Delhi District Court
By And Through Its Principal Officer vs The Ajit Manufacturing & Trading on 25 May, 2022
IN THE COURT OF SH.DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT
NEW DELHI DISTRICT : PHC : NEW DELHI
RCT No. 233/16
CNR No. DLND010143712016
M/s. Shivam Properties Pvt. Ltd.
Having its Regd. Office at:
1, Anandgram, Aya Nagar,
M.G. Road, New Delhi
By and through its Principal Officer
and constituted Attorney
Sh. D.K. Gupta. ..........Appellant
Versus
1. The Ajit Manufacturing & Trading
Corporation Pvt. Ltd.
Having last known address at:
Third Floor, 1415F,
Connaught Place, New Delhi
2. M/s. P.N. Khanna & Company
Chartered Accountants
Third Floor, 1415F,
Connaught Place, New Delhi .........Respondents
Date of institution of eviction petition : 04.12.2001
Date of impugned judgment : 27.09.2016
Date of filing of present appeal : 17.11.2016
Date of hearing arguments : 18.05.2022
Date of judgment : 25.05.2022
RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 1 of 23
Appearances:
Sh. Sanjay Aggarwal, Advocate for the appellant.
Sh. Anupam Shrivastava and Ms. Sarita Pandey, Advocates for the
respondents.
JUDGMENT:
1. This judgment shall decide an appeal preferred under Section 38 of the Delhi Rent Control Act, 1958 (for short referred as 'the DRC Act') by the appellant/landlord assailing impugned judgment dated 27.09.2016 passed by the Court of Ms. Priya Mahendra, the then Ld. Senior Civil Judgecum Rent Controller, New Delhi District, Patiala House Courts, New Delhi in petition bearing RC No. 5529/2016 titled as 'M/s. Shivam Properties Private Ltd. v. M/s Ajit Manufacturing & Trading Corporation Private Ltd. & Ors, whereby the eviction petition under Section 14 (1) (b) of the DRC Act was dismissed.
FACTUAL BACKGROUND:
2. Briefly stated, it was the case of the petitioner/landlord i.e. the appellant in the present matter (hereinafter referred as the 'petitioner/landlord') that the third floor portion in premises bearing No. 1415, Connaught Place, New Delhi as shown red in the site plan Ex.AW1/1 (also Ex. PW2/1) was let out to M/s Ajit Manufacturing & Trading Corporation Limited (Respondent no.1) in the year 1972. The grievance of the petitioner/landlord was that the entire tenancy premises RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 2 of 23 was now in sole use and occupation of M/s. Khetri Investment Corporation Pvt. Ltd. and M/s. P.N. Khanna & Company Chartered Accountants (Respondent No.2) in the present appeal. It was alleged that M/s. Khetri Investment Corporation Pvt. Ltd. are having their registered office at the tenanted premises whereas respondent No.2 M/s. P.N. Khanna & Company Chartered Accountants have shown the tenanted premises as their address in records of the Institute of Chartered Accountants. It was claimed by the petitioner/landlord that respondent No.1 has ceased to run any business and having no earnings because it is not occupying the tenanted premises; and that the rent is being paid by the subtenants, which is coming not from the bank account of respondent No.1 but from the bank account of respondent No.2 and M/s.
Khetri Investment Corporation. It was also the claim of the petitioner/landlord that tenancy premises was let out to M/s Ajit Manufacturing & Trading Corporation Ltd. and not to M/s. Ajit Manufacturing & Trading Corporation Private Limited, and therefore, eviction of the respondents was sought under Section 14 (1) (b) of the DRC Act.
3. The respondent No.1 hotly contested the eviction petition and in its written statement inter alia took preliminary objections that the eviction petition was barred by the principles of res judicata as the erstwhile owner Mr. K.C. Nahar, from whom the petitioner/landlord had RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 3 of 23 purchased the property, had earlier filed an eviction petition under Section 14 (1) (b) of the DRC Act on the ground that respondent No.1 had sublet, assigned or otherwise parted with the possession of the tenancy premises to M/s. Khetri Investment Corporation Pvt. Ltd., M/s. P.N. Khanna & Company Chartered Accountants and M/s. Kanvinde Rai & Choudhary; and that the said eviction petition was dismissed by the Court of Sh. P.K. Bahri, the then learned ARC, Delhi (as his Lordship was then); and that an appeal was filed challenging the said order but the same was also dismissed by the then Ld. Rent Control Tribunal, Delhi; whereby it was held that M/s. Khetri Investment Corporation Pvt. Ltd., M/s. P.N. Khanna & Company Chartered Accountants and M/s. Kanvinde Rai & Choudhary were lawfully inducted as subtenants in the tenancy premises, and therefore, the respondent No.1 claimed that the said finding had become final between the parties and the issue cannot be reopened or reagitated.
