Delhi District Court
Sh. Kulbir Singh vs Smt. Surinder Kaur on 10 February, 2016
1 of 24
IN THE COURT OF SUMEDH KUMAR SETHI, ACJ/CCJ/ARC(WEST)
TIS HAZARI COURTS, DELHI
UID No.02401C0504492011
E No.: 298/11
Date of Institution: 01.11.2011
Date of decision : 10.02.2016
1. Sh. Kulbir Singh
Son of late Sh. Ajit Singh
2. Sh. Mahinder Pal Singh
Son of late Sh. Ajit Singh
Both residents of 16/24 AB, Tilak Nagar,
New Delhi110018 ..... Petitioner
Versus
Smt. Surinder Kaur
wife of Sh. Rajinder Sing Sehgal,
R/o 11/20A, 1st floor, Tilak Nagar,
New Delhi110018
Also at Shop no. 1516, Amar Sansar Complex,
16/24A8, Tilak Nagar, New Delhi110018. .... Respondent
Eviction Petition U/Sec. 14 (1) (b) of Delhi Rent Control Act,1958
JUDGMENT
1. The present eviction petition U/Sec. 14 (1) (b) of Delhi Rent Control Act, was filed by the petitioners against the respondents on 01.11.2011.
FACTS
2. As per the petition, the petitioners are the E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 2 of 24 landlord/owner of the Shops no. 1516, Amar Sansar Complex, 16/24AB, Tilak Nagar, New Delhi110018 (herein in after referred to as "suit shop/ tenanted premises"). The respondent was using the premises for sale/storage of garments, but now she has sublet, assigned and parted with it possession to one Mr. Pt. Shekhar. Two shops privately numbered as Shop nos. 15 and 6 in Amar Sansar Complex bearing property no. 16/24AB, Tilak Nagar, New Delhi110018 of which partition wall of the shops has been removed by the respondent as shown red in the site plan were let out to the respondent andrate of monthyl rent is Rs. 600/ (six hundred only) excluding other charges. The premises was let out to respondent on 01.04.1997, but there is no written agreement. The premises has been sublet assigned and parted with its possession by the respondent to one Mr. Pt. Shekar about three or four months back without the consent of the landlord/petitioners in writing, but the amount of rent being charged from the sublettee is not known to the petitioners. The respondent/tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the while or any party of the premises without obtaining the consent in writing of the petitioner/landlord recently to one Mr. Pt. Shekhar, who has been running the service of an Astrologer in the same in the name and style of Energy Jyotish and Vaastu Kendra in Tilak Nagar, Delhi.
3. Written Statement was filed on behalf of respondent E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 3 of 24 wherein he contended that Sh.Navneet Singh Sehgal, son of late Rajender Singh Sehgal r/o 11/70A, First Floor, Tilak Nagar, New Delhi110018 aged about 36 years is son of respondent, fully conversant with the facts & circumstances of the present case and is in a position and competent to file the present written statement and depose before this Hon'ble Court vide SPA dated 09.03.2012 in his favour, whereby he has been fully empowered and authorized to defend lawful proceedings, sign and verify the written statement and other pleadings and to do such other acts and things that he may deem fit and proper and necessary thereto in the interest of the case. Respondent took shop no. 15 on rent in 1996 while the shop no. 16 was taken on 01.04.1997 by her husband in his name and on both the occasions respondent and her husband also have paid Pagri(a form of security) of Rs. 1,50,000.00 and Rs. 1,75,000.00 respectively. Respondent sent petitioner the MoneyOrder on 08.12.11 for a sum of Rs. 66,00.00 towards the cumulative rent of Shop no. 15 & 16 w.e.f 01.01.2011 to 01.12.2011 @ 550.00p.m. It is further stated that for nefarious reasons, the said moneyorder was refused to be accepted by petitioner. The petition does not fall within the ambit of Section 14(1)(b) as the same does not satisfy the relevant ingredients. Respondent has not sublet assigned or otherwise parted with the possession of the whole or any part of the premises in any manner whatsoever. The possession of the tenanted shop is only with respondent and the same is evident from the E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 4 of 24 photographs collectively annexed. The perusal of the photographs clearly shows that