Delhi District Court
M/S Nirmal Vijay & Company vs M/S Wenger & Company on 4 February, 2020
IN THE COURT OF SH. DINESH KUMAR SHARMA:
DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL
PATIALA HOUSE COURTS: NEW DELHI
In the matter of :
RCT No. 184/2016 (Old No. 16/2014)
CNR No.DLND010012692014
1. M/s Nirmal Vijay & Company
A17A, Connaught Place
New Delhi110 001
Also at:
B7, Connaught Place
New Delhi110 001
Through its Partners
Sh. Nirmal Kumar Jain and Sh. Vijay Chand Jain
2. M/s Nirmal Vijay Jewellers
A17A, Connaught Place
New Delhi110 001
(Also through its above named partners)
..... Appellants
Versus
M/s Wenger & Company .....Respondent
A16, Connaught Place
New Delhi110 001
Service is to be effected
through its Partner.
Date of filing : 06.06.2014
Date of arguments : 04.02.2020
Date of judgment : 04.02.2020
RCT No.184/16 (Old No. 16/14)
M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 1 of 22
JUDGMENT
1. Vide this judgment, I propose to dispose of the appeal filed by the appellant under Section 38 of The Delhi Rent Control Act, 1958, against the impugned judgment dated 09.05.2014 whereby the Ld. Rent Controller has been pleased to allow the eviction petition under Section 14(1)(b) of the DRC Act against the appellant No. 1 and passed the eviction order in respect of shop bearing no. A17A, Connaught Place, New Delhi. Ld. Rent Controller has predominantly passed the eviction order on the following grounds:
i) That appellant No. 1 M/s Nirmal Vijay & Company has shifted from the tenanted premises i.e. A17A, Connaught Place, New Delhi to the new premises i.e. B7, Connaught Place, New Delhi;
ii) That in the Partnership Deed dated 01.04.1988, the share of Sh. Nirmal Kumar Jain and Sh. Vijay Chand Jain was to the extent of 10% and they have not been provided with any salary whereas Sh. Gaurav Jain and Sh. Rahul Jain, who have been other partners, have been provided with the salary of Rs.36,000/ per annum; and
iii) That M/s Nirmal Vijay & Company and M/s Nirmal Vijay Jewellers are two separate entities with different PAN and Sales Tax Number.
RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 2 of 22
2. The brief factual matrix of this case is that the premises in dispute was taken on rent by M/s Nirmal Vijay & Company from respondent/landlord in the year 1984 vide an agreement, which admittedly is not being placed on record, at the monthly rent of Rs.100/. The landlord sought the eviction of the tenant on the ground that the demised premises was sublet to M/s Nirmal Vijay Jewellers in the year 1998 without permission or written consent of the landlord and, therefore, the tenant/appellant No. 1 M/s Nirmal Vijay & Company is liable to be evicted from the demises premises.
3. In the written statement, the defence taken by M/s Nirmal Vijay & Company was that they continue to be in possession of the demised premises and did not sublet or parted with the possession of the tenanted premises to M/s Nirmal Vijay Jewellers. It has further been submitted that Sh. Gaurav Jain and Sh. Rahul Jain, who have been inducted as partners by virtue of partnership deed in M/s Nirmal Vijay Jewellers, are the sons of Sh. Nirmal Jain and Sh. Vijay Jain. M/s Nirmal Vijay Jewellers is the sister concern of M/s Nirmal Vijay & Company and both the concerns i.e. M/s Nirmal Vijay & Company and M/s Nirmal Vijay Jewellers are operating from the demised premises. The respondent/appellants herein denied that at any point of time the demised premises was locked. The sum and substance of the case of the respondent/appellants herein is that they continue to be in legal and physical possession of the demised premises and simply the RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 3 of 22 business of the family has been expanded and the new partnership has been created with the induction of the sons of the partners. It has been specifically averred that the keys and control of the demised premises remain with the original tenant and at no point of time it have been surrendered to M/s Nirmal Vijay Jewellers. In the replication, the averments made by the defendant/tenant were denied and submissions made in the petition were reiterated. The petitioner in support of his case examined PW1 Sh. Atul Tandon, PW2 Sh. Lal Singh (Statistical Assistant, Sales Tax Department) and PW3 Ms. Madhu Sachdeva from Oriental Bank of Commerce. The respondent in support of its case examined Sh. Nirmal Kumar Jain as RW1, Sh. Pashupati Nath Tiwari as RW2 and Sh. Makkhan Lal Ghosh as RW3. The public witnesses have been examined by the respondent to prove that Sh. Nirmal Kumar Jain and Sh. Vijay Chand Jain continued to be in legal and physical possession of the demised premises. Ld. Trial Court has discussed the facts and evidence led by the parties in detail and, therefore, have not been reproduced herein for the sake of brevity.
