Delhi District Court
Wenger & Co vs M/S. Nath & Co on 31 January, 2013
In the Court of Sh. Manoj Kumar : Rent Controller of New Delhi District at
Patiala House Courts, New Delhi
E. No. 37/08
Unique ID No. 02403C0953822008
In the matter of:
Wenger & Co.
A16, Connaught Place,
New Delhi110001. ................ Applicant
VERSUS
M/s. Nath & Co.
A15, Connaught Place,
New Delhi110001. .................. Respondent
Date of Institution : 11.04.2008
Date of Arguments: 28.01.2013
Date of Judgment : 31.01.2013
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14(1)(b) OF THE DELHI RENT CONTROL ACT, 1958.
JUDGMENT
This is an application for recovery of possession of premises, namely, A15, Connaught Place, New Delhi (shop at ground floor) made by E. No. 37/08 Page no.1 of 19 applicant Wenger & Co. against respondent M/s. Nath & Co. under clause
(b) of proviso to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958).
2. It is stated in the application that the premises have been let out to the respondent at monthly rent of Rs.374.75 ps. exclusive of water and electricity charges but including property and other statutory taxes / cess etc.; that the contractual tenancy of respondent is a long since over and it was got terminated in a life time of its erstwhile principal / proprietor late Satish Sud; that after the demise of Satish Sud, person(s), withholding and laying siege of the tenanted premises, have falsely claimed the deceased Satish Sud is replaced and substituted only by his spouse as the proprietor of his business in the premises; that in addition to spouse, deceased had a son as well as his immediate family; that deceased Satish Sud, however, never introduced or disclosed the name of the person, either his wife or son, to succeed him in business in the tenanted premises; that the son of Mr. Satish Sud though opted out and claimed the business solely as his mother's; that son of deceased Satish Sud even died sometime after and the applicant came to know about his death only lately; that the applicant has just lately learnt and discovered that the alleged claim of business of the respondent establishment resting with the spouse of deceased Satish Sud is a false and fictitious claim only to foul and dupe the applicant from recovering back the premises; that it is a deliberate mischief and misrepresentation to usurp the E. No. 37/08 Page no.2 of 19 premises and to cheat the tenant; that the claim of the errant occupant(s) is only to protect and shield their fraudulent heist and siege of the premises; that to show, business of the respondent establishment, since the death of Satish Sud is control and being run by people not his family; that the persons in the tenanted premises are wresting their occupation as the alleged workmen and staff and the persons in the heist of the premises are all in all in the shop and are solely and exclusively managing and administering all the functions and activities of the business in the shop by themselves; that the alleged claim that the respondent is a proprietorship of the spouse of deceased Satish Sud is a misrepresentation to mislead the applicant and the alleged status is certainly not the truth; that the business being run and carried from the premises is not a proprietorship and it is altogether different and distinct; that apparently as it manifests, business name of the respondent is retained only to camouflage and as a cloak for the heist and seize of premises by its errant occupants; that the alleged claim to the business name of the respondent, in the tenanted premises, is sham and bogus and the applicant has protested it always; that the applicant has always believed and apprehended that there is a clandestine alienation or a sale of the premises for premium (pagri) or a subtenancy by the heirs of deceased Satish Sud. It is further stated in the application that an eviction order be passed against the respondent in respect of the premises.
