Delhi District Court
Sh. Subhash Chand Gupta vs S. Baljeet Singh on 2 March, 2020
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25678/2016
Sh. Subhash Chand Gupta,
S/o Late Sh. Jagdish Chand Gupta
R/o WZ-93, Main Najafgarh Road
Tatarpur, Tagore Garden,
New Delhi-110015. .... Petitioner
VERSUS
S. Baljeet Singh
S/o S. Gurdayal Singh
R/o A-111, Tagore Garden Extn.
Najafgarh Road,
New Delhi-110027.
2nd Address:
8A/16, Ground Floor and
8A/16A, 1st Floor, Tatarpur,
Main Najafgarh Road,
Tagore Garden,
New Delhi-110027. .... Respondent
Date of Filing : 12.07.2013
Date of Judgment : 02.03.2020
JUDGMENT
1. Brief facts of the present case are that on 12.07.2013, the petitioner filed the present petition Under Section 14 (1) (a) & (b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an order for eviction in favour of the petitioner and against the respondent in respect of the premises i.e. Private shop no. 16 on the ground floor and 16A on the first floor forming part of property No. 8-A, Tatarpur, Main Najafgarh Road, Tagore Garden, New Delhi ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 1 of 27 as shown red in the site plan annexed with the petition (hereinafter referred to as "tenanted premises").
2. It is averred by the petitioner that Sh. Jagdish Chand Gupta, the father of the petitioner had been the owner/landlord of property bearing No. 8-A, Tatarpur, Main Najafgarh Road, Tagore Gaden, New Delhi-110027 who unfortunately expired leaving behind two sons and one daughter. That the petitioner being one of the owners of the property is competent and powerful for filing the present petition.
It is further averred by the petitioner that the respondent was inducted as tenant by the father of the petitioner in shop no. 16 at ground floor in the tenanted premises and thereafter the respondent requested the father of the petitioner and the petitioner to become the tenant at the first floor of the shop no.
16. That at the request of the respondent, the first floor was constructed and the number to the first floor shop was given as 16A and as such the respondent became the tenant of the petitioner in respect of both the shops.
It is also averred by the petitioner that the rate of rent has been settled at Rs. 700/- per month for each shop excluding electricity and other charges. That the electricity connection was installed in the tenanted premises in the name of respondent which is now being used by the sublettee Sh. Inder Mohan Sethi S/o Sh. Bhagwan Singh Sethi. That the respondent has neither paid nor tendered the arrears of rent to the petitioner w.e.f. 01.08.2008 till the date.
It is further submitted by the petitioner that the legal notice dated 26.03.2013 has been served upon the respondent at his residential address. That the respondent despite the ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 2 of 27 service of the notice has neither complied with the requisites of the notice nor has replied the same.
It is further averred by the petitioner that the respondent without written consent or permission of the father of the petitioner and the petitioner created a sublettee in the shop of ground floor and the first floor to one Sh. Inder Mohan Sethi S/o Sh. Bhagwan Singh Sethi, who by creating and affixing a door in the wall of his tenanted shop has taken the possession and is running his business in the tenanted premises, which are the shops under the tenancy of the respondent. That the respondent, without the written consent and permission of the petitioner, has crated a sublettee in the tenanted premises i.e. Sh. Inder Mohan Sethi S/o Sh. Bhagwan Singh Sethi, who has taken the exclusive possession of the tenanted premises. That the sublettee Sh. Inder Mohan Sethi opens and closes the tenanted premises by his own keys and is running his business in the name and style of M/s Sethi Motors (Commission Agents).
Lastly, it is prayed by the petitioner that an eviction order may be passed against the respondent.
3. Written Statement was filed by the respondent in response to petition filed by the petitioner U/S 14 (1)(a) & (b) of D.R.C Act, 1958 praying to the court to dismiss the present petition with costs.
