CHAPTER 5

IMPLEMENTATION OF EVICTION: JUDICIAL

RESPONSES

The major source of rate of return from housing is capital gains

on the value of the house. By making evictions and increase in
rents over time difficult, the Rent Control Act has affected the
rate of return adversely149

5.1“Evict” meaning
To “evict” literally means “to dispossess by law or expel by legal
process”, eviction consists in physical act of throwing out the
tenant from the building which he is occupying. The phrase “in
accordance with the provisions of this section”, only means “in the
method or mode provided by the section”, that is, by means of
obtaining an order for eviction from the Collector. The eviction
shall not take place except “in accordance with the provisions of
this section”. This may legitimately be construed to mean that the
eviction shall take place only in the manner provided by the
section. In other words, it is not the order of eviction that is
required to be “in accordance with the provisions” of the sections,
but the eviction is required to take place as provided by the
section.150

5.2Grounds of Eviction under The Haryana Urban (Control

of Rent and Eviction) Act, 1973
5.2.1 S.13(2)(i) Arrears of rent

149
National Institute of Urban Affairs (1989: 190).
150
Ram Parshad v. Mukhtiar Chand, ILR 1958 Punjab 1553 (P&H) (DB).

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 5.2.1.1 Interpreting the expression “arrears of rent”
In Behari Lal v. Ajudhia Das, the Delhi High Court while
interpreting S. 13 of the East Punjab Urban Rent Restriction Act,
1949 took the view that the terminology used therein did not show
that any duty was cast on the Rent Controller to assess the arrears
of rent due independently of the stand taken by the landlord. It was
held therein that in a case where the demand of the landlord had
been met availing of the proviso to S. 13(2)(i) of the said Act, the
Rent Controller had no authority to enter into an inquiry to find out
as to what the rate of rent was, before dismissing the application of
the landlord on this aspect. The duty of the Rent Controller was
confined to see whether on the date of hearing the tenant has paid
or tendered the arrears of rent asked for by the landlord along with
interest and costs. The moment that was done, it was the duty of
the Rent Controller to dismiss the application for eviction. It was
also held therein that the mere fact that the tenant had paid the rent
while reserving his right to recover the excess paid by him, the
payment on his behalf could not be termed conditional.151

5.2.1.2 Deposit of rent with costs and interest before

first date of hearing
Like all other Rent Control Acts in the other States in the country,
the Rent Act is a piece of social legislation which seeks to strike a
just balance between the rights of the landlords and the
requirements of the tenants. The Act prevents the landlord from
taking the extreme step of evicting the tenant merely on the ground
of default in payment of rent if the landlord is guaranteed entire

151
1970 Rent C. J. 671: 1970 RCR 76.

132
payment of the entire arrears of rent, cost and interest. Thus, the
proviso affords a real and sanctified protection to the tenant which
should not be nullified by giving a hyper technical or literal
construction to the language of the proviso which instead of
advancing the object of the Act may result in its frustration.
The statutory provisions of the proviso which is meant to give a
special protection to the tenant, if properly and meaningfully
construed, lead to the inescapable conclusion that the rent together
with cost and interest, etc., should be paid on or before the date of
the first hearing and once this is done, there would be a sufficient
compliance with the conditions mentioned in the proviso.152

5.2.1.3 Object of the act

Rent Act is a beneficial legislation in favour of the tenant. When
any default is committed by the tenant in tendering or paying rental
arrears in Court alongwith interest and cost, but unless the Court
finds him guilty of wilful default his eviction cannot be ordered.153

In Jaswant Singh v. Chuni Lal154 it was held:-

"Under Section 13(2)(i) the tenant has been made liable to be
ejected on the ground of non-payment of arrears of rent and under
second proviso thereto the term "arrears of rent" has been restricted
to a period of three years immediately preceding the date of
application for ejectment. It is true that under Section 4(1) of the
Act the fair rent fixed becomes operative from the date of the
application and in certain cases the period covered there under may

152
Mangat Rai v. Kidar Nath, AIR 1980 SC 1709.
153
Sukhwinder Singh v. Ashok Kumar, 1997(2) RCR(Rent) 410 (P&H) (DB).
154
AIR 1980 PH 137.

133
be more than three years. The fact that the fair rent fixed exceeds
the contractual rent and becomes operative for period more than
three years would not enlarge the scope of "arrears of rent" given in
second proviso to Section 13(2)(i) in the context of that section; In
other words, a tenant would not be liable to be ejected on the
ground of non-payment of arrears of rent if he tenders rent, for a
period of three years immediately preceding the date of application
for ejectment irrespective of the fact that the fair rent fixed exceeds
the, contractual rent and is operative for a period more than three
years. It is admitted that the respondent tenant did tender arrears of
rent on the first date of hearing for a period of three years
immediately preceding the date of the application. The Rent
Controller, therefore, rightly concluded that the respondent was not
liable, to be ejected on the ground of non-payment of arrears of
rent."
Sub-section (2) of Section 13 envisages filing of the application by
the landlord for eviction of the tenant and passing of an order by
the Rent Controller if he is satisfied that the tenant had not paid or
tendered the rent due from him in respect of the building or rented
land within 15 days after expiry of the time fixed in the agreement
of tenancy or in the absence of any proviso to Section 13(2) (i)
contains a deeming fiction, it lays down that if the tenant, within a
period of fifteen days of the first hearing of the application for
ejectment after due service, pays or tenders the arrears of rent and
interest, to be calculated by the Rent Controller at eight per centum
per annum on such arrears together with such costs of the
application, if any, as may be allowed by the Rent Controller, the
tenant shall be deemed to have duly paid or tendered rent within
the time specified in Clause(i), Second proviso lays down that the

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landlord shall not be entitled to claim arrears of rent for a period
exceeding three years immediately preceding the date application.
The expression "fair rent" finds mention in Sections 4, 5(1) and
6(1) and the expression 'arrears of rent" finds mention in the first
and second provisos to Section 13(2)(i). The word "rent" appears in
Sections 6-A(1) and 8(1). The same word appears in Clause (i) of
Section 13(2) in conjunction with the word "due". There is nothing
in the plain language of Section 13(2)(i) and two provisos
appearing below it which may suggest that the expression "arrears
of rent" used therein should receive different interpretations for
different types of cases i.e. one in the cases in which the landlord
applies for eviction after determination of fair rent under Section 4
so as to entitle him to claim arrears of rent for a period exceeding
three years immediately preceding the date of application for
eviction and the other in the cases in which the landlord applies for
eviction without seeking determination of fair tent. In our opinion,
even if the fair rent fixed under Section 4(1) exceeds the
contractual rent and becomes operative for a period of more than
three years, the landlord cannot seek a direction for payment of
arrears of rent exceeding three years and non-payment thereof
cannot be made a ground for eviction of the tenant.
In view of the above discussion, we hold that the scope of the
expression "arrears of rent" used in second proviso to Section
13(2)(i) of the Act cannot be enlarged simply because the fair rent
fixed by the Rent Controller may exceed the contractual tent and
become operative for a period exceeding three years. As a logical
corollary, we hold that the proposition laid clown by the learned

135
Single Judge in Jaswant Singh's155 case represents correct position
of law and does not warrant re-consideration.
In Basant Ram v. Gurcharan Singh156, a Division Bench of this
Court interpreted Section 13(2)(i) of Pepsu Urban Rent Restriction
Ordinance and held as under;-
"Where the tenant complies with the demand of the landlord with
respect of the arrears of rent due from him constituting the cause of
action for the petition for eviction the tenant should be deemed to
have satisfied his landlord's claim. The rights and liabilities of the
parties as they exist on the date of the initiation of the , proceedings
atone fall within the scope of the investigation of which the
tribunal is properly seized and it is generally incompetent for a
tribunal to adjudicate upon any controversial matter which does not
find place in the pleadings of the parties. Thus the proviso to
Section 13(2)(i) means that the amount to be deposited by the
tenant should only be the amount due as arrears according to the
landlord's application up to the date on which the application for
ejectment is made and not the entire amount due as arrears up to
the date of the first hearing when the deposit is made in court"
Second proviso to Section 13(2)(i) of the Haryana Urban (Control
of Rent and Eviction) Act, 1973 is applicable to claim or arrears of
rent after an application for fixation of fair rent has been decided
and the landlord is not entitled to claim arrears of rent for a period
exceeding three years."157

155
Supra note 6.
156
A.I.R. 1959 Punjab 578.
157
Balwant Singh and others v. Neki Ram (2003) 134 PLR 452.

136
Son is tendering the rent. While tendering the arrears of rent son
never claimed that he was tendering as the sub tenant. In his
statement son deposing that he tendered the rent on behalf of his
father. It was held that the tender of rent by the son was as a
member of the family of the tenant. When rent is tendered by any
member of the family of the tenant to the landlord without any
inconsistent claim it cannot be termed as invalid tender.158

In a case where a substantial amount had been received as advance

at the time of letting, which was liable to be refunded without
interest on the expiry of the lease, it was held in Modern Hotel v.
K. Radhakrishnaiah, (1989) 2 SCC 686, that when the amount of
arrears of rent was smaller than the advance amount held by the
landlord on account of the tenant, there was no default in payment
of rent and the grant of eviction on the ground of arrears of rent
was not justified.159

5.2.1.4 Ejectment on ground of non-payment of rent

The tenant can be ejected from the premises where he has not paid
or tendered the rent due by him within fifteen days after the expiry
of the time fixed in the agreement of tenancy with his landlord or
in the absence of any such agreement, by the last day of the month
next following that for which the rent is payable.
The tenant however cannot be ejected if he on the first hearing
pays or tenders the arrears of rent and interest at six percent per
annum on such arrears together with the cost of application

158
Rama Kant and others v. Sona Devi, AIR 2002 SC 1154: 2002 (2) JCR 133 SC: 2002(1)
Rent LR (SC) 299: 2002 (2) SCR 14 .
159
G. Reghunathan v. K.V. Varghese, 2005(2) L.A.R. 178 (SC).

137
assessed by the Controller, the tenant shall be deemed to have duly
paid or tendered the rent within the time aforesaid.
It was held by the Supreme Court that if a suit for eviction is based
on the ground set forth in clause (a) of sub-section (1) of Section
13 of the Act, the landlord must allege and prove three
requirements, namely,
(i) the tenant is in arrears of rent,
(ii) such arrears of rent were due for more than six months
and
(iii) the tenant has failed to pay such arrears of rent to the
landlord.
Excepting these requirements there is no other requirement of law
which a landlord is to plead and prove for obtaining decree of
eviction.160

5.2.1.5 Interpretation of the phrase “the first

hearing of the application”
As to what would be the first date of hearing, was considered by
the Apex Court in Sham Lal (Dead) by L.Rs. v. Atma Nand Jain
Sabha (Regd.) Dal Bazar161, Suraj Ahmad Siddiqui v. Prem Nath
Kapoor162 and Advaita Nand v. Judge, Small Cause Court,
Meerut and others163. In Sham Lal's case, proviso to clause (i) of
Sub-section (2) of Section 13 of the Act was under consideration,
whereas in Suraj Ahmad Siddiqui's and Advaita Nand's case, the
provision of U.P. Urban Buildings (Regulation of Letting, Rent and

160
Ladu Ram v. Ganesh Lal, 1999(2) RCR 220 (SC).
161
(1987-1)91 PLR 1 (SC).
162
(1993)4 SCC 406.
163
(1995) 3 SCC 407.

138
Eviction) Act, 1972, were under consideration. Their Lordships of
the Supreme Court in all these three judgments have held that the
first date of hearing means the date on which mind is applied by
the Court to determine the case and not the day fixed for return of
the summons. Their Lordships observed that the day when the
Court applies its mind to the case, would be the time when either
issues are determined or evidence taken.164

It is imperative that the word "the first hearing of the application"

have to be interpreted in a manner which promote the object of this
beneficial legislation. Viewed from this aspect it must be held that
the words "first hearing of the application" as used in proviso (i) to
sub-section 2 of section 13 of the said Act does not mean the day
fixed for return of the summons or the returnable day but the day
when the Court applies its mind to the case.
In Mangat Rai v. Ved Prakash165 the views expressed in para 15
of the judgment were:-
"15. The principles that can be deduced from the plethora of case
law on the point, including the authorities referred to above, are
consistent with the literal meaning of word 'hearing' which in its
Dictionary sense means 'the listening of evidence and pleading in
Court of law, the trial of a cause'. It seems to be abundantly clear
that in order to constitute, 'first hearing' within the meaning of Sec.
13(2)(i) proviso, the following prerequisites must co-exist:--
(i) There should be a 'hearing' which presupposes the
existence of an occasion enabling the parties to be

164
Abnash Chander v. Mulakh Raj (Died) Through His Lrs., 1997(1) RCR(Rent) 673(P&H).
165
1969 Vol. 1 Rent control Reporter p. 96.

139
 heard and the court to hear them in respect of the
cause.
(ii) Such hearing should be the first in point of time after
due service of the summons/notice on the tenant. Both
these essentials are positive, and in the absence of
either of them, there can be no "first hearing".166

The High Court by the orders impugned in these appeals has

reversed the judgment of trial court and defence of the petitioners -
tenants in each of the cases has been struck off on the alleged
ground of non-deposit of arrears of rent within the specified period
in accordance with provisions of Order XV Rule 5167 of the Code

166
Sham Lal (Dead) By LRs. v. Atme Nand Jain Sabha (Regd.), Dal Bazar 1987 AIR 197,
1987 SCR (1) 509.
167
"5. Striking off defence for failure to deposit admitted rent. - (1) In any suit by a lessor for
the eviction of a lessee after the determination of his lease and for the recovery from him of
rent or compensation for use and occupation, the defendant shall, at or before the first
hearing of the suit, deposit the entire amount, admitted by him to be due together with
interests thereon at the rate of nine per cent per annum and whether or not he admits any
amount to be due, he shall throughout the continuation of the suit regularly deposit the
monthly amount due within a week from the date of its accrual, and in the event of any default
in making the deposit of the entire amount admitted by him to be due or monthly mount due as
aforesaid, the Court may, subject to the provisions of Sub-rule (2) strike off his defence.
Explanation 1.- The expression "first hearing" means the date for filing written statement or
for hearing mentioned in the summons or where more than one of such dates ore mentioned,
the last of the dates mentioned.
Explanation 2.- The expression "entire amount admitted by him to be due" means the entire
gross amount whether as rent or compensation for use and occupation, calculated at the
admitted rate of rent for the admitted period of arrears after making no other deduction
except the taxes, if any, paid to a local authority in respect of the building on lessor's account
and the amount, if any, deposited in any Court.
Explanation 3.- (1) The expression "monthly amount due" means the amount due every month,
whether as rent or compensation for use and occupation of the admitted rate of rent, after
making on other deduction except the taxes, if any, paid to a local authority, in respect of the
building on lessor's account.

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of Civil Procedure. The trial court by separate orders passed in
each of the cases had rejected the prayer of the landlords for
striking off the defence and allowed the applications of the
appellants - tenants seeking permission to deposit the arrears of
rent.
The contention advanced on behalf of the tenants that the arrears of
rent were duly deposited within the specified period from the first
effective 'date of hearing' also gets support from the decision of
this Court in the case of Sham Lal (Dead) By LRs. v. Atme Nand
Jain Sabha (Regd.), Dal Bazar168. In that case, the words 'first
hearing of the application,' as used in Section 13(2)(i) of East
Punjab Urban Rent Restriction Act, came up for interpretation. It
was held that to promote object of the legislation contained in the
provisions, the expression used therein has to be construed
reasonably. The use of the expression 'first hearing' is held not to
mean 'the date fixed for return of summons or the returnable date
which is the day of appearance' before the court of the parties. See
the following observations of this Court in above respect :-
It appears that there is consensus in regard to the interpretation of
the expression 'first day' in the context of the rent legislations of

(2) Before making on order for striking off defence, that Court may consider any
representation made by the defendant in that behalf provided such representation is made
within 10 days, of the first hearing or, of the expiry of the week referred to in Subsection (1) as
the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff :
Provided that such withdrawal shall not have the effect of prejudicing any claim by the
plaintiff disputing the correctness of the amount deposited :
Provided further that if the amount deposited includes any sums claimed by the depositor to
be deductible or any account, the Court may require the plaintiff to furnish the security for
such sum before he is allowed to withdraw the same."