4. It was further the case of the respondent No.1 that Lease Deed dated 29.08.1962 Ex.RW1/5 clearly reflects that subletting was done by respondent No.1 to the named parties with the written consent of the petitioner/landlord. The respondent No.1 further denied that the premises in question have been in sole occupation of M/s. Khetri Investment Corporation Private Limited and M/s. P.N. Khanna & Company Chartered Accountants and it was averred that respondent No1 is also in RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 4 of 23 possession and control of the tenanted premises and it was denied that M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd. does not have any business or earning as alleged or that rent is being paid by unauthorized subtenants on its behalf; and it was claimed that M/s. Kehtri Investment Corporation Private Limited and M/s. P.N. Khanna & Company Chartered Accountants are occupying the premises as lawful subtenants. It was further averred that the name of respondent No.1 company was changed on its becoming a Private Limited Company, which fact was duly recognized and accepted by the earlier landlord i.e. Mr. K.C. Nahar and property in question was sold to the present petitioner/landlord in the year 1979; and prior to the sale, all payments towards rent were being made by M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd. by means of account payee cheques; and that even after buying the property in question, the petitioner/landlord has been accepting rent from M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd.
5. The petitioner/landlord filed replication and denying the averments of respondent No.1 and reiterating its averments in eviction petition, inter alia it was stated that the earlier eviction petition was not passed on the ground of subletting to M/s. Kehtri Investment Corporation Pvt. Ltd. as it was confined to limited ground that Mr. D'Costa was a Director in the said company and lease deed relied upon RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 5 of 23 by the respondent no. 1 only permitted it to sublet the premises to any concern in which said D'costa was interested, but Mr. D'costa had no interest or concern with M/s. Kehtri Investment Corporation Pvt. Ltd. as also with M/s. P.N. Khanna & Company Chartered Accountants.
6. Respondent no.2 also contested the eviction petition and in its written statement, it was stated that on 20.05.1949 M/s. B Lilaram and Sons the erstwhile owners of the suit property executed a General Power of Attorney in favour of Mr. B. Chatta Ram, son of Sethi Ram Chand who let out the suit property to M/s. Indian Institute of Public opinion on 10.04.1956; and that on 26.10.1959 M/s. B. Lilaram & sons, acting through Mr. B Chatta Ram let out the said property to the respondent no. 1, who had been constituted on 12.10.1954 and that vide letter dt. 07.04.1961 the authorized subletting of a part each of the suit property to M/s. Kanvinde Rai (an Architect firm) and M/s. P N Khanna & Co. Chartered Accountants was confirmed by M/s. B. Lilaram & Sons, through Mr. B. Chatta Ram; and that some time between August 1962 and November 1962 M/s. B. Lilaram & Sons sold the suit property to Mrs. Suriya Saleem and Mrs. Nighat Zafar Ali alongwith the tenants and sub tenants; which was confirmed and accepted by the said purchasers; and that Mrs. Suriya Saleem and Mrs. Nighat Zafar sold the suit property to Mr. K.C. Nahar and his family members on 10.05.1965; and that on 16.07.1965 the Nahar family filed a petition under section 14(1)(b) of RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 6 of 23 DRC Act against M/s. Ajit Manufacturing & Trading Corporation Ltd. seeking eviction on the ground of unauthorized subletting. This was contested by the respondent no.1 and decided by the then Ld. ARC, Delhi vide his order dt. 22.05.1968. The subletting of each of the part of the suit property to M/s. Kanvinde Rai and M/s. P N Khanna & Co. was decided as legal and correct and the petition was dismissed. The order dt. 22.05.1968 was challenged in an appeal filed by the Nahar family, which was also dismissed, and the order confirming the authorized subletting of the suit property to M/s. P.N Khanna & Co. was upheld. It is submitted that the documents filed alongwith the present written statement clearly support the fact that M/s. P N Khanna & Co. Chartered Accountants has been in possession and active use of the premises sublet to them since 1961 till date. It was vehemently denied that M/s. Kanvinde Rai & Choudhary, partnership firm of Architects have been in possession of a portion of the demised premises since recently, as pleaded. It is submitted that the said firm has been in possession of a portion of the demised premises for a long time (over forty years) as lawful subtenant; and that this fact was clearly substantiated even in the previous eviction proceedings wherein it was admitted and proved that M/s. Kanvinde & Rai were in possession of a portion of the demised premises as a lawful subtenants. At the time of earlier eviction petition, M/s. Kanvinde & Rai was also lawful subtenant. Its name was also mentioned in the earlier eviction petition.
RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 7 of 237. Needless to state that petitioner/landlord filed replication and apart from denying the allegations levelled by respondent No.2, it reiterated and reaffirmed the averments in the main eviction petition.
8. During the trial, the petitioner/landlord in support of its case examined Sh. D.K. Gupta, Director and Constituted Attorney as PW1, who tendered his affidavit in evidence dated 19.12.2005 Ex.P2 and reiterated the contents of the eviction petition. The petitioner/landlord also examined one more witness, namely Sh. Ashish Gupta as PW2, who tendered his evidence by way of affidavit dated 06.11.2013 Ex.PW 2/A and deposed about correctness of site plan Ex.PW2/1.
9. On the other hand, Col. Sh. Rajesh Sinha, a director in the respondent company, was examined as RW1, who filed his detailed affidavit in evidence dated 14.05.2010 Ex. R1 and was duly cross examined by the Ld. Counsel for the petitioner/landlord on 01.04.2015. Another witness RW2 Sh. Ravi Shankar Kumar, LDC, Mauja Clerk, from Civil Record Room, Tis Hazari Courts, produced the summoned record in Eviction Petition No. 288/65 titled as K.C. Nahar & rs. vs. Ajeet Manufacturing and Trading Co., decided on 22.05.1968 by the then Ld. ARC, Delhi. The relevant copies of the Goswara Register were marked as Ex.RW2/A and RW2/B. Lastly, RW3 Sh. R.K. Saini, RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 8 of 23 Junior Technical Assistant from the office of Registrar of Companies, Nehru Place, New Delhi, produced the summoned record pertaining to respondent no.1 company and deposed that the same was incorporated on 12.10.1954 and the name of the company was changed w.e.f. 20.01.1970. The certificate of incorporation in this regard was marked as Ex.RW3/1.
IMPUGNED JUDGMENT:
10. Ld. Rent Controller vide the impugned Judgment dated 27.09.2016 firstly decided the issue of existence of relationship of landlord and tenant between the parties holding that M/s. Ajit Manufacturing & Trading Company Limited by virtue of documents viz.
certificate of incorporation Ex.RW1/2, pubic notices published in the daily newspapers Ex.RW1/3 and RW1/4 had changed its name to a 'Private Limited Company' on or about 20.01.1970; and that letters Ex.RW1/15 (colly) suggested that Limited Company had been tendering rent of the tenanted premises to erstwhile owner Sh. K.C. Nahar through its firm M/s Nahar Enterprises; and that there was further evidence brought on the record that even petitioner/landlord was receiving rent from the Private Limited concern by virtue of rent receipts Ex.AW1/R1 to AW1/R3. Holding that it was a case of misdescription of the name of the respondent No.1, which was then corrected on moving of an application under Section 151/153 of the CPC, it was held that there existed relationship of landlord and tenant between the parties.
RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 9 of 2311. Ld. Rent Controller then proceeded to address the issue of eviction petition barred by the principles of rej judicata and it was observed that vide earlier judgment dated 22.05.1968 Ex.RW1/10 passed by the then Ld. ARC, eviction petition filed by the predecessor ininterest of the petitioner/landlord, namely Sh. K.C. Nahar under Section 14 (1) (b) of the DRC Act was dismissed holding that three sub tenants, namely M/s. P.N. Khanna and Company Chartered Accountant, M/s Khetri Investment Corporation Private Ltd. and M/s. Kanvinde Rai and Choudhary had been inducted by virtue of written consent of the previous landlord during time the property belonged to M/s. B. Lilaram & Sons and it was only after the property was sold that an objection was taken by Sh. K.C. Nahar about the subletting. Ld. Rent Controller rejected the plea of the petitioner/landlord that it was not his case that the premises has been sublet or assigned in favour of M/s. P.N. Khanna and Company Chartered Accountants and/or M/s. Khetri Investment Corporation Pvt. Ltd.; and the main plank of the case that respondent No.1 was no longer in use, occupation or possession of the tenancy premises as it has ceased to do any business from the premises was also cast aside. Ld. Rent Controller relied on decision in the case of Jagannath (deceased) through LRs v. Chander Bhan & Ors., (1988) 3 SCC 57; Shalimar Tar Products Ltd. v. H.C. Sharma, (1988) 1 SCC 70; Associated Hotels of India Ltd. Delhi v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933 and based on the proposition of law laid down in the RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 10 of 23 cited cases, it was held that the petitioner/landlord in his petition admitted that Board of M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd. was displayed outside the tenancy premises and even Ex.AW 1/2 relied upon by petitioner/landlord suggested that name of M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd. was being displayed outside the tenancy premises; and that the petitioner/landlord in his crossexamination conceded that when he visited the office of M/s. Ajit Manufacturing & Trading Corporation Ltd. at the tenancy premises he found them running their office, from whom he enquired about the status of other subtenants; and that petitioner/landlord in his crossexamination did a complete somersault when he stated that he had only suspicion that pay orders towards rent were being paid by the subtenants. To cut the long story short, learned Rent Controller found that the petitioner/landlord had miserably failed to prove that respondent No.1 had divested itself from use, occupation and control of the tenancy premises and the entire tenancy premises had been let out or parted with in favour of M/s. P.N. Khanna & Company Chartered Accountants and M/s. Khetri Investment Corporation Private Limited. Hence, the eviction petition was dismissed.
GROUNDS OF APPEAL:
12. The petitioner/landlord has assailed the impugned Judgment on the grounds that the Ld. Rent Controller committed grave error in RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 11 of 23 holding that there was any admission made by PW1 that M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd was not in use, or in occupation of the premises in question and/or that entire tenancy premises was in use and occupation of the subtenants; and that Ld. Rent Controller failed to appreciate that merely because the Board of respondent No.1 was displayed outside the tenanted premises, it does not prove that respondent No.1 is in possession of any portion of the tenancy premises or carrying on any business from any part of the tenancy premises; and that despite serivice of notice under Order VIII Rule 12 CPC Ex.AW1/3, the respondent No.1 failed to place on record any documents suggesting that it was in use of any part of the tenancy premises that invites an irrefutable inference that respondent No.1 has ceased to carry on any business from the tenancy premises in question and thus, the Ld. Rent Controller committed grave error in holding that the appellant failed to discharge the initial burden of proving parting of possession of tenancy premises in favour of third person by respondent No.1.
LEGAL SUBMISSIONS:
13. Mr. Sanjay Aggarwal, Ld. Counsel for the appellant referring to the averment in the eviction petition and the corresponding replies in the written statement of respondent No.1 urged that a strange averment was made by respondent No.1 that whosoever was in possession of the RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 12 of 23 tenancy premises was lawful subtenant; and that Ld. Rent Controller failed to appreciate that the earlier eviction petition decided vide judgment dated 22.05.1968, certified copy of which is Ex.RW1/10, passed by the then Ld. Rent Controller clearly suggested that earlier respondent No.1 was in occupation of a substantial part of the premises but in the present case respondent No.1 has failed to substantiate that he has been in use, occupation and control of any part of the premises and the main plank of the argument is that respondent No.1 has absolutely divested itself from the use or occupation of the premises in question and the entire tenancy premises are now in the use and occupation of the tenants or the subtenants; and it is vehemently urged that no written consent or permission was taken by respondent No.1 while parting with the possession of the part of the premises in favour of the third parties. In this regard, it was vehemently urged that since the essential documents with regard to running of business were not produced by respondent No.1, hence, an adverse inference be raised against the respondents in this regard. Reliance was placed on decision in the case of Amar Singh Trilochan Singh v. Jasoti, 2003 (69) DRJ 63.
14. Per contra Mr. Anupam Shrivastava, learned Counsel for the respondent No.1 vehemently urged that present eviction petition was barred by the principles of res judicata in view of earlier Judgment Ex.PW1/10 between the parties. He referred to decision in Celina RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 13 of 23 Coelho Periera & Ors. v. Ulhar Maahabaleshwar Kholkar & Ors., (2010) 1 SCC 217; Young Friends and Co. v. Puri Investments, MANU/DE/4100/2018; Jagannath (deceased) through LRs v.
