GOPAL SARAN v. SATYANARAYANA

Citation: [1989] 1 S.C.R. 767

Court: Supreme Court of India

Bench: SABYASACHI MUKHERJI, S. RANGANATHAN

Case summary

The said appeal was allowed only on the issue of parting with 1 possession holding that the display of the board amounted to parting with possession of the premises....

Judgment text

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 )f outside Delhi Gate, Udaipur, in the State of Rajasthan. In the said shop the appellant carried on the business of opticals. This fact is undisputed. He asserted that he was also running the business of advertisement by way of display of various advertisements (hoardings) -. -~ ! JOPAL v. SATYANARAYANA [MUKHARJI, J. I 771 boards at various places in the city ofUdaipur. The case of the appel- - T ! ant was that though ihe 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 tenant-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 alteralion 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 . ;. if_ the ground of default in payment of rent, material alteration 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 't allowed 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; 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 November, 1984. By the judgment and de. cree dated 20th March, 1987 the learned District Judge allowed the said appeal hold- ..

ing, 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 posses- -r sion 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 default. The plaintiff-respondent preferred an appeal before the High Court. The said appeal was allowed only on the issue of parting with 1 possession holding that the display of the board amounted to parting with possession of the premises.

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. Section 13 of the said Act deals with the grounds for eviction of tenants. By clause {a), sub-section (1) of the said section provides that outwithstanding 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 therefor to the full extent allowable under the said Act unless it is satisfied, inter a/ia, that the tenant had neither paid nor tendered the amount of rent due from him for six months. Sub-clause (b) of subsection(! ) 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(!

) 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 -t 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 advertisement 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 Ex.

6 read as follows: "Shri Gulam Abbas Bhalam Wala, ~- I Udaipur. t Dear Sir, I We wish to write that we have taken the site for putting up commercial board on the terrace of the shop of Saran Opticiao, Udaipur. This site is with us for the last 'h year. Yours faithfully, >f Paramount Services, Sd/- Partner. " GOPAL v. SATYANARAYANA (MUKHARn, J. ] 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 beerr parted away to the Paramount Services for installing the advertisement board. The High Court proceeded on the basis that Ex. 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 nionths 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. 1Gopal Saran which was as follows: "USS BOARD PAR PRACHAR KE TEEN SALL KE PARDRAH SAURUPAYE MAIN LETA THAJISMEN 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 Ex. 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 Ex. 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 defendant had parted with the possession of the part of the terrace so as to enable the )lo 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 The Explanation provided: •· "For the purpose of this sub-section,- a company shall be deemed to be a company in which · the public are substantially interested if shares of the company (not being. shares entitled to a fo appellant for carrying on business it was the right 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 Ex. 6, namely, the letter dated January 20, 1977 of M/s. Paramount Services be maintained? 1 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 eviction order passed against the appel- ! ant by virtue of section 13(1)(e) of the Act. Undisputedly the appel- ! ant was a tenant.

Therefore, in terms of Section 13(1) of the Act, notwithstanding 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 founded 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. GOPAL v. SATYANARAYANA [MUKHARJI, J. ] 781 It was contended on behalf of the appellant that the advertise- - -t· ment 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 (Ex. 6). The learned District Judge in the first appeal had accepted that there was no parting of posses- ~~ sion. The High Court, on the other hand, in the judgment in appeal relying on Ex. 6 came to the conclusion that the appellant wap getting rent for this board and the appellant had accepted document Ex. 6 which Paramount Services had written to the appellant. The High '>I Court was wrong, it was submitted on behalf of the appellant, that Ex. 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 Ifover 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 temporary place on which he used to make advertisement of the business of the parties on payment. It was the definite case in defence oft. he tenant that roof of the disputed shop has not been given to anyone.

In cross-examination, he admitted that in 1974 advertisemen! 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 Ex. 2. The tenan! 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 the city run by him. It was stated that he took Rs. 500 per year for 15 boards from Paramount Services. In the photograph, Ex. 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 District Judge came to the conclusion that there was no alteration of the premises or damage.

The learned Distrii:t Judge considered the question and the arguments that the defendant-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 Ex. 6. Ex. 6, it may be mentioned, is subsequent to the accrual to the cause of action. The suit was filed in 1974. Ex. 6 is dated 20th January, 1977. Considering the aforesaid contentions and the position in law, the learned District Judge came to the conclusion that by Ex. 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-appell~nt before the trial court. He had stated that he had put up his board on the shop for advertisement C:f. · 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 GOPAL v. SATYANARAYANA IMUKHAR. II, J. ] 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 expenditure was mine. The board of my shop as Sharan Opticals is fixed on the front of the shop". It appears on an analysis 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 permission 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 I 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 partnership. " It has to be examined whether there was sub-letting or otherwise parting with possession in termsofSec. 13(1)(e)oftheAct.

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 ihe 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