Holding

The eviction order is valid; sub‑letting was established despite lack of proof of monetary consideration, and the waiver defence was not pleaded, making the landlord's right to possession enforceable.

Summary

The landlord Amar Kaur filed an eviction petition under the East Punjab Urban Rent Control Act alleging that the tenant's son, Joginder Singh Sodhi, occupied the shop as a sub‑tenant without the landlord's written consent. The Rent Controller, Appellate Authority and High Court found that the deceased father, Mukand Singh, had let the premises to himself and then part‑ed with possession to his son, who was in exclusive possession, thereby establishing sub‑letting. The appellant contended that no monetary rent was paid, that the landlord had waived the prohibition, and that the father‑son relationship precluded sub‑tenancy. The Supreme Court held that proof of monetary consideration is not a sine qua non for sub‑letting, the relationship between tenant and sub‑tenant is immaterial, and waiver must be expressly pleaded and proved, which was absent. Consequently, the eviction order was upheld and the appeal dismissed.

Issues considered

Whether the eviction order on the ground of sub‑letting is valid under the East Punjab Urban Rent Control Act.
Whether proof of monetary consideration is essential to establish sub‑letting.
Whether the doctrine of waiver can defeat the statutory prohibition on sub‑letting.
Whether the death of the original tenant and the non‑joining of his heirs affect the validity of the eviction order.

Subjects

rent controlevictionsub‑lettingwaiverexclusive possessionstatutory interpretationlandlord‑tenant

Judgment

JOGINDER SINGH SODHI A
v.
AMAR KAUR

OCTOBER 8, 2004

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] B

- Rent Control and Eviction:

East Punjab Urban Rent Control Act; Section 13-Eviction Petition on
ground of sub-letting-Decreed by Rent Controller.,-Affirmed by Appellate C
Authority-Revision petition dismissed by High Court-On appeal, Held:
Tenant had parted with possession in favour of his son staying separately
without the written consent of the landlord-Son found to be in exclusive
possession of the suit premises-Proof of monetary consideration not a sine
qua non to establish sub-letting-Relationship between the tenant and the D
sub-tenant immaterial-Hence, it was righ~ly contended that the premises was
sub-let by the tenant.

Doctrines:

Doctrine of waiver-Applicability of E
Respondent-landlady let out the shop premises in question to father
of the appellant in terms of a lease-deed executed by him. Later, appellant
took possession of the shop. The landlady filed an eviction petition against
both the tenant and his son mainly on ground of sub-letting. Rent
Controller decreed the suit holding that the premises in question was let F
out to father of the appellant, who parted with possession thereof in favour
of the appellant and since appellant was found to be in exclusive possession
of the property, sub-letting by the tenant-father in favour of the appellant
was established. Appellate Authority confirmed the order of eviction. High
Court dismissed the Revision petition. Hence, the present appeal.
G
It was contended for the appellant that his father had taken the
premises on lease for him, and it was not a case of sub-letting; and that
. his name was already on record, and thus the estate of the deceased was
represented.
303 H
304 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A Respondent-landlady submitted that in terms of an Undertaking
given by the deceased-tenant in the lease-deed, he could not part with
possession of the premises, however his son-appellant was found in
exclusive possession of the premises; and that since after the death of the
original tenant his legal heirs were not brought on record, order of eviction
B passed against him became final.

Dismissing the appeal, the Court

-
HELD: 1.1. In the instant case, a finding of fact has been recorded
by the Rent Controller, confirmed by the Appellate Authority as also by
the High Court that the property was let out to the deceased tenant, who
C had given an Undertaking that he would neither part with possession of
the property nor would permit anyone else to occupy it. However, he had
parted with possession in favour of his son who was found to be in exclusive _..,
possession though he was staying separately. Besides, proof of monetary
consideration by the sub-tenant to the tenant is not a sine qua non to
D establish sub-letting. [309-D, E; 311-E)

Associated Hotels of India ltd. v. S.B. Sardar Ranjit Singh, [1968) 2
SCR 548 AIR (1968) SC 933; Sharma Prashant Raje v. Ganpatrao and Ors.,
[20001 7 SCC 522; Bharat Sales Ltd. v. Life Insurance Corporation of India,
[19981 3 SCC 1 and Smt. Rajbir Kaur and Anr. v. Mis. S. Chokesiri & Co.,
E [19891 1 sec 19, relied on.