Chander Bhan & Ors., MANU/SC/0201/1988; and Duli Chand (dead) by LRs v. Jagmender Dass, MANU/SC/0172/1989. Ld. Counsel for the respondent took me through the testimony of PW1 as also cross examination of RW1 and it was vehemently urged that PW1 conceded that when he visited the office he found that the office of M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd had been running from the tenanted premises, and therefore , the petitioner/landlord miserably failed to discharge the initial onus of parting of possession by respondent no.1 in favour of third parties in any manner.
DECISION:
15. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties at the Bar. I have gone through the present file as also meticulously gone through the oral and documentary evidence brought on the record. My findings on the present appeal are as under: PROPOSITION OF LAW
16. In order to decide the present appeal, it would be expedient RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 14 of 23 to refer to the provision of Section 14 (1) (b) of the DRC Act which provides as under: "Section 14 (1) (b): that the tenant has, on or after the 9th day of June 1952, sublet, 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;"
17. The import and effect of the expressions "subletting" or "assignment" or "parting with possession" in various rent restriction laws in India has been the subject of consideration of the courts for a long time now. In the context of similar provision in Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Supreme Court in its decision reported as Gopal Saran v. Satyanarayana,(1989) 3 SCC 56, while referring to its various previous decisions including Associated Hotel of India Ltd. Delhi v. S.B Sardar Ranjit Singh, AIR 1968 SC 933; Dr. Vijay Kumar v. Raghbir Singh Anokh Singh, (1973) 2 SCC 597; and Shalimar Tar Products Ltd. v. H.C Sharma, (1988) 1 SCC 70, inter alia, held that "to constitute a subletting, there must be a parting of legal possession i.e., possession with the right to include and also right to exclude others and whether in a particular case there was subletting was substantially a question of fact". It was held that "parting with possession is understood as parting with legal possession by one in favour of the other by giving him an exclusive possession to the ouster of the grantor". It was further observed that "the question whether there is a RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 15 of 23 tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either subtenancy or parting with possession..."
18. Thus, a stranger coming into possession of the tenanted premises wholly or partly without the consent of the landlord, constitutes the core element of the ground of subletting, assignment or parting with possession etc. Elementary as it may look, te ingredient of "parting with possession wholly or partly" is inherent in all the three limbs. The primary burden of proving the presence of a stranger in the tenanted premises and the stranger being in exclusive possession of the whole or part of the tenancy premises is upon the landlord. Once the landlord has proven that the tenant stands excluded from the tenancy premises the fundamental facts to show that the tenants stands excluded from the tenanted premises or that he has forfeited the "right to repossess" of the whole or part thereof, that an inference of subletting, assignment or parting with arises thereby shifting the onus on the tenant to explain the legal status of the stranger in the tenancy premises.
19. In view of the aforesaid proposition of law, reverting back to the instant appeal, it is in the testimony of PW1 Sh. D.K. Gupta that property in question as a whole was purchased by them on 27.07.1974 RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 16 of 23 from the previous owner M/s. B. Lilaram & Sons. It was also conceded by PW1 Sh. D.K. Gupta that after purchase of the property, rent has been received from the respondent No.1 M/s. Ajit Manufacturing & Trading Corporation Pvt. Ltd and some of the said receipts were marked Ex.RW1/18 to RW1/22 till about 2009. It is also in evidence that M/s. Ajit Manufacturing & Trading Corporation Ltd. was inducted as tenant in the premises by the erstwhile owner Sh. Ram Chand and Mr. Metha Ram, sons of late Sh. Lilaram vide lease deed Ex.RW1/5 and interestingly Clause (6) of the Lease Deed dated 29.08.1962 it was provided that "Lessee shall not hereafter sublet the premises in part or whole without prior written consent of the Lessor, except in case of existing subtenants in whose case this would not apply". In fact, respondent No.1 M/s. Ajit Manufacturing & Trading Corporation Ltd., as it was named earlier, was inducted as tenant into the premises on the terms and conditions issued in the letter dated 27.10.1959 Ex.RW1/8 w.e.f 1st April, 1961 and the lease deed dated 29.08.1962 Ex.RW1/5 was executed subsequently.
