NIRMAL KANTA (DEAD) THROUGH LRS. versus ASHOK KUMAR & ANR.

Citation: [2008] 5 S.C.R. 588 · Decided: 28-03-2008 · Supreme Court of India · Bench: C.K. THAKKER · Disposal: Dismissed

Judgment (excerpt)

[2008] 5 S.C.R. 588 
~· 
A 
NIRMAL KANTA (DEAD) THROUGH LRS. 
v. 
ASHOK KUMAR & ANR. 
(Civil Appeal No. 7160 of 2005) 
B 
MARCH 28, 2008. 
[C.K.THAKKER AND ALTAMAS KABIR] 
Rent Control and Eviction: 
c 
East Punjab Rent Restriction Act, 1949 - S.13 - Eviction 
- Subletting - Tenant running cloth business in tenanted shop 
- Permitting tailor to sit in part of the shop with his sewing 
machine - Eviction of tenant sought on ground of sub-Jetting 
- Held: Main ingredient of sub-letting that tenant has parted 
with .exclusive possession has not been established - Tailor 
D only assisting tenant in his cloth business by helping 
customers to assess amount of cloth required for their .. 
particular purposes - Such activity did not give exclusive 
possession for that part of shop from where he was operating 
and where his sewing machine was affixed - Tailor merely a 
E licencee. 
The appellants-landlord filed a petition for eviction 
from the suit shop. On the ground of subletting and on 
other grounds. Rent Controller dismissed the petition. The 
F 
appellate authority allowed the appeal filed by landlord. 
The revision by tenant before the High Court was allowed 
on the finding that by permitting a tailor even on payment, 
,I..,. 
to sit in a part of the shop-room with his sewing machine 
while. retaining his possession and rights as tenant over 
the premises leased to him, the respondent no.1/tenant 
G did not create a sub-lease and the tailor could at best be 
called a licence. Hence the present appeal. 
-
Dismissing the appeal, the Court 
·\ 
HELD: 1. A sub-tenancy or a sub-letting comes into 
H 
588 
NIRMAL KANTA (DEAD) THROUGH LRS. v. ASHOK 
589 
KUMAR & ANR. 
existence when the tenant inducts a third party/stranger A 
to the landlord into the tenanted accommodation and 
parts with possession thereof wholly or in part in favour 
of such third party and puts him in exclusive possession 
thereof. The lessor and/or a landlord seeking eviction of 
. a lessee or tenant alleging creation of a sub-tenancy has B 
to prove such allegation by producing proper evidence 
to that effect. Once it is proved that the lessee and/or 
tenant has parted with exclusive possession of the 
demised premises for a monetary consideration, the 
creation of a sub-tenancy and/or the allegation of sub-
C 
letting stands established. [Para 15) [595-G; 596-A, B) 
2. The arrangement regarding the creation of a sub-
tenancy or grant of a sub-lease without the permission of 
the landlord has obviously to be done behind the scene 
to prevent the landlord from coming to learn of such D 
arrangement and it is only after the landlord finds that 
stranger or a third party, other than the tenant, was 
occupying the tenanted premises, does he become aware 
of the creation of such sub-tenancy or granting of such 
sub-lease. In the instant case, from the report of the Local E 
Commissioner it stands established that the respondent 
No.2, was, in fact, operating a feet-driven sewing machine 
from inside the shop-room comprising the tenanted 
premises. The same has been interpreted in different 
ways by the Rent Controller, the Appellate Authority and 
F 
thereafter by the High Court. From the evidence, it appears 
that the respondent No.2 had been accommodated by the 
respondent No.1 to assist him in his cloth business by 
helping customers to assess the amount of cloth required 
for their particular purposes. The said activity did not give G 
the respondent No.2 exclusive possession for that part 
of the shop room from where he was operating and where 
his sewing machine had been affixed. The aforesaid issue 
has been correctly decided both by the Rent Controller 
as also the High Court. The Appellate Authority has mis-
H 
590 
SUPREME COURT REPORTS 
[2008] 5 S.C.R. 
A construed the principles relating to parting with exclusive 
.,.. .... .,. 
poss;ession which is one of the key ingredients for arriving 
at a finding regarding the creation of a sub-tenancy or 
grant of a sub-lease. Since from the report of the Local 
Commissioner it only appears that the respondent No.2 
B was operating from a portion of the shop-room, it is quite 
clear that the respondent No.1 had not parted with 
exclusive possession of the tenanted premises as had 
been found both by the Rent Controller and the High 
Court. The main ingredient of the creation of a sub-
c tenancy and/or grant of a sub-lease not having been 
established, it may at best be said that the respondent 
No.2 was 

Excerpt shown. Read the full judgment & AI analysis in Lexace.