Mohinder Nath. He was all along in continuous possession
of the suit shop and was conducting the business from the same
G along with his brother Chunni Lal of Chunni Lal and Sons under
the name and style of Mis Mitra Book Depot. The rent receipts
issued by the landlord were in the name of Mis Mitra Book Depot
as tenant at the rate of Rs.65/- per month. Subsequently, a '"' •
business was started in a portion of the suit shop in the nama of
H Mis. Mitra Stores and Mis. Lucky Confectioners. In the year
VAISHAKHI RAM AND ORS. v. SANJEEV KUMAR 383
• I BHATIANI [TARUN CHATTERJEE, J.]

2000, Som Nath and Mohinder Nath sold the suit shop to one A
Anil Anand. However, the rent of the suit shop was continued to
be paid to Som Nath and Mohinder Nath by the appellant no.1
upto the month of September 2000. Thereafter, the rent was
deposited by the appellant no.1 in the court in different
proceedings. On 20th of October, 2000, Anil Anand sold the suit 8
shop to the respondent by a registered deed of sale. However,
the appellant no.1 went on depositing the rent in the name of
the original landlord. Finally, on or about 1st of February, 2002,
the respondent filed an eviction petition under Section 14 [1 ][b]
of the Act on the ground of subletting before the Rent Controller, c
Delhi. According to the respondent, although the tenancy was
given to the appellant no.1 in the name of M/s Mitra Book Depot
but subsequently, the appellant no.1 had sublet the suit shop to
the appellant Nos. 2 to 4 who were carrying on the business i11 a
portion of the suit shop in the name of Mis Mitra Stores and M/
D
• t s Lucky Confectioners. Accordingly, the respondent sought for
eviction of the appellants on the ground of subletting. A written
statement was filed by the appellants denying the material
allegations made in the eviction petition filed before the Rent
Controller, Delhi by the respondent. After the issues were framed
and the evidence was adduced, the Rent Controller held on facts E
that the appellant No.1 had sublet a portion of the suit shop in
which the business in the name of M/s Mitra Stores and M/s
Lucky Confectioners was carried on by the appellant Nos. 2 to
)- 4 and, therefore, the appellants were liable to be evicted under
Section 14 [1 ][b] of the Act. The Rent Controller passed the order F
of eviction by holding, inter alia, that the case of subletting was
duly proved as from the evidence on record, both oral and
documentary, it was clear that an independent business was
run by the appellant Nos. 2 to 4 and that they were in exclusive
possession of a portion of the suit shop. Feeling aggrieved, the G
appellants filed an appeal before the Rent Control Tribunal,
,, which also dismissed the same by affirming the findings of the
' Rent Controller. Against this order of the Rent Control Tribunal,
the appellants filed a writ petition before the High Court of Delhi
and the High Court by the impugned judgment also dismissed H
384 SUPREME COURT REPORTS [2008) 3 S.C.R.

~
'
A the same. Aggrieved by the aforesaid judgment and order of
the High Court, the instant special leave petition has been filed,
in respect of which leave has already been granted.

4. On behalf of the appellants, at the first instance, Mr.
Rajesh Aggarwal contended that even if subletting was done by
B the appellant no. 1 in favour of the appellant nos. 2 to 4, then
also, the respondent was not entitled to an order of eviction on
the ground of subletting under Section 14 [1] [b] of the Act for •
the simple reason that since the appellant nos.2 to 4 have been
carrying on their business in the suit shop for a long time with
c the knowledge of the respondent as also the erstwhile owner,
the ground of subletting for eviction of the appellants must be
held to have been waived by the erstwhile landlord of the
appellant no. 1 and finally by the respondent as he had. at the
time of his purchase, knowledge of the subletting. Therefore,
D Mr.Aggarwal contended that even if subletting was done by the
appellant No. 1 in favour of the appellant nos 2 to 4, ~ither in + .
whole or in part, it must be held that the right to evict the appellants
by the purchaser respondent on the ground of subletting was
waived. It was next contended by Mr. Aggarwal that the appellant
E nos.2 to 4, being the family members of the appellant no.1 and
carrying on business in the name of M/s. Mitra Stores and M/s.
Lucky Confectioners in a part of the suit shop, the subletting as
made out by the respondent for eviction cannot be said to have
been proved. In any view of the matter, the question of subletting
~
F of the suit shop to the appellant Nos. 2 to 4 could not arise as
the appellant No.1 had the exclusive possession and legal
control of the same. It was lastly contended by Mr. Aggarwal
that in any view of the matter, the respondent, who is a
subsequent purchaser of the suit shop was not entitled to take
advantage of the ground of subletting when the erstwhile landlord
G
had not taken any steps to evict the appellants and therefore,
had waived the right to evict the appellants on the ground of
subletting. These submissions of Mr. Aggarwal were hotly '<

