Delhi District Court
Ram Mehar vs Nehal Educational Welfare Society on 29 February, 2024
IN THE COURT OF V. K. BANSAL,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
RCT ARCT No.17/16
CNR No.DLNE-01-003581-2016
In the matter of:
1. Ram Mehar
(now deceased represented by)
a) Smt. Om Kali
W/o Late Sh. Ram Mehar
b) Sh. Sanjay Kumar Kaushik
S/o Late Sh. Ram Mehar
Both R/o 350A/25, Gali no.2,
Chanderlok, Mandoli Road, Shahdara,
Delhi-110093.
c) Smt. Rajesh
W/o Late Sh. Sunil Dutt Bhardwaj
D/o Late Sh. Ram Mehar
R/o H. No.53 & 56, Gali no.4,
Balbir Nagar, Shahdara, Delhi-110032.
d) Smt. Rakesh
W/o Late Sh. Mahesh Dutt Sharma
D/o Late Sh. Ram Mehar
R/o E-513, East Gokalpur,
Delhi-110094.
e) Smt. Sanjoo
W/o Late Sh. Subhash Chand Sharma
D/o Late Sh. Ram Mehar
R/o Village & PO Kherki, VIRENDER
KUMAR
District Baghpat, UP. BANSAL
Digitally signed by
VIRENDER KUMAR
f) Smt. Manju Sharma BANSAL
Date: 2024.02.29
W/o Sh. Anand Kumar Sharma 17:31:27 +0530
D/o Late Sh. Ram Mehar
RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 1/33
R/o 350, Gali no.2, Chanderlok,
Manoli Road, Shahdara, Delhi-110093.
g) Smt. Anju Sharma
W/o Sh. Shruti Kant Sharma
D/o Late Sh. Ram Mehar
R/o H. No.C-44/245, Gali no.12,
Gamri Extn. Sudama Puri, Delhi-110053.
2. Sh. Ram Kirpal
S/o Late Sh. Ram Chander
R/o 1/4614/A, Ram Nagar Extension,
Mandoli Road, Shahdara, Delhi-110053.
3. Sh. Ram Narain Sharma
(now deceased represented by)
a) Smt. Sunita Sharma
W/o Late Sh. Ram Narain Sharma
b) Sh. Preet Narain Sharma
s/o Late Sh. Ram Narain Sharma
c) Sh. Sangeet Narain Sharma
(A to C) all R/o 24, Bhola Nath Nagar,
Shahdara, Delhi-110032.
d) Smt. Anjali Sharma
W/o Sh. Amit Sharma
D/o Late Sh. Ram Narain Sharma
R/o 346A, Gali no.7, Durgapur Ext.,
Shahdara, Delhi-110093.
e) Smt. Archana Sharma
w/o Sh. Chander Kaushik Sharma
D/o Late Sh. Ram Narain Sharma
R/o 1/5653, Balbir Nagar Ext.
Shahdara, Delhi-110032. .........Appellants
Versus
VIRENDER
1. Nehal Educational Welfare Society (Regd.) KUMAR
BANSAL
Through its President
1/4490A, Ram Nagar Extension,
Digitally signed
by VIRENDER
KUMAR BANSAL
Date: 2024.02.29
17:31:39 +0530
RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 2/33
Shahdara, Delhi-110032.
2. Nehru Memorial Co-ed Middle School
Through its Incharge/Prinicipal
Mandoli Road, Shahdara,
Delhi-110093.
3. Deputy Director of Education
Service Effected through its Authorised Person
Zone-6, Yamuna Vihar, Delhi.
4. Director of Education
Old Secretariat Civil Line,
Delhi-110054. ...........Respondents
Date of registration of appeal: 15.09.2016
Date when appeal was received by this Court: 15.09.2016
Date of conclusion of arguments: 21.02.2024
Date of pronouncement of judgment: 29.02.2024
JUDGMENT:
1. The appellate jurisdiction of this Tribunal has been invoked by the appellants under Section 38 of the Delhi Rent Control Act, 1958 (in short the 'Act') feeling aggrieved by the order dated 11.08.2016 passed in eviction petition no.04/2016 titled as 'Ram Mehar and Ors. Vs Nehal Educational Welfare Society (Regd.) and Ors. passed by the learned ARC (North- East), Karkardooma Courts, Delhi.