In his written statement, the respondent has inter-alia submitted that the petitioner has filed the present application for the eviction of the tenanted premises. The respondent is running his business in the Khasra No. 9/19 of Village Tatarpur, Delhi which is not a private property, the owner of the said ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 3 of 27 property is DDA. Therefore, there is no relationship of landlord and tenant between the petitioner and respondent. That respondent is not tenant of the petitioner. That respondent is an unauthorised occupant of the public premises/ land of Delhi Development Authority situated in the Khasra No. 9/19 of Village Tatarpur since 1978 New Delhi and running his business. That the respondent regularly paid the damage charges to the land owing agency i.e. DDA since the year 1980. That the land owning agency DDA gave No Objection Certificate to the respondent for the installation of electric meter in the year 1987. That the land owing agency DDA has issued show cause notice many times to the respondent since 1980. That after the satisfactory explanation given by the respondent, DDA did not remove the respondent till date. That the respondent is running his business in the Khasra No. 9/19 of village Tatarpur, New Delhi, not on the private shop as shown by the petitioner. That the owner of the land is DDA and the construction was raised by the respondent on it.
It is wrong and denied that the respondent received legal notice dated 26.03.2013. It is wrong that respondent has given the possession of Khasra No. 9/19 to Sh. Inder Mohan Singh. That the respondent is working in the premises as on date.
Lastly, it is prayed by the respondent that the present eviction petition may be dismissed.
4. Record reveals that replication has also been filed by the petitioner to the written statement filed by the respondent. The petitioner has denied all the allegations levelled by the respondent and reiterated and reasserted all the facts as stated in the petition.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 4 of 275. Thereafter, the matter was fixed for Petitioner's Evidence. The petitioner examined Sh. Dinesh Kumar, JJA from Record Room (Civil), Tis Hazari Courts as PW-1, Sh. Mukesh Kumar, LDC from Property Tax as PW-2. Petitioner also examined himself as PW-3. All the witnesses were cross examined at length and thereafter Petitioner's Evidence was closed by the petitioner.
On the other hand, respondent examined Sh. Lalit Bidhuri, Patwari from DDA as RW-1, Sh. Sanjay Bhatia, AFO from BSES, Sh. Surender Kumar as RW-3 and Sh. Vivek Chaudhary, ASO, DDA as RW-4. Respondent also examined himself as RW-5 and Sh. Amit Gupta, AAO, Damage Section, DDA as RW-6. Thereafter, respondent closed his evidence.
6. I have heard the arguments advanced by Ld. Counsels for both the parties. I have also carefully gone through the testimonies of all the witnesses, documents, material on record and case law relied upon.
LAW ON SEC. 14(1) (a) D.R.C. ACT:-
7. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14. Protection of tenant against eviction- (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 court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 5 of 27 make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882)."
As such, the following are the ingredients of section 14(1) proviso (a) :-
(i) There should be a relationship of landlord and tenant between the parties.
(ii) There should be a non-payment or tendering of whole arrears of legally recoverable rent within two months of service of legal notice upon the tenant given by the landlord.
8. Let us discuss the ingredients of Sec. 14(1)(a) D.R.C. Act.
(i). Relationship of Landlord and Tenant:-
9. Perusal of record shows that in the present case, the petitioner has claimed that his father Sh. Jagdish Chand Gupta was the landlord/owner of the tenanted premises and after his death, he along with his brother became the owner of the tenanted premises and being one of the owners, he is competent to file the present eviction petition. That respondent was inducted as tenant by father of petitioner in shop no. 16 on the ground floor in No. 8A, Tatarpur, Delhi. That thereafter, shop on the ground floor which was numbered as 16-A was also ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 6 of 27 given to the respondent on rent. That rent of each shop was Rs. 700/- per month and the respondent has not paid or tendered the rent w.e.f. 01.08.2008 till date.
On the other hand, the stand of the respondent is that petitioner or his father was and is not the landlord and owner of the tenanted premises and there is no relationship of landlord tenant between the parties and DDA is the owner of the tenanted premises/suit premises and the respondent is an unauthorised occupant of the tenanted premises/ suit premises since 1978 and he is paying damages to the DDA since 1980.
10. I have perused the record and all the documents placed on record by the petitioner as well as respondent.
It is well settled law that the petitioner need to prove only landlordship while the case is U/Sec. 14(1)(a) & (b) of D.R.C. Act and he need not to prove his ownership. Although, the petitioner has to prove landlordship as well as ownership U/Sec. 14(1)(e) of the D.R.C. Act but he need not to prove ownership in absolute terms and he merely has to prove that he is something more than the tenant.
