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[Cites 10, Cited by 0]

Delhi District Court

Hazari Courts vs Sh. Surender Aggarwal S/O Sh. Mohan Lal on 31 May, 2013

                                       //1//

 IN THE COURT OF SATISH KUMAR ARORA, ARC-1 (CENTRAL) TIS
                 HAZARI COURTS, DELHI.
                      E-155/09/08
Mahant Savita Rani @ Savita Bai
d/o Sh. Amolak Ram
r/o 3222, Prem Dham, Gali Charan Dass,
Hauz Qazi, Delhi-110006.                                      ...Petitioner
                                    VERSUS
1. Sh. Surender Aggarwal s/o Sh. Mohan Lal
   Tenant on 1st floor, House No. 3222, Prem Dham,
   Gali Charan Dass, Mohalla Dasan, Hauz Qazi, Delhi-110006.
2. Sh. Saman Kumar Gupta
3. Sh. Sandeep Aggarwal s/o Sh. Surender Aggarwal
   (both sub-tenants in aforesaid property)                      ...Respondents
            Petition u/s 14 (1) (a), (b) and (j) of Delhi Rent Control Act
1. Date of institution of the case        :      14.01.2008
2. Date of Judgment reserved              :      22.05.2013
3. Date of Judgment pronounced            :      31.05.2013
JUDGMENT

1. This is an eviction petition u/s 14 (1) (a), (b) and (j) of the Delhi Rent Control Act, 1958 (in short, DRC Act) filed by the petitioner against the respondents on the following grounds :- That petitioner is the owner/landlord of property bearing no. 3222, Prem Dham, Gali Charan Dass, Hauz Qazi, Delhi and respondent no.1 Sh. Surender Aggarwal was inducted as a tenant in a room measuring 15 x 15 sq. feet on the first floor of the aforesaid property for running his lawyer's office vide agreement dated 24.09.1968. Another room adjoining the tenanted premises was added to the tenancy of respondent no. 1 by way of an agreement dated 16.10.1975. Both the rooms which form the tenancy premises and are shown in red in the site plan filed E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 1 of 17 //2// with the eviction petition were let out to the respondent no. 1 alone for the purpose of running his lawyer's office. That the respondent no. 1 became a habitual defaulter in making the payment of rent which was lastly enhanced to Rs. 252/- per month w.e.f 01.04.2005. Despite being served with a legal demand notice dated 24.09.2007, respondent no. 1 failed to pay the arrears of rent w.e.f 01.01.2007 within the stipulated period of two months of the service of the legal notice upon him. Not only the respondent no. 1 was a habitual defaulter, he also started running commercial activities and parted with a portion of the tenancy premises to his son Sandeep Aggarwal and another person Saman Kumar Gupta. That the said two persons started running the business of sanitary parts under the name and style of Surmala Traders @ Surmela Traders without any consent of the petitioner/landlord. Further, respondent no. 1 with the other two respondents also renovated the tenancy premises again without obtaining any permission or consent of the petitioner/landlord and it resulted in causing substantial damage to the tenancy premises for which the respondents are liable to pay damages to the petitioner. It is on the basis of these facts that a prayer for passing of an eviction order u/s 14 (1) (a), (b) and (j) of DRC Act in respect of the tenancy premises has been made by the petitioner against the respondents.

It is pertinent to note here that after the filing of the written statement by the three respondents, an application u/o 6 rule 17 CPC was preferred by the petitioner which came to be allowed vide order dated 16.03.2009. Subsequent thereto, an amended eviction petition was filed by the petitioner which resulted in filing of the amended written statement by the three respondents.

