Sh. C M Chadha vs M/S. Dhawan Dinodia & Co on 22 December, 2014

[Cites 27, Cited by 0]

Delhi District Court

Sh. C M Chadha vs M/S. Dhawan Dinodia & Co on 22 December, 2014

E. No.29/09                                 1                     22.12.2014



IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
    RENT CONTROLLER: PATIALA HOUSE COURTS: NEW DELH


                                                             E.No.29/09
                                      Unique ID  No.  02403C0960522007

Sh. C M Chadha 
S/o. Late Sh. Atma Ram Chadha
Prop. Of M/s. A. R Chadha & Co. 
Office No. 8, First Floor, 
Atma Ram Mansion (Scindia House)
Connaught Circus
New Delhi 110 001                                     ....... Petitioner


            Versus


1      M/s. Dhawan Dinodia & Co.
       A Partnership Firm through its 
       Partner Smt. Padma Dinodia


2      Sh. S N Dhawan (Since deceased) 
       Partner M/s. Dhawan Dinodia & Co. 
       Through his Legal Heirs


a)     Smt. Bimla Dhawan 
       W/o. Late Sh. S N Dhawan


b)     Sh. Vijay Dhawan
       S/o. Late Sh. S N Dhawan


c)     Mrs. Beenu Mathur
       D/o. Late Sh. S  N Dhawan



C M Chadha Vs. M/s. Dhawan Dinodia & Co.                        Page  1 of  49
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d)     Ms. Neenu Bhatia
       D/o. Late Sh S N Dhawan


       All residents of/C/o
       D74, Malcha Marg,
       Chanakyapuri
       New Delhi110021


       All also at
       C37, Second floor
       Atma Ram House
       Opp. Odeon Cinema
       Connaught Place
       New Delhi110 001
                                                        ........ Respondents

Date of institution :  20.08.2007
Date of arguments : 02.12.2014
Date of decision      : 22.12.2014


       J U D G M E N T

1 Present eviction petition is under section 14 (1) (b) of Delhi Rent Control Act, 1958, (hereinafter referred as Act), in respect of premises bearing no. C37, 2nd floor, Atma Ram house, Opp. Odean Cinema, Connaught Place, New Delhi measuring 1000 sq ft. (hereinafter referred as the tenanted premises) as shown red in the site plan on the ground of subletting without the written consent of the petitioner. After death of the partners of respondent firm, the LRs of the partner S N Dhawan have C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 2 of 49 E. No.29/09 3 22.12.2014 been impleaded as party in the present petition.

2 Brief facts of the case are that petitioner is the owner of tenanted premises. Tenanted premises was let out to the respondent long time back at monthly rent of Rs. 231/ per month excluding electricity and water charges but including house tax only. It is alleged that respondent has sublet , assigned and parted with possession of tenanted premises without knowledge and written consent and approval of petitioner to one M/s. S N Dhawan and Co. & others. It is prayed that since respondent has sublet, assigned and parted with possession of the tenanted premises to M/s. S N Dhawan & Co and others, eviction order u/s. 14 (1) (b) of the Act be passed in favour of petitioner and against the respondent.

3 In the written statement filed by the respondent, it is stated that present petition is without any cause of action as the tenanted premises have always been in control and possession of respondent which is a partnership firm with Mr. S N Dhawan and Mr. S R Dinodia as its partners who are carrying on their activities from the tenanted premises. The premises have never been sublet, assigned or otherwise parted with by them to any third person. The premises was let out by Mr. A R Chadha to M/s. Dhawan Dinodia & Co. a partnership firm with Mr. S N Dhawan and Mr. S R Dinodia as its partners. The petitioner is only one of the LR of Mr. A R Chadha and the suit is bad for non joinder of necessary parties as the other LRS have not been impleaded in the present petition. Mr. S N Dhawan and Mr. S R C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 3 of 49 E. No.29/09 4 22.12.2014 Dinodia are the cotenants in the tenanted premises as same was let out to the partnership firm M/s. Dhawan Dinodia and Co. It is stated that tenanted premises is under control and power of respondent and its partners and has never been sublet , assigned or parted with possession in favour of any third person.

3.1 M/s. S N Dhawan and Company initially was a proprietorship concern of Sh. S N Dhawan which was subsequently converted into partnership firm in which Mr. S N Dhawan and his son Sh. Vijay Dhawan are the main partners and the other partners are only the associates of Mr. S N Dhawan. In fact M/s. S N Dhawan and Co. was having its operational offices at Malcha Marg as well as Silver Arch Building, Firozshah Road, New Delhi which is now shifted to Gurgaon and only head office address has been given of tenanted premises because of the convenience of Mr. S N Dhawan who is the organizational head of the firms. Sh. S N Dhawan and Mr. S R Dinodia are renowned Chartered Accountants and took premises for their professional activities in the name of their partnership firm and are carrying on their professional activities with the assistance of their associates and interns in tenanted premises. The control and possession of tenanted premises always remained with them only. Since the inception of tenancy and same was always within the knowledge of Mr. A. R Chadha and after him his legal heirs. It is stated that since the tenanted premises have never been sub let , assigned or parted with possession, petition is liable to be dismissed.

C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 4 of 49

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4              In   the   replication   filed   by   petitioner,   he   while

denying the contents of the written statement has reiterated upon the facts as stated in the petition. It is stated that tenanted premises are neither in control nor in possession of the partnership firm. In fact, the said firm has let out the premises to Sh. S N Dhawan & Co. which is a proprietorship concern of Mr. S. N Dhawan. The said proprietorship concern has further, assigned and parted with possession of tenanted premises to M/s. Power Gas Energy Pvt. Ltd. which is a company duly incorporated under the Companies Act. The said Mr. S N Dhawan has further handed over the possession/ part possession of the tenanted premises to another company M/s. Trident Business Solutions Pvt. Ltd. without any consent and permission of petitioner / owner either in writing or oral.

4.1 It is stated that Mr. S N Dhawan has not only assigned and parted with possession of the premises to his son Sh. Vijay Dhawan but also to his grand son Sh. Bharat Dhawan. The said grand son Mr. Bharat Dhawan along with Sh. R Rehman has formed and floated a company under the name and style of M/s. Power Gas Energy Pvt. Ltd. which is a subsidiary company of an International Ltd. namely M/s. Power Gas International Ltd. The said company was incorporated on 01.07.2006 and is having its registered office as that of tenanted premises. Sh. Bharat Dhawan has resigned from said company on 05.10.2006 and one Sh. Prem Kumar Sekhri son of Sh. Jagdish Ram Sekhri has joined as Director of said company besides other Promoter Director Sh. R. Rehman. It is further stated that above C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 5 of 49 E. No.29/09 6 22.12.2014 said subsidiary has no link at all with the nature of work of respondent and for all intents and purposes the respondent has lost control, power and possession of the tenanted premises. Further M/s. S . R Dinodia & Co. which is a partnership firm of Sh. S. R. Dinodia, Sh. Pradeep Dinodia, Sh. Sandeep Dinodia and Ms. Pallavi Dinodia is carrying on its business from K39, Connaught Circus, New Delhi.

4.2 It is further stated that M/s. A.R Chadha and Co. was a partnership firm having Sh. A. R Chadha and Sh. C. M Chadha as its partners. After death of Sh. A. R Chadha, the said firm was reconstituted with Sh. C. M Chadha and Smt. Chunia Wati Chadha as its partners. Now after death of Smt. Chunia Wati Chadha, M/s. A. R Chadha is a proprietorship concern of Sh. C. M Chadha and as such he is the owner and landlord of the tenanted premises. The other LRs have no concern either with the tenanted premises or with the proprietorship concern of M/s. A. R Chadha & Co. Further respondent has been corresponding with petitioner and has accepted him as the owner and landlord of tenanted premises. Even otherwise petitioner being one of the coowner is competent to file present petition and contention of the respondent in this regard are not sustainable.

