High Court Of ChhattisgarhSA/465/2015dismissed

Smt. Indira Kher And ORS v. Smt. Nirmala Devi Nathani And ORS

2019-08-13Hon'Ble Shri Justice Sanjay K. Agrawal35 pages

AFR HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.465 of 2015 Judgment reserved on: 2-8-2019 Judgment delivered on: 13-8-2019

1. Smt. Indira Kher, Aged about 81 years, Wd/o Late Chamanlal Kher {Defendant No.1(A)}

2. Amit Kher, Aged about 49 years, S/o Late Chamanlal Kher {Defendant No.1(B)}

3. Smt. Madhu, Aged about 53 years, D/o Late Chamanlal Kher {Defendant No.1(C)} (Address of appellant numbers 1, 2 and 3 is not mentioned in the judgment of the lower appellate court, but the same is Blue Spot Building, Shastri Chowk, Raipur (C.G.), as per the trial court)

4. M/s Fantasy Fast Food and Ice-cream Dealers, Proprietor Anita Singhania, Shastri Chowk, G.E. Road, Raipur (C.G.) (Defendant No.4)

5. M/s Fantasy Frozen Foods, Manufacturers of Ice-cream and Frozen Foods, Shastri Chowk, G.E. Road, Raipur (C.G.) (Defendant No.5) (Proprietor of this firm is not mentioned in judgment of the lower appellate court, but the same is Arun Singhania) ---- Appellants

Versus

1. Smt. Nirmala Devi Nathani, Aged about 73 years, Wd/o Late Hanuman Das Ji Nathani (Plaintiff No.1)

2. Raj Kishore Nathani, Aged about 58 years, S/o Late Hanuman Das Ji Nathani (Plaintiff No.2)

3. Vinay Nathani, Aged about 52 years, S/o Late Hanuman Das Ji Nathani (Plaintiff No.3) (Address and age of respondent numbers 1, 2 and 3 is not mentioned in the judgment of the lower appellate court, but the address is Sadar Bazar, Raipur (C.G.) and the respective ages have been added in the cause tittle, as per the trial court)

4. M/s. Sandeep Enterprises, Shastri Chowk, G.E. Road, Raipur (C.G.) (Defendant No.2)

5. M/s Ajay Enterprises, Shastri Chowk, G.E. Road Raipur (C.G.) (Defendant No.3) ---- Respondents For Appellants:

Mr. Sumesh Bajaj, Advocate.

For Respondents No.1 to 3: - Mr. Ravish Chand Agrawal, Senior Advocate with Mr. Ashok Trivedi, Mr. Prafull N. Bharat, Mr. Ashish Surana and Mr. K.S. Jha, Advocates. For Respondent No.4: None present though served. For Respondent No.5: Mr. Vimlesh Bajpai, Advocate. AND Second Appeal No.491 of 2015 M/s Ajay Enterprises, Partnership Firm, Shashtri Chowk, G.E. Road, Raipur, through the Partner Ajay Jain, S/o Shri Anupchand Jain, Aged about 50 years, Shashtri Chowk, G.E. Road, Raipur (C.G.) (Defendant No.3) ---- Appellant

Versus

1. Smt. Nirmala Devi Nathani, Aged about 73 years, Wd/o Late Hanuman Das Ji Nathani (Plaintiff No.1)

2. Raj Kishore Nathani, Aged about 58 years, S/o Late Hanuman Das Ji Nathani (Plaintiff No.2)

3. Vinay Nathani, Aged about 52 years, S/o Late Hanuman Das Ji Nathani (Plaintiff No.3) Address of respondent Nos.1 to 3 is not mentioned in the judgment of the lower Appellate Court, but the address is Sadar Bazar, Raipur (C.G.)

4. A. Indira Kher, W/o Late Shri Chamanlal Kher (wrongly typed as D/o in judgment) (Defendant No.1A) B. Amit Kher, S/o Late Shri Chamanlal Kher (Defendant No.1B)

C. Smt. Madhu, D/o Late Shri Chamanlal Kher (Defendant No.1C) Respondent Nos.4A to 4C are R/o Blue Spot Building, Shashtri Chowk, Raipur (C.G.)

5. M/s Sandeep Enterprises, Shashtri Chowk, G.E. Road, Raipur (C.G.) (Defendant No.2)

6. M/s Fantasy Fast Food and Ice-cream Dealers, Shashtri Chowk, G.E. Road, Raipur (C.G.) (Defendant No.4)

7. M/s Fantasy Frozen Foods, Ice-cream and Frozen Food Products, Shashtri Chowk, G.E. Road, Raipur (C.G.) (Defendant No.5) ---- Respondents For Appellant:

Mr. Vimlesh Bajpai, Advocate.

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Judgment

1. Second Appeal No.465/2015 preferred by the LRs of defendant No.1 (defendants No.1A to 1C) and defendants No.4 & 5 and Second Appeal No.491/2015 preferred by defendant No.3 were admitted for hearing by formulating the following common substantial questions of law: - "1. Whether the finding recorded by the courts below that the subletting was not with the consent of landlord is perverse?

2. Whether the courts below have recorded perverse finding in respect of document Ex-D/1 by not properly constructing the same?

3. Whether the finding that the landlord does not have reasonable, suitable, alternative accommodation is perverse and therefore, the ground under Section 12 (1)

(f) of the Chhattisgarh Accommodation Control Act, 1961 is not made out?"

[For sake of convenience, parties hereinafter will be referred as per their status shown in the plaint before the trial Court.]