4. The centre point of dispute between the parties is that the plea of the appellant/tenant is that though the operation of business of M/s Nirmal Vijay & Company has been shifted to B7, Connaught Place, New Delhi, but the tenant still continues to be in legal and physical possession of the demised premises. Whereas, the plea of the landlord/respondent is that M/s Nirmal Vijay & Company has totally RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 4 of 22 shifted to B7, Connaught Place, New Delhi, and has sublet, assigned or parted with the possession of the premises in dispute to M/s Nirmal Vijay Jewellers and now the subtenant is in exclusive possession of the demised premises.
5. The Ld. Trial Court formulated the following questions of law on the basis of the facts and evidence of the parties for determination and the same are reproduced herein below:
"(a) Whether there exists relationship of landlord and tenant between the parties; and
(b) Whether the respondent without obtaining the written permission of the landlord has sublet, assigned or otherwise parted with possession of the whole or any part of the premises."
6. Before proceeding further, it is also relevant to look at Section 38 of the DRC Act in order to examine the jurisdiction of this Court while deciding the appeal under Delhi Rent Control Act.
7. It is pertinent to mention here that Section 38 of the DRC Act was amended with effect from 01.12.1998. Perusal of amended provision would indicate that an appeal shall lie from every order of the Controller made under this Act and the Rent Control Tribunal shall examine only the question of law. The Legislature in its wisdom excluded the jurisdiction of the Rent Control Tribunal to examine the cases on the facts. The amendment has possibly been made to curtail the delay. The effect of this amendment is that the Rent Controller has RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 5 of 22 been adjudged the forum to return final findings on the facts. Therefore, this Tribunal is required to see that whether the Ld. ARC has committed any illegality on the point of law while deciding the question of subletting. However, Ld. Counsel for the appellant has read the entire pleadings and evidence of the parties before this Tribunal to emphasize that the Ld. Trial Court has not determined the question of law correctly in accordance with the facts.
8. During the course of the submission, Ld. Counsel for the appellant has strenuously argued that initially the burden was on the landlord/respondent to prove that M/s Nirmal Vijay & Company has completely divested itself of the possession of the demised premises and has given the exclusive possession of the same to M/s Nirmal Vijay Jewellers, but the landlord/respondent has miserably failed to prove the same by way of credible evidence. Ld. Counsel for the appellants has cited following judgments in support of his case:
i) Bharat Sales Ltd. Vs. Life Insurance Corporation of India, (1998) 3 SCC 1;
ii) Jagan Nath (Deceased) through LRs Vs. Chander Bhan & Ors., AIR 1988 SC 1362;
iii) Niranjan Lal Kanodia Vs. Harbans Lal, 1995 (34) DRJ 14;
and
iv) Hazari Lal and Ram Babu Vs. Shri Gian Ram and Others, 1972 RCR 74
9. It is also pertinent to mention here that after filing of the RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 6 of 22 appeal, the appellants also filed an application under Order 41 Rule 27 CPC to produce the additional evidence in order to clear the air regarding some of the findings arrived at by the Ld. Rent Controller on the basis of which the eviction order was passed.
