Delhi District Court
Smt. Raj Karni Sharma vs Shri Mohan Lal & Co. (W) on 20 April, 2019
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
E78864/16
In the matter of:
Smt. Raj Karni Sharma,
W/o Late Sh. Ram Prakash Sharma,
R/o 10944/1, Mandir Road,
Dori Walan, Karol Bagh,
New Delhi110005
(since deceased) represented
through legal heirs :
a) Sh. Vinod Kumar Sharma,
R/o 10944/1, Mandir Road,
Dori Walan, Karol Bagh,
New Delhi110005.
b) Sh. Subh Kumar Sharma,
R/o 153 Court,
Woodbridge, on L4L 7 X 2;
Canada.
c) Sh. Pramod Kumar Sharma,
R/o 12, Woodcroft Lane,
Woodbridge ONT,
L4L 6S7, Canada.
d) Sh. Subodh Sharma,
R/o 10, Villata Gardens,
North York, Onrario, M3J 1J8,
E78864/16 Page 1/29
Canada.
e) Ms. Asha Kapil,
W/o V.N. Kapil,
R/o 7775, Trivino Lane,
Falls Church, VA, 22043, USA.
f) Ms. Anita Narad,
W/o Sh. Vinod Narad,
R/o 179, Morning Star,
Woodbridge ON,
L41 6J1, Canada.
g) Ms. Sunita,
W/o Sh. Suman Kalia,
R/o 105, Valley Way Cres,
Maple, On L6A K8, Canada.
....Petitioners
Versus
1. Shri Mohan Lal & Co. (W),
10944/1, Mandir Road,
Dori Walan, Karol Bagh,
New Delhi110005.
2. Sh. M.V. Mehra,
Shri Mohan Lal & Co. (W),
10944/1, Mandir Road,
Dori Walan, Karol Bagh,
New Delhi110005.
3. Sh. R.M. Mehra,
10944/1, Mandir Road,
E78864/16 Page 2/29
Dori Walan, Karol Bagh,
New Delhi110005. .....Respondents
Date of Institution : 27.05.1998
Date of order when reserved : 11.04.2019
Date of order when announced : 20.04.2019
JUDGMENT:
1. Vide this judgment, the undersigned shall decide the petition filed under Section 14 (1) (a) & (b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as DRC), by the original petitioner Smt. Raj Karni Sharma seeking eviction of the respondents from the premises i.e. godown with two rooms on the mezzanine floor of property no. 10944/1, Mandir Road, Doariwalan, Karol Bagh, New Delhi (hereinafter referred to as the 'tenanted premises'), as shown in red colour in the site plan attached to the petition.
2. It is to be noted that during trial the original petitioner Smt. Raj Karni Sharma had expired and her legal heirs were taken on record. It is also to be noted that initially, the present eviction petition was dismissed by the Ld. ARC vide exparte judgment dated 09.12.1999. On an appeal preferred thereagainst, the Ld. RCT granted the petition on the grounds U/s 14 (1) (a) of the DRC Act and passed a consequential order U/s 15 (1) of the DRC Act, while dismissing the petition on the ground U/s 14 (1) (b) of the DRC Act.
E78864/16 Page 3/29The respondents were exparte even before the Ld. RCT. Non compliance of the order passed U/s 14 (2) of the DRC Act resulted into the passing of an eviction order on 21.10.2000. In execution thereof, the petitioner took the possession on 12.12.2002. Thereafter, an application Under Order 9 Rule 13 CPC came to be filed before the Ld. RCT. The Ld. RCT granted the application vide order dated 24.02.2003 and directed the petitioner to restore the possession of the premises to the respondents. Aggrieved thereof, the petitioner preferred CM (M) No. 175/03 before the Hon'ble High Court. It came to be disposed off vide order dated 13.10.2014 and thereby, the appeal originally filed before Rent Control Tribunal was ordered to be heard afresh on merits, but the possession of the tenanted premises, was ordered to remain with the petitioner, subject to directions, which Ld. RCT may pass at the time of passing of the judgment in the first appeal. Thereafter, vide order dated 27.02.2016 on agreement of both the counsels, the exparte judgment was setaside and liberty was given to the respondents to file written statement and also to move an appropriate application before Ld. ARC to seek back the physical possession of the tenanted premises.