3. The application is contested by the respondent by way of a E. No. 37/08 Page no.3 of 19 written statement wherein preliminary objections are taken to the effect that the applicant has not come to the court with clean hands and concealed material facts from the court; that the applicant has deliberately concealed its composition and its legal identity; that Wenger & Co. is not a legal identity and cannot sue in its own name and the application is liable to be dismissed on this ground alone; that the applicant has deliberately and mala fidely concealed the details of the time when the premises were let out to the respondent; that the applicant has only vaguely stated that the tenancy originated during the tenure of predecessor in interest of the applicant; that the applicant has further stated no details as to how it succeeded to the interest in the premises as has been alleged in the application for eviction; that in the present case Mr. Jagan Nath Sud and/or his proprietorship concern M/s. Nath & Co. had a single identity and their rights in the premises are one and the same; that after the demise of Mr. Jagan Nath Sud his tenancy rights devolved upon all his legal heirs; that the application is bad for nonjoinder of necessary parties as Mrs. I. B. Sud @ I. B. Gulati, daughter of late Jagan Nath Sud, is a proper and necessary party for the eventual determination of the dispute being the legal heir of the original tenant; that no alleged termination notice was received by any of the tenant at any point of time and therefore, the averments made in the application that the tenancy was terminated is wrong; that Mr. Atul Tandon is neither authorized or competent to make the present application and the same is E. No. 37/08 Page no.4 of 19 liable to be dismissed; that M/s. Nath & Co. was a proprietorship concern of late Jagan Nath Sud who had taken the premises on rent in the year 1946 in the name of his proprietorship concern; that the premises were let out and are being used for commercial purposes; that Mr. Jagan Nath Sud expired on 18.02.1907 and he was survived by his legal heirs namely, Mrs. Prakash Sud, Mr. Satish Sud and Ms. I. B. Sud, his wife, son and daughter respectively; that upon the death of Mr. Jagan Nath Sud, the tenancy of the premises had vested in his three legal heirs and no partition of any nature whatsoever, till date, has taken place amongst the legal heirs of late Jagan Nath Sud and all the legal heirs of late Jagan Nath Sud continue to jointly own all the movable and immovable assets left behind by late Jagan Nath Sud including the tenancy rights in respect of the premises; that Mr. Satish Sud, the son of late Jagan Nath Sud, died intestate on 29.04.1991 leaving behind his legal heirs namely, Mrs. Prakash Sud, Mrs. Saroj Sud, Mr. Ashish Sud and Ms. Jugnu Sud, his mother, wife, son and daughter respectively; that as such after the death of Mr. Satish Sud Smt. Prakash Sud, Ms. I. B. Sud and the remaining LRs of late Satish Sud inherited the tenancy rights in respect of the share of Mr. Satish Sud in the tenanted premises; that Ms. Jugunu Sud and Mr. Ashish Sud unfortunately died unmarried on 25.06.1991 and 01.03.1998 respectively; that Mrs. Prakash Sud also died on 10.02.2003 and thus, Smt. Saroj Sud and Mrs. I. B. Sud @ I. B. Gulati became the joint tenants in respect of the premises in question E. No. 37/08 Page no.5 of 19 and both the ladies are enjoying possession of the tenanted premises. In the reply on merits the relationship of landlord and tenant between the parties is not disputed and the defence taken by way of preliminary objections and preliminary submissions are reiterated. It is also stated in the written statement that Smt. Saroj Sud and Smt. I. B. Sud @ I. B. Gulati are the joint tenants in respect of the premises and it is denied that the premises have been sublet to any person and their possession has been parted with. It is further stated in the written statement of the respondent that the application for eviction be dismissed.
4. To the written statement of the respondent a rejoinder has been filed wherein the averments made in the application for eviction are reiterated and the defence taken by the respondent are traversed.
5. In support of its case the applicant got examined PW1 Mr. Atul Tandon, PW2 Mr. Lal Singh, Statistical Assistant in the office of Trade and Taxes Department, NCT of Delhi, PW3 Mr. Ram Pal Singh, Inspector in the office of Commissioner of Income Tax, New Delhi, PW4 Mr. Akhilesh Khare, Officer GradeI, Oriental Bank of Commerce, New Delhi, PW5 Ms. Anita, Inspector, Commissioner of Income Tax Office, New Delhi, PW6 Mr. Vijay Kumar from the office of NDTA, Mr. Kanhiya Lal, Senior Officer, ICICI Bank, Connaught Place, New Delhi and Mr. Rahul Jain, Assistant Manager. During the examination of the witnesses produced on behalf of the applicant documents Ex. PW1/1 to Ex. PW1/25, Ex. PW2/1 E. No. 37/08 Page no.6 of 19 to Ex. PW2/4, Ex. PW3/1 to Ex. PW3/5, Ex. PW4/1, Ex. PW5/1, Ex. PW5/2, Ex. PW6/1 to Ex. PW6/4, Ex. PW7/1, Ex. PW8/1 to Ex. PW8/4 were also tendered in evidence. The witnesses were cross examined on behalf of the respondent and during their cross examination documents Ex. PW2/R1 and Ex. PW6/D1 were also brought on the record.
6. In its defence the respondent got examined RW1 Smt. Saroj Sud who during her examination in chief tendered her affidavit Ex. R1 alongwith documents Ex. RW1/1 to Ex. RW1/7. The witness was cross examined by counsel for the applicant and during her cross examination documents Ex. RW1/PX1 was brought on the record.