the possession of the tenanted shops is with respondent and her goods lying inside. The alleged subtenant is an agent/the own person of petitioners and the photograph relied upon by the petitioners is fictitious and it is a sheer case of manipulation. At the time of taking second shop i.e shop no. 16 on rent on 01.04.1997, as per the requirement of respondent and her husband; petitioners at their own expense removed the common wall between the two shops. However, a temporary wooden partition does not exist between the two shops. At this stage and after a gap of nearly 14 years petitioners cannot be allowed to agitate a frivolous issue. Contrary to the assertions of petitioners it is stated that the cumulative rent in respect of both the shops is Rs. 550/ pm. In order to substantiate the same the attention of this Hon'ble Court is drawn towards the rent receipts placed by petitioners on record and relied upon by them. Perusal of the said rent receipts unambiguously shows that the rate of rent is Rs. 550/ and not Rs. 600/ as alleged by petitioners. One of the shop i.e shop no. 16 was let out to respondent's husband on 01.04.1997 while the shop no. 15 was taken on rent by respondent in 1996 and subsequent to the death respondent's husband on 05.05.1999 the tenancy in that regard was also transferred in the name of respondent and since then respondent is tenant in respect of both the shops. The contents of the corresponding 18(a) are wrong and E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 5 of 24 specifically denied. It is submitted at the cost of repetition that respondent has not partied with the possession of the tenanted shop/s in any manner whatsoever. Petitioners, particularly petitioner no. 2 have been accepting rent from respondent for themselves and on behalf of remaining legal heirs .
4. In the replication, all the contents of WS were denied. It is submitted that the earlier monthly rent of the shops was Rs. 550/ which was increased to Rs. 600/ after a period of three years, and it was Rs. 600/ per month on the date of filing of the eviction petition.
EVIDENCE
5. In order to prove his case, petitioner no. 2 examined himself as Ex.PW1 by way of affidavit Ex.PW1/A on 20.10.2012. In his examination in chief, he reiterated the averments made in the petition and relied upon the documents i.e. Mark P1 that is copy of mutation letter, Mark P2 that is property tax Receipt. Mark P3 and P4 (inadvertently mentioned in the statement as Mark P2 and P3), Ex. PW1/1 (inadvertently recorded that the same was not on record) that is site plan, Ex. PW1/3 that is copy of legal notice dated 25.09.2011, Ex. PW1/4 that is original postal receipt and Ex.PW1/5 that is printout of profile from Justdial.com. The document which was mentioned in affidavit as Ex.PW1/2 was not on record, hence was deleted.
6. PW1/Petitioner no. 2 was cross examined on E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 6 of 24 01.11.2012 on behalf of respondent wherein he stated there are 16 to 18 tenants in the building where the tenanted shop is situated. It is his brother who collects the rent and earlier he collected the rent himself. Since he was residing in the same building either they visit the tenants or the tenants come to them to tender the rent. He is residing on the first floor of the building where tenanted shop is situated. The other petitioner also stays on the first floor. There are two stairs leading to the first floor; one of them is from the corridor while the other from the backside of the building. They use the corridor in routine as the same provides egress and ingress.
7. He admitted that the officials from Just Dial had visited the said building. The officials did not contact him. The officials inspected the site. No signatures were obtained from him or his brother but cannot say the same about the tenants. He could not say whether the other tenants witnessed the inspection made by the officials of Just Dial. Sh. Hemant Rattan and Joginder Singh had informed him about the visit of officials of the Just Dial. Both of them are his tenants. He did not remember as to when he was informed by the said persons about the visit of the officials.