2. In the written statement, while controverting and denying the averments E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 2 of 17 //3// of the eviction petition, execution of the two rent agreements dated 24.09.1968 and 16.10.1975 was admitted. While so admitting, it was stated that respondent no. 1 was inducted as a tenant in respect of the premises in question by Mahant Prem Dass vide rent note dated 24.09.1968. It was further stated that thereafter petitioner started misappropriating the property of a public trust and used it for her personal gain. It was further stated that on 16.10.1975, petitioner entered into another rent agreement with the respondent no. 1 in respect of additional portion of one room on the first floor of the property in question and it was adjacent to the room already occupied by respondent no. 1. It was further stated that the tenancy premises with the right of entrance from the main stairs and courtyard on the first floor described in the site plan referred to in the said rent agreement was given to respondent no. 1 @ Rs. 30/- per month for professional and business purposes with a right to use the latrine (European W.C) and bath provided for by the landlord on the first floor of the said property for its common use by the landlord and the tenants. It was further stated that in the meantime as the respondent no. 1 had some bona fide doubt in respect of the landlordship of Mahant Prem Dass and the petitioner, he stopped paying the rent which resulted in subsequent litigation which were disposed of as compromised between the parties. It was further stated that the actual rate of rent was Rs. 229/- per month which was duly tendered but was refused to be accepted by the petitioner. Consequently, the rent was deposited in the court of Ld. ARC u/s 27 of DRC Act. While denying the allegation of subletting of part of the tenancy premises to the respondent no. 2 and 3, it was stated that whereas respondent no. 2 has no concern whatsoever with respect to the tenancy premises, respondent no. 3 became a joint tenant with the respondent no. 1 with respect to the tenancy E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 3 of 17 //4// premises with the consent and permission of the petitioner/landlord. It was stated that on 05.04.2000, respondent no. 1 expressed his desire to take on rent another room on the second floor of the premises in question for the purpose of running business of his son Sandeep Aggarwal (respondent no. 3 herein). At that time, petitioner demanded a sum of Rs. 1.7 lac as a premium for giving on rent the said room on the second floor and also issued a receipt in favour of respondent no. 3. An agreement dated 05.04.2000 was also executed between the petitioner and respondent no. 3. It was further stated that in the year 2004 as respondent no. 3 Sandeep Aggarwal suffered setbacks in his business, he decided to surrender his tenancy rights in respect of one room on the second floor of the property in question. It was further stated that while so surrendering, when a demand of refund of Rs. 1.7 lac was made by respondent no. 1, petitioner refused to return the same resulting in some dispute between the parties which was finally settled on the terms that in lieu of the amount paid by respondent no. 1 Sh. S.L.Aggarwal, petitioner would treat respondent no. 3 Sh. Sandeep Aggarwal and respondent no. 1 Sh. S.L.Aggarwal as her joint tenants. It was further stated that since then, respondent no. 1 and his son/respondent no. 3 are joint tenants in respect of the two rooms on the first floor (the tenancy premises) with a right to use the European W.C and bathroom on the same floor meant for common use of landlord and tenant. It was further stated that since then the said respondents are running their respective business therefrom without any objection from any corner and the petitioner had also received rent from both the joint tenants from time to time. The other averments of the eviction petition were also denied as false and baseless and a prayer was made to dismiss it with costs.

E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 4 of 17

//5//

3. Replication to the written statement of the respondents was filed wherein the averments made in the eviction petition were reiterated and reaffirmed and those made in the written statement were controverted and denied.

4. Evidence led by the parties In order to substantiate her case, petitioner got examined herself as PW-1 by way of affidavit Ex. P-1 and relied upon the following documents :-

(i) Ex. PW-1/1 is the notary attested judgment and decree dated 17.08.1979 passed in the suit for recovery of arrears of rent preferred by the petitioner herein against the respondent no. 1 herein by Sh. P.R.Thakur, the then Ld. Additional Judge, Small Cause Court, Delhi.

(ii) Ex. PW-1/2 to PW-1/6 are the copies of various rent receipts concerning the petitioner and the respondent no. 1 with respect to the tenancy premises.

(iii) Ex. PW-1/7 is the rent agreement dated 23rd and 24th September, 1968 executed between respondent no. 1 and Mahant Prem Dass.

(iv) Ex. PW-1/8 is the rent note dated 16.10.1975 executed between respondent no. 1 and the petitioner.

(v) Ex. PW-1/9 is the site plan.

(vi) Ex. PW-1/10 is the legal notice dated 24.09.2007 with its postal, UPC and courier receipts.

5. Respondents, on the other hand, got examined respondent no. 1. Sh. S.L.Aggarwal as RW-1 by way of affidavit Ex. R-1 and relied upon following documents :-

(i) Ex. RW-1/1 is the copy of the rent note and agreement which is E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 5 of 17 //6// already Ex. PW-1/7.
(ii) Ex. RW-1/2 is the copy of the rent note which is already Ex. PW-1/8.
(iii)Ex. RW-1/3 (also already Ex. PW-1/R-3) is the possession letter executed by petitioner in favour of respondent no. 3 Sh. Sandeep Aggarwal with respect to letting out of one room on the second floor of the property in question at a monthly rent of Rs. 200/-.
(iv) Ex. PW-1/R-2 is the acknowledgment of receiving of the vacant possession of the room on the second floor by the petitioner from respondent no. 3 Sh. Sandeep Aggarwal.
(v) Ex. RW-1/P-1 to P-7 are the photographs of the tenancy premises.