2. The brief facts giving rise to filing of the present appeal are that the appellants herein filed petition for eviction under Sections 14 (1) (a) and (b) of the Act against respondents alleging that property no. A-3, Khasra no.531, measuring 1500 sq. yards situated on Mandoli Road, Shahdara near Hanuman Temple, Nala VIRENDER Par, Delhi-110093 was let out to Nehal Educational Welfare KUMAR BANSAL Digitally signed by Society (Regd.) i.e. respondent no.1 at a monthly rent of VIRENDER KUMAR BANSAL Date: 2024.02.29 17:31:47 +0530 Rs.3000/- per month excluding water and electricity charges. The RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 3/33 respondent no.1 is in arrears of rent w.e.f 01.04.1995. The legal demand notice dated 25.01.2002 was also served upon the respondent no.1 for legally recoverable rent w.e.f 01.01.1999 at the rate of Rs.3,000/- per month, but respondent no.1 has failed to make the payment, hence, eviction petition under Section 14 (1) (a) of the Act.
3. It is further alleged that respondent no.1 had sub-let the whole of the tenanted premises to respondent no.2 without the consent and permission of the appellant herein at monthly rent of Rs.15,000/- per month and that the same is being administered and supervised by respondents no.3 and 4. Respondents are, therefore, liable to be evicted under Section 14 (1) (b) of the Act.
4. Summones of the petition were served on the respondents. Despite service, nobody appeared on behalf of Nehal Educational Welfare Society and, hence, were proceeded exparte.
5. The petition was contested by respondents i.e. respondents no.3, 4 and 5 in original eviction petition, but respondents no.2, 3 and 4 in this appeal. They filed written statement taking preliminary objection that there is no relationship of landlord and tenant between the parties, therefore, eviction petition is liable to be dismissed. No cause of action has ever arises in favour of the appellant and against respondents and, hence, same is liable to be rejected.
6. In reply on merits, it is alleged that there is no relationship of landlord and tenant between the parties. It is also denied that the appellants are the landlords and respondents are the tenants. It VIRENDER is submitted that there is no subletting as alleged. The premises in KUMAR BANSAL question is not tenanted premises and, hence, question of Digitally signed by VIRENDER KUMAR BANSAL subletting does not arise at all. It is submitted that the school is Date: 2024.02.29 17:31:55 +0530 being run by respondents no.3 to 5 (respondents no.2 to 4). The RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 4/33 site plan filed by the appellant is wrong. It is alleged that the school management has been taken over as per Section 20 of the Delhi School Education Act, 1973 since 1984 and the school is being run by respondents no.2 to 4. The reason for taking over was mis-management and gross financial irregularities committed by the then management and lot of school land has been grabbed by so called society members. It is absolutely wrong that monthly rent of the premises is Rs.3,000/- per month. It is submitted that when the premises in question was not on rent then question of monthly rent does not arise at all.
7. The site plan of the premises as filed by the appellant is also denied.
8. It is alleged that the occupation right of the land in question was purchased by five persons namely Jai Narain Sharma, Ram Narain Sharma, Dayanand Sharma, Ram Mehar Sharma and Ram Chander Sharma. All the above said five persons have donated the occupation right/land to respondent no.3 i.e respondent no.2 in the present appeal vide document dated 08.07.1972, which is more clear from their respective affidavits. It is absolutely wrong to allege that there is old tenancy in favour of respondent no.1. All other facts are denied. It is prayed that the petition be dismissed.