5 After completion of pleading, both the parties have lead evidence to support their contentions. Petitioner in order to support his contentions has examined Sh. Rakesh Kumar as PW1, who has tendered his evidence by way of affidavit Ex. P1 C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 6 of 49 E. No.29/09 7 22.12.2014 and has relied upon the following documents:

(i) Site plan is Ex.PW1/1.

(ii) Notice dt. 14.02.2007 is Ex. PW 1/2.

(iii) Reply of notice dt. 14.02.2007 along with envelope is Ex. PW 1/3 and Ex. PW 1/4.

(iv) Office copy of the rejoinder dt. 01.03.2007 sent to respondent through registered post is Ex. PW 1/5, original registry and UPC receipts are Ex. PW 1/6 and Ex. PW 1/7.

(v) Letter dt. 22.03.2007 sent by respondent is Ex. PW 1/8 and copy of its reply dt. 30.03.2007 bearing the seal of M/s. S. N Dhawan and Co. is Ex. PW 1/9.

(vi) Receipt of registry, speed post and UPC are Ex. PW 1/10 to PW 1/13.

(vii) Notice dt. 01.06.2007 is Ex. PW 1/14 and the receipt of original registry and UPC receipts are Ex. PW 1/15 and Ex. PW 1/16 respectively.

(viii) Letters of Sh. Vijay Dhawan on the letter head of Dhawan Dinodia & Co. dt. 07.06.2007 and 03.08.2007 are Ex. PW 1/17 and Ex. PW 1/18.

(ix)Original challan dt. 17.10.2007 issued by Ministry of Corporate Affairs is Ex. PW 1/19 and the downloaded copies of the said documents as made available by the Registrar of companies are Ex. PW 1/20 (colly)

(x) Challan dt. 29.10.2007 issued by Ministry of Corporate Affairs is Ex. PW 1/21.

(xi) Documents of M/s. Trident Business Solutions Pvt. Ltd are Ex. PW 1/22 (colly)

(xii) Details of M/s. S R Dinodia & co. downloaded from the website srdinodia.com is Ex. PW 1/23.

5.1 PW 2 Sh. R . K Saini, Junior Technical Asst. Office of the Registrar of Companies has proved the copy of certificate of C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 7 of 49 E. No.29/09 8 22.12.2014 incorporation of Power Gas Energy Pvt. Ltd., certified copy of form 18, form 32, another form 32, form 20B, annual return up to 30.09.2009, form 5 along with notice and resolution pertaining to M/s. Power Gas Energy Pvt. Ltd. as Ex. PW 2/1 to Ex. PW 2/7(colly). Original Certificate of Incorporation of Trident Business Solutions Pvt. Ltd. as Ex. PW 2/8, original form 32 as Ex. PW 2/9(colly), original form 18 as Ex. PW 2/10, form no. 1 as Ex. PW 2/10, original annual return as Ex. PW 2/11 and balance sheet as Ex. PW 2/12(colly) and certified copy of form 20 B of M/s. Trident Business Solutions as Ex. PW 2/13(Colly).

5.2 PW 3 Sh. Dinesh Kumar Mishra is the Executive officer M & CMSS & RTI , Institute of Chartered Accountants of India. He has proved the authority letter dt. 09.09.2010 in his favour as Ex. PW 3/1, original request under RTI Dt. 08.04.2010 from Sh. Amit Sethi Advocate as Ex. PW 3/2. Reply of said RTI request as Ex. PW 3/3. Letter dt. 01.02.91 written by M/s. Dhawan Dinodia & co. (FRN 002334N) whereby partners of the said firm Sh. S R Dinodia and Sh. S N Dhawan have requested for deletion of the name of the firm from the record of ICAI as the firm is no longer in operation as Chartered Accountants as Ex. PW 3/4. The information of the closure of the said firm on 01.02.1991 as Ex PW 3/5.

6 The respondent in order to support its contention has examined Sh. S M Dhawan as RW1, who has tendered his evidence by way of affidavit Ex. RW 1/A and has relied upon following documents:

C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 8 of 49

E. No.29/09 9 22.12.2014

(i) Copy of partnership deed dt. 27.08.1959 is Ex. RW 1/1.

(ii) Site plan is Ex. RW 1/2

(iii) Original agreement dt 12.03.1964 is Ex. RW 1/3.

(iv) Rent bills Ex. RW 1/4 to Ex. RW 1/6.

(v) Original partnership deed dt. 14.01.2010 as Ex. RW 1/6A.

(vi)Original form A , B and C issued by Registrar of Firms is Ex. RW 1/7 to RW 1/9.

(vii)Original partnership deed of M/s. S N Dhawan & Co. dt. 01.04.2009 along with form A , B and C issued by Registrar of Firms are Ex. RW 1/10 to Ex. RW 1/12.

6.1 RW 2 Sh. Abraham N. K , clerk from Office of Registrar of Firms, has deposed that the forms Ex. RW 1/7 to Ex. RW 1/9 and Ex. RW 1/11 and RW1/12 is correct. He further proved the Form 5 regarding constitution of the Firm M/s. Dahwan Dinodia & Co. as Ex. RW 2/1.

7 It is argued by Ld. counsel for petitioner that the present petition has been filed by Sh. C M Chadha as he is now the proprietor of A R Chadha & Co. He is also one of the legal heir of Sh. A R Chadha and has filed this petition being one of the coowner of the tenanted premises which was let out to M/s. Dhawan Dinodia & Co. by Sh. A R Chadha. The respondent has sublet the tenanted premises to S N Dhawan & Co. , and also to Power Gas Energry Pvt. Ltd. and M/s. Trident Business Solutions Pvt. Ltd. without the consent, oral or in writing of petitioner. It is submitted that Dhawan Dinodia & Co. was closed wayback in the year 1991 and now the premises have been sublet to the above said companies who are running their business in the C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 9 of 49 E. No.29/09 10 22.12.2014 tenanted premises without any permission of the petitioner / erstwhile landlord. It is argued that the fact that Dhawan Dinodia & Co. is no more in existence is proved from the testimony of PW 3 and cross examination of RW 1. The sub tenant S N Dhawan & Co. is operating from the tenanted premises without any permission of the petitioner / erstwhile landlord. The partnership deed of S N Dhawan & Co. which has been placed on record is a sham document and camouflaged to cover the actual factum of subtenancy. The very constitution of the partners from the said partnership deed , itself shows that the share of S N Dhawan is much low as compared to the total share of other partners in the said partnership deed, which is merely a sham and camouflaged document. It is further argued that respondent has never disputed existence of S N Dhawan & Co. , M/s. Power Gas Energy Pvt. Ltd. and M/s. Trident Business Solutions Pvt. Ltd. , that they are operating from the tenanted premises. The said fact is further proved from the testimony of PW 2 and further RW 1 during his cross examination has categorically admitted that the tenanted premises is registered office of these companies. It is submitted that since petitioner has proved the factum of subletting in favour of S N Dhawan & Co. , M/s. Power Gas Energy Pvt. Ltd. and M/s. Trident Business Solutions Pvt. Ltd. , his petition be allowed accordingly. Ld. counsel in support of his contentions on the various issues, has relied upon following judgments:

1. Janak Raj Ahuja Vs. Navneet Sehgal, 1997 (2) RCR 165 P & H

2. Kusum Ben Vasantla Amritlal Vs. Shrenikbhai C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 10 of 49 E. No.29/09 11 22.12.2014 Kasturbhai 1998 (2) RCR 572 GUJ