168
Supra note 17.

141
several other States, for instance, the Gujarat High Court in Shah
Ambalal Chhotalal v. Shah Babaldas Dayabhai, dealing with the
identical question as to the meaning of the words "the first day of
the hearing of the suit" as provided in Sub-section 3(b) of Section
12 of Bombay Rents, Hotel end Lodging House Rates (Control)
Act, 1947 has observed after considering several decisions that "the
words 'the first day of hearing' as meaning not the day for the
return of the summons or the returnable day, but the day on which
the court applies its mind to the case which ordinarily would be at
the time when either the issues are determined or evidence taken".
In the instant cases before us, the trial court accepted the deposit of
arrears of rent by the tenants and refused to strike off defence for
more than one valid reason. The most important reason assigned by
the trial Judge is that there is a serious question of jurisdiction of
the civil court involved in the cases. The court also came to the
conclusion that as the arrears of rent were deposited in the Bank,
there were no mala fides on the part of the tenants. The rent was
not withheld for any ulterior purpose. The arrears of rent were,
thereafter, deposited in court with an application or representation
which was made in accordance with Sub-rule (2) of Rule 5 of
Order XV of the Code. The impugned orders dated 25.2.2002 of
the High Court in all these cases are hereby set aside. These cases
are remitted to the trial court for proceeding with the suits In
accordance with law.169

169
M/s Mangat Singh Trilochan Singh through. Mangat Singh (D)through LRs and others v.
Satpal 2003(2) Rent Control Reporter 567 (S.C.).

142
 5.2.1.6 Non-payment of rent after opportunity given
for tendering rent
Landlord claimed the rate of rent to be Rs. 150/-. The stand of
tenant was that rate of rent was Rs. 72/- per month. The learned
Rent Controller came to the conclusion that the rate of rent was Rs.
150/- per month and consequently held that the tender having not
been made as per the demand of the landlord he was liable to be
ejected. It was held inter alia;
(i) Rent Controller directed to issue notice to the parties and
thereafter determine the arrears of rent along with interest
payable thereon and the costs, which are required to be
paid by the tenant by fixing the date of hearing for the
said purpose.
(ii) An opportunity would be provided to the tenant/petitioner
for making the tender.
(iii) The learned Rent Controller will be at liberty to pass
eviction order in case of non-payment of rent.170

Determination of rate of rent of demised premises is not covered

either expressly or impliedly by the provisions of the East Punjab
Urban Rent Restriction Act, 1949 or by the Haryana Urban
(Control of Rent and Eviction) Act, 1973. In the case of Sawan
Ram v. Gobinda Ram and another171, it was held that jurisdiction
of Civil Court was impliedly barred from the field covered
specifically and squarely by the provisions of the Rent Control Act.
However, that case pertained to ejectment of tenant from the
demised premises. Field of ejectment of tenant is specifically and

170
Parkash Chand v. Lachhman Dass, 2009(2) RCR(Rent) 165(P&H).
171
AIR 1980 (P&H) 106.

143
squarely covered by the provisions of the Rent Control Act, and
therefore, jurisdiction of Civil Court is impliedly barred regarding
the same. On the contrary, Civil Court is the only Court of
competent jurisdiction to determine the rate of rent as well as to
pass the decree for recovery of arrears of rent. Rent Controller
under Rent Control Act cannot even pass order or decree for
recovery of arrears of rent. Jurisdiction of Civil Court to try the
instant suit for recovery of arrears of rent is definitely not barred by
provisions of the Rent Control Act.172

5.2.2 S. 13(2)(ii)(a) Sub-letting

5.2.2.1 Receiving of letter by son on address of shop
does not make him sub-tenant
Where the tenant has after the commencement of this Act without
the written consent of the landlord transfers his right under the
lease or sublets the entire building or rented land or any portion
thereof, he is liable to ejectment under this Act. The initial onus to
prove subletting is on landlord but the moment a third person is
found in possession, it must not be inferred that it is a case of
subletting.
In all cases of subletting, the law is well settled that if a third
person is in occupation then inference of subletting can be drawn.
It is for the tenant or that person to explain the position. However,
if it is explained that he is merely a licensee having no right or
legal possession of the premises, in that event, it is improper to
draw inference of subletting and it must be taken that the position
has been explained. It cannot be accepted as a broad principle of

172
Surjit Singh v. Vikas Talwar, 2012(2) RCR(Rent) 183(P&H).

144
law that the moment a third person is found in possession, it must
be inferred that it is a case of subletting. The facts of each case
must be examined, scrutinized and thereupon inference should be
drawn.
This controversy has been considered more often than once.
Reference to some of the precedents would be in the fitness of
things. In the case of Smt. Krishnawati v. Hans Raj173, a petition
for eviction was filed under the Delhi Rent Control Act, 1958. It
was alleged that the property has been sublet. Smt. Krishnawati
had taken the premises on rent. The shop was being run by her
husband. The question in controversy arose before the Supreme
Court was as to if the property was sublet or not. The contention
was repelled and it was held that if two persons live together in a
house as husband wife and if one of them own the house and allow
the other to carry on the business, it would be rash inference to
draw that it has been sublet.
More close to the facts of the present case is the decision of the
Delhi High Court in the case of Chander Kishore Sharma v. Smt.
Kampa Wati174, The tenanted premises had been taken by the
father. He was living with his son. The question arose as to
whether when the son had set up his independent business in the
suit premises it was subletting or not. It was held that the
presumption would be otherwise and the Court went on to
conclude as under :
“It is true that there is no presumption in law that a father or a son
can never sublet, assign or otherwise part with possession of the
tenanted premises in favor of the other. But it will be disastrous to

173
AIR 1974 SC 280.
174
AIR 1984 Delhi 14.

145
hold that because the parent or progeny of the tenant lives or
carries on business in the tenanted premises one must presume that
there is some kind of parting with possession. Such an approach is
not permitted by law, unless there are facts which unequivocally
compel one to do so. The accepted way of life in this country is
that a father and a son are normally expected to live together, earn
together and spend their separate earnings for each other and the
family. Cogent and strong facts are required to displace this life
style. For these observations I will draw support from Smt.
Krishnawati v. Shri Hans Raj175, wherein the Supreme Court held
that if two persons live together in a house a husband and wife and
if 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 owner has let out that
part of the premises.”
Supreme Court in the case of Jagan Nath (deceased) through L.
Rs. v. Chander Bhan176, held:
"It is well settled that parting with possession meant giving
possession to persons other than those to whom possession had
been given by the lease and the parting with possession must have
been by the tenant, user by other person is not parting with
possession so long as the tenant retains the legal possession
himself, or in other words there must be vesting of possession by
the tenant in another person by divesting himself not only of
physical possession but also of the right to possession. So long as
the tenant retains the right to possession there is no parting with
possession in terms of Clause (b) of Section 14(1) of the Act. Even

175
1974 AIR 280.
176
AIR 1988 SC 1363.

146
though the father had retired from the business and the sons had
been looking after the business in the facts of this case, it cannot be
said that the father had divested himself of the legal right to be in
possession. If the father has a right to displace the possession of the
occupants, i.e. his sons, it cannot be said that the tenant had parted
with possession."
Once again in the case of Delhi Stationers & Printers v. Rajendra
Kumar177, the tenanted premises consisted of three rooms, a
kitchen and a toilet. The landlord filed an eviction petition and one
of the grounds was that the property has been sublet. It was held
that merely if the brother-in-law of the tenant was using the latrine
and kitchen was not enough to conclude that the property has been
sublet. The Supreme Court held as under :--
"If the instant case is considered in the light of the aforesaid
principles laid down by this Court it cannot be said that the
appellant has either sub-let or parted with the possession of a part
of the premises in favour of Mahendra Singh who is brother-in-law
of the appellant and is also employed with the appellant. Mahendra
Singh is a tenant under the respondent in respect of room marked J.
in the site plan (Ex. A-1). The mere user of the kitchen and latrine
by Mahendra Singh while residing in the portion let out to him by
the respondent cannot mean that the appellant has transferred the
exclusive right to enjoy the kitchen and latrine and has parted with
the legal possession of the said part of the premises in favour of
Mahendra Singh".
Similarly, in the case of Shamsher Singh v. Sampuran Singh178,
eviction petition was filed on the ground of subletting. Sampuran

177
1990 HRR 263 : (AIR 1990 SC 1208).
178
(1998) 2 Rent LR 584.

147
Singh respondent had taken the premises on rent. He started the
business in the said property. Respondent No. 2, son of the tenant
who was residing with the tenant, conducted some business from
the said premises. It was held that when legal possession was
retained by the tenant and that they were closely related, it cannot
be inferred that it is a case of subletting.
Reverting back to the facts of the present case, it had already been
found that the son of the petitioner has given his postal address and
receiving the letters at the address of the shop in question. He has
got installed a telephone in the suit premises and the advertisement
that appear with respect to the business was also showing the
address of the suit premises. But it cannot still be inferred that he
was in legal possession of the same to the ouster of the tenant. The
tenant himself was carrying on the business, admittedly, from the
front portion of the shop. A Local Commissioner had been
appointed in the trial Court and he has reported that the petitioner
is carrying on his business. There were some tables and chairs on
the back portion of the shop. Even if it be taken that it was being
used by the son of the petitioner, still it cannot be termed that he
was in legal possession of the suit premises. This is for the added
reason that the only approach to the back portion is from the front
portion of the shop where the tenant-petitioner has been carrying
on his business. By no stretch of imagination in the facts of the
present case, it can be termed that legal possession had ceased to be
with tenant-petitioner.179

5.2.2.2 Heritable tenancy

179
Om Parkash v. Kailash Chander, AIR 2000 P&H 88.

148
In the case of Associated Hotels of India Ltd., Delhi v. S.B.
Sardar Ranjit Singh 180, this Court held that when eviction is
sought on the ground of subletting, the onus to prove subletting is
on the landlord. It was further held that if the landlord prima facie
shows that the third party is in exclusive possession of the premises
let out for valuable consideration, it would then be for the tenant to
rebut the evidence.
The aforesaid legal position was also noticed by this Court in the
case of Smt. Krishnawati v. Hans Raj181.
In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and
others182, this Court held that in a case where a tenant becomes a
partner of a partnership firm and allows the firm to carry on
business in the demised premises while he himself retains legal
possession thereof, the act of the landlord does not amount to
subletting. It was held that whether there is genuine partnership or
not must be judged in the facts of each case in the light of the
principles applicable to partnership.
There was death of tenant. His legal heirs tried to divide tenancy
premises by metes and bounds. Each heir in exclusive possession
of premises fell to his share. It does not amount to sub-letting.
Contention that tenancy was heritable and not divisible is not
tenable.183

Tenancy is heritable. Tenant died and tenancy inherited by brother

of deceased. It was held not to be a sub-letting.184
180
AIR 1968 SC 933.
181
(1974) 1 SCC 280.
182
(1987) 3 SCC 538.
183
Bawa Daswanda Singh v. Saswant Singh and Others, 1997(1) RCR 261(P&H).
184
Hargopal v. Hem Raj, 2009(1) RCR(Rent) 56 (P&H).

149
 5.2.2.3 An employee of tenant continuing after death
of tenant is not a sub-tenant
It is the nature of activity run at the demised premises itself that is
relevant. If the demised property itself was being run as a Hair-
Cutting Salon from the days of his father when alleged sub-tenant
(employee) was associated and after the lifetime of the father, the
business had continued and the employee was being paid a share of
income, one need not expect a partnership deed for such an
activity. We are considering the case of a small time hair-cutting
salon in a small town and it would be too artificial to look for
salary receipts or account books for the same.
Thus, an employee, who is a barber and who is engaged in the
activity of hair-cutting in the premise which is demised from the
time when the tenant's father was himself a tenant, could give rise
to a case of subletting. The appellate Court has adopted the very
same reasoning of the Rent Controller which, in my view, is very
artificial. The findings rendered by the Courts below are clearly
erroneous and cannot be taken as a proper rendering of
appreciation of facts. The orders of eviction passed by the Courts
below are set aside.185

5.2.2.4 Waiver of right to evict

In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co AIR 1959
SC 689186, it has been held by the Apex Court that it is not open to
185
Subhash Chand v. Sham Sunder Mehta, 2012(2) RCR (Rent) 515 (P&H).
186
In Corpus Juris Secundum, Vol. 92, at p. 1068, the law as to waiver is stated as follows:-
"............ a waiver in derogation of a statutory right is- not favoured, and a waiver will be
inoperative and void, if it infringes on the rights of others, or would be against public policy or
morals............... In Bowmakers Limited v. Barnet Instruments Ltd. the same rule was laid

150
the tenant to contend that landlord has waived his right to evict the
tenant on the plea of sub-letting. In that case also, a contention was
raised that right to evict a tenant on the ground of unlawful sub-
letting was a statutory right while like any other right could be
waived by the landlord. But this contention was not accepted on
the ground that the provisions prohibiting sub-tenancy are based on
public policy and that it is not permissible for the tenant to contend
that this statutory right has been waived.187

5.2.2.5 Delay is not waiver

Once a third person asserts an independent title and the tenant does
not claim his tenancy rights, an inference of sub-letting is obvious.
Landlord would be a stranger to any agreement between tenant and
the third person. Contention of sub-tenant that tenant had
surrendered the tenancy rights and he (sub-tenant) was accepted as
tenant by the landlord and he (sub-tenant) was directly making
payment of rent to landlord. No evidence brought on record when
the tenant surrendered his tenancy and when sub tenant was taken

down. Mulla in his Contract Act at page 198 has stated the law as to waiver of an illegality as
follows:-
" Agreements which seek to waive an illegality are void on grounds of public policy.
Whenever an illegality appears, whether from the evidence given by one side or the other, the
disclosure is fatal to the case. A stipulation of the strongest form to waive the objection would
be tainted with the vice of the original contract and void for the same reasons. Wherever the
contamination reaches, it destroys ".
Waiver is the abandonment of a right which normally everybody is at liberty to waive. A
waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not
to insist upon the right. It may be deduced from acquiescence or may be implied.
187
Smt. Niki Devi and others v. Smt. Saroj Bala, 1997(1) RCR 634 (P&H).

151
as direct tenant. It was sub-letting. Delay on part of landlord to take
action will not make sub-tenant as direct tenant.188

5.2.2.6 Parting of legal possession means

"Possession with the right to include and also right to
exclude others"
The conclusion on the question of sub-letting is a conclusion on a
question of law derived from the findings on the materials on
record as to the transfer of exclusive possession and as to the said
transfer of possession being for consideration. In the case of M/s.
Shalimar Tar Products Ltd. v. H.C. Sharma & Others189it was
held that in order to construe subletting there must be parting of
legal possession of the lessee and parting of legal possession means
"Possession with the right to include and also right to exclude
others".
It is settled position of law that to establish sub-letting the onus is
on the landlord to prove through evidence that sub-tenant was in
exclusive possession of the property in question; that between the
sub-tenant and the tenant there was relationship of lessee and
lessor190 and that possession of the premises in question was parted
with exclusively by the tenant in favour of the sub-tenant.191

The principle of law is well settled that in case of subletting of the

premises, the landlord being a stranger to any agreement between

188
M/s Ashish Enterprises through Smt. Aruna Luthra v. M/s Kochhar Industries, 1999(1)
RCR(Rent) 591 (P&H).
189
1988 (1) SCR 1023.
190
Benjamin Premanand Rawade(Dead) by Lrs. v. Anil Joseph Rawade, 1998 (9) SCC 688.
191
Resham Singh v. Raghbir Singh & another, AIR 1999 SC 3087: 1999(7) SCC 263: 1999(3)
PLR 527 (SC).

152
the tenant and the sub-tenant ordinarily will not know the precise
agreement between the tenant and the sub-tenant. If a third person
is in possession, in that event, the Courts would be well within
their right to infer subletting of the premises unless possession of
the third person is explained by the tenant. In the case of Bharat
Sales Limited v. Life Insurance Corporation of India192 the
Supreme Court held as under (at page 1241 of AIR):--
"Sub-tenancy or sub-letting comes into existence when the tenant
gives up possession of the tenanted accommodation, wholly or in
part, and puts another person in exclusive possession thereof. This
arrangement comes about obviously under a mutual agreement or
understanding between the tenant and the person to whom the
possession is so delivered. In this process, the landlord is kept out
of the scene. Rather, the scene is enacted behind the back of the
landlord, concealing the overt acts and transferring possession
clandestinely to a person who is an utter stranger to the landlord, in
the sense that the landlord had not let out the premises to that
person nor had he allowed or consented to his entering into
possession over the demised property. It is the actual, physical and
exclusive possession of that person, instead of the tenant, which
ultimately reveals to the landlord that the tenant to whom the
property was let out has put some other person into possession of
that property. In such a situation, it would be difficult for the
landlord to prove by direct evidence, the contract or agreement or
understanding between the tenant and the sub-tenant. It would also
be difficult for the landlord to prove, by direct evidence, that the
person to whom the property had been sublet had paid monetary

192
1998 Haryana Rent Reporter 150: AIR 1998 SC 1240.