1.2. Appellant was found to be in exclusive possession of the property.
He was staying separately and not with his father, the tenant. The
explanation given by the tenant as to how the appellant came to occupy
F the shop was that the lease was obtained by him for his son, which was
not believed by the authorities. For deciding the question whether the
tenant had created sub-tenancy, the relationship between the tenant and
sub-tenant is not material. Hence the Authorities rightly concluded that
the tenant had sub-let the suit property to the appellant. [311-G I

G 1.3. There is no privity of contract between the landlady and the
appellant. He was, therefore, a 'stranger' to the landlady. She let the
property to father of the appellant, who was bound to occupy the property
as per the rent note executed by him wherein even an undertaking was
given by him that he would not part with possession or allow any other
person to occupy the property. In spite of the rent note and undertaking,
H if without the written consent of the landlady, he had inducted the
JOGINDER SINGH SODHI v. AMAR KAUR [THAKKER, J.] 305

appellant as his tenant or had parted with possession in favour of the A
appellant, who was staying separately and yet found to be in exclusive
possession of the shop, sub-tenancy was established. (312-B, q

- Bhairab Chandra Nandan v. Ranadhir Chandra Dutta, [1988] 1 SCC
383, relied on.
B
2. Waiver is a question of fact which must be expressly pleaded and
clearly proved. No such plea had been raised either by the tenant or by
the 'sub-tenant' before the Rent Controller/Appellate Authority/High
Court. Such question cannot be allowed to be raised for the first time in
this Court. That apart, the language of Section 13(2)(ii)(a) of the East C
Punjab Urban Rent Control Act is clear and unambiguous. It mandates
that no tenant can sub-let the tenanted property or part thereof without
the written consent of the landlord. In the present proceedings, it is not
even the case of the tenant that he had obtained 'written consent' of the
landlady to sub-let the shop to his son. On the contrary, his.assertion that
the property was taken by him for his son was not believed. Hence, order D
of eviction cannot be held illegal as the doctrine of waiver cannot be
applied. A bald plea of waiver cannot defeat statutory provision made in
larger public interest. [312-H; 313-A, B, q

Mis. Shalimar Tar Products Ltd v. H.C. Sharma and Ors., [1998) 1 SCC
70 and Pu/in Behari Lal v. Mahadeb Dutta and Ors., (1993) l SCC 629, relied E
on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5 I 99 of
2003.

From the Judgment and Order dated 5.2.2003 of the Punjab and Haryana F
High Court in C.R. No. 2115 of 1990.

Ms. Indu Malhotra, Rajesh Dutta and Ms. Kavita Wadia for the
Appellant.

Dr. K.S. Sidhu, Ms. Maldeep Sidhu, Davender Verma and R.S. Suri
G
with him for the Respondent.

The Judgment of the Court was delivered by

THAKKER, J. The present appeal is filed by the appellant against an H
order of eviction passed the Rent Controller, Ludhiana in R.A. No. 24 of
306 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A I985, confirmed by the Appellate Authority in MCA (r) No.42/RBT-37 of
I987-I990, as also confirmed by the High Court of Punjab and Haryana in
Civil Revision No.2115 of 1990.

The appellant Joginder Singh Sodhi was original respondent No.2. Smt.
Amar Kaur, respondent herein, filed R.A. No.24 of 1985 against Sodhi Mukand
B Singh (since deceased) and Joginder Singh (Respondent No.2-appellant herein)
for recovery of possession of suit premises being shop No.7 out of property
No. B.XX.609, Premjit Market, Ferozepur Road, Ludhiana. The property was
let out to deceased Mukand Singh on a monthly rent of Rs.50 by lease-deed
executed by late Mukand Singh on December 9, 1966. Whereas the case of
C the petitioner-landlady was that the property was let out to deceased Mukand
Singh, the say of Mukand Singh was that he took the property on lease for
his son Joginder Singh-respondent No.2.

