judgement:
ivil Appeal No. 2747 of 1988.
From the Judgment and Order dated 23.2.1988 of the Rajasthan High Court in S.B. Civil Second Appeal No. 77 of 1987.
Tapas Ray, S.K. Jain and P. Agarwal for the Appellant.
Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is against the judgment and order of the Division Bench of the High Court of Rajasthan dated 23rd February, 1988.
The appellant is the tenant in the suit premises.
The premises in question is a shop situated outside Delhi Gate, Udaipur, in the State of Rajasthan.
In the said shop the appellant carried on the business of opticals.
This fact is undisput ed.
He asserted that he was also running the business of advertisement by way of display of various advertisements (hoardings) 771 boards at various places in the city of Udaipur.
The case of the appellant was that though the appellant had taken the premises on rent on the basis of oral tenancy on 1st August, 1971, the rent note in fact was executed on 30th May, 1972.
The respondent had filed the suit for eviction of the ten ant appellant on three grounds, namely, (i) that the tenant appellant had parted with possession of the roof of the said shop room by putting up an advertisement board; (ii) by putting up such advertisement board, fixing the same on the roof of the said shop room with iron angles, the appellant had caused material alteration to the premises; and (iii) the appellant had defaulted in payment of rent.
On or about 20th April 1978, the trial court decreed the suit on the ground of default in payment of rent, material alter ation and subletting.
The appellant preferred an appeal before the learned District Judge, Udaipur, who remanded the case back to the trial court for trial on all the three issues, on the ground that the appellant had not been al lowed to cross examine the respondent or to adduce evidence in defence.
On remand, the trial court held that the appel lant had caused material alteration by fixing the board on.
the roof; had parted with possession of the roof by such fixing of the board; and had committed default in payment of rent.
Accordingly, a decree was passed against the appellant for causing material alteration and for parting with the possession of the roof but no decree was passed by the trial court on ground of default because the said default was held by the learned Trial Judge to be the first default.
The appellant thereafter filed first appeal against the said judgment and decree passed by the trial court on 9th Novem ber, 1984.
By the judgment and decree dated 20th March, 1987 the learned District Judge allowed the said appeal holding, inter alia, that by displaying the advertisement board the appellant had not caused any material alteration of the premises and display of such advertisements hoardings did not amount to parting with possession of the roof of the premises.
In respect of default, on an analysis of the dates of payment it was held that there was no default in payment of rent for six months.
The learned Trial Judge had held that the default was the first default, therefore, there could be no decree for eviction on this ground.
So even if the learned District Judge would have affirmed the findings of the Trial Court on the issue of default, there could not have been a decree in the said suit on the ground of de fault.
The plaintiff respondent preferred an appeal before the High Court.
The said appeal was allowed only on the issue of parting with possession holding that the display of the board amounted to parting with possession of the prem ises.
Accordingly, the decree for eviction under section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter mentioned as the 'Act ', was passed.
772 Section 13 of the said Act deals with the grounds for evic tion of tenants.
By clause (a), sub section (1) of the said section provides that out withstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable under the said Act unless it is satis fied, inter alia, that the tenant had neither paid nor tendered the amount of rent due from him for six months.
Sub clause (b) of subsection (1) of the said section makes the tenant liable to eviction if he has willfully caused or permitted to be caused substantial damage to the premises.
Clause (e) of sub section (1) of section 13 under which the decree in question, in the instant case, was passed provides as follows: "(e) that the tenant has assigned, sub let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or" as mentioned hereinbefore, the decree in this case was passed by the High Court under section 13(1)(e) of the Act on the ground that the appellant had parted with possession.
The High Court in the judgment under appeal has noted that the plaintiff appellant had not disputed that the advertise ment board was installed on the roof of the shop.
The High Court noted that the appellant has also not disputed that he was getting the rent for this board and the document which was tendered viz., Exhibit 6 showed that the Paramount Services had written a letter to the landlord respondent Gulam Abbas herein and the same had been accepted by the appellant.
The said exhibit 6 read as follows: "Shri Gulam Abbas Bhalam Wala, Udaipur.
Dear Sir, We wish to write that we have taken the site for putting up commercial board on the terrace of the shop of Saran Optician, Udaipur.
This site is with us for the last 1/2 year.
Yours faithfully, Paramount Serv ices, Sd/ Partner. ' ' 773 The High Court was of the view, that perusal of the document indicated that Paramount Services had installed that board on the terrace of the shop and the site was with them for the last six months.
The High Court further held that it transpired that the terrace of that shop had been parted away to the Paramount Services for installing the advertise ment board.
The High Court proceeded on the basis that exhibit 6, mentioned hereinbefore, showed that the site was with the Paramount Services and it has been admitted by the tenant appellant that he had charged the money for leasing out this site to the Paramount Services.
According to the High Court two factors were relevant in this case: (1) whether the site was with the Paramount Services for the last six months and (2) that the defendant had admitted that he had received the rent for this.
The High Court referred to the deposition of D .W. 1 Gopal Saran which was as follows: "USS BOARD PAR PRACHAR KE TEEN SALL KE PARDRAH SAU RUPAYE MAIN LETA THA JISMEN PAINTING AUR BOARD AUR LIKHAVAT KA KHARCH MERA THA" According to the High Court, these two factors established that the defendant had parted with part of the terrace to Paramount Services.
This according to the High Court, was wrong as it had been clearly prohibited in the lease deed exhibit 1, Clause 3 reads as under: "DUKAN KO LIPA POTA SAPPH ACHHI HALAT MEN RAKHUNGA AUR BAGAIR LIKHIT IJAZAT AAPKE KOI MAJID TAMIR NA KRAUNGA AUR NA DUSRE KISSI AUR KO MUNTKIL KAR SAKUNGA.
MAIN KHUD DUKAN PAR BAITHUNGA.
" The High Court found that the tenant appellant had mentioned that they would not part with the possession, notwithstanding that the tenant appellant had parted with the possession which was apparent, according to the High Court, from exhibit 6 and the statement of D.W. 1 that he had charged rent for installing this board.
These two factors went to show, according to the High Court, that the defend ant had parted with the possession of the part of the ter race so as to enable the Paramount Services to stall the board in the premises.
The Court accepted the submission on behalf of the respondent landlord that there was parting with possession and the landlord was entitled to a decree for eviction under section 13(1)(e) of the Act.
It may be mentioned that two other submissions were urged before the High 774 Court on behalf of the landlord respondent, namely, that the rent was tendered and that when it was refused by the land lord, the tenant had deposited the rent in the Court under section 19 A of the Act had not been established.
There was also the finding on the issue of material alteration and that was also not established by the respondent landlord.
But the High Court, in view of this finding under section 13(1)(e) of the Act, as set out hereinbefore, found it unnecessary to go into those reasons and passed a decree for eviction.
Aggrieved thereby, as mentioned hereinbefore, the tenant has come up in appeal to this Court.
We find a certain amount of confusion as to what was the actual state of affairs.
The pleadings of the plaintiff respondent, the landlord in connection with the allegations of parting with possession are set out in paragraphs 5, 6 and 8 of the plaint and these have been answered by the appellant in paragraphs 5, 6, 8 and 9 of the written state ment.
It may be appropriate at this stage to set out the same both in Hindi as well as in English.
Paragraph 5 is as follows: "Hindi Original: "5.
YEH KI PRATIVADI NE BINA VADI KO POOCHHE AVAM VADI KI ANUMATI PRAPAT KIYE BINA VIVADGRAST DUKAN KE UPAR CHHAT PAR ZITAR TRAKTAR KA BOARD LAGA DIYA HAl JO CHHAT PAR LOHE KE ANGLE MAIN FIX KIYA HUVA HAI." "In English: "5.
Without permission and consent of the plaintiff the defendant has put up the board of Jitter Tractors on the roof of the disputed shop in question which is fixed on iron angles on the roof. '" Paragraph 6 reads as under: "In English: "6.
