Delhi District Court
Rajan Gupta vs Vinod Kumar on 2 March, 2024
IN THE COURT OF CCJ CUM ARC, CENTRAL, TIS
HAZARI COURTS
RC ARC No. 566/2018
Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr.
CNR No. DLCT03-004408-2018
In the matter of :
Sh. Rajan Gupta,
S/o late Sh. Bishan Swaroop Gupta,
R/o House No. 1806,
Cheerakhana, Nai Sarak,
Delhi-110006. ...Petitioner
Versus
1. Sh. Vinod Kumar,
S/o late Sh. Maman Chand,
R/o House No. 90, Third Floor,
Gali No. 8, Krishan Kunj,
Laxmi Nagar,
Delhi-110092.
2. Sh. Pradeep Gupta @ Deep Chand,
S/o late Sh. Maman Chand,
R/o House No. 2374,
Nal Wali gali,
Bara Chhipiwara,
Nai Sarak, Delhi-110006. ..Respondents
Eviction Petition under Section 14 (1)(b) of Delhi Rent
Control Act, 1958
Date of Institution : 11.07.2018
Date on which judgment was reserved : 14.12.2023
Date of Decision : 02.03.2024
Decision : Petition Allowed
RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 1 of 24
JUDGMENT
1. This is an eviction petition for recovery of one shop, bearing private No. 2, situated on the ground floor, in property No. 1806, Cheerakhana, Nai Sarak, Delhi-11006 as shown in red colour in the site plan (hereinafter referred to as tenanted shop) against the respondents u/s 14(1)(b) of Delhi Rent Control Act 1958 (hereinafter referred to as DRC Act).
2. It is the case of the petitioner that the property in dispute bearing Municipal No. 623(old) and 1806(new) situated at Cheera Khana, Nai Sarak, Delhi was purchased by Lala Vrindavan Dass vide registered sale deed dated 14.03.1955. That Sh. Lala Vrindavan Dass died intestate leaving behind (i) Sh. Laxmi Narain (son) and (ii) Shri Ram Gopal (son), who became co-owners of the aforesaid property, each acquiring half undivided share therein. That wife of Lala Vrindavan Dass viz., Smt. Sukhdei was pre-deceased to him and as such both Sh. Laxmi Narain and Sh. Ram Gopal became the co-owners of the property in dispute having equal shares therein. That later on Sh. Ram Gopal died, leaving behind four sons and two daughters as his legal heirs. That on the other hand, Sh. Laxmi Narain also died intestate leaving behind only one son Sh. Bishan Swaroop who became owner of undivided half share of the property but unfortunately he also died leaving behind the following legal heirs: (i) Sh. Arun Gupta (son), (ii) Sh. Rajan Gupta (son), (iii) Sh. Vimal Gupta (son), (iv) Ms. Madhu (married daughter) and
(v) Ms. Nisha (married daughter) and thus, all the sons and daughters of late Sh. Bishan Swaroop jointly acquired the RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 2 of 24 ownership rights qua the undivided half share of the property and became co-owners thereof.
3. That the predecessor-in-interest of the petitioner Sh. Laxmi Narain and Sh. Ram Gopal inducted Sh. Maman Chand as tenant in respect of the premises in dispute for commercial purposes and a rent deed dated 31.05.1965 was executed between the parties. That later the tenant Sh. Maman Chand died, leaving behind his two sons viz., the respondents who occupied the shop in dispute and were taken as tenants by the petitioner and other co-owners of the property. That the tenant has sub-let, assigned or parted with possession of whole of the tenanted premises to one Salim Ahmad, son of Sh. Naseer Ahmad, resident of H. No.2754, Gali Porgo Wali, Choti Baradari, Ballimaran, Delhi without the consent and permission of the petitioner and other co-owners. The respondents in the guise of partnership dated 12.03.2014 have sub-let the premises and the said sub-tenant is in exclusive possession of the premises and having full legal and physical control over the tenanted premises.
4. It is further stated that the respondents have admitted of having entered into a partnership with Salim Ahmad and rather placed on record a copy of the partnership deed in the eviction petition No. 194/2015 titled as 'Rajan Gupta Vs. Vinod Gupta & anr.' filed under section 14(1)(e) of the DRC Act. That clause v of the said partnership deed, which is a registered document, clearly contemplated that both Sh. Vinod Kumar Bansal and Sh. Pradeep Gupta were the sleeping partners and shall be entitled to receive a sum of Rs.14,000/- per month. The contents of the partnership deed clearly shows that the respondents have RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 3 of 24 divested themselves of legal, actual and physical possession of the premises in dispute to a third person which amounts to sub letting. Hence, the present petition.