The landlady filed an Eviction Petition under Section 13 of the East
Punjab Urban Rent Control Act, (hereinafter referred to as "the Act") seeking
D eviction of both the respondents on two grounds; namely, (i) non-payment of
rent, and (ii) sub-letting. The respondents filed a common reply denying the
allegations. According to them, they were not in arrears of rent, nor the
premises were sub-let by respondent No. I to respondent No.2. They asserted_
that the premises were taken by the father for being used by the son since the
E very beginning.
.,,J

Before the Rent Controller, Ludhiana, the ground of non-payment of
rent was not pressed by the landlady. The issue for determination, therefore,
which remained before the Rent Controller was as to whether the respondent
No. I had sub-let the premises to respondent No.2. Considering the rent note
F executed by respondent No. I, the Rent Controller recorded a finding that the
property was let out to respondent No. I and without the written consent of
the landlady, it was sub-let by respondent No. I to respondent No.2. He also
recorded a finding that respondent No. I and respondent No.2 were staying
separately and respondent No.2 was found to be in exclusive possession of
the shop and was doing business as photographer. He further observed that
G from the rent note, it was clear that the property was to be used by respondent
No. l only. Had the intention of the father was to get the property for his son,
he would have expressly mentioned the name of his son as tenant but since
the premises were let out to the father and he parted with possession thereof
and respondent No.2 was found to be in exclusive possession, the case of the
H sub-Jetting by respondent No. I in favour of respondent No.2 was established.
JOGINDER SINGH SODHI v. AMAR KAUR [THAKKER, J.] 307

The landlady was, therefore, entitled to get possession of the property. A
Accordingly, an order of eviction was passed against the respondents.

Being aggrieved by the order passed by the Rent Controller, the
respondents filed an appeal before the Appellate Authority. The Appellate
Authority again considered the submissions of the appellants and in the light
of the evidence, agreed with the findings recorded by the Rent Controller, B
confirmed the order of eviction and dismissed the appeal. It was observed
that the execution of rent note was duly proved wherein it was stated that
respondent No. I who was a retired Inspector of Excise Department had taken
the property on lease for running "his own business" with an undertaking that
he would neither part with possession nor permit anyone else to occupy the C;
shop. It was also observed that father and son were staying separately and it
was not disputed before the Appellate Authority that the shop was found to
be in "exclusive possession" of respondent No.2 who was running his business
of photography. It, therefore, could not be said that the order passed by the
Rent Controller was illegal or otherwise improper. Accordingly, the order of
eviction was confirmed by the Appellate Authority. D
Against the order passed by the Appellate Authority, Revision Petition
was filed by the respondents in the High Court of Punjab and Haryana.
During the pendency of the Revision Petition, original respondent No. I died.
Original respondent No.2 proceeded with the matter without joining the heirs
and legal representatives of deceased respondent No. l inter alia stating that E
being the son of the deceased, he was representing the estate of the deceased.
Moreover, as one of the legal representatives of the deceased, he was already
on record. He, therefore, prayed that the name of deceased Mukand Singh be
deleted from the array of parties. The prayer was granted.
F
The High Court while dismissing the revision petition, observed that
the Forum below had taken a correct view in ordering eviction of the tenant
from the premises on the ground of sub-letting. It further observed that since
Mukand Singh died and his name was ordered to be deleted from the array
of parties without reservation of any right of any of the legal heirs, the order
of eviction passed against him remained unchallenged and legal heirs were G
bound by such order. Revision petition was hence, dismissed.

On May 6, 2003, notice was issued by this Court and stay against
eviction was granted. On July 21, 2003, leave was granted. We have heard
the learned counsel for the parties.
H
\:.. .··
308 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A Learned counsel for the appellant strenuously .contended that an error
of law and of jurisdiction has been committed by the Forum below as also
by the High Court in holding that the appellant herein-respondent No.2 before
the authorities- was sub-tenant. It was submitted that the appellant was son
of deceased Mukand Singh, who had executed a rent note. Deceased Mukand
Singh had taken the premises on lease for the appellant and there was no sub-
B letting. It was also submitted that the authorities erred in holding that it was
established by the landlady that the 11ppellant was a sub-tenant. It was also
argued that the High Court has erred in observing that as heirs of deceased
Mukand Singh were not brought on record, the order passed against him had
become final. The appellant was already on record and thus the estate was
C represented. It was, therefore, submitted that tpe orders passed by the
authorities below and confirmed by the High Court deserve to be quashed
and set aside by allowing the appeal.