153
consideration to the tenant. Payment of rent, undoubtedly, is an
essential element of lease or sublease."
Before it could be termed that the property has been sublet, a third
person should be in legal possession. If the tenant retains the legal
possession or the right to possession, it cannot be termed that the
property has been sublet or parted with.193

5.2.2.7 Sub-letting and parting with possession

It is well known that expression "subletting and parting with
possession" have not specifically been defined under the Act. They
have well known meanings. In the case of subletting the third
person should be in occupation for consideration. At times it has
been said that he should be a tenant in the premises of the tenant. In
case of parting with possession, the tenant should have parted with
the legal possession. The position herein is identical' The tenants
claim that they are having no right in the property and have already
vacated the premises. A third person sets up the right. The
conclusions are obvious that it is a clear case of parting with
possession/subletting. Supreme Court in the case of M/s. Delhi
Stationers and Printers v. Rajendra Kumar194 held:-
"The tenant is liable to be evicted, if he 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. Sub-letting means
transfer of an exclusive right to enjoy the property in favour of the
third party and the said right must be in lieu of payment of some
compensation or rent. Parting of the legal possession means
possession with the right to include and also a right to exclude

193
Umrao v. Smt. Minu @ Manju and others, AIR 2000 P&H 38: 2000(2) PLR 96.
194
AIR 1990 SC 1208.

154
others. Mere occupation is not sufficient to infer either sub-tenancy
or parting with possession." 195

Ejectment of the respondents sought on the ground of sub-letting.

Respondent No. 1 admitted that he has parted with the possession
of the demised premises in favour of respondent No. 2. Allegation
of collusion with the petitioner is not supported by any material on
record. There is nothing on record to attribute any motive on the
part of respondent no. 1 to collude with the petitioner. No adverse
inference could be drawn against the petitioner.
In Kharar Saw Mill Industry and Furniture Production,
Industrial Co-operative Society Limited and another v. Prem
Kaur (Smt.) and another,196 it was held that burden of proof is on
the landlord initially to prove the fact of sub-letting. However, the
landlord is only to prove that in place of the original tenant
somebody else is in occupation of the premises, independently.
Once that is proved, then it is for the sub-letter to show in which
capacity he is occupying the Premises. Sub-tenant’s claim being
the owner on account of adverse possession, already stands
negative. In this view of the matter, the statement of tenant that he
had put sub-tenant in possession of the shop in dispute and thereby
sub-let it, stands proved. Eviction petition allowed.197

5.2.2.8 Burden of proof

195
Narinder Pal Singh Bindra v. Harminder Kaur Dhindsa and Other., 2000(3) PLR 596:
2000 HRR 670 (P&H).
196
1995(2) Rent Law Reporter 729.
197
Hanuman Ji Ka Bara Mandir v. Nagar Mal and another, 2004 L.A.R. 420 (P&H).

155
Tenancy premises at Karnal and the tenant is residing at Delhi.
Once tenant-petitioner is shown to be residing at Delhi, then the
burden shifted on him to explain by adducing positive evidence
that he was continuing his business at Karnal. The following
observations of the Supreme Court in Bala Shankar Maha
Shanker Bhattjee and other v. Charity Commissioner, Gujarat
State198 may be quoted:-
"Burden of proof would mean that a party has to prove an
allegation before he is entitled to a judgment in his favour. The one
or the other of the contending parties has to introduce evidence on
a contested issue. The question of onus is material only where the
party on which it is placed would eventually lose if he failed to
discharge the same, Where, however, parties joined the issue, led
evidence, such evidence can be weighed in order to determine the
issue; The question of burden becomes academic."
The parting of possession by tenant petitioner to his brother has
been proved. Once the parting of possession exclusively has been
proved, then the law permits raising of an inference with regard to
consideration because such transactions concerning sub-letting in
the guise of license are in their very nature clandestine
arrangements between the tenant and the sub-tenant.199

Four shops have been stated to be sub let by tenant. The fact that
one person has been given four shops i.e. landlord has given four
shops to tenant on one occasion, does not appeal to the reason. In
case a person wants to carry on the shop, he will take one shop on
rent and not three shops.

198
AIR 1995 SC 167.
199
Ashwani Kumar and another. v. Sashi Bala and others, 2005(1) L.A.R.442 (P&H).

156
In Ram Dhan Sharma v. Shri Bishan Sarup Mittal and
another200, Court held that landlord has to prove two ingredients to
prove the sub-tenancy :-
(i) tenant had parted with the exclusive possession of the
property ; and
(ii) the same is for valuable consideration.
The initial burden to prove sub tenancy is always upon
the landlord and not on the sub-tenant.201

5.2.2.9 Mere knowledge of sub-letting cannot estop

landlord from seeking eviction
In Ram Saran v. Pyare Lal and another202, the Hon'ble Apex
Court held that the mere knowledge of the landlord about the
creation of sub-tenancy which was never authorised by the
landlord, cannot estop him from seeking eviction of the tenant on
the ground of sub-letting. The Hon'ble Apex Court has held as
under:-
The Rent Act is a special statute governing and regulating tenancy
and sub-tenancy. Such provisions in the special statute supersede
the general law of tenancy if the provisions of the special statute
are incompatible with the general law of tenancy. Mere knowledge
of the landlord about occupation of the tenanted premises by the
said registered society and acceptance of rent for the tenanted
premises tendered by the tenant in the name of the registered
society, will not create a sub-tenancy unless induction of a sub-
tenant is made with the written consent of the landlord. It is

200
1994-1 PLR 492.
201
Ved Parkash and others v. Tulsi Dass and others, 2012(2) RCR(Rent) 91 (P&H).
202
1996 Haryana Rent Reporter 137.

157
nobody's case that the landlord has given any written consent for
induction for sub-tenant: There is no estoppel against statute.
Hence, even if the landlord has accepted payment of rent for the
disputed premises from the said society, such acceptance of rent
will not constitute legal and valid sub-tenancy in favour of the
registered society. Consequently, landlord will not be estopped
from claiming eviction of unauthorised sub-tenant along with the
tenant indulging in inducting sub-tenant without lawful
authority.203

5.2.2.10 Sub-letting in favour of sons

If a landlord was able to prove parting of possession then inference
of subletting can reasonably be drawn unless the tenant is able to
show some other relationship between him and the sub-tenant. The
fact being in the personal knowledge of the tenant it would be for
him to prove the nature of relationship with him and if the tenant is
not able to satisfactorily explain the nature of that relationship it
would be reasonable for the Court to accept the assertion of the
landlord that the exclusive possession has been parted for valuable
consideration. Proof of monetary consideration by the sub-tenant to
the tenant was not a sine qua non to establish subletting.
Tenant had taken the shop in his individual capacity and thereafter
it was sublet by him in favour of his sons. The mere fact that tenant
had been helping in the business would not make the possession or
control over the business of tenant as legal.204

5.2.2.11 Sub-letting to brothers

203
Ram Kishan v. Moti Ram and another, 2006(2) L.A.R. 36 (P&H).
204
Ramji Dass and others v. Smt. Kamla Rani and others, 2006(2) L.A.R. 350 (P&H).

158
The Hon'ble Supreme Court held in Bhairab Chandra Nandan v.
205
Manadhir Chandra Dutt that a tenant's brother's exclusive
possession of the shop during the business was sufficient proof of
sub-tenancy.
Brother of tenant in exclusive possession of shop and getting
electricity connection in his name. held, it was sub-letting. Tenant
contended that he had partnership with brother. Partnership deed
not produced. Contention of the tenant not tenable.
The nearness of relationship between the parties by themselves will
not give rise to a presumption that such relationship could not
establish sub-tenancy. The exclusive possession of a person other
than the tenant must be adequately established by such person, who
is not a tenant and there will be a presumption drawn in favour of
the landlord and transaction is only sub-tenancy.206

5.2.2.12 Father coming for assistance is not a sub-

tenant
Tenant running business in shop. Eviction of tenant sought on the
ground that he had shifted from Ambala to Ludhiana and had
sublet the shop to his father. Eviction petition dismissed. Children
of tenant were studying at Ambala. This showed that tenant had not
shifted. The fact that father of tenant was regularly coming to shop
to assist his son does not amount to sub-letting.207

205
1988 HRR 199.
206
Abhey Singh v. Shri Arjun Singh Kirpa Ram Charitable Trust, 2009(2) RCR(Rent)
286(P&H).
207
Dev Samaj Society v. Sudhir Kumar and another, 2009(1) RCR(Rent) 321: 2009(1)
RCR(Civil) 804:2009(2) P.L.R. 235.

159
 5.2.2.13 Association of younger brother is no sub-
tenancy
In social setting of this country, an elder brother could always
associate his younger brother in business. The fact that tenant had
another business in same town is irrelevant.208

The law regarding sub letting summed up:

(i) In order to prove mischief of subletting as a ground for
eviction under rent control laws, two ingredients have to be
established, (one) parting with possession of tenancy or part
of it by tenant in favour of a third party with exclusive right
of possession and (two) that such parting with possession
has been done without the consent of the landlord and in lieu
of compensation or rent.
(ii) Inducting a partner or partners in the business or profession
by a tenant by itself does not amount to subletting. However,
if the purpose of such partnership is ostensible and a deed of
partnership is drawn to conceal the real transaction of sub-
letting, the court may tear the veil of partnership to find out
the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between tenant
and alleged sub-tenant or ostensible transaction in any other
form would not preclude the landlord from bringing on
record material and circumstances, by adducing evidence or
by means of cross-examination, making out a case of sub-
letting or parting with possession in tenancy premises by the
tenant in favour of a third person.

208
Satish Kumar and another v. Shri Nanu Ram Jain Charitable Trust, 2009(2) RCR(Rent)
134: 2009(3) R.C.R.(Civil) 783(P&H).

160
 (iv) If tenant is actively associated with the partnership
business and retains the control over the tenancy premises
with him, may be along with partners, the tenant may not be
said to have parted with possession.
(v) Initial burden of proving subletting is on landlord but once
he is able to establish that a third party is in exclusive
possession of the premises and that tenant has no legal
possession of the tenanted premises, the onus shifts to tenant
to prove the nature of occupation of such third party and that
he (tenant) continues to hold legal possession in tenancy
premises.
(vi) In other words, initial burden lying on landlord would
stand discharged by adducing prima facie proof of the fact
that a party other than tenant was in exclusive possession of
the premises. A presumption of sub-letting may then be
raised and would amount to proof unless rebutted.
A three-Judge Bench in Parvinder Singh v. Renu Gautam and
others209 commented upon the device adopted by tenants many a
time in creating partnership as a camouflage to circumvent the
provisions of the Rent Control Act. The following observations are
worth noticing :
The rent control legislations which extend many a protection to the
tenant, also provide for grounds of eviction. One such ground, most
common in all the legislations, is sub-letting or parting with
possession of the tenancy premises by the tenant. Rent control laws
usually protect the tenant so long as he may himself use the
premises but not his transferee inducted into possession of the

209
(2004) 4 SCC 794.

161
premises, in breach of the contract or the law, which act is often
done with the object of illegitimate profiteering or rack-renting. To
defeat the provisions of law, a device is at times adopted by
unscrupulous tenants and sub-tenants of bringing into existence a
deed of partnership which gives the relationship of tenant and sub-
tenant an outward appearance of partnership while in effect what
has come into existence is a sub-tenancy or parting with possession
camouflaged under the cloak of partnership. Merely because a
tenant has entered into a partnership he cannot necessarily be held
to have sub-let the premises or parted with possession thereof in
favour of his partners. If the tenant is actively associated with the
partnership business and retains the use and control over the
tenancy premises with him, maybe along with the partners, the
tenant may not be said to have parted with possession. However, if
the user and control of the tenancy premises has been parted with
and deed of partnership has been drawn up as an indirect method of
collecting the consideration for creation of sub-tenancy or for
providing a cloak or cover to conceal a transaction not permitted by
law, the court is not estopped from tearing the veil of partnership
and finding out the real nature of transaction entered into between
the tenant and the alleged sub-tenant.
A person having secured a lease of premises for the purpose of his
business may be in need of capital or finance or someone to assist
him in his business and to achieve such like purpose he may enter
into partnership with strangers. Quite often partnership is entered
into between the members of any family as a part of tax planning.
There is no stranger brought on the premises. So long as the
premises remain in occupation of the tenant or in his control, a
mere entering into partnership may not provide a ground for

162
eviction by running into conflict with prohibition against sub-
letting or parting with possession. This is a general statement of
law which ought to be read in the light of the lease agreement and
the law governing the tenancy. There are cases wherein the tenant
sub-lets the premises or parts with possession in defiance of the
terms of lease or the rent control legislation and in order to save
himself from the peril of eviction brings into existence, a deed of
partnership between him and his sub-lessee to act as a cloak on the
reality of the transaction. The existence of deed of partnership
between the tenant and the alleged sub-tenant would not preclude
the landlord from bringing on record material and circumstances,
by adducing evidence or by means of cross-examination, making
out a case of sub- letting or parting with possession or interest in
tenancy premises by the tenant in favour of a third person. The rule
as to exclusion of oral by documentary evidence governs the
parties to the deed in writing. A stranger to the document is not
bound by the terms of the document and is, therefore, not excluded
from demonstrating the untrue or collusive nature of the document
or the fraudulent or illegal purpose for which it was brought into
being. An enquiry into reality of transaction is not excluded merely
by availability of writing reciting the transaction.
In Parvinder Singh v. Renu Gautam210 a three-Judge Bench of
this Court devised the test in these terms:211
"If the tenant is actively associated with the partnership business
and retains the use and control over the tenancy premises with him,
maybe along with the partners, the tenant may not be said to have
parted with possession. However, if the user and control of the

210
(2004) 4 SCC 794.
211
SCC p. 799, para 8.

163
tenancy premises has been parted with and deed of partnership has
been drawn up as an indirect method of collecting the
consideration for creation of sub-tenancy or for providing a cloak
or cover to conceal a transaction not permitted by law, the court is
not estopped from tearing the veil of partnership and finding out
the real nature of transaction entered into between the tenant and
the alleged sub- tenant".
In Nirmal Kanta (Dead) Through LRs. v. Ashok Kumar and
another212 this Court held thus :
What constitutes sub-letting has repeatedly fallen for the
consideration of this Court in various cases and it is now well-
established that a sub-tenancy or a sub-letting comes into existence
when the tenant inducts a third party stranger to the landlord into
the tenanted accommodation and parts with possession thereof
wholly or in part in favour of such third party and puts him in
exclusive possession thereof. The lessor and/or a landlord seeking
eviction of a lessee or tenant alleging creation of a sub-tenancy has
to prove such allegation by producing proper evidence to that
effect. Once it is proved that the lessee and/or tenant has parted
with exclusive possession of the demised premises for a monetary
consideration, the creation of a sub-tenancy and/or the allegation of
sub-letting stands established.

In Vaishakhi Ram and others v. Sanjeev Kumar Bhatiani213, it

was held that the following ingredients must be satisfied before an
order of eviction can be passed on the ground of sub-letting:

212
(2008)7 SCC 722.
213
(2008) 14 SCC 356.

164
 (1) the tenant has sub-let or assigned or parted with the
possession of the whole or any part of the premises;
(2) such sub-letting or assigning or parting with the possession
has been done without obtaining the consent in writing of the
landlord.
It is well settled that the burden of proving sub-letting is on the
landlord but if the landlord proves that the sub-tenant is in
exclusive possession of the suit premises then the onus is shifted to
the tenant to prove that it was not a case of sub-letting.214

5.2.2.14 Additional evidence to prove sub-tenancy

Landlord filed suit for eviction against tenant and sub-tenant on the
ground of sub-letting. Sub-tenant claimed in written statement that
he was also a tenant. Sub-tenant failed to produce certain
documents showing him a tenant. Subsequently at the stage of
argument sub-tenant sought to produce documents wherein
landlord had admitted him as a tenant. It was held that documents
sought to be produced in additional evidence are vital piece of
evidence which go to the root of the case to decide the real
controversy. Mere fact that tenant was negligent and has not
produced documents at earlier stage is not a sufficient ground to
negate his prayer. Tenant was allowed to adduce additional
evidence.215

5.2.2.15 Sub-letting of part of the building

214
Celina Coelho Pereira and others v. Ulhas Mahabaleshwar Kholkar, 2009(2) RCR(Rent)
458: 2009(6) R.A.J. 248 (SC).
215
Amarjit Singh v. Baldev Singh, 2009(2) RCR(Rent) 508 (P&H).