3. The brief facts of the case as narrated in the petition are that the original petitioner Late Smt. Raj Karni Sharma was landlady of the suit property. It is stated that the tenanted premises was let out to the respondent no.1 firm for commercial purposes and yearly rent E78864/16 Page 4/29 of the premises was Rs. 21,780/. It is stated that at that time, Sh. M.V. Mehra, Sh. B.M. Chopra and Sh. Khanna were the partners. They had without consent of the petitioner sublet, assigned and parted with possession of the premises to the respondents no.2 and 3 who are in control of the respondent no.1 firm. It is stated that the respondent no.1 had not paid rent and was in arrears of rent w.e.f. 01.04.1994 despite service of legal notice of demand dated 29.03.1997 demanding arrears of rent w.e.f. 01.04.1994 @ Rs. 23,858/ per year. Hence, the petitioner has prayed for order of eviction of the respondents from the tenanted premises.
4. Written statement was filed by the respondents in terms of order dated 27.02.2016 passed by Ld. RCT, Delhi.
5. In the written statement filed by the respondents, it has been contended that the respondent no.1 was tenant since 197071 and was paying rent of Rs. 21,780/ as annual rent to the petitioner. It is admitted that the respondent no.1 was regularly paying agreed rent of premises till 31.03.1994. It is stated that the respondents could not make the payment of the rent after 31.03.1994 since some dispute had arisen among the partners of the respondent no.1 and as a result, suit was filed before Hon'ble High Court of Delhi titled as M.V. Mehra Vs. M.L. Mehra. It is submitted that the bankers of the respondent no.1 had stopped the operation of the account of the respondent no.1 in E78864/16 Page 5/29 which the amount of Rs. 4,00,000/ was lying. It is stated that the respondent no.1 could not make the payment of rent due to some legal hindrances and not intentionally. It is stated that subsequently, w.e.f. 11.03.2002 attorney of late petitioner namely Sh. Vinod Kumar took possession of the tenanted premises illegally with the assistance of Bailiff, without informing to the Court that the respondents had never been served with any notice. It is stated that the respondents are not liable to pay any rent for the premises w.e.f. 11.03.2002. It is stated that the respondents have always been ready and willing to pay arrears of rent, but neither the late petitioner, nor her attorney has been willing to accept the same. It is stated that even today, the respondents are willing to pay the arrears of rent and to pay future rent at the agreed rate from the date of possession of the premises is received by the petitioner. It is contended that the respondent no.1 is a Customs Bonded Warehouse and was granted a license U/s 58 of the Customs Act in the year, 1964. The grant of license U/s 58 of the Customs Act allows the licensee to store any dutiable goods imported, inter alia by or on behalf of the licensee, thus the licensee is required to have a warehouse where dutiable goods covered by the license can be deposited. For this very purpose, the suit premises was taken on rent. It is stated that the said Customs Bonded Warehouse is under the control and seal of the Customs department. Infact, the main godown/ warehouse where all the goods are stored cannot even be opened by the respondents no.2 and 3 without the presence of the concerned E78864/16 Page 6/29 custom officials. It is contended on behalf of the respondents that no notice was served upon the respondents. It is pointed out that notice U/s 106 of Transfer of Property Act was served upon the respondents at the address of tenanted premises and not on the registered office of the respondent no.1, or residential addresses of the respondents no.2 and 3 despite knowing the same. Further, the official address of the respondent no.1 and residential addresses of the respondents no.2 and 3 have not been mentioned in the petition which shows malafide intention on the part of the petitioner.
6. No replication to the written statement of the respondents was filed by the legal heirs of deceased petitioner.
7. In order to substantiate their case, legal heirs of deceased petitioner examined Sh. Vinod Kumar Sharma (one of the legal heir of deceased petitioner) as PW1. In rebuttal, the respondents examined Sh. Rohit Manoj Mehra as RW1.
