JAGAN NATH (DECEASED) THROUGH L.RS.versusCHANDER BHAN AND 0THERS

          JAGAN NA1H (DECEASED) 1HROUGH L.Rs.
                                                                             A
                                       v.
                  CHANDER BHAN AND 01HERS
                                            '
                              MAY 11, 1988

      [SABYASACHJ,MUKHARJI AND's. NATARAJAN, JJ.J                            B
 •.
      Delhi Rent Control Act, 1958-Sections 14(l)(a), (b), (2) and
 15-Tenant-Eviction of-On ground of, subletting/Parting with
 possession-User of Premises by anot~er person is not parting with
 possession.

        The respondent-landlord had filed a petition against the             c
  appellant-tenant under section 14(l)(a) and 14(l)(h) of the Delhi Rent
  Control Act, 1958 for eviction from a residential-cum-commercial pre-
  mises, inter alia, on the ground that the appellant had sublet, assigned
  or otherwise parted with possession of the premises to his sons who were
  running their parlne.rship business in the name of Bindra Tent House       D
  with which the tenant had'no concern. The tenant contested the petition
  on the ground that he was in exclusive possession of the premises and
  was carrying on his business therein with the help of his sons who were
. members of his Joint Hindu Family.

       In support of his plea that the tenant had parted with possession,    E
 the landlord had produced documentary evidence which included copy
 of a statem~nt made by the tenant before the Income Tax Officer, which
 indicated that the tenant had sold his proprietary business to his sons.

       The Additiona~ Rent Controller held that there was no su,bletting
 by the ten;>nt, but he had unlawfully parted with the possession of the     F
 premises in favour of his sons and as such was liable to be evkted.

      During the peudency of the appeal the tenant sought permission
under Order 6 Role 17 of the Code of Civil Procedure to amend his
written statement ti) state that the property was taken o'l rent by M/s
Bindra Tent House. The Tribunal did not permit this belated amend-           G
ment as this would have introduced an entirely new case. On merits, the
Tribunal dismissed the appeal of the tenant. The High Court did not
find any substantial question of law in the tenant's second appeal and
dismissed the same.

       Allowing the appeal, it was,                                          H
                                      325
    326         SUPREME COURT REPORTS                 [1988] Supp. 1 S.C.R.

          HELD: (I) The only ground perhaps upon which the landlord
A   was seeking eviction was parting with possession. It is well-settled that
    parting with possession meant giving possession to persons other than
    those to whom possession had been given by the lease and th1' parting
    with possession must have been by the tenant. User by other 11erson is
    not parting with possession so long as the tenant retains the legal posses-
B   sion himself, or in other words, there must be vesting of possession by
    the tenant in another person by divesting himselfnot only of physical
    possession but also of the right of possession. So long as the tenant
    retains the right to possession there is no parting with possession in
    terms of clause (b) of section 14(1) of the Act. [329G-H; 330A]

          (2) Even though the father had retired from business and fthe sons
c   had been looking after the business in the facts of this case, it cannot be
    said that the father had divested himself of the legal right to be in
    possession. [330B]

          (3) In the instant case, if the father was carrying on the business
D   with his sons and the family was a joint family, it is difficult to p1•esume
    that the father had parted with possession legally to attract the mischief
    of section 14(l)(b) of the Act. [330D-E]

          (4) In these days of acute shortage of accommodation both for
    living and for vocation, one has to take the reality with a piimch of
E   salt and the manner in which the original tenant has conducted himself
    in shilling his defence would not disentjtle him to the benefit of the
    law. [330G]

         Subashini Mojumdar v. Krishna Prasad Mahatoo, A.I.R. 1956
    Assam 79; Mis Modi Spinning and Weaving Mills Co. Ltd. v. M/s
F   Ladha Ram and Co., [1977] I SCR 728 and Smt. Krishnawati v. Shri
    Hans Raj, [1974] 1SCC289, referred to.
                                                                                   .,,
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1127
    of 1985.