165
Tenant had to say about the nature of possession of the sub-tenant
that "He has permitted alleged sub-tenant to live in the exclusive
room of the barsati portion for a few months but he never parted
with possession of the demised premise to alleged sub-tenant."
Exclusive possession was not available which is pointed out by the
following circumstances:
(i) the access to the barsati portion was only through stair
case that was a part of the demised premise;
(ii) the barsati portion could have been reached only through
the stair case in the possession of the tenant;
(iii) the tenant was never prevented from going to the barsati
portion at any time and
(iv) the barsati portion had not been shown to be under the
lock and key of the sub-tenant.
The understanding of what is exclusive possession could
also be seen by an explanation on a logical query of what
would not be exclusive possession. If there was a first
floor access through a stair case and that the stair case
was a part of the tenanted premise, it cannot make
impossible the exclusivity of possession for the first floor
premises. If such an argument must be taken that a tenant,
who takes on possession of property with one stair case
even if he allows one floor of the premises to be sublet as
a matter of fact and the access was only through a
particular stair case which was in the portion of the
tenant, he could easily get over by saying that there was
no independent stair case apart from the property in his
possession and therefore, exclusivity of possession was

166
 not established. It is wholly illogical to make such an
argument.
The law does not require subletting to be created in
respect of whole of the property that was rented out. The
expression used in Section 13 is subletting of entire
building or any part thereof. A barsati portion was such
other portion of the demised premises.216

5.2.2.16 A person other than tenant occupying the

premises is a sub-tenant
It has been found that a third person who is a stranger and was not
related to the tenant or her husband has been occupying part of the
demised premises and his possession was exclusive. Contention of
the tenant is that said person has been kept there to protect his
forcible eviction by the landlord. It was held to be a sub-letting.217

5.2.2.17 Sub-letting effected prior to commencement

of Act is inapposite
A tenant who had validly sublet the building in Chandigarh before
the commencement of the Rent Act could not be evicted on the
ground of subletting. The Hon'ble Supreme Court had also
categorically laid down in decision of Tirath Ram Gupta v.
Gurubachan Singh and another, (1987) 1 SCC 712 that a sub
lease effected prior to the commencement of the Rent Control Act
in the area made the Act itself inapplicable.218

216
Om Parkash Goyal v. Ram Piari Waryam Singh, 2013(1) RCR(Rent) 515 (P&H).
217
Sandesh Kumar Sethi v. Tilak Raj Sharma, 2008(2) RCR(Rent) 550 (P&H).
218
M/S Bombay Motors v. Smt. Bhagwanti, 2009(1) RCR(Rent) 275 (P&H).

167
In the decision of the Supreme Court in Vora Rahimbhai Haji
Hasanbhai Popat v. Vora Sunderlal Manilal219, the Hon'ble
Supreme Court held that sub-letting made before coming into force
of the Act would not be actionable and that a tenant could not be
ejected on the ground of sub letting.220

5.2.2.18 Sub-letting is a question of law

The High Court in exercise of its revisional jurisdiction has power
to satisfy itself as to whether the question of subletting which is a
question of law was properly decided by the courts below based on
the evidence.221

Law as enumerated by Supreme Court is summed up:

(i) a sub-tenancy is invariably a secret arrangement and the
Court will only look to the conduct of the parties in
evidence to determine whether the case of sub-tenancy is
true or not and the exclusive possession of the sub-tenant
is established or not;
(ii) production of records may have an important bearing on
the nature of enjoyment of a tenant or a sub-tenant and
adverse inference could be drawn against the person, who
has the custody of records which can establish his own
control and disprove that another person who was said to
be a sub-tenant had no connection with such business.222

219
AIR 1986 SC174.
220
Harbans Lal v. Smt. Sushma Kapil alias Nikky Kapil, 2009(1) RCR(Rent) 481 (P&H).
221
Shashi Jain v. Tarsem Lal, 2009(1) RCR(Rent) 486.
222
Parikshat Suri v. Ashok Kohli, 2009(2) RCR(Rent) 87 (P&H).

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In Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and
others223, it was held that the tenant person remaining in possession
after the determination of tenancy shall become a statutory tenant,
but he cannot enforce the terms of original tenancy. This decision
was rendered in the context of Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 where the sub-lessee from a
statutory tenant claimed protection against eviction. The Hon'ble
Supreme Court held that a tenant's entitlement to sublet under the
terms of the lease should not be exercised after the lease period had
expired and when the tenant held a right only to possession as
statutory tenant.224

5.2.3 S. 13(2)(ii)(b) Change of user

5.2.3.1 Scope and interpretation
On analyzing clause (b)225, it seems plain that the pride of place for
its interpretation must first obviously go to "the purpose for which
the building or rented land was leased. For precision of
terminology this may be labeled as the specific original purpose.
This indeed is the sheet anchor or the anvil on which either the
immediate or the subsequent change of user is to be tested.
Consequently herein the basic premise is to first determine with
precision as to what was the original purpose of the lease of the
premises; For this, one has to examine closely the language of the
lease deed if there is a written document to this effect. Failing that
the Controller must determine the terms of the oral or the
223
AIR 1965 SC 414.
224
Chanan Ram Lal Chand, Karyana Merchant and others v. Prem Chand and others,
2009(2) RCR(Rent) 227 (P&H).
225
S. 13(2)(ii)(b): used the building or rented land for a purpose other than that for which it
was leased.

169
documentary evidence established on the record regarding the
specific original purpose of the lease. The lease deed or the
established contract on the point of the specific original purpose
has then to be precisely construed with regard to its scope and what
can reasonably come within its terms. Once this is settled then
alone can one proceed to the next stage of the enquiry.
Have the premises been used for a purpose 'other' than that for
which they were leased is the next question. To put it in well-
known phraseology the issue is--has there been a change of user or
not? The Controller has to be satisfied that the subsequent user is
'other' of different from the specific original purpose. Though on
principal and the language of the statute, the intent seems to be
clear yet there is not gainsaying the fact that in its practical
application this somewhat ambivalent issue has posed serious
problems.226

5.2.3.2 Added user of the premises which is an

adjunct or ancillary to original purpose would not
amount to change of user
The Supreme Court in Maharaj Kishan Kesar v. Milkha Singh227.
holding that the setting up a petrol pump was part of the business
of an automobile workshop, their Lordships categorically observed
as follows:--
"While we would net call the business of selling petrol as an allied
business of the workshop we have little doubt that it can well be
regarded as part of the business. There is no evidence to show that
in the trade a petrol pump is not regarded as a part of a motor

226
Sikandar Lal v. Amrit Lal, 1984(1) RCR(Rent) 218 (P&H) (FB).
227
1966 Cur LJ 273.

170
workshop business. Upon this view we allow the appeal with costs
throughout. There will be only one act of hearing fees."
Equally it seems to emerge from a long line of authority. That
where the subsequent use of the premises is merely ancillary to the
specific original pure then also it would imply no change f user
within the meaning of the statute. If by custom or convention. or on
the finding of the Court it can be held that the added use of the
premises is ancillary to the main original purpose then in the eye of
law it would be deemed to have been within the terms of original
lease.
Therefore, both on principle and on binding precedent it emerges
that the specified original purpose cannot be extended by adding to
it any and every allied purpose thereto, and the same must be
confined within the limitation of being either a part and parcel of,
or ancillary to the original purpose.
In Mehta Baldev Dutt v. Puran Singh228, it was held that where
premises have been originally leased for a specific purpose, then
any subsequent use thereof, which is a part of, or ancillary to, the
said specified purpose, would not amount to a change of user
within the meaning of S. 13 (2) (ii) (b) of the Act.
In the present case, it is common ground that the premises were
originally leased for the business of handlooms (brai karobar
kheddie). It deserves notice that this original purpose was not even
in terms specified as handlooms alone, but a somewhat larger
connotation, generally of the business of handlooms. It is
inescapable that this would be somewhat wider and broader. It is
not in dispute that, in pursuance of the original lease, the tenant did

228
(1980) 1 Ren CR 130.

171
set up handlooms (Khaddis) on the premises and equally it is
common ground that these handlooms continue on the spot and the
original purpose thus also subsists. The straw upon which the
landlord wished to clutch was the mere addition of a small carding
machine not occupying a space of more than 4 feet x 4 feet on the
premises. It is the concurrent finding of the Courts below that this
carding machines merely converts old cloth into thread which
again is the basic wherewithal for running the handlooms and
hence there is no change of user.229

5.2.3.3 Change of user from commercial to

residential
Demised premises was taken for running a school which is
admittedly, a commercial activity. A perusal of the record further
reveals that the learned Appellate Authority has recorded a positive
finding to the effect that the site plan shows the demised premises
to be a house and on one side thereof, a school is being run.
Admittedly, no permission was taken from the Rent Controller to
convert the residential premises into commercial premises for the
said user. Hence, this Court is in absolute agreement with the
findings of the learned Appellate Authority, that without there
being any direction from the Rent Controller to change the nature
of the building, it has to be held that there was a change of user by
the tenants.230

5.2.3.4 Change of user where letting purpose not

established

229
Sikandar Lal v. Amrit Lal, 1984(1) RCR(Rent) 218 (P&H) (FB).
230
Mrs. Darshana Sharma v. Dr. Vinod Veena, 2013(1) RCR(Rent) 478 (P&H).

172
Normally speaking, the property would be let out for residential,
commercial, manufacturing or charitable purposes etc. In only rare
cases the landlord would let out the property for specific purpose.
This question as to whether in the particular facts whether it would
amount to change of user or not, had been considered by the
Supreme Court in the case of Mohan Lal v. Jai Bhagwan231. In the
cited case the property was let out for carrying on the business of
English Liquor Vend. The tenant changed it from liquor vend to
general merchandise. The Supreme Court held that in one sense it
could be called an allied business in expanding concept of
departmental stores.
The purpose of letting shown has been only commercial. Otherwise
also earlier bidies were being sold. Presently the sanitary and pipe
fittings were sold. Not only the property is being used as a shop but
it is an extension of the business for sale of certain goods. Just like
in the case of Mohan Lal it would be an extension of a big business
store rather than a case of change of user. Therefore, it cannot be
termed that the ground of eviction as such was available.232

The premises in dispute was rented out to the respondent tenant for
karyana shop, whereas the respondent tenant converted its use to a
tea vending shop, by installing bhatti. He also led evidence to
prove, that because of change of user, value and utility of the
building had diminished, as the roof of shop had blackened, and the
wall also developed cracks.

231
1988(1) RCR 444 (SC).
232
Des Raj Ashok Kumar v. Raj Kumar and others, (1999) 123 PLR 111.

173
In Gurdial Batra v. Raj Kumar Jain233, the Apex Court was seized
of a similar proposition. In their wisdom their Lordships were
pleaded to approve a broad categorisation of residential and
commercial tenancies to hold that change of user from one
category to other, without the prior permission of the landlord,
would attract the liability to ejectment but otherwise keeping in
view the modern concept of trade and business, it would be defying
the logical aspiration of a progressive society if a tenant were
restrained from shifting from one commercial venture to the other.
Of course, the shift could not be stretched or permitted to the extent
of causing any damage to the property or prejudice to the landlord
or from retail business to the manufacturing process and vice versa.
It appears that the "Bhatti" used by the tenant for the preparation of
tea etc. was affixed outside the shop premises. So, it is difficult to
understand as to how such a small affixture, necessary for running
the business of tea stall, could damage the demised premises. After
all it was neither a furnace nor cauldron of the type which could
have any irredeemable impact on the building.
The Hon'ble Supreme Court in Bharat Lal Baranwal v. Virendra
Kumar Aggarwal234was pleased to hold, that when the premises
were let out for selling copies and books, the installation of
printing press amounted to change of user.
The landlord did not produce any rent note showing the purpose for
which the premises were let out. Once it was given for business
purposes and merely because there was change of business, would

233
1989(2) Rent Control Reporter 233.
234
2003(1) Rent Control Reporter 178.

174
not change the category from one to another, therefore, would not
be a ground to seek eviction by alleging change of user.235

5.2.3.5 New business added to original business does

not amount to change of user
When a question arose that when earlier business is still being
carried out as per terms of the lease and another business had been
added, whether it would amount to change of user or not? The
Supreme Court in the case of Mohan Lal v. Jai Bhagwan236,
where the property had been let for a liquor vend. The business of
general merchandise had been started. The Supreme Court held
that this was the expanding concept of departmental store and
would not amount to change of use.
In the present case business of sale of ice which was the purpose of
letting is continuing. In addition to that, sale of coal and wood has
been started in the property. It is not even held by any Court that it
would impair the value and utility of the property. If immediately
another business is started and the business for which it was let was
also continuing the said ground of eviction without it having
impaired the value and utility of the premises or detrimental to the
interest of the landlord cannot be available.237

5.2.3.6 No change of user where it is established that

property let out for commercial purpose
It is not established on the record that immediately after the letting
out of the premises, tenant had been using this property for

235
Chhat Ram v. Lakhpat, 2009(2) RCR(Rent) 510 (P&H).
236
1988(1) RCR(Rent) 444 (SC).
237
Shri Ram Parkash v. Surinder Pal Singh, 1999(2) RCR(Rent) 502 (P&H).

175
residential purposes. Rather it is established by documentary
evidence that tenant applied to the Municipal Committee for
raising construction of the mid premises, as he wanted to install
engine, Chakki Kohlu etc. and this site plan was sanctioned. The
application by tenant was moved in the month of January, 1950.
Once it is established that the demised premises in question were
taken on rent for commercial use, it will not be open for the
landlord to say that the respondents have changed the user of the
property within the meaning of Section 13(2)(ii)(b) of the Act.238

5.2.3.7 Shop let out for tea-stall, started running it

for welding work, changed the user of the shop.
In Ghansharn Dass v. Gurdwara Shri Guru Nanak Sat Sangh
Sabha Regd., Sonepat through Sardar Singh, Secretary of the
Sabha resident of Sonepat239 wherein it was observed "it is a
matter of common knowledge that oxygen is highly inflammable.
When cylinders full of this gas are kept in a shop there are greater
possibilities of their catching fire by accident. Even original user is
not specified and the shop is let out for business, that would imply
that the shop is being acquired by the tenant for carrying on a
business in innocuous articles. When that user is changed in the
sense that highly inflammable articles for sale are kept in the shop,
it shall have to be held that there is a change of user which
disqualifies the tenant to retain the shop as a tenant."240

238
Bawa Daswanda Singh v. Saswant Singh and others, 1997(1) RCR 261 (P&H).
239
1983(1) Rent Law Reporter 664.
240
Deepak Kumar and others v. Jai Narain and others, 1997(2) RCR(Rent) 399 (P&H).

176
 5.2.3.8 Selling plastic goods and rubber shoe in shop
let out for general merchandise does not change user of
the property
Two shops had been let out. One of the shops was being used for
sale of vegetables and the other for general merchandise. The
petitioner's case was that besides the same, the plastic goods and
rubber shoes were being sold also in the other shop.
The sale of plastic goods and shoes business is being run but on a
small portion of the shop. The matter in this regard requires no
probing. It is concluded by the decision of the Supreme Court in
the case of Gurdial Batra v. Raj Kumar Jain241. Therein the
premises were let out for commercial purpose i.e. for running of
cycle/rickshaw repair shop. In addition to that the tenant started
sale of televisions. It was held that this will not give rise to the
ground of eviction under Section 13(2)(ii)(b) of the East Punjab
Urban Rent Restriction Act. Identical is the position herein.
Obviously, it must follow that there is no change of user.242

5.2.3.9 Mere use of one room for disposing of office

work does not change classification of property from
residential to non-residential
Merely because one portion has been used for residential purposes
would not result into a valid conclusion that there is change of user
from commercial to residential.
Findings recorded by both the Courts below do not leave any room
for a doubt that the dominant purpose for which the demised shop
has been used by the tenant-petitioner is the residential one. There

241
AIR 1989 SC 1841.
242
Shri Tek Chand v. Shri Anant Ram, 1999(3) PLR 680.

177
is no requirement of law as envisaged by Section 13(2)(ii)(b) of the
Act that the whole premises should be put to a changed use. In-
other words, if a tenanted premises has been partially put to a
changed use, even then the ejectment of the tenant could be
ordered. It is well settled that a landlord could rent out a building
for residential business or manufacturing purposes and if the tenant
continues to maintain the dominant purpose for which the building
was let out, then he himself becomes liable to be evicted, but if the
dominant use of the building is changed then the tenant would be
liable to be evicted. The afore-mentioned principle has been laid
down by the Supreme Court in the cases of Bharat Lal Baranwal
v. Virender Kumar Agarwal243. The view of their Lordships is
evident from paras 12 and 13 of the judgment which reads as
under; "Broadly speaking, a building can be let out for three
purposes;
1. Residential
2. Business
3. Manufacturing.
If the dominant purpose for which a building is let out is
maintained, a tenant may not become liable to be evicted. But if the
building is let out for residential or business purposes and the
tenant starts manufacturing activity or vice versa, then it would
amount to change of user subject to the provisions of the Act in
reference."
It is evident that if a building is let out for residential purpose and
its use is changed to business or vice-versa, then the tenant-
petitioner becomes liable to be evicted. In the present case, the

243
(2003)2 S.C.C. 343.