8. PW1 Sh. Vinod Kumar Sharma has deposed almost on the same lines as averred in the petition. He exhibited on record photocopy of General Power of Attorney which is Ex. PW1/1 (objected to mode of proof); copy of Will dated 22.05.2007 is Ex. PW1/2 (objected to mode of proof); site plan is Ex. PW1/3;
E78864/16 Page 7/29photocopies of entries of the passbook with respect to the account with regard to the payment of rent before the period of default are Ex. PW 1/4 and Ex. PW1/5 (objected to mode of proof); legal notice dated 29.03.1997 alongwith receipt of UPC, Speed Post, Courier and Envelope of Speed Post are Ex. PW1/6 to Ex. PW1/10, respectively. In his crossexamination, it is stated by him that at the time of letting out the premises to the respondents his entire family was residing at the same property. It is stated by him that he was not present at the time of negotiation between his mother and the partners of the respondent no.1. It is accepted by him that the premises was let out to the respondents for the purpose of godown. This witness could not tell whether his mother had knowledge about the address of firm and partners of the firm. It is stated by him that he has been looking after the premises after death of his mother who died in the year, 2007. It is stated by him that he has not sent the demand notice at the address of registered office of the firm i.e. 2nd Floor, Plaza Cinema Building, Connaught Place. It is voluntarily stated that he has only sent the notice at 10944/1, Mandir Road, Doriwalan, Karol Bagh, Delhi which was available with him.
9. No other witness has been examined on behalf of the legal heirs of deceased petitioner and petitioner's evidence stands closed.
E78864/16 Page 8/2910 . In rebuttal, RW1 Sh. Rohit Manoj Mehra has deposed almost on the same lines as averred in the written statement. He further deposed that the suit premises was never sublet to any other person, nor the respondent no.1 was dissolved at any point of time. It is stated that merely entry and ouster of the partners does not change the liability and character of the firm and the respondent no.1 is existing till now. This witness proved on record copy of suit bearing no. 1343/94 (94/04) which is Ex. RW1/1. It is stated that this document is a part of list of witnesses filed on behalf of legal heirs of the deceased petitioner on 24.08.2017. In his crossexamination, it is stated by him that the respondent no.1 firm was the tenant in the property in question. It is stated by him that the tenancy was started in early, 1970. It is stated by him that his father, Sh. Mahabir Lal Mehra had represented the firm as a partner when tenancy was commenced. It is stated by him that at that time, other partner in the respondent no.1 firm was Sh. Vishwanath Chopra alongwith his father. It is stated that at the time of commencement of tenancy, his age was about 1213 years only. He could not tell, the exact date when he joined the respondent no.1 firm, however it is voluntarily stated that he might have joined in the year, 1977. It is stated that the suit premises was taken for storage purposes. It is stated by him that there were 23 peoples who have been taking care of the suit premises on behalf of the respondent no.1 firm, one was Sh. Jai Singh and other one was Sh.
E78864/16 Page 9/29Ramesh Sethi. It is stated by him that all customs related affairs were handled by the Manager of the respondent no.1 firm Sh. S.C. Sharma. It is stated by him that a dispute arose in his family qua family business. It is accepted by him that the dispute which he is referring is in the form of Ex. RW1/1. It is stated that the suit of which Ex. RW 1/1 is the plaint was disposed of as settled between the parties in 2005
06. It is stated by him that his relation with Sh. Vinod Kumar Sharma was that of acquittance. It is stated that he has seen him whenever he used to visit the suit premises and have even spoken with him on few occasions. It is stated by him that Sh. Jai Singh and Sh. Ramesh Sethi used to visit suit premises only at the time of clearance and delivery by the Customs Department. It is stated that when he joined the respondent no.1 firm, there were three other partners namely Sh. Vishwanath Chopra, Sh. Mukul Vinod Mehra and his father. It is stated that when he joined the firm, a fresh partnership deed was executed between the parties. It is stated that he was holding 20% shares in the respondent no.1 and Mohan Lal & Co. It is stated that his father was holding 40% shares in the respondent no.1 firm. It is stated that these shares were never revised. It is accepted by him that both the bank accounts of the respondent no.1 firm were freezed at the instance of his brother who had filed the suit, Ex. RW1/1. It is stated by him that the bank accounts maintained with Standard Chartered Bank were freezed because his father expired in 1997 and the other partner Sh. Vishwanath Chopra expired in 2013. It is accepted by him E78864/16 Page 10/29 that there is no fresh partnership deed in the name of the respondent no.1 firm after 1994. It is stated by him that at present, he and his brother are only partners in the respondent no.1 firm. This witness could not remember whether custom department had last renewed the license of the respondent no.1 in 1995. It is accepted by him that he never given any offer to pay rent after bank accounts of the respondent no.1 were freezed. It is accepted by him that he has not given any offer to pay rent to the petitioner, or to her legal heirs till date. This witness has shown his ignorance that the suit property was let out in the name of the respondent no.1 firm and no partner of the firm used this premises for his personal use. It is denied by him that the respondent no.1 firm is not existing as on date since already dissolved in the year, 1994 when his brother had instituted the suit, Ex. RW1/1 against other partners including this witness.