The defendant has, without the permission and consent of the plaintiff given to the advertising agency the Board which has been displayed on the roof of the disputed shop taken by the Defendant from the Plaintiff on rent, in 775 respect of which the Defendant had no right. ' Hindi Original: "6.
YEH KI BOARD JO VIVADGRAST DUKAN JO KI PRATIVADI KE PASS VADI KI AUR SE KIRAYE PAR HAl, KI CHHAT PAR LAG RAHA HAl VAH VIGYAPAN (ADVERTISEMENT) KA BOARD HAI JISKO PRATIVADI NE VADI KI ANUMATI PRAPAT KIYE BINA ADVERTIS ING AGENCY KO LAGANE DE DIYA HAl JISKA KI PRATIVADI KO SWATEY KOYEE ADHIKAR NAHIN HAl. ' Paragraph 8 as reads as under: In English "8.
The defendant has no right to place the Board of the Advertising Agency on the roof of the shop without permission of the plaintiff." Hindi Original: "8.
YEH KI PARTIVADI KE KO BINA VADI SE POCCHHE DUKAN KI CHHAT PAR ADVERTISING AGENCY KO BOARD LAGANE DENE KA KOYEE ADHIKAR NAHIN HAI.
" Paragraph 5 of the Written Statement reads as follows: In English: "5.
With regard to paragraph 5 of the Plaint the defendant states that the Defendant had displayed a sign board on the roof of the disputed shop but it is false to state that any angle has been fixed or embedded on the wall of the shop or of the roof or on the floor of the roof.
The sign board has been placed without damaging the walls or the floor of the roof in any manner whatsoever.
The angles have not been embedded.
In putting up this sign board, there was no necessity of obtaining written permission of the plaintiff.
It was within the full knowledge of the Plain tiff and the Plaintiff never objected to the same, which means the 776 plaintiff had consented to the same." Hindi Original: "5.
VAD PATRA KE PAIRA 5 KE LIYE NIVEDAN HAI KE PRATIVADI NE EK SIGN BOARD VADGRAST DUKAN KI CHHAT PAR LAGAYA HAl PAR YEH MITHYA HAl KI DUKAN KI ATHVA CHHAT KI DIWAR ATHVA FARSH MAIN ANGLE LAGAYE HO VAH SIGN BOARD BINA DUKAN KI DIWARON ATHVA CHHAT KE FARSH KO KISI BHANTI HANI PAHUCHAE HUVE LAGAYA GAYA HAl.
GADA NAHIN GAYA HAI.
IS SIGN BOARD LAGANE MAIN VADI KO LIKHIT ANUMATI LENA AVASHAK NAHIN THA, VIASE VADI KE PURAN GYAN MAIN YEH BOARD LAGAYA THA TATHA AISA KARNE MAIN VADI NE KABHI APATTI NAHIN UTHAYEE, ARTHAT VADI KI AWAKRITI NAHI HAI.
" Para 6 of the written Statement reads as follows: "In English: "The allegations in paragraph 6 of the Plaint that the Board belonged to any other advertis ing agency is false.
the defendant himself has placed the said board in the normal course of his carrying on the business.
The defendant is using the said disputed shop on his own right for the purposes of carrying on his normal business." Hindi Original: "6.
VAD PATRA KA PAIRA 6 MAIN YEH MITHYA HAI ICE BOARD KISI ADVERTISING AGENCY KA LAGA HUVA HAI.
PRATIVADI SWAM NE VAH BOARD LAGAYA HAl TATHA APNA SADHARAN VAVASAYE KARTE HUVE LAGAYA HAl.
TATHA VADGRAST DUKAN KA PANE SADHARAN VAVSAYE MAIN HI UPYOG KAR RAHA HAl AVAM SADHI KAR KAR RAHA HAI.
" Para 8 of the Written Statement is as follows: 777 In English: "The Contents of para 8 of the Plaint are not admitted.
The Defendant has not allowed any body to put up the Board, but he has himself put up the same.
" Hindi Original: "8.
VAD PATRA KA PAIRA 8 SAVIKAR NAHIN HAl.
PRATIVADI NE BOARD, KISI KO LAGANE NAHIN DIYA HAl APITU SWAM LAGAYA HAl.
" Paragraph 9 of the Written Statement is as follows: "In English: "9.
The defendant denies all the allegations in paragraph 9 of the Plaint.
In particular the defendant states that the plaintiff has no right to bring the present suit of eviction which has been filed on false grounds.
The defendant has neither committed default in payment of rent nor he has allowed anybody to put up board on the shop, nor he has parted with possession of the lease hold property or any part thereof to anybody.
The defendant is in full control and possession (of the disput ed shop).
It may be mentioned that in the plaint the plaintiff has not alleged any act of sub letting by the defendant." Hindi Original "9. VAD PATRA KA PAIRA 9 SARVATHA ASWIKAR HAl.
VADI KO KOYEE SWATAV NAHIN HAl KI VAH MITHYA ADHARO PAR DUKAN KHALI KARVAYE NA TO PARTIVADI NE KOYEE CHOOK KI HAl, KIRAYA DENE MAIN UAR NA HI USNE DUKAN PAR KISI KO BOARD LAGANE DIYA HAl AUR NA HI KOYEE MUKTI BHOG KIRAYE LI HUEE SAMPATI KA PARTIVADI KE KISI BHI BHAG KA KISI KO BHI HYA HAl.
VAH PRATIVADI KE POORAN BHUGTI BHOG MAIN HAl.
" At the initial hearing before the trial court, namely, before the remand the plaintiff got himself examined as witness and the evidence 778 of plaintiff in examination in chief was recorded on 6.4.1979.
After recording the said evidence, the trial court recorded that the counsel for the defendant was absent and thereupon closed the case, without, however, entering into the question as to why the endorsement was made.
Against the decree of the trial court, the first appeal was filed before the learned District Judge and as stated hereinbefore, at the final hearing of the appeal, the first Appellate Court held that the defendant was not given adequate opportunity to either cross examine the plaintiff or to adduce his evidence and on that ground the order of remand was made.
The plaintiff landlord, however, did not say in Examination in chief that the board was fixed by anyone else than the defendant or that there was parting with possession of the roof of the shop room or any part thereof or by putting the said angles in the wail, which was again not admitted as correct by the appellant, any material altera tion was made.
However, a photograph of the board was pro duced by the plaintiff and the same was marked as exhibit 2.
After the case was remanded, the trial court directed the plaintiff to appear before the court and to subject himself to cross examination by the defendant and also to produce his evidence, if any.
In spite of several opportunities the plaintiff did not appear before the Court and submit himself to cross examination.
As the plaintiff neither submitted himself for further cross examination nor produced any other evidence or witness in support of the plaint the defendant led defence evidence and got himself examined.
The English translation of the said evidence of the defendant appellant was filed on behalf of the appellant at the heating of this appeal.
From the said evidence it would appear, he had stated, inter alia, as follows: "(a) I have affixed the Board on this shop for advertisement.
The said Board is affixed in cement pillars (should be pot) and for affix ing the said boards neither the roof nor the walls of the shop were dug; (b) The Board is affixed permanently and I advertise the business of parties and get its payment.
I have not parted with possession of any portion of the roof of the shop to anyone.
In 1974, I advertised for Bhatia at the Board in which I have written that I have zeator I have strength, a picture tractor was also made there I used to take Rs. 1500 for 3 years for advertisement out of which painting of Board, writing expenditure was mine.
779 CROSS EXAMINATION: (a) It is wrong to say that the Board is fixed on the roof of the shop.
I do not do business of tractor, but I deal in advertising busi ness.
Besides this I maintain 14 others boards in the city.
The above board is 10 ft.
x 4 ft.
At present Hanuman Vanaspati is advertised through the Board which was for the last 2 months prior to the Board was affixed.
(b) 14 Boards of Paramount Services are fixed prior to the year 1988 which are being main tained by me.
exhibit 6 is the letter of the said service.