9. Order under Section 15 (1) of the Act was not passed as the original tenant was exparte.
10. Thereafter, the case was fixed for evidence of the petitioner. Ram Narain Sharma appeared in the witness box as PW1 and tendered his affidavit Ex.PW1/A in evidence VIRENDER KUMAR reaffirming and reiterating all the facts as mentioned in the BANSAL Digitally signed by petition. He proved on record photocopy of the sale deed as Ex. VIRENDER KUMAR BANSAL Date: 2024.02.29 17:32:03 +0530 PW1/1, site plan is proved as Ex. PW1/2, legal notice dated RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 5/33 25.01.2002 is proved as Ex. PW1/3, postal receipt is proved as Ex.PW1/4 to Ex.PW1/7, copy of the registration certificate is proved as Ex. PW1/9, counter foils of rent receipts which were referred to as Ex.PW1/10 to Ex.PW1/36 were de-exhibited as originals were not shown and were marked as A1 to A25. He was cross-examined, but before further cross-examination, he died.
11. Thereafter, Sangeet Narain s/o Late Sh. Ram Narain Sharma was examined being appellant as PW1. He filed his affidavit Ex.PW1/A reaffirming and reasserting facts as mentioned in the petition. The counter foils of rent receipts were de-exhibited as originals of the same were not produced.
12. During cross examination by the learned counsel for respondents no.3 to 5 (2 to 4), he denied the suggestion that his father was not the owner of the suit property. He admitted that there is no relationship of landlord and tenant between the petitioners and respondents no.3 to 5 (respondents no.2 to 4). He denied the suggestion that his father donated the land underneath the property in question by virtue of affidavit during his life time. He denied the suggestion that there is no relationship of landlord and tenant between the petitioner and respondents no.1 to 2. He denied the suggestion that respondents no.3 to 5 (respondents no.2 to 4) have never paid rent to anyone. Vol. They had seen them paying rent once or twice. He cannot tell the period during which he had seen the rent being paid by the respondents no.3 to 5 (respondents no.2 to 4) to the respondent no.1. He cannot tell the name or designation of the person, who was paying rent. He has seen the rent being paid in the lawn of the school while VIRENDER KUMAR BANSAL sitting in his shop. He cannot say if it was payment of rent or Digitally signed by VIRENDER some money was being paid. He denied the suggestion that KUMAR BANSAL Date: 2024.02.29 17:32:11 +0530 taking over of the school management by the respondents have RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 6/33 been done through legal means or that they are owners of the school. Thereafter, appellants closed their evidence and the case was fixed for evidence of the respondents no. 3 to 5 (2 to 4).
13. On behalf of respondents, Ms. Suman Kataria, Education Officer, was examined as RW1. She tendered her affidavit Ex.RW1/A reaffirming the facts as mentioned in their WS and alleged that there is no relationship of landlord and tenant between the parties. The site plan filed by the petitioner is not correct as per site. The premises in question is a non-residential premises from where Nehru Memorial Co-Ed. Middle School is being run. The management of the school has been taken over by the Directorate of Education, Govt. of NCT of Delhi as per Section 5 of the Delhi School Education Act, 1973 since 1984. The reason for taking over of the management of the Nehru Memorial Co-ed Middle School was that there were gross financial irregularities committed by the then management. Moreover, lot of school land has been grabbed by the so called society members. Accordingly, the government has taken over the school.
14. It is further alleged that appellants have wrongly mentioned in their petition that there was subletting of the premises in question. As it is not a tenanted premises, hence, question of subletting does not arise. There is no monthly rent qua school in question as alleged by the petitioners, hence, demand of rent at the rate of Rs.3,000/- per month does not arise at all. It is also alleged that Ram Narain Sharma, Ram Mehar, Dayanand, Ram Chander and Jai Narain, who were having VIRENDER KUMAR BANSAL occupation right of the land in question have donated the Digitally signed by VIRENDER KUMAR BANSAL occupational right/land to respondent no.3 vide document dated Date: 2024.02.29 17:32:19 +0530 08.07.1972. The photocopies of the affidavits are marked as R-1 RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 7/33 to R5.