178
demised shop was rented out for a commercial purpose and it has
been established on record that the same is being used for
residential purpose, inasmuch as nine members of the family are
residing in the demised shop with- out the consent of the landlord.
Even the marriage of the daughter of the tenant petitioner was
solemnised at the address of the demised shop. There is an
overwhelming evidence on record to prove these fuels. The
dominant purpose to which the building has been put is the'
residential and not the commercial. Therefore, the tenant-petitioner
is liable to be evicted.244

5.2.3.10 Change of user without written consent

The demised premises was given for running photography business
but tenant is doing the business of in the name of M/s Delight Boot
House. There was a condition enumerated in the Rent Note that in
case of any change in user, written consent is required. It was
change of user.245

5.2.3.11 Change of user and nuisance

The premises have been let out for residential purposes and the
tenant used to carry the business of Band Master and the
photographs have been taken which show that the tenants parked
their vehicle having musical instruments fixed therein. Therefore, a
room let out for residential purpose, has been changed to shop and
not only it amount to change of user, but by playing musical
instruments in a locality it can be safely inferred that the tenant has
caused nuisance in the locality. It was held that there has been

244
Chhotey Lal and others v. Rajinder Kumar, 2005(1) L.A.R. 638 (P&H).
245
Surjit Singh v. Tejinder Singh, 2008(2) RCR(Rent) 590 (P&H).

179
change of user from residential to the commercial and permanent
nuisance has been caused by the tenant.246

5.2.4 S. 13(2)(iii) Material impairment

5.2.4.1 Material alterations contemplate change of
substantial nature of affecting the form and character
of building
The Supreme Court in Om Prakash v. Amar Singh and
another247, while referring to the expression of as to what could be
the 'material impairment' held:-
"The material alterations contemplate change of substantial nature
of affecting the form and character of building. Many a time
tenants make minor constructions and alterations for the
convenient use of the tenanted accommodation. The Legislature
does not provide for their eviction instead the construction so made
would furnish ground for eviction only when they bring about
substantial change in the front and structure of the building.
Construction of a Chabutra, Almirah, opening a window or closing
a verandah by temporary structure or replacing of a damaged roof
which may be leaking or placing partition in a room or making
similar minor alterations for the convenient use of the
accommodation do not materially alter the building as inspite
constructions the front and structure of the building may remain
unaffected. The essential element which needs consideration is as
to whether the constructions are substantial in nature and they alter
the form, front and structure of the accommodation."

246
Khazan Singh and others v. Prithvi Singh Sharma, 2009(1) RCR(Rent) 173 (P&H).
247
A.I.R. 1987 S.C. 617: 1987(1) RCR(Rent) 326 (SC).

180
 5.2.4.2 Meaning and scope of materially “impair”
and “alter”
The definition of the word 'impair" in the Law Lexicon by P.
Ramanatha Aiyar (Reprint Edition) 1987 at page 548 'Impair. To
diminish in quality value excellence or strength of a thing.
The word `impair' means to make worse; to weaken; to unfeeble To
make or become worse or less; to lessen reduce or diminish the
quantity or quality."
"A landlord, in order to be entitled to the grant of permission to
terminate the tenancy, is required not only to prove an act of waste
on the part of the tenant but also to prove that the said act is likely
to impair materially the value or the utility of the house," Smt.
Savitri Devi v. U.S. Bajpai248, and Charan Singh v. Shrimati
Ananthi & others249.
"Mere construction of a false roof which is only wooden or the
setting of a wooden stair or making of a few holes in the roof for
letting out the smoke from the hotel, cannot be held to be such
material alterations which may result in changing the character or
nature of the premises. " Shri Anup Chand & others v. Shri Trilok
Singh250.
In Om Prakash v. Amar Singh & others251, it was held that the
raising of a temporary wall of 6 feet height in a hall in the demised
premises, without digging any foundation in the floor of the hall so
as to convert the hall into two portions for convenient use without
the consent of the landlord and the extension of a pre-existing tin

248
AIR 1956 Nagpur 60.
249
(1966) 6 PLR 780.
250
(1977) I RCJ 752.
251
(1987) l SCC 458.

181
shed on the open land adjacent to the accommodation by
constructing a wall made by bricks or mud and enclosing it by
bamboo tatters would not amount to making of any structural
change of a substantial character either in the form or structure of
the accommodation and as such the construction did not materially
alter the accommodation It was observed that "the expression
'materially alter' means a substantial change in the character, form
and the structure of the building without destroying its identity."
The question whether the constructions materially altered the
accommodation is a mixed question of fact and law which should
be determined on the application of the correct principles.
The meaning of the expression "to impair materially" in common
parlance would mean to diminish in quality, strength or value
substantially. In other words to make a thing or substance worse
and deteriorate. The word "impair" cannot be said to have a fixed
meaning. It is a relative term affording different meaning in
different context and situations. Here in the context the term
"impair materially" has been used to mean, considerable decrease
in quality which may be measured with reference to the antecedent
state of things as it existed earlier in point of time as compared to a
later stage after the alleged change is made or affected suggesting
impairment. Further the use of the word "value" means intrinsic
worth of a thing. In other words utility of an object satisfying,
directly or indirectly, the needs or desires of a person. Thus, the
ground for eviction of a tenant would be available to a landlord
against the tenant, if it is established that the tenant has committed
such acts as are likely to diminish the quality, strength or value of
the building or rented land to such an extent that the intrinsic worth
or fitness of the building or the rented land has considerably

182
affected its use for some desirable practical purpose. The decrease
or deterioration, in other words the impairment of the worth and
usefulness or the value and utility of the building or rented land has
to be judged and determined from the point of view of the landlord
and not of the tenant or anyone else.252

5.2.4.3 Material impairment means something more

than mere impairment
It is abundantly clear from the bare provisions of the relevant
ground of eviction that every impairment of the suit property does
not make the tenant liable to be evicted. It has to be a material
impairment in the value and utility of the building or the rented
land. The material impairment necessarily means something more
than a mere impairment. It will go with the facts and circumstances
of each case that value and utility of the property has materially
been impaired or not.253

Mere fact that the rent has been increased after the disputed
alterations does not deprive a landlord of his right to eject the
tenant on the ground of impairing the value and utility of the
property.254

It was incumbent upon the landlord to allege and prove that the
alterations had been made after that date, when the premises was
rented out to the tenant. Adjacent shop belonging to the same
landlord, similar additions and alterations had also been made.

252
Gurbachan Singh and another v. Shivalak Rubber Industries, AIR 1996 SC 3057.
253
Ravinder Kumar v. Surinderjit Singh.
254
Inderpal v. Sat Narain, 2004(2) Rent Control Reporter 441.

183
Landlord resided in the same premises and, therefore, could not be
unaware of the date on which the alterations had been made.255

The landlord's perception of what constituted the impairment of

value and utility would be relevant. Altering the door for a shutter
may not constitute impairment, but if a verandah is converted
differently with glass cases, it surely alters the appearance of the
construction.256

As regards the case of material alteration, the landlord's plea was

that the tenant had without written consent raised a wall, which
was removed by the landlord earlier when the building was let out
to him. The specific terms of the lease, which contains inter alia a
clause that the tenant shall not make any alteration and shall not
install any machinery and that apart from the above said business
(sweet shop, tea or bakery or grocery or general merchant), he shall
not do any other business. It also states that the tenant shall not be
able to establish a hearth and that he will use only a gas stove.
What the tenant had done was a clear violation of every one of the
terms.
The placement of bhattis, which was specifically barred under the
lease terms and construction of walls, which was again specifically
stated as being impermissible clearly showed what the parties were
bargaining for. The tenant cannot contend in the face of such
express terms that he was at liberty to make any alteration to suit
his own business. It is a trite law that the nature of impairment that

255
Jawahar Lal v. Bal Krishan (Died) Through Lrs., 2006(1) L.A.R. 53 (P&H).
256
Harpal Singh v. Joint Hindu Family M/s. Kishore Lal Rajinder Kumar, 2012(2)
RCR(Rent) 523 (P&H).

184
the Court would be considered should be through prism of the
landlord's perspective. Surely it cannot be arbitrary but they have to
be inevitably considered in the light of whether the landlord's
objection was reasonable or not and whether the tenant's act
constituted violation of statutory terms. The tenant had indulged in
acts which were contemplated by parties as actionable and which
the law sanctions as making possible for a landlord to secure an
order of eviction.257

5.2.5 S. 13(2)(iv) Nuisance

Initially, shop was given on rent to run a Clinic. Petitioner put up a
PCO/STD booth, being situated on the road, many customers
started visiting the same, which has resulted into causing nuisance
to the landlords. Hence tenant is liable to eviction.258

5.2.6 S. 13(2)(v) Cease to occupy

The suit premises were locked for one year and two months. Not
only that, the tenant had surrendered his sales tax number which is
clear pointer that he is not doing any business. To crown it all, the
tenant, who claims to be doing business in the suit premises, has
not produced any document of account books to show that, in fact,
any business was transacted from the suit premises. These findings
clearly show that it had been proved that the petitioner was not
carrying on any business in the suit property and, in fact, had
ceased to occupy the premises for the relevant period. Eviction
order is upheld.259

257
Mulakh Raj v. Neeraj Kumar, 2013(1) RCR (Rent) 262 (P&H).
258
Dr.Lakhi Ram v. Girdhari Lal and another, 2006(1) L.A.R. 417 (P&H).
259
Ram Lok v. Tarloki Nath, 2000(2) PLR 713.

185
Mere closure of a business for some period cannot be termed with
the “ceased to occupy”. Initial onus is upon the landlord that tenant
has ceased to occupy the demised premises.260

5.2.7 S. 13(3)(a) & 13(3)(b) Bonafide

requirement/personal necessity

5.2.7.1 A landlord, under the Act, can seek eviction

of a tenant from a non-residential building on the
ground that he requires it for his own use
The East Punjab Urban Rent Restriction Act, 1949 (the Act), prior
to 1956, permitted a landlord to evict his tenant from a non-
residential building on the ground of bona fide requirement for his
own use, however, the said right of the landlord was taken away by
the East Punjab Urban Rent Restriction (Amendment) Act, 1956
(Punjab Act 29 of 1956) (the Amendment) which came into force
on September 24,1956. Before us the constitutional validity of the
Amendment has been challenged.
The non-residential premises in dispute was given on rent by the
landlord’s father to the predecessor-in-interest of
respondent/tenant. After the death of landlord's father the landlord,
who was in Government service, became owner of the shop. The
landlord retired from service. According to the landlord he is a
Registered Medicines. While he was in service his employer
granted him permission to practice as Homeopath Physician after
office hours. It is the case of the landlord that he intends to start

260
Amar Nath v. Guru Ramdass Textile Mills (Paul Silk Industries), 2002(1) PLR 75.

186
practice as Homeopath Physician and for that purpose he bona fide
requires the shop in dispute for his personal use and occupation.
Prior to the coming into force of the amendment a landlord could
seek eviction of his tenant from a non-residential premises for his
bona fide requirement but the amendment has taken away the said
right of the landlord.
The provisions of the Act, prior to the amendment, were uniformly
applicable to the residential and non-residential buildings. The
amendment, in the year 1956, created the impugned classification.
The objects and reasons of the Act indicate that it was enacted with
a view to restrict the increase of rents and to safeguard against the
mala fide eviction of tenants. The Act, therefore, initially provided,
conforming to its objects and reasons, bona fide requirement of the
premises by the landlord, whether residential or non-residential, as
a ground of eviction of the tenant. The classification created by the
amendment has no nexus with the object sought to be achieved by
the Act. To vacate a premises for the bona fide requirement of the
landlord would not cause any hardships to the tenant. Statutory
protection to a tenant cannot be extended to such an extent that the
landlord is precluded from evicting the tenant for the rest of his life
even we he bona fide requires the premises for his personal use and
occupation. It is not the tenants but the landlords who are suffering
great hardships because of the amendment. A landlord may
genuinely like to let out a shop till the time he bona fide needs the
same. Visualise a case of a shopkeeper (owner) dying young. There
may not be a member in the family to continue the business and the
widow may not need the shop for quite some time. She may like to
let out the shop till the time her children grow-up and need the
premises for their personal use. It would be wholly arbitrary, in a

187
situation like this, to deny her the right to evict the tenant. The
amendment has created a situation where a tenant can continue in
possession of a non-residential premises for life and even after the
tenant's death his heirs may continue the tenancy. We have no
doubt in our mind that the objects, reasons and the scheme of the
Act could not have envisaged the type of situation created by the
amendment which is patently harsh and grossly unjust for the
landlord of a non-residential premises.
The amendment was declared as constitutionally invalid and as a
consequence the original provisions of the Act were restored which
were operating before coming into force of the amendment. The
net result is that a landlord, under the Act, can seek eviction of a
tenant from a non-residential building on the ground that he
requires it for his own use.261

The landlord is carrying on his business from a shop premise

located in a narrow lane, the tenant is in occupation of the premises
located on the main road which the landlord considers to be more
suitable for his own business. The materials on record, in fact,
disclose that the landlord had offered to the tenant the premises
located in the narrow lane in exchange for the tenanted premises
which offer was declined by the tenant. The tenant contends that
the landlord has several other shop houses from which he is
carrying on different business and further that the landlord has
other premises from where the business proposed from the tenanted
premises can be effectively carried out. It would hardly require any
reiteration of the settled principle of law that it is not for the tenant

261
Harbilas Rai Bansal v. The State Of Punjab and another, 1996 AIR 857, 1996 (1) SCC 1.

188
to dictate to the landlord as to how the property belonging to the
landlord should be utilized by him for the purpose of his business.
Also, the fact that the landlord is doing business from various other
premises cannot foreclose his right to seek eviction from the
tenanted premises so long as he intends to use the said tenanted
premises for his own business.262

5.2.7.2 Bonafide need to run independent business

The landlord cannot be forced to carry on business jointly with his
brother. The tenant has another ration shop in the village whereas
the landlord has no other shop from where he can carry on his
business independently. The landlord would have greater hardship
if the said shop is not made available to him. On evaluation of
pleadings, documents and evidence on record, it is abundantly clear
that the landlord has a genuine and bona fide need of the shop in
question to carry on independent business.263

5.2.7.3 Landlord living with mother is entitled to

eject tenant on his mother’s asking him to vacate
Landlord used to live in the house belonging to his mother. Mother
asked him to vacate. Landlord is entitled to eject tenant from his
own building. Occupation of building by landlord has to be in his
own right and not at the sufferance of another.264

262
Anil Bajaj & another v. Vinod Ahuja, 2014 STPL(Web) 369 SC.
263
Dhan Raj v. Legal Representatives of Nemi Chand, 2013(2) RCR(Rent) 1(SC).
264
Bal Kishan v. Raj Kumar, 1997(2) RCR 197(P&H).

189
 5.2.7.4 Landlord can seek eviction from residential
building which was converted into non-residential
building
It was pleaded that the premises in question were non-residential
and the same were rented out to the tenant for commercial purposes
and, therefore, the ground of personal necessity was not available
to the landlord. The premises as found by the courts below are
residential in nature and this finding being a pure finding of fact
and based as it is on the evidence led by the parties cannot be
interfered with in the present proceedings. However, even if we
assume that the premises in question were non residential, the
landlord is entitled to seek eviction of the tenant on the ground of
personal necessity.265

5.2.7.5 Aged landlord not having good relations with

his son and daughter-in-law can seek eviction
As regards the ground of personal necessity of the landlord, he is
about 85 years old and at the fag end of his life has a right to live in
his own house. The fact that he is living at Delhi with his son is no
ground to deny him the right to live in his own house. There is
nothing to disbelieve the testimony of the landlord that he is not
having good relations with his son and daughter-in-law, which is
not unusual in the modern trend of the society. The concept of joint
family living is not liked now and the grown up children like to
live independently.266

265
Shiv Shankar House Pvt. Ltd. v. Anant Pal Singh Grewal, 1997(2) RCR 701 (P&H).
266
Shri Madan Mohan Kaphai v. Sh. Amar Nath Malhotra, 1998(1) RCR(Rent) 247 (P&H).