11. No other witness has been examined on behalf of the respondents and respondents' evidence stand closed.
12. The Court has heard the submissions and perused the evidence and other material placed on record.
13. First of all the undersigned shall decide the two grounds raised by the legal heirs of deceased petitioner to urge that present proceedings have became infructuous i.e. (i) eviction order dated E78864/16 Page 11/29 21.10.2000 has not been setaside and (ii) this Court has already rejected the application of the respondents for restoration of possession to them, hence the present case has become infructuous.
14. These grounds are not tenable as in the present matter, initially the entire petition filed by the petitioner was dismissed vide judgment dated 09.12.1999. This order was partially setaside by Ld. RCT and it was held that the tenants are liable to be evicted U/s 14 (1)
(a) of DRC Act. Thereafter, the matter was remanded back to Ld. ARC to pass an appropriate order U/s 14 (2) of DRC Act. Consequent to that, order dated 21.10.2000 was passed wherein it is held that due to noncompliance of order passed U/s 14 (1) (a) of DRC Act, the tenant is liable to be evicted. Consequent to that, the petitioner took possession on 12.12.2002. At that stage, an application Under Order 9 Rule 13 CPC came to be filed before Ld. RCT which was allowed vide order dated 24.02.2003 and the petitioner was directed to restore the possession of the premises to the respondents. Aggrieved thereof, a CM (M) Petition bearing no. 175/03 was moved by the petitioner before Hon'ble High Court which was disposed of on 13.10.2014 wherein it is directed that the appeal originally filed before Ld. RCT to be heard afresh on merits. The appeal was heard afresh by Ld. RCT, however on 27.02.2016 a consent order was passed on agreement of both the parties wherein exparte judgment was setaside and liberty was given to the respondents to file written statement and also to E78864/16 Page 12/29 move an appropriate application before Ld. ARC to seek back the physical possession of the tenanted premises. It is to be noted that once with the consent of both the parties, the order of eviction was set aside and matter was remanded back, the order dated 21.10.2000 of eviction due to noncompliance of Section 14 (2) of DRC Act become infructuous as very basis of the same i.e. passing of an order U/s 14 (1) (a) of DRC Act has gone. Thus, the contention of the legal heirs of deceased petitioner that the order dated 21.10.2000 has not been set aside, hence the present petition has become infructuous is misplaced.
15. The contention of the legal heirs of deceased petitioner that as per the liberty granted by Ld. RCT, the respondents have moved an application for restoration of possession which was dismissed by this Court vide order dated 11.09.2018, thus now nothing left in the present matter as the possession cannot be returned back to the respondents, is also misplaced as from perusal of the order dated 11.09.2018 it is apparent that vide that order the undersigned has dismissed the application of the respondents for restoration of possession apparently during pendency of the present eviction petition. It is absolutely clear proposition of law that act of Court should not prejudice anyone. In the present matter, under an exparte judgment possession has been taken from tenants and has been given to the petitioner, however that exparte judgment has been setaside. Now, the petition has to be decided on merits. It is absolutely clear, if E78864/16 Page 13/29 the petitioner fails on merits to prove the ingredients of Section 14 (1)
(a) and (b) of DRC Act, the respondents/ tenants would be entitled to receive back the possession of the property in question. The order dated 11.09.2018 was only an interim order. That order could not decide the rights of the respondents qua restoration of the possession finally as the present eviction petition is still pending to be decided on merits. Thus, this contention is also misplaced.
16. In order to establish their case under Section 14 (1) (a) &
(b) of D.R.C. Act, the legal heirs of deceased petitioner is required to prove the following ingredients :
(i) That there is relationship of landlord and tenant between the parties;
(ii) That there are arrears of legally recoverable rent;
(iii) That a valid legal demand notice was duly served upon the respondent;
(iv) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice;
(v) That the tenant has sublet, assigned or otherwise parted with possession of the whole or any part of the premises without obtaining written consent of the landlord;
E78864/16 Page 14/29Relationship of landlord and tenant
17. The respondents have admitted the ownership of the original petitioner Smt. Raj Karni Sharma and tenantlandlord relationship between them. It is not the case of the respondents that after the death of original landlord/ petitioner, her legal heirs did not stepped into her shoes, or that they are not the landlords qua the respondents. Therefore, the Court holds that the legal heirs of deceased petitioner are owners of the tenanted premises and they are the landlord in respect of the tenanted premises, qua the respondents.