2. Shri Hanumandas Nathani - original plaintiff (owner & landlord) instituted Civil Suit No.86A/2007 on 4-5-1990 (he died during the pendency of suit and his legal representatives / present plaintiffs were substituted by order dated 29-1-1997) for eviction and damages against defendant No.1 Chamanlal Kher (who also died during the pendency of suit and his LRs were substituted by order dated 21-2-2000), and defendants No.

defendant No.1 executed rent notes in favour of the original plaintiff incorporating and acknowledging the terms of contract of tenancy for the ground floor in the year 1969 and for the first floor on 15-71967. Tenancy of the deceased defendant No.1 in respect of the suit accommodation was monthly, according to English calendar month commencing from the first day of same calendar month and expires with the last day of same calendar month and monthly rent was ₹ 2,317-. It was further pleaded that defendant No.1 - the original tenant, while carrying on the business, has changed the suit accommodation making alterations / additions showing the business and without prior consent in writing has unlawfully sublet the part of suit accommodation to defendants No.

2 to 5, whereas the agreement between the original plaintiff - landlord and the original defendant No.1 - tenant specifically bars subletting. The original defendant No.1 has delivered possession of portion shown with letter 'C' to defendant No.2, portion shown with letters 'D' & 'E' to defendant No.3, portion shown with letter 'F' to defendant No.4 and it was also pleaded that the original defendant No.1 was planning to deliver possession of portion shown with letters 'G' & 'H' to defendant No.5. It was also pleaded that the suit accommodation is bona fidely required for the plaintiffs for continuing their business managed by Rajkishore Nathani and Vijay Kumar Nathani and the plaintiffs are not having other reasonably suitable non-residential vacant accommodation of their own in the township of Raipur. Plaintiffs No.

Hindustan Lever products, but carrying on their business in rented premises and they have taken godowns on rent. Therefore, the plaintiffs are entitled for decree of eviction against defendant No.1 (tenant) and defendants No.4 & 5 (co-tenants) on the grounds mentioned herein-above - Sections 12(1)(b), 12(1)(c), 12(1)(f) and 12(1)(m) of the Act of 1961.

3. After the death of original plaintiff Hanumandas Nathani, the plaint was amended by newly substituted plaintiffs on 29-1-1987 stating inter alia that they have inherited the suit accommodation as legal heirs. It was further pleaded that the plaintiffs were / are carrying on the business in partnership in the name and style of (i) M/s. S.K. Commercial Company, area about 1,000 sq.ft. at Medical Complex; (ii) Shri Krishna Distributors, area about 1,000 sq.ft. at Medical Complex; and (iii) Shri Krishna Commercial Company, behind the suit accommodation area about 2,000 sq.ft.. Other members of the plaintiffs' family are partners in these business.

It was also pleaded that apart from the above business, the plaintiffs are carrying on the business of watches in a rented accommodation situated at Farishta Complex in partnership with others and paying rent. It was further pleaded that the accommodation situated behind the suit accommodation where at present the plaintiffs are carrying on the business of products of Hindustan Lever in a old structure having constructed area of 2,000 sq.ft. is in dilapidated condition, without amenities, which is unsafe. It is the case of the plaintiffs that the suit accommodation is a pukka double storied construction having total area of about 7,000 sq.ft.

situated on the main road (G.E. Road). It was also pleaded that the plaintiffs and their family members are carrying other business in Medical Complex and Farishta Complex paying monthly rent of ₹ 2,000/- in Medical Complex and ₹ 1,600/- in Farishta Complex. Plaintiffs No.2 & 3 supervise and are managing all business. They are finding it difficult to manage all business from different places. They can easily and very well manage all their business referred in the plaint, if all the business are shifted at once place in the suit accommodation. The suit accommodation is large enough where the plaintiffs can shift all their business. By doing this, the plaintiffs will effectively and properly run and manage all their business and save money. This will boost their business also. It was finally pleaded that the plaintiffs are receiving monthly rent of ₹ 2317-50 and paying monthly rent much more than this amount.

4. Defendant No.1 filed his written statement on 30-4-1991 controverting and denying the plaint averments stating inter alia that the suit accommodation was let out by Shri Mohanlal Nathani - father of original plaintiff Hanumandas Nathani and the action of defendant No.1 in sub-letting out the suit accommodation to defendants No.2 to 5 / sub-tenants has been ratified, as the plaintiff has accepted the rent after sub-letting and thereafter continuously accepting the part of rent. It was further pleaded that the partition of hall in small shops is with the concurrence of the plaintiff. It was further pleaded that the discretion to change business, which defendant No.1 was carrying, lies with defendant No.1 till it is not creating nuisance and the suit accommodation is not bona fidely

required by the plaintiff, as the plaintiff was in occupation of other reasonably suitable accommodation at Sadar Bazaar, Raipur, which is lying vacant. The written statement was also amended inserting additional statements after amendment in the plaint. As such, the plaintiffs are not entitled for decree of eviction on any of the grounds as claimed by them and the suit as framed and filed deserves to be dismissed.

5. Defendants No.2 and 5 were proceeded ex parte and they did not file any written statement.

6. Defendant No.3 filed its written statement denying the plaint allegations stating inter alia that sub-letting by defendant No.1 was with the oral consent of the plaintiff, whereas defendant No.4 has filed written statement stating that sub-letting was with the written consent of the plaintiff.