5. Upon receipt of the petition, the respondents appeared and filed their written statements contending the following:
(a) That the premises in dispute was let out to late Sh. Maman Chand, the father of the respondents by late Sh.
Laxmi Narain and Sh. late Sh. Ram Gopal. That Sh. Laxmi Narain and Sh. Ram Gopal both died intestate and Sh. Ram Gopal left behind four sons and two daughters. That Sh. Laxmi Narain left behind one son Sh. Bishan Swaroop and Sh. Bishan Swaroop has also died intestate, leaving behind three sons and two daughters. That the respondents are paying rent to Sh. Arun Gupta, one of the sons of Sh. Bishan Swaroop Gupta and the petitioner is not the landlord of he respondents and there is no relationship of landlord and tenant between the petitioner and the respondents. That the respondents had paid rent to Sh. Arun Gupta up to 30.04.2016 in advance. That after the death of Shri Bishan Swaroop, Sh. Arun Gupta alone claimed right qua the premises in dispute and claimed to have become the landlord.
(b) The respondents have denied that they have sublet, assigned and parted with possession of the shop in dispute. That the business was closed as the same was running into losses. The respondents remained in possession of the premises in dispute at all times they became the tenants till date. That the partnership business was closed towards the end of RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 4 of 24 2015. That the said partnership business was being looked after by the respondents and Sh. Salim Ahmad at no time attended to the business being carried out in partnership from the premises in dispute. That there was no employee of the said partnership firm and the said business was being looked after by the respondents. That the keys of the locks and shutters of the premises in dispute always remained in possession of the respondents.
(c) That the premises in dispute was always opened in the morning and closed in the evening by the respondents. That the electricity bills of the premises in dispute have always been paid by the respondents. That the said partnership business was on a very low scale and could not flourish and hence, the same was closed and thereafter the respondent no. 1 is carrying on his proprietorship business from the premises in dispute.
6. The petitioner filed her replications to the written statement of the respondents, wherein petitioner re-affirmed and re-iterated the facts mentioned in the petition and denied the averments made by the respondents.
7. In support of their case, petitioner examined himself as as PW1 who tendered his evidence by way of affidavit Ex. P-1 and relied upon following documents :
(i) Site plan Ex. PW-1/1,
(ii) Sale deed dated 14.03.1995 Ex. PW-1/2,
(iii) Hindi translation of sale deed Ex. PW-1/3,
(iv) Rent deed Ex. PW-1/4 (OSR) (objected to on the ground of mode of proof), RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 5 of 24
(v) Hindi translation of rent deed Ex. PW-1/5 (objected to on the ground of mode of proof)
(vi) Couner foil of rent receipts Ex. PW-1/6 (OSR),
(vii) Partnership deed dated 12.03.2014 Ex. PW-1/7,
(viii) Application seeking leave to defend Ex. PW1/8,
(ix) Affidavit of application seeking leave to defend Ex.
PW1/9,
(x) Judgment dated 07.03.2018 Ex. PW1/10,
(xi) Legal notice dated 09.04.2015 Ex. PW1/11,
(xii) Reply to the legal notice dated 11.05.2015 Ex.
PW1/12.
PW1 was cross-examined by Ld. Counsel for the respondent No.1 and respondents.
8. The petitioner examined Sh. Sevajit, Record Attendant, Delhi Archives, Govt. NCT of Delhi as PW2 who brought record pertaining to registered sale deed dated 09.02.1955, which was exhibited as Ex. PW2/1. PW 2 was cross- examined by Ld. Counsel for the respondents.
9. The petitioner examined Sh. Parveen Kumar Rana, UDC, Sub-Registrar-I office, Kashmere Gate, Delhi as PW3 who brought record pertaining to registered partnership deed dated 12.03.2014, which was exhibited as Ex. PW3/1. PW 3 was cross- examined by Ld. Counsel for the respondents.
10. The petitioner examined Sh. Mukesh Chawla, UDC, in the Court of Sh. Purushottam Pathak, Competent Authority, DUSIB as PW4 who brought record pertaining to judgment dated 07.03.2018, which was exhibited as Ex. PW4/1. PW 4 was cross-
RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 6 of 24 examined by Ld. Counsel for the respondents.