3. Mohdammedkasam Haji Gulambhai Vs. Bakerali Feteh Ali AIR 1998 SC 3214

4. Amar Singh Trilochan Singh Vs. Smt. Jasoti 2003 (2) RCR 532 DHC

5. Darshna Devi Vs. Des Raj Singh Thakur 1997 (2) RCR 170 P & H.

6. Harbhajan Singh Vs. Jai Shri Kishan 1991 (1) RCR 387 P & H

7. Parvinder Kumar Vs. 7th ADJ, Kanpur Nagar 1999 (1) RCR 388 (ALLAHABAD)

8. Nihal Chand Rameshwar Dass Vs. Vinod Rastogi 1995 (1) RCR 101 (SC)

9. M L Gupta Vs. Kripal Singh & Anr. 2002 (2) RCR 263 DHC

10. Shyam Sundar Chowdhury Vs. N C Batabyal 1998 (2) RCR 9 CAL

11. Jiwan Dass (Died) through LRs. Vs. Smt. Raj Rani 2003 (1) RCR 653 P & H.

12. Kala Vs. Madho Parshad Vaidya 1998 (2) RCR 279 SC

13. Ajit Kumar Kotal Vs. Sailesh Kumar Bose 1997 RLR 592 Calcutta (DB)

14. Md. Kamil (D) Vs. Chotey Lal 2006 RLR 64 (Note) DHC

15. S B Khanna Vs. Trilok Nath 1980 RLR 187

16. Parvati Devi V Mahender Singh , 1996 RLR 64

17. Om Prakash Vs. Inder Kaur 156 (2009) DLT 292

18. Sharifuddin Vs. Mehrun Nisha & Ors. 148/ (2008) DLT 154

19. Smt. Rambkubai (since deceased ) through Lrs & Ors.

Vs. Hajarimal Dhokalchand Chandak & ors. AIR 1999 SC 3089

20. M/s. India Umbrella Mfg. Co Vs. Bhagabandei Aggarwala (dead) by Lrs & Ors. AIR 2004 SC 1321.

21. Surjeet Singh Vs. H N Pahilaj (deceased) through LRs 65 (1997) DLT 22

22. Equipment Conductors & Cables Ltd. Vs. Kiran Sujena 2011 (121) DRJ 314 8 Per contra, it is argued by Ld. counsel for respondent that there is no relationship of landlord and tenant between the parties. The petition is bad for misjoinder of parties as all the LRs of petitioner have not been impleaded as party to the suit. It is further argued that since as per petitioner himself, respondent C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 11 of 49 E. No.29/09 12 22.12.2014 has been closed, all the other partners of the existing firm have not been impleaded as a party to the suit. The respondent is a partnership firm with partners Sh. S N Dhawan and Sh. S R Dinodia and the premises have never been sublet, assigned or parted with possession by respondent or its partners at any point of time. S N Dhawan & Co. which is operating from the premises is a partnership firm with Sh S N Dhawan as one of the partners , hence no case of subletting , assignment or parting with possession is made out qua S N Dhawan & Co. Further the other two companies M/s. Power Gas Energy Pvt. Ltd. and M/s. Trident Business Solutions Pvt. Ltd. are operating only for the address purposes being the clients of S N Dhawan & Co. All the partners are the tenants and tenancy still continues in favour of the partners even after the dissolution of previous firm. Respondent and its partners still have the right to oust these companies as the legal possession still vests with respondent. It is further argued that the site plan filed by petitioner is not correct . Further no reliance can be placed on the testimony of PW 1 who is not a competent witness. Petitioner has not examined himself to prove his own case and testimony of PW 1 is without any credence. It is submitted that since petitioner has miserably failed to prove the factum of subletting, hence petition be dismissed accordingly.

9 Heard counsels for the parties and perused the complete record file. Before proceeding on to the arguments and the issues raised by both the parties and before discussing as to whether the tenanted premises have been sublet , assigned or C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 12 of 49 E. No.29/09 13 22.12.2014 parted with possession by respondent, the foremost thing which has to be considered in every eviction petition under the Act is the relationship of landlord and tenant between the parties. In the present case respondent has refuted the relationship of landlord and tenant and has denied that C M Chadha is the proprietor of M/s. A. R Chadha & Co. It is stated that tenanted premises was let out by AR Chadha to M/s. Dhawan Dinodia and Co. Sh. A R Chadha died 20 years ago and left behind many LRs and the present suit is bad for nonjoinder of parties as all the LRs have not been impleaded. Per contra, it is argued by the counsel for petitioner that after death of Sh. A. R Chadha, petitioner is the sole proprietor of firm M/s. A R Chadha & Co. Further, petitioner is one of the legal heir and coowner of the tenanted premises, hence every right to file the present suit.

9.1 In reply to para 3 (a) in written statement , respondent has mentioned the name of all the LRs of late Sh. A R Chadha. The name of Sh. C M Chadha as one of the LRs of Sh. A R Chadha also finds mention in the reply to the said para. Thus there is no dispute to the fact that petitioner is one of the legal heir of the erstwhile landlord Sh. A. R Chadha.

9.2 In Yashpal Vs. Chamanlal Sachdeva, 129 (2006) DLT 200, it was held that a coowner can maintain a petition and that the inter se arrangement between owners is no business of the tenant.

9.3 In M/s. India Umbrella Manufacturing Co. & Ors.

C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 13 of 49

E. No.29/09 14 22.12.2014 Vs. Bhagabandel Agarwalla (dead ) by Lrs. And Ors. AIR 2004 Supreme Court 1321, Hon'ble Supreme Court observed that "one of the coowner can file a suit for eviction of a tenant in the property generally owned by the Coowners and this principle was based on doctrine of agency. One coowner filing a suit for eviction against the tenant does so, on his own behalf in his own right and also as an agent of the other co owners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant".

9.4 In Col. Inderjeet Singh Vs. Vikram Singh & Anr., 194 (2012) DLT 209, it was observed that it is a settled principle of law that one of the coowners can file a suit for eviction of tenant in a property generally owned by the coowner.

9.5 In Sri Ram Pasricha Vs. Jagannath & Ors. , AIR 1976 SC 2335, it was observed that jurisprudentially, it is not correct to say that a coowner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a partowner or a fractional owner of the property. The position will change only when partition takes place. It is , therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and coowner of the premises is not the owner of the premises within the meaning of section 13 (1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13 (1) (f) as long as he is a coowner of the property being at the same time the acknowledged landlord of the defendants.

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9.6            In Krishan Lal Vs. Rajan Chand Khanna, AIR 1993

Delhi 1, it was observed that being a heir, the person will be one of the coowner of the property and as such will be entitled to file the eviction petition under section 14 (1)(e) of the Act.

9.7 In Fibre Bond (Sales) Pvt. Ltd Vs. Smt. Chand Rani , 1993 (1) RCR 492 it was held that widow, a colandlady of the premises can initiate eviction proceedings against the tenant in absence of other coowners.

9.8 Thus, it is settled law that one of the coowners can maintain a petition and can file a suit for eviction on his own behalf as well as an agent of other coowners. The consent of other coowners is assumed to be taken unless, it is shown that other coowners were not agreeable to eject the tenant or that the suit was filed in disagreement. Petitioner being one of the Legal heirs of erstwhile landlord Sh. A. R Chadha is one of the coowner of the property and as such is entitled to file the eviction petition. The argument of the Ld. counsel for respondent in this regard is misconceived and not tenable. Further the respondent has miserably failed to prove who else is the landlord, if not the petitioner, who admittedly, as per the respondent is one of the Legal heir of erstwhile landlord Sh. A.R Chadha.

10 In the present case, the site plan filed by petitioner is also disputed by respondent. It is argued by Ld. counsel for respondent that the site plan which has been filed by petitioner C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 15 of 49 E. No.29/09 16 22.12.2014 is not correct and no eviction can be allowed as the site plan is defective. On the contrary, it is argued by counsel for petitioner that there is no dispute regarding the identity and location of the premises. There is only dispute regarding the measurement of the tenanted premises which is immaterial and does not goes to the root of the case.

