Delhi District Court
Sh. Narender Kumar Jain vs Sh. Jai Parkash S/O Sh. Jagdish Rai on 6 August, 2010
IN THE COURT OF SH. BALWANT RAI BANSAL
ARC: CENTRAL: TIS HAZARI COURTS: DELHI
E556/09
Sh. Narender Kumar Jain
Karta of HUF Narender Kumar Jain
R/o 1223, Chah Rahat,
Jama Masjid, Delhi110006
...... Petitioner
Versus
Sh. Jai Parkash S/o Sh. Jagdish Rai
Shop no. 1134, Chah Rahat,
Jama Masjid, Delhi - 110006.
Premises in dispute:
12161218, Ground Floor,
Chah Rahat, Jama Masjid,
Delhi 110006
...... Respondent.
Petition u/s 14 (1) (a) & (b) of Delhi Rent Control Act
Date of Institution of the case : 07.05.2004
Date of Judgment reserved : 27.07.2010
Date of Judgment pronounced : 06.08.2010
E556/09 1/ 37
JUDGMENT:
1. Vide this judgment I shall dispose of an eviction petition filed by the petitioner u/s 14 (1) (a) & (b) of Delhi Rent Control Act on the ground of nonpayment of rent and subletting against the respondent.
2. Brief facts, as stated in the petition, are that the respondent is a tenant in respect of one shop on the ground floor of the property no. 12161218, Chah Rahat, Jama Masjid, Delhi under the petitioner at a monthly rent of Rs. 77/. It is stated that the respondent is a habitual defaulter and he has not been paying the rent month by month and the respondent has not paid the arrears of rent for the last more than 3 years despite service of the legal demand notice dated 28.04.1999. Hence, it is stated that the respondent is liable to pay rent w.e.f. 01.05.2001 to 30.04.2004 @ Rs. 77/ p.m. which he failed to pay and therefore, eviction order may be passed u/s 14 (1) (a) of DRC Act. It is further stated the respondent has sublet, assigned or parted with the possession of the suit premises without obtaining the consent in writing of the landlord/ petitioner to M/s Delhi Pram and Tricycle Manufacturing Company. It is further averred that the respondent has lost his control over the tenanted premises and he has only retained one small cabin in the tenanted premises where he comes once or twice E556/09 2/ 37 in a month and otherwise the tenanted premises is exclusively used by M/s Delhi Pram and Tricycle Manufacturing Company. Hence, it has been prayed that an eviction order may be passed in favour of the petitioner and against the respondent in respect of the suit premises u/s 14 (1) (b) of DRC Act.
3. The respondent has contested the petition by filing the written statement in which it is stated that the petition is not maintainable in law as the petitioner is not the karta of HUF, Narinder Kumar Jain and neither Sh. Narinder Kumar Jain or the HUF Narinder Kumar Jain ever remained only the landlord and owner of the property. In fact, the petitioner is one of the coowner of the property because his father Sh. Mahavir Prashad Jain was the owner and landlord of the property and after his death, all his legal heirs including the petitioner became the coowner of the same Hence, the petitioner is not entitled to file the present suit against the respondent. It has been denied that the respondent is in arrears of rent for the last more than three years or that he is liable to pay rent w.e.f. 01.05.2001 to 30.04.2004 @ Rs. 77/ p.m. In fact, it is the petitioner who intentionally and deliberately not accepted the rent from the respondent as and when tendered by the respondent and hence, the rent for the period 01.02.1993 to 31.01.1996 was deposited in the court vide DR No. 38/96 in the month of October, E556/09 3/ 37 1996 amounting to Rs. 2772/ and for the period from 01.02.1996 to 30.09.1996 deposited in the court at the rate of Rs. 77/ p.m. plus 10% which comes to Rs. 85/ p.m., totaling to Rs. 680/ on 09.10.1996 and after that the rent tendered by the respondent through money order dated 01.10.1996 for the period 01.10.1996 to 31.01.1999 @ Rs. 85/ p.m. and from 01.02.1999 to 31.10.2000 @ Rs. 85/ p.m. Plus 10% enhanced rent i.e. Rs. 93.50/ and again the rent was tendered through money order dated 29.05.2003 for the period 01.06.2000 to 31.05.2003 @ Rs. 93.50/ p.m. But the petitioner every time refused to accept the rent tendered by the respondent through the money order and the rent deposited in the aforesaid court intentionally and deliberately with the motive to get the premises vacated from the respondent in illegal manner. Therefore, there is no default on the part of the respondent. The notice dated 28.04.1999 was duly received by the respondent, which was replied through his counsel on 02.08.1999 and the reply was made by the respondent accordingly. It has been denied that the respondent has sublet, assigned or parted with the possession of the suit premises to M/s Delhi Pram and Tricycle Manufacturing Company. It is stated that the respondent is the sole proprietor of M/s Delhi Pram and Tricycle Manufacturing Company since 1992 and prior to that he was the partner in the firm since 1969 and the E556/09 4/ 37 firm belongs only to the respondent and there in no sub letting in the suit premises. The other contents of the petition are stated to be wrong and denied and the respondent has prayed for dismissal of the petition.
4. The petitioner has filed the replication in which contents of the written statement are stated to be wrong and denied and the petitioner has reiterated and reaffirmed the averments made in the petition.
5. In order to prove his case, the petitioner has examined himself as PW1 and has filed his evidence by way of affidavit in which he has reiterated the averments made in the petition. He has placed on record the site plan as Ex. PW1/1, copy of the notice dated 28.04.1999 as Ex. PW1/2, the postal receipt as Ex. PW1/3, the acknowledgment card as Ex. PW1/4, the copy of the reply sent by the respondent through his counsel dated 02.08.1999 as Ex. PW 1/5, the envelop under which the said reply was received as Ex. PW1/6, the certified copy of the Slum permission as Ex. PW1/7.