8. The present rent of the tenanted shop is Rs.660/. The present rent was enhanced subsequent to sending of the legal notice under the relevant provisions. The notice for enhancement of rent has been to the respondent only once. He denied that the rate of rent E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 7 of 24 is Rs.500/ per month. He admitted that once the rent of the tenanted shops was Rs.500/ also. The earlier rent of Rs.500/ was mutually enhanced to Rs.550/ per month for both the shops. The rent receipts are issued by his brother and himself. His sisters have never collected rent in respect of tenanted shop. For the last 1 ½ 2 years it was his brother, petitioner no. 1 who was collecting the rent and prior to that he collected the rent from respondent. He did not have any document to show that the rate of rent was ever Rs.550/ however some of the photocopies he placed on the record. The rent upto 31.03.2009 was Rs.550/ per month. Again said the rent was enhanced to Rs.600/ w.e.f. January, 2009. He did not have any document to show that rate of rent is Rs.600/ per month. He admitted that he never issued any notice for enhancement of rent from Rs.550/ to Rs.600/ per month.
9. He had no document to show that the advertisement was carried out by sign board, banner etc for the alleged tenanted shop except for the record of the Just Dial. None of the advertisement ever appeared in the newspaper or cable. Vol. He has not seen. He is not aware whether the service of the notice dated 26.09.2011 was effected upon the respondent as the same was sent by his lawyer. He admitted that an individual can get attached with Just Dial without any inspection or other formalities.
10. He denied that he has filed the present case just to E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 8 of 24 get the suit shops evicted. The alleged sub tenants must have remained in the suit shops for 78 months. He came to know about the occupation of tenanted shops by alleged sub tenants in 2011 but he cannot comment on the date or the month. He denied that one of his sister who stays at Bali Nagar ever visited the respondent at his instance to collect the rent. He has four sisters. His sisters are not aware about the present litigation. At present the property wherein the tenanted shops are situated stands in the name of petitioners. He denied that his case is wrong and he is deposing falsely.
11. Petitioners examined Sh. Gurmeet Singh as Ex.PW2 by way of affidavit Ex.PW2/A on 20.10.2012. In his examination in chief, he reiterated the averments made by the petitioner and did not rely upon any other documents.
12. PW2 was cross examined on 28.02.2013 behalf of respondent wherein he denied that he had deposed in favour of the petitioners to oblige them.
13. PW3 is Mr. Chander Shekhar Admin. Executive, Just Dial Limited. He filed the record Ex.PW3/1 running into 12 pages which pertained to the profile/ advertisement relied upon by the petitioner. He stated that the same were signed by Sh. Shekhar, Proprietor of Energee Jyotish and Vastu Kendra.
14. In his crossexamination, he stated that he has an I card issued by his employer in his favour depicting his name and employee code. (The witness showed his I E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 9 of 24 card). As per the normal practice, the executive from the company visits the site. He could not say whether in the instant case, the executive visited the shop or not. There is nothing on the document placed on the record that an executive from the company visited the tenanted shops. He admitted that document exhibited as Ex.PW3/1 were submitted to the company by the person concerned and thereafter their services were extended to the said client. He admitted that he does not know the parties hereto in personal capacity and his knowledge is confined to the documents placed on the record. Any person can avail their services by submitting these documents. None of their executives ever took the photographs of the tenanted shop. Apart from the documents already placed on the record, there is no other document pertaining to the said shop. He admitted that there is no document that they have taken the photographs of the tenanted shop or carried out any inspection.