10.1 In para 8 of the petition, petitioner has described the area of property that is a single room approximately having 1000 sq ft. covered area on the second floor as shown in the site plan. In the reply to the said para no. 8, respondent has stated that since no copy of site plan was provided, the correctness of the same is not admitted. However, in the said para respondent has not pointed out with specific precision as to how he disputes the area or the description of the property as described in para 8 of the petition. The site plan produced by petitioner is Ex. PW 1/1 and the site plan produced by respondent is Ex. RW 1/2. Even during arguments no dispute regarding the description of the property except the area specified by the petitioner in the petition ie 1000 sq ft. and the area stated by the witness PW 1 in his affidavit as 1350 sq ft. has been raised by counsel for respondent. The description of the property and the boundary of the property and the fact that the tenanted premises is situated on the second floor with the particular address is also not disputed by respondent. Merely because there is discrepancy in measurement of the area of the tenanted premises, when the description of the property is otherwise correct, no fault can be imputed on petitioner to disentitle him of the relief, if any. It is C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 16 of 49 E. No.29/09 17 22.12.2014 not the case of either of the parties that petitioner is seeking partial eviction of tenanted premises or that respondent is in possession of only part of tenanted premises. Thus the plea of respondent in respect to the site plan does not raises any plausible defence. No determination on this aspect is required as there is no dispute regarding the location and description of the the tenanted premises.

11 The counsel for respondent has further challenged the competency of PW 1 that no reliance can be placed upon his testimony as he has failed to depose on the material aspects and further the petitioner has deliberately not examined himself to prove his case. Petitioner in this case has not examined himself but has examined one of his employees as PW 1 . It is argued by counsel for respondent that the petitioner has not examined himself as the witness in the present petition. Even PW 1 who has deposed is not the attorney of petitioner as there is no power of attorney executed by petitioner in favour of PW 1 on record. It is argued by counsel for petitioner that PW 1 has not deposed being the attorney of petitioner but on the basis of the facts in his personal knowledge as he is working with petitioner and has himself visited the tenanted premises and has received the communication and other documents relating to the fact that the premises has been sublet by respondent.

11.1 At this stage, Ld. counsel for respondent was critical about the deposition made by PW 1 during his cross examination to the effect that he cannot say that Sh. AR Chadha C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 17 of 49 E. No.29/09 18 22.12.2014 was the landlord / owner of the suit property and he further cannot say whether after death of AR Chadha all his legal heirs have succeeded to the tenanted premises. He further pointed out that PW 1 has stated that he cannot identify the signatures of Late Sh. A R Chadha as he has not seen him writing and signing. The Ld. counsel for respondent further pointed out to the admission made by PW 1 during his cross examination that the terms and conditions or any other fact of creation of tenancy was not done in his presence and that at the time of letting out of the premises, status of respondent was not known to him.

11.2 In my opinion these admissions or the deposition of PW 1 is immaterial as there is no dispute that the tenancy in favour of respondent was created by Sh. A R Chadha and the premises was let out to M/s. Dhawan Dinodia & Co. As per the respondent itself, petitioner is one of the legal heir of Sh. A R Chadha, the erstwhile landlord. Since the fact that respondent is the tenant in the premises is admitted, the deposition of PW 1 on this count is immaterial.

11.3 In the present case, PW 1 has not deposed as Power of attorney of petitioner but in his individual capacity on the basis of his personal knowledge. The fact whether PW 1 has personal knowledge about the matter in controversy, is a question which can be thrashed out by cross examining him. In the entire cross examination of PW 1, there is no such question or suggestion regarding his competency. PW 1 during his cross examination has categorically stated that he is aware of the facts C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 18 of 49 E. No.29/09 19 22.12.2014 of the suit property personally since last 5 years as he have been given the duty by petitioner to look after it. PW 1 further stated that he is the parokar and employee of petitioner and no attorney has been executed in his favour by petitioner. PW 1 further stated that he has personally verified that respondent is not in existence and has taken information from other sources regarding the facts of petition.

11.4 It is settled legal position that any person is a good witness if he deposes about the facts which are in his personal knowledge. What law requires is that deposition must be of facts within the knowledge of witness to which witness is a privity. The evidence given by a witness cannot be rejected on the ground that he is merely an employee, nor any adverse inference can be drawn against the petitioner on the ground that he had not appeared as his own witness in the case. The fact whether the witness has succeeded in proving the case or not is a secondary question, however the testimony of the witness cannot be outrightly rejected on the ground that he is merely an employee. Petitioner being the master of his case can prove his case without appearing in the witness box also. The purpose of leading evidence through a witness is to establish the case of the party and any person who is in a position to depose with regard to the facts about which that person deposes, can be considered to be a witness competent to depose. It is not the rule of law that the petitioner has to examine himself to prove his case and cannot examine any other person who is conversant with the facts of the case. Hence the argument of Ld counsel for C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 19 of 49 E. No.29/09 20 22.12.2014 respondent regarding the competency of PW 1 is misconceived and not tenable.

12 The next question for determination is whether the premises has been sublet or its possession has been parted with by respondent in favour of M/s. S N Dhawn & Co. , M/.s. Power Gas Energy Pvt. Ltd. and to M/s. Trident Business Solutions Pvt. Ltd. without the consent/ permission in writing or oral of petitioner.

13 Under section 14 (1) (b) of the Act, the landlord is entitled for the order of eviction, if, the tenant has sublet , assigned or otherwise parted with possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. Thus the provision has three facets, firstly subletting, secondly assignment and thirdly parted with possession. In case of subletting, there has to be transfer of interest in favour of the sub tenant for valuable consideration i.e rent and the right to possession against the tenant. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. While the expression parting with possession postulates parting with legal possession i.e giving possession to persons other than those to whom possession has been assigned by the lease.

14 The onus to prove subletting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises was let out for valuable C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 20 of 49 E. No.29/09 21 22.12.2014 consideration, it would then be for the tenant to rebut the evidence. Thus, in the case of subletting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged subtenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of subletting may then be raised and would amount to proof unless rebutted [(reliance placed on Krishnawati v. Hans Raj [(1974) 1 SCC 289] reiterating the view taken in Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [(1968) 2 SCR 548].

15 The case of petitioner is that tenanted premises was let out to M/s. Dhawan Dinodia & Co. However the respondent has sublet and parted with possession of the tenanted premises to S N Dhawan & Co. who has further sublet and parted with possession of the tenanted premises in favour of Power Gas Energy Pvt. Ltd and Trident Business Solutions Pvt. Ltd., without the consent , oral or in writing of petitioner / erstwhile landlord. On the contrary, the defence of respondent is that M/s. Dhawan Dinodia & Co. is a partnership firm with Mr. S N Dhawan and Mr. S R Dinodia as its partners and as such they are cotenants in the tenanted premises and the premises are under control and power of respondent and its partners and the premises is being used for the activities of respondent firm's partners Mr. S N Dhawan and Mr. S R Dinodia. M/s. S N Dhawan & Co. was a proprietorship firm which was subsequently converted into a C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 21 of 49 E. No.29/09 22 22.12.2014 partnership firm and only the head office address that of tenanted premises has been given because of the convenience of Mr. S N Dhawan.

16 Thus there is no denial of the fact that the premises was let out to M/s. Dhawan Dinodia & Co. by the erstwhile landlord. There is no dispute that M/s. S N Dhawan & Co. is also operating in the tenanted premises. Now what has to be considered is whether M/s. Dhawan Dinodia & Co. has sublet, assigned or parted with possession of the tenanted premises in favour of M/s. S N Dhawan & Co. In the replication the petitioner has further mentioned about the other two occupants M/s. Power Gas Energy and M/s. Trident Business Solutions Pvt. Ltd. It is no more res integra that replication is the part of pleadings and court can rely upon the facts as pleaded in the replication.