The learned counsel for the respondent - landlady, on the other hand,
supported the order passed by the authorities under the Act. He submitted
D that on the basis of the rent note executed by the tenant and undertaking
given by him, it was held that the shop was let out to deceased Mukand Singh
for conducting his business. Mukand Singh had also given an undertaking
that he would not part with the possession of the property. The Rent Controller
recorded a specific finding that respondent No.2-appellant herein was found
E to be in exclusive possession of the shop and hence sub-letting was clearly
established. If, on that ground, an order of eviction was passed, it could not
be said that the order was illegal or contrary to law. It was also submitted by
the learned counsel that during the pendency of revision petition, Mukand
Singh-original tenant died and his heirs and legal representatives were not
brought on record. The effect was that an order of eviction passed against
F him became final and the High Court was wholly justified in dismissing
revision petition on that ground also. It was, therefore submitted that the
appeal deserves to be dismissed.

Two questions were raised by the learned counsel for the appellant.
Firstly, whether an order of eviction passed by the Rent Controlier, confirn1ed
G by the Appellate Authority and also by the High Court is in accordance with
law. Secondly, the effect of death of Mukand Singh-original tenant against
whom proceedings were initiated and failure to bring his heirs and legal
representatives on record in Revision Petition before the High Co1•rt.

Regarding sub-letting, in our opinion, the law is well settled. It is
H
JOGINDER SINGH SODHI v. AMAR KAUR [THAKKER, J.] 309

observed in the leading case of Associated Hotels of India Ltd. v. SB. Sardar A
Ranjit Singh, [1968] 2 SCR 548: AIR (1968) SC 933 that in a suit by the
landlord for eviction of tenant on the ground of sub-letting, the landlord has
to prove by leading evidence that (i) a third party was found to be in exclusive
possession of the rented property and (ii) parting of possession thereof was
for monetary consideration.
B
The above principle was reiterated by this Court from time to time. In
Shama Prashant Raje v. Ganpatrao and Ors., [2000] 7 SCC 522, the Court
stated that on sub-letting, there is no dispute with the proposition that the two
ingredients, namely, parting with possession and monetary consideration
therefor have to be established.
c
In the instant case, a finding of fact has been recorded by the Rent
Controller, confirmed by the Appellate Authority as also by the High Court
that the property was let out to deceased Mukand Singh and he was the
tenant. A rent note executed by the tenant also proves that fact. It was stated
in the rent note that the property was rented to him for his business. The D
tenant had also given an undertaking that he would neititer part with possession
of the property nor would permit anyone else to occupy it. A further finding
was also recorded that respondent No.2- appellant herein, was found in
exclusive possession of the property. The authorities have also held that
father and son were staying separately. In the light of these facts, therefore,
it can be concluded that it was proved that the tenant had parted with possession E
in favour of his son who was found to be in exclusive possession though he
was staying separately.