Service of valid legal demand notice upon the respondent/tenant
18. It is contended on behalf of legal heirs of deceased petitioner that legal notice of demand dated 29.03.1997 was duly served upon the respondents. Per contra, it is contended on behalf of the respondents that no notice was served upon the respondents as notice U/s 106 of Transfer of Property Act was served upon the respondents at the address of tenanted premises and not on the registered office of the respondent no.1, or residential addresses of the respondents no.2 and 3 despite knowing the same.
19. The legal notice of demand dated 29.03.1997 was sent at the tenanted premises vide UPC, Speed Post, Courier and Envelope of E78864/16 Page 15/29 Speed Post which are Ex. PW1/6 to Ex. PW1/10, respectively. It is settled law that notice sent through registered post on correct address deemed to be a valid service, even if the same returned for non availability of the addressee, or the premises found to be locked. It is not the case of the respondents that the address mentioned on the legal notice was incorrect, rather they only objected to sending the notice on tenanted premises instead of registered address of the respondent no.1, or residential addresses of the respondent no.2. It is to be noted that the petitioner has completed her duties by sending the legal notice at the tenanted premises/ correct address and it is not the duty of the petitioner to send notice on every address of the tenant. In the present matter, notice was served at address 10944/1, Mandir Road, Doariwalan, Karol Bagh, New Delhi i.e. tenanted premises. The tenanted premises was godown of the respondent no.1. It is to be noted that the property in question was leased out for commercial purpose, thus the tenanted premises amounts to business house of the respondents, hence notice sent to this address amounts to be send at the correct address and there was no need to send the notice at all the working places of the respondents. Reliance being placed upon judgment delivered by Hon'ble High Court of Delhi in case titled as Ashok Anand & Anr. Vs. Dropadi Devi @ Dropati Devi, R.C. Rev. No. 70/2016, decided on 17.05.2016.
E78864/16 Page 16/2920. It is to be noted that there is no positive evidence on record that the petitioner was aware about the registered address of the office of the respondent no.1. In the present matter, there is nothing on record which positively proves that the petitioner was aware about the registered address of the office of the respondent no.1. Even the rent deed has not been filed on record by either of the parties showing, if the registered address of the office of the respondent no.1 was mentioned in the rent deed. Admittedly, legal notice of demand in the present matter was sent at the premises in question which was a godown, however it was the responsibility of the respondents, if any letter was sent at the suit premises which they decided to lock should be received by them, either by instructing the postal authorities to re direct those letters to another address, or to make some other arrangement for receipt of letters, etc. on its behalf. In these circumstances, it is held that the petitioner cannot be blamed for non receipt of the notice by the respondents. The petitioner did her best by sending notice through registered post as well as UPC.
21. It was held by Hon'ble Supreme Court in a case titled as M/s Madan & Co. Vs. Wazir Jaivir Chand, AIR 1989 SC 630 that notice sent through registered post on correct address deemed to be a valid service, even if the same returned for nonavailability of the addressee as the sender or the postman are not responsible to arrange the service of the notice. It was held that a postman cannot be equated with a E78864/16 Page 17/29 Process Server. Similarly, in a case titled as Ajay Ahuja & Anr. Vs. Subhiksha Trading Services Ltd., 2011 (121) DRJ 137, Hon'ble Delhi High Court has dealt with the same issue. The relevant paras of that judgment are as under : "14. The next question which comes up for consideration in this case is as to whether the notice, whereby the tenancy of the defendant was sought to be terminated by the plaintiffs, can be said to have been duly issued to/ served on them. Admittedly, the notice was not actually received by the defendantcompany either at its corporate office or at the suit premises. The notice sent by courier was received back with the remarks "shifted", whereas the notice sent by registered post at the suit premises was received back with the remarks "on repeated visits premises found locked". As noted earlier, the notice sent at the registered office of defendantcompany was also sent with the remarks "left without instructions".