190
 5.2.7.6 Landlord is the best judge of his need.
Tenant cannot create a clog on the extension of
business
The rented land was required for purpose of business. The premises
which were got vacated during the pendency of the petition from
some other tenant were not sufficient and on one of the premises
which was got vacated, there were buildings which had been let out
to a tent store. The landlord is the best judge of his need. The
demised premises is just adjacent to the factory owned by the
petitioner on which they wish to extend the business and store raw-
material. The tenant cannot dictate terms to the landlord. The
sufficiency or insufficiency of the premises already in occupation
of a landlord is a question which can be judged from the view point
of the landlord. The tenant cannot create a clog on the extension of
landlord's business.267

5.2.7.7 Bonafide requirement of a person to start a

new business even if he has no experience in the new
business
It has been held that a person can start a new business even if he
has no experience in the new business. It does not mean that his
claim for starting the new business must be rejected on the ground
that it is a false claim. Many people start new businesses even if
they do not have experience in the new business, and sometimes
they are successful in the new business also.268

267
Kay Iron Works (P) Ltd. v. Shri Molar Mal, 1998(2) RCR(Rent) 404 (P&H).
268
Ram Babu Agarwal v. Jay Kishan Das, 2009 (2) RCR 455.

191
 5.2.7.8 No personal necessity where landlord has
become citizen of some other country
In Ram Das v. Ishwar Chander269, it was indicated that "bona fide
need" should be genuine, honest and conceived in good faith. It
was also indicated that landlord's desire for possession, however
honest it might otherwise be, has, inevitably, a subjective element
in it. The "desire" to become "requirement" must have the objective
element of a "need" which can be decided only by taking all
relevant circumstances into consideration so that the protection
afforded to a tenant is not rendered illusory or whittled down.
When a person has become a citizen of other country, he would
prefer to live there and there is no personal necessity ground
available to such person.270

5.2.7.9 Personal necessity established to allow three

married daughters to visit their father’s place
It is proved that the landlords are having three married daughters
and it can never be expected that the married daughters will not
visit the house of the landlords. The tenant has gone to the extent
of denying that the landlords have married daughters and
alternatively pleaded that if it is proved that they have married
daughters then they are living out of Amritsar and rather out of
India and never visit the landlords. It is too harsh to expect the
married daughters not to visit the house of the parents. If the
married daughters are staying out of, Amritsar then, on the
contrary, the landlords will certainly require rooms for them to stay
when they visit. It cannot be said that married daughters will visit

269
AIR 1988 SC 1422.
270
Mukhtiar Singh v. Atma Singh Berar, AIR 2000 (P&H) 27.

192
during holidays and for attending some ceremonies only one after
the other and not together. Moreover, it cannot be said that landlord
should not allow his daughters to visit his house and should not
permit any other guest also in order to accommodate his tenant. It
will be too harsh to expect the same. Moreover, there is no drawing
room. Therefore, the say of the respondents that they require the
premises for their accommodation cannot be said to be frivolous.271

Landlady can certainly ask for more accommodation because her

relatives can visit which include her daughters, her son from
United States of America and other relatives. Relatives can come
for her welfare.272

5.2.7.10 Landlord may choose where he wants to put

up after retirement
Landlord requires the building in question for his own use and
occupation and for the use and occupation of his family as
residence. After retirement, he has been putting up in the MLA
quarters at Simla. Government is not permitting him to keep
occupying the MLA quarters at Simla. He belongs to Ludhiana
where he holds ancestral property and most of his relation, nears
and dears are residing in Ludhiana. In the vicinity where this
building is situated number of his close relations are residing. In
old age one looks to his relations for socialising and other needs. In
Himachal Pradesh after retirement, he will be feeling like a fish out
of water. The landlord is the sole arbiter of his choice. It is for the
landlord to choose where he will put up. It is not for the tenant to

271
Surjit Singh v. Hazara Singh, 2000(2) PLR 149.
272
Sumesh Gupta v. Smt. Shamila Gupta, 2000(3) PLR 248.

193
impose upon the landlord his choice. Rent Controller cannot
interfere with the choice of the landlord if the same is bona fide. In
this case, there is no evidence to suggest that the choice of landlord
for this premises is not bona fide.273

5.2.7.11 Need for family members is personal need

The need of the landlady is not supposed to be seen for her
individual comforts but for the comforts of her family members
who are supposed to visit her frequently, especially in her old age.
Hence the need of the landlady is bona fide.274

5.2.7.12 Desire of the landlord to live separately from

his son is bona-fide
A large number of family members are living in the premises.
Accommodation in the possession comprises of only three rooms.
The landlord, has expressly asserted that his son has discarded him
and has desired him to contribute expenses for living with him. It is
evident that the landlord is living with his son at his mercy i.e. at
the sufferance of his own son.
In such circumstances, the desire of the landlord to live separately
from his son is bona-fide.275

5.2.7.13 Need for sisters, brothers and other relatives

is personal need
Landlord has purchased this house which was in occupation of so
many tenants. He got possession from some of the tenants. He

273
Surinder Mohan Aggarwal v. Krishan Mohan Madhok, AIR 2001 (P&H) 33.
274
Yogesh Soni v. Smt. Agya Wanti, 2002(1) PLR 432 (P&H).
275
Bhajan Lal v. Roshan Lal, 2002(3) PLR 229.

194
requested other tenants also to vacate the accommodation in their
occupation. Other tenants did not oblige him. Instead of opening up
front against all of them simultaneously, he can open up front
against some now and against others afterwards, i.e., may be after
getting possession from the tenants whose ejectment he had sought
earlier and successfully.
Why should the bonafides of landlord be doubted? In Indian
society, sisters, brother and other relations do visit and some times
stay for a number of days together. One has to provide
accommodation for their stay. It may not be unbelievable that his
sisters also visit him and he has to think of providing them
accommodation for their stay on their visits to them. The landlord's
need is bona fide.276

5.2.7.14 Old landlady wishing to reside in her native

land, need bona fide
Old age is itself an ailment. Therefore, if at this stage, she wants to
reside in India in her native land in her house in Chandigarh, her
need cannot be held to be not bona fide.277

5.2.7.15 It is not necessary for the landlord to plead

and prove the specific business which he wants to set
up in non-residential premises in respect of which
eviction is sought
The landlord has explained that due to advanced age, he cannot
continue with agricultural operation and, therefore, he wants to set
up a show room for his sons in rented land when made available to

276
P.L. Chopra v. Arun Aggarwal, 2002(3) PLR 642.
277
Manmohan Sharma v. Smt. Swaran Kaur, 2003 HRR 117.

195
him. There is nothing to doubt the veracity of the statement of the
landlord wherein it has been stated that he intends to raise the
construction of a show room to run the business on the rented land.
In Raj Kumar Khaitan and others v. Bibi Abaida Khatun and
another278, the Hon'ble Supreme Court has held that precise nature
of the buisness need not be stated while seeking ejectment of the
tenant.
It was not necessary for the appellants-landlords to indicate the
precise nature of the business which they intended to start in the
premises. Even if the nature of business would have been indicated
nobody could bind the landlords to start the same business in the
premises after it was vacated.
In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kothune
and another279, in para No. 11 of the judgment, Supreme Court
held as under: -
"If a person wants to start new business of his own it may be to his
own advantage if he acquires experience in that line. But to say that
any venture of a person in the business filed without acquiring past
experience reflects lack of his bona fides is a fallacious and
unpragmatic approach. Many a business have flourished in this
country by leaps and bounds which were started by novice in the
field; and many other business ventures have gone haywire despite
vast experience to the credit of the propounders. The opinion of the
learned single Judge that acquisition of sufficient know-how is a
pre-condition for even proposing to start any business, if gains
approval as a proposition of law, is likely to shatter the initiative of
young talents and deter new entrepreneurs from entering any field

278
A.I.R. 1995 Supreme Court 576.
279
A.I.R. 1999 S.C. 2226.

196
of business or commercial activity. Experience can be earned even
while the business is in progress. It is too pendantic a norm to be
formulated that "no experience no venture."
In Joginder Pal v. Naval Kishore Behl280, It was so held by the
Hon'ble Supreme Court as follows:
"The expression for his own use as occurring in Section
13(3)(a)(iii) of the Act cannot be narrowly construed. The
expression must be assigned a wider, liberal and practical meaning.
The requirement is not the requirement of the landlord alone in the
sense that the landlord must for himself require the accommodation
and to fulfill the requirement he must himself physically occupy
the premises. The requirement of a member of the family or of a
person on whom the landlord is dependent or who is dependent on
the landlord can be considered to be the requirement of the
landlord for his own use. The expression landlord require for his
own use, is not confined in its meaning to actual physical user by
the landlord personally. The requirement not only of the landlord
himself but also of the normal emanations of the landlord is
included therein. All the cases and circumstances in which actual
physical occupation or user by someone else, would amount to
occupation or user by the landlord himself cannot be exhaustively
enumerated. It will depend on a variety or factors such as
interrelationship and inter-dependence-economic or otherwise,
between the landlord and such person in the background of social,
social-religious and local customs and obligations of the society or
region to which they belong."

280
(2002) 5 SCC 397.

197
It is not necessary for the landlord to plead and prove the specific
business which he wants to set up in non-residential premises in
respect of which eviction is sought.
It is also not necessary for the landlord to set up a business before
seeking ejectment on the grounds of bona fide personal use and
occupation. The essential idea basic to the cases of eviction on the
ground of bona fide personal use and occupation is that the need of
the landlord should be genuine and honest, conceived in good faith
and the Court may also consider it reasonable to gratify that need.
The requirement in law must have the objective element of a need.
The Court must take all relevant circumstances into consideration
so that the protection afforded by law to the tenant is not rendered
merely illusory or whittled down.281

5.2.7.16 Need of son is the need of landlord

For the purposes of ejectment on the ground of personal necessity,
no distinction between “residential” and “non-residential” building
could be drawn. Need of son is the need of landlord.
The provision (3)(a)(ii) of section 13 of the Act is to be liberally
construed and the expression ‘for his own use’ has to be interpreted
to include the requirement of wife, husband, sister, children
including son, daughter, a widowed daughter and her son, nephew
etc.282

281
Balwant Singh Chaudhary v. The Hindustan Petroleum Corporation Limited Company,
2004 L.A.R. 137 (P&H).
282
Zile Singh v. Om Parkash and another, 2004 L.A.R. 448 (P&H).

198
 5.2.7.17 Availability of another shop which is rented
cannot constitute a valid ground to reject the claim of
the landlord
The landlords have another shop rented to another tenant and no
proceedings were initiated against the other tenant, it was held that
the availability of another shop which is rented cannot constitute a
valid ground to reject the claim of the landlords.283

5.2.7.18 Requirement of family is personal

requirement
A tenant cannot be a party to the determination of the requirement
of the landlord, it was so held in Shiv Sarup Gupta v. Mahesh
Chand Gupta284. The need to occupy the demised premises could
be said to be natural, real, sincere and honest then the need has to
be held to be a bonafide. Total number of three married brothers
and parents, one house comprising of six rooms certainly would
not be sufficient.285

5.2.7.19 Requirement of dependent is personal

requirement
Economic difficulty or financial stringency or family reasons may
compel a landlord to let out a building in his occupation. So long as
it is found to be genuine and bona fide it would amount to vacating
a building for sufficient cause. 'His own occupation' does not mean
occupation by the landlord alone and as an individual. It was held
that the requirement of members of family of the landlord or of the

283
Ashwani Kumar and another v. Sashi Bala and others, 2005(1) L.A.R. 442 (P&H).
284
1999(6) S.C.C. 222.
285
Surinder Kumar Jain and another v. Ravinder Kalra, 2005(1) L.A.R. 656 (P&H).

199
one who is dependent on the landlord, is the landlord's own
requirement.286

5.2.7.20 Requirement of daughter is father’s

requirement
During the pendency of the said suit landlord died. The submission
that the right to sue did not ensue to the benefit of his daughter
since the requirement pleaded by landlord, her late father, was not
for the benefit of his daughter was negatived. It was held that the
question as to the existence of bona fide personal need is a pure
question of fact.287

5.2.7.21 Suit filed by co-owner without consent of co-

owners is maintainable
The landlord was one of the co-owners and non-joinder of other
co-owners in eviction petition is not fatal.
It is not necessary for the co- owner to show before initiating the
eviction proceeding before the Rent Controller that he had taken
option or consent of the other co-owners. However, in the event, a
co-owner objects thereto, the same may be a relevant fact.288

5.2.7.22 Lease-deed has no over-riding effect over

provisions of Rent Act
Mere filing of a petition under Section 4 of the Haryana Urban
(Control of Rent and Eviction) Act, 1973 for determination of the
fair rent of the premises which was rented out in the year 1985,

286
Kailash Chand and another v. Dharam Dass, 2005(2) L.A.R. 9 (SC).
287
E. Parashuraman (D) By Lrs v. V. Doraiswamy (D) By Lr, 2005(2) L.A.R. 548 (SC).
288
Mohinder Prasad Jain v. Manohar Lal Jain, 2006(1) L.A.R. 250 (SC).

200
per- se, is not sufficient enough to draw an adverse inference
against the bona- fides of the landlord. There is not an iota of
evidence led by the Bank to show that the landlord has been
pressurizing the Bank either to increase the rent or to vacate the
premises. On the contrary, the evidence, as discussed by both the
Courts, does reveal that the respondent had gone abroad for higher
education and on his return, filed the ejectment petition with a
specific plea that he wanted to run his own independent business
from the demised premises.
The lease-deed has no over-riding effect over the provisions of the
Rent Act, in terms whereof, a landlord, on the ground of bonafide
personal necessity, can seek ejectment of a tenant.289

5.2.7.23 Commercial use of a room in residential

building cannot disentitle landlord to seek ejectment
Room was constructed as a residential building, though, the same
was let out for commercial purpose. Room is to be used as part and
parcel of residential building, the same cannot be said to be a
commercial building so as to disentitle the petitioner to seek
ejectment.290

5.2.7.24 Requirement of sons is personal requirement

The only residential accommodation in landlord’s possession, is
one kitchen and two rooms on the first-floor and a latrine on the
top-floor. The rooms are of medium size, and a corner of one of
those rooms is being used as a bathroom. Two sons of the landlord

289
Punjab National Bank v. Ankur Singla and others, 2006(1) L.A.R. 532 (P&H).
290
Rajinder Kumar v. Niranjan Lal and another, 2006(2) L.A.R. 510 (P&H).

201
are studying. They require atleast one room for their study. The
landlord also requires a guest-room for the stay of his sister who is
married locally and who often visits him along with her two sons.
There is no ground to upset the bonafide requirement of the
landlord.291

5.2.7.25 Mala fide need

Rented premises situated at Sonepat. Landlords who are three in
numbers are well settled at different places i.e. Delhi, Gurgaon and
Chandigarh. No reasons were forthcoming as to what was the
necessity to shift to Sonepat. It was held that need was not bona
fide need and was merely a desire.292

5.2.7.26 Brothers wanting to start independent

business, requirement bona fide
Growth of families and transformation of joint families into nuclear
families, is a recent phenomena. Therefore, if two brothers want to
part gracefully and start independent business, tenant cannot urge
that they are barred from doing so on account of his hardship.293

5.2.7.27 Alternative accommodation does not

disentitle landlord to seek eviction of tenant
Premises is required by the landlord to start his own business.
Other shop owned and run by landlord’s father. No material to
show that he is inclined to land over the shop and business in

291
Shamma Rani v. Shri Mohan Lal and another, 2007(1) L.A.R. 245 (P&H).
292
Vidya Rattan Taneja and another v. Ram Lal Sachdeva and another, 2009(1) RCR(Civil)
640: 2009(1) RCR(Rent) 52 (P&H).
293
Som Nath v. Pankaj, 2009(2) RCR(Civil) 678: 2009(1) RCR(rent) 423(P&H).