6. Ld. Counsel for the petitioner and Ld. Counsel for the respondents were heard and the judicial record including the written submissions filed on behalf of the respondents was carefully perused.

7. As is to be seen, the present eviction petition has been preferred by the petitioner against the respondents on the following grounds :-

(a) The non payment of the arrears of rent u/s 14 (1) (a) of DRC Act.
(b) Subletting/parting with the possession of a portion of the tenancy premises by the respondent no. 1 to the respondent no. 2 and 3 and as covered u/s 14 (1) (b) of DRC Act.
(c) Causing of substantial damage to the tenancy premises by the respondents as covered u/s 14 (1) (j) of DRC Act.

8. Before taking up the respective grounds, it is to be seen that in the written statement, respondents took a plea that the tenancy premises is under the joint tenancy of respondent no. 1 and respondent no. 3 w.e.f 05.04.2000. It was on the basis of the said objection taken up by the respondents, that an order u/s 15 (4) instead of s. 15 (1) of DRC Act was passed on 01.02.2010.

E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 6 of 17

//7// Whether or not the respondents have succeeded in establishing that it is not the respondent no. 1 alone who is the tenant in the tenancy premises and that it is the respondent no. 1 and 3 who are the joint tenants, it is the oral and the documentary evidence which becomes the determining factor. Testimony of petitioner who examined herself as PW-1 by way of affidavit Ex. P-1 reveals that there is a reiteration of the averments of the eviction petition in her oral testimony. Besides that, certain documents which as already noted were identified and proved as Ex. PW-1/1 to PW-1/10 respectively were relied upon by the petitioner. Of the said documents, the relevant ones for the purpose of present enquiry are Ex. PW-1/7 and PW-1/8 which are the rent agreement/note dated 23/24.09.1968 and 16.10.1975 respectively. The authenticity of these two documents was not disputed by the respondents, rather the respondents themselves placed reliance upon the said two documents by identifying them as Ex. RW-1/1 and RW-1/2 respectively. A bare perusal of rent agreement Ex. PW-1/7 which is in vernacular shows that it is in two parts, one titled as 'Kiraynama' and the other as 'Ikrarnama'. Both these documents have been executed by respondent no. 1 Sh. S.L.Aggarwal as Sh. S.L.Aggarwal, Advocate s/o Sh. Mohal Lal, Advocate with respect to a room on the first floor of premises bearing no. 3222, Gali Charan Dass, Bazar Hauz Qazi, Delhi. In the document titled 'Ikrarnama', there is a mention that the tenancy premises suits well for the respondent no. 1 as his Advocate's office and would be used as such by the said respondent. Thus, from the documentary evidence in the form of rent agreement Ex. PW-1/7 as relied upon by the petitioner and as admitted by the respondents, it becomes apparent that a portion which comprises one room of the tenancy premises was initially let out to the respondent no.1 alone at a monthly rent of Rs. 100/-.