I charge M/s Paramount Services Rs.500 per year.
" On the basis of the aforesaid, it was contended that it was the definite case of the defendant in Examination in chief, that the board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff.
It may be mentioned that the plaintiff had not subjected himself to crossexami nation in spite of the order of the Court after the remand, therefore, it would not be safe to rely on the examination in chief recorded which was not subjected to cross examina tion before the remand was made.
If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint.
This position appears estab lished from the facts on record.
When the plaintiff appeared for evidence in rebuttal he could have been cross examined on these points.
It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the Plaintiff had not chosen to support his plaint case, before the defendant went to the witness box.
There was no question of cross examining the plaintiff travelling beyond the evidence of the plaintiff given in examinationin chief and thereby giving an opportunity to make out a case in crossexamination.
It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with posses sion by putting up the hoarding.
In examinationin chief also he did not make out such a case and on the contrary his case was that it was that it was the defendent appellant who had put up the hoarding.
The plaintiff did not allege that the defendant appellant was not carrying on also advertising business.
It was submitted on behalf of the appellant that having refused to submit to crossexamination the plaintiff has made the evidence in examination in chief non est.
It was the case of the defendant that he was carrying on 780 the business of advertisement by putting up the hoardings of different parties.
The board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers.
Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else.
It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indi cate that there was parting of possession by him.
It was, however, submitted on behalf of the appellant that when the shop had been let out to the defendantappellant for carrying on business it was the fight of the defendantappellant to carry on the business.
It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession.
In the premises, it appears to us that for the purpose of disposal of this appeal it is necessary to consider: (i) whether the appellant was carrying on his own advertisement business? (ii) Even if so, whether such an act can be termed as parting with possession of the roof or any part thereof by the appellant in favour of the advertiser because by putting up such hoarding he is getting a return otherwise? (iii) The next question that arises is that if it is found that it was not a business of the appellant to carry on the advertising but the appellant had allowed up advertising agency to put up its advertising hoarding, then would such an act amount to parting with possession of the roof or any part thereof by the appellant? (iv) In any event, can any case or cause of action for the suit filed on 1974 on the basis of exhibit 6, namely, the letter dated January 20, 1977 of M/s. Paramount Services be maintained? On behalf of appellant it was contended by Shri Tapash Ray, counsel for the appellant, that the judgment and order of the High Court could not be sustained and in the facts and circumstances of the case, there could not be any evic tion order passed against the appellant by virtue of section 13(1)(e) of the Act.
Undisputedly the appellant was a ten ant.
Therefore, in terms of Section 13(1) of the Act, not withstanding anything contained in any law, no decree for eviction can be passed except on the grounds mentioned in the said section.
To sustain any order of eviction, it must be rounded only on one of the grounds mentioned in the said section.
Therefore, it has to be found out whether the respondent had been able to make out any of the grounds mentioned in Section 13 of the Act.
781 It was contended on behalf of the appellant that the advertisement board had been put up by the appellant as part of his business and he had charged certain expenses in respect of the same and that, it was urged, was the finding of the courts below and the High Court was in error in holding that there was any parting with the possession.
It was submitted that simply the display of advertisement board on the disputed premises did not amount to parting with possession of the premises.
The High Court was wrong, it was urged, in accepting the plea of the respondent of parting with possession only on the basis of the letter dated 20th January, 1977 (exhibit 6).
The learned District Judge in the first appeal had accepted that there was no parting of possession.
The High Court, on the other hand, in the judg ment in appeal relying on exhibit 6 came to the conclusion that the appellant was getting rent for this board and the appel lant had accepted document exhibit 6 which Paramount Services had written to the appellant.
The High Court was wrong, it was submitted on behalf of the appellant, that exhibit 6 clearly showed that Paramount Services had installed this board on the terrace of the shop and the shop was with them for six months.
The learned District Judge on an analysis of the evidence came to the conclusion that there was no parting with possession.
The High Court on an analysis of the same evidence came to the conclusion that there was.
It is, therefore, necessary as the learned District Judge did, to consider what was the evidence before the trial court.
The plaintiff had given a statement before the trial court that a board of Paramount Advertising Agency was fixed over the disputed shop which was installed without asking him and that was of the size of 10 ' x 8 '.
At the time of filing the suit there was board of Zitter and now it is of Maharaj Vanaspati.
After making holes in the wall, it had been fixed with cement with the help of iron angles.
On the other hand, the defendant, Gopal Sharan, had stated that he had fixed the board of advertisement over the disputed shop which was fixed with cement by boring holes.
For fixing the board the walls had not been dug.
The board had been fixed on a tempo rary place on which he used to make advertisement of the business of the parties on payment.
It was the definite case in defence of the tenant that roof of the disputed shop has not been given to anyone.
In cross examination, he admitted that in 1974 advertisement of Shri Bhatia was done on the board and for the advertisement of board he took Rs. 1500 for three years.
The expenses towards the painting and fixing the board and writing were met by him.
The board of his shop was fixed below the front of his shop in the name of Sharan Optician, the photo of which is exhibit 2.
The tenant had given the receipt of Rs. 1500 to Bhatia.
It was the definite case of the tenant that he dealt with the business of advertisement and there were 14 more boards in 782 the city run by him.
It was stated that he took Rs.500 per year for 15 boards from Paramount Services.
In the photo graph, exhibit 2, one board of the defendant was fixed in the name of Sharan Optician on the disputed shop and above it there was advertisement board which was of a tractor and fixed in front of the roof.
The tenant had clearly stated that while fixing the board he did not bore the roof and the same had been fixed with the help of cement.
On the other hand, it was stated by the landlord that it was fixed in the wall with the help of angles but this fact has not been supported by any other evidence.
The learned District Judge came to the conclusion that the board was fixed to the front of the side of the roof of the disputed shop.
The roof of the disputed shop had not been bored nor any holes had been made in the wall.
In these circumstances, the learned Dis trict Judge came to the conclusion that there was no altera tion of the premises or damage.
The learned DistriCt Judge considered the question and the arguments that the defend ant appellant was not doing the work of advertisement and he had the business of spectacles and he had let out the space on rent for fixing the board on the roof and that he had got a board fixed there from which it was clear that he had parted with the possession of the space on the roof and he had further given it on rent.
Emphasis was laid on behalf of the respondent landlord on exhibit , it may be men tioned, is subsequent to the accrual to the cause of action.
The suit was filed in is dated 20th January, 1977.
Considering the aforesaid contentions and the position in law, the learned District Judge came to the conclusion that by exhibit 6 no portion of the disputed shop was given to the exclusive possession of the advertising agency or the defendant had not divested itself of any part of the roof.
Simply by displaying the advertisement board on any portion of the roof, it could not be said that the possession had been delivered to the company to which the board belonged, according to the learned District Judge.
He further held that the tenant continued to be in possession thereof.
In such circumstances, it cannot be proved on the basis of the record, the learned District Judge came to the conclusion, that the tenant had parted with the possession.
In this connection, it may be appropriate to refer to the deposition of Gopal Saran, the defendant appellant before the trial court.
He had stated that he had put up his board on the shop for advertisement purpose.
The board had been put in cement pillars and by putting up the said board neither the roof nor the wall had been dug.
The board it was stated was permanently fixed and the tenant asserted that: "I advertise the business of the parties from time to time on payment.
I have not parted with the possession of the shop or of the roof or any 783 part thereof.
" The tenant further stated that in "1974 I advertised for Bhatia on this board in which I had written that I have zeator I have strength, a picture tractor was also made there.
I used to take Rs. 1500 for three years for advertisement out of which painting of board, writing ex penditure was mine.
The board of my shop as Sharan Opticals is fixed on the front of the shop".
It appears on an analy sis of the evidence that the correct position in law, as established before the learned District Judge, was that the tenant used to carry on apart from opticals business, the business of advertising and for that he used to charge in the manner indicated therein.
He used to charge certain amount of money.
The question is whether by so doing, the tenantappellant has assigned, sub let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord.