7. I have heard counsel for the parties and have gone through the material on record carefully.
8. Having drawn my attention on the testimonies of RW1 Smt. Saroj Sud, PW1 Mr. Atul Tandon, documents Ex. PW1/1 to Ex. PW1/25, Ex. PW2/1 to Ex. PW2/4, Ex. PW3/1 to Ex. PW3/5, Ex. PW4/1, Ex. PW5/1, Ex. PW5/2, Ex. PW6/1 to Ex. PW6/4, Ex. PW7/1, Ex. PW8/1 to Ex. PW8/4 and Ex. RW1/PX1 and the law laid down in Sushil Kumar v. Bhagwanti Devi and another, 1989 (16) DRJ 289 and Pushpa Rani and others v. Bhagwanti Devi and another, AIR 1994 SC 774 it is submitted by counsel for the applicant that the premises were let out to the respondent under the proprietorship of Mr. Satish Sud by the predecessor in interest of the applicant and after the death of Mr. Satish Sud the proprietorship concern E. No. 37/08 Page no.7 of 19 has seized to exist and one Mr. M. R. Gulati has been doing his business from the premises. It is further submitted by counsel for the applicant that Mrs. Saroj Sud has no control over the premises and has nothing to do with the affairs of the respondent and all the affairs are being run by Mr. M. R. Gulati in whose favour the premises have been sublet or their possession has been parted with. It is further submitted by counsel for the applicant that Mrs. I. B. Gulati has no concern with the premises and she is not a cotenant in the premises. It is further submitted by counsel for the applicant that since the tenant has sublet the premises in favour of Mr. M. R. Gulati, therefore, an eviction order be passed against the respondent in view of the provisions of clause (b) of proviso to subsection (1) of section 14 of Act 59 of 1958.
9. Percontra, having drawn my attention on the testimonies of PW1 Mr. Atul Tandon, PW2 Mr. Lal Singh, PW3 Mr. Ram Pal Singh, PW4 Mr. Akhilesh Khare, PW5 Ms. Anita, PW6 Mr. Vijay Kumar, PW7 Mr. Kanhiya Lal, PW8 Mr. Rahul Jain and RW1 Smt. Saroj Sud, documents Ex. PW1/1 to Ex. PW1/25, Ex. PW2/1 to Ex. PW2/4, Ex. PW3/1 to Ex. PW3/5, Ex. PW4/1, Ex. PW5/1, Ex. PW5/2, Ex. PW6/1 to Ex. PW6/4, Ex. PW7/1, Ex. PW8/1 to Ex. PW8/4, Ex. RW1/1 to Ex. RW1/7 and the law laid down in Jagan Nath v. Chander Bhan and others, (1988) 3 SCC 57, Shama Prashant Raje v. Ganpathrao and others, (2000) 7 SCC 522, Kala and another v. Madho Parshad Vaidya, (1998) 6 SCC 573, Abdul Hamid v.
E. No. 37/08 Page no.8 of 19 Nur Mohammad, AIR 1976 Delhi 328, Nirmal Kishore Jain v. Sunpack India, 187 (2012) DLT 221, Qaiser Jahan Begum v. Ramzan Karim, 1998 (46) DRJ 7, A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Calcutta 359 and Chuni Lal Dwarka Nath v. Hartford Fire Insurance Company Limited, AIR 1958 Punjab 440 it is submitted by counsel for the respondent that the premises were let out to M/s. Nath & Co. in the year 1946 and Mr. Jagan Nath Sud was its proprietor. It is further submitted by counsel for the respondent that after the death of Mr. Jagan Nath Sud the tenancy rights, by virtue of law, had devolved upon Mrs. Prakash Sud, Mr. Satish Sud and Ms. I. B. Sud, wife, son and daughter respectively of late Jagan Nath Sud. It is further submitted by counsel for the respondent that besides Smt. Saroj Sud, Mrs. I. B. Sud @ I. B. Gulati has tenancy rights in the premises and in the absence of Mrs. I. B. Gulati as a party in the present case the application is liable to be dismissed. It is further submitted by counsel for the respondent that the affairs of the respondent are being looked after by Mrs. Saroj Sud and Mrs. I. B. Gulati and since they both are women, they occasionally take assistance of Mr. M. R. Gulati in running the affairs of the respondent. It is further submitted by counsel for the respondent that the premises are in the control and possession of Mrs. Saroj Sud and Mrs. I. B. Gulati and the same have not been sublet to any person nor their possession has been parted with. It is also submitted by counsel for the respondent that the present application is frivolous and the same be dismissed.