11. The petitioner examined Sh. Aziz-ur-Rehman, Translator who deposed that he has translated sale deed Ex. PW2/1 vide translation Ex. PW1/3, and rent deed Ex. PW1/4 vide its translation Ex. PW1/5. PW5 was not cross-examined by Ld. Counsel for the respondents despite opportunity being given.
12. Petitioner examined Sh. Arun Gupta as PW6 who deposed that the property in dispute bearing Municipal No.623(old) and 1806(new) situated at Cheera Khana, Nai Sarak, Delhi was purchased by Lala Vrindavan Dass vide registered sale deed dated 14.03.1955 Ex. PW 1/2. That later on Lala Vrindavan Dass died intestate, leaving behind the following legal heirs:- (i) Sh. Laxmi Narain (son) and (ii) Sh. Ram Gopal (son) who became co-owners of the aforesaid property each acquiring half undivided share therein. He further deposed that wife of Lala Vrindavan Dass viz., Smt. Sukhdei was pre-deceased to him and as such both Sh. Laxmi Narain and Sh. Ram Gopal became the co-owners of the property in dispute having equal shares therein.
13. PW6 further deposed that later on Sh. Ram Gopal died, leaving behind four sons and two daughters as his legal heirs. That on the other hand Sh. Laxmi Narain also died intestate leaving behind only one son Sh. Bishan Swaroop who became owner of undivided half share of the property but unfortunately he also died leaving behind the following legal heirs:- (i) Sh. Arun Gupta (son), (ii) Sh. Rajan Gupta (son), (iii) Sh. Vimal Gupta (son), (iv) Ms. Madhu (married daughter) and (v) Ms. Nisha (married daughter) and thus all the sons and daughters of RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 7 of 24 late Sh. Bishan Swaroop jointly acquired the ownership rights qua the undivided half share of the property and became co- owners thereof. It was further deposed by PW6 that the deponent is one of the co-owner of the property in dispute. That the predecessor-in-interest of the petitioner Sh. Laxmi Narain and Sh. Ram Gopal inducted Sh. Maman Chand as tenant in respect of the premises in dispute for commercial purposes and a rent deed dated 31.05.1965 Ex. PW1/4 was executed between the parties. He deposed that later on, the tenant Sh. Maman Chand died, leaving behind his two sons viz., the respondents who occupied the shop in dispute and were taken as tenants by the petitioner and other co-owners of the property.
14. It was deposed by PW6 that the respondents, after the demise of Sh. Maman Chand, have been paying rent in the name of the owners Sh. Laxmi Narain and Sh. Ram Gopal and lastly, the rent was paid for the period w.e.f. 24.4.2013 to 24.8.2013 vide rent receipt No. 00141 dated 13.9.2013. He further deposed that in as much as the property is still joint and undivided, the rent from the tenants used to be collected by any of the co-owners including himself, however, the he never claimed him to be exclusive landlord qua the respondents and the rent was realized for and on behalf of all the co-owners including the petitioner herein. He further deposed that earlier he issued a legal notice through Shri Ravi Gupta, Advocate, dated 20.10.2008 to respondent No.1 as co-owner of the premises in dispute for termination of tenancy of the respondents, however, no reply to the said notice was given by the respondents. He further deposed that the petitioner with the consent and RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 8 of 24 knowledge of the co-owners including deponent served a legal notice of demand dated 09.04.2015 upon the respondents claiming him to be co-owner/landlord and general attorney of other co-owners to which a reply was sent.
15. It was further deposed by PW6 that the respondents have sub-let, assigned and parted with possession of whole of the premises to one Shri Salim Ahmed S/o Nasir Ahmed who is exclusively running the business from the premises in dispute under the name and style of M/s A.K. Textile. That the respondents have totally divested themselves of the legal and physical possession of the shop in dispute. He further deposed that for the last several years he has not seen the respondent opening or closing the shop or working there from for being in possession thereof. It was also deposed by him that the sub- letting has been done under the grab of the registered partnership deed copy of which was placed by the respondents in eviction petition No. 194/2015 titled as 'Rajan Gupta Vs. Vinod Gupta & Anr.' He deposed that none of the co-owners including himself and petitioner have ever consented for or permitted the said illegal sub-letting of the premises in dispute. That besides himself rent was also realized by the other co-owners namely Sh. Ashok Kumar Gupta and Sh. Anil Kumar Gupta and also by the petitioner against duly executed rent receipts. He further deposed that the present petition has been filed with the consent and knowledge of all the co-owners. PW 6 was cross-examined by Ld. Counsel for the respondents.