10. Perusal of the order of Ld. Rent Controller would indicate that the Ld. Trial Court proceeded on the premise that a partnership deed dated 01.04.1998 was only a camouflage to surrender the exclusively possession of the premises by the tenant to M/s Nirmal Vijay Jewellers and this was on the basis that Sh. Nirmal Jain and Sh. Vijay Jain were not drawing any salary; the share of profit of Sh. Nirmal Jain and Sh. Vijay Jain was marginal as compared to Sh. Gaurav Jain and Sh. Rahul Jain; and the two firms are being run independently and separately.
11. The case of the appellant is that the Ld. Trial Court also proceeded on the premise that even RW1 Nirmal Kumar Jain was not aware about the partnership deed dated 01.04.1998. It is a matter of record that initially a photocopy of the partnership deed, Ex RW1/4, was placed on record, which was running into three pages. However, subsequently when the original partnership deed was filed, which was exhibited as Ex. RW1/4, it was running into two pages. It is a matter of record that in crossexamination of RW1, he was not able to recollect whether the partnership deed was consisting of two pages or three pages. The appellant submitted that the Ld. Trial Court on the RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 7 of 22 basis of this wrongly reached to the conclusion that even RW1 was not aware about the contents of partnership deed. Ld. Counsel for the appellant also submitted that Ld. Trial Court wrongly held that Sh. Nirmal Jain and Sh. Vijay Jain have no control over M/s Nirmal Vijay Jewellers and, therefore, in order to prove that Sh. Nirmal Jain and Sh. Vijay Jain actually exercise complete control over M/s Nirmal Vijay Jewellers, the appellant sought to lead additional evidence on the point that Sh. Nirmal Jain and Sh. Vijay Jain withdrew sum of Rs.7.00 Lakh from M/s Nirmal Vijay Jewellers; bank account of M/s Nirmal Vijay Jewellers is operated by Sh. Nirmal Jain; Sales Tax and Income Tax Returns of M/s Nirmal Vijay Jewellers is signed by Sh. Nirmal Jain; and third page of partnership deed of M/s Nirmal Vijay Jewellers was left to be filed inadvertently. The appellants filed an application under Order 41 Rule 27 CPC with the prayer that additional evidence may be allowed to be produced for enabling this Court to pronounce a satisfactory judgment.
12. Ld. Counsel for the appellants has also relied upon the following cases in support of his application under Order 41 Rule 27 CPC for leading additional evidence:
i) Wadi Vs. Amilal & Ors., JT 2002 (6) SC 16;
ii) K. Venkataramiah Vs. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; and
iii) Adil Jamshed Frenchman (D) by LRs Vs. Sardar Dastur School Trust & Ors., AIR 2005 SC996.
RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 8 of 22 In Wadi (Supra), Hon'ble Supreme Court inter alia held as under:
"7. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in Subrule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in Clauses (a), (a) and (b). We are concerned here with Clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, Clause (b) enables it to adopt that course. Invocation of Clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case."
Ld. Counsel further relied upon K. Venkataramiah (Supra), wherein it was inter alia held as under:
"16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 9 of 22 entries in the admission registers of the School were made available. It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R. 27(1) (b) of the Code.
17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence. That is why in Parsotim Thakur v Lal Mohar Thakur, 53 Ind App 254: (AIR 1931 PC 143), the Privy Council while discussing whether additional evidence can be admitted observed:
"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the subclause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent."
RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 10 of 22 In Adil Jamshed Frenchman (D) by LRs (Supra), it was inter alia held by the Hon'ble Supreme Court that if the documents sought to be produced are material and if substantiated would have a material effect on the case, the application for additional evidence should be allowed.
13. Ld. Counsel for the appellants has submitted that while considering application under Oder 41 Rule 27 CPC, the Appellate Court must bear in mind that the interest of justice is paramount and vigilance or negligence of the parties should not be decisive factor.
14. Ld. Counsel for the respondent, vehemently, opposed this application and submitted that this Court has no jurisdiction to allow this application as the necessary ingredient under Order 41 Rule 27 CPC is not made out. In support of his contention, Ld. Counsel for the respondent has relied upon the judgment of Hon'ble Supreme Court of India in Union of India Vs. Ibrahim Uddin & Ors., 2013 (4) ALJ
66. The relevant portion of the same is reproduced as under:
"25. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 11 of 22 record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide : K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).