15. During cross-examination by learned counsel for the appellants, she admitted that respondents no. 3 to 5 (2 to 4) are not the tenants with respect to property in question. She admitted that respondents no. 3 to 5 (2 to 4) have received the possession of the premises in question through respondents no.1 and 2. They have not filed any document to show that respondents no. (3 to 5) 2 to 4 had taken over the management of the school being run in the property in dispute. She denied the suggestion that respondents no.1 and 2 had sublet the property in question or that they are charging rent @ Rs.15,000/- per month from respondent no.3 (2). She admitted that the site plan Ex.PW2 is as per the site. She has no personal knowledge of the factum of donation of the property in question by the the appellants to respondents no. (3 to
5) 2 to 4. She had been told that such donation was made. Thereafter, the respondents closed their evidence.
16. Thereafter, the case was fixed for final arguments.
17. The learned ARC after hearing the arguments, vide order dated 14.10.2009 allowed the petition and order under Section 15 (1) of the Act was passed and petition under Section 14 (1) (b) of the Act was also allowed and eviction order was passed. The copy of the order was sent to respondent no.1, but they did not deposit the rent, hence, order of eviction was passed under Section 14(1) (a) of the Act on 13.10.2009. These orders were challenged before my learned Predecessor in RCT no.43/10, VIRENDER KUMAR wherein the respondents wanted to lead secondary evidence with BANSAL Digitally signed by respect to certain documents under Order 41 Rule 27 CPC, which VIRENDER KUMAR BANSAL Date: 2024.02.29 17:32:28 +0530 was allowed and order of eviction was set aside. The case was remanded back to learned ARC.
RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 8/3318. The respondents no.3 to 5 (2 to 4) examined Sh. R. N. Sharma, Deputy Director of Education, North-East, Govt. of NCT of Delhi, as RW2. He tendered his affidavit Ex.R2 alleging that the school land was donated by the founding members namely Ram Mehar, Ram Narain, Ram Chander, Dayanand and Jai Narain, each donated 400 sq. yards to Nehru Memorial Co- Educational Middle School, Shahdara, Delhi. The original affidavits were kept in the official file of the department, which have been lost and therefore they are producing photocopies. He also reasserted that there were three societies with the same name i.e. Nehal Educational Welfare Society claiming themselves to be the original society and had been asking for handing over of the management of the school from time to time from the Directorate of Education. For the said purpose, civil writ petitions have been filed by the alleged societies i.e Writ Petition no.WP(C) no.5905/2002 and WP(C) no.6522/2002, which were dismissed/disposed of vide order dated 25.07.2005 and the photocopy of the order has been placed on record as Ex.RW2/2, which was objected to as it was not certified copy. It is alleged that infact the learned Lt. Governor of Delhi has also directed that the department may examine the case for acquisition of the land and structure and also referred to order dated 23.04.2010 passed by Sh. P. Krishnamurthy, Director of Education that it will not be in public interest to hand over the school to the rival faction.
19. During cross-examination witness stated that he cannot say without verification of the signatures of the deponent as to Digitally signed by VIRENDER VIRENDER KUMAR whether signatures on mark A to E were forged. They have not KUMAR BANSAL BANSAL Date:
2024.02.29 17:32:36 filed any other document except mark A to E to show that the +0530 RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 9/33 alleged land in question was donated. They have not sent any notice to the owners of the property at the time of taking over the management from the society. They only sent notice to the society. He denied the suggestion that prior to 1984, Nihal Educational Welfare Society (Regd.) was registered as tenant or that the said society was paying rent to the owners/landlords against proper rent receipts. He cannot tell without going through the record as to whether five joint owners were the members of the society M/s Nihal Educational Welfare Society (Regd.). He has no knowledge if the respondent no.1 was tenant in respect of one office premises no.24, Bhola Nath Nagar, Shahdara, Delhi. Thereafter, respondents closed their evidence and the learned ARC after hearing arguments passed order dated 11.08.2016 dismissing the petition under Section 14(1) (a) and 14(1) (b) of the DRC Act, which is under challenged in the present appeal.
20. Notice of the appeal was sent to the respondents. Trial Court record was requisitioned.
21. During the pendency of the appeal, application under Order 41 Rule 27 CPC was moved by the appellant herein, which was allowed vide order dated 02.09.2023 subject to cost of Rs.5,000/-. Respondents no.2 to 4 moved review application for review of the order dated 02.09.2023, which was dismissed vide order dated 02.12.2023.