16. Vide order dated 17.05.2019, the petitioner's evidence was closed in affirmative.
RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 9 of 24
17. The respondents examined Sh. Pintu Ram Meena, Sr. Tax Assistant, Income Tax Office, as RW1 who brought income tax returns for Sh. Vinod Kumar Bansal for the assessment year 2016-17, 2017-18, 2018-19 and 2019-20 Ex. RW1/A (colly).
18. The respondents examined respondent No.1 as RW2 who deposed on the lines of the averments made in the written statement. RW2 was cross-examined by Ld. Counsel for the petitioner.
19. The respondents examined Sh. Salim Ahmad as RW3 who deposed that he has known the respondents as they had entered into partnership. He deposed that the said partnership was executed in March, 2014 and ended in 2015. He further deposed that said partnership business was looked after by the respondents and he never attended the said business. He deposed that there were no employees in the said business. He further deposed that during the period of said partnership, keys of the premises remained with the respondents. He further deposed that the respondents used to open and close the said shop. He deposed that the electricity bills during the said period were paid by the respondents. He deposed that he used to give material to the respondents for sale and they used to pay him the amount of products sold by them. RW3 was cross-examined by Ld. Counsel for the petitioner.
20. Vide order dated 25.09.2023, the respondents' evidence was closed in affirmative.
21. I have heard arguments heard from both the sides RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 10 of 24 and also perused the record.
22. In order to bring a case within the purview of section 14(1)(b) of DRC Act, the petitioner has to prove the following essential ingredients:
i. That there is relationship of landlord and tenant between the parties;
ii. That the tenant has, on or after 9th day of June,1952 sublet, assigned or otherwise parted with possession of whole or any part of the tenanted premises;
iii. That he did so without obtaining consent of the landlord in writing;
LANDLORD-TENANT RELATIONSHIP BETWEEN THE PARTIES
23. The respondents have disputed the landlord-tenant relationship with the petitioner. The respondents have not disputed the fact that the shop in question was let out to the father of respondents by late Sh. Laxmi Narain and late Sh. Ram Gopal. The petitioner is claiming through late Sh. Laxmi Narain and late Sh. Ram Gopal only and is one of the co-owners of the tenanted shop. The petitioner being a co-owner of the tenanted shop, was competent to file the present eviction petition. Reliance in this regard is placed on Sheikh Mohd Zakir v. Shahnaz Parveen, 2012 (2) RCR (Rent) 235 (DHC), wherein it has been held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners and this principle is based on the doctrine of agency. It was further held that one co- owner filing a suit for eviction against the tenant does so on his RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 11 of 24 behalf in his own right and as an agent of the other co-owners. Further, it is the contention of the respondents that Sh. Arun Gupta alone is the landlord of the tenanted shop and they had paid rent to Sh. Arun Gupta alone and not to the petitioner. It is pertinent to mention that the rent receipts Ex. RW2/P1 to Ex. RW2/P16 are the original counter foils of the rent receipts which are not disputed by the respondents. Perusal of these rent receipts show that the respondents have been paying rent in the name of late Sh. Laxmi Narain and late Sh. Ram Gopal and not exclusively in the name of Sh. Arun Gupta. Admittedly, Sh. Arun Gupta is also one of the co-owner of the tenanted shop. Sh. Arun Gupta has entered the witness box as PW6, who clearly deposed that he has not been receiving rent from the respondents exclusively as the rent was realized for and on behalf of all the co-owners including the petitioner. He also denied the suggestion that there was no relationship of landlord and tenant between the petitioner and respondent. Therefore, the landlord-tenant relationship between the petitioner and the respondents for the purpose of section 14(1)(b) of DRC Act is found established between the parties.
SUB-TENANCY AND CONSENT OF THE LANDLORD
24. It is the claim of the petitioner that the respondent No.1 has sub-let the tenanted shop to Sh. Saleem Ahmed. The petitioner has relied upon the partnership deed Ex. PW 3/1. It is not in dispute that the respondents has relied upon the said partnership deed Ex. PW3/1 in the eviction petition No. 194/2015 titled as 'Rajan Gupta Vs Vinod Gupta & Anr'. The execution of RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 12 of 24 the partnership deed Ex. PW3/1 is also not is dispute as the respondent No.2 has clearly deposed in his cross-examination that the partnership deed Ex. PW3/1 is the true copy of the partnership as placed by him in eviction petition bearing No. 194/2015. The said partnership deed was executed between the respondents and Sh. Salim Ahmad. The relevant portion of the partnership deed are as follows:
"PARTNERSHIP DEED This Deed of Partnership is made at Delhi on this 12 day of MAR, 2014, BETWEEN:-
Shri Salim Ahmad son of Shri Naseer Ahmad resident of 2754. Bali Porgo Wali, Choti Baradari, Ballimaran, hereinafter called the First Party on the FIRST PART. Delhi, AND (1) Shri Vinod Kumar Bansal son of Shri Maman Chand Dupta resident of 1320, Vaidwara, Maliwara, Delhi, and (2) Shri Pradeep Gupta son of Shri Maman Chand Gupta resident of 2374, Gali Nal Wali, Chhippiwara Kalan, Delhi-110006. hereinafter called the Second Party on the SECOND PART.