6. On the other hand, the respondent has examined himself as RW1 and evidence by way of affidavit has been filed which is Ex. R1 in which he has reiterated and reaffirmed the averments made in the written statement. He has placed on record the telephone bill dated 05.04.1980 as Ex. RW1/1, MO receipt no. E556/09 5/ 37 1824 and 1825 along with its returning coupons as Ex. RW1/2, MO receipt no. 3242 along with returning coupons as Ex. RW1/3, MO receipt no. 0566 as Ex. RW1/4, challan dated 13.12.2004 as Ex. RW1/5, challan dated 09.10.1996 for depositing the rent in the court of Ms. Anu Malhotra, Ld. ARC as Ex. RW1/6, letter dated 01.11.1991 sent to the petitioner along with postal receipt no. 0868 and AD Card as Ex. RW1/7. Letter dated 31.12.1991 sent to the petitioner along with postal receipt and AD card as Ex. RW1/8, petitioner notice dated 07.12.1992 through his counsel as Ex. RW 1/9, reply to the notice dated 07.12.1991 along with postal receipt and UPC as Ex. RW1/10 and as Ex. RW1/11 and as Ex. RW 1/11A, Delhi Sales Tax Registration Certificate in the name of the respondent as Ex. RW1/12, Central Sales Tax Registration Certificate as Ex. RW1/13, Delhi State Sales Tax registration form ST37 issued on 29.11.1991 as Ex. RW1/14, Registration Certificate of the firm dated 06.12.1962 as Ex. RW1/16, notice dated 28.04.1999 of the petitioner as Ex. RW1/17, reply to the notice dated 28.04.1999 by the counsel dated 02.08.1999 along with UPC and AD as Ex. RW1/18 and as Ex. RW1/19, notice to the petitioner dated 08.11.2000 through counsel as Ex. RW1/20 and notice to the petitioner dated 30.05.2003 as Ex. RW1/21.
7. The respondent has also examined summoned witness E556/09 6/ 37 Sh. Kulbir Singh, LDC in Sales Tax office as RW2 who has brought the summoned record of the sales tax.
8. I have head the Ld. counsel for the parties and perused the written submissions and record carefully.
9. Ground U/s 14(1)(a) of DRC Act The ingredients required to be proved for the ground u/s 14 (1)
(a) of DRC Act are:
(i) Existence of relationship of landlord and tenant between the parties;
(ii) Existence of arrears of rent, legally recoverable rent from the date of notice of demand; and
(iii) Service of notice of demand in the manner as provided in section 106 of the Transfer of Property Act and
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
10. The case of the petitioner is that he is owner of the suit premises and initially Sh. Jagdish Rai Jain was inducted as tenant in the tenanted premises around October, 1958 and after his death, the respondent being his legal heir became the tenant under the petitioner by operation of law. In the written statement, the respondent has disputed the relationship of landlord and tenant E556/09 7/ 37 between the parties as well as ownership of the petitioner over the property in question. However, in the crossexamination of the petitioner who has examined himself as PW1, the Ld. Counsel for the respondent himself has given a suggestion that he is not the owner of the premises in dispute and he is only the coowner of the premises in dispute, which was denied by the petitioner. The petitioner was also suggested that he has no right to file the petition as Karta of HUF which was again denied by the petitioner. Further, the respondent also admits in the written statement itself that Sh. Mahavir Prashad Jain, the father of the petitioner was the owner and landlord of the property in question and after his death, all his legal heirs including the petitioner became the coowners of the same. As such, the respondent admits the petitioner to be one of the coowner and it is a settled law that even one coowner can maintain the eviction petition.
11. Apart from this, although the respondent has disputed the relationship of landlordtenant between the parties, but in the cross examination RW1 who is respondent himself has categorically stated that his father was paying rent of the suit shop to the petitioner month by month. He further categorically stated that after the death of Sh. Jagdish Rai Jain, he was paying the rent to the petitioner. The respondent has further stated in his cross E556/09 8/ 37 examination that he knew the father of the petitioner Sh. Narender Kumar Jain and he knows his brothers and sisters also. He further stated that he does not know if the petitioner has cordial relations with his brother and sisters. He admitted that no other brother or sister of petitioner ever came to him to demand the rent of the suit premises. He also admitted that the petitioner was issuing the rent receipts when the rent was paid by him.
12. In view of aforesaid categorical admission on the part of the respondent, when his father was paying rentals to the petitioner and after the death of his father, he has been paying the rent to the petitioner, then there is no merit in the contention of the respondent that there exist no relationship of landlord and tenant between the parties or that petitioner is not the owner of the property in question. Hence, it is held that there exist relationship of landlord and tenant between the parties.
13. The respondent has also disputed in the written statement that site plan filed by the petitioner is not according to the site and is wrong. It is alleged that the premises under the tenancy of the respondent bears a separate municipal number 1217, Chah Rahat, Jama Masjid, Delhi, whereas the property in dispute as stated by the petitioner is 12161218, Ground Floor, Chah Rahat, Jama Masjid, Delhi. While, the case of the petitioner is that the property E556/09 9/ 37 bearing No. 12161218, Ground Floor, Chah Rahat, Jama Masjid, Delhi, is in fact a single large property and there is no separate number of any distinct portion and the entire property is known as 12161218 and 1217 is included in 12161218.
14. The petitioner has placed on record the site plan of the suit property which is Ex. PW1/1. The Ld. Counsel for the respondent has given a suggestion to the petitioner in his cross examination that measurement of the premises in dispute as given in the site plan Ex. PW1/1 is incorrect, which was denied by the petitioner. The PW1 was further suggested that actual measurement of the premises is 15 x 24 ft, which was again denied by PW1. Again, a suggestion was given to PW1 that municipal number of the premises in dispute is 1217, which was denied by PW1. The petitioner categorically stated in his crossexamination that the municipal number of the whole property is 12161218 in which the premises in dispute is situated.