It is undisputed that whatever has happened has happened without the permis sion of the landlord.
On the facts found, it cannot be said or even argued that there was any assignment by the tenant, "Assignment", it has been stated in Black 's Law Dictionary, Special Deluxe Ed., p. 106, "is a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein".
It has further been stated as "The transfer by a party of all its rights to some kind of property, usually intangible property such as rights in a lease, mortgage, agreement of sale or partner ship.
" It has to be examined whether there was sub letting or otherwise parting with possession in terms of Sec. 13(1)(e) of the Act.
In this connection, it may be appropriate to refer to the deposition of the tenant, wherein he had stated: "USS BOARD PAR PRACHAR KE TEEN SALL KE PANDRAH SAU RUPAYE MAIN LETA THA JISMEN PAINTING AUR BOARD AUR LIKHAVAT KA KHARCH MERE THA.
" The above, in our opinion, indicates that the board was used for publicity and paintings and other expenses were of the tenant.
Therefore, it was the tenant who was carrying on the business.
The learned trial Judge has noted the evidence on this.
The learned trial Judge in his judgment at page 96 of the paper book had observed that the defendant in his written statement had admitted about the fixation of sign board on the shop.
But the board had been displayed by not fixing anything on the wall or any angles on the roof.
The plaintiff landlord 784 had not submitted any evidence but the defendant tenant in his evidence had admitted that he had fixed the board in the wails of the cement which was fixed permanently, and he fixed the board time to time during the course of his busi ness of advertisement.
The defendant further admitted that in 1974, he had advertised the board of Bhatia in which he had written that he had a tractor and the picture of tractor was made on the board.
These in the learned trial Judge 's Judgment as well as the deposition of the tenant appellant, in our opinion, conclusively, establish that it was the tenant who was carrying on the business of advertisement by advertising the advertisements of different traders.
If that is the position, then in this situation, can it be said that there was either any assignment, sub letting or otherwise parting with possession.
Shri Tapash Ray, counsel for the appellant submitted that there was not.
Shri Rajinder Sachhar, on behalf of the landlord submitted that there was.
Reliance was placed by Shri Tapash Ray on the observations of Farwell, J. of Eng land in Stening vs Abrahams, [1931] 1 L.R. Chancery Division 470.
There the Chancery Division of the High Court of Eng land was concerned in that case whereby the lessee 's cove nant was not to "part with the possession of the demised premises or any part thereof ' and it was held that it was broken only if the lessee entirely excluded himself from the legal possession of the part of the premises.
In the facts of that case a seven years ' exclusive licence to erect an advertisement board against the front wall of the lessee 's house followed by its erection was held not to be a breach of the above covenant.
Farwell, J. in his judgment at page 473 of the report considered the question as to whether the defendants had broken the covenant against parting with possession of any part of the premises.
The plaintiffs therein had stated that by giving the A.A. Company "the right to use the front of the wall for an advertisement hoarding", the defendants had "parted with the possession of that front and 3 inch stratum of air outside it.
" The learned Judge noted that it was difficult to define the meaning of parting with possession generally.
It must always be a question of fact and the construction of the particular agreement in each case and it cannot be determined by look ing at the document alone.
The learned Judge after disclaim ing any attempt to define the meaning of parting with pos session generally and reiterating that it must always be a question of fact and construction of the particular argument in each case observed in an instructive passage at page 473 of the report as follows: "But in my view a lessee cannot be said to part with the 785 possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part.
If there is anything in the nature of a right of concurrent user there is no parting with possession.
Retention of a key may be a nega tive indicium, and the authorities on the whole show that nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to a parting with possession.
The fact that the agreement is in form a licence is immaterial, as a licence may give the licensees exclusive a right to the legal possession as to amount to a parting with possession.
How does the present licence exclude the defendants from any part of the premises? It no doubt gives the licensees the exclusive right to use the wall for an advertisement hoarding.
No one, including the defendants, can use the wail for that purpose.
On the other hand the defendants remain to a large extent in possession of the wall.
" It was contended in that case that the front of the wall was wholly in the control of the licensees.
That is not wholly the true view, Justice Farwell observed.
The right of the licensees to put up their advertisement hoarding did not prevent the defendants from using the wall so long as they did not interfere with their licensees.
Merely giving the licensees a right to use the wall for a particular purpose was not parting with possession within the covenant, in that case it was held.
On the other hand, on behalf of the landlord Sree Ra jinder Sacchar, referred to the decision of the King 's Bench Division of the High Court of England in Gee vs Hazleton and Others, [1932] 1 King 's Bench Division 179.
There a statuto ry tenant of a dwelling house and land had granted a licence for seven years at an annual rent to a bill posting company to erect advertisement hoarding on part of the land.
The company was granted free and uninterrupted access to "the advertising position" for bill posting, etc., purposes.
It was held in appeal from the County Court decision that although the document did not constitute the grant of a sub lease, but only of a licence, the said part of the tenant 's premises had ceased to be within the protection of the Rent Restriction Act because it was used for the busi ness purposes by the other statutory tenant of the whole and the landlord was entitled to possession of that part.
It may be stated that the principle of the aforesaid decision of Gee vs Hazleton (supra) is not quite 786 relevant for the present purpose.
In that case, the subject matter was a dwelling house with huge land around it let out for residential purpose.
There the tenant had let out a part of the land to an advertising agency for carrying on commer cial activities and the tenant was charging an amount which was by far more than the total amount which she was paying as rent for the entire premises to the landlord.
This factor was taken with the main factor that the portion of the land given to the advertising agency in that case was a grant of licence by the tenant in favour of the advertising agency giving the advertising agency exclusive possession in that land to the exclusion of the tenant.
Therefore, in that case, the Court held that there was parting with legal possession in favour of the advertising agency not because of realization of amount by the tenant more than the rent paid by her but really because on the fact it was found that exclusive possession was given to the said advertising agency of a portion of the residential unit to use for commercial activity.
In that case, possession given to the advertising agency was exclusive with the right to include advertising agency and also the right to exclude others including the tenant herself.
The proposition of law laid down in Stening vs Abrahams (supra) was approved in Gee vs Hazleton (supra).
In this connection, a reference may be made to the observations of Lord Justice Scrutton at page 185 of the report, where the learned Lord Justice had ob served as follows: "I can conceive in some advertising cases, cases of advertising boards, that different views may be taken when the advertising sta tion consists of a board put on a dwelling house.
There the paramount use of the wall is as the wall of the dwelling house; and there is also a difficulty in defining what one gets possession of when the possession granted is that of an advertising station attached to a wall.
Here there is no difficulty of that sort." Lord Justice Slesser at page 192 of the report referring to the Stening vs Abrahams (supra) noted the view that the exclusive right to legal possession could amount to parting of possession.
It is interesting to note in that case before the court Mr. A.T. Denning, as Lord Denning then was, had appeared for the landlord and had contended that if the defendant had herself used this portion of the premises for bill posting she would have been within the protection of the Rent Restriction Acts but the defendant had let it for business purposes to some one else and as such she would not be protected as to that portion.
That is not the position here.
Furthermore, under the Rajasthan Act, such kind of user does not take away tenant 's rights.
Under the said Act, 787 the tenant must be guilty either of an assignment or sub letting or otherwise parting with possession either of the whole or any part of the business without the permission of the landlord.
In this, there was no assignment.
Sub letting means transfer of an exclusive right to enjoy the property in favour of the third party.
In this connection, reference may be made to the decision of this Court in Shalimar Tar Products vs H.C. Sharma & Others, ; where it was held that to constitute a sub letting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was sub letting was substantially a question of fact.
In that case, a reference was made at page 77 of the report to the Treatise of Foa on Landlord and Tenant, 6th Edition, at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not so long as he retains the legal posses sion himself, a breach of covenant.
In paragraph 17 of the report, it was observed that parting of the legal possession means possession with the right to include and also right to exclude others.