202
favour of the landlord only ignoring his other children. Eviction of
tenant upheld.
Bonafides of land lord cannot be doubted on the strength of
conjectures and surmises. Held:-
i) Tenant cannot dictate terms for his landlord as to how the
latter can adjust him without asking for eviction of the
tenanted premises.
ii) Even if an alternative accommodation is available, it is
for the landlord to decide as to how and in what manner
he should fulfill his requirements.
iii) However a tenant cannot be asked to vacate a premises
on mere desire of landlord.294

Landlord is having a family of 16 members. He is occupying two

rooms. One room in another house of landlord fell vacant, but
landlord let out the same. It is no ground to reject the application of
landlord. It was held that even if alternative accommodation was
available, it is for the landlord to decide as to how and in what
manner he should fulfill his requirement. The tenant cannot dictate
terms to his landlord as to how the latter should adjust his family.
Landlord was seeking eviction of tenant on ground of bona fide
requirement though alternative accommodation was available to
him. Landlord is entitled to seek eviction.295

5.2.7.28 Requirement for setting up brother is

personal requirement

294
Yash Pal Juneja v. Satish Kumar Sandooja, 2009(2) RCR(Civil) 681: 2009(1) RCR(Rent)
420 (P&H).
295
Rani Devi v. Shakuntla Devi, 2009(4) RCR(Civil) 74: 2009(2) RCR(Rent) 218 (P&H).

203
Landlord is seeking eviction on the ground of personal necessity.
Plea of tenant that petition is liable to be dismissed on the ground
that landlord did not plead about the ownership and occupancy of
other premises and also about the eviction of other tenants from
other premises which is one of the ingredient of section 13.
Contention of landlord repelled. Landlord mentioned all details in
the replication and also proved in evidence that other properties
owned by him were in possession of other family members who
were carrying on their business as sole proprietors.
Landlord is seeking eviction to set up his brother in business who
has completed his studies. There is no evidence that brother is
having any independent premises to carry on his business. Eviction
granted.296

5.2.7.29 Landlady to decide which property is best

suited to her considering her old age
The son of landlady has come back from Dubai and is living in the
house at Delhi with his parents. The son has been doing his work
of consultancy firm from his flat which is in a society and
admittedly on the upper floor. In such given circumstances, it
cannot be said that the averments that were made by the landlady
in her petition regarding requirement of the demised premises for
her son are frivolous. Admittedly, the demised premises is a 500
square yards property whereas the premises where the landlady is
at present residing in Delhi is a much smaller property. Hence, the
argument that the husband of landlady is the owner of a flat in a
society where she is residing with her family does not hold any

296
Puran Chand v. Jai Gopal, 2009(2) RCR(Rent) 549 (P&H).

204
forte as it is for the landlady to see as to which property is best
suited to her and where she can reside properly especially when she
is an aged lady and not able to climb stairs. The landlady is not the
owner of the property which is in Delhi and rather, it is her
husband who is owner and thus, it is the sweet will of the landlady
to utilize the property which is under her ownership in the best
possible manner.
The other argument that the landlady has still not applied for the
transfer from Delhi to Gurgaon is also devoid of any merit, for the
reason that the building in Gurgaon(i.e. Demised premises) is
already in occupation of the tenant and does not seem to be be
feasible for the landlady to apply for transfer and after getting
herself transferred from Delhi to Gurgaon, then travel a great
distance from Delhi to Gurgaon and wait till the property is vacated
by the tenant, who is fighting tooth and nail against her. It does not
appeal to a prudent man to get herself transferred from Delhi to
Gurgaon until and unless there is an accommodation to live. The
rate of rent in Gurgaon are extremely high, which is a commercial
hub of Haryana and thus, nobody would like to take a rash decision
and get herself transferred from Delhi to Gurgaon until and unless
the accommodation is available for occupation.297

5.2.7.30 Scope, history of expression “for his own

use”
The question to be determined is; what construction should be
placed on the phrase 'his own use'? Should it be assigned a narrow
meaning that it is the individual requirement of the landlord or in

297
Raj Kumar v. Mrs. Kanak Prabha Bhatia, 2013(1) RCR(Rent) 484 (P&H).

205
other words the requirement of the landlord and the landlord alone
which is germane to the provision or should we assign a wide and
liberal meaning to the expression treating it a vibrant one so as to
respect the context in which it has been used feeling the pulse of
the object behind the provision.
It will be useful to state the principles relevant for interpretation of
a provision contained in a Rent Control Law like the one with
which we are dealing. The spurt of provincial rent control
legislations is a necessary consequence of population explosion. In
Prabhakaran Nair and others v. State of Tamil Nadu and
others298, the Court noticed craving for a home, a natural human
instinct, intensified by post-war migration of human-beings en
block place to place, the partition of the country and uprooting of
the people from their hearth and home as vital factors leading to
acute housing shortage persuading the Legislatures to act and enact
Rent Control Laws. The Court emphasized the need of making the
landlord and tenant laws rational, humane, certain and capable of
being quickly implemented. Benefit of society at large needs an
equalistic balance being maintained between apparently conflicting
interests of the owners of the property and the tenant by inducing
and encouraging the landlords to part with available
accommodation for reasonable length of time to accommodate
tenants without unreasonably restricting their right to have the
property being restored to them, more so, when they genuinely
require it. Such limited safeguarding of landlords' interest ensures a
boost to construction activity which in turn results in availability of
more houses to accommodate more human souls with roof on their

298
(1987) 4 SCC 238.

206
heads. Sabyasachi Mukharji, J., as His Lordship then was,
articulated the empty truism in such words as have become an oft
quoted quotation "tenants are in all cases not the weaker sections.
There are those who are weak both among the landlords as well as
the tenants".
In Malpe Vishwanath Acharya and others v. State of
Maharashtra and another299 this Court emphasized the need of
social legislations like the Rent Control Act striking a balance
between rival interests so as to be just to law. "The law ought not
to be unjust to one and give a disproportionate benefit or protection
to another section of the society". While the shortage of
accommodation makes it necessary to protect the tenants to save
them from exploitation but at the same time the need to protect
tenants is coupled with an obligation to ensure that the tenants are
not conferred with a benefit disproportionately larger than the one
needed. Socially progressive legislation must have a holistic
perception and not a short- sighted parochial approach. Power to
legislate socially progressive legislations is coupled with a
responsibility to avoid arbitrariness and unreasonability. A
legislation impregnated with tendency to give undue preference to
one section, at the cost of constraints by placing shackles on the
other section, not only entails miscarriage of justice but may also
result in constitutional invalidity.
In Arjun Khiamal Makhijani v. Jamnadas C. Tuliani and
others300, this Court dealing with Rent Control Legislation
observed that provisions contained in such legislations are capable
of being categorized into two : those beneficial to the tenants and

299
(1998) 2 SCC 1.
300
(1989) 4 SCC 612.

207
those beneficial to the landlord. As to a legislative provision
beneficial to landlord, an assertion that even with regard to such
provision an effort should be made to interpret it in favour of the
tenant, is a negation of the very principle of interpretation of a
beneficial legislation.
The need for reasonable interpretation of Rent Control Legislations
was emphasized by this Court in Mst. Bega Begum and others v.
Abdul Ahad Khan (dead) by Lrs. and others301. Speaking in the
context of reasonable requirement of landlord as a ground for
eviction the Court guarded against any artificial extension entailing
stretching or straining of language so as to make it impossible or
extremely difficult for the landlord to get a decree for eviction. The
Court warned that such a course would defeat the very purpose of
the Act which affords the facility of eviction of the tenant to the
landlord on certain specified grounds. In Kewal Singh v.
Lajwanti302 it was observed that, while the rent control legislation
has given a number of facilities to the tenants it should not be
construed so as to destroy the limited relief which it seeks to give
to the landlord also. For instance one of the grounds for eviction
which is contained in almost all the Rent Control Acts in the
country is the question of landlord's bona fide personal necessity.
The concept of bona fide necessity should be meaningfully
construed so as to make the relief granted to the landlord real and
practical. Recently in Shiv Sarup Gupta v. Dr. Mahesh Chand
Gupta303, the Court has held that the concept of bona fide need or
genuine requirement needs a practical approach instructed by

301
(1979) 1 SCC 273.
302
(1980) 1 SCC 290.
303
(1999) 6 SCC 222.

208
realities of life. An approach either too liberal or too conservative
or pedantic must be guarded against.
The Rent Control Legislations are heavily loaded in favour of the
tenants treating them as weaker sections of the society requiring
legislative protection against exploitation and unscrupulous devices
of greedy landlords.
The Legislative intent has to be respected by the Courts while
interpreting the laws. But it is being uncharitable to Legislatures if
they are attributed with an intention that they lean only in favour of
the tenants and while being fair to the tenants go to the extent of
being unfair to the landlords. The Legislature is fair to the tenants
and to the landlords both. The Courts have to adopt a reasonable
and balanced approach while interpreting Rent Control
Legislations starting with an assumption that an equal treatment
has been meted out to both the sections of the society. In spite of
the overall balance tilting in favour of the tenants, while
interpreting such of the provisions as take care of the interest of
landlord the Court should not hesitate in leaning in favour of the
landlords. Such provisions are engrafted in rent control legislations
to take care of those situations where the landlord too are week and
feeble and feel humble.
Both the learned counsel for the parties submitted that so far as the
expression 'his own use" as occurring in Section 13(3)(a)(ii)(a) is
concerned no occasion has hitherto before arisen enabling this
Court making an authoritative interpretation and pronouncement.
The nearest available decision is Mst. Bega Begum and Ors. which
has been referred to by the High Court in its impugned judgment
and was relied on by Shri Sudhir Chandra, the learned senior
counsel for the landlord-respondent. Section 11(1)(h) of J & K

209
Houses and Shops Rent Control Act, 1966 provides for the tenant
being evicted if the landlord requires the house for 'his own
occupation'. The Court held that the provision is meant for the
benefit of the landlord and therefore it must be so construed as to
advance the object of the Act. The word "own occupation"
contemplates the actual possession of the landlord whether for his
own residence or for his business. Furthermore, the provision is
wide enough to include the necessity of not only the landlord but
also of the persons who are living with him as members of the
same family. The words "own occupation" cannot be so narrowly
interpreted as to indicate actual physical possession of the landlord
personally and nothing more than that.
Keeping in view the social or socio-religious milieu and practices
prevalent in a particular section of society or a particular region, to
which the landlord belongs, it may be obligation of the landlord to
settle a person closely connected with him to make him
economically independent so as to support himself and/or the
landlord. To discharge such obligation the landlord may require the
tenancy premises and such requirement would be the requirement
of the landlord. If the requirement is of actual user of the premises
by a person other than the landlord himself the Court shall with
circumspection inquire : (i) whether the requirement of such person
can be considered to be the requirement of the landlord, and (ii)
whether there is a close inter-relation or identity nexus between
such person and the landlord so as to satisfy the requirement of the
first query.
Requirement of landlord for his own use, is an expression capable
of attributing an intention to the legislature that what was intended
to be fulfilled is such requirement as would persuade the landlord

210
to have the premises vacated by the tenant, to forego the rental
income, and to put the premises to such use as the landlord would
deem to be his own use and in the given facts and circumstances of
a case the Court too would hold it to be so in contradistinction with
a mere ruse to evict the tenant. The legislature intending to protect
the tenant also intends to lift the protection when it is the
requirement of landlord to put the accommodation to such use as
he intends, away from leasing it out.
We have already noticed that the purpose of the Act is to restrict
increase of rent and the eviction of tenants in urban areas. Still the
Legislature has taken care to provide grounds for eviction, one of
them being the requirement of the landlord. We have to strike a
balance between the need of protecting the tenants from unjustified
evictions and the need for eviction when ground for eviction is one
such as the requirement of the landlord. If we do not meaningfully
construe the concept of requirement the provision may suffer from
the risk of being branded as unreasonable, arbitrary or as placing
uncalled for and unreasonable restrictions on the right of the owner
to hold and use his property. We cannot place a construction on the
expression 'for his own use' in such a way as to deny the landlord a
right to evict his tenant when he needs the accommodation for his
own son to settle himself well in his life. We have to give colour
and content to the expression and provide the skin of a living
thought to the skeleton of the words which the Legislature has not
itself chosen to define. The Indian society, its customs and
requirements and the context where the provision is set in the
legislation are the guides leading to acceptance of the meaning
which we have chosen to assign to the words 'for his own use' in
Section 13(3)(a)(ii) of the Act.

211
Our conclusions are crystalised as under:
(i) the words 'for his own use' as occurring in Section
13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act,
1949 must receive a wide, liberal and useful meaning rather
than a strict or narrow construction.
(ii) The expression, landlord requires for 'his own use', is not
confined in its meaning to actual physical user by the
landlord personally. The requirement not only of the
landlord himself but also of the normal 'emanations' of the
landlord is included therein. All the cases and circumstances
in which actual physical occupation or user by someone else,
would amount to occupation or user by the landlord himself,
cannot be exhaustively enumerated. It will depend on a
variety of factors such as inter-relationship and inter-
dependence, economic or otherwise, between the landlord
and such person in the background of social, socio-religious
and local customs and obligations of the society or region to
which they belong.
(iii) The tests to be applied are :
i. whether the requirement pleaded and proved may
properly be regarded as the landlord's own
requirement? and,
ii. Whether on the facts and in the circumstances of a
given case actual occupation and user by a person
other than the landlord would be deemed by the
landlord as 'his own' occupation or user?
(iv) The answer would, in its turn, depend on
i. the nature and degree of relationship and/or
dependence between the landlord pleading the

212
 requirement as 'his own' and the person who would
actually use the premises;
ii. the circumstances in which the claim arises and is
put forward, and
iii. the intrinsic tenability of the claim. The Court on
being satisfied of the reasonability and genuineness
of claim, as distinguished from a mere ruse to get
rid of the tenant, will uphold the landlord's claim.
(v) While casting its judicial verdict, the Court shall adopt a
practical and meaningful approach guided by the realities of
life.
(vi) In the present case, the requirement of landlord of the
suit premises for user as office of his chartered accountant
son is the requirement of landlord 'for his own use' within
the meaning of Section 13(3)(a)(ii).304

5.2.7.31 “Not occupying another residential building”

The words 'need' and "require' both denote a certain degree of want
with a thrust within demanding fulfillment. 'Need' or 'requirement'
qualified by word 'bonafide' or 'genuine' preceding as an adjective,
is an expression often used in Rent Control Laws. 'Bonafide or
genuine need' of the landlord or that the landlord 'genuinely
requires' or "requires bonafide" an accommodation for occupation
by or use for himself is an accepted ground for eviction and such
expression is often employed by Rent Control legislation
draftsman. The two expressions are interchangeable in practice and
carry the same meaning.

304
Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397.