11. In the present case, the respondent himself has admitted that he is an unauthorised occupant of the public premises. Although, he has claimed that the DDA is the owner of the suit premises but he has not placed on record any document in respect of ownership of the DDA. Although, the respondent has placed on record copies of certain documents showing the payment of damages to the DDA but these documents do not show that the petitioner is not the landlord of the suit premises/tenanted premises. It merely shows the payment of ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 7 of 27 damages.
I have also perused the testimonies of the witnesses on record including the testimony of respondent Sh. Baljeet Singh, who has been examined as RW-5. It is expedient to reproduce the relevant portion of testimony of RW-5 which is as under:-
"I am occupation in property no 8A Tatarpur for the last more than 30 years. It is correct that I have mentioned in my affidavit EX. RW 5/A that I am running business in the property bearing Khasra no. 9/19, Village Tatarpur, Delhi since 1978. Prior to making the first payment as damages to the DDA. I was running my business in property no. 8A Tatarpur Delhi about last 5 years.
Q: What was your status in property no. 8A, Tatarpur prior to making the payment to the DDA ?
Ans: I was the owner in premises in my occupation property no. 8A Tatarpur, prior to pay the damage to DDA. (Vol. I myself had constructed the same property).
It is correct that father of the petitioner Sh. Jagdish Gupta had filed a case against me in year 1983. I was not aware about the nature of the case which was filed by the father of the petitioner Sh. Jagdish Gupta. It is correct that the said proceedings filed by Sh. Jagdish Gupta pertaining to another shop of Property no. 8A Tatarpur. It is correct that in the year 1983, I was holding only one shop bearing no. 8A/2 in property no. 8A, Tatarpur for which the father of the petitioner had filed and an eviction petition against me. It is correct that the eviction petition filed by the father of the petitioner vide suit No. 436/83 was allowed by the court of Sh. J.M. Malik, the then Ld. Rent Controller, Delhi. I did not file an appeal against the eviction order dated 01.03.1986. The shop under eviction was sold and transferred by me to one Raavan. I do not remember whether the shop under eviction was sold and transferred by me prior to or during the pendency of eviction proceedings or after passing the eviction order dated 01.03.1986. I do not remember if along with other tenant namely Sh. Surat Singh, Sh. Subhash Chander, Sh. Ravinder Pal Singh, Sh. Satnam Singh had filed an appeal against the order of depositing the rent of the shop in favour of the father of the petitioner. I also do not remember that on our appeal bearing appeal no. 797/85 in which I was the appellant no, 1, had been pleased to dismiss our appeal, confirming the order ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 8 of 27 of payment of arrears of rent in favour of Sh. Jagdish Chand Gupta. The father of petitioner some time had been issuing the rent receipt to me in respect of shop no. 8A/2, Tatarpur Delhi..... ..... I have been paying the damages to the DDA during the pendency of the litigation filed by the father of the petitioner suit no. 436/83 titled as Sh. Jagdish Chand Gupta Vs Sardar Baljeet Singh. I do not remember if the trial court had been pleased to direct me to deposit the arrears of rent in favour of Sh. Jagdish Chand Gupta the father of the petitioner herein. I can not tell when I first time deposited or paid the damages to the DDA. The rent of the shop bearing no.8A/2 was Rs.100/- per month approximately. I do not know what documents were filed by me at the time of filing my W.S. I do not know any person named Sh. D.S. Anand. I also do not know any person named Sh. D.S. Anand who is occupant in Khasra No.9/19 property No.8A, Titarpur, Delhi. Vol. The DDA has entered the wrong name as Sh. D.S. Anand instead of Sh. B.S. Anand. I have come to know the wrong entry of the my name in the DDA record just today by showing the document to me. I can not identify the document/paper which is a typed carbon copy which has been filed by me along with my W.S. and which is the next page of Annexure B of my W.S. and which is now marked as P1. Vol. I am not conversant with English language. I do not remember till which year I had paid the damages to the DDA. Vol. The record is available on the file subsequent thereof no one from DDA came to collect