In the last mentioned case, the observations of the Madras High Court in Gundalpalli Rangamannar Chetty vs Desu Rangiah, AIR 1954 Madras 182 were approved by this Court in which the legal position in Jackson vs Simons, were relied upon.
The Madras High Court had also relied on a judgment of Scrutton L.J. in Chaplin vs Smith, at page 211 of the report where it was said: "He did not assign, nor did he underlet.
He was constantly on the premises himself and kept the key of them.
He did business of his own as well as business of the company.
In my view he allowed the company to use the prem ises while he himself remained in possession of them.
" This position was also accepted in Vishwa Nath vs Chaman Lal, AIR 1975 Delhi 117 wherein it was observed that parting with possession is understood as parting with legal posses sion by one in favour of the other by giving him an exclu sive possession to the ouster of the grantor.
If the grantor had retained legal possession with him it was not a case of parting with possession.
In this connection, reference may be made to the observations of this Court in Madras Banga lore Transport Co. (West) vs Inder Singh and Others, wherein the observations of the Delhi High Court had been approved.
The concept of parting with possession in private contracts between 788 the landlord and tenant was also known in India and it means parting with legal possession to the exclusion of the gran tor himself.
In this connection, the observations of this Court in Dr. Vijay Kumar and Others vs M/s Raghbir Singh Anokh Singh, may be referred to.
There the Rent Controller had found that the appellants had parti tioned the shop in question in two portions.
The two por tions were demarcated by a wooden partition wall.
In one portion there was the clinic of the first appellant land in the other portion, the other appellant was carrying on the business of sale and purchase of motor cars.
The wooden partition wail had divided the single shop into two parts so that there were now two doors, one in the portion in the occupation of the first appellant, and the other portion in occupation of the other appellant.
One could not go directly from one portion to the other on account of the wooden partition wail.
The first appellant locked his portion.
On these findings, the Rent Controller had held that the second and third appellants were in exclusive possession of their portions.
Hence he came to the conclusion that the first appellant had parted with the possession of his portion to them.
The Rent Controller did not accept the plea of the appellants that the business which was being carried on in their portion was the joint business of the appellants.
The first appellant was assessed to income tax.
He had never shown the income from the motor business in his income tax returns.
The appellants did not produce the account books.
The Rent Controller accordingly held that the plea of joint business had not been established.
It was argued before this court that the first appellant being the father of the other two appellants established them in business and permitted them to occupy a half portion of the shop for that purpose.
As a father, it was submitted, it was natural for him to establish his sons in life.
In short, the argument was that the second and third appellants were occupying the half portion with his permission.
This Court held that that was a plausible argument but they were unable to entertain this at a later stage in the Supreme Court and further held that the new plea was not a pleading of law but was a plea in fact.
In B.M. Lall (dead) by L.Rs.
vs Dunlop Rubber & Co. Ltd.; , a distinction between the lease and licence was emphasised.
See the observations at page 27 of the report.
There was in the facts and circumstances of the case no grant of interest in land in favour of the advertis er.
In Rajbir Kaur vs M/s. section Chokosiri and Co. (AIR it was emphasised that it was the operative intention which is important.
789 In Shri Dipak Banerjee vs Smt.
Lilabati Chakroborty, 4 Judgment Today it was reiterated that in order to prove tenancy or sub tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, the right must be in lieu of payment of some compensation or rent.
In this case, the tenant or the sub tenant did not have any exclusive posses sion or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation, on the basis of the facts as indicated herein before.
From the aforesaid, it appears to us that the question whether there is a tenancy or licence or parting with pos session in a particular case must depend upon the quality of occupation given to the licensee or the transferee.
Mere occupation is not sufficient, in our opinion, to infer either sub tenancy or parting with possession.
In Associated Hotel of India Ltd., Delhi vs S.B. Sardar Ranjit Singh, ; it was held on the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is whether the landlord retained control over the apartment.
Similarly, it was held by this Court in Smt.
Krishnawati vs Shri Hans Raj, [1974] 1 SCC289 that sub letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee.
If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owners has let out that part of the premises.
Sree Sachhar sought to argue that in consider ing the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwell ing house and not to protect a person who is not the resi dent of dwelling house but is making money by sub letting it.
In our opinion, however, having regard to the quality, nature and degree of the occupation of the transferee and the facts found, it cannot be said that either there was any assignment or sub letting or parting with possession to such a degree by permitting the hoarding that the tenant had lost interest.
He was using this premises for his benefit.
Unless the tenant has infarcted the prohibition of the Act, he is not liable to be evicted.
The case rests on the express provision of the Act and there is no scope to explore the latent purpose of the Act.
In the premises, the High Court 's order of eviction cannot be upheld.
As no question of non payment has been found by the trial 790 court and the learned District Judge and there is no finding of any material alteration, in our opinion, the order for eviction cannot be sustained.
The appeal, therefore, must be allowed.
The appeal is allowed and the order for eviction is set aside.
In the facts and the circumstances of the case, however, the parties will pay and bear their own costs.
N.V.K. Appeal al lowed.

summary:
The respondent Landlord filed a suit for eviction against the appellant tenant on 3 grounds, namely, (1) that the tenant had parted with possession of the roof of the shop let out to him by putting up an advertisement board, (ii) by fixing the advertisement board on the roof of the shop with iron angles, the tenant had caused material alter ation to the premises, and (iii) the tenant had defaulted in the payment of rent.
The tenant asserted that though he was carrying on optical business in the shop he was also running the business of advertisement by way of display of various advertisements (hoardings) hoards at various places in the city.
The Trial Court decreed the suit on the ground of default in payment of rent, material alteration and sub letting.
The appellant preferred an appeal and the District Judge remanded the case back to the Trial Court for trial on all issues, on the ground that the appellant had not been al lowed to cross examine the respondent or to adduce evidence in defence.
On remand, the Trial Court held that the appellant had caused material alteration by fixing the board on the roof, had parted with possession of the roof by such fixing of the board, had committed default in payment of rent, and passed a decree for eviction against the appellant for causing material alteration and for parting with the possession of the roof.
No decree was however passed on the ground of default, because the default was held to be the first de fault.
768 The appellant filed an appeal, and the District Judge allowed the appeal on the ground that by displaying the advertisement board, the appellant had not caused any mate rial alteration of the premises and that by displaying such advertisement board did not amount to parting with posses sion of the roof of the premises.
With regard to default, on an analysis of the dates of the payment, the District Judge held that there was no default in payment of rent for six months, but held that the default was the first default and consequently there could be no decree for eviction.
The respondent preferred an appeal before the High Court.
The appeal was allowed only on the issue of parting with possession, holding that the display of the advertise ment board amounted to parting with possession of the prem ises.
The High Court noted that the appellant had not dis puted that the advertisement board was installed on the roof of the shop and that he was getting the rent for this board, and the document which was tendered, viz: Exhibit 6 showed that the company Paramount Services had written a letter to the respondent landlord that they had installed the board on the terrace of the shop and the site was with them for the last six months.
The High Court accordingly concluded that there was parting with possession by the tenant, and the landlord was therefore entitled to a decree for eviction under section 13(1)(e) of the Act.
In view of this finding under section 13(1)(e) of the Act, the High Court held it was unnecessary to go into the other grounds and passed a decree for eviction.
In the appeal by the tenant to this Court on the ques tions: (1) Whether the appellant was carrying on his own advertising business? (2) Whether such an act can be termed as parting with possession of the roof or any part thereof by the appellant in favour of the advertiser because by putting up such hoarding, he was getting a return? (3) If it is found that it was not a business of the appellant to carry on the advertising, but the appellant had also an advertising agency to put up its advertising board then would such an act amount to parting with possession of the roof or any part thereof by the appellant? (4) In any event can any case or cause of action for the suit filed in 1974 on the basis of Exhibit 6 a letter dated January 20, 1977 be maintained? Allowing the appeal and setting aside the order of eviction, the Court.
HELD: 1.