E. No. 37/08 Page no.9 of 19
10. I have given my thoughtful consideration to the submissions made on behalf of the parties.
11. Clause (b) of proviso to subsection (1) of section 14 of Act 59 of 1958, which pertains to eviction of tenant on the ground of subletting etc., reads as follows, namely:
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(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;
* * *
12. In Jagan Nath's case (supra) having interpreted the provisions of clause (b) of proviso to subsection (1) of section 14 of Act 59 of 1958 it has been held by the Hon'ble Supreme Court as follows:
The parting with possession must be by the tenant. Parting with possession means giving possession to persons other than those to whom possession had been given by the lease. User by other person is not parting with possession so long as the tenant retains the legal possession himself. There must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession.
13. In Kala's case (supra) it has been held by the Hon'ble Supreme Court that the onus to prove subletting is on the landlord and if he establishes parting of with the possession in favour of a third party, the onus E. No. 37/08 Page no.10 of 19 would shift to the tenant to explain.
14. In Abdul Hamid's case (supra) it has been held by the Hon'ble Delhi High Court that the use of premises by another is not sufficient to attract the provisions of clause (b) of proviso to subsection (1) of section 14 of Act 59 of 1958 so long the legal possession is retained by the tenant.
In Abdul Hamid's case (supra) it has also been held by the Hon'ble Delhi High Court that no evidence can be let in on a matter not pleaded but is required to be pleaded and that no amount of evidence even if let in, without such a pleading can be looked into.
15. In Nirmal Kishore Jain's case (supra) it has been held by the Hon'ble Delhi High Court that subletting or parting with possession means giving of possession to persons other than to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant; as long as the tenant retains the legal possession himself there is no parting with possession in terms of section 14(1) (b) of the Act.
16. In the present case the applicant has not impleaded a natural person as the respondent and instead an entity namely, M/s. Nath & Co. has been impleaded as the respondent who is stated to be the tenant. As per the version of the applicant the premises were let out to M/s. Nath & Co. who was under the proprietorship of Mr. Satish Sud. According to the applicant after the death of Mr. Satish Sud the proprietorship concern has ceased to E. No. 37/08 Page no.11 of 19 exist. On the other hand the contention raised on behalf of the respondent by Ms. Saroj Sud is that the tenancy was created in favour of M/s. Nath & Co. whose proprietor was one Mr. Jagan Nath Sud and after his death the tenancy rights were succeeded by his wife, son and daughter. It is also the contention of the respondent that after the death of the son and wife of Mr. Jagan Nath Sud besides Ms. Saroj Sud Ms. I. B. Gulati, who is daughter of late Jagan Nath Sud, is also a tenant.
17. PW1 Mr. Atul Tandon during his cross examination extensively questioned about the tenancy in favour of Mr. Jagan Nath Sud and after his death devolution of rights of tenancy in favour of the legal heirs of late Jagan Nath Sud. During his cross examination PW1 Mr. Atul Tandon betrayed his ignorance about creation of tenancy in favour of Mr. Jagan Nath Sud and devolution of his rights in favour of his legal heirs including Ms. I. B. Gulati.
18. During her examination in chief RW1 Ms. Saroj Sud has deposed that Mr. Jagan Nath Sud, who was the proprietor of M/s. Nath & Co., had taken the premises on rent in the year 1946 and after his death his legal heirs succeeded the tenancy rights and at present she and Mrs. I. B. Gulati are cotenants in the premises. The testimony of RW1 Ms. Saroj Sud on this aspect of the case has been vehemently challenged by the learned counsel for the applicant on the ground that since the witness has no knowledge about the events which occurred prior to her marriage with Mr. E. No. 37/08 Page no.12 of 19 Satish Sud, therefore, no reliance can be placed on her testimony.