contested by Mr. Ranjit Kumar, the learned senior counsel '
appearing on behalf of the respondent.
H
VAISHAKHI RAM AND ORS. v. SANJEEV KUMAR 385
BHATIANI [TARUN CHATTERJEE, J.]
• '
5. Having heard the learned counsel for the parties and A
after going through the impugned judgment of the High Court
as well as of the courts below and the other materials on record,
including the oral evidence, we are of the view that the concurrent
findings of fact on the question of subletting can not be upset for
the reasons herein after. Let us first deal with the question whether B
on account of the continuous exclusive possession of the
appellant Nos. 2 to 4 in a part of the suit shop from the time of
the original erstwhile landlord, the purchaser respondent was
entitled to evict the appellants from the suit shop on the ground
of subletting as the said right was waived by the erstwhile c
landlord or even by the subsequent purchaser respondent.
Before deciding the question of waiver, we must look into the
provision made in Section 14(1)(b) of the Act, which reads as
under:-

"that the tenant has, on or after the gth day of June, 1952, D
. ., sublet, assigned or otherwise parted with the possession
of the whole or any part of the premises without obtaining
the consent in writing of the landlord."

6. A plain reading of this provision would show that if a
tenant has sublet or assigned or otherwise parted with the E
possession of the whole or any part of the premises without
obtaining the consent in writing of the landlord, he would be liable
to be evicted from the said premises. That is to say, the following
ingredients must be satisfied before an order of eviction can
* )..
F
be passed on the ground of subletting: -
(1) The tenant has sublet or assigned or parted with the
,
possession of the whole or any part of the premises;
...
(2) Such subletting or assigning or parting with the
possession has been done without obtaining the G
consent in writing of the landlord.
y 7. So far as these conditions are concerned, we find that
' in the facts of this case, the appellant no.1 has parted with the
exclusive possession of a part of the suit shop in favour of the
H
386 SUPREME COURT REPORTS [2008] 3 S.C.R.

' •
A appellant Nos. 2 to 4 without obtaining the consent in writing,
either of the erstwhile landlord or the purchaser respondent. Now
the question is whether the respondent or the erstwhile owner
of the suit shop had waived the right of evicting the tenant on the
ground of subletting or not. As noted herein earlier, the appellant
B Nos. 2 to 4 were inducted in a part of the suit shop without
obtaining the consent in writing, either of the original landlord of
the suit shop or of the present respondent. Before deliberating
further on this question, let us, at this stage, consider a short
submission of the learned counsel for the appellants. According
c to Mr. Aggarwal, the learned counsel appearing on behalf of the
appellants, since the appellant Nos. 2 to 4 are the family
members of the appellant No.1, it cannot be said that the
appellant Nos. 2 to 4 were inducted as sub-tenants under the
appellant No.1. In Kai/asbhai Shukaram Tiwari Vs. Jostna
Laxmidas Pujara & Anr. [(2006) 1 SCC 524], while dealing
D
with a case of subletting under the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (57of1947), this Court
. •
observed that the question as to whether a person is a member
of the family of the tenant must be decided on the facts and
circumstances of the case. It observed in paragraph 14 as
E follows:

"Apart from the parents, spouse, brothers, sisters, sons
and daughters, if any other relative claims to be a
member of the tenant's family, some more evidence is
necessary to prove that they have always resided together
...
F
as members of one family over a period of time. The
mere fact that a relative has chosen to reside with the
tenant for the sake of convenience, will not make him a
member of the family of the tenant in the context of rent
control legislation."
G
8. Admittedly, in this case, the appellant Nos. 2 to 4 are
neither the spouse, brothers, sisters, sons or daughters of the
appellant No. 1. Although they are related to the appellant No.1, "
there is nothing on record to show that the appellant Nos. 2 to 4
'
H were residing with the appellant No. 1 for a considerable period
VAISHAKHI RAM AND ORS. v. SANJEEV KUMAR 387
BHATIANI [TARUN CHATTERJEE, J.]
' ;

of time as members of the family of the appellant No.1. A
Therefore, only because they were related to the appellant No.1,
in the absence of the appellant Nos. 2 to 4 being residing with
the appellant No.1, it cannot be said in the context of rent control
legislation that they were residing as family members of the
appellant no.1 and therefore, the question of subletting would B
not arise at all.
y
9. The three courts concurrently held. on facts that the
appellant No.1 had no exclusive possession in a part of the suit
shop where the appellant Nos. 2 to 4 had been carrying on their
separate independent business . c
. 10. In view of the admission made by the appellant No.1
to the extent that he had got nothing to do with the firm Mis.
Mitra Stores and M/s. Lucky Confectioners nor had any control
and supervision over the said business, the onus had shifted to
D
. _,. the appellant No.1 to prove that there was no subletting and that
the appellant No.1 had legal possession and control over the
suit shop or that the appellant Nos. 2 to 4, being the family
members, were assisting him in the business of Mis. Mitra Stores
and M/s. Lucky Confectioners. Both the courts below, namely,
the Rent Controller and the appellate authority, on consideration E
of the entire evidence on record, including the admission of the
appellant No.1 in respect of the business carried on in a part of
the suit shop in the name of M/s. Mitra Stores and in the name
)>. of M/s. Lucky Confectioners and in view of the onus having been
:. F
shifted to the appellant No. 1, held that it could not be proved by
cogent evidence that there was no subletting. The courts below
were fully justified in holding that subletting as alleged was
proved since the appellant No.1 had failed to prove that the
appellant Nos. 2 to 4 were not conducting their business in the
suit shop independently but in fact doing the business of the G
appellant No.1 or assisting him.
., 11. It is well settled that the burden of proving subletting is
" on the landlord but ifthe landlord proves that the sub-tenant is in
exclusive possession of the suit premises, then the onus is
H
388 SUPREME COURT REPORTS [2008] 3 S.C.R.

. ,
A shifted to the tenant to prove that it was not a case of subletting.
Reliance can be placed on the decision of this Court in the case
of Joginder Singh Sodhi vs. Amar Kaur [(2005) 1 SCC 3n
Therefore, we are in full agreement with the High Court as well
as the courts below that since the appellant Nos. 2 to 4 had
B been in exclusive possession of the suit shop and the appellant
No.1 could not prove that it was not a case of subletting, the suit
shop had been sublet by the appellant no. 1 in favour of the
appellant Nos. 2 to 4. Therefore, no interference can be made
•
with the findings arrived at by the High Court as well as the courts
c below on the question of subletting.
12. Let us now revert to the question whether long exclusive
possession of the appellant Nos. 2 to 4 in the suit shop would
invite the court to hold that the respondent or the erstwhile owner
of the suit shop had waived the right to evict the tenant on the
D ground of subletting. As noted herein earlier, an order of eviction
can be passed under Section 14(1 )(b) of the Act only if the ~
•
ingredients enumerated herein earlier are satisfied. In order to
prove subletting, it must be shown that the appellant Nos. 2 to 4
were inducted without the consent in writing of the landlord. In
E this case, admittedly, no consent in writing, either of the erstwhile
owner of the suit shop or of the respondent, who was the
subsequent purchaser of the same, was taken in writing. It is
now well settled that to constitute waiver of benefit conferred by
provisions of the Act, conscious relinquishment of such benefit
F must be proved. In the case of Duli Chand (Dead) by Lrs. Vs.
Jagminder Dass [(1990) 1 SCC 169]. this Court while dealing
with a case of subletting and waiver on the part of the landlord,
emphasized that the consent in writing of the landlord for
subletting or parting with possession was essential under
Section 14(1 )(b) of the Act. The view expressed in the aforesaid
G
decision was also the view of this Court in the case of Palin
Behari Lal vs. Mahadeb Dutta & Ors. [(1993) 1 SCC 629] in
which this Court reiterated the principle that in the absence of 'o{