the same. I had gone to DDA office for depositing the damages after March, 1981. I had deposited the damages after 1981. The witness has been shown the file and after having looked at the file he submits that that no such document in respect of the payment of damages after March, 1981 has been filed on record. I do not know if I have filed any document in respect of payment of damages to the DDA pertaining to the shop bearing no. 8A/16 and 16A, Titarpur, Delhi. I had paid the damages to the DDA in respect of 8A/16 and 16A, Titarpur, Delhi even after coming the judgment of eviction against the shop bearing no. 8A/2, Titarpur, Delhi. The witness has been shown the file and no such document for making the payment of damages in respect of 8A/16 and 16A found in the court file. I have no knowledge if Sh. Jagdish Chand Gupta had filed the suit against MCD in the year 1997. I have seen the original AD Ex.PW3/4 I recognised the signature at point X of Smt. Darshan Kaur who is my wife. I can not admit or deny whether I had sent ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 9 of 27 any reply to the said legal notice. It is wrong to suggest that I am not the tenant of petitioner. It is wrong to suggest that I have not paid and I am not paying the damages in respect of shop no.8A/16 and 16A, Titarpur, Delhi to the DDA. It is wrong to suggest that I am in arrears of rent in respect of shop no.8A/16 and 16A, Titarpur, Delhi. It is wrong to suggest that I have sub-let the shop under the tenancy to one Sh. Inder Mohan Singh. It is wrong to suggest that I am not in possession of the tenanted shop bearing shop. 8A/16 and 16A, Titarpur, Delhi. I do not know if Sardar Raghubir Singh is the tenant under the petitioner just adjacent of my shop. I do not work of any kind now a days. Vol. I am doing property dealing business but since I am not keeping good health, for that reason I am going to the shop not so frequently. I am doing the business of property dealing while Sh. Inder Mohan is doing automobile business. Sh. Inder Mohan Singh helping me in my business as I am not keeping good health. I do not demand anything in writing in respect of any work carried out by Sh. Inder Mohan Singh in my absence in my shop. Vol. It was all oral. I had told to my Lawyer to mention my W.S in respect of the fact that Sh. Inder Mohan Singh will be carrying my business in my absence. However, I have not instructed my Counsel about the fact deposed by me in my absence I will not claim the written balance confirmation from Sh. Inder Mohan in the W.S as there was no such situation. I do not remember what legal status of Sh. Inder Mohan Singh was told to my Lawyer at the time of drafting the W.S. of this case. It is wrong to suggest that I have mentioned in my W.S that Sh. Inder Mohan Singh is my partner in the tenanted shop. It is wrong to suggest that I have sub-let the tenanted shop to Sh. Inder Mohan Singh or I am receiving the rental from Sh. Inder Mohan Singh. It is wrong to suggest that I am deposing falsely."
12. Perusal of testimony of respondent shows that he himself has admitted that the father of the petitioner was sometime issuing the rent receipt to him in respect of shop no. 8A/2, Tatarpur, Delhi. As such, the respondent himself has admitted that petitioner is the landlord of the suit property no. 8A, Tatarpur, Delhi as he himself admitted the fact of issuance of rent receipt in respect of Shop no. 8A/2, Tatarpur, Delhi.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 10 of 2713. In my considered view, when the father of the petitioner was not the landlord of the property No. 8A, Tatarpur, Delhi then why the respondent was getting the rent receipt from the father of the petitioner in respect of property no. 8A, Tatarpur, Delhi. No plausible explanation has been given by the respondent in this regard. Moreover, the respondent has admitted that eviction petition was filed by father of the petitioner Sh. Jagdish Gupta against the respondent in respect of another shop of property No. 8A, Tatarpur, Delhi bearing No. 436/83. It is also admitted by the respondent that the aforementioned petition was allowed by the court of Sh. J.M. Malik, the then Ld. Rent Controller Delhi and thereafter, no appeal against the eviction order dated 01.03.1986 was filed by the respondent. I have also perused the certified copy of the judgment dated 01.03.1986 which shows that the respondent himself has admitted that Sh. Jagdish Chand Gupta, petitioner therein used to charge the amount per month from the respondent.