15. Now, first of all the respondent has not filed any counter site plan to show the correct position of the suit premises. It is a settled law that if a tenant does not file any site plan, then site plan filed by the landlord is assumed to be correct. Even otherwise also, the respondent has admitted the site plan filed by the petitioner as well as location of the suit property to be correct. The respondent E556/09 10/ 37 who has examined himself as RW1 has categorically stated in his crossexamination that there are four shops on the ground floor of the property No. 1216/1218, Chah Rahat, Jama Masjid, Delhi which are shown as A, B, C and D in Ex. PW1/1. He further stated that the shop shown in red colour and marked as B is the shop under the tenancy of the respondent. He also admitted that the said shop i.e. suit shop was let out to his father Sh. Jagdish Rai Jain in 1958. He further stated that he can read and understand the site plan and he admitted that the tenanted premises in dispute has been shown in red colour as marked B in the site plan Ex. PW1/1. He further stated that there is another shop adjoining his tenanted shop and the said portion is shown as A. He admitted that the shop mark A, B, & C belong to the same property. Though, voluntarily he stated that the same has distinct MCD numbers. He denied the suggestion that the shops A, B & C have the same municipal number 12161218, Chah Rahat, Jama Masjid, Delhi.
16. In view of aforesaid statement of RW1, it is clear that the respondent has not disputed the site plan Ex. PW1/1 filed by the petitioner. Rather, he admits the suit shop as shown in the site plan Ex. PW1/1 to be correct. Therefore, there can be no dispute regarding the identification of the suit premises.
17. The Ld. Counsel for the respondent has vehemently E556/09 11/ 37 argued that there is no cause of action in filing the present petition u/s 14 (1) (a) of DRC Act as legal notice dated 28.04.1999 issued to the respondent is defective as same has not been served upon the respondent at the correct address because suit property bears municipal number 1217 which is a distinct property from the property No.12161218.
18. A perusal of the record shows that before filing the present eviction petition, the petitioner has filed a petition u/s 19 of Slum Areas (IC) Act 1956 against the respondent seeking permission to initiate eviction proceedings and permission was granted by Competent Authority (Slum). The petitioner has placed on record the order passed by Competent Authority (Slum) as Ex. PW1/7. A perusal of the judgment passed by Competent Authority (Slum) Ex. PW1/7 reveals that in the written statement filed by the respondent, he categorically admitted that he was a tenant in respect of one room bearing no. 12161217 situated at Chah Rahat, Jama Masjid, Delhi. Therefore, claim of the respondent that suit property bears No. 1217 which is distinct property from property No. 12161218 is not tenable.
19. Apart from this, in the legal notice dated 28.04.1999 Ex. PW1/2, the respondent has been described as a tenant in respect of one room in property bearing No.1218, Chah Rahat, Jama E556/09 12/ 37 Masjid, Delhi 6 at a monthly rent of Rs. 77/ excluding other charges. Admittedly, the respondent replied the legal notice Ex. PW1/2 vide reply dated 02.08.1999 which the respondent himself has exhibited as Ex. RW1/18 in which the said fact that respondent is a tenant in respect of one room in property bearing No.1218 was not disputed and it was averred that contents of para 1 of the notice under reply need no reply being matter of record.
20. As such, when the respondent has not disputed the description of the suit premises in reply Ex. RW1/18 to the legal notice Ex. PW1/2 and has also admitted in his written statement filed in slum proceedings that he is a tenant in respect of one room bearing no. 12161217 situated at Chah Rahat, Jama Masjid, Delhi and further he has also admitted the site plan Ex. PW1/1 filed by the petitioner where he has identified the suit shop in red colour, then it cannot be said that property No. 1217, Chah Rahat, Jama Masjid, Delhi bears distinct municipal number from the property No. 12161218, Chah Rahat, Jama Masjid, Delhi and same does not form the part of the said property No. 12161218. Therefore, there is no merit in the contention of the Ld. Counsel for the respondent that the legal notice Ex. PW1/2 is defective or that suit premises has been wrongly shown in the site plan filed by the petitioner.
21. Now, there is no dispute so far rate of rent of the suit E556/09 13/ 37 premises to be Rs. 77/ p.m. is concerned. It is also not in dispute that the petitioner has demanded the arrears of rent vide legal notice dated 28.04.1999 Ex. PW1/2 which was duly served upon the respondent and the respondent also replied to the same. As per the petitioner, the respondent is in arrears of rent since 01.11.1980 and demanded the entire arrears of rent till 31.01.999 with interest which he has failed to pay or tender despite service of legal notice dated 28.04.1999 Ex. PW1/2. While, the respondent has taken a stand that the petitioner has intentionally and deliberately not accepted the rent from the respondent as and when tendered by the respondent and hence, the rent for the period 01.02.1993 to 31.01.1996 for 36 months was deposited in the court of Ms. Anu Malhotra, Ld. ARC, Delhi u/s 27 of DRC Act and further rent for the period from 01.02.1996 to 30.09.1996 for 8 months was deposited in the court of Ms. Anu Malhotra, Ld. ARC, Delhi at the rate of Rs. 77/ p.m. plus 10%. Thereafter, rent tendered by the respondent through money order receipt no. 0566 dated 03.11.2000 for the period 01.10.1996 to 31.01.1999 @ Rs. 85/ p.m. for 28 months and from 01.02.1999 to 31.10.2000 @ Rs. 85/ p.m. plus 10% enhanced rent i.e. Rs. 93.50/ and again the rent was tendered through money order no. 3242 dated 29.05.2003 for the period 01.06.2000 to 31.05.2003 for 36 months @ Rs. 93.50/ p.m. But the E556/09 14/ 37 petitioner every time refused to accept the rent tendered by the respondent through the money order and the rent deposited in the aforesaid court and there is no default on the part of the respondent.