15. xxx
16. xxx E78864/16 Page 18/29
17. xxx
18. In D. Vinod Shivappa v. Nanda Belliappa (2006) 6 SCC 456 : 2006 (89) DRJ 129 [SC], Supreme Court while dealing with a notice issued under Section 138 of Negotiable Instruments Act and sent by registered post inter alia observed as under :
"This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted."
In V. Raja Kumari v. P. Subbarama E78864/16 Page 19/29 Naidu and Anr. 2004 8 SCC 774, dealing with a case where the notice could not be served on account of the fact that the door of the house of the drawer was found locked, Supreme Court held that the principle incorporated in Section 27 of General Clauses Act will apply to a notice sent by post and it would be for the drawer to prove that it was not really served and he was not responsible for such nonservice. In State of M.P. v. Hiralal and Ors. 1996 (7) SCC 523, the respondent managed to have the notice returned with postal remarks "not available in the house", "house locked" and "shop closed".
It was held that the notices had been served on the respondents....
19. In the case before this Court also, it was for the defendantcompany, if it decided to lock the suit premises which it had been taken on rent from the plaintiffs, to make necessary arrangements for service of the letters, etc. that could be sent to it, either by instructing the postal authorities to redirect those letters to another address or to make some other E78864/16 Page 20/29 arrangement for receipt of letters, etc. on its behalf...... If the defendantcompany decided not to adopt any of these courses available to it, the plaintiffs cannot be blamed for nonreceipt of the notice by the defendantcompany. The plaintiffs did the best they could have done by sending notice by registered post not only at the suit premises, but also at the registered office of the defendantcompany and in these circumstances, the statutory presumption under Section 27 of General Clauses Act with respect to service of notice sent by registered post cannot be denied to the plaintiffs.
20. I, therefore, have no hesitation in holding that by sending the notice dated 11th November, 2009 which was returned back with the remarks "shifted" on repeated visits premises found locked" and "left without instructions" the plaintiffs have duly complied with the requirement of Section 106 of Transfer of Property Act.
22. Thus, it is hereby held that legal notice of demand dated 29.03.1997 was duly served upon the respondents.
E78864/16 Page 21/29(iii) Arrears of legally recoverable rent
23. It is contended on behalf of the petitioner that the respondent no.1 had not paid rent and was in arrears of rent w.e.f. 01.04.1994 despite service of legal notice of demand dated 29.03.1997 demanding arrears of rent w.e.f. 01.04.1994 @ Rs. 23,858/ per year (earlier the respondents paid yearly rent @ Rs. 21,780/). It is also admitted by the respondents that they are paying rent of Rs. 21,780/ as annual rent to the petitioner and they could not make the payment of the rent after 31.03.1994. It is also stated that the respondents are not liable to pay any rent for the premises w.e.f. 11.03.2002, however the respondents are willing to pay the arrears of rent and to pay future rent at the agreed rate from the date of possession of the premises is received by the petitioner.
24. It has already been held that the legal notice of demand dated 29.03.1997 has been duly served upon the respondents wherein the petitioner has claimed arrears of rent from 01.04.1994 to till date (the date of notice). It is admitted on behalf of the respondents that they are in arrears of rent w.e.f. 01.04.1994 and are ready to pay entire arrears of rent at the agreed rate. In view of the evidence in this regard and legal position, the Court is of the considered opinion that the legal heirs of deceased petitioner has successfully proved that the E78864/16 Page 22/29 respondents were in arrears of legally recoverable rent for the period w.e.f. May, 1995 to till date i.e. date of legal notice.
(iv) The respondent has neither paid, nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.
25. In view of the discussions herein above, the legal heirs of deceased petitioner has been able to prove on the record that the respondents have neither tendered, nor paid the arrears of legally recoverable rent within two months of receipt of legal demand notice. Therefore, in view of the above discussion, the petitioner has been able to make out a case U/s 14 (1) (a) of DRC Act. The respondents are directed to clear all arrears of rent due w.e.f. May, 1995 to 12.12.2002 (i.e. the date of taking of possession of the tenanted premises by the petitioner) at the enhanced rate of rent of Rs. 1988.15 per month (Rs. 23,858/ yearly) alongwith interest @ 15% per annum, within one month from the date of service of this order.