7. The trial Court framed as many as seven issues on the pleadings of the parties and after appreciating oral and documentary evidence on record, by its judgment & decree dated 15-10-2008 held that defendant No.1 is tenant of the plaintiff; he altered the suit accommodation and changed the nature of business and without consent of the landlord, unlawfully sublet the suit property to defendants No.2 to 5 and the plaintiff requires the suit accommodation for his bona fide need, as he has no reasonably alternative suit accommodation of his own in the township of Raipur and thereby decreed the suit on the grounds enumerated under Sections 12(1)(b), 12(1)(c), (12)(1)(f) & 12 (1)(m) of the Act of 1961 and granted mesne profit of ₹ 20,000/- per month.

8. Feeling dissatisfied with the judgment & decree of the trial Court, defendants No.1, 4 and 5 preferred Civil Appeal No.38A/2012, whereas Civil Appeal No.36-A/2012 was preferred by defendant No.3. The first appellate Court after hearing the parties, partly granted the appeals and negatived the finding of eviction based on the grounds enumerated under Sections 12(1)(c) and 12(1)(m) of the Act of 1961, but maintained the decree for eviction in favour of the plaintiff based on the grounds enumerated under Sections 12(1) (b) and 12 (1)(f) of the Act of 1961. It was further recorded that Exs.D-1 to D-5 assuming to be written by Hanumandas Nathani - original plaintiff, do not benefit the tenants / defendants. It was also held that there is no compliance of Sections 14 and 15 of the Act of 1961, as defendant No.1 has failed to prove previous permission in writing to sublet the suit accommodation to defendants No.2 to 5.

9. Now, questioning the judgment & decree passed by the first appellate Cort only affirming the decree of the trial Court based on Sections 12(1)(b) and 12(1)(f) of the Act of 1961, these two second appeals have been preferred in which three common substantial questions of law have been framed which have been set-out in the opening paragraph of this judgment.

10. Mr. Sumesh Bajaj, learned counsel appearing for the appellants in S.A.No.465/2015 / LRs of defendant No.1 (defendants No.1A to 1C) and defendants No.4 & 5, would vehemently submit that the decree granted by the trial Court as affirmed by the first appellate Court under Section 12(1)(b) of the Act of 1961 is wholly perverse and contrary to the record. Mr. Bajaj has taken me extensively

through the plaint averments, various paragraphs of the written statements as well as the statements of the defendants and specifically referred to the documents Exs.D-1 to 6 to impress that these are various communications between the parties including letters for rent. According to him, these documents would show that it is due compliance of the mandate of previous written consent and subsequent notice of induction of sub-tenant under Section 14 of the Act of 1961. It was submitted that since vide Exs.D-1 to D-5, rent was accepted by the plaintiff's father, therefore, the provisions of Sections 14 and 15 of the Act of 1961 stood complied with and therefore the first appellate Court is absolutely unjustified in granting decree in favour of the plaintiff.

He relied upon the decisions of the Supreme Court in the matters of Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and another1, M/s. Girdhari Lal & Sons v. Balbir Nath Mathur and others2 and Vinod Kumar Agrawal v. Chandrakant Pandey and another3. By referring to various paragraphs of the statements of the plaintiffs and the defendants, Mr.

Bajaj would finally contend that the finding recorded by the first appellate Court that the plaintiffs have no other reasonably suitable alternative accommodation in the township of Raipur for their need is not only perverse, but also contrary to record, as there is sufficient material available on record to hold that they have alternative suitable accommodation in their possession for their alleged need, as such, the decree under Section 12(1)(f) of the Act of 1961 based on AIR 1949 Federal Court 124 AIR 1986 SC 1499 2007(2) M.P.L.J.

perverse ground, deserves to be set aside.

11. Mr. Vimlesh Bajpai, learned counsel appearing for the appellant in S.A.No.491/2015 / defendant No.3, would principally adopt the submissions made by Mr. Bajaj, learned counsel, and additionally submit that the judgments & decrees granted by the two Courts below on the grounds enumerated under Sections 12(1)(b) and 12(1)(f) of the Act of 1961 are based on wholly untenable grounds and against the material available on record and therefore they are liable to be set aside by answering the substantial questions of law in favour of the defendants and against the plaintiffs.

12. Mr. Ravish Chand Agrawal, learned Senior Advocate appearing on behalf of the legal representatives of the original plaintiff / respondents No.1 to 3 herein, would submit as under: - 1.

The provision contained in Section 14 of the Act of 1961 making restrictions on sub-letting by the tenant by providing that no tenant shall, without the previous consent in writing of the landlord, sub-let the whole or any part of the accommodation held by him as a tenant, is mandatory in nature.

Notice under Section 15 of the Act of 1961 i.e. notice of creation and termination of sub-tenancy is a must, where, after the commencement of the Act of 1961, any accommodation is sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the accommodation is sublet may, in the prescribed manner, give notice to the landlord

of the creation of the sub-tenancy within one month of the date of sub-letting and notify the termination of such subtenancy within one month of such termination. Notice under Section 15 of the Act of 1961 has been prescribed by Rule 14 of the Chhattisgarh Accommodation Control Rules, 1966 in which notice has to be served in prescribed proforma and the manner of serving notice either in person or by registered post has also been indicated in the Rules.

In the instant case, even it is not the case of defendant No.1 that previous consent in writing of the landlord was obtained before sub-letting the suit accommodation to defendants No.2 to 5 and the evidence brought on record is only with regard to the alleged oral consent and Exs.D-1 to D5 written by the plaintiff's father are inconsequential in nature and even that material cannot be construed as a previous consent in writing within the meaning of Section 14(1) of the Act of 1961. He relied upon the decision of the Supreme Court in the matter of Waman Shriniwas Kini v. Ratilal Bhagwandas and Co 4 to buttress his submission that once Section 14(1) of the Act of 1961 prohibits sub-letting and makes it unlawful for a tenant to assign or to transfer his interest in the premises let to him, that will prevail over the provisions contained in Section 108(j) of the Transfer of Property Act, 1882.