22. A perusal of the legal notice dated 28.04.1999 Ex. PW 1/2 reveals that the petitioner has demanded the arrears of rent since 1980 onwards till 31.01.1999 @ Rs. 77/ p.m. along with interest. There is no dispute that the respondent was duly served with the said legal notice Ex. PW1/2. Therefore, the respondent was required to pay the legally recoverable rent for the last three years from the service of legal demand notice. The respondent has also replied the legal notice Ex. PW1/2 vide reply dated 02.08.1999 Ex. RW1/18 in which it was stated that the respondent has already deposited the rent for the period 01.02.1993 to 31.01.1996 for 36 months @ Rs. 77/ and also for the period 01.02.1996 to 30.09.1996 for 8 months @ Rs. 77/ p.m. plus 10% increase in the rent in the court of Ms. Anu Malhotra, LD, ARC, Delhi in DR No. 38/96 and it was asked to withdraw the notice under reply.
23. As such, there is nothing on record that the respondent has tendered the legally recoverable rent for the last three years from the service of legal demand notice dated 28.04.1999 Ex. PW 1/2 irrespective of the fact that the petitioner has claimed the rent E556/09 15/ 37 since 1980 vide legal notice Ex. PW1/2. As per admitted case of the respondent, vide reply dated 02.08.1999 Ex. RW1/18 rentals upto 30.09.1996 were deposited in the court of Ms. Anu Malhotra, Ld., ARC, Delhi.
24. In this regard, testimony of RW1 is important. RW1 has categorically admitted in his crossexamination that he received the notice Ex. PW1/2 and sent the reply of the same vide reply dated 02.08.1999 Ex. PW1/5. He further stated that he received the notice dated 28.04.1999 within 8 to 10 days i.e. 8 or 10th of May 1999. He further stated that he tendered the rent of the suit premises as claimed in the notice Ex. PW1/2 to the petitioner. He further stated that he tendered the rent prior to service of reply dated 02.08.1999. He denied the suggestion that no rent was tendered or paid by him to the petitioner within 2 months of the service of the notice dated 24.08.1999 Ex. PW1/2 as claimed in the notice for the last three years. He further stated that he cannot tell the date, month of the alleged tender of the month to the petitioner as stated by him above. He admitted that the money orders as referred in his affidavit were sent in the year 1996 and before and the other money orders are for the period 20022003.
25. In view of aforesaid admission of the respondent that he sent the money orders prior to year 1996 and before and the other E556/09 16/ 37 money orders are for the period 20022003, there is nothing on record that he has paid or tendered the rental for the last three years preceding to the legal notice dated 28.04.1999 Ex. PW1/2 within two months of service of legal demand notice. Even in the written statement, the respondent has stated that the rent for the period 1.10.1996 to 31.01.1999 was sent vide money order receipt no. 0566 dated 03.11.2000. The money order coupons filed by the respondent is for the period 1.10.1996 to 31.01.1999 and for the period from 01.02.1999 to 31.10.2000 and none of the money order was tendered within two months of the service of the legal notice dated 28.04.1999 Ex. PW1/2 which is also admitted by the respondent in his crossexamination when he categorically admits that he did not send any amount towards rent within two months of the service of that notice. Although, voluntarily, he stated that he had already deposited the rent in the court, but the respondent could not prove that rentals as demanded vide legal notice dated 28.04.1999 Ex. PW1/2 were deposited in the Court within two months of service of legal demand notice.
26. In view of aforesaid discussions, the respondent has failed to pay or tender the rentals which were legally recoverable as demanded vide legal notice Ex. PW1/2 within two months of its service and has failed to comply the legal notice Ex. PW1/2. E556/09 17/ 37 Hence, the petitioner has successfully proved the grounds u/s 14 (1)
(a) of DRC Act and case of first default is made out against the respondent u/s 14 (1) (a) of DRC Act.
27. In the present case, the orders u/s 15 (1) of DRC Act have already been passed by the Ld. Predecessor of this Court vide order dated 19.11.2004 by which the respondent was directed to pay or deposit the entire arrears of rent legally recoverable @ Rs. 85/ p.m. w.e.f. 01.05.2001 till date i.e. 19.11.2004 within one month and respondent was further directed to continue to deposit the future rent in the Court at the said rate month by month by the 15th day of each succeeding month of English Calendar.
28. As the grounds u/s 14 (1) (a) of DRC Act is held to be successful and the respondent has been held first defaulter and in case of first default, statutory protection u/s 14 (2) of DRC Act is available to the respondent, let Nazir report be called vide separate miscellaneous file as to whether the respondent has complied the orders u/s 15 (1) of DRC Act passed by the Ld. Predecessor of this Court on 19.11.2004 for considering the benefit of Section 14 (2) of DRC Act to the respondent.