16.1 Replication being part of the pleading and anything which is specifically stated therein for the first time has to be controverted and if, it is not controverted and allowed to pass, it must be assumed that the plea raised in replication was accepted. If in a case certain all together new facts have been pleaded in the replication, respondent has every right to pray for and be granted by court an amendment of the written statement to rebut those pleadings or file additional written statement to meet the new case pleaded in the replication (reliance placed Salig Ram & Anr. Vs. Shiv Shankar & Ors., AIR 1971 P& H 437 AND M L Gupta Vs. Kripal Singh & Ors , 2002 (2) RCR 263 C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 22 of 49 E. No.29/09 23 22.12.2014 DHC).

16.2 In the present case, petitioner has specifically pleaded in the replication that S N Dhawan has not only assigned and parted with possession of the tenanted premises to his son Sh Vijay Dhawan but also to his grandson Sh. Bharat Dhawan. The grandson Bharat Dhawan along with other stranger Sh. R Rehman has formed the company M/s. Power Gas Energy Pvt. Ltd., which is having its registered office as tenanted premises. Bharat Dhawan has resigned on 05.10.2006 and another person Prem Kumar Sekhari has joined as Director with Promotor Director Sh. R Rehman. There is another company M/s. Trident Business Solutions Pvt. Ltd. which is also operating and is having its registered office as tenanted premises. The respondent has not filed any additional written statement or counter affidavit to controvert these facts. In fact, respondent has admitted that these firms are functioning in the tenanted premises only for the address purposes, legal possession still remaining with the respondent and its partners.

17 It is settled law that relationship between tenant and the sub tenant is not the test for determining subletting or parting with possession. Even when there is close relationship there can be sub letting or parting with possession. The test is, has the tenant divested himself of the right to possess the tenancy premises and whether he has totally effaced himself from the premises (reliance placed on the judgment of High Court of Delhi in Niranjan Lal Kanodia vs. Harbans Lal , 1995 C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 23 of 49 E. No.29/09 24 22.12.2014 (34) DRJ 14).

18 PW 1 in order to prove the factum of subtenancy has relied upon Ex. PW 1/19, PW 1/20 , PW 1/21, PW 1/22 & PW 1/23. The said documents are the challans and the documents provided by Registrar of Companies in respect of Power Gas Energy Pvt. Ltd , M/s. Trident Business Solutions Pvt. Ltd and M/s. S N Dhawan & Co. PW 1 during his cross examination stated that he had personally verified that respondent is not in existence . He had taken information from institute of Chartered Accountant situated near ITO to the effect that there is no existence of respondent firm as the same is not registered with it. He denied the suggestion that he had never visited the office of Institute of Chartered Accountant for getting the information regarding respondent. He denied the suggestion that M/s. Power Gas Energy Pvt. Ltd , M/s. Trident Business Solutions Pvt. Ltd have not been in possession of any portion of the tenanted premises. He further denied the suggestion that the said companies are actually owned by overseas investors who used the services of respondent, chartered accountants for the formation of said companies. He further denied the suggestion that only address of respondent has been used for the said companies for receipt of any notice or communication / correspondence. He further denied the suggestion that Mr. Vijay Dhawan and Bharat Dhawan are not the sub tenants or that they are assisting their father Mr. S N Dhawan being in the same profession.

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19               During evidence  , respondent has never denied or

disputed the fact that M/s. S N Dhawan & Co. , M/s. Power Gas Energy Pvt. Ltd , M/s. Trident Business Solutions Pvt. Ltd are not in existence in the tenanted premises. The defence of respondent is that S N Dhawan being one of the partner of M/s. Dhawan Dinodia & Co. has formed his company under the name of M/s. S N Dhawan & Co., who deals in the work of Chartered Accountant and M/s. Power Gas Energy Pvt. Ltd , M/s. Trident Business Solutions Pvt. Ltd are the clients, who have been only allowed to operate for the address purposes.

20 The legal position that emerges as to what constitutes subletting has been summarized by Hon'ble Supreme Court of India in Celina Coelho Pereira & Ors. Vs. Ulhas Mahabaleshwar Kholkar & Ors , decided on 30.10.2009 in Civil Appeal no. 7258 of 2009 as under:

(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting.

However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

(iii) The existence of deed of partnership between tenant and alleged subtenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 25 of 49 E. No.29/09 26 22.12.2014 means of cross examination, making out a case of subletting or parting with possession in tenancy premises by the tenant in favour of a third person.

(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of subletting may then be raised and would amount to proof unless rebutted.

21 Undisputedly, the tenanted premises was let out to M/s. Dhawan Dinodia & Co. by the erstwhile landlord Sh A. R Chadha. The said fact is further fortified from the rent receipts and other documents in form of letters placed on record by both the parties. The main contention of respondent is that firm M/s. Dhawan Dinodia & Co. was a partnership firm with Sh. S N Dhawan and Sh S. R Dinodia as its partners. In order to prove the said fact, respondent has relied upon the partnership deed Ex. RW 1/1 . I have perused the said partnership deed wherein two persons namely Sh. S N Dhawan and Sh. S R Dinodia who were already running two existing firms with the name M/s. S N Dhawan & Co. and M/s. S R Dinodia & Co. being the sole proprietors, had agreed into forming a partnership with the name of M/s. Dhawan Dinodia & Co. The very second paragraph C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 26 of 49 E. No.29/09 27 22.12.2014 of the said partnership deed stipulates that the existing firms M/s. S N Dhawan & Co. and S R Dinodia & Co. who are working as practicing Chartered Accountants at Delhi are desirous and are entering into partnership for the conduct of business which may be procured or entrusted by either parties from its existing clients or otherwise from the date ie 27.08.1959 , in the name of Dhawan Dinodia & Co.

22 The para 10 of the partnership deed Ex. RW 1/1 clearly stipulates that the firm Dhawan Dinodia & Co. shall have nothing to do either in the income or the goodwill of S N Dhawan & Co. or S R Dinodia & Co., New Delhi. Meaning thereby that the firm M/s. Dhawan Dinodia & Co. was entirely a separate entity which had no concern with the individual firm S N Dhawan & Co. and S R Dinodia & Co. The only common thing was that the two persons who were either partner or proprietor in the said two firms joined together to form the partnership firm under the name and style of Dhawan Dinodia & Co. In the entire partnership deed Ex. RW 1/1, it is no where mentioned that S N Dhawan & Co. or S R Dinodia & Co. is running the business in the tenanted premises and has now merged / agreed to form the partnership firm with the name of Dhawan Dinodia & Co. It is neither the case of respondent that tenanted premises was let out to individual partners or their individual firms which were already in existence. It is an admitted fact that the tenanted premises was let out to M/s. Dhawan Dinodia & Co. Even as per the documents ie certain letters dt. 12.03.1965, 06.02.1965, bills for lift charges dt.

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E. No.29/09 28 22.12.2014 16.02.1966, rent receipts dt. 04.07.1966, 31.08.1966, 05.09.1966 and many such documents / receipts it is evident that the tenancy was created in favour of M/s. Dhawan Dinodia & Co.

23 As per the respondent itself out of the two partners of M/s. Dhawan Dinodia & Co., Sh. S R Dinodia expired on 11.09.2009. As per the documents Ex. PW 3/3 which is an information received by the petitioner under R T I Act it is stated that firm M/s. Dhawan Dinodia & Co. has been closed w.e.f 01.02.1991 following a request from both the partners of the firm . In order to prove the said factum, petitioner has also examined PW 3 who has categorically deposed that the said firm was closed w.e.f 01.02.1991. RW 1 during his cross examination admitted that respondent firm is a firm of Chartered Accountants. When he was shown the document Ex. PW 3/4 ie the letter written by Dhawan Dinodia & Co. to the Institute of Chartered Accountants of India, he duly identified his signatures as well as signatures of Sh. S R Dinodia at point A and B of Ex. PW 3/4. He stated that he does not remember whether he had filed any document on record to show any business, transaction or activity of respondent company from tenanted premises from February 1991 to September 2009. He further stated that he does not remember whether he had placed on record any document to show that respondent firm was in possession of tenanted premises from February 1991 to September 2009. He further stated that he does not know whether there was any employee working in M/s. Dhawan Dinodia & Co. from February 1991 to September 2009. He admitted that he had not placed on record C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 28 of 49 E. No.29/09 29 22.12.2014 any document to show such aspect of employment. He denied the suggestion that respondent firm ceased w.e.f 01.02.1991.