19. PW2 Mr. Lal Singh, Statistical Assistant from the office of Trade and Taxes Department, NCT of Delhi appeared in this case at the instance of the applicant and during his examination documents Ex. PW2/1, Ex. PW2/2, Ex. PW2/3 and Ex. PW2/4 were brought on the record by the applicant itself. A perusal of documents Ex. PW2/1 to Ex. PW2/4 reveals that the proprietorship concern M/s. Nath & Co. at A15, Connaught Place, New Delhi was registered with the Sales Tax Department way back in the year 1951 and at that time it was under the proprietorship of Mr. Jagan Nath Sud. The contents of documents Ex. PW2/1 to Ex. PW2/4 give weight to the testimony of RW1 Ms. Saroj Sud that the tenancy of the premises was not created in favour of Mr. Satish Sud and instead the same was created in favour of the respondent while Mr. Jagan Nath Sud was its proprietor. The law is settled that in the eyes of law the proprietorship concern and proprietor are not two separate persons. Since the tenancy was created in favour of M/s. Nath & Co. while Mr. Jagan Nath Sud was its proprietor, the natural corollary is that the tenancy was created actually in favour of Mr. Jagan Nath Sud.
20. It is not disputed by the applicant that Mr. Jagan Nath Sud expired before termination of tenancy rights. It is also not disputed by the applicant that Mr. Jagan Nath Sud was survived by his wife Ms. Prakash Sud, son Satish Sud and daughter Ms. I. B. Sud, at present known by the E. No. 37/08 Page no.13 of 19 name Ms. I. B. Gulati. Thus, after death of Mr. Jagan Nath Sud, by virtue of law, Ms. I. B. Sud @ I. B. Gulati had also become a joint tenant in the premises.
21. It is argued by the learned counsel for the applicant that since Ms. I. B. Gulati never paid rent to the applicant and never obtained rent receipt, therefore, it should be presumed that she had surrendered her tenancy rights in favour of other tenant. In the considered opinion of the court this argument is without merit. In the present case it has not been proved by the applicant that the rent receipts qua the premises were being issued in the name of any person other than M/s Nath & Co., which is a proprietorship concern. In the application for eviction also the applicant does not admit, specifically, Ms. Saroj Sud as a tenant. If the rent receipt were being issued in the name of the respondent, where was the question of issuing receipt in the name of Ms. I. B. Gulati or any other natural person. On behalf of one tenant the rent can be paid by other tenant and the law does not preclude such agency. Even otherwise as per the testimony of RW1 Ms. Saroj Sud Ms. I. B. Gulati was residing in Singapore, who was called from there when she faced difficulty in running the affairs of the respondent after the death of Mr. Satish Sud. If Ms. I. B. Sud was not available in India how could she tender rent or obtain a receipt. In the absence of any concrete evidence it cannot be held that Ms. I. B. Sud surrendered her tenancy rights in the premises.
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22. It is not disputed by the applicant that Mr. Satish Sud has also expired. Ms. Saroj Sud is wife of Mr. Satish Sud. And as per the version of the applicant itself before his death Mr. Satish Sud was tenant at the premises. In these circumstances it has been proved that the relationship of landlord and tenant exists between the applicant and Mrs. Saroj Sud and Mrs. I. B. Gulati.
23. The next question which falls for the determination is whether the premises have been sublet or its possession has been parted with in favour of Mr. M. R. Gulati.
24. In the application for eviction the applicant has not taken any clear stand as to in whose favour the premises have been sublet or parted with possession by the respondent. In fact in the application for eviction the applicant has merely expressed its apprehension about change in hand of the premises and it has not taken any clear stand that the premises have in fact been sublet or their possession has been transferred.
25. In the affidavits of PW1 Mr. Atul Tandon also no name has been mentioned of the person to whom the premises have been sublet or their possession have been parted with. First time during his cross examination on 23.08.2011 PW1 Mr. Atul Tandon named Mr. M. R. Gulati as the person in whose favour the premises have been sublet although such deposition of the witness is based on the documents filed by the applicant which were already available with it. No other person has been produced as E. No. 37/08 Page no.15 of 19 a witness to corroborate the version of Mr. Tandon that the respondent has parted with possession of the premises in favour of Mr. M. R. Gulati.
26. From the testimony of PW3 Mr. Ram Pal Singh and the documents Ex. PW3/1 to Ex. PW3/5 it has been established that the income tax returns uptodate in respect of the respondent are being filed by Ms. Saroj Sud.
27. From the testimony of PW4 Mr. Akhilesh Khare it has been established that the bank account of the respondent firm at the Oriental Bank of Commerce, Connaught Place, New Delhi is being operated by Ms. Saroj Sud.
28. It has been established from the testimony of PW6 Mr. Vijay Kumar, and nothing has come to the contrary during his reexamination by the applicant, that the Membership Fee of M/s Nath & Co. with the New Delhi Traders Association is being deposited by Ms. Saroj Sud and no other person.