The contention of the learned counsel for the appellant, however, is
that even if it is assumed that one of the ingredients of sub-letting was F
established, the second ingredient, namely, parting of possession with
'monetary consideration' was not established. The counsel urged that there is
no evidence on record that any amount was paid either in cash or in kind by
respondent No.2 to respondent No. I. In absence of such evidence sub-tenancy
cannot be said to be established and the landlady was not entitled to get an
order of eviction against the tenant. G
We are unable to appreciate the contention. As observed by this Court
in Bharat Sales Ltd. v. Life Insurance Corporation of India, [1998] 3 SCC
I, sub-tenancy or sub-letting comes into existence when the tenant gives up
possession of the tenanted accommodation, wholly or in part, and puts another
person in exclusive possession thereof. This arrangement comes about H
310 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A obviously under a mutual agreement or understanding between the tenant and
the person to whom the possession is so delivered. In this process, the landlord
is kept out of the scene. Rather, the scene is enacted behind the back of the
landlord, concealing the overt acts and transferring possession clandestinely
to a person who is an utter stranger to the landlord, in the sense that the
B landlord had not let out the premises to that .person nor had he allowed or
consented to his entering into possession of t':J.at person, instead of the tenant,
which ultimately reveals to the landlord that tenant to whom the property was
let out has put some other person into possession of that property. In such a
situation, it would be difficult for the landlord to prove, by direct evidence,
the contract or agreement or understanding between the tenant and the sub-
C tenant. It would also be difficult for the landlord to prove, by direct evidence,
that the person to whom the property had been sub-let had paid monetary
consideration to the tenant. Payment of rent, undoubtedly, is an essential
element of lease or sub-lease. It may be paid in cash or in kind or may have
been paid .or promised to be paid. It may have been paid in lump sum in
advance covering the period for which the premises is Jet out or sub-let or
D it may have been paid or promised to be paid periodically. Since payment of
rent or monetary consideration may have been made secretly, the law does
not require such payment to be proved by affirmative evidence and the court
is permitted to draw its own inference upon the facts of the case proved at
the trial, including the delivery of exclusive possession to infer that the
E premises were sub-let.

In Smt. Rajbir Kaur and Anr. v. Mis S. Chokesiri and Co., [1989]
SCC 19, this Court, speaking through Venkatachaliah, J (as His Lordship
then was) stated:

F "If exclusive possession is established, and the version of the
respondent as to the particulars and the incidents of the transaction is
found acceptable in the particular facts and circumstances of the case,
it may not be impermissible for the court to draw an inference that
the transaction was entered into with monetary consideration in mind.
It ·is open to the respondent to rebut this. Such transactions of sub-
G letting in the guise of licences are in their very nature, clandestine
arrangements between the tenant and the sub-tenant and there cannot
be direct evidence got. It is not, unoften, a matter for legitimate
inference. The burden of making good a case of sub-letting is, of
course, on the appellants. The burden of establishing facts and
H contentions which support the party's case is on the party who takes
JOGINDER SINGH SODHI v. AMAR KAUR [THAKKER, J.] 311

the risk of non-persuasion. If at the conclusion of the trial, a party has A
failed to establish these to the appropriate standard, he will lose.
Though the burden of proof as a matter of law remains constant
throughout a trial, the evidential burden which rests initially upon a
party being the legal burden, shifts according as the weight of the
evidence adduced by the party during the trial. In the circumstance of B
the case, we think, that, appellants having been forced by the courts
below to have established exclusive possession of the ice-cream vendor
ofa part of the demised premises and the explanation of the transaction
offered by the respondent having been found by the courts below to
be unsatisfactory and unacceptable, it was not impermissible for the
courts to draw an inference, having regard to the ordinary course of C
human conduct, that the transaction must have been entered into for
monetary considerations. There is no explanation forthcoming from
the respondent appropriate to the situation as found."

Again in Kala and Anr. v. Madho Parshad Vaidya, [1998] 6 SCC 573,
this Court reiterated the same principle. It was observed that the burden of D
proof of sub-letting is mi the landlord but once he establishes parting of
possession by the tenant to third party, the onus would shift on the tenant to
explain his possession. Ifhe is unable to dischaige that onus, it is permissible
for the court to raise an inference that such possession was for monetary
consideration.
E
We are in agreement with the observations in the above cases. In our
considered opinion, proof of monetary consideration by the sub-t•. nant to the
tenant is not a sine qua non to establish sub-letting.

In the case on hand, a finding is recorded by the authorities under the
Act that respondent No.2-appellant herein was found to be in exclusive F
possession of the property. He was staying separately and not with his father.
He was doing his independent business of photography. The explanation by
the tenant-respondent No. I as to how the respondent No.2-appellant herein
came to occupy the shop was that the lease was obtained by respondent No. I,
(father) for respondent No.2 (son), which was not believed by the authorities. G
In view thereof, by drawing an inference that the respondent No. I had sub-
let the suit property to respondent No.2, no illegality had been committed 'by
the authorities.