15. In support of his case, respondent Sh. Navneet Singh Sehgal l examined himself as RW1 by way of affidavit Ex.RW1/A wherein he reiterated his averments/contentions made in his WS. In his examination in chief, he relied upon certain documents i.e. Original Special Power of attorney dated 09.03.2012 Ex. RW1/1, photocopy of acknowledgment of refusal of money order is MarkA (Same is de exhibited as Ex. RW1/2 for want of original). The photographs of the premises collectively are Ex. RW 1/3. (Exhibition of documents were objected to on the E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 10 of 24 mode of proof)
16. RW1/respondent was cross examined on even date wherein he stated he is doing the business of garments with his mother at Shop no. 1516, Amar Sansar Complex, 16/24, Tilak Nagar, New Delhi. He admitted that he and his mother are having a shop in 11/72, Tilak Nagar, New Delhi and she is doing the business of ready made garments in the same. He and his mother both are doing the business. He and his mother both used to sit in the shop in property no. 11/72, Tilak Nagar, New Delhi. The aforesaid shop is on rent and purchased by way of pagdi. His father had taken the said shop in the year 1992 but he could not recollect the exact date. His father expired on 05.07.1999. His mother and his father used to sit in the aforesaid shop and after the death of his father, he and his mother have been sitting in this shop. His mother is not sitting in the said shop in routine as she is not well. His mother comes and goes to the shop.
17. The written statement in the present case has been signed by him. His mother did not sign it as she had given power of attorney to him. He did not remember the date, month and year of the execution of power of attorney Ex. RW1/1. The attorney was got prepared at Dholi Piau, Janak Puri, Delhi and Sh. Ankit Batra, Adv. with himself and his mother. Stamp paper for execution had been purchased on the same day. The document bears his signatures as well as his mother's signatures. The document do not bear the signature of E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 11 of 24 himself and his mother's.
18. He could not say why his mother is not deposing in the case as he has been given attorney in the present case. He had been appearing in the case and affidavit of evidence was also been filed by him. Vol. His mother was not well. He did not file any document on record to show that his mother has not been keeping well. He could not produce any such document.
19. He admitted that shops were taken on rent from the petitioner. One shop no. 15 was taken on rent by his mother in the year 1996. Vol. It was taken by way of pagdi of Rs. 1.5 lacs. He could not produce any record today to show that the said shop was taken on pagdi of amount of Rs. 1.5 lacs was paid to the petitioner. Shop no. 16 was taken on rent by his father in the year 1997. Vol. It was taken by way of pagdi of Rs. 1.75 lacs. He could not produce any record today to show that the said shop was taken on pagdi of amount of Rs. 1.75 lacs was paid to the petitioner. He denied that neither the shop was taken on pagdi nor the aforesaid amount was ever paid to the petitioners. He admitted that the tenancy of shop no. 16 was transferred in the name of his mother after the death of his father. Vol. Rent of Rs. 550/ of both the shops no. 15 & 16 was merged and was being paid to the petitioner.
20. He was present when the tenancy of the shop was created by the petitioner. He could not show any document to prove the said fact that he was present at the time of creation of tenancy. His signatures were E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 12 of 24 not taken anywhere when the tenancy was created. No document was signed by his father and mother at the time of creation of tenancy. Vol. His mother signed the rent receipt. He has not filed the alleged rent receipt on record. He could not produce any document to show that the alleged amount of pagri was paid at the time of creation of tenancy. He admitted that his mother was paying rent of the shop against issue of rent receipt. He had filed rent receipts after March, 2009 on record. At this stage, witness checked up the court file, where no such rent receipt was available.
21. He denied that his mother did not pay rent of the shops to the petitioner after March, 2009. He denied that rent of the shops was being increased by the petitioner after every three years. vol. the rent was never increased since pagri was paid. Initial rent was Rs.300/ for one and Rs.250/ for other shop. vol. after the death of his father, accumulative rent was charged @ Rs.550/ per month. He denied that rent of the shops stood enhanced to Rs.600/ after March, 2009. He admitted that shops delineated in Pink Colour in the site plan are under the tenancy of his mother. No notice was served upon his mother before filing of the present petition. He did not know whether the petitioner gave notice dated 26.09.2011 to his mother or not. No. 11/70A, First Floor, New Delhi18 is his residential address and Shop no. 15 & 16 of property No. 16/24, Tilak Nagar, New Delhi18 is the address of disputed premises. He did not know whether the above notice was sent to above both addresses. He E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 13 of 24 admitted that his mother is doing business of garments at shop No. 9, 11/72, Western Hospital Complex, Tilak Nagar, New Delhi18. Vol. He was also sitting at the said shop. He denied that the disputed shops are lying closed from September/October, 2011. Vol. their goods are lying in the said shops and they are opening and closing the same for taking out the goods.