E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 7 of 17

//8// Coming on to the other rent note Ex. PW-1/8, the authenticity of which is again not disputed by the respondents, it is with respect to the letting out of a room on the first floor adjoining the tenanted room already let out and in possession of the respondent no. 1. This rent note is between the petitioner and the respondent no. 1 alone and is at a monthly rent of Rs. 30/-. It is in continuation of the earlier rent agreement executed between the respondent no. 1 and Mahant Swami Prem Dass as is evident from the continuing para no. 2 thereof. These two documents are sufficient enough to conclude that the tenancy premises was let out to the respondent no. 1 alone initially by Mahant Prem Dass and subsequently by the petitioner herein. The onus was upon the respondents to prove that on account of the happening of the subsequent event dated 05.04.2000 that the said tenancy of respondent no. 1 was changed to be a joint tenancy of respondent no. 1 and 3. It was stated by the respondents in their reply to the para 18 (a) (3) of the eviction petition that on 05.04.2000 respondent no. 1 Sh. S.L.Aggarwal desired to take on rent a room on the second floor of the premises in question for running the business of his son/respondent no. 3 and while letting out the said room, it was stated that petitioner demanded and was paid a premium of Rs. 1.7 lac. It was further stated that in the year 2004 as the respondent no. 3 suffered some setback in his business, he surrendered the tenancy with respect to the room on the second floor of the property in question. It was further stated that while so surrendering, respondent no.1 made a request to the petitioner to refund the premium amount of Rs. 1.7 lac which was refused to be refunded by the petitioner. It was further stated that consequently a dispute arose which was finally settled with the acceptance of respondent no. 1 and 3 as the joint tenants with respect to the tenancy premises by the petitioner/landlord. Cross E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 8 of 17 //9// examination of the petitioner/PW-1 would go on to show that she has not been cross examined with respect to the aforesaid alleged settlement and acceptance of respondent no. 1 and 3 as joint tenants. The only suggestion which was given and denied by the petitioner was with respect to a payment of Rs. 1.74 lacs by the respondent no. 3 Sh. Sandeep Aggarwal at the time of his induction as a tenant on the second floor of the premises in question. While denying the said suggestion, petitioner stated that she took the amount from the erstwhile tenants Sh. Om Parkash and Sh. Vijay Kumar and it was after obtaining the amount from them, that the room was given to respondent no. 3 Sh. Sandeep Aggarwal. Strangely, no suggestion was given to the petitioner to the extent that no such amount was ever paid to her by the erstwhile tenants Sh. Om Parkash and Sh. Vijay Kumar and this amounts to an admission of the said fact by the respondents. Coming on to the testimony of respondent no. 1 who was examined as RW-1, in his cross examination, he stated that petitioner admitted his son as her tenant in the rent agreement Ex. PW-1/R-3 which is with respect to both first and second floor. Besides that, he stated that he has no rent receipt or other document to show that his son is a tenant on the first floor of the premises in question. A bare perusal of Ex. PW-1/R-3 which is a possession letter executed by the petitioner reveals that it is with respect to one room measuring 16'5" X 9'5" on the second floor of property bearing no. 3222, Gali Charan Dass, Hauz Qazi. It mentions that the said room was earlier let out by the petitioner to Sh. Om Parkash and Sh. Vijay Kumar at a monthly rent of Rs. 200/-. It further mentions that Sh. Om Parkash died on 15.11.1999 leaving behind his LRs. It also mentions that the legal heirs of Sh. Om Parkash and the other joint tenant Sh. Vijay Kumar have handed over the vacant possession of the aforesaid room which is now let out E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 9 of 17 //10// to Sh. Sandeep Aggarwal (respondent no. 3 herein) w.e.f 05.04.2000 at a monthly rent of Rs. 200/-. The said document nowhere acknowledges respondent no. 3 as a tenant alongwith the respondent no. 1 with respect to the tenancy premises. In the absence of any other documentary evidence, it is apparent that the respondents have failed to even prima facie establish that at any point of time, respondent no. 3 was ever admitted to be a joint tenant alongwith the respondent no. 1 with respect to the tenancy premises by the petitioner. Thus, it stands concluded that it is the respondent no. 1 alone who was the tenant of the petitioner with respect to the tenancy premises as shown in red in the site plan Ex. PW-1/9.

9. Now coming on to the respective grounds u/s 14 (1) (a), (b) and (j) of the DRC Act, the same are taken up for consideration as herein under :-