Record also shows that afore-mentioned judgment dated 01.03.1986 was upheld by the then Ld. ARCT. Moreover, during the cross-examination, the respondent has not denied the dismissal of appeal against the judgment dated 01.03.1986. Moreover, in the written statement, the respondent has claimed to be an unauthorised occupant of suit premises/tenanted premises but during the cross-examination, he has claimed to be owner of the suit premises/tenanted premises in property no. 8A, Tatarpur, Delhi.
14. Perusal of record shows that during the cross- examination, he was unable to inform the court the period from which he started depositing or paying the damages to the DDA.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 11 of 27Moreover, he has also deposed that he does not remember till which year, he had paid the damages to the DDA. But later on, he deposed that he deposited the damages after 1981 but when the record was shown to him to look for such documents in respect of payment of damages after March, 1981, he deposed that he does not know whether he has filed any document in respect of payment of damages to DDA pertaining to shop bearing No. 8A/16 and 16-A, Tatarpur, Delhi.
I have carefully and minutely gone through the entire testimonies of entire witnesses including the respondent. Testimonies of all the witnesses, documents and material on record show that there exists the relationship of landlord/tenant between the parties. Even, Ex. RW-4/1, RW-6/1 do not show that damages were being paid by the respondent Sh. Baljeet Singh in respect of suit premises no. 8A/16 and 8A/16A.
I have also perused the other documents on record. Ex. PW-2/A and Ex. PW-2/B i.e. Survey Report done on 15.01.1980 regarding tax shows that the name of respondent Sh. Baljeet Singh has been mentioned as tenant whereas the name of Sh. Jagdish Chand Gupta has been mentioned as Tax-payer.
15. In view of the discussion earlier and material on record, it is proved that there exists relationship of landlord-tenant between the parties.
(ii). Service of Legal Demand Notice:-
16. Perusal of record shows that the petitioner has claimed to have given legal demand notice Ex. PW-3/2 through postal receipts Ex. PW-3/3 and acknowledgement card Ex. PW-3/4.
On the other hand, the respondent has claimed to have ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 12 of 27 not received such legal demand notice.
It is expedient to reproduce the relevant portion of evidence of Sh. Baljeet Singh which is as under:-
"I have seen the original AD Ex.PW3/4 I recognised the signature at point X of Smt. Darshan Kaur who is my wife. I can not admit or deny whether I had sent any reply to the said legal notice."
17. As such, respondent himself has admitted the signature of Smt. Darshan Kaur, who is his wife on the AD card Ex. PW- 3/4. Moreover, perusal of testimony shows that he has neither admitted nor denied sending of any reply to the legal demand notice issued by the petitioner.
18. It is pertinent to reproduce the section 27 of General clauses Act which is as under :-
Section-27--Meaning of service by post--where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
In the case titled as K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble Supreme court observed :-ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 13 of 27
"The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
Section 114 of Indian Evidence Act, 1972 lays down as under:-
114: Court may presume existence of certain facts. That the court may presume existence of any fact which it thinks likely to have happened, regard being head to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations:
The court may presume-
(a)...
(b)...
(c)...
(d)...
(e)...
(f) That the common course of business has been followed in particular cases; -
(g)....
(h).....
(I).....
but the court shall also have regard to such facts as the following, in considering whether such maxim do or do not apply to the particular case before it:-"
As to illustration (a).....
As to illustration (b).....
As to illustration (c).....
As to illustration (d).....
As to illustration (e).....
As to illustration (f): The question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g).....
As to illustration (h).....
As to illustration (i)........"ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 14 of 27
19. It is well settled law that this presumption is a rebuttable presumption. If there is any such circumstance weakening such presumption, it cannot be ignored by the court. Moreover, presumptions U/Sec. 27 of General Clause Act and Sec. 114 of the Indian Evidence Act is always there to support the fact of service of such legal demand notice. Moreover, nothing concrete has been done by the respondent to rebut such presumption. Hence, service of legal demand notice as stipulated U/Sec. 14(1)(a) of D.R.C. Act is proved.