29. Ground U/s 14(1)(b) of DRC Act 14 (1) (b) of DRC Act reads as under: That the tenant has on or after the 9th day of 1952 sub let, E556/09 18/ 37 assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
30. The case of the petitioner is that the respondent after 09.06.1992 and creation of tenancy, has sublet, assigned or otherwise parted with the possession of the tenanted premises without obtaining the consent in writing of the landlord/ petitioner to M/s Delhi Pram and Tricycle Manufacturing Company and the tenanted premises is exclusively used by the said company and the respondent has lost control over the suit premises. On the other hand, the respondent has taken a stand in the written statement that respondent is the sole proprietor of M/s Delhi Pram and Tricycle Manufacturing Company since 1992 and prior to that he was the partner in the firm since 1969 and prior to that his mother Smt. Gian Wati Jain was the partner in the said firm and the said firm belongs only to the respondent and there in no sub letting in the suit premises. It is further case of the respondent that the firm M/s Delhi Pram and Tricycle Manufacturing Company is in existence in the property in question since 1957 and the tenancy of the premises was in the name of Sh. Jagdish Rai Jain, father of the respondent and the rent for the same was being paid by Sh. Jagdish Rai Jain from the firm M/s Delhi Pram and Tricycle Manufacturing E556/09 19/ 37 Company through cheques and the landlord of the same Sh. Mahavir Prashad Jain every time accepted the rent from the father of the respondent through chequess issued from the firm M/s Delhi Pram and Tricycle Manufacturing Company.
31. In view of aforesaid pleadings of the parties, once the respondent admits the existence of the firm M/s Delhi Pram & Tricycle Manufacturing Company in the suit premises, the onus shifts upon the respondent to show that in what capacity the firm M/s Delhi Pram & Tricycle Manufacturing Company is occupying the suit premises and what is the constitution of the said firm.
32. In the present case, it is not in dispute that originally Sh. Jagdish Rai Jain, the father of the respondent was inducted as a tenant in the suit premises in his individual capacity. It is also not in dispute that said Sh. Jagdish Rai Jain has expired and tenancy has devolved upon the respondent being legal heir of Sh. Jagdish Rai Jain by operation of law. Though, the respondent has taken a plea that the firm M/s Delhi Pram & Tricycle Manufacturing Company is in existence in the property in question since 1957 and rent was being paid by his father Sh. Jagdish Rai Jain through cheques issued from the said firm M/s Delhi Pram & Tricycle Manufacturing Company. In this regard, the respondent has also placed on record the Delhi Sales Tax Registration Certificate in the E556/09 20/ 37 name of firm M/s Delhi Pram & Tricycle Manufacturing Company as Ex. RW1/12 and Certificate of registration of the firm M/s Delhi Pram & Tricycle Manufacturing Company as Ex. RW1/13,
33. However, in the crossexamination the respondent has admitted that there is a cutting and overwriting at the point mark A in Ex. RW1/13, where the number of the premises have been changed. Voluntarily, he stated that it was originally 1222 and later on it was changed to 1217 and duly signed by the authority concerned. He denied the suggestion that the said cutting has been deliberately and intentionally made by him in Ex. RW1/13 and not by the concerned department. He also admitted that municipal number originally shown in Ex. RW1/14 is 9/2691, Gali No. 17, Kailash Nagar, Delhi - 31. Voluntarily, he stated that premises no. 1217 have been later on added by the authority concerned in Ex. RW1/14. He denied the suggestion that the writing between points X and Y in Ex. RW1/14 had been made by him intentionally and deliberately and not by department concerned. He stated that he cannot tell the name of the alleged officer of the department who made the said writing. He denied the suggestion that M/s Delhi Pram & Tricycle Manufacturing Company started business from property No. 9/2691, Gali No. 17, Kailash Nagar, Delhi - 31. He also admitted that there is an overwriting of 1217 made on Ex. E556/09 21/ 37 RW1/12 at point Z. He denied the suggestion that Ex. RW1/16 bearing municipal no. 1217, Chah Rahat, Delhi is a forged and fabricated document.
34. A perusal of the documents filed by the respondent as Ex. RW1/12, Ex. RW1/13 and Ex. RW1/14 reveals that same are the certificate of registration of firm M/s Delhi Pram & Tricycle Manufacturing Company issued by the Office of Delhi Sales Tax in which the firm M/s Delhi Pram & Tricycle Manufacturing Company has been shown to be running its business from the premises No. 9/2691, Gali No. 17, Kailash Nagar, Delhi - 31. However, there is overwriting in the aforesaid documents by which municipal number 1217, Chah Rahat, near Dariba Kalan, Delhi has been added later on. Although, by these documents, the respondent wanted to show that the firm M/s Delhi Pram & Tricycle Manufacturing Company has been running its business in the property in question since 1957, but the respondent has not been able to prove the same. The overwriting on these documents Ex. RW1/12 to Ex. RW1/14 has not been proved by the respondent that the same has been done by the concerned department.
35. Though to substantiate this claim, the respondent has also examined Sh. Kulbir Singh, LDC in Sales Tax office as RW2 who deposed that the document Ex. RW1/13 is according to the E556/09 22/ 37 original form B and the address on the certificate of registration bearing no. 1222, Chah Rahat, Near Dariba Kalan, Delhi shown struck in the aforesaid certificate and after that the address has been mentioned as 1217, Chah Rahat, Near Dariba Kalan, Delhi. He further deposed that the cutting over the certificate of registration was duly signed by the authority concerned and the document is genuine as per their record. He also stated that sales tax number issued over the address 1217, Chah Rahat, Near Dariba Kalan, Delhi6 allotted to M/s Delhi Pram & Tricycle Manufacturing Company since 26.06.1959 and prior to that over the address 1222, Chah Rahat, Near Dariba Kalan, Delhi6 was issued on 14.08.1997. But in the crossexamination, this witness also could not tell as to who has made the additions at Mark A, Mark B and Mark C in Ex. RW2/1 which is in different ink. He also stated that same is his reply in respect of document Ex. RW2/ 2 and the additions made at point D in Ex. RW2/2. He further stated that he cannot tell the reason as to how 1217 has appeared at point X in Ex. RW2/1 as he is not able to find out any record/ application in respect of the same. He further stated that he does not know as to who prepared Ex. RW2/4 and he was not present and same is his reply in respect of Ex. RW2/3 and he cannot tell that as to who has made the addition at point P1 and cutting at P2 which is in different ink. He E556/09 23/ 37 further stated that he has no knowledge or record as to how these cutting and additions on Ex. RW2/3 has been made and there is no application or record with him. He further stated that he cannot tell as to who has made the cutting and made overwriting and addition in different ink in Ex. RW2/3. He further stated that he does not know as to who wrote Ex. RW2/3 and he cannot tell as to when same was prepared. He admitted that there is cutting at point Q1 and additions at point Q2 in Ex. RW2/3 and the same is in different ink and he cannot tell as to who has made the same.