Under the Rajasthan Premises (Control of Rent and Eviction) Act.
1950 the tenant must be guilty either of an assignment or 769 sub letting or otherwise parting with possession either of the whole or any part of the business without the permission of the landlord.
[787A] 2(a) Sub letting means transfer of an exclusive right to enjoy the property in favour of the third party, [787B] 2(b) The concept of parting with possession in private contracts between the landlord and tenant was also known in India and it means parting with legal possession to the exclusion of the grantor himself.
[787H; 788A] Stening vs Abrahams, [1931] 1 L.R. Chancery Division 470, referred to.
Shalimar Tar Products vs H.C. Sharma & Others, ; ; Gundalpalli Rangamanner Chetty vs Desu Rangiah, AIR 1954 Madras 182; Jackson vs Simons, and Chaplin vs Smith, , referred to.
Gee vs Hazleton and Others, [1932] 1 King 's Bench Divi sion 179, distinguished.
Vishwa Nath vs Chaman Lal, AIR 1975 Delhi 117; Madras Bangalore Transport Co. (West vs Inder Singh and Others, ; Dr. Vijay Kumar and Others vs M/s. Raghbir Singh Anokh Singh ; B.M. Lal (dead) by L.Rs.
vs Dunlop Rubber & Co. Ltd., ; ; Rajbir Kaur vs M/s. section Chokosiri and Co., ; and Shri Dipak Banerjee vs Smt.
Lilabati Chakroborty, 4 Judgment Today , referred to.
In the instant case, on the facts found, it cannot be said or even argued that there was any assignment by the tenant.
The tenant or the sub tenant did not have any exclu sive possession or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation.
Having regard to the quality, nature and degree of the occupation of the transferee, it cannot be said that either there was any assignment or sub letting or parting with possession to such a degree by permitting the hoarding that the tenant had lost interest.
He was using this premises for his benefit.
Unless the tenant has in fracted the prohibition of the Act, he is not liable to be evicted.
1789B, G] 3.
The question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality 770 of occupation given to the licensee or the transferee.
Mere occupation is not sufficient, to infer either sub tenancy or parting with possession.
[786A] Associated Hotel of India Ltd. Delhi vs S.B. Sardar Ranjit Singh, ; and Smt.
Krishnawati vs Shri Hans Raj, , referred to.
The case rests on the express provision of the Act and there is no scope to explore the latent purpose of the Act.
[789G] 5.
The plaintiff landlord had not subjected himself to crossexamination in spite of the order of the court on remand.
It would, therefore, not be safe to rely on the examination in chief which was not subjected to cross exami nation before the remand was made.
If that is so, it will appear that there is no evidence of the plaintiff in respect of the allegations in the plaint.
There was no question of cross examining the plaintiff travelling beyond the evidence of the plaintiff given in examination in chief and thereby giving an opportunity to make out a case in cross examina tion.
It therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding.
[779D G]


judgement:
ivil Appeal No. 912 of 1989.
From the Judgment and Order dated 11.5.1988 of the Allahabad High Court in Misc.
W.P. No. 7886 of 1985.
Yogeshwar Prasad and Mrs. Shobha Dikshit for the Appellant.
758 Satish Chandra and Madan Lokur for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
This appeal arises out of a suit filed by respondent (plaintiff) landlord in the Court of Judge, Small Causes, Gorakhpur, for eviction of the appellants (defendant) tenant from the house in question on the ground of failure to pay the rent and for realisation of arrears of rent and elec tricity charges amounting to Rs.2,560.60.
It was pleaded that the tenant was to pay a monthly rent of Rs.70 apart from Rs.3 per month as water and electricity charges and was in arrears since July, 1979 which he failed to pay.
The appellant contested the suit mainly on the ground that the rate of rent was not Rs.70 per month but it was only Rs.40 and besides that he was provided with furniture by the landlord for which he was paying Rs.30 per month.
His case further was that some time after the tenancy commenced, he returned the furniture.
The Judge, Small Causes Court, by his judgment dated 10th.
November, 1983, dismissed the suit holding that the rate of rent was Rs.40 per month and as such the appellant was not a defaulter.
The respondent filed a revision which was allowed by the Additional District Judge, Gorakhpur.
The Revisional Court held that the rate of rent was Rs.70 per month.
The appellant filed a writ petition against the revisional order before the Allahabed High Court.
The High Court allowed the writ petition, quashed the revisional order and remanded the case for deciding the revision peti tion afresh.
Thereafter, the Revisional Court again allowed the revision and set aside the judgment of the Trial Court and ordered ejectment.
The appellant again challenged the revisional order by way of a writ petition before the Alla habad High Court but the same was dismissed.
Hence this appeal.
The Trial Court primarily relied upon documents 39/C and 40/C produced by the defendants.
Document 39/C is a receipt by the plaintiff wherein details of Rs.73 are given.
It is clearly mentioned in the receipt that Rs.40 were towards house rent, Rs.30 towards furniture charges and Rs.3 water and electricity charges.
The plaintiff admitted the contents of receipt 39/C but he explained that Rs.30 towards furni ture charges were mentioned at the request of the defendant.
The plaintiff strongly relied upon the rent note 97/C where in monthly rent of the house was mentioned at Rs.70.
The Trial Court rejected the rent 759 note on the ground that the same was not signed by the defendant.
Basing its findings on the receipt 39/C, the Trial Court dismissed the suit.
The Revisional Court, on the other hand, found force in the contention of the plaintiff that the rent note 97/C was signed by the defendant.
It was held that the admission, if any, of the plaintiff in receipt 391C is contradicted by the rent note 97/C and as such cannot be taken into consideration.
The Revisional Court thus differed from the Trial Court and ordered ejectment.
Before us, the counsel for the appellant Shri Prasad contends that in the face of clear admission of the respond ent in the receipt 39/C the rent of the house was Rs.40 per month.
He further contents that the rent note, even if taken into consideration, has been explained by the receipts 39]C and 40/C.
According to him Rs.70 per month mentioned in the rent note has been explained in the receipts to be Rs.40 as house rent and Rs.30 for the furniture.
We find force in the contention of the learned counsel.
In the face of clear admission by the respondent in the two receipts the finding of the Revisional Court to the effect that the monthly rent was Rs.70 is erroneous.
Faced with this situation Shri Satish Chandra, learned counsel for the respondent invited our attention to Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (here inafter called 'the Act ') and contends that the tenancy was for a furnished building and as such failure to pay even Rs.30 in respect of furniture would attract the provisions of Section 20(2)(a) of the Act and the appellant is liable to be ejected.
Section 3(i) and Section 20(2)(a) of the Act are as under: "Section 3(i)"building", means a residential or nonresidential roofed structure and in cludes (i) any land (including any garden), garages and outhouses, appurtenant to such building; (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof.
"Section 20(2)(a).
"that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand." 760 Shri Satish Chandra contends that definition of building under Section 3(i) includes any furniture supplied by the landlord for use in such building and as such non payment of part of the rent meant for furniture would amount to arrears of rent and the appellant having failed to pay the same is liable to be ejected.
In other words, he contends that it was a furnished house which was let out to the appellant.
He also contends that tenancy being of a furnished house, the tenant could not under law unilaterally surrender part of the tenancy by returning the furniture.
There may be some force in the abstract proposition of law canvassed by Shri Satish Chandra on the basis of Sections 3(i) and 20(2)(a) of the Act, but there is no basis for him in the present case to advance the same.
It was never the case of the respondent at any stage that furnished house was given on rent to the appellant.
In the notice before filing the suit, and in the plaint it was specifically pleaded that rent of the house was Rs.70 per month and the tenant was in arrears.
In the written statement appellant took a clear stand that the rent of the house was only Rs.40 and Rs.30 was for furniture which, according to the appellant, he returned after the commencement of the tenancy.
The respondent filed a replica tion to the written statement of appellant.
In Clause 3 of the replication the respondent denied that either the rent was Rs.40 per month or Rs.30 was being charged for furni ture.