conscious relinquishment of right to eviction, the question of '
waiver on the ground of subletting for eviction by the landlord
H
VAISHAKHI RAM AND ORS. v. SANJEEV KUMAR 389

- -I
BHATIANI [TARUN CHATTERJEE, J.]

did not arise at all. It is not in dispute in the present case that the
respondent had purchased the suit shop from the erstwhile owner
A

of the same. The sale deed dated 20 1h of October, 2000
evidencing the purchase of the suit shop by the respondent from
the erstwhile owner of the same was exhibited. A perusal of the
sale deed would show that the appellant No.1 was a tenant in B
respect of the suit shop and there was no mention that the
appellant Nos. 2 to 4 were also in possession of the suit shop,
either in its entirety or in a part of it. That being the position and
in the absence of any evidence on record to show that there
was any conscious relinquishment of the benefit conferred by c
the provisions of the statute, we do not find any reason to hold
otherwise to the extent that the subletting made in favour of the
appellant Nos. 2 to 4 by the appellant No.1 was proved and the
right to eviction was not waived, either by the erstwhile landlord
or by the respondent.
D
" ~ 13. Mr. Aggarwal, the learned counsel appearing on behalf
of the appellants had strongly relied on a decision of this Court
in the case of United Bank of India vs. Cooks and Kelvey
Properties (P) Limited [(1994) 5 SCC 9] and submitted that
since the appellant No.1 was in exclusive possession and legal E
control of the suit shop, the case of subletting could not be
proved. In our view, that decision of this Court has no manner of
application in the facts and circumstances of the present case.
In that case, although the tenant appellant bank had inducted
~ the trade union in the tenanted premises for carrying on the trade F
union activities, the bank had not received any monetary
consideration from the trade union which was permitted to use
and enjoy the same for it~ trade union activities. The bank had
retained its power to call upon the trade union to vacate the
premises at any time and the Union had also given an G
undertaking to vacate the same when required. In that decision,
the bank was maintaining the premises at its own expense and
,. also paying the electricity charges consumed by the trade union
• for using the demised premises. Basing on the aforesaid facts,
it was held in that case that the bank had retained its control
H
390 SUPREME COURT REPORTS [2008] 3 S.C.R.

A over the trade union whose membership was only confined to
the employees of the bank and, therefore, the court held that the
inference that could only be drawn was that the appellant had
•
-
~

retained the legal control and possession of the suit premises ,...
in that case. As noted herein earlier, this is not the situation in
8 the present case. The findings of the three courts were that the
appellant no.1 had no legal control over the suit shop and also
that the appellant nos.2 to 4 were in exclusive possession of
the suit shop or at least, in a portion of the same and were
carrying on a different independent business in the suit shop.
c nos.2 being
Such the position and in view of the fact that the appellant
to 4 were conducting their independent business in the
suit shop and had exclusive possession of the same and that
the appellant No. 1 had no leg31 control or possession over tha
suit shop, the aforesaid decision of this Court, as relied on by
Mr. Aggarwal, could not be taken to be of any help to the
D
appellants. Accordingly, these submissions of the learned
counsel for the appellants have no legs to stand upon and thus .,. •
rejected.
14. F~r the reasons aforesaid, there is no merit in this
E appeal and the appeal is, therefore, dismissed. However,
considering the facts and circumstances of the case, the
appellants are given time to vacate the suit shop by 30th of June,
2008 subject to filing of usual undertaking before this Court within
a period of four weeks from this date. There will be no order as
F to costs. -.
S.K.S. Appeal dismissed.