G        From the Judgment and Order dated 29.8.84 of the Delhi High
    Court in S.A.O. No. 40 of 1984. ,

          Rajinder Sachhar and Mrs. Rani Chhabra for the Appellants.

          A.K. Ganguli and E.M.S. Anam for the Respondents.
H
          The Judgment of the Court was delivered by
            JAGAN NATH v. CHANDER BHAN [MUKHARJI, J.[                327

       SABYASACHI MUKHARJI, J. This appeal by special leave is
                                                                            A
  directed against the judgment and order of the High Court _of Delhi
  dated 29th August, 1984. One Jagan Nath, since deceased, was the
  original tenant of the premises in question. He died during the
  pendency of this appeal here. His sons have. been subs.tituted. The
  tenancy in question started on !st January, 1962. It appears that on 7th
  November, 1967 notice was addressed to Shri Baldcv Raj, describing B
  him as sole proprietor of M/s Bindra Tent House, New Delhi, for
  eviction. There was an increase in rent in July, 1970. The respondent
  herein filed the petition against the appellant herein Jagan Nath under
  section 14(1)(a) and 14(1)(b) of the.Delhi Rent Control Act, 1958
· (hereinafter called the· Act) for eviction of the appellant from the
  premises consisting of one room forming part of premises No. N-80,
  Kirti Nagar, New Delhi, as the appellant herein had not paid rent with
                                                                            c
  effect from 1st May, 1975 till 30th April, 1977 at the rate of Rs. 75 per
  month despite service ofthe demand notice dated 8th January, 1976. It
  was the further case of the respondent herein that the appellant had
  after 9th June, 1962 sublet, assigned or otherwise parted with posses-
  sion of the premises to Shri Baldev Raj Bindra and Sat Pal Bindra D
  without the consent in writing of the respondent-landlord. The suit
  was filed before the Additional Rent Controller and the same was
  contested on various grounds. It was contended that the petition was
  not maintainable because of non-joinder of Shri Baldev Raj Dindra
  and Sat Pal Bindra. The premises in question is residential-cum-
  commercial. It was stated that Shri Baldev Raj Bindra and Sat Pal E
  Bindra are the sons of the original appellant, since deceased. The said
  tenant was in exclusive possession of the premises and was carrying on
  his business therein with which, it was stated, Baldev Raj and Sat Pal
  had no concern. They are the sons of the tenant, since deceased, and
  had constituted a Hindu Undivided Family. No demand notice was
  ever served upon the tenant. The tenant tendered the reqt to the F
  landlord by money order for an amount of Rs.450 which he refused to
  accept. The Additional Rent Controller so far as the ground of non-
  payment of rent was concerned held that there was a compliance with
  the order passed under section 15(1) of the Act. The Additional Rent
  Controller gave the tenant the benefit under section 14(2) of the Act.
  The petition of the landlord on the ground of non-payment of rent G
  was, therefore, dismissed.

       The other ground was the ground of eviction claimed by the
 landlord for subletting, assignment or parting with the possession of
 the premises in question by the tenant in favour of his sons Baldev Raj
 and Sat Pal Bindra. The landlord in his deposition had stated that since   H
    328         SUPREME COURT REPOR.TS              [ 1988! Supp. 1 8.C.R.

A 1st July, 1971 Baldev Raj and Satpal were running their busines.s. \n the
   name of M/s. Bindra Tent House in partnership and they W<!re in
   possession of the premises in question. The tenant had no concern with
   the business carried on in the demised premises and the tenant had
   retired. The tenant in his cross-examination had stated that h'e had
   sent partnership document and Form II to the Income-tax Department.
B The landlord had denied the suggestion that the said Jagan Nath was in
   possession of the premises and his sons had been helping him from the
   very beginning. The landlord had produced on the record one state-
   ment made by the appellant herein, Jagan Nath before the Income Tax
   Officer, photostat copy of which is Exhibit A.W. 3/1 on the record
   which indicated that Jagan Nath wl)o was the proprietor of the Bmdra
   Tent House sold the same for Rs.18,000 on 1.1.1970 to his sons Baldev
c Raj and Sat. Pal and h.e got cash of Rs.8,000 and he gifted the other
   amount into two equaj sl,lares to his sons Baldev Raj and Sat Pal. In his
   statement, Jagan Nath had stated that Sat Pal and Baldev Raj had
   entered into a partnership in the same name M/s. Bindra Tent House
   in the same premises. This document was heavily relied upon before us
D. by Shri Sachhar in aid of his submissions that the tenant had parted with
    possession.