22. Sh. Sangeet Narain was examined-in-chief as AW1 in view of the order dated 02.09.2023 passed on application under Order 41 Rule 27 CPC. He tendered in his evidence original sale deed VIRENDER Ex.AW1/1 and 27 counter foils of rent receipts Ex.AW1/2 KUMAR BANSAL (colly). Digitally signed by VIRENDER KUMAR BANSAL
23. During cross-examination, learned counsels for the Date: 2024.02.29 17:32:43 +0530 respondents objected to with respect to mode of proof, but the RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 10/33 same was declined as no such objection was taken at the time of exhibiting of documents. He denied the suggestion that 27 counter foils of rent receipts are forged and fabricated. He stated that these are of the time of his father. He denied the suggestion that these counter foils were not in existence even at the time of filing of original eviction petition.
24. Question was put to witness as to whether he can identify signatures appearing on counter foils collectively exhibited as Ex.AW1/2 and he identified signatures of Ram Chander on counter foils dated 06.01.1973, 10.07.1973, 05.01.1974, 02.07.1974, 13.02.1975, 15.01.1976, 09.07.1976, 12.01.1977, 15.07.1979, 31.07.1979, 12.07.1980, 10.01.1981 and he identified signatures of Ram Mehar on counter foils dated 15.07.1981, 20.01.1982, 13.02.1983, 27.01.1985, 09.01.1987, 29.02.1988 and 16.01.1990. He identified signatures of Jai Narain on counter foils dated 20.01.1984 and 03.02.1995. He also identified signatures of Daya Nand on counter foil dated 21.01.1991.
25. He stated that he has no idea if there were two societies operating from the property in dispute. He denied the suggestion that original petitioners i.e. Ram Mehar, Ram Kripal, Jag Mehar and Ram Narain Sharma were members of Nehal Educational Welfare Society. He has no knowledge if the address of Ram Narain Sharma and of the society were same. Thereafter, appellant closed their evidence.
26. An application under Order XVI Rule 6 CPC was moved VIRENDER KUMAR by respondents no.3 and 4, which was dismissed vide order dated BANSAL Digitally signed by VIRENDER KUMAR 29.01.2024 and the case was fixed for final arguments. BANSAL Date: 2024.02.29 17:32:50 +0530
27. Respondents no.3 and 4 have also filed their written submissions.
RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 11/3328. I have heard learned counsel for the appellants, learned counsels for the respondents no.3 and 4 and perused the record.
29. There are two grounds which were taken before the Trial Court. I consider each ground separately. First I take up the ground of eviction petition under Section 14 (1) (a) of the Delhi Rent Control Act.
30. Learned counsel for the appellants submitted that it is proved and established on record by proving counter foils of rent receipts Ex.AW1/2 (colly) that Nehal Educational Welfare Society was tenant in the suit premises. Sale deed has also been proved on record that land underneath was purchased by Ram Narain Sharma, Jai Narain Sharma, Ram Mehar Sharma and Pandit Ram Chand. The original sale deed has been proved on record as Ex.AW1/1. Learned counsel submitted that counter foils establish that there was relationship of landlord and tenant and the rate of rent is also reflected from counterfoils to be Rs.3,000/- per month lastly. The respondent no.1 i.e. Nihal Educational Welfare Society has stopped making payment of rent w.e.f. 01.04.1995. Legal demand notice dated 25.01.2002 Ex.PW1/3 was served upon respondents calling them to make payment of rent which they did not make despite service of notice. There is no evidence on record that rent was either paid or tendered or deposited by the respondent no.1.