24 Thus from the cross examination of RW 1, it is clear that both the partners of Dhawan Dinodia & Co. have written a letter Ex. PW 3/4 to the Institute of Chartered Accountant of India to inform that the said firm is no longer in operation and its name be deleted from the Institute record. The fact that consequent to the said letter, name of respondent firm was deleted from the Institute of Chartered Accountant has been proved by PW 3 and the document relied upon is Ex. PW 3/3. PW 3 further proved the information of closure duly recorded in the record of ICAI Ex. PW 3/5. The said witness was not cross examined by the counsel for respondent on any of these facts.

25 Thus it is evident that there was no firm by the name of M/s. Dhawan Dinodia & Co. w.e.f 01.02.1991 as the same was closed by the partners of respondent. As per the testimony of RW 1, he has not filed any document on record to show any business, transaction or activity of respondent from tenanted premises from February 1991 to September 2009 or any document to show that respondent was in possession of tenanted premises during the said period. One of the partner of respondent Sh. S R Dinodia expired in September 2009. Petitioner has proved that respondent Dhawan Dinodia & Co. was closed w.e.f 01.02.1991 and no activity by respondent was carried out in the tenanted premises w.e.f 1991. As per the partnership deed Ex. RW 1/1, Dhawan Dinodia & Co. was formed C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 29 of 49 E. No.29/09 30 22.12.2014 for the purpose of rendering the services of Chartered Accountancy and it was closed w.e.f 01.02.1991.

26 It is not the case of respondent that the partnership firm continued for rendering other services. No document has been placed on record by respondent to show that said partnership firm continued or is in existence. The respondent during trial, has placed on record one partnership deed dt. 14.01.2010. The said partnership deed was not in existence at the time of filing of suit and as per Ex. PW 3/3, M/s. Dhawan Dinodia & Co which was exclusively formed for rendering the services of Chartered Accountant was closed w.e.f 01.02.1991.

27 The partnership deed dt. 14.01.2010 Ex. RW 1/6 A, was executed almost after four months of death of Sh. S R Dinodia, with his wife as 50 % partner in the firm. The basis of giving 50 % share of partnership to the wife of Sh. S R Dinodia is not corresponding to the clause 15 of the previous partnership deed dt. 27.08.1959 though there is specific reference of said partnership deed dt. 27.08.1959 in Ex. RW 1/6A. In the said partnership deed in para 4 itself it is stated that the same shall be deemed to have come into existence on 11.09.2009 and shall supersede all the terms and conditions of partnership deed dt. 27.08.1959. Meaning thereby that after the partnership dt. 27.08.1959, the second partnership deed was entered on 14.01.2010. The partnership deed Ex. RW 1/6A is an unregistered document and seems to have been entered into subsequently in order to create a false defence that Dhawan Dinodia & Co. is still C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 30 of 49 E. No.29/09 31 22.12.2014 in existence, when the same has already been closed w.e.f. 01.02.1991. No document in the form of bank statement , income tax returns , books of accounts or other such document has been placed on record by respondent to show existence of respondent except Ex. RW 1/6A, which cannot be relied upon for any purpose.

28 It is settled legal proposition that partnership firm is not a legal entity. The firm name is only a compendious way of describing the partners of firm. Occupation by a firm is only occupation by its partners. Mere change in the constitution of firm of which one of the partner continued to be a partner, an inference as to subletting could not be drawn in the absence of further evidence having been adduced to establish subletting (reliance placed on Murlidhar Vs. Chunni Lal , 1970 Ren. CJ

922).

29 Now the question for consideration is whether S N Dhawan & Co. which as per the respondent is the partnership firm of one of the partners of respondent Sh S N Dhawan is genuine or camouflaged to give outward appearance of partnership while in fact it is a subtenancy or parting with possession. In the context of the premises having been sublet or possession parted with by the tenanted by adopting the device of entering into partnership it would be suffice to notice following decisions.



29.1           In Devki Nandan Vs. Om Prkash & Ors , 1972 RCR 


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321 (P & H) it was held that it is undisputed that if a tenant takes with him one or two more partners and carries on a joint business in the premises, which he has taken on rent that would not afford a ground to the landlord for his eviction. It is only if, it is established that he has nothing to do with the partnership business and has completely given over the possession of the premises to other partners that subletting can be inferred.

29.2 Inducting a partner in the business or profession by the tenant is permitted so long as such partnership is genuine. If the purpose of such partnership may ostensibly be to carry on the business or profession in partnership, but the real purpose be subletting of the premises to such other person who is inducted ostensibly as a partner , then the same shall be deemed to be an act of subletting attracting the applicability of clause b of sub section 14 of the Act (reliance placed on G K Bhatnagar (dead) by LRs. Vs. Abdul Alim (2002) 9 SCC 516 ) 29.3 A threeJudge Bench of Hon'ble Supreme Court in Parvinder Singh v. Renu Gautam and Others (2004) 4 SCC 794 commented upon the device adopted by tenants many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The following observations are worth noticing:

"The rent control legislations which extend mainly a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 32 of 49 E. No.29/09 33 22.12.2014 protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rackrenting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and subtenants of bringing into existence a deed of partnership which gives the relationship of tenant and subtenant an outward appearance of partnership while in effect what has come into existence is a subtenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, maybe along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant. A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sublets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sublessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of crossexamination, making out a case of sub letting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 33 of 49 E. No.29/09 34 22.12.2014 evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction........."

30 There is no dispute about the legal proposition that a mere entering into a partnership may not provide a ground for eviction, however there are cases wherein the tenant sublets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence a deed of partnership between him and his sublessees to act as a cloak on the reality of transaction . The existence of deed of partnership between the tenant and the alleged sub tenant would not preclude the landlord from bringing on record material and circumstances by adducing evidence or by means of cross examination, making out a case of subletting or parting with possession or interest in tenancy premises by the tenant in favour of a third person.

31 There is no dispute that S.N Dhawan & Co. is operating from the tenanted premises. RW 1 during his cross examination admitted that he had not filed any documents in form of Income tax returns of firm, bank statement of firm etc. He admitted that initially M/s. S N Dhawan & Co. was his proprietorship concern and later on it was converted into partnership somewhere near about 197273 and his son Sh. Vijay C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 34 of 49 E. No.29/09 35 22.12.2014 Dhawan was inducted as partner. When he was asked about the share of his son, he replied that he does not remember about the share of his son. He further stated that he cannot show or produce on record the said partnership firm ie its constitution documents/ partnership deed etc. He stated that S R Dinodia was never a partner in the firm M/s. S N Dhawan & Co. When he was shown Ex. RW 1/11, where S R Dinodia is also shown as partner in S N Dhawan & Co. , having retired vide notice dt. 28.07.1978, he stated that he does not remember as to whether he has placed on record partnership deed of M/s. S N Dhawn & Co. along with his written statement in October 2007. He categorically stated that in 2007, he and his son were the only partners in the said firm. When he was asked about his share in the partnership firm M/s. S N Dhawan & Co., he stated that he does not remember about his share as well as share of his son Vijay Dhawan.

32. Thus from the cross examination of RW 1, it is evident that the partnership firm M/s. S N Dhawan & Co., was not at all acted upon and the partnership firm if any, only remained as a paper document. RW 1 has specifically admitted that no books of accounts or income tax returns or the details of bank accounts have been placed on record by respondent on record in respect of Dhawan Dinodia & Co. and M/s. S N Dhawan & Co. Though RW 1 admitted that S N Dhawan & Co. was converted into partnership somewhere near about in 197273, however no such partnership deed has been placed on record by the respondent in this regard.