36. In view aforesaid statement of RW2, it has not been proved by the respondent that the cutting and overwriting on the aforesaid documents has been made by the concerned department. Hence, the respondent has not been able to prove that the firm M/s Delhi Pram & Tricycle Manufacturing Company is in existence in the property in question since 1957.
37. It is also to be noticed that on all these documents Ex. RW2/1 to Ex. RW2/3, the address 1222, Chah Rahat, Near Dariba Kalan, Delhi and 9/2691, Gali No. 17, Kailash Nagar, Delhi has been shown to be address of the firm M/s Delhi Pram & Tricycle Manufacturing Company. Although, the respondent has tried to explain that initially the firm M/s Delhi Pram & Tricycle Manufacturing Company was registered at the aforesaid address E556/09 24/ 37 1222, Chah Rahat, Near Dariba Kalan, Delhi, but later on the address was changed to 1217 at the instance of the landlord, but this contention has not been substantiated and proved by the respondent. The respondent who has examined himself as RW1 has categorically admitted in his crossexamination that the said firm M/s Delhi Pram & Tricycle Manufacturing Company was registered with the sales tax department in 1957 at the registered office/address at 1222, Chaha Rahat, Jama Masjid, Delhi and thereafter the registered office of the said firm was changed to 1217, Chaha Rahat, Jama Masjid, Delhi. Voluntarily, he stated that it was at the instance of the landlord that the said office was changed and he was provided premises No. 1217 in lieu of 1222.
38. The aforesaid fact that the respondent was provided premises No. 1217 in lieu of 1222 at the instance of the landlord has been denied by the petitioner. Therefore, the onus was upon the respondent to prove that property no. 1217 was provided to him in lieu of 1222 at the instance of the petitioner, but the respondent has failed to substantiate this fact. In this regard, when a question was put to the respondent in his crossexamination that whether he has filed any documents on record to show that the tenancy of his father was in premises No. 1222, the respondent could not answer the said question and only stated that he has already filed the sales E556/09 25/ 37 tax certificate mentioning the premises No. 1222 and later on it was struck by the concerned authority and changed to 1217. He categorically admitted that he has not filed any rent receipt regarding the alleged tenancy of his father in respect of premises No. 1222 on record. As such the respondent has not filed any single document to show that the premises No. 1217 was provided to the father of the respondent at the instance of the petitioner in lieu of premises No. 1222. RW2 has also admitted in his cross examination that the firm M/s Delhi Pram & Tricycle Manufacturing Company was registered with the sales tax department in ward No. 12 in premises No. 1222, Chah Rahat, Dariba Kalan, Delhi - 6 on 14.08.1957.
39. In view of aforesaid discussions, the respondent has not been able to prove that the firm M/s Delhi Pram & Tricycle Manufacturing Company was registered at the suit premises address or the same has been running its business since 1957.
40. Another contention of the respondent is that firm M/s Delhi Pram & Tricycle Manufacturing Company was paying rentals to the petitioner through cheques which the petitioner used to accept. However, the respondent has failed to substantiate this plea also. The respondent has not filed any single document or evidence to show that the rentals through cheques were paid by the E556/09 26/ 37 firm M/s Delhi Pram & Tricycle Manufacturing Company . Moreover, it is not the case of the respondent that M/s Delhi Pram & Tricycle Manufacturing Company was inducted as a tenant in the suit premises. Admittedly, Sh. Jagdish Rai Jain, the father of the respondent was inducted as a tenant in the suit premises. Although, in the written statement and in the evidence the respondent has taken a plea that firm M/s Delhi Pram & Tricycle Manufacturing Company is in existence in the property in question since 1957 and rent was being paid by his father Sh. Jagdish Rai Jain through cheques issued from the said firm M/s Delhi Pram & Tricycle Manufacturing Company, but as already discussed the respondent has not been able to prove that rentals were paid by M/s Delhi Pram & Tricycle Manufacturing Company through cheques to the petitioner.
41. Moreover, the respondent has nowhere stated either in the written statement or in the evidence that Sh. Jagdish Rai Jain, the father of the respondent was having any connection with the firm M/s Delhi Pram & Tricycle Manufacturing Company. It is not the case of the respondent that Sh. Jagdish Rai Jain was partner or proprietor of the said firm. Therefore, question of rentals being paid by Sh. Jagdish Rai Jain through cheques issued by the firm M/s Delhi Pram & Tricycle Manufacturing Company does not arise E556/09 27/ 37 and same has also not proved by the respondent.
42. RW1 who is respondent himself has stated in his cross examination that at the very starting of the said firm, his mother Smt. Gyanwati Jain was the partner in the firm and along with her mother one Sh. Kirpa Narain was the partner and the said partnership lasted for 57 years. He further stated that after the said dissolution, Sh. Kirpa Narain retired and in his place one Sh. Madan Lal Jain was introduced as partner along with his mother in the said firm M/s Delhi Pram & Tricycle Manufacturing Company and the said partnership was dissolved in 1969 and after the retirement of Sh. Madan Lal Jain in 1969, he was introduced a partner. He further stated that his mother expired in 1992 and he became the sole proprietor of the said firm. RW2 has also stated in his crossexamination that he cannot tell the constitution of the said firm M/s Delhi Pram & Tricycle Manufacturing Company at the time of registration on 14.8.1957 as to whether it was a proprietorship or partnership or who were the incharge.