        There is another document Exhibit A. W-2/1. According to this
  document which is a photostat copy of the stamp vendor register,
  non-judicial papers for Rs.13, Rs.2 and Rs.20 were purchased by
E Baldev Raj for partnership purposes in the name of M/s. Bindra Tent
  House. Our attention was also drawn to the fact that an application for
  electricity connection was made by Sat Pal Bindra in the name of M/s.
  Bindra Tent House on 25th July, 1975 as the sole proprietor of the
  same. From these and other documents, it wa.s. contended that there
  was parting of possession and as S),l<:h: the \enant was liable t,o l;>e
F evicted. The Additional Rent Controller ordered the eviction under
  section 14(1)(b) of the Act. He held that there was no subletting by i:he
  tenant, Jagan Nath since deceased but he had unlawfully parted with
  the possession of t.he demised. premises in favour of his sons Sat Pal.
  and Baldev Raj without the consent in writing of the landlord.

G       During the pendency of the appeal the tenant preferred an appli-
  cation under Order 6 Rule 17 of the Code of Civil Procedure seeking
  perm.issiol). tq amel).d. his. written stat.ement. The appellant conterid_,d
  thal the landlord filed. evic(ii;m petition in respect of the said premises
  ag:iinst the appellant and his two sons which was assigned to Shri A. P.
  cha,udhary, Additional Rent Controller. Anothei; objection raised
H was that the properly was taken on rent by Mis. Bi;rulil;a Tent Hou~e
           JAGAN NATH v. CHANDER BHAN [MUKHARJI, J.]                  329

and, therefore, the petition for eviction was not maintainable. The          A
application had been contested in which it had been admitted that the
earlier petition for eviction was filed but according to the respondent it
was not properly instituted and the same was withdrawn. It was denied
that the application was not maintainable. The Tribunal on an analysis
of the matter came to the conclusion that belated amendment could
not be permitted. It was emphasised that the tenant had achnitted in         B
the written statement that he was a tenant in the property in question.
He could not subsequently be allowed to wriggle out of this situation
and withdraw the admission. If the amendment was allowed, they
would take valuable right of the other side and altogether a new plea
would be taken, it was held. This cannot be permitted. In this connec-
tion, the Rent Tribunal relied upon the observations of the Assam            C
High Court in Subashini Majumdar and another v. Krishna Prasad
Mahatoo and Ors., A.LR. 1956 Assam 79. The same view was
reiterated by this Court in Mis. Modi Spinning and Weaving Mills Co.
Ltd. and another v. Mis. Ladha Ram and Co., [1977] 1 SCR 728 where
the proposed amendment introduced an entirely new case seeking to
displace the other side completely from the admission made then. It          D
was held that such an amendment could not be allowed. We are of the
opinion that the Rent Tribunal was therefore ri~ht in refusing the
amendment on the basis of the aforesaid principle. The Tribunal on an
analysis of evidence and facts came to the conclusion that there was no
merit in the appeal and dismissed the appeal and affirmed the eviction
order.                                                                       E

      The High Court on an analysis of the evidence and relevant
authorities came to the conclusion that there was no substantial ques-
tion of law and dismissed the second appeal. Hence this appeal.