He stated that neither any such goods had been sup plied to the appellant by him nor the rent was agreed at Rs.40 per month.
It is thus obvious from the pleadings that at no stage the respondent pleaded that he had given furnished house on rent to the tenant.
Rather the supply of furniture was categorically denied.
In the face of clear pleadings on the record it is impermissible to raise the plea that the land lord rented a furnished house to the tenant.
It would be contrary to the pleadings.
That apart neither before the Trial Court nor before the Revisional Court and not even before the High Court this plea was raised.
Therefore, there is no force in the contention of Shri Satish Chandra and the same is rejected.
This Appeal is, therefore, allowed.
The judgments of the High Court and of the Revisional Court are set aside.
The judgment of the Trial Court is restored and the suit of respondent is dismissed.
There will be no order as to costs.
N.P.V. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent landlord filed a suit for eviction of the appellantstenant from the house in question on the ground of failure to pay rent and for realisation of arrears of rent.
While the respondent pleaded that the rate of rent was Rs.70 per month, the appellant contended that it was only Rs.40 and not Rs.70, and that he was paying Rs.30 per month for the furniture, provided by the landlord which he returned sometime after the tenancy commenced.
The trial court dismissed the suit holding that the rate of rent was Rs.40 per month and, as such, the appellant was not defaulter.
In the revision filed by the respondent, the Revisional Court held that the rent was Rs.70 per month.
The appellant filed a writ petition before the High Court, which quashed the revisional order and remanded the case for deciding the revision petition afresh.
Thereafter, the revisional court again allowed the revision.
The appellant challenged the revisional order before the High Court which dismissed the same.
In the appeal, by special leave, it was contended on behalf of the appellant tenant that in the face of clear admission of the respondent in the receipt, the rent of the house was Rs.40 per month, and that the amount of Rs.70 per month mentioned in the rent note had been explained in the receipts, to be Rs.40 as house rent and Rs.30 for furniture.
On behalf of the respondent, it was contended that the tenancy 757 was for a furnished building and failure to pay a part of the rent, in respect of furniture, would attract the provi sions of section 20(2)(a) of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 and the appellant was liable to be ejected.
It was also contended that the tenancy being of a furnished house the tenant could not under law, unilaterally surrender part of tenancy.
Allowing the appeal, HELD: It was never the case of the respondent at any stage that furnished house was given on rent to the appel lant.
In the notice before filing the suit and in the plaint, it was specifically pleaded that rent of the house was Rs.70 per month and the tenant was in arrears.
In the written statement, appellant took a clear stand that the rent of the house was only Rs.40 and Rs.30 was for the furniture, which according to him, was returned after the commencement of the tenancy.
[760C D] In the face of clear pleadings on the record, it is impermissible to raise the plea that the landlord rented a furnished house to the tenant.
It would be contrary to the pleadings.
That apart, neither before the trial court nor before the Revisional Court and not even before the High Court this plea was raised.
[760F] The trial court relied upon the rent receipts, 39/C and 40/C, produced by the appellant.
It was clearly mentioned in the receipt 39/C that Rs.40 were towards house rent and Rs.30 towards furniture charges and Rs.3 towards water and electricity charges.
The respondent admitted the contents of the receipt but explained that Rs.30 towards furniture charges was mentioned at the request of the tenant.
[758G H] In the face of the clear admission by the .respondent in the two receipts, the finding of the Revisional Court that the monthly rent was Rs.70 is erroneous.
[759D]


judgement:
ivil Appeal No. 1728 of 1989.
From the Judgment and Order dated 15.4.1982 of the Allahabad 838 High Court in Civil Misc.
Writ Petition No. 6324 of 1980.
R.K. Garg, M.K.D. Namboodiri and section Balakrishnan for the Appellant.
S.N. Kaicker, Pradeep Kumar Jain for the Respondents.
This tenant 's appeal by special leave arises out of a suit for ejectment and recovery of arrears of rent and damages.
The suit was brought by the respondents who claimed that a shop owned by them had been let to the appellant, that the appellant had fallen in arrears of rent from 1 February, 1968 and had not paid the arrears, notwithstanding a notice of demand dated 8 January, 1975 served on the appellant.
The suit was decreed ex parte by the Trial Court and the decree was set aside by the first Appellate Court.
In writ Petition before the High Court, it was urged on behalf of the appel lant that the appellant had deposited the arrears of rent under sub section
(4) of section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, and that therefore the Court should have made an order relieving the appellant against his liability for eviction on the ground of arrears of rent.
The High Court noted that the suit was filed on 12 February, 1975 and as the appellant did not appear on 4 April, 1975, the day fixed in the summons, the suit proceeded ex parte and was decreed.
The High Court also noticed that upon subsequent application made by the appel lant the ex parte decree was set aside on 24 March, 1977, and on 30 May, 1977, the fresh date now fixed, the appellant made a deposit of Rs.2,912 accompanied by an application stating that the said date was the first date of hearing and he was making a deposit of the entire arrears of rent.
The appellant first stated that he was not obliged to deposit the entire arrears of rent as they were barred by time.
However, the appellant prayed for amendment of his plead ings.
On 29 September, 1977, the appellant sought to deposit the time barred arrears also and got the tender passed for that purpose.
In pursuance of the tender the amount was deposited on 1 October, 1977.
The amendment application was allowed, but when the matter came before the learned First Additional District Judge, he took the view that the appel lant had failed to comply with the conditions of sub section
(4) of section 20 of the Act.
He held that 30 August, 1977 was 839 the date of first hearing in the suit within the meaning of sub section
(4) of section 20.
He recorded that the parties did not dispute that the time barred arrears claimed by the respond ents were also required to be deposited under sub section
(4) of section 20.
As the time barred arrears had been deposited by the appellant on 1 October, 1977 only, the High Court took the view that the entire arrears of rent had not been deposited on or before the date of first hearing.
The High Court declined to go into the further question whether the depos its made by the appellant on 1 October, 1977 ought to relate back to 29 September, 1977.
In the result the High Court dismissed the Writ Petition.
We have heard learned counsel for the parties and we see no reason to take a different view from that adopted by the High Court.
The High Court was plainly right in holding that 30 August, 1977 was the date of first hearing in the suit.
As the suit was in the nature of a small cause suit, and as the Provincial Small Causes Courts Act did not contemplate the fixation of any date for settlement of issues, it must be taken that 30 August, 1977 was the date of first hearing in the suit, and inasmuch as the entire amount due as ar rears of rent had not been deposited within time, the High Court was right in dismissing the writ petition.
Accordingly the appeal is dismissed but there As no order as to costs.
H.L.C. Appeal dis missed.

summary:
Respondent owners ' suit for recovery of arrears of rent was decreed ex parte when the appellant tenant failed to appear in the suit; however, on a subsequent application made by him the decree was set aside on 24.3.1977.
The appellant made a deposit of Rs.2,912 on 30.5.1977 stating that the said date was the first date of hearing in the suit.
The appellant, who had first stated that he was not obliged to deposit the entire arrears as they were barred by time, later on prayed for amendment of his pleadings and sought to deposit the time barred arrears on 29.9.1977, but the deposit was actually made on 1.10.1977.
The Court al lowed the prayer for amendment but the Additional District Judge held that the appellant was liable to be evicted from the premises since he had failed to deposit the entire arrears on or before 30.8.1977 which was the date of first hearing in the suit in terms of section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
The appellant 's writ petition challenging the afore said finding was dismissed by the High Court.
Dismissing the appeal, HELD: As the suit was in the nature of a small cause suit, and as the Provincial Small Causes Courts Act did not contemplate the fixation of any date for settlement of issues, it must be taken that 30.8.1977 was the date of first hearing in the suit, and inasmuch as the entire amount due as arrears of rent had not been deposited within time, the High Court was right in dismissing the Writ Petition.
[839D]


judgement:
vil Appeal No. 41334 134 of 1984.