It was then contended by the learned counsel for the appellant that
respondent No.2 was the son of respondent No. I and since he was not a H
312 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A stranger, no presumption could be raised that he was a sub-tenant. We are
unable to uphold even that contention. In our judgment, for deciding the
question whether the tenant had created sub-tenancy, the relationship between
the tenant and sub-tenant is not material. There is no privity of contract
between the landlady and respondent No.2. He was, therefore, a 'stranger'
B to the landlady. She let the property to respondent No. I who was the tenant.
Respondent No. I was bound to occupy the property as per the rent note
executed by him wherein even undertaking was given by him that he would
not part with possession or allow any other person to occupy the property.
In spite of the rent note and undertaking, if without the written consent of the
landlady, respondent No. I had inducted respondent No.2 as his tenant or had
C parted with possession in favour of respondent No.2, who was staying
separately and yet found to be in exclusive possession of the shop, sub-
tenancy was established.

Reference in this connection may be made ·to a decision of this Court
in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta, [I988] I SCC 383.
D In that case, a finding was recorded by the trial court that the tenant had sub-
let the premises to his brother without the consent of the landlord and
accordingly an order of eviction was passed. The High Court, however, took
a different view observing that the so-called sub-tenant was brother of the
tenant and hence it was a case of licensee and not of sub-tenant. When the
E matter came to this Court, setting aside the order passed by the High Court,
this Court observed that there was ·'absolutely no warrant" for the reasoning
which weighed with the High Court. The tenant was not occupying the property
and had already shifted his residence to other place. It was, therefore, a clear
case of sub-letting. This Court, in the circumstances, allowed the appeal of
the landlord and passed an order of eviction.
F
It was also submitted that there was waiver on the part of the landlady
inasmuch as though she was aware that Mukand Singh was not in possession
and his son was doing business, not only that she allowed to occupy the
premises by the son but even continued to receive rent from Mukand Singh
as well as the appellant herein (Joginder Singh). She has, thus waived her
G right to get possession on the ground of sub-letting.

We are not impressed by the argument. Firstly, waiver is a question of
fact which must be expressly pleaded and clearly proved. No such plea had
been raised either by the tenant or by the 'sub-tenant' before the Rent
H Controller, before the Appellate Authority or .even in the High Court. Such
JOGINDER SINGH SODHI v. AMAR KAUR [THAKKER, J.] 313
question cannot be allowed to be raised for the first time in this Court. That . A
apart, the language of Section 13(2)(ii)(a) of the Act is clear and unambiguous.
It mandates that no tenant can sub-let the tenanted property or part thereof
without the written consent of the landlord. In the present proceedings, it is
not even the case of the tenant (deceased Mukand Singh) that he had obtained
'written consent' of the landlady to sub-let the shop to his son Joginder
Singh. On the contrary, his assertion that the property was taken by him for B
his son was not believed. Hence, order of eviction cannot be held illegal as
the doctrine of waiver cannot be applied. A bald plea of waiver cannot defeat
statutory provision made in larger public interest {Vide Mis Shalimar Tar
Products Ltd v. H.C. Sharma and Ors., [1998] 1 SCC 70; Pu/in Behari Lal
V. Mahadeb Dutta and Ors., [1993] 1 sec 629]. c
In our opinion, therefore, the order of eviction passed by the Rent
Controller and confirmed by the Appellate Authority as well as by the High
Court on the ground that the tenant had illegally sub-let the property needs
no interference.
D
In our view of the first question decided against the appellant herein,
we express no opinion on the second question raised by the learned counsel
for the appellant.

For the reasons aforesaid, the appeal deserves to be dismissed and is
accordingly dismissed. Interim relief granted earlier stands vacated. In the E
facts and circumstances of the case, however, there shall be no order as to
costs.

In view of the order passed in Civil Appeal No.5199 of 2003, no order
is necessary in interim application No.2 in Civil Appeal No.5199 of 2003 and
it stands disposed of. F
S.K.S. Appeal dismissed.