20. However, after getting inducted into the premises the respondent No.1 wrote letter dated 07.04.1961 to M/s. B. Lilaram & Sons i.e., the erstwhile owner acknowledging their status w.e.f. 01.04.1961 Ex.RW1/6 as tenant inter alia also acknowledging M/s. P.N. Khanna & Company Chartered Accountants and M/s. Kanvide & Rai, an RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 17 of 23 Architect Firm as subtenants in the premises. Another letter dated 11.04.1961 Ex.RW1/7 was also appears to have been written to the erstwhile owner B. Lilarm and Sons acknowledging M/s. Khetri Investment Corporation Private Limited as subtenant on the part of respondent No.1.
21. Be that as it may, the whole scenario with regard to the legal status of subtenants becomes clear on perusal of the certified copy of the eviction Suit No. 288/1965 instituted on 16.07.1965 decided by the then Ld. Rent Controller dated 25.05.1968 Ex.PW1/10, which would go to suggest that the eviction petition was filed by K.C. Nahjar S/o Sh. Ami Chand Nahar & others in his family business who claimed that they became owner of the premises in question after buying the same from M/s. B. Lilaram & Sons vide registered sale deed dated 10.05.1965 and their claim that premises had been unauthorizedly sublet by the respondent No.1 M/s. Ajit Manufacturing & Trading Corporation Ltd in favour of the three subtenants without written consent was rejected. It was held by the then learned ARC that Shr. R. Chatta Ram as Attorney of M/s. B. Lilaram & Sons had acknowledged in the letter dated 26.10.1959 that M/s. P.N. Khanna & Company Chartered Accountants, M/s. Kanvinde & Rai and M/s. Khetri Investment Corporation Pvt. Ltd. were lawful subtenants in respect of portions Mark 'x' 'y' and 'z' respectively in the site plan attached and proved in the said proceedings and the said acknowledgment of the status of the subtenants had been RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 18 of 23 done prior to property having been purchased by the petitioners K.C. Nahar & others. Thus, there can no hesitation in holding that the said disposition remained binding upon the present petitioner/landlord when he purchased the property in the year 1979.
22. All said and done, the main plank of the petitioner/landlord is that respondent No.1 is completely divested himself of the use, possession or control of the tenancy premises and the same has been fully parted with in favour of subtenants. I am afraid Ld. Rent Controller rightly observed that PW1 Sh. D.K. Gupta in his cross examination conducted on 23.01.2013 testified that he had visited the premises in question and had make enquiries with regard to different portions, that were being occupied by the tenant and the subtenants and he had found that respondent M/s. Ajit Manufacturing & Trading Corporation Ltd. was having its office during his visits and there was also a signboard of respondent No.1 that was affixed outside the building. There is a complete absence of any categorical assertion or material as to which portion of the tenancy premises was being occupied by respondent No.1 and fully parted with in favour of other subtenants.
00. Incidentally, it is only in the testimony of RW1 Col. Rajesh Sinha(retd) in his affidavit tendered in evidence Ex.RA1 that it comes out specifically that their company is a tenant in respect of rear portion of the tenanted premises measuring 1700 Sq. Feet in terms of Lease Deed dated 29.08.1962 Ex.RW1/5 . What turns the table against the RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 19 of 23 entire case of the petitioner/landlord is that RW1 Col. Rajesh Sinha(retd) in his crossexamination on 01.04.2015 deposed without any challenge that portion marked in red in the site plan Ex.PW2/1 was in their possession, which remained unchallenged and unrebutted by the petitioner/landlord. RW1 further testified in his crossexamination without any challenge that the respondent no.1 has been in the business of providing Cab services and office ancillary services that would include secretarial services, office equipment, fax machine, computers etc. He categorically testified that they had a license to run Cab services while running of ancillary services did not require any license. RW1 denied the suggestion that they were not in use, possession or control of any part of the premises.