Vehemently supporting the decree granted under Section 12(1)(f) of the Act of 1961, Mr. Agrawal, learned Senior AIR 1959 SC 689

Counsel, would submit that the plaintiffs have no alternative equivalent suitable accommodation with them and there is no evidence adduced on behalf of the defendants regarding availability of alternative suitable accommodation of the plaintiffs. The plaintiffs are presently running their business in rented premises and behind the suit premises, the plaintiffs are running business in the name of one Hindustan Lever Distributor owned by Mohanlal Nathani HUF which is also on rent and one Watch Shop is also being run at Farishta Complex on rent. The suit premises spread in 7,000 sq.ft. is a double storied building located in Main Road with all modern amenities. It is large enough suitable for all business on one premises.

The plaintiffs are receiving monthly rent of ₹ 2,317/-, whereas paying ₹ 8,000/- to ₹ 10,000/- per month as rent, as such it is the choice of the landlord where they wish to carry-on their business and it is for them to decide, the tenants / defendants cannot dictate. He would further submit that the question of bona fide need does not give rise to substantial question of law and as such, the finding recorded by the two Courts below that the plaintiffs have no other reasonably alternative suitable accommodation at Raipur, is a finding of fact based on evidence available on record which is neither perverse nor contrary to record. He would rely upon a Full Bench decision of the M.P. High Court in the matter of Damodar Sharma and another v.

Gupta v. Dr. Mahesh Chand Gupta6. As such, the second appeals deserve to be dismissed by answering the substantial questions of law in favour of the plaintiffs and against the defendants.

13. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

14. The question for consideration is, whether the first appellate Court is justified in affirming the decree granted by the trial Court under Section 12(1)(b) of the Act of 1961 for which substantial questions of law No.1 and 2 have been framed and whether the finding recorded by the two Courts below that the two plaintiffs do not have reasonably suitable alternative accommodation for granting decree under Section 12(1)(f) of the Act of 1961, is perverse or not? Answer to substantial questions of law No.1 and 2: -

15. These two questions of law have arisen from the decree granted to the plaintiffs based on the ground enumerated under Section 12(1) (b) of the Act of 1961, which provides as under: - "12. Restriction on eviction of tenants.-(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :

(b) that the tenant has, whether or before the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise;"

(1999) 6 SCC 222

16. Thus, under Section 12(1)(b) of the Act of 1961, landlord is entitled to get from a tenant the suit accommodation if the tenant has unlawfully sub-let, assigned or otherwise in any other manner parted with the possession of the whole or any part of the accommodation for consideration or otherwise. The words used in the clause are "has sub-let". It contemplates a completed event connected in some way with the present time. If the tenant has sub-let the premises without the previous consent of the landlord either before or after the coming into force of the Act, he is not protected from eviction under Section 12(1)(b), and it matters not that he had the right to sub-let the premises under Section 108(j) of the Transfer of Property Act, 1882. (See Gappulal v. Shriji Dwarkadhishji7.)

17. The word "unlawful" employed in Section 12(1)(b) of the Act of 1961 is very important and it must be read with Section 14 of the said Act. So far as sub-letting assignment is concerned, Section 14 of the Act makes a sub-lease or an assignment unlawful, where it is without the previous consent in writing of the landlord.

18. Section 14 of the Act of 1961 prohibits and restricts a tenant to sublet the suit accommodation without the previous consent in writing of the landlord. Sub-section (1) of Section 14 of the Act of 1961 provides as under: - "14. Restrictions on sub-letting.-(1) No tenant shall, without the previous consent in writing of the landlord,- (a) sub-let the whole or any part of the accommodation held by him as a tenant; or AIR 1969 SC 1291

(b) transfer or assign his rights in the tenancy or in any part thereof."

19.Section 15 of the Act of 1961, which provides for notice of creation and termination of sub-tenancy, states as under: - "15. Notice of creation and termination of subtenancy.-(1) Where, after the commencement of this Act, any accommodation is sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the accommodation is sub-let may, in the prescribed manner, give notice to the landlord of the creation of the subtenancy within one month of the date of sub-letting and notify the termination of such sub-tenancy within one month of such termination.

(2) Where, before the commencement of this Act, any accommodation has been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the accommodation has been sub-let may, in the prescribed manner, given notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination.

(3) Where, in any case mentioned in sub-section (2), the landlord contests that the accommodation was not lawfully sub-let and an application is made to the Rent Controlling Authority in this behalf, either by the landlord or by the subtenant, within two months of the date of the receipt of the notice of sub-letting by the landlord or the issue of the notice by the tenant or the sub-tenant, as the case may be, the Rent Controlling Authority shall decide the dispute."

20.Rules 14 and 15 of the Chhattisgarh Accommodation Control Rules, 1966, which provide for method of issuance of notice relating to sub-tenancy and service of notice, etc., respectively, state as follows: - "14. Notice relating to sub-tenancy.-A notice of the creation or termination of a sub-tenancy required under Section 15 shall be in Form D.

15. Service of notice, etc.-Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served-

(a) by delivering it to the person; or (b) by forwarding it to the person by registered post with acknowledgment due."

21.Form D, which is a form of notice regarding creation or termination of sub-tenancy statutorily prescribed under Rule 14 of the Chhattisgarh Accommodation Control Rules, 1966, prescribing the contents of notice, reads as follows: - FORM D (See Rule 14) Form of notice regarding creation or termination of sub-tenancy

1. Number of the accommodation and name, if any .........................

2. Street and Municipal Ward or Village in which the accommodation is situated ...............................................................

