MS. CELINA COELHO PEREIRA & ORS. versus ULHAS MAHABALESHWAR KHOLKAR & ORS.

Citation: [2009] 15 S.C.R. 558 · Decided: 30-10-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE, RAJENDRA MAL LODHA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2009] 15 (ADDL.) S.C.R. 558 
A 
MS. CELINA COELHO PEREIRA & ORS. 
v. 
\-
ULHAS MAHABALESHWAR KHOLKAR & ORS. 
(Civil Appeal No. 7258 OF 2009) 
OCTOBER 30, 2009 
t 
B 
[TARUN CHATTERJEE AND R. M. LODHA, JJ.] 
Goa, Daman and Diu Building (Lease, Rent and 
~ 
l 
Eviction) Control Act, 1968 - s.22(2)(b)(i) - Eviction petition 
..,_,,.. 
) 
c - On the ground of sub-letting -
Tenant taking plea of 
partnership with the sub-tenant - Order for eviction by Rent 
controller and Tribunal - High Court in petition under Article 
227 of the Constitution, setting aside finding of courts below 
- On appeal, held: High Court was not justified in non-suiting 
D the landlord in exercise of jurisdiction under Article 227 -
.. 
Failure as regards pleadings not fatal - Pleadings in such 
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matters ought not be construed too technically - If the 
y 
partnership formed was for cancelling the sub-letting, Court 
is required to tear the veil of partnership - Constitution of India, 
E 
1950 - Article 227 - Pleadings. 
Rent Control and Eviction - Eviction on the ground of 
sub-letting - Discussed. 
Doctrine - Rule of 'secundum allegata et prob a ta' -
1-
F Applicability of. 
,,, 
Maxim - 'Secundum allegata et probata'-Applicabi/ity 
of. 
G 
Appellants-landlord filed petition for eviction against 
the tenant on the ground of sub-letting. Tenant denied the 
plea of sub-letting, stating that he had started the 
business in the name of a partnership firm of which he 
+ 
and his family members were the partners and the 
H 
558 
... 
I 
MS. CELINA COELHO PEREIRA & ORS. v. ULHAS 
559 
MAHABALESHWAR KHOLKAR & ORS. 
premises was exclusively in his possession. Rent A 
Controller held that sub-letting was established and 
directed the tenants to vacate the premises. Appeal 
against the order of Rent Controller was dismissed 
upholding the order of Rent Controller. In writ petition 
under Article 227 of the Constitution of India, High Court B 
set aside the orders of the courts below. Hence the 
present appeal. 
Allowing the appeal, the Court 
°""'( 
~ 
HELD: 1.1. In order to prove mischief of subletting as' c 
a ground for eviction under rent control laws, two 
ingredients have to be established, i.e. parting with 
possession of tenancy or part of it by tenant in favour of. 
a third party with exclusive right of possession; and that 
such parting with possession has been done without the 
D 
~ 
consent of the landlord and in lieu of compensation or 
y 
rent. [Para 28] (582-A-B] 
1.2. Inducting a partner or partners in the business 
or profession by a tenant by itself does not amount to 
E 
~ 
subletting. However, if the purpose of such partnership
1 
is ostensible and a deed of partnership is drawn to 
conceal the real transaction of sub-letting, the court may 
t 
tear the veil of partnership to find out the real nature of 
transaction entered into by the tenant. [Para 28] [582-C] 
F 
1.3. The existence of deed of partnership between 
tenant and alleged sub-tenant or ostensible transaction 
in any other form would not preclude the landlord from 
bringing on record material and circumstances, by 
adducing evidence or by means of cross-examination, 
G 
making out a case of sub-letting or parting with 
+-
possession in tenancy premises by the tenant in favour 
of a third person. [Para 28] [582-D-E] 
1.4. If tenant is actively associated with the 
H 
560 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. 
A partnership business and retains the control over the 
tenancy premises with him, may be along with partners, 
l"-
the tenant may not be said to have parted with 
possession. [Para 28] [582-E-F] 
B 
1.5. Initial burden of proving sub-letting is on landlord 
but once he is able to establish that a third party is in 
exclusive possession of the premises and that tenant has 
no legal possession of the tenanted premises, the onus 
shifts to tenant to prove the nature of occupation of such 
third party and that he (tenant) continues to hold legal 
y 
c possession in tenancy premises. [Para 28] [582-G] 
f;: 
1.6. Initial burden lying on landlord would stand 
I 
' 
discharged liy adducing prima facie proof of the fact that 
a party other than tenant was in exclusive possession of 
D the premises. A presumption of sub-letting may then be 
raised and would amount to proof unless rebutted. [Para 
.. 
28] [582-H; 583-A] 
'f 
2.1. High Court judgment is erroneous. It erred in 
E holding that the tenant wanted to examine one of the 
partners, but he was not permitted by t
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