22. He denied that one Pandit Shekhar was sitting in the shops in dispute. vol. He did not know any such Pandit Shekhar. There was no person working in the name and style of Energy Jyotish and Vastu Kendra in the disputed shops. There was no signboard of said name on the said shops. He denied that any signboard was removed from the disputed shops after 26.09.2009. He Could identify the photograph of disputed shops, if it is shown to him. Shop No. 14 & 17 adjoining the disputed property are let out to the tenants by the petitioners. He did not know who are the tenants in the said shops. He admitted that photograph shown to him is of the complex in which the disputed shops are situated. Same is Ex.RW2/X1(objected to on the ground that neither the negative nor memory card in respect of said photograph is produced). He denied that shop markA in the said photograph is of the disputed shops. At this stage, vol. photograph is not of the complex.
23. Pandit Shekhar might have registered himself with the JUST DIAL at the address of the disputed shops himself and without their knowledge. He could not comment as to what action he took against the E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 14 of 24 registration by JUSTDIAL as he did not know about the same. He stated that this person may be an agent of the petitioners.
24. He did not know whether any notice by the petitioners was served upon his mother during the pendency of the present petition. He did not know whether any notice dated 16.04.2012 was given to his mother for enhancement of rent. Vol. no notice was served upon his mother. He admitted that residential of his mother is 11/70A, First Floor, Tilak Nagar, New Delhi18.
25. He denied that his mother sublet the premises to one Pandit Shekhar in July, 2007 and he was doing service of astrologer in the name and style of Energy Jyotish and Vastu Kendra in the disputed shops in the month of July, August, September, 2011. He denied that there was a signboard of said kendra at the said shops and the same was removed by his mother after notice 26.09.2011.
26. In support of his case, respondent examined Tarvinder Singh Rekhi as RW2 by way of affidavit. He supported the deposition of the respondent.
27. RW2 was cross examined on behalf of petitioner on even date wherein he admitted that photograph Ex. DW1/X1 is of the complex where the tenanted shops are situated and Mark A1 and Mark X1 are tenanted shops. He also admitted that signboard of Jyotish Kendra is shown in the tenanted shop.
E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 15 of 24
28. Sh. Gulshan Kumar was examined as RW3 by way of affidavit Ex.RW3/A. He deposed on the lines of the respondent.
29. RW3 was cross examined on behalf of petitioner on even date wherein he stated that here was never any shop of Astrologer in the tenanted shop and also denied that the respondent sublet the shop to an Astrologer for the said period.
30. RW4 Hemant Singh from JUSTDIAL brought the summoned entire record in respect of Mona Lisa Creation registered with Just Dial at shop No. 19 and 20, Mangal Bazar Road, Tilak Nagar, Opposite Mother Dairy, Near Allahabad Bank, Tilak Nagar, New Delhi. Same is Ex.RW4/1(colly running into 12 pages). (Objected to for mode of proof).
31. Additional statement of the respondent's attorney was recorded and brought the original Invoice No.N7Z52809 dated 28.09.2012 registered in the name of Mona Lisa Creation and owner Navneet Singh alongwith envelope in which the said invoice was sent by Just Dial. Same is Ex.RW1/4(collyrunning into three pages)(OSR).
32. Arguments have been heard. Material on record perused. Submissions have been considered.
33. Section 14(1)(b) of the DRC Act provides for eviction of tenant on the ground that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with possession of the E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 16 of 24 whole or any part of the premises without obtaining the consent in writing of the landlord.
LANDLORD TENANT RELATIONSHIP
34. The first aspect that needs to be decided is whether the petitioners are the landlords in respect of the tenanted shop.