The expressions of the first party and second party shall mean and include themselves, their legal heirs, nominees, representatives, administrators, executors and assings of the respective parties.
WHEREAS the second party is the sole, absolue and right full occupiers and in possession of ONE SHOP ON GROUND FLOOR BEARING MUNICIPAL NO. 1806, having its area (5'0'), 40.00 sq.fts; approxs upto ceiling, without roof rights, situated at Bazar Cheera Khana, Maliwara, Delhi-110006, (hereinafter called the said premises).
AND WHEREAS on account of some bussiness circumstances the second party is unable to manage, supervise and control the said business.
AND WHEREAS the first party has approached the second party to run the said business in partnership in the said premises.
AND WHEREAS the second party has accepted the proposal of the second party and has agreed partnership. to entered into ari AND WHEREAS to avoid themselves from un-necessarily litigations and misunderstanding the parties have agreed to reduce the terms and conditions in writing:-
NOW THESE PRESENTS WITNESSETH AS UNDER:
1. That the name and style of the partnership firm will be M/s A.K.TEXTILE, at SHOP ON GROUND FLOOR BEARING MUNICIPAL NO. 1006, having its arma (5'x), 40.00 approx: upto ceiling, without roof rights, situated at Bazar Cheora Khana, Maliwara, RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 13 of 24 Dalhi-110006, that the partnership between the said parties has been commenced w.e.f.
eleven months. 01.3.2014 up to elevan months.
2. That the principal business premises of the firm will be the above said premises.
3. That the nature of the partnership business will be trading of Suit, Saree, Lehenga and Dress Material, etc: and/or some other businese as the parties to the dood will decide mutually from time to time.
4. That the entire investments of the said business will be nade by the first party only who shall be exclusively responsible for the liabilities/assets of the said firm.
5. That the second party shall be sleeping partner, who shall be entitled to receive a sum of Rs. 14,000/- (Rs. fourteen thousand only), per month this partnership dead shall be limited period of eleven months.
6. That as the partnership firm is being run by the first party exclusively, hence, the second party shall not be responsible for any loss or other liabilities/credit of said business.
7. That after expiry of eleven months the first party shall be bound to vacate the vacate the said premises and has been left with no right, title or interest in the said premises。
8. That the first party shall not avail any loan or any other liabilities by involving the said premises with any one.
9. That the first party shall regularly and every month paying other charges of said premises such as electricity bills, maintenance charges and service charges etc.
10. That both the parties have runing the said bussiness Jointly and the profit of the business will be gained between the parties in the following ratios-
a) First party.......................90%.
b) Second party..................10%.
in this regard the first party will be liable to pay minimum, Rs. 14.000/- (Rs. fourteen thousand only) as an business profit to the second party on every months from Ist to 5th day of every months.
11. That the first party will be responsible for payment of any statutory dues, taxes and settlement of claim of creditors and loan funds etc. and it will be exclusive responsibility of the first party to honour the same.
12. That the first party will open the bank account in name of the firm and will operate the same.
13. That the partnership is at Will and in will arise in between the parties the case any dispute matter will be referred to the Arbitration and decision of the Arbitrator will be final and binding upon the parties.
14. That the financial year of the partnership firm will 31st March of each English Calender year, when the account books of the firm will be maintained properly and profit accounts will be settled.
15. That all assests and stock in the said premises exclusively under the supervision and under control only the first party.
RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 14 of 24 IN WITNESS WHEREOF the first party and second party both have signed in this deed, after understanding the contents of the same on the day, month and year first above written, in the presence of the following witnesses.
WITHESSES
-(sd)-
FIRST PARTY
-(sd)-
SECOND PARTY
-(sd)-"
25. The contention of the respondents is that the respondents have never parted with the possession of the tenanted shop and the said partnership business was looked after by the respondents and Sh. Salim Ahmad did not attend the business from the tenanted shop. It was also contended that the tenanted shop was in exclusive control of the respondents and the same was opened and closed by the respondents on each day.