43. In view of aforesaid testimony of RWs, it is evident that the respondent has failed to prove that Sh. Jagdish Rai Jain, the father of the respondent, the original tenant in the suit premises had any connection with the firm M/s Delhi Pram & Tricycle Manufacturing Company.
E556/09 28/ 37
44. Now, despite the fact that the respondent has not been able to prove that the firm M/s Delhi Pram & Tricycle Manufacturing Company was registered at the suit premises address and has been running its business since 1957 and further that the said firm M/s Delhi Pram & Tricycle Manufacturing Company used to pay rentals to the petitioner through cheques and his father Sh. Jagdish Rai Jain was having any concern with the said firm, can it be said that the respondent has sublet, assigned or parted with the possession of the suit premises to the firm M/s Delhi Pram & Tricycle Manufacturing Company as alleged by the petitioner. Therefore, the controversy revolves around the fact as to whether the respondent has sub let, assigned or parted with the possession of the suit premises to the firm M/s Delhi Pram & Tricycle Manufacturing Company as alleged by the petitioner or the respondent has been able to prove that he is sole proprietor of M/s Delhi Pram & Tricycle Manufacturing Company and in exclusive control of the suit premises. If the respondent is able to establish that he is sole proprietor of the firm M/s Delhi Pram & Tricycle Manufacturing Company, then question of subletting, assigning or parting with possession of the suit premises will not arise as alleged by the petitioner.
45. It is categorical case of the petitioner that the respondent E556/09 29/ 37 after 09.06.1992 has sublet, assigned or otherwise parted with the possession of the tenanted premises without obtaining the consent in writing of the landlord/ petitioner to M/s Delhi Pram and Tricycle Manufacturing Company. Admittedly, Sh. Jagdish Rai Jain, the father of the respondent was inducted as a tenant in the suit premises. It is also not in dispute that the present respondent is legal heir of deceased original tenant Sh. Jagdish Rai Jain who has inherited the tenancy rights by operation of law. Now, as per own case of the petitioner the respondent has sublet, assigned or otherwise parted with the possession of the tenanted premises without obtaining the consent in writing of the landlord/ petitioner to M/s Delhi Pram and Tricycle Manufacturing Company. Meaning thereby, as per the petitioner, the subtenancy has been created by the respondent and subtenancy did not take place during the lifetime of original tenant Sh. Jagdish Rai Jain. If that be so, the only question which remains to be decided is that whether the respondent has sublet, assigned or otherwise parted with the possession of the tenanted premises to M/s Delhi Pram and Tricycle Manufacturing Company or the respondent being sole proprietor of the said firm M/s Delhi Pram and Tricycle Manufacturing Company is in exclusive control of the suit premises and being sole proprietor of the said firm it would not E556/09 30/ 37 amount to subletting, assigning or parting with possession of the suit premises irrespective of the fact that the respondent has failed to prove his claim that the firm M/s Delhi Pram and Tricycle Manufacturing Company has been running its business from the suit premises since 1957.
46. The respondent has placed on record the registration certificate of the firm M/s Delhi Pram and Tricycle Manufacturing Company issued by office of Delhi Sales Tax which is Ex. RW 1/14. In the said document Ex. RW1/14, the name of the respondent has been shown as sole proprietor of the said firm w.e.f. 10.10.1992. It is also case of the respondent that he is sole proprietor of the firm M/s Delhi Pram and Tricycle Manufacturing Company after the death of his mother Smt. Gyanwati Jain since 1992. The petitioner has also stated in his crossexamination that the firm M/s Delhi Pram and Tricycle Manufacturing Company is being run in the suit premises for the last 1012 years and the statement of the petitioner was recorded on 11.08.2005.
47. In view of above, the respondent has placed and proved the documents on record that he is sole proprietor of the firm M/s Delhi Pram and Tricycle Manufacturing Company since 1992. As per the petitioner himself, the respondent after 09.06.1992 has sublet, assigned or otherwise parted with the possession of the E556/09 31/ 37 tenanted premises without obtaining the consent in writing of the landlord/ petitioner to M/s Delhi Pram and Tricycle Manufacturing Company. It is also case of the petitioner that the said firm M/s Delhi Pram and Tricycle Manufacturing Company has been running its business from the suit premises for the last 1012 years.
48. If that is so, under law a proprietorship concern and its proprietor is one and same thing. The respondent who is admittedly a tenant under the petitioner in the suit premises and the respondent has established that he is sole proprietor of the firm M/s Delhi Pram and Tricycle Manufacturing Company which is running its business from the suit premises and as such there is no subletting, assigning or parting with possession of the suit premises by the respondent to the firm M/s Delhi Pram and Tricycle Manufacturing Company. Although, the petitioner has denied that the respondent is not sole proprietor of the firm M/s Delhi Pram and Tricycle Manufacturing Company, but in view of material placed on record by the respondent, the contention of the petitioner is without any basis, more particularly when the petitioner has not disclosed who else is managing the affairs of the firm M/s Delhi Pram and Tricycle Manufacturing Company. In this regard, there is neither any pleadings nor any evidence of the petitioner regarding the constitution of M/s Delhi Pram & Tricycle Manufacturing E556/09 32/ 37 Company or that someone else other than the respondent is partner or proprietor of the said firm.