26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
27. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ].
28. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 12 of 22 remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).
29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
30. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment."
15. I have considered the submission made by the Ld. Counsel for the parties and perused the record carefully.
16. The sum and substance of the law as crystalized on this point is that an application for additional evidence under Order 41 Rule 27 CPC may be allowed by the Appellate Court, if the conditions laid down in the law are found to exist. However, it is a judicial discretion vested with the Court and should be exercised only where the Court finds it necessary to obtain such evidence for pronouncing judgment satisfactorily. However, the Appellate Court should not RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 13 of 22 allow fresh evidence to let in to supplement the evidence adduced by one party or the other. It is a settled proposition that a party guilty of not producing evidence, the Trial Court should not allow it to give further evidence in this rule. The mere fact that the evidence sought to be produced is important, is not sufficient ground for allowing such evidence under Order 41 Rule 27 CPC.
17. The procedure is handmaid of the justice and the Courts must apply the procedure in such a manner that it results in imparting of substantial justice and enables the Court to return a final adjudication on the point in dispute in accordance with law. I consider that as far as the issue of number of pages of partnership deed dated 01.03.1988 is concerned, it seems to be result of an inadvertent error. I consider that third page of partnership deed, now placed on record, can be taken into account and it does not require any further proof. As far as other documents which are sought to be placed by the appellant by virtue of this application under Order 41 Rule 27 CPC are concerned, I consider that these documents are not essentially required to be taken on record for enabling this Court to return the judgment satisfactory. The documents sought to be produced were always in possession of the appellants. The documents/evidence now sought to be produced only intend to supplement the evidence already produced. It is relevant to mention here that the appellants themselves have submitted that there is necessity to prove these documents in view of RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 14 of 22 the findings of the Ld. Trial Court. It is pertinent to mention here that the appellants have themselves admitted on record that M/s Nirmal Vijay Jewellers is a separate entity, which is consisting of two more partners besides the partners, who had initially taken the premises in dispute on rent in the name of M/s Nirmal Vijay & Company. The additional evidence sought to be produced could merely take the Court to its best that Sh. Nirmal Jain had been filing Tax Returns; maintaining bank account; and withdrawal of Rs.7.00 Lakh. However, some evidence to this effect is already on record and I consider that intention of the appellants is to supplement the evidence already on record.
18. Thus, I consider that there is no substance in the application under Order 41 Rule 27 CPC. Accordingly, the same being devoid of merit is dismissed.
19. Ld. Counsel for the appellants has argued in detail that M/s Nirmal Vijay & Company and M/s Nirmal Vijay Jewellers have been working in a fair and transparent manner and they rather brought it on the record that M/s Nirmal Vijay Jewellers paid a rent of Rs.100/ per month to M/s Nirmal Vijay & Company and M/s Nirmal Vijay & Company paid this rent to the landlord/respondent. It has been submitted that payment of rent by the alleged subtenant is not the sole criteria to determine that the premises in dispute has been sublet. It has further been reiterated, in addition to the averments mentioned RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 15 of 22 hereinbefore, that M/s Nirmal Vijay Jewellers is the sister concern of M/s Nirmal Vijay & Company and M/s Nirmal Vijay Jewellers was only constituted for the purpose of Income Tax record and to take benefit of Government policies. The attention of the Court has also been invited to Ex PW2/A, which is a document filed by the petitioner themselves. In this document, it has been mentioned that M/s Nirmal Vijay & Company is also functioning from the demised premises.
20. The attention of the Court has also been drawn to the cross examination of PW1 and it has been submitted that in the entire evidence of the petitioner, nothing has come on record that M/s Nirmal Vijay & Company has sublet, assigned or parted with the possession of the premises to M/s Nirmal Vijay Jewellers. Ld. Counsel has also submitted that in the petitioner's evidence, it was specifically brought to the notice of the Ld. Trial Court that Ex PW1/5 and PW1/6 have been fabricated but the Ld. Trial Court did not take any action. Ld. Trial Court also failed to decide the question regarding proof and admissibility of Ex PW1/5 and PW1/6. It shows that the Ld. Trial Court decided the case mechanically without any application of mind. Therefore, the order of the Ld. Trial Court is liable to be dismissed.