26. Generally speaking, merely because the tenant has entered into a partnership with a stranger for carrying on business from the tenanted premises, it does not amount to sub-letting, if the tenant retains the possession and user of the tenanted premises. It was held in Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb & Ors., 1987 3 SCC 538, that where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the tenanted premises while retaining the legal possession thereof, the act of the landlord does not amount to sub-letting. It was held in G. K. Bhatnagar (Dead) by LRs Vs. Abdul Alim, 2002 9 SCC 516, that if the purpose of the partnership ostensibly to carry on business in the partnership but the real purpose is sub-letting of the premises to such other person who is inducted ostensibly as partner, then the same shall RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 15 of 24 be deemed to be an act of sub-letting attracting the applicability of clause (b) of sub section (1) of section 14 of DRC Act. It was held in Parvinder Singh Vs. Renu Gautam & Ors., 2004 4 SCC 794, that in case of partnership by a tenant with other person if the user and control of the tenanted 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, then 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.
27. It is pertinent to mention that the respondent No. 1 deposed in his cross-examination that prior to the partnership with Sh. Salim Ahmad, he was selling tea from the tenanted shop. He further deposed in his cross-examination that no bank account was opened in the name of the partnership firm. This deposition of respondent No. 1 is in conflict with clause No. 12 of the partnership deed Ex. PW-3/1. He admitted that he had not invested any capital in the partnership. He further admitted that no formal dissolution of the partnership was carried out. He deposed that the partnership continued till the end of 2015. It is relevant to note that as per clause 1 of the partnership deed, the partnership firm had commenced from 01.03.2014 and the same was to be in existence till eleven months from 01.03.2014. From the deposition of respondent No. 1, it is clear that the partnership firm had continued to exist beyond the stipulated period in the partnership deed. It was also deposed by respondent No. 1 that RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 16 of 24 the business under the name and style of 'M/s A K Textiles' has been continued from the tenanted shop. PW-1 has in his cross- examination that a sign board in the name of M/s A K. Textile is lying affixed on the tenanted shop. No suggestion that the said sign board is not so affixed on the tenanted shop was put to PW-
1.
28. It is further pertinent to mention that the respondent No. 1, when asked during the cross examination as to whether he is in possession of any document of sale and purchase of goods during the period of the partnership and proof of payments, he deposed that no bank account was opened in the name of the firm and he had only his personal bank account but he did not deposit any of the sale proceeds in the said bank account. He further deposed that he was not in possession of any document of sale and purchase of goods during the period of partnership with Salim Ahmad. He deposed that he used to receive goods from Salim Ahmad and used to sell the same and sale proceeds thereof were to be given to Salim Ahmad. However, he deposed in his cross examination that he cannot produce any document showing delivery of goods by Salim Ahmad to him or showing payment made to Salim Ahmad by him.
29. The partnership deed Ex. PW3/1 makes it clear that the said partnership was in relation to the tenanted shop and the partnership was entered into by respondents since the respondents were unable to manage, supervise and control the business running at the shop. The terms of the partition deed clearly show that the firm was to commence business of trading of saree, suit, lehenga etc. from the tenanted shop under the name RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 17 of 24 and style 'M/s A K Textile'. The entire investment for the purpose of the said business was to be made by Sh. Salim Ahmad and who was to be responsible exclusively for all liabilities and assets of the firm. As per the terms of the said partnership deed, the respondents were to be sleeping partners and were entitled to receive Rs. 14,000/- per month. The respondents were not to be responsible for any loss or other liabilities of the said business. It was agreed that the share of the respondents in the business was to be 10% only. Sh. Salim Ahmad was to be responsible for all the payments of statutory dues, taxes and settlement of claims of the creditors and it was to be his exclusive responsibility. The terms of the partnership deed Ex. PW-3/1 clearly suggests that the respondents have handed over the control of the tenanted shop to Sh. Salim Ahmad under the garb of the partnership and a presumption is liable to be raised in this regard under section 114 of Indian Evidence Act, 1872 against the respondents that the respondents have handed over the possession as well as the control of the tenanted shop to Sh. Salim Ahmad. The respondents have contended that they were in control of the business at the tenanted shop. After the respondents have admitted the partnership deed Ex. PW-3/1, burden was on the respondents to prove that they had not parted with the possession of the tenanted shop. The respondents, except the self-serving and evasive testimony of respondent No.1, could not produce any evidence to rebut the presumption that they retained the control of the tenanted shop after execution of the partnership deed. It is also contended by the respondents that the partnership had come to an end in the year 2015. As already observed, the partnership RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 18 of 24 continued even after the stipulated term of eleven months and the respondents have not produced any document of dissolution showing that the said partnership had come to an end in the year 2015. This fact can be corroborated from the presence of the hoarding on the tenanted shop in the name M/s A K Textile and the fact that the same business has been continued from the tenanted shop till date.