3. Name of the tenant .......................................................................

4. Name of the sub-tenant ................................................................

5. Details of the portion sub-let .........................................................

6. Rent payable by the sub-tenant ...................................................

7. Purpose for which sub-let, residential or non-residential, and if latter, the nature of the business, etc. and the number of employees, if any, working therein ....................................................

8. Date of creation/termination of the sub-tenancy ...........................

9. Any other relevant information ..................................................... ................................................ Signature of tenant/sub-tenant

22. Section 14(1) of the Act of 1961 starts with negative word "No". Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. Crawford in its Statutory Construction states that prohibitive or negative words can rarely, if ever, be directory and

this is so even though the statute provides no penalty for disobedience. In the matter of M. Pentiah and others v. Muddala Veeramallappa and others8, K. Subba Rao, J. speaking for the Supreme Court has held that negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative.

23. Similarly, Section 14(1) of the Act of 1961 mandates that "previous consent" in writing of the landlord is must for sub-letting, transferring or assigning whole or any part of the accommodation by the tenant to a sub-tenant. Such a statutory requirement of law is a mandatory requirement. The Supreme Court in the matter of Biswanath Poddar v. Archana Poddar and another9 while considering Section 14(1)(a) of the West Bengal Premises Tenancy Act, 1956, which also prohibits the tenant from sub-letting the tenanted premises without the previous consent in writing of the landlord, held that the said requirement is mandatory and observed as under: - "12.

... the first respondent to establish the previous written consent of the appellant. This being a mandatory requirement of law, in our opinion, the second respondent has failed to establish this mandatory requirement of the Act i.e. Section 14 of the Act."

24. The Supreme Court in Waman Shriniwas Kini (supra) dealing with Section 13(1)(e) read with Section 15 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, has clearly held that in view of the non-obstante clause in Section 15 of the said Act which prohibits sub-letting and makes it unlawful for a tenant to AIR 1961 SC 1107 (2001) 8 SCC 187

assign or to transfer his interest in the premises let to him, it would bar the tenant even by virtue of the provision contained in Section 108(j) of the Transfer of Property Act, 1882 and sub-letting would be unlawful. It was further held that Section 15 of the said Act of 1947 is based on public policy and the statutory rights enacted for the benefit of an individual cannot be condoned by any conduct or agreement of parties. It was observed as under: - "7.

This section prohibits sub-letting and makes in unlawful for a tenant to assign or to transfer his interest in the premises let to him. The non-obstante clause would mean that even if any other law allowed subletting, e.g., S. 108 of the Transfer of Property Act the sub-letting would, because of S. 15, be unlawful. This would apply to contracts also as all contracts would fall under the provisions of the law relating to contracts i.e. Contract Act. An agreement contrary to the provisions of that section (S. 15) would be enforceable as being in contravention of the express provision of the Act which prohibits it. It is not permissible to any person to rely upon a contract the making of which the law prohibits. (S. 23 of the Contract Act.)"

25. Similarly, in Gappulal (supra), it was held by the Supreme Court that permission of landlord for sub-letting is not established from the mere fact that landlord realised the rent after sub-letting.

26. In the matter of K.K. Krishnan v. M.K. Vijaya Raghavan 10, it was held by Their Lordships of the Supreme Court that notwithstanding the right available to tenant under Section 108(j) of the Transfer of Property Act, 1882, a tenant would be liable to be evicted under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, if a State Rent Act makes provision for eviction on certain specified grounds.

10 AIR 1980 SC 1756

27. In the matter of Hiralal Kapur v. Prabhu Choudhury11, the Supreme Court has held that even in case where after sub-letting of portion by tenant, rent was being received by landlord by way of two cheques, one drawn by tenant and another by sub-tenant, coupled with the fact that landlord was aware that certain activities of sub-tenant were being carried on in a part of premises, it was not sufficient to establish that landlord had accepted the sub-tenant as tenant in respect of portion used by sub-tenant.

28. Following the principles of law laid down in Hiralal Kapur (supra), the Supreme Court in the matter of Ram Saran v. Pyare Lal and another12 held that by a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by tenant in the name of the registered society, neither a new tenancy or a valid sub-tenancy is created. Their Lordships further held that there is no estoppel against statute and mere acceptance of rent by landlord will not constitute valid sub-tenancy in favour of sub-tenant unless landlord has given written consent. It was observed as under: - "24.

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. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said 11 AIR 1988 SC 852 12 AIR 1996 SC 2361

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 nobody's case that the landlord has given any written consent for induction of 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 subtenancy in favour of the registered society. Consequently, landlord will not be stopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority."

29. The pari materia provision contained in Sections 14(1), 16(2) and

(3) of the Delhi Rent Control Act, 1958, which mandates the tenant to obtain consent of landlord in writing to the specific sub-letting, came up for consideration before the Supreme Court in the matter of Shalimar Tar Products Ltd. v. H.C. Sharma and others 13. Highlighting the object of specific provision it was held by Their Lordships of the Supreme Court that this requirement serves a public purpose i.e. to avoid dispute as to whether there was consent or not. It was further held that the word 'previous' is significant and the consent must be to the specific sub-letting and must be in writing. It was observed as under: - "5.

... We are of the opinion on reading of the different provisions that the consent enjoined by bargain between the parties in this case must be in writing and must be to the specific sub-letting.

...

"...

...