From the Judgment and Order dated 5.3.1982 of the Delhi High Court in L.P.A. No. 125 and 115 of 1981.
Ashok Mahajan, G.D. Gupta and R. Venkataramani for the Appellants.
Anil Dev Singh, Mrs. Indra Sawhney, Mrs. Sushma Suri and C.V.S. Rao for the Respondents.
793 The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These two appeals by special leave raise the question of determination of seniority of the appellants in the cadre of Lower Division Clerks.
The appeals are preferred against the judgment of the High Court of Delhi dated March 5, 1982 in LPA No. 125 of 1981.
The appellants were originally recruited as Civilian School Masters or L.D.Cs., Leading Hand (Technical), etc.
either in the Lower Defence Installations comprising Ordnance Factories, Ordnance Depots, Workshops, Regimental Centres, Units, Command Headquarters, etc.
under the control of Army Headquarters, New Delhi.
Some of the appellants were declared as surplus in those establishments and they came to be posted/transferred to the Armed Forces Headquarters and inter service organisations as LDCs.
Their posting/transfer was done in the public interest.
They joined the service in the Armed Force Headquarters on various dates between 1960 to 1964.
Some of them were later promoted as Upper Division Clerks.
While they were thus continuing in service, rules flamed under proviso to Article 309 of the Constitution known as "The Armed Forces Headquarters Clerical Service Rules, 1968 ("The Rules")" were brought into force with effect from March 1, 1968.
The Rules inter alia, provide that the seniority in the service shall be determined on the basis of date of confirmation.
Prior to the coming into force of the Rules, the seniority in the cadre of service was required to be determined on the basis of length of service.
It was so laid down by several official memorandums of the Government or that of the Defence Ministry.
After the Rules came into force, the seniority of the appellants was sought to be disturbed on the basis of confirmation as prescribed under the Rules.
The appellants, therefore, moved the High Court of Delhi under Article 226 of the Constitu tion contending inter alia, that length of service should be the basis of inter se seniority.
They also raised some other questions with which we are not concerned.
The learned single Judge accepted the claim of the appellants and made an order dated April 8, 1981.
The relevant portion of the order runs as follows: "It is not disputed by the respond ents that the only principle of seniority laid down by various Memoranda was the principle of seniority laid down by various Memoranda was the principle of length of service.
No memo randa of Administrative Instructions are brought to my notice by 794 the respondents, where any other principle has been laid down.
The petitioners, in all the three petitioners were originally in common LDC cadre and are in the common cadre of U.D.C. now.
It cannot be said that some of them (Writ Petition No. 423 of 1975) will all be governed by the principles of length of service and no others because they have not expressly stated that their seniority should be fixed on the principles of length of serv ice.
It may be noted that in 1959 the Home Ministry issued general principles of seniori ty to be followed in all Government services except where a service follows a different set of principles.
The said Memorandum lays down that seniority of all Government employees, employed subsequent to the issuance of the said Memoranda, will be decided on the basis of the date of confirmation.
It further lays down that all confirmed employees would be treated senior to the non confirmed employees.
The petitioners would have been ordinarily governed by these principles since they joined the Armed Forces on transfer after 1959.
But the Ministry of Defence preferred to continue the principles of length of service (which they had been following prior to 1959), even after the 1959 Memorandum came into operation.
The 1963 Memorandum of the Defence Ministry incorporated the said principles and all Memoranda issued thereafter reiterated the principles of length of service.
In these circumstances, the contention of respondents cannot be accepted.
The seniority of the peti tioners shall be decided by the principle of length of service, that is, their date of joining the Army Headquarters as LDCs.
Of course, some of them entitled to additional benefit of past service under the said Memo randum were given that benefit.
Since this is the question raised in Civil Writ Petition No. 423/1975, it must succeed." Being aggrieved by the above decision, the Union of India preferred an Appeal before the Division Bench of the High Court.
The Division Bench reversed the above view holding that the seniority of the appellants must fall to be determined on the basis of confirmation as prescribed by the Rules and not on the length of service.
The view taken by the Division Bench has been challenged in these appeals.
We have perused the judgment of the Division Bench and also considered the submissions of the parties.
The view taken by the Divi 795 sion Bench appears to be erroneous.
The Rules, no doubt provide that all persons substantially appointed to a grade shall rank senior to those holding officiating appointments in the grade.
But the Rules have no retrospective effect.
It could not impair the existing rights of officials who were appointed long prior to the Rules came into force.
The office memorandums to which learned single Judge has re ferred in detail and which we have extracted above clearly laid down that length of service should be the guiding principle of arranging the inter se seniority of officials.
The appellants being governed by those memorandums had the fight to have their seniority determined accordingly before the Rules came into force.
That being their right, the Rules cannot take it away to their prejudice.
The Division Bench was, therefore, clearly in error in directing that the seniority shall follow their respective confirmations.
In construing similar office memorandums in a different context, this is what this Court has observed in Union of India vs M. Ravi Varma & Anr., ; at 1002: "As the said Office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the con clusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appoint ed prior to December 22.
would have to be determined on the basis of their length of service in accordance with Office Memorandum dated June 22, 1949 and not on the basis of the date of their confirmation.
" These considerations apply equally to the present case as well.
The general rule is if seniority is to be regulated in a particular manner in a given period, it shall be given effect to, and shall not be varied to disadvantage retro spectively.
The view taken by the Division Bench, which is in substance contrary to this principle is not sound and cannot be supported.
In the result, these appeals are allowed with costs.
In reversal of the judgment of the Division Bench, we restore that of the learned single Judge.
N.P.V. Appeals allowed.

summary:
The Armed Forces Headquarters Clerical Service Rules, 1968 were brought into force with effect from March, 1968.
The rules provided that seniority in the service shall be determined on the basis of date of confirmation.
Prior to this, the seniority in the cadre of service was required to be determined on the basis of length of service, as laid down by several official memoranda of the Government or that of the Defence Ministry.
After the rules came into force, the seniority of the appellants who joined the Armed Forces Headquarters as L.D.Cs. between 1960 and 1964, on transfer/posting from the lower defence installations, in public interest, and some of whom were later promoted as U.D.Cs., was sought to be dis turbed, on the basis of confirmation as prescribed under the rules.
The appellants, therefore, moved the High Court contending that the length of service should be the basis of inter se seniority.
A Single Judge of the High Court held that ordinarily the appellants would have been governed by the general principle of seniority based on the date of confirmation as laid down in the 1959 Memorandum of the Home Ministry, but since the Ministry of Defence had preferred to continue the principle of length of service which it had been following prior to 1959, even after the 1959 Memorandum, and which had been incorporated in 1963 Memorandum and reiterated in all memoranda issued thereafter, the seniority of the appellants should be decided by length of service.
i.e., their date of joining the Army Headquarters as L.D.Cs.
On appeal by Union of India, the Division Bench held that the 792 seniority of the appellants must fail to be determined on the basis of confirmation as prescribed by the rules, and not on the length of service.
Aggrieved by this, the appel lants filed appeals before this court.
Allowing the appeals, HELD: The general rule is if seniority is to be regulat ed in a particular manner in a given period, it shall be given effect to and shall not be varied to disadvantage retrospectively.
[795F G] The Armed Forces Headquarters Clerical Service Rules, 1968 no doubt provide that all persons substantially ap pointed to a grade shall rank senior to those holding offi ciating appointments in the grade.
But the rules have no retrospective effect.
It could not impair the existing rights of officials who were appointed long prior to the Rules came into force.
[795A B] The various office memoranda clearly laid down that length of service should be the guiding principle of arrang ing inter se seniority of officials.
[795B] The appellants being governed by those memoranda had the right to have their seniority determined accordingly before the Rules came into force.
That being their right, the rules cannot take it away to their prejudice.
The Division Bench, was, therefore, clearly in error in directing that the seniority shall follow their respective confirmations.
[795B C] Union of India vs M. Ravi Varma & Anr., ; at 1002.
relied on.