21. It is pertinent to mention here that Ex PW1/5 and PW1/6 are the applications of leave to defend and affidavit of Sh. Nirmal Jain in Eviction Petition No. E260/2008.
RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 16 of 22
22. Sh. Naresh Gupta, Ld. Counsel for the respondent has submitted that it is an admission of respondent/tenant that they have shifted from the demised premises i.e. B7, Connaught Place, New Delhi. The attention of the Court has been invited to the affidavit of RW1 Sh. Nirmal Kumar Jain wherein it was so mentioned. Ld. Counsel has also submitted that even both the defendants i.e. M/s Nirmal Vijay & Company and M/s Nirmal Vijay Jewellers, as per their advertisement on different websites, have shown their addresses to be as B7 and A17 respectively. Ld. Counsel has drawn the attention of the court to Ex PW1/7 and PW1/8 to prove the same. Ld. Counsel has also invited attention of the Court to the document Ex. PW1/9 where also the address of the M/s Nirmal Vijay & Company has been shown as B7.
23. In respect of Ex. PW1/A, it has been submitted that this order sheet pertains to 05.01.1999 and in fact M/s Nirmal Vijay & Company shifted from the demised premises only thereafter.
24. In respect of Ex PW1/5 and PW1/6, the respondent/landlord submitted that these documents were put to RW1 in the crossexamination and he admitted the same to have been filed by him. It has further been submitted that if this was fabricated, nothing stopped the appellant No. 1 to file the certified copy of the same on record or take appropriate action against the respondent.
RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 17 of 22
25. Ld. Counsel for the appellants has placed reliance on Bharat Sales Ltd. Vs. Life Insurance Corporation of India, (1998) 3 SCC 1 to prove that payment of monetary consideration by the sub lessee to the tenant is not always necessary to establish subletting. Reference has also been made to Jagan Nath (Deceased) through LRs Vs. Chander Bhan & Ors., AIR 1988 SC 1362. Ld. Counsel for the appellants submitted that the Hon'ble Supreme Court specifically held that in order to pass an eviction order under Section 14(1)(b) of DRC Act, the landlord must prove that there is vesting of possession by tenant in another person by divesting himself not only of physical possession but also of right to possession and, therefore, so long as tenant retains right to possession, there is no parting with the possession in terms of Clause (b) of Section 14(1) of the Act.
26. Ld. Counsel for the appellants has also submitted that in the case titled Niranjan Lal Kanodia Vs. Harbans Lal, 1995 (34) DRJ 14, it was held that mere user of premises is not subletting as long as the tenant retains legal possession of the premises with himself. Similarly, in Hazari Lal and Ram Babu Vs. Shri Gian Ram and Others, 1972 RCR 74, the tenant became the partner of the partnership firm and legal possession was retained by the tenant and, therefore, it was held to be not a subletting.