30. It is the further contention of the respondents that Sh. Salim Ahmad did not participate in the business from the tenanted shop and he merely used to supply the goods which were to be sold from the tenanted shop. It is pertinent to mention that nothing of this sort has been mentioned in the partnership deed Ex. PW-3/1 nor the said deed suggests that Sh. Salim Ahmad had such passive role in the partnership since he was to be solely responsible for the business to be carried out in the tenanted shop and not the respondents. Further, respondent No.1 admitted that he did not have any documents pertaining to the sale and purchase of goods from Salim Ahmad during the relevant period. It is not probable that the respondents could not have been in possession of any document of receipt or dispatch of goods from Sh. Salim Ahmad if they were doing business in the manner as alleged. Moreover, the respondent No.1 could not give any satisfactory account of the sale proceeds from the business, if they were handling the business from the tenanted shop. The respondents also did not have any document showing sale purchase of goods from the said partnership business.
31. The respondents have produced the bill books Ex. RW-2/P1 during the cross examination of respondent No.1 upon RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 19 of 24 being asked to show document in support of his claim that he is proprietor of M/s A K Textile. Perusal of the bill book Ex. RW- 2/P1 shows that they are temporary bills without any GST number or any other details showing that the proprietor is registered with any statutory authority. These bills do not inspire confidence of this Court, especially in view of the fact that the respondents could not produce any such document pertaining to the period 2014-2015 and the fact that no document of dissolution of the partnership has been produced. The possibility that the bills Ex. RW-2/P1 were self-created by the respondents cannot be ruled out.
32. In the present case, there is no direct evidence of the sub-tenancy by the respondents in favour of Sh. Salim Ahmad but the law does not require sub-letting to be proved by direct evidence only. The arrangement of sub-letting is generally carried out behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a stranger. In such a situation, it is difficult for the landlord to prove the sub- tenancy by direct evidence. In Bharat Sales Ltd. Vs. LIC, 1998 1 SCR 711, the Hon'ble Supreme Court has observed:
"...Sub-tenancy or subletting 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 of 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 y 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 RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 20 of 24 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 consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet."
As already observed above, the exclusive control of the partnership business was given to Sh. Salim Ahmad while the respondents were sleeping partners in the business having only 10% share in the profits. The exclusive responsibility towards the assets and the liability of the business was vested in Sh. Salim Ahmad. The partnership deed Ex. PW-3/1 clearly states that the partnership business was to be run exclusively by Sh. Salim Ahmad. The respondents were to receive a sum of Rs.14,000/- for being sleeping partners and all the assets were to be under the exclusive control of Sh. Salim Ahmad. The said business under the name M/s A K Textile is still continuing from the tenanted shop and the respondents have not been able to prove that the said partnership has come to an end. The respondents also have not been able to prove that they never parted with the possession of the tenanted shop and that the business under the name M/s A K Textile is the sole proprietorship of respondent No.1. These facts unmistakably points towards the sub-letting of the tenanted premises by the RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 21 of 24 respondents and nothing else.
33. It is essential for making out a case under section 14 (1) (b) of DRC Act that the tenant has sub-let the whole or any part of the tenanted premises without obtaining written consent of the landlord. As per section 16 of DRC Act, a tenant cannot sub-let whole or any part of the tenanted premises without the previous consent of the landlord in writing. The consent of landlord must be specific and in writing, in order for the tenant to take the defence of lawful sub-tenancy. In Shalimar Tar Products Ltd. Vs. H.C. Sharma & Ors., 1988 1 SCR 1023, it was held :
"It is true that Justice R.S. Bachawat had expressed the view that A the consent could be general or special but in the case before the Court there was no conduct which showed that there was consent by the general words of the clause in the deed. We are of the opinion on reading of the different provisions that the consent enjoined by bargain between the parties in this case must be in writing and must be to the specific sub-letting.