213
Chambers 20th Century Dictionary defines bonafide to mean 'in
good faith: genuine'. The word 'genuine' means 'natural; not
spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whit
ley define bonafide to mean 'good faith, without fraud or deceit'.
Thus the term bonafide or genuinely refers to a state of mind.
Requirement is not a mere desire. The degree of intensity
contemplated by 'requires' is much more higher than in mere
desire. The phrase 'required bonafide' is suggestive of legislative
intent that a mere desire which is outcome of whim or fancy is not
taken note of by the Rent Control Legislation. A requirement in the
sense of felt need which is an outcome of a sincere, honest desire,
in contra-distinction with a mere pretence or pretext to ev.ict a
tenant, on the part of the landlord claiming to occupy the premises
for himself or for any member of the family would entitle him to
seek ejectment of the tenant. Looked at from this angle, any setting
of the facts and circumstances protruding the need of landlord and
its bonafides would be capable of successfully withstanding the test
of objective determination by the Court. The Judge of facts should
place himself in the arm chair of the landlord and then ask the
question to himself-whether in the given facts substantiated by the
landlord the need to occupy the premises can be said to be natural,
real, sincere, honest. If the answer be in the positive, the need is
bonafide. The failure on the part of the landlord to substantiate the
pleaded need, or, in a given case, positive material brought on
record by the tenant enabling the court drawing an inference that
the reality was to the contrary and the landlord was merely
attempting at finding out a pretence or pretext for getting rid of the
tenant, would be enough to persuade the Court certainly to deny its
judicial assistance to the landlord. Once the court is satisfied of the

214
bonafides of the need of the landlord for premises or additional
premises by applying objective standards then in the matter of
choosing out of more than one accommodation available to the
landlord his subjective choice shall be respected by the court. The
court would permit the landlord to satisfy the proven need by
choosing the accommodation which the landlord feels would be
most suited .for the purpose; the court would not in such a case
thrust its own wisdom upon the choice Of the landlord by holding
that not one. but the other accommodation must be accepted by the
landlord to satisfy his such need. In short, the concept of bonafide
need or genuine requirement needs a practical approach instructed
by realities of life. An approach either too liberal or two
conservative or pedantic must be guarded against.
The availability of an alternate accommodation with the landlord
i.e. an accommodation other than the one in occupation of the
tenant wherefrom he is sought to be evicted has a dual relevancy.
Firstly, the availability of another accommodation, suitable and
convenient in all respects as the suit accommodation, may have an
adverse bearing on the finding as to bonafides of the landlord if he
unreasonably refuses to occupy the available premises to satisfy his
alleged need. Availability of such circumstance would enable the
Court drawing an inference that the need of the landlord was not a
felt need or the state of mind of the landlord was not honest,
sincere, and natural. Secondly, wherever another residential
accommodation is shown to exist as available then the court has to
ask the landlord why he is not occupying such other available
accommodation to satisfy his need. The landlord may convince the
court that the alternate residential accommodation though available
is still of no consequence as the same is not reasonably suitable to

215
satisfy the felt need which the landlord has succeeded in
demonstrating objectively to exist. Needless to say that an alternate
accommodation, to entail denial of the claim of the landlord, must
be reasonably suitable, obviously in comparison with the suit
accommodation wherefrom the landlord is seeking eviction.
Convenience and safety of the landlord and his family members
would be relevant factors. While considering the totality of the
circumstances, the court may keep in view the profession or
vocation of the landlord and his family members, their style of
living, their habits and the background wherefrom they come.
In M. M. Quasim v. Manohar Lal Sharma305, this Court has held
(vide para 18) that the landlord does not have an unfettered right to
choose the premises but merely showing that the landlord has some
other vacant premises in his possession may not be sufficient to
negative the landlord's claim if the vacant premises were not
suitable for the purpose for which he required the premises. This
Court cautioned that the Court must understand and appreciate the
relationship between the legal rules and necessities of life.
In Ram Pass v. Ishwar Chander and others306, this Court has held
that:-
"the need of the landlord should be genuine and honest, conceived
in good faith; and that, further, the court must also consider it
reasonable to gratify that need. Landlord's desire for possession,
however honest it might otherwise be, has inevitably a subjective
element in it and that, that desire to become a "requirement" in law
must have the objective element of a "need". It must also be such
that the court considers it reasonable and, therefore, eligible to be

305
AIR 1981 SC 1113.
306
AIR 1988 SC 1422.

216
gratified. In doing so, the court must take all relevant
circumstances into consideration so that the protection afforded by
law to the tenant is not rendered merely illusory or whittled down".
In Sarla Ahuja v. United India Insurance Co.Ltd.307, this Court
has held that the Rent Controller should not proceed on the
assumption that the landlord's requirement is not bonafide. When
the landlord shows a prima facie case a presumption that the
requirement of the landlord is bonafide is available to be drawn. It
is not for the tenant to dictate terms to the landlord as to how else
he can adjust himself without giving possession of the tenanted
premises. While deciding the question of bonafides of the
requirement of the landlord, it is 'quite unnecessary to make an
endeavour as to how else the landlord could have adjusted himself.
In Prativa Devi (Smt) v. T.V. Krishnan308, this court has held that
in considering the availability of alternative accommodation, not
availability merely but also whether the landlord has the legal right
to such accommodation has to be considered.309

5.2.8 S. 13(3)(c) Unsafe and unfit for human habitation

5.2.8.1 Perverse condition of building make it unsafe
and unfit for human habitation
In the case of Piara Lal v. Kewal Krishan Chopra310, the leased
portion comprised of four rooms on the ground floor. Roof of one
room had fallen. The tenant had replaced the roof only at a cost of
about Rs. 200/-. Eviction petition was filed on the ground that the

307
1998 (8) SCC 119.
308
1996 (5) SCC 353.
309
Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 AIR 2507: 1999(6) SCC 222.
310
A.I.R. 1988 SC, 1432.

217
property in question has become unsafe and unfit for human
habitation.
It was recorded as of fact that roof of one room had fallen which
could be repaired at the meager cost of Rs. 200/-. There is no
evidence that the entire building or substantial portion of it was in a
damaged condition. Supreme Court, therefore, held that it cannot
be termed that whole building had become unsafe and unfit for
human habitation.
However in the present case the photographs clearly show that the
condition of the building is not very good. Roof of one room had
fallen. The building admittedly, is old. Even the roof of the
adjoining shop of the landlord had also fallen. It cannot be termed
that it would be a minor repair. It was held that ground of eviction
was available.311

5.2.8.2 Court to see condition of building on the date

of filing of petition and not on the date of ejectment
order
Court has to see whether the demised premises or the building of
which the demised premises is a part, has become unsafe or unfit
for human habitation on the date of the filing of the petition itself
and not on the date of the ejectment order.312

5.2.8.3 Just because construction is old does not

make building unfit and unsafe
Merely because the building is old one, it cannot be said to be
unsafe and unfit for human habitation. Moreover, if the other part

311
Roshan Lal v. Hari Dass, 1999 HRR 614 (P&H).
312
Mahavir Jain Shoe Store v. Dr. Gian Chand Loomba, 2000(1) PLR 35.

218
of the building has fallen down by itself it will not mean that the
premises in question are also unfit and unsafe for human
habitation.313

5.2.8.4 Mere length of crack by itself would not be

indicative of bad condition of wall, both length and
depth of crack has to be proved
There are big cracks found by the Commissioner on the beginning
of the wall extending from top to more than middle, and another
big crack on another wall. The report records the depth of the
crack, not merely the length of the crack showing the bad condition
of the two walls of the disputed shop. Mere length of crack by
itself may not have foundation to hold its condition of structure of
the shop to be bad but it would be, where the crack measures 2 x
7.5 depth in one wall on the upper side and 1.5 (illegible) on the
lower side and another crack measuring 2 x 8 from the upper side
and 2 x 7 from the lower side. Once the said local Commissioners
report was brought on the record, as part of evidence to show the
subsequent event or condition of building, it was incumbent on the
High Court to have considered it, which it rightly did and if in
doing so an inference is drawn, that the disputed accommodation is
not fit for human habitation it is not such which calls for
interference.314

5.2.8.5 Appraisers shall be allowed to inspect

present true picture before the court

313
Mohinder Pal v. Hari Das, 2000(3) PLR 563.
314
Lekh Raj v. Muni Lal and others, AIR 2001 SC 996.

219
If the expert is permitted to inspect the demised shop after
removing the false ceiling, no prejudice is going to be caused to
any party particularly when the ejectment petition has been filed on
the ground of material impairment and the building being unfit and
unsafe for human habitation. It is always in the interest of justice
that true picture regarding the condition of the demised premises
should come before the Court so that proper adjudication could be
made between the parties.315

5.2.8.6 Merely because the tenant partly

reconstructed the declining premises could not defeat
the landlord's right to seek the tenant's eviction
The original premises is consisting of five rooms out of which the
four had fallen down and the fifth was also at the verge of collapse,
amply proves that the premises had become totally dangerous and
could not be used for human habitation. Merely because the tenant,
without any authority in law, partly reconstructed the premises by
putting the tiled roof, per-se, could not defeat the landlord's right to
seek the tenant's eviction under Section 13(3) of the Act.316

5.2.8.7 When building has become unsafe and unfit,

tenant is not entitled to repair and defeat the claim of
landlord
Photographs annexed with Local Commissioner’s report shows that
building had fallen down and malba was clearly discernible in the
photographs. Tenant’s attempt to reconstruct the building to make

315
Samir (Sameer) and another v. Roshan Puri and others, 2006(1) L.A.R. 118 (P&H).
316
Jai Dev Singh v. M.L. Kapoor, 2007 L.A.R. 631 (P&H).

220
it fit for use leads to filing the suit. Tenant changed the nature of
property. Eviction order was upheld.317

The demised premises had remained under water for a period of

one month and as a result, the walls developed cracks and water
started leaking from various parts. Instead of waiting for the
outcome of the petition filed for repair of the tenanted premises,
the tenant unilaterally and without permission, of the Rent
Controller, repaired the building so as to conceal the true nature
and extent of the damage.
A tenant shall not, by a unilateral act of repair, except where the
repairs are minor and inconsequential, defeat a landlord's right to
seek ejectment and the Rent Controller's statutory jurisdiction to
examine whether the building has become unsafe and unfit for
human habitation.
The tenant, who was facing, a petition for ejectment, on the ground
that the building had become unsafe and unfit for human
habitation, carried out repairs without waiting for the decision of
the Rent Controller on his application for directing the landlord to
repair the building. A presumption was, therefore, rightly raised
against the tenant that in case repairs had not been carried out, the
landlord would have succeeded in establishing that the building
had become unsafe and unfit for human habitation.318

5.2.8.8 Portions of building falling down; tenant

liable for eviction even though his portion is safe and fit
for dwelling

317
Gurcharan Singh and others v. M.L.Kapoor and others, 2004 L.A.R. 296.
318
Smt.Geeta Devi v. Smt.Sushila, 2009(1) RCR(Civil) 669 (P&H).

221
Tenant is occupying a portion of larger building. Other portions of
the same building are falling down. It will be natural to assume that
portion in occupation of tenant had become unfit. Landlord wanted
to put up whole construction including the portion in occupation of
tenant. Landlord is entitled to evict the tenant even if the portion in
occupation of tenant was fit for residence.319

5.2.8.9 Supreme court on unsafe and unfit for

human habitation
There is a distinction between effecting repairs and in its guise to
make structural alteration or to restructure the building. The tenant
cannot effect structural alteration or reconstruct the building. It is
the right of the landlord alone to exclusively have it done, unless of
course, the landlord having had the tenant evicted from the
building for that purpose and demolished the building and failed to
reconstruct and redeliver possession thereof to the tenant. In a
given case if the tenant acts unilaterally and effects structural
alterations or reconstruct the building, it itself may be a ground for
eviction under the appropriate provision of the statute. The test in
each case is whether it is absolutely necessary to have the tenant
evicted to carry out repairs or structural alteration for making the
demised building safe and fit for human habitation. Further it is to
be asked whether the repairs are so fundamental in character and
extensive which cannot be carried out without evicting the tenant
from the building or while the tenant remained in occupation. If the
repairs could be carried out without disturbing the possession of
the tenant, the need for eviction is mere a wish of the landlord or a

319
Pyare Lal v. Krishan Lal, 2009(2) RCR(Rent) 233: 2009(3) P.L.R. 404 (P&H).

222
ruse to have the tenant evicted. Take for instance, a building, in
which commercial activity having established good will, was taken
possession of under section 13(3)(a)(iii) and got no repairs effected
but demolished and no reconstruction was made for a long time.
Prolonged stoppage of business will have a deleterious effect on
the goodwill and cripple the business of the tenant. Each case on its
own facts presents its true colours. Its effect is to be visualised and
considered in its own perspective.320

5.2.8.10 Contradictory reports of tenant and

landlord: Building Unsafe and Unfit for Human
Habitation
Two experts, i.e. one examined by the landlord and the other by the
tenant, had given contradictory reports, the learned Appellate
Authority in order to do substantial justice between the parties
inspected the spot itself and having found the report of
Superintending Engineer (examined by the landlord), trust-worthy
has accepted the same. It was held that the building in question has
become unfit and unsafe for human habitation and the finding of
the appellate Authority in this respect calls for no interference.321

5.3 Scope and interpretation of special procedure for

eviction
In order to satisfy the instinct of a retiring person to live in his own
house and to mitigate his hardship on his retirement having served
the Government the specified landlord i.e. the retiring Government
employee, has been given a right to eject the tenant and take

320
Shadi Singh v. Rakha, 1994 AIR 800, 1992 SCR (2) 726.
321
Chhabil Dass v. Smt. Saroj Garg, 1997(1) RCR 635 (P&H).

223
possession without undergoing the stringent longdrawn rigours of a
trial under the Rent laws.
The provisions of the act succinctly point out that a person who
held an appointment in a public service, or the one who held a post
in connection with the affairs of the Union or of a State can seek
ejectment of the tenant from his premises on his retirement. The
rights of the landlord are not shackled by conventional procedure
for ejectment from a dwelling house. The landlord is supposed to
satisfy the authority i.e. the Rent Controller only to the effect that
he is specified landlord he either held an appointment in a public
service or held a post in connection with the affairs of the Union or
of a State and is not in possession of any suitable accommodation
in the locality and further that there is no lack of bona fides. On
providing the conditions imposed, the landlord would be entitled to
take the possession of the dwelling unit. As observed earlier, this
has been provided in order to promote the welfare of a retiring
employee by affording him an opportunity to have a roof over his
head who had served the State during his career on account of the
exigencies of his service, was sometimes provided with a shelter by
his employer which he had to vacate op. his retirement. In the
absence of this helping hand of law the specified landlord would be
left high and dry without a roof at the fag and of his life when one
is supposed to live in peace after giving best part of his life in the
service of the Union of India or the State.322

5.3.1 Specified landlord

322
Vijay Kumar Bhambari v. Ram Nath Bajaj, AIR 1990 P H 208.

224
A landlord in order to get benefit of section 13-A must be specified
landlord at the time of his retirement from service of Union of
India.323

If the landlord wants to take the benefit of Section 13-A of the Act
to eject his tenant, he is duty bound to prove the relationship of
landlord and tenant and the Rent Controller before he proceeds in
the matter, has to satisfy that the applicant before him is a landlord
and the person proceeded against is a tenant as defined under the
Act. If the Rent Controller comes to the conclusion that no
relationship of landlord and tenant exists, he has no jurisdiction to
decide the other issues. If there is a dispute about the title, the Rent
Controller is not expected to examine the same and the parties are
to be relegated to the Civil Court.324

If retired teachers of private aided schools receive pension they do

not become Government servants merely for that reason. The best
evidence to establish that the landlord was a Government servant
would have been his letter of appointment as Government servant
or the letter vide which he was sent on deputation to the aided
School. Mere receipt of pension does not make all retired teachers
of private schools Government servants.325

5.3.2 Leave to defend

The Rent Controller does not have the jurisdiction to extend the
period of 15 days specified in the form appended to the Act and if

323
Gurdarshan Singh Mann v. Manmohan singh Kapoor, 1989(2) Rent LR 37 (P&H).
324
Som Nath v. Smt. Krishna Devi Nayal, 1997(1) RCR 694 (P&H).
325
Indrasen Jain v. Rameshwardas, 2005(1) L.A.R. 262 (SC).

225
the tenant fails to make an application within 15 days of the service
of summons, he cannot be granted leave to contest the petition filed
by the landlord under Section 13-A of the Act.
The summons sent to the petitioner by registered post were
received by him on 14.1.1992 and that is to be considered as the
date of service of summons upon him for the purpose of computing
the prescribed period of 15 days for filing the affidavit seeking
leave to contest the application.
It was further held that the application filed by the petitioner on
30.1.1992 is barred by time. The Rent Controller does not have the
discretion and jurisdiction to condone the delay in the filing of the
application or to extend the period specified in the form. If at all
the Legislature wanted to make the provisions of Limitation Act
applicable or confer some element of discretion upon the Rent
Controller, nothing prevented it from incorporating an express
provision to that effect.326

No right, title or interest were validly created in favour of the

landlord by way of alleged family arrangement, which was stated
to be a sham transaction, designed and mala fidely aimed at
procuring the eviction of the tenant from the tenanted premises on
false, frivolous and technical grounds by overcoming rigors of rent
law, which is a social legislature enactment for providing
protection to the tenant.
According to the tenant, Eviction Petition titled as Inder Mohan
etc. v. Bhoop Singh Chaudhary, which was pending in the Court
of Rent Controller and in which the present landlord is also one of

326
Ashwani Kumar Gupta v. Shri Siri Pal Jain, 1998(1) RCR(Rent) 222 (P&H)(DB).

226
the parties, falsifies the claim in the present petition and puts
indelible question marks on the bona fides of the petitioner.
The landlord was not having any status of landlord what to talk of
specified landlord at the time of his retirement. The perusal of the
application and affidavit filed by the tenant seeking leave to defend
and contest the eviction petition (which have been placed on record
of this petition) would reveal that the tenant has disclosed
sufficient facts with regard to the subsequent partition between the
parties which was stated to be a sham transaction, in order to
enable the landlord to recover possession of the demised premises
as specified landlord under section 13-A of the Act.327

Conclusion

In Haryana there is no provision as to right to temporary recovery

of possession while in Delhi the landlord is entitled to get
possession of the building, if bona fide, it is required by him to
carry out repairs, alterations or additions, which cannot be carried
out without the building being vacated, after which the building
will again be offered to the tenant. This provision shall be inserted
in the Act as it would give an incentive to the landlord to carry out
the renovation from time to time.

327
Lt.Col.Suraj Parkash (Retd) v. Bhoop Singh Chaudhary, 2009(2) RCR(Rent) 470 (P&H).

227