(iii). Non payment of rent:-
20. Perusal of record shows that in the present case, the petitioner has claimed that the respondent has not paid or tendered the rent w.e.f. 01.08.2008 @ Rs. 1400/- p.m. (Rs. 700/- for each shop). On the other hand, the respondent has disputed the landlordship and ownership of petitioner and claimed that he is not the tenant of the petitioner or his father and he is an unauthorised occupant of the tenanted premises and paying damages to the DDA. Hence, the stand of the respondent is that he is not liable to pay or tender the rent to the petitioner.
21. As discussed earlier exhaustively while dealing the ingredient in respect of landlordship that there exists a relationship of landlord and tenant between the parties. As such, this plea of the respondent has vanished as neither cogent and convincing document has been filed nor evidence has been led to substantiate such plea. As such, it is undisputed fact that the petitioner has not paid or tendered or deposited the rent in favour of petitioner.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 15 of 27It is well settled that the petitioner is entitled to arrears of legally recoverable rent only i.e. three years prior to filing of eviction petition.
As such, admission made by the respondent makes it clear that the respondent has not tendered, paid or deposited the rent in favour of petitioner. Moreover, it is not the case of the respondent that he deposited the rent U/Sec. 27 of D.R.C. Act. No cogent and convincing evidence has been led to prove the fact of payment or deposit of the rent in favour of petitioner. Instead the respondent himself has admitted that he has not paid or tendered or deposited the rent in favour of the petitioner. Moreover, it is not the case of the respondent that he has complied with the legal demand notice issued by the respondent within two months of service thereof.
22. As such, it is clear that this ingredient U/Sec. 14(1)(a) of D.R.C. Act is also satisfied.
CONCLUSION :-
23. In view of the aforesaid discussion and settled proposition of law, this court has come to the conclusion that the petitioner has satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of the tenanted premises i.e. Private shop no. 16 on the ground floor and 16A on the first floor forming part of property No. 8-A, Tatarpur, Main Najafgarh Road, Tagore Garden, New Delhi as shown red in the site plan Ex. PW-3/1.
24. It is pertinent to mention that no order U/Sec. 15(1) D.R.C. Act was passed by the Ld. Predecessor or by this court.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 16 of 27As such, in view of the material on record and discussion as earlier, an order U/Sec. 15(1) D.R.C. Act is passed directing the respondent to pay or tender or deposit the rent @ Rs. 1400/- (for both the shops) as demanded by the petitioner in the legal demand notice and in the petition w.e.f. 12.07.2010 (Legally recoverable rent) till date along with simple interest @ 15% p.a. within one month from the date of this order and he is further directed to pay or tender or deposit the future rent in favour of the petitioner at the same rate i.e. Rs. 1400/- p.m. on or before the 15th day of each succeeding English calendar month.
25. Nazir is directed to file his report on 04.04.2020. regarding compliance of order U/Sec. 15(1) D.R.C. Act passed by this court today.
26. Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
Section 14 (1) (b) Sub-letting:-
27. It is expedient to reproduce the Section 14 (1)(b) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (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 court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 17 of 27 manner, make an order for 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, sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord".
28. As per D.R.C. Act, Section 14 (1)(b) D.R.C. Act is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely prohibited by the law or by the Delhi Rent Control Act but the subletting should be with the consent of landlord and such consent should be in writing. Section 14 (1)(b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
(ii). No consent in writing was taken from the landlord by the tenant.
29. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 18 of 27 clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting take place only when there divesting of physical possession as well as of the right to possession. In other words, there must be vesting of possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant keeps the control with him, it can not be said that sub-tenant is in exclusive possession of premises and in such situation the case does not fall within Section 14 (1)(b) D.R.C. Act.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
30. In the case titled as Vaishakhi Ram & Others Vs Sanjeev Kumar Bhatiani 2008, 14 SCC, it was held as under:-
"21. It is well settled that the burden of proving subletting is on the landlord but if the landlord proves that the subtenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of subletting."