That was the view of the Delhi High Court in Raja Ram Goyal v. Ashok Kumar and others, [ 1975] All India Rent Control Journal 534. In Kartar Singh v. Shri Vijay Kumar and Another, [ 1978] All India Rent Conrol Journal 264 the High Court of Punjab & Haryana has also expressed similar view. In the case of Mis Delhi Vanaspati Syndicate, c Delhi v. Mis Bhagwan Dass Faqir Chand, (A.LR. 1972 Delhi 17) Khanna, C.J. as he then was of the Delhi High Court observed at page 19 of the report:
"Section 16 of the Act of 1958 holds the key to the interpretation of provisions of Clause (b) of sub- section (1) D of Section 14 of this Act as well as of Clause (b) of sub· section (1) of S. 13 of the Act of 1952. It deals with restrictions on sub-letting. Sub- section (1) of section 16 makes sub-letting lawful though it was without the consent of the landlord provided that the sub-letting has taken place before 9th day of June, 1952 and the sub-tenant is in occupation of the premises at the time when the Act of 1958 came into force. Sub-section (2) of section 16 reiterates the provisions of Clause (b) of sub-section ( 1) of Section 13 of the Act of 1952 and lays down that the sub-letting after 9th day of June, 1952 without obtaining the consent in RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 22 of 24 writing of the landlord shall not be deemed to the lawful. It does not say that the requisite consent should be obtained before sub-letting the premises and the consent obtained after sub-letting will not enure for the benefit of the tenant. However, sub- section (3) of Section 16 prohibits subletting of the premises after commencement of Act of 1958 without the 'previous' consent in writing of the landlord. . The use of word 'Previous' in this sub- section shows that where it was the intention of the legislature that the consent in writing should be obtained before sub-letting, it said so specifically. The absence of the word 'Previous' in sub· section (2) shows that it was not the intention of the legislature that the consent in writing could be obtained before sub-letting. Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in sub-letting to escape forfeiture of tenancy. Since the absence of consent in writing by a landlord for sub-letting gave rise to unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement. The purpose seemed to be that the consent of the landlord evidence by a writing would cut out litigation on this ground. After all a landlord could always agree to sub-letting either before or after sub-letting of the premises. For that reason no condition was laid down that such consent should be obtained before sub-letting the premises.'' We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned herein before. In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub-letting the premises. The mere permission or acquiescence will not do. The consent must be to the specific sub-letting and must be in writing. Indeed there was no implied permission also here. Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub-letting, the moment he realised the situation."
Similarly, in Bajaj Auto Limited V. Behari Lal Kohli, 1989 3 SCR 730, it was held as under:
"9. There is still another reason to hold that the aforesaid clause can not come to the aid of the appellant. A perusal of its language would show that it contains the respondent's consent in general terms without reference to M/s. United Automobiles. As a matter of fact M/s. United Automobiles came to be inducted as a sub-tenant much later. Can such a general RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 23 of 24 permission be treated to be the consent as required by S. 14 (1) Proviso (b) of the Act? It was held by this Court In M/s. Shalimar Tar Products v. S.C. Sharma, [1988) 1 SCC 70; that S. 14(1) Proviso (b) and 16(2) and (3) of the Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub-letting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, impermissible, Since it is not suggested that the consent of the respondent was obtained specifically with reference to the sub-letting in favour of M/s. United Automobiles, the clause in the lease deed, which has been relied on can not save the appellant, even if it be assumed in its favour that the clause is admissible and the sub-lessee is appellant's associate concern. The appeal, therefore, fails and is dismissed with costs."
In the present case, the respondents did not obtain any written consent either of the petitioner or of the other co- owners. The respondents have offer no contest on this issue.
34. In view of the foregoing, the petitioner has succeeded in establishing its case under Section 14 (1) (b) of the DRC Act. Accordingly, the present petition is allowed and eviction order is passed in favour of the petitioner and against the respondents in respect of the tenanted shop i.e., One Shop, bearing private No. 2, situated on the Ground Floor, in property No. 1806, Cheerakhana, Nai Sarak, Delhi-11006 as shown in red colour in the site plan Ex. PW-1/1.
No order as to costs.
Digitally signed by PRANAV PRANAV JOSHI
JOSHI Date:
2024.03.02
Announced in open Court 16:22:49 +0530
on 2nd Day of March, 2024
(Pranav Joshi)
ASCJ-cum-JSCC-cum-GJ/Central,
THC/Delhi/02.03.2024
RC ARC No. 566/2018 Sh. Rajan Gupta Vs. Sh. Vinod Kumar & Anr. Page No. 24 of 24