(v) The tenant has sublet, assigned or otherwise parted with possession of the whole or any part of the premises without obtaining written consent of the landlord E78864/16 Page 23/29
26. The moot question which has to be answered to decide the petition U/s 14 (1) (b) of DRC Act is to whether the tenant had sublet, assigned, or otherwise parted with the possession of the whole, or part of the premises that is whether the partnership alleged to be created by the original tenant with the new partners is a genuine transaction, or just a camouflage to cover the real aspect of subletting. Admittedly, in the present case, there is no written consent of the landlady, however it is well settled that to make out a case of subletting, or parting with possession, it means giving of possession to persons other than those 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 DRC Act. The word 'subletting' necessarily means transfer of an exclusive right to enjoy the property in favour of the third party. In (1988) 1 SCC 70 Shalimar Tar Products Ltd. Vs. H.C. Sharma, the Ld. Apex Court had noted that to constitute a subletting, there must be a parting of legal possession i.e. possession with the right to include and also right to exclude other and whether in a particular case, there was sub letting, or not was a question of act.
27. A conjoint reading of Section 14 (1) (b) read with Section 14 (4) of the DRC Act shows that if the tenant inducts a partner in his business, or profession and if this partnership is genuine, he may be E78864/16 Page 24/29 permitted to do so; however if the purpose of such a partnership is only ostensibly to carry on a business, or profession in partnership, but the real purpose is of 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 Section 14 (1)
(b) of the DRC Act. This test had been laid down by the Ld. Apex Court in (2002) 9 SCC 516 G.K. Bhatnagar (Dead) by LRs. Vs. Abdul Alim. The Ld. Apex Court in (2004) 4 SCC 794 Parvinder Singh Vs. Renu Gautam had also noted that a device in any time adopted by tenant to create partnership which is actually a camouflage to circumvent the provisions of Rent Control Act; the rent control legislation being beneficial for the benefit of the tenant and not a means to subvert the true intent of the statute.
28. Applying the said test to the instant case, it is said that initially Sh. M.V. Mehra, Sh. B.M. Chopra and Sh. Khanna were the partners. The alleged subtenants are infact sons of the one of the original partner Sh. Mahabir Lal Mehra who had represented the firm as a partner. Even as per RW1/1, it appears that Sh. Mahabir Lal Mehra has inducted his sons as partners in the same partnership firm. The name of the partnership remains same. The business remains same. Infact the one of the original partner Sh. Mahabir Lal Mehra was remain the dominant partner having 40% share, thus it can be said E78864/16 Page 25/29 that there is no subletting in favour of the respondents no.2 and 3. It is also to be noted that while tenancy created in favour of the partnership firm, it is infact the partners who are real tenants. Infact, tenancy rights of partnership firm are heritable by legal heirs of deceased partner. Thus, even after death of the original partner, tenancy devolves upon his sons/ legal heirs and other partners.
29. The petitioner has put a copy of petition to the respondents' witness i.e. RW1 which is Ex. RW1/1. This petition shows that there was a partnership executed between father Sh. Mahavir Lal Mehra and his two sons namely Sh. M.V. Mehra and Sh. R.M. Mehra. Sh. Mahabir Lal Mehra, the father of the witness was one of the partner of original tenant i.e. the respondent no.1 firm. It is to be noted that Sh. Mahabir Lal Mehra had expired in 1997 i.e. prior to filing of the present petition.
30. It is to be noted that initially, the present eviction petition was dismissed by the Ld. ARC vide exparte judgment dated 09.12.1999, however on an appeal preferred thereagainst, the Ld. RCT granted the petition on the grounds U/s 14 (1) (a) of the DRC Act and passed a consequential order U/s 15 (1) of the DRC Act, while dismissing the petition on the ground U/s 14 (1) (b) of the DRC Act observing that it has not been spell out on behalf of petitioner that as to whom and under what circumstances premises were sublet, or E78864/16 Page 26/29 that the respondent no.1 was not in exclusive possession of the premises and merely because the premises were lying locked since 1994 did not mean that the same has been sublet. The said observations hold true even today.
31. It is also to be noted that it has been herself stated by the petitioner in her petition that at the time of letting out the premises, Sh. M.V. Mehra was one of the partner of the respondent no.1 firm, who has been impleaded as the respondent no.2 in the present petition to whom the respondent no.1 has allegedly sublet the premises as alleged by the petitioner, apparently, the petitioner is taking inconsistent stands. It is not the case of the petitioner that the respondents no.2 and 3 are using the premises for their personal use, however it has been admitted on behalf of the petitioners that the tenanted premises is used for running business of the respondent no.1 partnership firm by its partners. Therefore, this Court is of the considered opinion that the petitioner has failed to prove all the necessary ingredients of Section 14 (1) (b) of Delhi Rent Control Act, 1958.