23. In fact, PW1 Sh. D.K. Gupta cut a serious sorry figure in his crossexamination on 05.12.2002 when he conceded that in the Sale Deed Ex.PW1/R2 X1 dated 27.07.1979 there was clear mention of tenant in the premises including that of respondent No.1 vide item No. 7 vide Clause (5) at page 8 and he stated that had visited the premises in question at the time of purchase but failed to recount if M/s. P.N. Khanna & Company Chartered Accountants and M/s. Khetri Investment Corporation Pvt. Ltd. were operating from the premises in question. The testimony of PW1 reflects that he had different versions about tenancy portion being in use, occupation and possession of different subtenants. When witness reappeared for further crossexamination on 23.05.2009, RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 20 of 23 he testified that he was unaware if the previous owner had confirmed subtenancy of M/s. P.N. Khanna & Company Chartered Accountants and M/s. Khetri Investment Corporation Pvt. Ltd. vide letter dated 07.06.1961. When PW1 was further crossexamined on 20.02.2010 he stated that when he visited the premises he found M/s. Kanvinde Rai & Choudhary besides M/s. P.N. Khanna & Company Chartered Accountants in actual possession but then when he was further cross examined on 23.01.2013 he showed complete lack of knowledge if M/s. P.N. Khanna & Company Chartered Accountancy Firm has been a tenant in the premises since 1959. At the same time, PW1 admitted that signboards of the tenants were affixed/installed outside the premises.
24. Therefore, this Court has no hesitation in observing that the whole testimony of PW1 D.K. Gupta is utterly uninspiring since despite stating that he had visited the premises several times and even at the time of preparation of the site plan Ex.PW2/1 by the Draftsman, he failed to give any detail as to the extent of construction at the tenancy premises; and at the cost of repetition he failed to pinpoint which exact portion was in the tenancy of respondent No.1, which stood parted with in favour of the subtenants without its consent. The testimony of PW1 shows utter lack of knowledge as to the extent of use, possession or control of different portions in the tenancy by the subtenants, namely M/s. P.N. Khanna and Company Chartered Accountants and M/s Khetri Investment Corporation Private Limited, and therefore ,the decision of the Ld. Rent RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 21 of 23 Controller cannot be faulted on such grounds. That being the case, the onus of proving that there was parting with possession never shifted upon the respondent No.1 and in view of testimony of RW1 about its business in dealing with cab and ancillary services, mere notice under Order VIII Rule 12 C.P.C hardly cuts much ice.
25. Before parting with this appeal the proposition of law laid down in the case of Amar Singh Trilochan Singh v. Jasoti (supra), cited by the learned Counsel for the appellant has no application in the present case. The proposition of law was laid with regard to claim of the tenant that he had entered into a partnership firm with a third party and it is in such facts & circumstances, it was held that Rent Controller was required to examine the issue as per the parameters laid down vide Section 14 (4) of the DRC Act and when a "third person is established to be functioning in the property in question" and there is nothing to show that the tenant is doing any business from the shop in dispute, conclusion of subletting or parting with possession were obvious. The said proposition of law is distinguishable as it was given in the overall contextual background of a case where evidence as to genuine partnership between the tenant and a third person was amiss. On other hand, learned Counsel for the respondent relied on decision in the case of Duli Chand (dead) by LRs v. Jagmender Das, MANU/SC/0172/1989 wherein in relation to the issue of "parting with possession", it was held RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 22 of 23 that mere user by other person or third person is not parting with possession so long as the tenant retains legal possession himself. The same ratio of law was earlier propounded in the case of Jagannath (deceased) through LRs v. Chander Bhan & Ors. (supra). In the instant case, in view of the scenario where the subtenants have been occupying certain portions in the tenancy premises in a lawful manner for the last so many years, it was incumbent upon the petitioner/landlord to cogently establish that respondent no. 1 has not only ceased to run any business but in what manner he has also parted with the possession of the premises in favour of any or more of the subtenant without his written consent.
26. In view of the foregoing discussion, I find that the present appeal is devoid of any merit and same is accordingly dismissed thereby, upholding the impugned Judgment dated 27.09.2016 passed by the Ld. Sr. Civil JudgecumRent Controller, New Delhi District, Patiala House Courts, New Delhi.
27. Trial Court record alongwith copy of this Judgment be sent back forthwith. File of appeal be consigned to the Record Room.
Digitally signed by DHARMESH DHARMESH SHARMA
SHARMA Date: 2022.05.25
15:08:29 +0530
Announced in open Court (Dharmesh Sharma)
on 25th May, 2022 Principal District & Sessions Judge/RCT
Patiala House House Courts, New Delhi
RCT No. 233/16 M/s. Shivam Properties v. The Ajit Manufacturing Page 23 of 23