1 – M/s Ever Shine Traders, (A proprietorship firm), through Shri R.N. Tandon, Proprietor v. 1 – M/s Ashirwad Theaters Pvt. Ltd
Case Details
1 2025:CGHC:3372 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 86 of 2007 1 – M/s Ever Shine Traders, (A proprietorship firm), through Shri R.N. Tandon, Proprietor, Shop No.4, 5, 6, Ashirwad Towers, Near Raj Talkies, GE Road, Raipur (Defendant No.2) ... Appellant versus 1 – M/s Ashirwad Theaters Pvt. Ltd,.(A Company incorporated under the relevant provisions of Companies Act, 1956) Principal Head Office, Amravati Maharashtra, Address for service C/o Raj Talkies GE Road, Raipur (CG) (plaintiff) 2 – M/s Ever Shine Trade Ltd., (A Company registered under the relevant provisions of Companies Act, 1956 registered office at Kolkata), through Shri PK Minocha, Director, R/o 5, Anupam Nagar, Raipur (CG) (defendant No.1) ... Respondent(s) For Appellant : Shri SK Kushwaha, Advocate. For Respondent : Shri Ashish Shrivastava, Sr. Advocate with Miss No.1 Hiya Sonchhatra and Shri Ashutosh Shrivastava, Advocates.
Legal Reasoning
Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.01.21 12:55:59 +0530 20/01/2025 : 2 1. At the outset, counsel for the appellant would submit that the appellant/defendant No.2 and respondent No.2/defendant No.1 are the same concerns, and Shri RN Tandon is the partner of respondent No.2. The subject property i.e. the shop Nos.4, 5 & 6 are situated at Ashirwad Towers, GE Road, Raipur and they have already vacated the said property, but respondent No.1/plaintiff is not refunding the security deposit of Rs.1,20,000/- (approximately) to them. As and when they receive the said amount, they will handover the keys to the respondent No.1/plaintiff. 2. On the other hand, learned Senior Counsel for respondent No.1/plaintiff submits that it is established from the facts available on record that the present defendant No.2 and defendant No.1 are different entities and counsel for the appellant has put a completely different story at this stage. He would further submit that the appellant is the only sub-tenant and such tenancy has not been in accordance with law. Therefore, the proposal which has been made by counsel for the appellant is not acceptable to respondent No.1/plaintiff, as per instructions received by him.
Decision
3. In view of the above, the proposal which has been made on 7.1.2025 is not acted upon, and the matter is heard finally. 4. This Appeal has been preferred under Section 96 of the CPC challenging the judgment and decree dated 7.5.2007 passed by the 7th Additional District Judge, Raipur in Civil Suit No.9A/2007, whereby it was held that sub-tenancy has been given unauthorizedly in favour of the appellant and the suit has been decreed in favour of the plaintiff. 5. Facts of the case are that respondent No.1/plaintiff had filed a civil suit 3 for ejectment from the shop Nos.4, 5 & 6 situated at Ashirwad Towers, GE Road, Raipur, by making averments, inter alia, that the said property was let out to defendant No.1/respondent No.2 and the said tenancy commenced from 1st August, 1986 for a period of 11 months and a condition of renewal has also been stipulated in favour of the tenant that he shall have an option to renew the lease for a period of 2 years. Rent of the said property has been fixed at Rs.3,847/- per month. It was pleaded that respondent No.2/defendant No.1 was not paying the rent regularly and he used to commit default. He was also required to pay an amount of Rs.12,000/- in respect of Municipal Corporation Taxes, as per the agreement. It was further pleaded that respondent No.2, without prior consent of the plaintiff, has let out the subject property to the appellant on sub-tenancy, which is not permissible. The suit was filed for eviction and arrears of rent of Rs.12,000/-, for damages of Rs.6,900/- and for notice & other expenses of Rs.5,440/-, and the suit was valued for Rs.70,911/-. 6. Respondent No.2/defendant No.1 in their written statement stated that the said concern has been dissolved way back and the said fact was in the knowledge of respondent No.1/plaintiff. It is further averred that the appellant is the proprietorship firm; and Shri RN Tandon is the Proprietor. It has been admitted that the subject shops i.e. the Shop Nos.4, 5 & 6 were given on monthly rent of Rs.1800/- to respondent No.2/defendant No.1 on 1.8.1986. After dissolution of the concern of defendant No.1, defendant No.2 is doing the business in the said shops 4 for the last 6 years, as tenant, which was within the knowledge of the landlord/plaintiff. It has been materially averred that defendant No.1 never gave the subject property to defendant No.2 without consent and permission of Shri Radheshyam Joshi (PW-1) i.e. representative of the plaintiff. It has also been averred that rent has been duly paid by way of cheque/s. Lastly, it was prayed that the suit be dismissed with cost of Rs.50,000/-. 7. The appellant/defendant No.2 has also filed the written statement in the similar lines, as pleaded by defendant No.1. It was averred that the appellant is in legal possession of the subject property and is regularly paying rent to the plaintiff. 8. On the basis of pleadings made by the parties, the trial Court has framed as many as 13 issues. 9. In order to prove its case, the plaintiff has examined Power of Attorney Holder Shri Radheshyam Joshi (PW-1) and exhibited 6 documents. The appellant/defendant No.2 has examined Shri RN Tandon, CEO of M/s Ever Shine Traders and admitted 3 documents viz. Ex.-D/1 to D/3. 