In the case titled as Associated Hotels of India Limited Delhi Vs. S.B. Sardar Ranjit Singh, 1968, AIR (SC) 933, it was held that when eviction is sought on the ground of subletting, this onus to prove subletting is on the landlord. If the landlord prima facie shows that the occupant who was in ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 19 of 27 exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
In the case titled as Prem Parkash Vs. Santosh Kumar Jain & Sons and another, 2017, law suit (SC) 872, the relevant para is as under:-
"18. sub-tenancy or subletting comes into existence when the tenant gives a 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 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 in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet, had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sublease. It may be paid in cash ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 20 of 27 or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to have been 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 is permitted to draw its own inference upon the fact of the case."
In the case titled as Munshi Ram Vs Bhoj Ram through LRs in C.M. (M) No.1612/2010 and C.M. No.8004/2005, wherein it was observed as under:
"It is well settled that to make out a case for subletting or parting with possession, it means giving a 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. The word 'subletting' necessarily means transfer of an exclusive right to enjoy the property in favour of the third party."
In the case titled as Shalimar Tar Products Ltd. Vs H.C. Sharma, 1988, 1 (SCC) 70, the Hon'ble Apex Court noted that to constitute a subletting, there must be a parting with a legal possession and whether in a particular case, there was subletting or not, was a question of fact.
It is well settled that to establish the aforesaid ingredients, the landlord must establish that tenant had completely divested himself of the suit premises and parted with possession of the suit premises of the whole or part of the premises to the sub- tenants and this should be substantiated by the evidence.
In the case titled as Praveen Saini Vs Reetu Kapur & Anr. 246 (2018) DLT 709, the Hon'ble High Court of Delhi inter- alia observed as under:-
"On the aspect of admissions being binding, this Court would like to straightaway refer to the judgment of the Supreme Court in the case of ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 21 of 27 Nagindas Ramdas Vs Dalpatram Ichharam alias Brijram & Others, 1973 (SLT Soft) 15 (1974) 1 SCC 242, because in this judgment the Supreme Court has laid down the ratio that evidentiary admissions are different than judicial admissions. Supreme Court has held that admissions which are made in judicial proceedings are on a higher pedestal than evidentiary admissions made in the form of correspondence etc and that judicial admissions can be a basis in themselves for deciding the claim. The relevant para 27 of the judgment in the case of Nagindas Ramdas (supra) read as under:-
"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the court, on the basis of which the court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rivalas evidence are by themselves not conclusive. They can be shown to be wrong."
In the case titled as Sukhpal Singh & Anr. Vs Satbir Singh & Anr. 296 Capital Law Judgment 2012 (4), the Hon'ble Delhi High Court inter-alia observed as under:-
"4. It is important to note that the onus of proving sub- tenancy lies on the landlord. 0The Supreme Court in "Jagan Nath Vs Chander Bhdn, AIR 1988 SC 1362", enunciated the principles whereby once the landlord has proved that a particular portion of the demised ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 22 of 27 premises has been given in exclusive possession to a stranger, then the onus shifts upon the tenant."
In the case titled as Padam Chand Jain Vs Messrs Mahabir Pershad & Sons and another, S.A.O. No.464 of 1968, the Hon'ble Delhi High Court inter-alia observed as under:-
"It is now settled by the decision of a Full Bench of this Court in Kedar Nath and another Vs Smt. Mohini Devi, etc. that the initial burden lies upon the landlord to establish that any of the conditions mentioned in the clauses (a) to (e) of the proviso exists (vide at page 170- I of the report)."
31. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the entire testimonies of all the witnesses from the petitioner's side and respondent's side and also all the relevant documents filed on record and arguments advanced by the Ld. Counsels and I have also gone through carefully the case law relied upon.
32. Lets discuss the 1st ingedients:-
(i). The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
33. Perusal of record shows that the petitioner has claimed that the respondent has sublet the tenanted premises to Sh. Inder Mohan Sethi S/o Sh. Bhagwan Singh Sethi.