35. Although the respondent has raised questions regarding the petitioners' ownership, the landlord tenant relationship stands established as the respondent has himself stated that the petitioners have been accepting rent from him. Thus, now the respondent cannot deny the landlord tenant relationship between the petitioners and him. Likewise, he can also not deny the ownership of the petitioner as the provisions of Section 116 of the Indian Evidence Act are also attracted (although the ownership is not in question in this case).
36. Thus, no further deliberation on this point is required. The petitioners are held to be the landlords in respect of the tenanted shop.
SUBLETTING
37. The respondent has admitted in the WS that as per the requirement of respondent and her husband; petitioners at their own expense removed the common wall between the two shops. Petitioners, particularly E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 17 of 24 petitioner no. 2 have been accepting rent from respondent for themselves and on behalf of remaining legal heirs. The respondent has also stated in his crossexamination that Rent of Rs. 550/ of both the shops no. 15 & 16 was merged. He admitted that shops delineated in Pink Colour in the site plan are under the tenancy of his mother. Thus, it is apparent that the tenancies of both adjacent shops have merged and the petitioners are the landlords thereof. The identities of the same are also not disputed.
38. The petitioner has stated in his petition that the premises has been sublet assigned and parted with its possession by the respondent to one Mr. Pt. Shekar about three or four months back without the consent of the landlord/petitioners in writing, but the amount of rent being charged from the sublettee is not known to the petitioners. Pt. Shekhar, who has been running the service of an Astrologer in the same in the name and style of Energy Jyotish and Vaastu Kendra.
39. The petitioner in his evidence stated that the officials from Just Dial had visited the said building. The officials inspected the site. Sh. Hemant Rattan and Joginder Singh had informed him about the visit of officials of the Just Dial. The witness from JUSTDIAL stated that as per the normal practice, the executive from the company visits the site. He admitted that document exhibited as Ex.PW3/1 were submitted to the company by the E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 18 of 24 person concerned.
40. On the other hand, the respondent admitted that he and his mother are having a shop in 11/72, Tilak Nagar, New Delhi and she is doing the business of ready made garments in the same . He and his mother both used to sit in the shop in property no. 11/72, Tilak Nagar, New Delhi.
41. Also, as regards the jyotish kendra, while the respondent stated that there was no signboard of said name on the said shops, the RW2, a witness produced by the respondent himself admitted that photograph Ex. DW1/X1 is of the complex where the tenanted shops are situated and Mark A1 and Mark X1 are t e n a n t e d s h o p s . H e a l s o a d m i t t e d t h a t s i g n b o a r d o f J y o t i s h K e n d r a i s s h o w n i n t h e t e n a n t e d s h o p .
42. Now, the law on the point of subletting is clear. The Supreme Court Celina Coelho Pereira Vs. Ulhas Mahabaleshwar Kholkar, decided on 30 October, 2009, has carefully examined the meaning, scope and ingredients of 'SubLetting' under various rent control legislations in India. Justice Tarun Chatterjee has succinctly summarized the broad principles / guidelines to be followed in cases involving subletting of the premises by the tenant. The relevant extracts from this judgment are reproduced hereinbelow:
"18. In the case of Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh AIR 1968 SC 933, this Court held that when eviction is E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 19 of 24 sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further h e l d t h a t i f t h e l a n d l o r d p r i m a f a c i e s h o w s t h a t the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
19. The aforesaid legal position was also noticed by this Court in the case of Smt. Krishnawati v. Hans Raj (1974) 1 SCC 280."
"21. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. vs. Chander Bhan And Ors. (1988) 3 SCC 57 held:
"The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 20 of 24 well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession . So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession""
43. The evidence led by the respondent to show that anyone can create a profile on justdial.com is of little help as its not just the online profile that the petitioners are relying upon to show subletting but also the photograph that shows the signboard of the E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 21 of 24 jyotish kendra on the tenanted shop and which has been admitted by one of the respondent's witness himself. From the evidence on record, it is apparent that the respondent gave exclusive possession of the tenanted premises to the Jyotish Kendra. In the opinion of the Court, this is not akin to mere permissive use of the premises by respondent as RW1 admitted that they were carrying business from another shop at 11/72, Tilak Nagar, New Delhi. It is manifestly apparent from the same that not only did respondent hand over the physical possession of the premises to the Jyotish Kendra but did not even retain her right to enter the premises.