32. In these circumstances, it is held that the legal heirs of deceased petitioner has successfully proved their case U/s 14 (1) (a) of the Act and the petition stands allowed visavis section 14 (1) (a) of the Act. The petition stands dismissed qua Section 14 (1) (b) of DRC E78864/16 Page 27/29 Act.
33. A perusal of the record reflects that in this case, the order under Section 15 (1) of D.R.C. Act has not been passed. Accordingly, the respondents are already directed to clear all arrears of rent due w.e.f. May, 1995 to 12.12.2002 (i.e. the date of taking of possession of the tenanted premises by the petitioner) at the enhanced rate of rent of Rs. 1988.15 per month (Rs. 23,858/ yearly) alongwith interest @ 15% per annum, within one month from the date of service of this order U/s 15 (1) of DRC Act and to continue to pay the future rent by 15th of each succeeding English calender month till the decision of benefit U/s 14 (2) of DRC Act.
34. Issue court notice to the respondents who may be served upon copy of this judgment. The Process Server is directed that the respondents be served by way of affixation, in case of refusal/non availability/lock on the premises. Further, photographs of affixation be obtained at the expenses of the legal heirs of deceased petitioner which may be filed in the Court alongwith his report by the Process Server.
35. Nazir is directed to file a report about the compliance of Order U/s 15 (1) of DRC Act and a separate file to consider the E78864/16 Page 28/29 entitlement of the respondents for the benefit under Section 14 (2) of the D.R.C. Act be maintained. The aspect of compliance/ non compliance of this order and whether respondents are entitled to benefit U/s 14 (2) of DRC Act, or not, as non compliance of aforesaid order would disentitle the respondents from availing benefit U/s 14 (2) of DRC Act be considered on 30.05.2019. A copy of this judgment be placed in the miscellaneous file. No order as to costs.
File be consigned to Record Room.
Digitally signed by GAJENDER GAJENDER SINGH
SINGH NAGAR
Date: 2019.04.20
NAGAR 16:29:32 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 20.04.2019 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi/20.04.2019
(This judgment contains 29 pages in total)
E78864/16 Page 29/29
E78864/16
20.04.2019
Present : None.
Vide separate judgment, it is held that it is held that the legal heirs of deceased petitioner has successfully proved their case U/s 14 (1) (a) of the Act and the petition stands allowed visavis section 14 (1) (a) of the Act. The petition stands dismissed qua Section 14 (1) (b) of DRC Act.
A perusal of the record reflects that in this case, the order under Section 15 (1) of D.R.C. Act has not been passed. Accordingly, the respondents are already directed to clear all arrears of rent due w.e.f. May, 1995 to 12.12.2002 (i.e. the date of taking of possession of the tenanted premises by the petitioner) at the enhanced rate of rent of Rs. 1988.15 per month (Rs. 23,858/ yearly) alongwith interest @ 15% per annum, within one month from the date of service of this order U/s 15 (1) of DRC Act and to continue to pay the future rent by 15th of each succeeding English calender month till the decision of benefit U/s 14 (2) of DRC Act.
Issue court notice to the respondents who may be served upon copy of this judgment. The Process Server is directed that the respondents be served by way of affixation, in case of refusal/non availability/lock on the premises. Further, photographs of affixation be obtained at the expenses of the legal heirs of deceased petitioner which may be filed in the Court alongwith his report by the Process E78864/16 Page 30/29 Server.
Nazir is directed to file a report about the compliance of Order U/s 15 (1) of DRC Act and a separate file to consider the entitlement of the respondents for the benefit under Section 14 (2) of the D.R.C. Act be maintained. The aspect of compliance/ non compliance of this order and whether respondents are entitled to benefit U/s 14 (2) of DRC Act, or not, as non compliance of aforesaid order would disentitle the respondents from availing benefit U/s 14 (2) of DRC Act be considered on 30.05.2019. A copy of this judgment be placed in the miscellaneous file. No order as to costs.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJcumARC (Central) Delhi/20.04.2019 E78864/16 Page 31/29