Case of the petitioner u/s 14 (1) (a) of DRC Act Ld. counsel for the petitioner argued that service of the legal demand notice Ex. PW-1/10 is an admitted fact by the respondents. It was further argued that the rate of rent as enhanced and as mentioned in the said notice was Rs. 252/- per month at the relevant time and that notwithstanding the fact that rent was subsequently deposited u/s 27 of DRC Act, it cannot be taken as a valid tender/deposit of rent as it was deposited @ Rs. 229/- per month and not Rs. 252/- per month as demanded.
Ld. counsel for the respondents, on the other hand, argued that not only there is an admission by the petitioner in her cross examination about the deposit of arrears of rent by the respondent no. 1 /tenant u/s 27 of DRC Act, even the respondent no. 1 in his cross examination was not given any suggestion as to his being in arrears of rent on or after the service of legal demand notice Ex. PW-1/10.
E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 10 of 17
//11// As already noted, it has been observed and concluded that with respect to the tenancy premises, it was the respondent no. 1 alone who was the tenant of the petitioner. Once the relationship of landlord-tenant between the parties is established, the next question would be as to what was the rate of rent. Admittedly, petitioner besides her oral testimony, relied upon the copy of the counter rent receipts which were identified as Ex. PW-1/2 to PW-1/6 respectively. Perusal thereof would reveal that the said counter rent receipts are neither bearing the signatures of the petitioner/landlord nor of the respondent/tenant Sh. S.L.Aggarwal. Only one of the rent receipt which is Ex. PW-1/5 bears the signature of respondent no. 3 Sh. Sandeep Aggarwal but is with respect to the tenancy of a room on the second floor of the premises in question which as per the case of the respondents was subsequently surrendered to the petitioner. Thus, there is no document on record to show or establish that as on the date of issuance of legal demand notice Ex. PW-1/10, the rate of rent was Rs. 252/- per month. Once the petitioner fails to establish the monthly rate of rent as Rs. 252/-, the necessary conclusion would be that the rate of rent was Rs. 229/- per month as on the date of the service of legal demand notice. Even otherwise, as rightly contended by the Ld. counsel for the respondents that the respondent no. 1 who was examined as RW-1 was not at all cross examined with respect to his being in arrears of rent on or after the service of the legal demand notice. Further, once there is an admission by the petitioner in her cross examination that the rent was deposited by the respondent u/s 27 of DRC Act and copy of the treasury challan having been filed on record by the respondents which is within the period of two months of the service of the legal demand notice, it stands concluded that respondent no. 1 was not in arrears of rent as on the E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 11 of 17 //12// date of filing of the eviction petition as the rent stood already deposited u/s 27 of DRC Act. Hence, the eviction petition u/s 14 (1) (a) of DRC Act is dismissed being devoid of any merits.
Case of the petitioner u/s 14 (1) (b) of DRC Act Ld. counsel for the petitioner argued that respondent no. 1 who was examined as RW-1 in his cross examination admitted that the photographs marked RW-1/P1 to RW-1/P7 are that of the shop of his son. It was further argued that insofar as the claim of the respondent no. 3 as a tenant in the tenancy premises is concerned, respondent no. 1/RW-1 stated that petitioner admitted his son as a tenant in the rent agreement Ex. PW-1/R3. Ld. counsel for the petitioner further argued that a bare perusal of Ex. PW-1/R3 reveals that it is only with respect to creation of tenancy in favour of the respondent no. 3 with respect to a room on the second floor of the premises in question which was got vacated by the petitioner from the earlier tenants. It was further argued that respondents in their written statement have admitted that respondent no. 3 is carrying on his respective business from a portion of the tenancy premises and this in itself is an admission of parting of possession of a portion of the tenancy premises by the respondent no. 1 to respondent no. 3 and it falls under the provisions of section 14 (1) (b) of DRC Act.
Ld. counsel for the respondents, on the other hand, argued that to prove the fact of subletting, petitioner has to prove not only the parting of the possession to the sub tenant by the tenant but also the parting of the possession with a consideration. Ld. counsel for the respondents further argued that not only the petitioner failed to establish any of the essentials of section 14 (1) (b) of DRC Act, even in her cross examination she admitted that respondent no. 1 is having control over the tenanted premises. Ld. counsel for E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 12 of 17 //13// the respondents, thus, submitted that in view of the categorical admission of the petitioner regarding the respondent no. 1 having control over the tenanted premises, the case of the petitioner u/s 14 (1) (b) falls flat on the ground. Ld. counsel for the respondents while so arguing also relied upon the following two citations :- (i) Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and others, AIR 1987 Supreme Court 1782 and (ii) M/s Bharat Sales Ltd. Vs. Life Insurance Corporation of India, AIR 1998 Supreme Court 1240.
Before taking up the respective contentions, it is deemed fit to make a mention of section 14 (1) (b) of DRC Act. Section 14 (1) (b) of DRC Act provides "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".