However, sub-section (3) of Section 16 prohibits subletting of the premises after commencement of Act of 1958 without the 'previous' consent in writing of the landlord. The use of word 13 (1988) 1 SCC 70

'previous' in this sub-section shows that where it was the intention of the legislature that the consent in writing should be obtained before subletting, it said so specifically. The absence of the word 'previous' in sub-section (2) shows that it was not the intention of the legislature that the consent in writing could be obtained before subletting. Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in subletting to escape forfeiture of tenancy. Since the absence of consent in writing by a landlord for subletting gave rise to unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement. The purpose seemed to be that the consent of the landlord evidenced by a writing would cut out litigation on this ground. After all a landlord could always agree to subletting either before or after subletting of the premises. For that reason no condition was laid down that such consent should be obtained before subletting the premises."

We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned hereinbefore. In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to subletting the premises. The mere permission or acquiescence will not do. The consent must be to the specific subletting and must be in writing. Indeed there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the subletting the moment he realised the situation.

13.

Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity. We are, however, in this case unable to agree. Firstly, in this case there was no case of waiver. Waiver is a question of fact which has to be tested by facts and evidence. There was no conscious relinquishment of the advantage of any statute. No court has gone into this fact. It does not seem to have been urged before the High Court also. Apart from this, in this requirement of the statute which is in the public interest there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord. In Chaplin v. Smith14 it was held that physical possession was not sufficient, there must be legal possession. "

14 (1926) 1 KB 198

30. The principle of law laid down in Shalimar Tar Products Ltd. (supra) has been followed with approval by the Supreme Court in the matters of Shantilal Rampuria and others v. Vega Trading Corporation and others15, Bajaj Auto Limited v. Behari Lal Kohli16 and Pulin Behari Lal v. Mahadeb Dutta and others17.

31. In Pulin Behari Lal (supra), Their Lordships clearly held that in view of the clear provision contained in Sections 13(1)(a) and 16(1) of the West Bengal Premises Tenancy Act, 1956, mere knowledge of the sub-letting and/or acceptance of rent, in absence of proof of conscious relinquishment of right to eviction, would not amount to waiver by landlord and an inference of giving up of a right under a statute would not be easily drawn by invoking the theory of acquiescence in such cases. Their Lordships relying upon Shalimar Tar Products Ltd. (supra) highlighting the object of such restrictive provision, observed as under: - "4.

A perusal of the above provisions clearly show that when there was no previous consent in writing of the landlord for creation of subtenancy it shall be a ground for eviction in terms of Section 13(1)(a) of the Act. Even in case of creation of such subtenancy with the consent of the landlord in writing it was necessary to follow the further procedure prescribed under Section 16(1) of the Act. Mere knowledge and/or acceptance of rent cannot defeat the landlord's right to get a decree for ejectment on the ground of subletting. If the view as contended on behalf of the appellant is accepted the provisions of both the above Sections 13 and 16 would become nugatory. There is a clear mandate in Section 13(1)(a) that the protection against eviction to the tenant shall not be available in case the tenant transfers, assigns or sublets in whole or in part the premises held by him without the previous consent in writing of the landlord. ..." 15 (1989) 3 SCC 552 16 (1989) 4 SCC 39 17 (1993) 1 SCC 629

32. Reverting to the facts of the present case, qua the decrees of both the Courts below, on the ground enumerated under Section 12(1) (b) of the Act of 1961 in light of the provisions contained herein and considered herein-above and in light of the principles of law laid down by Their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that it is even not the case of the original defendant No.1 that the suit accommodation was let out to the subtenants - defendants No.2 to 5 with the previous consent of the landlord in writing after complying with the provisions contained in Section 15 of the Act of 1961 read with Rule 14 of the Chhattisgarh Accommodation Control Rules, 1966. His case as put-forth before the Courts below is only that since the landlord / plaintiffs have accepted the rent vide receipts Exs.

D-1 to D-5 and they had knowledge about the alleged sub-letting created by him in favour of defendants No.2 to 5, that would amount to consent in writing, which will fulfill the requirement of Section 12(1)(b) read with Section 14(1) of the Act of 1961. Whereas, it is the case of the plaintiffs that Exs.D-1 to D-5 were said to be executed by the original plaintiff's father which is inconsequential and even it is not the case of the defendants that there is any previous consent of the landlord in writing and notice under Section 15 of the Act of 1961 read with Rule 14 of the Chhattisgarh Accommodation Control Rules, 1966 in the prescribed proforma was ever served to the plaintiff, therefore the ground enumerated under Section 12(1)(b) of the Act of 1961 is not made out.

plaintiff to sublet the suit accommodation to defendants No.2 to 5 by defendant No.1 and there is total non-compliance of Section 14 of the Act of 1961 and the suit property fell in the share of the plaintiffs in partition, as such, there is complete non-compliance of Sections 14 & 15 of the Act of 1961 which the first appellate Court has affirmed holding that if Exs.D-1 to D-5 are letters / documents written by original plaintiff's father Mohanlal Nathani then also they are of no use to the defendants and even the contents of Exs.D-1 to D-5 are not proved and thus, there is complete non-compliance of Sections 14 and 15 of the Act of 1961, therefore the plaintiffs are entitled for decree under Section 12(1)(b) of the Act of 1961 and they will not be estopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting subtenant without authority of law.