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33. Interestingly, there is only one partnership deed dt. 01.04.2009 filed by respondent which is Ex. RW 1/10 with around 12 partners of Sh. S N Dhawan & Co. As per the said partnership deed, Partnership commenced w.e.f 01.04.2009 superseding the deed of partnership dt. 01.04.2008. However, no partnership deed dated 01.04.2008 has been placed on record by the respondent. As per RW1, the Proprietorship concern S.N Dhawan & co. was converted into partnership firm somewhere in 19721973. However, the initial partnership deed entered in 19721973 also has not been placed on record by the respondent or RW 1.

34. RW 1 has not brought any evidence on record to show that the partnership firm S N Dhawan & Co. have opened a bank account in the name of the firm. Further no evidence has been brought by respondent or RW 1 to show that books of accounts were maintained by partnership firm S N Dhawan & Co.

35. There is no dispute that so long as the tenant continues to be the partner in the partnership, there is no subletting because being a partner in the business, such tenant would be deemed to be in possession of the tenanted premises. In the present case, though the defence of respondent is that Sh S N Dhawan , one of the partner of Dhawan Dinodia & Co. is running his firm S N Dhawan & Co. in the tenanted premises, however no such document in the form of partnership deed, C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 36 of 49 E. No.29/09 37 22.12.2014 accounts book , records of income tax or sales tax have been placed on record by respondent to prove the said fact. Even RW 1 has failed to disclose his ratio of share of profit in the partnership firm S N Dhawan & Co. or the share of other partner i.e his son in the said partnership firm. No partnership deed when the firm S N Dhawan & Co. came into existence which as per RW1 was in 197273 has been placed on record. The only partnership deed of S N Dhawan & Co. which is placed on record is dt. 01.04.2009 Ex RW1/10. Even the said partnership deed is unregistered.

36. It is settled legal proposition of law that if the purpose of constituting the partnership by tenant is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting in a given case, the court may be required to tear the veil of partnership to find out the real nature of transaction entered into by the tenant and in such circumstances the evidence let in by the landlord cannot be ignored. As per Ex. RW 1/10 ie the partnership deed dt. 01.04.2009, there are around 12 partners with RW 1 and his son having only 22.25 % profit sharing ratio and remuneration of Rs. 50,000/ per month. The said partnership is not a registered partnership deed and further no bank account maintained by the said firm or the income tax returns filed by the said firm has been placed on record by the respondent.

37. In Bharat Sales Ltd v. LIC of India (1998) 3 SCC 1, it has been held that:

C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 37 of 49

E. No.29/09 38 22.12.2014 "subtenancy 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 or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. 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 sublease. 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 the 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."

38 RW 1 has not only failed to depose regarding his share and the share of his son in the said partnership firm , but also has failed to place on record any partnership deed prior to Ex. RW 1/10. Further there are around twelve partners with RW 1 and his son having only 22.25 % profit sharing ratio. The said C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 38 of 49 E. No.29/09 39 22.12.2014 partnership deed is neither registered nor any document in the form of bank account , income tax return , sales tax return or any such document has been placed to prove the existence of the said partnership, the purpose of constituting the same seems to be ostensible to conceal the real transaction of subletting. Thus from the cross examination of RW 1 and the law discussed above, it is evident that the partnership deed filed by respondent of S N Dhawan & Co. is a sham and camouflaged document .

39. The petitioner in the present case has specifically pleaded that the respondent has sub let the premises not only to S N Dhawan & Co but also to M/s. Power Gas Energy Pvt. Ltd and Trident Business Solutions Pvt. Ltd. Petitioner has examined PW 2 Sh. R K Saini , Junior Technical Assistant, office of Registrar of Companies in this regard. The said witness has proved the attested copy of certificate of incorporation, power Gas Energy Pvt. Ltd. form 18, 32, 20 B and annual returns upto 30.09.2009, form 5 along with notice and resolution of M/s. Power Gas Energy Pvt. Ltd. as Ex. PW 2/1 to PW 2/27. He further stated that all the documents are available on online vide efiling system w.e.f 18.03.2006 and these are made available of website of Ministry of Corporate Affairs. He further stated that as per record the registered office of Power Gas Energy Pvt. Ltd is situated at C37 , Connaught place , New Delhi since its incorporation i.e 01.07.2006 and as such there is no change in the registered office of the said company till the date of his deposition on 15.05.2010.

40. PW2 further proved the original form 32, 18, 1, C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 39 of 49 E. No.29/09 40 22.12.2014 original annual return along with balance sheet along with original certificate of incorporation of Trident Business Solutions Pvt. Ltd. Ex. PW 2/8 to Ex. PW 2/12 . He further stated that as per the record Trident Business Solutions Pvt. Ltd. was incorporated on 28.08.2001 and is having its registered office at C 37, Connaught place, New Delhi . He also proved the certified copy of form 20 B along with annual return made upto 30.09.2006 by said company as Ex. PW 2/13 (colly).

41. Thus from the testimony of PW 3 it is evident that two companies by the name of M/s. Power Gas Energy Pvt. Ltd and Trident Business Solutions Pvt. Ltd are also having their registered office in the tenanted premises. Even RW 1 during his cross examination admitted that company M/s. Power Gas Agency was incorporated and registered with Registrar of Companies with its registered office at C 37, Connaught place, New Delhi . He admitted that Sh. Bharat Dhawan and Sh. R Rehman were the incorporating directors having 5000 equity shares in the said incorporating company. He further admitted that Sh. Vijay Dhawan and Anthony Trinidad were appointed as Directors in Trident Business Solutions Pvt. Ltd w.e.f 30.08.2001. He further admitted that Sh. Bharat Dhawan also became director of the said company w.e.f 03.12.2001 and the said company is having its registered office as that of tenanted premises.

42. Though RW 1 admitted existence of these two companies having their registered office as that of tenanted C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 40 of 49 E. No.29/09 41 22.12.2014 premises, but volunteered that since they are a firm of Chartered Accountants their foreign clients give their address for the purpose of correspondence as they have to comply with many formalities for opening the office. He during his cross examination admitted that meeting of companies takes place at its registered office.

43. In Roop Chand Vs. Gopi Chand Thelia , AIR 1989 SC 1416, it was observed that once a company has a registered office, it is bound to comply with several provisions of the Companies Act viz(a) register of members is to be kept there (section 163); (b) the right of inspection has to be take place there (section 163); (c) the register of directors, etc is also to be kept there (section 303); (d) the account book are to be maintained there unless the directors decide otherwise (section

20); (e) the register of mortgages and charges and copies of registered documents are also to be kept there (section 143); and the right of inspection of them is to be exercised there (section

144) (I) service of documents should be effected there. These requirements of the companies Act had to be complied with by the club by virtue of its registered office being situated in the leased premises. The tenant could not prevent the club from performing its statutory duties so long as the club had its registered office in the tenanted premises.

44. There is no dispute to the fact that these two companies are having its registered office as that of tenanted premises. Thus these companies are performing their statutory duties from C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 41 of 49 E. No.29/09 42 22.12.2014 the tenanted premises.

45 The thrust as laid upon by the Hon'ble Supreme Court of India is that, so long as the legal possession remained with the tenant, the mere facutm of tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub letting. So long as the premises remains in occupation of tenant or its control, a mere entering into partnership does not provide a ground for eviction by running into conflict with prohibition against sub letting or parting with possession. The existence of deed of partnership between the tenant and to alleged sub tenant does not precludes the landlord from bringing on record material and circumstances by adducing or by means of cross examination, making out a case of subletting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub tenant.