      The question for consideration is whether the mischief contemp- F
lated under section 14(1)(b) of the Act has been committed as the
tenant had sublet, assigned, or otherwise parted with the possession of
the whole or part of the premises without obtaining the consent in
writing of the landlord. There is rio dispute that there was no consent
in writing of the landlord in this case. There is also no evidence that
there has been any subletting or assignment. The only ground perhaps G
upon which the landlord was seeking eviction was parting with posses-
sion. It is well-settled that parting with possession meant giving posses-
sion to persons other than those to whom possession bad been given by
the lease and the parting with possession must have been by the ten-
ant; user by other person is not parting with possession so long as the
tenant retains the legal possession himself, or in other words there H
    330         SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

A
    must be vesting of possession by the tenant in another person by
    divesting himself not only of physical possession but also of the right to
    possession. So long as the tenant retains the right to possession there is
  . no parting with possession in terms of clause (b) of section 14( i) of the
    Act. Even though the father had retired from the business and the sons
    had been looking after the business, in the facts of this case, it cannot
B be said that the father had divested himself of the legal right to he in
    possession. It the father has a right to displace the possession of the
    occupants, i.e., his sons, it cannot be said that the tenant had parted
    with possession. This Court in Smt. Krishnawati v. Shri Hans Raj,
  · I1974] 1 SCC 289 had occasion to discuss the same aspect of the
    matter. There two persons lived in a house as husband and wife and
    one of them who rented the premises, allowed the other to carry on
c   business in a part of it. The question was whether it amounted to
    sub-letting and attracted the provisions of sub-section (4) of section 14
    of the Delhi Rent Control Act. This Court held that if two persom live
    together in a house as husband and wife and one of them who owm; the
    house allows the other to carry on business in a part of it, it will be in
D the absence of any other evidence, a rash inference to draw that the
    owner' has let out that part of the premises. In this case if the father
    was carrying on the business with his sons and the family was a joint
    Hindu family, it is difficult to presume that the father had parted with
    possession legally to attract the mischief of section 14(1)(b} of the Act.

E       Shri Ganguly appearing for the landlord contended that the con-
  duct of the tenant, Jagan Nath had been as sitting on the fence and
  avoiding the issue. It is true that Shri Ganguly rightly pointed out that
  Jagan Nath, the erstwhile tenant had not been fair and frank. But this
  is no ground to disentitle him to the benefit of the law if the facts have
  been proved that he had not parted with possession. After all, it has to
F be borne in mind that this is a residential-cum-commercial premi!;es.
  Jagan Nath was. carrying on business in part of the building with his
  two sons. Jagan Nath had died, therefore, it will be just and proper to
  presume that they were carrying on business, though perhaps the stand
  of the Jagan Nath was not always fair. In these days of acute shortage
  of accommodation both for living and for vocation, one has to take the
G reality with a pinch of salt and the manner in which Shri Jagan Nath
  has conducted himself would not disentitle him the benefit of the law
  in the present climate.

        In the view we have taken, this appeal must be allowed and the
  judgment and order of the High Court of Delhi and the Courts below
H are set aside. The eviction order is accordingly set aside.
           JAGAN NATH v. CHANDER BHAN .[MUKHARp, J.]                  331

      It has, however, to be borne in mind that rent in these areas has      A
increased enormously. So while exercising our jurisdiction under Arti-
cle 136 of the Constitution, we will enhance the rent to four times. We
are told that the mesne profit at present payable was Rs. 75 per month.
We direct that mesne profit/rent should be Rs.300 per month. We
further direct that this will not prejudice the rights of tlie respondent
herein to file any proceedings for eviction on the ground of bona fide
                                                                             B
need, if there is such a need or on any other ground available to the
respondent for eviction under the Act. We give this direction in view
of the facts alleged in the affidavit of Shri Chander Bhan Mehta
affirmed on 26th April, 1988. About the correctness or validity of the
statements made therein, we had no occasion to examine in this
appeal. We have also taken into consideration the affidavit of Shri          c
Baldev Raj Bindra affirmed on the 2nd May, 1988 about the veracity
of which also we express no opinion.

      In the facts of this case, the appellants will pay to the respondent
the costs of the appeal.
                                                                             D
R.S.S.                                                  Appeal allowed.