33. On the basis of aforesaid analysis, it is quite pellucid that though there is mandatory requirement of previous consent in writing of the landlord for the tenant to let-out the whole or part of suit accommodation which the tenant is in possession under Section 14 of the Act of 1961 and creation of sub-tenancy has to be notified mandatorily under Section 15 of the Act of 1961 as per Rule 14 of the Chhattisgarh Accommodation Control Rules, 1966 in a prescribed proforma (Form 'D') clearly indicating the manner of serving notice, but in the instant case, as both the Courts have concurrently found that defendant No.1 has sub-let the suit accommodation to defendants No.2 to 5, but there is no previous consent in writing of the landlord even pleaded and established on

record. Even Exs.D1 to D-5 which both the Courts below have not accepted, it cannot be held that it would fulfill the requirement of Section 14(1) of the Act of 1961. Mere acceptance of rent or part of rent, if any, would not entitle defendant No.1 to rigour out the stringent provisions restricting the sub-letting of tenanted accommodation without the previous consent in writing of the landlord, as no notice about creation of sub-tenancy has been served under Section 15 of the Act of 1961 in prescribed proforma as per the Chhattisgarh Accommodation Control Rules, 1966 and thereby, the defendants have to suffer the consequence of unlawful sub-letting of the suit accommodation to defendants No.2 to 5 which is in teeth and in breach of the provisions contained in Section 14(1) and 15 of the Act of 1961 and the rules made thereunder.

The concurrent finding recorded by the two Courts below holding that previous consent in writing of the landlord to let out the suit accommodation is neither pleaded nor established from Exs.D-1 to D-5 allegedly executed by the original plaintiff's father in favour of defendant No.1 and further finding recorded by the two Courts below that mere acceptance of rent and mere knowledge of sub-tenancy would not defeat the plaintiff's / landlord's right to get the decree for ejectment on the ground enumerated under Section 12(1)(b) of the Act of 1961 are neither perverse nor contrary to record requiring interdiction by this Court in its jurisdiction under Section 100 of the CPC. I affirm the said finding by answering the first two substantial questions of law in favour of the plaintiffs and against the defendants.

answered accordingly.

Answer to substantial question of law No.3: -

34. The third substantial question of law as framed by this Court on 292-2016 would show that the said question is confined to the correctness of the finding recorded by the two Courts that the plaintiffs (landlord) do not have reasonable, suitable, alternative accommodation of their own at Raipur.

35. In order to answer this question of law, it would be appropriate to notice Section 12(1)(f) of the Act of 1961 which reads as under: - "12. Restriction on eviction of tenants.-(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :

(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;"

36. In order to grant a decree under Section 12(1)(f) of the Act of 1961, the following requirements are to be satisfied by the landlord: -

(1) that the suit accommodation is let out for non-residential purposes; (2) that the accommodation so let is required bona fide by the landlord; (3) that the requirement is for the purpose of continuing or starting business; (4) that the said business is his or that of any of his major sons or unmarried daughters or that of any person for whose benefit the accommodation is held,

as the case may be; (5) that either the landlord or any other person for whose benefit the accommodation is held, as the case may be, is the owner of the premises; and (6) that the landlord or such other person, as the case may be, has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.

37. The finding that the suit accommodation is let out for non-residential purposes and is required bona fide by the landlord for the purpose of continuing business of the plaintiffs and they are the owners thereof, has been concurrently found proved and as such, that finding has become final so far as this Court is concerned, as no question of law having been framed in that regard and even the application for framing additional substantial question of law has been rejected today by a separate order. Therefore, the only question would be as to the correctness of the finding recorded by the two Courts that the plaintiffs (landlord) do not have reasonable, suitable, alternative accommodation of their own at Raipur, which is one of the requirements of Section 12(1)(f) of the Act of 1961 for getting the decree of eviction.

38. The trial Court after appreciating oral and documentary evidence on record has clearly reached to a finding that the plaintiffs are not having reasonably suitable non-residential accommodation of their own in the township of Raipur which the first appellate has also affirmed by accepting the finding recorded by the trial Court.

39. In order to grant decree, the plaintiffs are required to not only plead, but also to establish that they (landlord) do not have reasonably

suitable alternative non-residential accommodation in their possession in the town or city concerned under Section 12(1)(f) of the Act of 1961.

40. A Full Bench of the M.P. High Court in Damodar Sharma (supra) has held that in order to be a disability, it is not enough that the landlord is in occupation of any other accommodation in the city or town concerned. It must also be shown that the other accommodation is suitable for the particular business which he wants to start or continue.

41. It is the settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, the tenant cannot dictate in this regard.

42. The Supreme Court in Shiv Sarup Gupta (supra) has analysed the concept of bona fide requirement and held that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a 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 bona fide.

43. In the matter of Ragavendra Kumar v. Firm Prem Machinery &

Co.18, the Supreme Court has held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter.

44. In the matter of Prativa Devi v. T.V. Krishnan19, it was held by the Supreme Court that the landlord is the best judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with.

45. The Supreme Court in the matter of Anil Bajaj and another v. Vinod Ahuja20 repelling the argument with regard to availability of reasonably alternative accommodation, Their Lordships held that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilised by him for the purpose of his business. It was observed as under: - "6.

... What the tenant contends is that the landlord has several other shop houses from which he is carrying on different businesses 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 to dictate to the landlord as to how the property belonging to the landlord should be utilised by him for the purpose of his business. ..."

46. The Madhya Pradesh High Court in the matter of Noor Mohammad v. Murlidhar21 has held that tenanted non-residential accommodation situated on main road are more suitable for starting 18 (2000) 1 SCC 679 19 (1996) 5 SCC 353 20 (2014) 15 SCC 610 21 AIR 1985 Madhya Pradesh 260

business as compared to alternative accommodation situate on the side road, tenanted accommodation cannot be refused to landlord on the ground of availability of alternative accommodation.

47. In the matter of Akhileshwar Kumar and others v. Mustaqim and others22 the Supreme Court has held that choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy.

