SMT. RAJBIR KAUR & ANR. versus S. CHOKESIRI & CO.

Citation: [1988] SUPP. 2 S.C.R. 310 · Decided: 09-08-1988 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
c 
D 
SMT. RAJBIR KAUR & ANR. 
v. 
S. CHOKESIRI & CO. 
AUGUST 9, 1988 
[R.S. PATHAK, CJ. AND M.N. VENKATACHALIAH, J.] 
Civil Procedure Code, 1908: Order 26 rule 9, Order 39 rule 7 
and section 115-Commissioner appointment of-By Court-Notice to 
parties not necessary if purpose of appointment would be defeated or 
frustrated-Revisional Court to be reluctant to embark on independent 
reassessment of evidence and supplant its own conclusion. 
East Punjab Urban Rent Restriction Act, 1949: Sections 13 and 
15(5)-Tenant-Eviction on ground of sub-letting-Right to enjoyment 
of property to be for consideration-Concurrent finding with regard to 
exclusive possession-Whether amenable to reversal in revision. 
Tran>fer of Property Act, 1882: Section 105-Lease and 
licence-Distinction between-Determined by the law and not by the 
label parties choose to put upon it-Right to exclusive possession-
Determination of from acts done by grantee. 
E 
The appellants had granted a lease of commercial premises in 
favour of the respondent-company, who carried on the business in 
clothing and textiles in the demised premises. Later, the appellants 
moved an application under section 13 of the East Punjab Urban Rent 
Restriction Act, 1949 seeking eviction of the respondent inter alia on the 
ground that it had unauthorisedly and without the consent of the appel-
F 
!ants inducted two sub-tenants-a tailor and an ice-cream vendor-in 
two portions of the premises. The defence of the respondent in the 
written statement was that the maintenance of such booths had become 
a necessary adjunct of all big shops in modern shopping centres, and 
that the respondent remained in the exclusive possession of the demised. 
premises. 
G 
The appellants relied particularly on the Report and evidence of 
the Court-Commissioner who in his report substantially corroborated 
appellants' charge of sub-letting. On the other hand, the respondent 
relied upon the agreements entered into by it with the· alleged sub-
tenants which, according to it, clearly excluded any possibility of 
H 
sub-letting. The respondent also examined M.L. Sharma, (R. W. 3) a 
310 
RAJBIR KAUR v. S. CHOKESIRJ & CO. 
31 l 
senior architect fo Chandigarh Administration who produced the Plans 
(Ext. R. 4) relating to certain alterations in the demised premises. 
The Rent Controller, on an appreciation of the evidence, was 
persuaded to the view that while the allegations of sub-letting in favour 
of the tailor had not been established, the case of sub-letting so far as 
the Ice-cream parlour was concerned had clearly been established. The 
Rent Controller held that the evidence on record indicated the exclusive 
possession of M.S Kwality Ice Cream. The Rent Controlier further held 
that in the circumstances of the case it was also legitimate to draw an 
inference, and raise a presumption that monetary consideration alone 
had prompted the respondent into the transactions. 
The respondent filed an appeal before the District Judge, and the 
Appellate Authority affirmed the finding of the Rent Controller on the 
question of sub-letting in so far as the Ice Cream Parlour was con-
cerned. The Appellate Authority also found that even in the case of the 
tailor there was sub-letting. 
In Civil Revision, the High Court upon a re-appreciation of the 
evidence set aside the concurrent finding of the Courts below in regard 
A 
B 
c 
D 
to the element of exclusive possession and set-aside the order of eviction 
passed by the Courts below. The High Court relied on the agreements 
between the respondent and the sub-tenants and held that the condi-
tions prescribed in these documents did prima facie indicate that it was 
E 
a case of licences and not of snb-letting. The High Court took note of the 
procedural objection in regard to the appointment of the local Commis-
sioner without notice to the respondent, and was of the view that there 
were circnmstances to show that his report was not factually correct. 
On behalf of the appellants it was contended that (i) the High 
F 
Court was in error in interfering, in exercise of its revisional jurisdic-
tion, with the concurrent finding of fact recorded hy the courts below; . 
(ii) the reliance by the High Court on the evidence of R. W. 3 and Plans 
(Exhibit R. 4) on the point of exclusive possession was wholly misp-
laced; (iii) a finding of fact which was the result purely of appreciation 
of oral evidence by the trial court could not be interfered with b

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