44. As far as consideration being obtained by respondent from the jyotish kendra is concerned, the deposition of the petitioners is categorical to the effect that the respondent took money from one Pt. Shekhar for putting him in possession of the tenanted premises. Now, the petitioners cannot be expected to prove beyond reasonable doubt as to what consideration is obtained by respondent from the subtenant. As, if that had been the requirement of law, no landlord would be able to conclusively prove the nature and amount of consideration that a tenant obtains from sub tenant and a petition for eviction on this ground would seldom be allowed. Therefore, the position of law in this regard is that the landlord has to, prima facie, show that the tenant has sublet, assigned or otherwise parted with possession of the premises to the sub tenant. The same already stands established, prima E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 22 of 24 facie, from the evidence brought on record by the petitioners as well as the evidence of the respondent and her witnesses themselves. It has already been observed by this Court above that the handing of possession by the respondent in this case is much more than mere permissive user. The onus, thus, shifted upon the respondent to show that she did not part with possession of the tenanted premises, which she has miserable failed to discharge. Rather, it is RW2's admission in his crossexamination which clinches the issue of subletting apart from other evidence adduced on record.
45. The petitioners have discharged the initial burden to prima facie show subletting and the respondent has been unable to discharge the onus upon her to prove otherwise. The question about the landlords giving their consent in writing for the sub tenant to be inducted in the tenanted premises does not arise at all as the same has not even been pleaded by the respondent. Also, the law does not provide that the ground for eviction due to subletting would not be available in case the subtenant subsequently leaves the premises.
46. In view of aforesaid discussion, petitioners have proved their case. Site plan filed by the petitioners is in consonance of their claim and admitted by RW1.
47. While this Court is not entirely convinced as to whether the respondent should have been allowed to proceed through a power of attorney, deliberation on E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur 23 of 24 this point would be futile as even while acting through her power of attorney, the respondent has failed to defend the allegations leveled by the petitioners.
48. Likewise, the dispute regarding rate of rent is not germane to the present case as whether it was Rs.500/ or Rs.550/ or Rs.600/ or Rs.660/, it would still bring the case within the ambit of the DRC Act and this issue would need to be determined in a petition for nonpayment of rent but not on the ground of subletting.
49. Also, the respondent has alleged paying pagri. Firstly, it is highly inconceivable that no receipt would have been executed when such a big amount exchanged hands. Secondly, the practice of pagri or payment thereof has been termed illegal by the law itself. A tenancy under the DRC Act enjoys protection under the Act but is also strictly bound by the statute. The protection to the tenants cannot go beyond the provisions of the Act. The respondent has his other remedies against the landlords for recovery of such money, if at all it was paid. However, this would not disentitle the petitioners from the relief of eviction on the ground of subletting.
50. Therefore, the petition stands allowed on the ground of subletting. As a consequence, respondent is hereby evicted from the tenanted premises i.e. Shops no. 15 16, Amar Sansar Complex, 16/24AB, Tilak Nagar, N e w D e l h i 1 1 0 0 1 8 a s s h o w n i n r e d c o l o u r i n t h e s i t e plan Ex. PW1/1.
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51. Original documents be returned to the parties after filing certified copies of the same on record against acknowledgment of receipt.
52. There shall be no orders as to costs.
53. File be consigned to record after due compliance.
Announced in the open Court (Sumedh Kumar Sethi) on 10.02.2016 ACJ/CCJ/ARC(West)/10.02.2016 Tis Hazari, Delhi E. No. 298/2011 Kulbir Singh and Anr. vs Surinder Kaur