48. Likewise, in the matter of Uday Shankar Upadhyay and Ors. v. Naveen Maheshwari23 dealing with bona fide need under Section 12(1)(f) of the Act of 1961, the Supreme Court held as under:- "11.

In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. It is well-known that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide. Hence, the view of the Courts below that the sons of plaintiff No.1 should do business on the first floor in the hall which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained."

49. In the matter of Ahmad alias Mohd. Ahmad v. Mohd Osman 24 the Supreme Court declined to interfere with the concurrent finding recorded by the Courts below.

50. The Supreme Court in the matter of Ram Prasad Rajak v. Nand Kumar and Bros. and another25 has held that the bona fide 22 2002 AIR SCW 5160 23 2010 AIR SCW 1265 24 (2017) 13 SCC 252 25 AIR 1998 SC 2730

requirement of the appellant therein / landlord does not give rise to any substantial question of law, it is entirely a matter to be decided on an appreciation of evidence and set-aside the judgment of the High Court which has interfered with the judgment & decree of the 2nd Additional District Judge, Giridih in the first appeal holding that the High Court has acted beyond its jurisdiction in appreciating the evidence on record interdicting the finding of bona fide need.

51. Very recently and finally as well, in the matter of Gandhe Vijay Kumar v. Mulji alias Mulchand26, the Supreme Court has held that the bona fide requirement concurrently found by the Rent Controller as well as by the appellate authority, the High Court should not have ventured to look into evidence as if in a first appeal and entered a different finding, and interfered with the order of the High Court and held as under: - "3.

There is no dispute with respect to the landlordtenant relationship. The bona fide requirement also has been concurrently found by the Rent Controller as well as by the appellate authority. The High Court should not have ventured to look into the evidence as if in a first appeal and entered a different finding, though another finding might also be possible. Merely because another view is possible in exercise of the revisional jurisdiction, the High Court cannot upset the factual findings."

52. At this stage, it would be appropriate to notice that great reliance has been placed by Mr. Bajaj, learned counsel, upon the decision of the Supreme Court in M/s. Girdhari Lal & Sons (supra) which is clearly distinguishable to the facts of the present case in light of the requirement under Sections 14(1) & 15(1) of the Act of 1961 read with Rule 14 of the Chhattisgarh Accommodation Control Rules, 26 (2018) 12 SCC 576

1966, which mandatorily requires the previous consent in writing of the landlord before sub-letting the suit accommodation to the cotenant. Similarly, the decision of the M.P. High Court in Vinod Kumar Agrawal (supra) relied upon by Mr. Bajaj, learned counsel, is also clearly distinguishable to the facts of the present case in light of the decisions of the Supreme Court noticed herein-above. Therefore, both the decisions are not rendering any sort of assistance to Mr. Bajaj, learned counsel appearing for the appellants in S.A. No.465/2015 / LRs of defendant No.1 (defendants No.1A to 1C) and defendants No.4 & 5.

53. Reverting to the facts of the present case in light of the principles of law laid down by Their Lordships of the Supreme Court in respect of the scope of interference in appellate jurisdiction under Section 100 of the CPC, it is quite vivid that it is the case of the plaintiffs that they are carrying on their medical shops in the Medical Complex i.e. two shops on rented premises and likewise, behind the suit premises on the side road they are also running a Commercial Company which is also on rented premises and a watch shop is at Farishta Complex which is also on rent vide Ex.P7, whereas the suit property, which is a double storied building with an area of 7,000 sq.ft., is situated at Main Road and that will bring all their business under one roof, apart from that it will be their own ownership premises and they are getting rent of ₹ 2,317/- per month from defendant No.1, whereas they are paying rent more than ₹ 8,000/- per month, as such, they have no reasonably suitable vacant accommodation in their possession.

54. Defendant No.1 at the end of paragraph 9 has amended the written statement on 2-5-1997 and stated in paragraph 9(v) that there are hundred shops owned by the plaintiffs where they have leased out the same to different persons with hand-some ransom / pugree / deposit in lakhs. The plaintiffs have pleaded, but no oral or documentary evidence to demonstrate the said fact has been brought out on record that five storied building is owned by the plaintiffs and they have leased out to different persons after institution of suit which was reasonably suitable for non-residential purposes for which the suit accommodation is sought to be vacated. Mr.

Bajaj, learned counsel, though took me extensively through various paragraphs of the written statement, statements of the plaintiffs and their witnesses and also through the statements of the defendants and his witnesses, but failed to point out any iota of evidence demonstrating any perversity or illegality in the wellmerited and well-reasoned finding returned by the two Courts below that the plaintiffs do not have reasonably suitable alternative accommodation in their possession, as such, I have no reason except to accept those findings.

55. Taking into consideration oral and documentary evidence on record, the finding recorded by the two Courts below holding that the plaintiffs have no reasonably alternative suitable accommodation of their own in the township of Raipur, is a finding of fact based on the evidence available on record. Defendant No.1 has miserably failed to establish and demonstrate that the plaintiffs have any reasonably suitable accommodation in their possession for starting / continuing

their business for their bona fide need. The concurrent finding recorded by the two Courts below is neither perverse nor shown to be contrary to record warranting interference under Section 100 of the CPC. I do not find any illegality or perversity in the judgment and decree passed by the first appellate Court and as such, both the Courts below are absolutely justified in granting decree in favour of the plaintiffs.

56. As a fallout and consequence of above-stated discussion, both the second appeals being merit-less and substance-less deserve to be and are accordingly dismissed directing the defendants to bear their own cost and cost of the plaintiffs as well.

57. A decree be drawn-up accordingly.

Sd/- (Sanjay K. Agrawal) Judge Soma