27. The sum and substance of the case of the appellant is that if RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 18 of 22 the tenant continues to retain the legal possession of the demised premises and has merely allowed another person to use the demised premises, it will not amount to subletting. The basic test is whether the tenant continues to be in the legal and physical possession of the premises. The another test can be that it is necessary that the tenant remains in the legal possession and the tenant must have a right to oust another person from the demised premises. The Delhi Rent Control Act is piece of welfare legislation and has been enacted to afford protection to the landlord and tenant. The eviction order can be passed only if there exists any of the grounds as mentioned in Section 14(1) of DRC Act. The general scheme of the Act is that subletting is prohibited. However, the exception is that after enactment of the Act, the subletting is permissible, if it has been done with the prior written permission of the landlord. It has also been held in catena of judgments that such permission has to be specific. Section 17 of the DRC Act requires that the tenant and the subtenant are required to give notice in writing to the landlord of the creation of the subtenancy within one month of the date of such subletting. The scheme of the entire Act would suggest that intention of the Legislature is that premises which has been let out to the tenant must be enjoyed by the tenant himself. The tenant cannot sublet, assign or part with the possession of the premises to anybody without prior permission in writing of the landlord. To my mind, this is being done in order to RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 19 of 22 protect the interest of the landlord and to maintain the sanctity of the contract between landlord and tenant. However, there can be instances where the tenant after he has taken the premises on rent enters into partnership deed with another person and thus does not surrender the legal possession of the premises in question. The litmus test in such partnership cases would be that, whether the tenant to whom the demised premises was let out continues to have control over the demised premises to the exclusion of the other newly inducted partners. In the present case, it is not disputed that initially the premises was taken on rent by M/s Nirmal Vijay & Company. Subsequently, the partners of M/s Nirmal Vijay & Company constituted another partnership deed with their sons. It is an admitted fact that in this new partnership, the original partners had only 10% shares and their sons had major shares of 40% each. It is an established norm that when the parents grow old, they certainly bring their children in their own business and settle them under their supervision. However, the establishing of the business or making them independent cannot be at the cost of the landlord. In the present case, the partnership deed itself speaks in volumes that this partnership was being constituted to establish Sh. Rahul Jain and Sh. Gaurav Jain. It seems that initial tenants Sh. Nirmal Jain and Sh. Vijay Jain have no active role in M/s Nirmal Vijay Jewellers and the partnership was created only to retain the demised premises. The fact that they have RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 20 of 22 neither any salary nor any major share in the profit is enough to refer that the legal possession of the demised premises is no more with M/s Nirmal Vijay & Company.
28. Before proceeding further, it is imperative to have a look at Section 18 of the Delhi Rent Control Act. Section 18 of the Act provides that if a notice has been served and an eviction order has been passed against the tenant but not against the subtenant, the sub tenant shall, with effect from the date of the order, be deemed to have become a tenant holding directly under the landlord in respect of the premises in his occupation. Similarly, if the premises in dispute has been lawfully sublet before commencement of this Act and an eviction order has been passed against a tenant without determining the interest of such lawful subtenant, the subtenant shall be deemed to have become a tenant holding directly under the landlord on the same terms and conditions. The conjoint reading of Sections 16,17 & 18 of the Act would indicate that if a person has been lawfully inducted as a subtenant before June, 1952, even without the consent of the landlord, it shall be deemed to have been a lawfully subletting, but a notice in writing is required to be served within six months of the commencement of this Act of the creation of the such subtenancy and in that case, if the interest of the tenant has been determined without determining the interest of any subtenant, the subtenant shall be deemed to have been become a tenant holding directly under the RCT No.184/16 (Old No. 16/14) M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 21 of 22 landlord. Thus, the entire scheme of the Act is that it prohibits sub letting.
29. In the cases of subletting, it is very difficult to get direct evidence and the Court have to look into the attendant circumstances to reach to any conclusion. In the present case, it is pertinent to mention here that the premises was admittedly let out to M/s Nirmal Vijay & Company and not to Sh. Nirmal Jain and Sh. Vijay Jain. Thus even if Sh. Nirmal Jain and Sh. Vijay Jain are partners in M/s Nirmal Vijay Jewellers, it will be subletting in the strict sense by M/s Nirmal Vijay & Company in favour of M/s Nirmal Vijay Jewellers.
30. I consider that there is no illegality or infirmity in the judgment. Ld. Trial Court has sufficiently and efficiently dealt with the submissions and evidence led on record by both the parties and there is no ground to disturb the impugned order/judgment of the Ld. Trial Court. Accordingly, the appeal being devoid of merit is dismissed.
31. Trial Court record along with copy of this Judgment be sent back.
32. File of appeal be consigned to Record Room.
Announced in open Court (DINESH KUMAR SHARMA)
on 04th day of February 2020 District & Sessions Judge/RCT
Patiala House Courts, New Delhi
RCT No.184/16 (Old No. 16/14)
M/s Nirmal Vijay & Company Vs. M/s Wenger & Company Page 22 of 22