On the other hand, respondent has claimed that he is in the possession of the tenanted premises and denied the subletting as alleged by the petitioner.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 23 of 2734. It is well settled that initial burden to prove that sub-tenant is in exclusive possession of the suit property is on the landlord/petitioner. However, the onus to prove the exclusive possession of the subtenant is that of preponderance of probability only and he has to prove the same prima- facie only and if he succeeds then the burden to rebut the same lies on the tenant.
In the case titled as Associated Hotels of India Limited Delhi Vs. S.B. Sardar Ranjit Singh, 1968, AIR (SC) 933, it was held that when eviction is sought on the ground of subletting, this onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
As such, it is clear from the settled law that the burden of prove sub-letting is on the landlord and the onus would shift on the tenant to explain his possession only after the discharge of such burden by the petitioner.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 24 of 2735. Perusal of record shows that the petitioner has not placed any cogent and convincing document to prove that respondent is not in the possession of the tenanted premises. Even, no independent cogent and convincing oral evidence has been produced to prove the factum of sub-letting by the respondent. Even during the cross examination PW-1/ petitioner/ Sh. Subhash Chand Gupta has deposed that "it is correct that I have not filed any documentary proof regarding the alleged subletting or that respondent Sh. Baljeet Singh had parted with the possession of the shop. I have not placed on record any photograph to show any addition or alteration being carried out by the respondent/tenant. (Vol. One FIR was lodged). I am not aware whether I have placed on record the copy of the alleged FIR on the judicial file."
36. As such, perusal of record and testimony of petitioner manifestly shows that the petitioner has not been able to discharge his burden in respect of physical possession by any person other than respondent.
(ii). No consent in writing was taken from the landlord by the tenant.
37. Perusal of record shows that in the present case, petitioner has claimed that no consent in writing was taken by the tenant/respondent in respect of subletting. On the other hand, the respondent has denied these allegations and submitted that he is in possession of the tenanted premises.
Since, the petitioner has failed to satisfy the first ingredient as discussed earlier, there is no need to discuss this ingredient.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 25 of 2738. As such in my considered view, in view of settled proposition of law as mentioned above, the petitioner failed to prove the ingredients of Sec. 14(1)(b) of D.R.C. Act. As such, the prayer U/Sec. 14(1)(b) D.R.C. Act is dismissed.
CONCLUSION:
39. In view of the aforesaid discussion and settled proposition of law, this court has come to the conclusion that the petitioner has satisfied all the ingredients of Section 14(1)(a) of D.R.C. Act in respect of the tenanted premises i.e. Private shop no. 16 on the ground floor and 16A on the first floor forming part of property No. 8-A, Tatarpur, Main Najafgarh Road, Tagore Garden, New Delhi as shown red in the site plan Ex. PW- 3/1.
It is pertinent to mention that no order U/Sec. 15(1) D.R.C. Act was passed by the Ld. Predecessor or by this court. As such, in view of the material on record and discussion as earlier, an order U/Sec. 15(1) D.R.C. Act is passed directing the respondent to pay or tender or deposit the rent @ Rs. 1400/- (for both the shops) as demanded by the petitioner in the legal demand notice and in the petition w.e.f. 12.07.2010 (Legally recoverable rent) till date along with simple interest @ 15% p.a. within one month from the date of this order and he is further directed to pay or tender or deposit the future rent in favour of the petitioner at the same rate i.e. Rs. 1400/- p.m. on or before the 15th day of each succeeding English calendar month.
Nazir is directed to file his report on 04.04.2020. regarding compliance of order U/Sec. 15(1) D.R.C. Act passed by this court today.
ARC No. 25678/16 Sh. Subhash Chand Gupta Vs. Sh. Baljeet Singh Page 26 of 27Miscellaneous file be prepared for ascertaining the benefits U/Sec. 14(2) of the D.R.C. Act.
40. So far as, Section 14(1)(b) D.R.C. Act is concerned, the petitioner has failed to prove all the ingredients of Section 14(1)
(b) D.R.C. Act. Hence, the prayer U/Sec. 14(1)(b) D.R.C. Act is dismissed.
41. This file be consigned to Record Room after due compliance.
Announced in the open Court on 2nd March, 2020.
(This judgment contains 27 pages) (Ajay Nagar) Additional Rent Controller, West District, THC, Delhi.
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