49. Ld. Counsel for the petitioner has argued that the respondent admits that the firm M/s Delhi Pram and Tricycle Manufacturing Company has been running its business since long from the suit premises and, therefore, it goes to show that sub tenancy was created during the lifetime of father of the respondent who was original tenant and it would still make a ground of eviction u/s 14 (1) (b) of DRC Act and it would amount to sub letting, assigning or parting with possession of the suit premises to M/s Delhi Pram and Tricycle Manufacturing Company. The contention of the Ld. Counsel for the petitioner is fallacious and without any merit. It is nowhere case of the petitioner either in the petition or in the evidence that the subtenancy was created by Sh. Jagdish Rai Jain, the father of the respondent during his lifetime in favour of M/s Delhi Pram and Tricycle Manufacturing Company. Rather, the specific case of the petitioner is that the respondent after 09.06.1992 has sublet, assigned or otherwise parted with the possession of the suit premises to M/s Delhi Pram and Tricycle Manufacturing Company. The petitioner has also stated in the crossexamination that the firm M/s Delhi Pram and Tricycle Manufacturing Company has been running its business from the E556/09 33/ 37 suit premises for the last 1012 years.
50. Otherwise also, there is ambiguity in the case of the petitioner. In the slum proceedings initiated by the petitioner against the respondent seeking permission to file the present eviction petition, the case of the petitioner was that the respondent had tried to issue cheques on behalf of the firm M/s Delhi Pram and Tricycle Manufacturing Company which was not encashed as the tenancy was in the name of Gianwati and the respondent Smt. Gianwati had died in January, 1992. As such, the petitioner admits Smt. Gianwati to be tenant in the suit premises who is admittedly the mother of the respondent. The respondent has claimed that his mother Smt. Gianwati was doing the partnership business in the name of M/s Delhi Pram and Tricycle Manufacturing Company in the suit premises which is also evident from Ex. RW2/4. Therefore, the claim of the petitioner is not sustainable. The petitioner admits Smt. Gianwati to be the tenant in the suit premises who was doing partnership business in the name of M/s Delhi Pram and Tricycle Manufacturing Company and as per the respondent after the death of his mother Smt. Gianwati in the year 1992, he became the sole proprietor of the said firm. As such, if Smt. Gianwati was the tenant in the suit premises and if she was doing the business in partnership, it would not amount to any sub E556/09 34/ 37 letting and further as the respondent was a partner in M/s Delhi Pram and Tricycle Manufacturing Company since 1969 with Smt. Gianwati and after the death of Smt. Gianwati, if the respondent became the sole proprietor of M/s Delhi Pram and Tricycle Manufacturing Company, it cannot be said that the respondent has sublet, assigned or parted with the possession of the suit premises to M/s Delhi Pram and Tricycle Manufacturing Company. Therefore, although the case set up by the respondent that the firm M/s Delhi Pram and Tricycle Manufacturing Company has been running its business in the suit premise since 1957 has not been proved, but it cannot be said that the case of the petitioner, though never pleaded, is proved that there has been subletting, assigning or parting with possession of the suit premises either by deceased father of the respondent during his lifetime or by the respondent.
51. The Ld. Counsel for the petitioner has relied upon the authorities titled as P. John Chandy and Co. (P) Ltd. Vs. John P. Thomas 2002 (1) RCR 569, Amrutlal Jagjivandas Shah & Anr. Vs. Ramniklal Jagjivandas Shah 2005 (2) RCR 389 and C.G. Khanna Vs. Rajinder Kumar 170 (2010) DLT 473 . I have gone through the aforesaid authorities relied upon by the Ld. Counsel for the petitioner, but none of the authorities are applicable in the facts and circumstances of the present case.
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52. In the first two authorities, the issue was whether the subletting with the knowledge of landlord and no action by the landlord for 10 years will amount to implied consent of the landlord and it was held that there is no limitation when there was continuous subtenancy and the eviction petition is maintainable. But facts in the present case are distinguishable. In the present case, it is not an issue that the petitioner has not taken any steps or there is any implied consent of the petitioner in creating subtenancy.
53. Similarly, in another authority 170 (2010) DLT 473, the question was whether a subsequent purchaser had any right to prove the ground for eviction despite the fact that the previous owner had not brought any action for eviction despite right having been accrued to him. But, the facts of the present case are entirely different. In the present case, the petitioner is not a subsequent purchaser and therefore, this authority is not applicable in the facts and circumstances of the case.
54. In view of aforesaid discussions, I have no hesitation to hold that the respondent has successfully established that he is sole proprietor of the firm M/s Delhi Pram and Tricycle Manufacturing Company which has been running in the suit premises and under law proprietorship concern and proprietor is one and same thing. Therefore, question of subletting, assigning or otherwise parting E556/09 36/ 37 with possession of the suit premises by the respondent to the firm M/s Delhi Pram & Tricycle Manufacturing Company does not arise. Hence, no ground is made out u/s 14 (1) (b) of DRC Act and present petition under this ground is dismissed.
File be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal)
on 6th August, 2010 ARC, Central, Delhi
E556/09 37/ 37
E556/09
06.08.2010
Present: Counsel for the petitioner.
Clarifications made. Put up at 4.00 p.m. for judgment.
(B.R. Bansal)
ARC (Central), Delhi/06.08.2010
At 4.00 p.m.
Present: None.
Vide my separate judgment announced in the open court, the present petition u/s 14 (1) (a) is held to be successful, however petition u/s 14 (1) (b) of DRC Act is dismissed.
As the grounds u/s 14 (1) (a) of DRC Act is held to be successful , let Nazir report be called for 21.09.2010 vide separate miscellaneous file as to whether the respondent has complied the orders u/s 15 (1) of DRC Act passed by the Ld. Predecessor of this Court on 19.11.2004 for considering the benefit of Section 14 (2) of DRC Act to the respondent.
Present file be consigned to Record Room.
(B.R. Bansal) ARC (Central), Delhi/06.08.2010 E556/09 38/ 37