29. It has been established from the testimony of PW7 Mr. Kanhiya Lal that the bank account of the respondent at the ICICI Bank Limited, Connaught Place is being run by Ms. Saroj Sud.
30. It has also been proved from the testimony of Mr. Rahul Jain and documents Ex. PW8/1 to Ex. PW8/4 that another bank account of the respondent at Standard Chartered Bank is being run under the signature of Ms. Saroj Sud.
E. No. 37/08 Page no.16 of 19
31. From the testimony of RW1 Ms. Saroj Sud also it has been revealed that the money is being deposited in her bank accounts under her control. During her crossexamination it was put by counsel for the applicant to RW1 RW1 Ms. Saroj Sud as to how much money was deposited by her in the bank accounts of the respondent in last fifteen days. The witness could not tell the exact amount and replied that Mrs. Delphine, who appears to be a servant of the respondent, may be able to tell about the same.
32. At the strength of the testimony of RW1 Ms. Saroj Sud it has been contended on behalf of the applicant that the premises have been sublet. The argument of the learned counsel for the respondent is resting on the premise that Ms. Saroj Sud although claims to be the proprietor of the respondent, but during her cross examination even could not tell as to how much money was deposited in its bank accounts in fifteen days preceding her testimony before the court; that she has no knowledge that bank account at HDFC Bank and Standard Chartered Bank were also being operated by the respondent; and that she could not explain about the telephone connection and mobile connection at the premises.
33. Before appreciating the arguments of the learned counsel for the respondent and analyzing the testimony of RW1 Ms. Saroj Sud it is necessary to take into consideration few proved facts, namely, RW1 Ms. Saroj Sud is a lady of age more than eighty years; she is a widow whose E. No. 37/08 Page no.17 of 19 husband expired in the year 1990; her two children, namely, Ashish Sud, son and Jugunu Sud, daughter also expired; She has no other children to look after her or assist her in her business. It is also deposed by RW1 Ms. Saroj Sud, and has not be traversed, after death of her son she was facing difficulty in running business and therefore, she called her sister in law Ms. I. B. Gulati, who is also a joint tenant in the premises, to assist her to run the business. Mr. M. R. Gulati is the husband of Ms. I. B. Gulati, who is a joint tenant and as per the version of RW1 Ms. Saroj Sud the said M. R. Gulati occasionally help her and her sister in law Mrs. I. B. Gulati in running the affairs of respondent.
34. In the light of the condition of RW1 Ms. Saroj Sud in life this court is of the considered opinion that the contention of the learned counsel for the applicant is without merit. Mere nonmentioning of the amount deposited by the witness in her bank accounts is not conclusive, in itself or in conjunction with other evidence, in holding that the premises have been parted with possession.
35. It is contended on behalf of the applicant that since on bill Ex. RW1/PX1 mobile number of Mr. M.R. Gulati has been mentioned and signatures of Mr. M.R. Gulati are appearing on other documents therefore it should be concluded that he is occupying the premises and running the business. In the considered opinion of the court this argument is also without merit for the reason that it has not been proved that mobile number E. No. 37/08 Page no.18 of 19 mentioned on Ex. RW1/PX1 belongs to Mr. M.R. Gulati. In the face of the condition in life and testimony of RW1 Ms. Saroj Sud that occasionally she was taking help from Mr. M. R. Gulati in running the affairs of the respondent, signing of documents do not prove that the premises have been parted with possession or sublet.
36. From the testimonies of PW2 Mr. Lal Singh, PW3 Mr. Ram Pal Singh, PW4 Mr. Akhilesh Khare, PW5 Ms. Anita, PW6 Mr. Vijay Kumar, PW7 Mr. Kanhiya Lal, PW8 Mr. Rahul Jain and RW1 Smt. Saroj Sud and the documents proved by them it has been proved that Ms. Saroj Sud is in control of the affairs of the respondent and in possession of the premises. Occasional help by Mr. M.R. Gulati or any other person to Ms. Saroj Sud to run the affairs of the respondent do not prove that the premises have been sublet or their possession has been parted with by the respondent. The applicant has failed to prove the ground of eviction under clause (b) of proviso to subsection (1) of section 14 of Act 59 of 1958 against the respondent. In these circumstances the application for eviction is dismissed with costs. File be sent to records.
Announced in the open court (Manoj Kumar)
on this 31 day of January, 2013 Rent Controller : New Delhi
st
31.01.2013
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