10. After evaluating the evidence, the trial Court has decreed the suit in favour of the plaintiff. It was directed that the defendants shall handover the vacant possession of the subject property after 2 months and shall pay arrears of rent to the tune of Rs.3,847/- per month from the date of institution of suit i.e. 23rd August, 2001 till the date of delivery of vacant possession. 11. Learned counsel for the appellant would submit that the appellant is not the sub-tenant of respondent No.1/plaintiff. After dissolution of the 5 concern of defendant No.1, which was within the knowledge of the plaintiff and its Director namely, Ajay Rathi, the appellant became tenant with the consent, permission and knowledge of the plaintiff. The landlord/plaintiff has also accepted the rent for the last 6 years and monthly rent has also been deposited before the Civil Court Deposits @ Rs.3,847/-. Therefore, the findings recorded by the trial Court are perverse to the material available on record. Learned counsel for the appellant prays to allow the Appeal and set aside the impugned judgment. 12. On the other hand, learned counsel for respondent No.1/plaintiff would submit that as per the admitted pleadings of the defendants, the subject shops were handed over to respondent No.1 and the plaintiff has proved the fact that in violation of Section 14 of the CG Accommodation Control Act, 1961 (henceforth ‘the Act, 1961’), the original tenant without previous consent in writing of the landlord has created sub- tenancy. Therefore, the grounds under Section 12(1)(b) of the Act, 1961 have been duly proved and the trial Court has rightly decreed the suit in favour of the plaintiff. Reliance is placed in the matter of M/s Semec Leasing & Marketing Private Limited Vs. M/s Ashirwad Theater Private Limited & Another (SA No.79/2008, decided by this Court on 25.9.2019). 13. I have heard learned counsel for the parties at length and considered their rival submissions and also went through the record with utmost circumspection. 14. After going through the pleadings of the defendants in their written 6 statement, it appears that the subject shop Nos.4, 5 & 6 were given on tenancy to defendant No.1 and admittedly, as per the pleadings made by defendant No.2, after dissolution of the concern of defendant No.1, which was within the knowledge of the plaintiff, he became tenant and was regularly paying the rent. According to the pleadings made, both the parties have adduced their evidence. The plaintiff has examined Shri Radheshyam Joshi (PW-1), one of his representatives on the basis of power of attorney, whereas the appellant has examined one of his officers namely, RN Tandon (DW-1). 15. The law relating to creation of sub-tenancy is well settled. Section 14 of the Act of 1961 prohibits and restricts a tenant to sub-let 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 (b) transfer or assign his rights in the tenancy or in any part thereof.” 16. 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 sub- tenancy.—(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 sub-tenancy within one month of the 7 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.” 17. 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.” 18. 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: - 8 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 19. In the matter of M/s Semec Leasing & Marketing Private Limited, referred to above, the provision of Section 14 (1) of the Act, 1961 came for consideration and after discussing various judgments, the following was observed at paras-23 to 25:- “23. 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 others1. 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 1 (1988) 1 SCC 70 9 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. 6. … … … “... … ... However, sub-section (3) of Section 16 the premises after prohibits subletting of commencement of Act of 1958 without the 'previous' consent in writing of the landlord. The use of word '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." 7. 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. 10 Everyone has a right to waive and to agree to 13. 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. Smith2 it was held that physical possession was not sufficient, there must be legal possession. 24. 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 others3, Bajaj Auto Limited v. Behari Lal Kohli4 and Pulin Behari Lal v. Mahadeb Dutta and others5. 25. 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 2 (1926) 1 KB 198 3 (1989) 3 SCC 552 4 (1989) 4 SCC 39 5 (1993) 1 SCC 629 11 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. ...” 20. Reverting back to the facts of the present case, this Court is of the view that the trial Court has rightly come to the conclusion that without any previous consent in writing of the landlord/plaintiff, sub-tenancy has been created in favour of the appellant, which is impermissible in law. 21. As per the submission of learned counsel for the appellant, he is regularly paying the rent before the CCD. In the circumstances, it is directed that if any amount has been deposited, respondent No.1/plaintiff is entitled to receive the said amount. If total arrears has not been cleared at the rate of Rs.3,847/- per month from the date of filing of the suit till the delivery of vacant possession, respondent No.1/plaintiff is entitled to recover the same in appropriate execution proceeding. 22. On the basis of aforesaid discussion, this Court does not find any merit or substance in this Appeal. Accordingly, the findings recorded by the trial Court are affirmed, and the present Appeal deserves to be and is hereby dismissed, with no order as to costs. 23. A decree be drawn accordingly. Sd/- Judge (Deepak Kumar Tiwari) Barve