As is apparent, the aforesaid provision takes within its fold three different expressions 'sublet', 'assigned', or 'otherwise parted with the possession'. In order to constitute subletting, there must be parting of the legal possession which means the right to include and the right to exclude others. In case of subletting, there exists a relationship of landlord-tenant as between the tenant and his subtenant. Insofar as parting with possession is concerned, it means that the tenant has divested or abandoned the right to possession. In case of assignment, the tenant has to divest himself of all the rights that he has as a tenant. Nonetheless, in all the three expressions, there must be a transfer of the legal possession of the whole or part of the demised premises to person or persons other than the tenant. In Helper Girdharbhai's case (supra), it was held by the Hon'ble Supreme court that "there cannot be a subletting unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 13 of 17 //14// possession is not enough to create a sub lease". In M/s Bharat Sales Ltd. case (supra), it was observed by the Hon'ble Supreme Court that "sub- tenancy or sub letting 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 sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump- sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 14 of 17 //15// 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 sub let".
Coming on to the facts of the present case, whereas petitioner claimed that a portion of the tenanted premises has been parted with by the tenant/respondent no. 1 to the other respondents, on the other hand, respondents in their written statement took a plea that whereas respondent no. 2 has no concern with the tenancy premises, respondent no. 1 and 3 are the joint tenants in the tenancy premises and are running their respective business therefrom without any objection. As already noted, this plea of the joint tenancy of the respondent no. 1 and 3 has not been established on record by the respondents. The necessary conclusion thereof would be that whereas respondent no. 1 is in possession of part of the tenancy premises in the capacity of being a tenant of the petitioner, respondent no. 3 is in possession of the other portion of the tenancy premises without any consent or permission of the petitioner/landlord. Merely because petitioner/PW-1 in her cross examination admitted that respondent no. 1 is still having the control of the tenanted premises, it cannot change the existing state of affairs that the respondent no. 3 is in exclusive possession of a portion of the tenancy premises and is running his business therefrom. Going further, respondent no. 1/RW-1 in his cross examination admitted that photographs Ex. RW-1/P1 to P7 are those of the shop of his son/respondent no. 3. As is apparent from the said photographs, it establishes the exclusive possession of the respondent no. 3 in a portion of the tenancy premises to the exclusion of the respondent no. 1. It was held by the Hon'ble High Court of Delhi in Hari Chand (deceased) Thru LRs Vs. Rajender Nath & Ors., RC. S.A. NO.
E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 15 of 17
//16// 16/2002 DOD 22.11.2010, that "once it is proved that a third person, which may be a relation or even a son, is in possession of the suit property not just to assist the father, it establishes parting with the possession of the suit property and unless and until there is a written permission of the landlord to act in that manner, the mischief of section 14 (1) (b) of the DRC Act is attracted". In the present case as well, it is not the case of the respondents that respondent no. 3 is only assisting the respondent no. 1 in his profession of running an advocate office from the tenancy premises, rather as already noted, the case as projected by the respondents was that in the year 2000, one room on the second floor of the premises in question was let out to respondent no. 3 by the petitioner with a premium amount of Rs. 1.7 lacs. When the said tenancy was subsequently surrendered in the year 2004, the premium amount was asked to be refunded and was refused by the petitioner which resulted in a dispute between the parties. Subsequently, the dispute resolved with the petitioner accepting respondent no. 1 and 3 as the joint tenants with respect to the tenancy premises and since then they are running their respective business. This plea of the respondents as already noted and discussed could not be established by them. Resultantly, parting of possession of a portion of the tenancy premises by the respondent no. 1 to the respondent no. 3 gets established. Thus, petitioner succeeds in establishing her case u/s 14 (1) (b) of DRC Act.
Case of the petitioner u/s 14 (1) (j) of DRC Act Ld. counsel for the respondent argued that insofar as the causing of substantial damage to the tenancy premises is concerned, not only the affidavit of the petitioner is completely silent, even in her cross examination E-155/09/08 Mahant Savita Rani Vs. Surender Aggarwal & Ors. Page 16 of 17 //17// petitioner admitted that there is only a plywood partition in the tenancy premises. It was further argued that a mere erection of plywood partition cannot in itself be said to be causing substantial damage to the tenancy premises.
Ld. counsel for the petitioner, on the other hand, made no submissions insofar as causing of substantial damage to the tenancy premises is concerned.
It is to be seen that petitioner neither through her oral testimony nor through the documentary evidence could establish her case of causing of substantial damage to the tenancy premises by the respondents. Even the eviction petition was vague to the extent that there was no mention as to in what way and manner substantial damage has been caused to the tenancy premises. The end result thereof is that the petitioner fails to establish her case u/s 14 (1) (j) of DRC Act.

10. In view of the foregoing, the present eviction petition filed by the petitioner is allowed only u/s 14 (1) (b) of DRC Act and an eviction order in favour of the petitioner and against the respondents is hereby passed in respect of the tenancy premises which are two rooms measuring approx. 15 X 15 sq. ft and 11 X 7 sq. ft on the first floor of property bearing no. 3222, Gali Charan Dass, Mohalla Dasan, Hauz Qazi, Delhi-06 and more specifically shown in red in the site plan Ex. PW-1/9. No orders as to costs.

File be consigned to record room.

(Announced in the open court
on 31.05.2013)                                          (Satish Kumar Arora)
                                                      ARC-1/Central/THC/Delhi




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