46             As discussed  above, the petitioner  has prima facie 



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established that respondent is not functioning from the tenanted premises and even the partnership firm S.N Dhawan & Co. is a sham and camouflaged document to cover up the factum of subletting. Further the two companies under the name of M/s. Power Gas Energy Pvt. Ltd and M/s. Trident Business Solutions Pvt. Ltd. are having its registered office and running from the tenanted premises without the consent and permission of petitioner.

47 Now what has to be considered is whether legal possession has been retained by the common partner S. N Dhawan in respect of the tenanted premises. RW 1 during his cross examination admitted that he is not going regularly to the office. He further stated that he has not placed on record any document that he is working as chartered Accountant in terms of Ex. RW 1/6A. He is not generally keeping well from the last 1015 years. He admitted that he is not going regularly to the tenanted premises. In his absence his son and his grandson have been looking after work of S N Dhawan & Co. He does not remember how many partners were there in S N Dhawan & co. in the year 20082009. He has not filed any document to show the constitution of firm S N Dhawan & Co., its partners and share holding of the partners from 1972 till 2010 except Ex. RW 1/10. He admitted that document Ex. RW 1/10 shows the correct shareholding of the partners. When he was asked as to whether Mr. Rehman has anything to do with respondent firm, he replied 'No' . He stated that Mr. Rehman might be involved in the affairs of both the firms. He stated that he does not remember whether C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 43 of 49 E. No.29/09 44 22.12.2014 he has placed on record any document to show that S N Dhawan & Co. is carrying business from suit premises. He denied the suggestion that respondent has sublet, assigned or parted with part of suit premises to S N Dhawan & Co. and other companies ie Power Gas Energy Pvt. Ltd. and Trident Business solutions Pvt. Ltd.

47.1 In Narayan Ratan v. India Mill Stores 1977 RCR, it was held by Hon'ble M.P. High Court that:

"the question whether there is unlawful subletting is, in most cases, a matter of inference to be drawn from the facts of each cases. The initial onus of proving unlawful subletting, in the first instance lies upon the plaintiff. Subtenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed on the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but establish a positive aspect about the capacity in which the alleged subtenant is occupying the premises and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts, in which a third person has been inducted into the whole or any part of the premises are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of subletting".

48 In the present case, RW 1 himself is not able to depose regarding his share and share of his son in the partnership firm S N Dhawan & Co. No deed of partnership of 197273 , when S N Dhawan & Co. was converted into partnership has been placed on record by RW 1. RW 1 during C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 44 of 49 E. No.29/09 45 22.12.2014 his cross examination stated that he does not remember whether he has placed on record any partnership deed of S N Dhawan & Co. along with written statement filed in October, 2007. There is only one partnership deed on record Ex. RW 1/10 dt. 01.04.2009. RW 1 further stated that he does not remember how many partners were there in S N Dhawan & Co. in the year 2008 and 2009. He stated that since he is not being generally keeping well for the last 1015 years, he has not been going regularly to the tenanted premises. There is no denial of the fact, which otherwise also, has been conclusively proved by petitioner and also admitted by RW 1 that respondent company/ firm has been closed wayback in the year 1991. No document has been placed on record by respondent or RW 1 in context of S N Dhawan & Co. except Ex. RW 1/10. No other witness or any of the partners have been examined by the respondent to show otherwise/ prove the said partnership deed which as discussed above is only a camouflage and not a genuine partnership. Since the partnership deed itself is sham transaction, in the absence of any evidence to the contrary, an inference can be drawn that possession was parted. Transfer of possession of tenanted premises to M/s. Power Gas Energy Pvt. Ltd and M/s. Trident Business Solutions Pvt. Ltd., who are having their registered office as that of tenanted premises is also established from the evidence on record. No evidence has been brought on record by the tenant respondent to show the contribution of partners to the capital of partnership business. It has not been shown when and what amount was taken by the partners towards profits. Detail of the bank account maintained C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 45 of 49 E. No.29/09 46 22.12.2014 by the partnership has also not been furnished. No witness from bank has been examined to prove that partnership had operated any account in any bank. It has further not been shown as to how accounts have been maintained. In the present case, for proving partnership, only the partnership deed Ex. RW 1/10 has been produced. Respondent has not produced any other evidence either in the shape of account books or records of income tax to show that there is a genuine partnership between him and other partners. The other circumstances brought on the record have also established that it is a clear case of subletting and parting with possession and partnership set up by one of the partners of respondent is not genuine but under sham transaction.

49 Of course, one of the important ingredients to prove subletting is that apart from proving parting with possession, it must also been shown that such parting with possession is for consideration. Subletting is generally a secret arrangement between the tenant and subtenant and that is why onus is always on the tenant to show the capacity in which alleged subtenant is in occupation of the premises. If the landlord proves parting with exclusive possession by the tenant in favour of any other person, it would be for the tenant to prove that the possession of another person is permissive and without consideration (reliance placed on Darshna Devi Vs. Desh Raj Singh Thakur, 1997 (2) RCR 170 P & H) 50 In the present case, RW 1 has not placed on record C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 46 of 49 E. No.29/09 47 22.12.2014 any document to show the contribution of partners to the capital of partnership business. RW 1 has failed to bring cogent evidence on record that possession of M/s. Power Gas Energy Pvt. Ltd and M/s. Trident Business Solutions Pvt. Ltd is permissive or without any consideration. In the given situation, it is difficult to believe that the tenant had parted with possession without any consideration.

51 The Apex Court in Smt. Rajbir Kaur & Anr. Vs. M/s. S Chokesiri & Co. , AIR 1988 SC 1845 held that in a suit for eviction on the ground of subletting, if exclusive possession is established and the version of the tenant as to the particulars and incidents of the transactions is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the tenant to rebut the same. Such transactions of subletting in the guise of licences are in their very nature clandestine arrangement between the tenant and subtenant and there cannot be direct evidence. The matter of monetary consideration or rent in case of subletting may also be inferred or presumed in a given situation. If the tenant did not let out the said premises, he could have easily adduced evidence by examining those persons who are occupying the same to show that they are not paying any rent whatsoever to the tenant. The defendant did not opt for that easy course.



51.1            In  D. Ennis Vs. M/s. Calcutta Vyapare Pratishthan 


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Ltd. AIR 1991 Calcutta 152, it has been held that it cannot be said that since payment of rent was neither pleaded nor proved the premises cannot be said to have been sublet because in such a case where the third party is found to be in exclusive possession of tenanted premises, the burden lies on the tenant to explain the circumstances, this being within in his personal knowledge and in the absence of the direct and cogent evidence from either party, the court will be entitled to consider the available circumstantial evidence and the probability to be drawn from the same and conclude that the premises were sublet or that the parting with possession was for payment of consideration.

52 Thus in view of the nature of evidence on record and pleadings and also in view of the legal position in this behalf , as discussed above, it would not be out of context to presume that the one of the partner of respondent inducted the subtenants in the garb of partnership for monetary consideration.

53 From the above discussion, material on record, testimony of the witnesses and the relevant provisions of law , this court is of the opinion that the petitioner has proved that the tenanted premises have been sublet by respondent without obtaining his consent in writing. The petitioner has proved the ground of eviction under clause (b) of proviso to subsection (1) of section 14 of Act 59 of 1958 against respondent. In these circumstances the petition for eviction is allowed with costs. Petitioner is entitled to recover the C M Chadha Vs. M/s. Dhawan Dinodia & Co. Page 48 of 49 E. No.29/09 49 22.12.2014 possession of the tenanted premises i.e premises bearing no. C37, 2nd floor, Atma Ram house, Opp. Odean Cinema, Connaught Place, New Delhi as shown red in the site plan attached with the petition.

Present petition is disposed of accordingly. File be consigned to record room.

ANNOUNCED IN OPEN                       ( KIRAN GUPTA )
COURT ON  22.12.2014                 SCJCUMRENT CONTROLLER
                                 PATIALA HOUSE COURTS:NEW DELHI




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Sh. C M Chadha vs M/S. Dhawan Dinodia & Co on 22 December, 2014