31. Learned counsel further submitted that for making out case under Section 14 (1) (a) of the DRC Act, the fact required to be proved is that there is relationship of landlord and tenant between the parties, which the appellants have successfully VIRENDER KUMAR BANSAL proved on record by proving on record original counterfoils of Digitally signed by VIRENDER rent receipts. Even otherwise there is no denial to the factum of KUMAR BANSAL Date: 2024.02.29 17:32:58 +0530 relationship of landlord and tenant between the parties. Learned RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 12/33 counsel submitted that notice was duly served, but despite that respondent no.1 has not tendered any rent, hence, ground of eviction under Section 14 (1) (a) of the Act is established. Learned counsel submitted that the Trial Court has not considered all these facts and dismissed the petition. It is prayed that under the circumstances order of the Trial Court dismissing petition under Section 14 (1) (a) of the Act be set aside and eviction order be passed.
32. Learned counsel for respondents no.3 and 4 submitted that firstly the appeal is not maintainable as it is settled law that petition and even appeal is not maintainable as Union of India, which is a necessary party in term of Article 300 of the Constitution read with Section 79 of CPC and Section 52 of the Government of NCT of Delhi Act, no suit is maintainable unless Union of India is impleaded. Merely impleading officials of Government Department is not sufficient. Learned counsel in support of his arguments has placed reliance upon judgment cited as State of Kerala Vs. General Manager, Southern Railway, Madras, AIR 1976 SC 2538, wherein it was held as follows:
"3. The respondent resisted the claim of the appellant, inter alia, on the ground that the suit was not maintainable as the Union of India had not been impleaded as a defendant to the suit and that a suit by a State against the Union of India could be instituted only in the Supreme Court of India under Article 131 of the Constitution. It is not necessary to set out the other pleas of the respondent. As many as nine issues were framed by the trial Court. Two of the issues, namely, issues Nos. 1 and 3, were treated as preliminary issues and arguments were heard on those issues. Issues Nos. 1 and 3 read as under :
"1. Is the suit maintainable? Can a decree be passed VIRENDER against the defendant as now impleaded ? KUMAR BANSAL
3. Will the suit lie in this Court? Is the suit barred by Digitally signed by the provisions of the Constitution of India ?" VIRENDER KUMAR BANSAL Date: 2024.02.29 17:33:05 +0530 On issue No. 3 it was held by the trial Court that since the Union of India had not been made a party to the suit, clause (a) of Article 131 RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 13/33 of the Constitution had no application. The suit was accordingly held to be not liable to be dismissed on that ground. On issue No. 1 the trial Court held that the Union of India was a necessary party to the suit and as the Union of India had not been impleaded as a party, the suit was incompetent. As a result of its findings on issue No. 1 the trial Court dismissed the suit. The decision of the trial Court on issue No. 1 was affirmed in appeal by the High Court. An application was also filed at the hearing of the appeal before the High Court for impleading the Union of India as a party to the suit. The High Court rejected that application on the ground that no useful purpose would be served by allowing that application. It was observed that if the application was allowed and the Union of India was made a party, the suit would have to be dismissed as under Article 131 (a) of the Constitution a suit by one State against the Union of India could only lie in the Supreme Court. In the result, the High Court dismissed the appeal filed by the appellant.
10. The Bombay High Court in two cases, Sukhanand Shamlal v. Outh and Rohilikhand Rly., AIR 1924 Bombay 306 and Hirachand Succaram Gandhy v. G.I.P. Rly Co., AIR 1928 Bombay 421 has held that a suit against a State Railway should be brought against the Government. Similar view was expressed by Patna High Court in Shaikh Elahi Bakhsh v. E. I. Rly. Administration, AIR 1931 Patna 326 and a Full Bench of Assam High Court in the case of Chandra Mohan Saha v. Union of India, AIR 1953 Assam 193 (FB). The observations of a Division Bench of the Madras High Court in the case of Narayanaswami Iyer v. Union of India, AIR 1960 Madras 58 also lend support to the above view. It may be stated that the reasoning employed in the cases mentioned above was different and not identical, but whatever might be the nature of that reasoning the fact remains that the learned Judges deciding these cases were all at one on the point that such a suit should be brought against the Government, which means in the present case the Union of India. Any contrary view would be against the well-established practice and procedure of law, as evidenced by various decisions of the High Court, and as such, must be rejected.
11. Submission has also been made on behalf of the appellant that the High Court should have allowed the appellant to amend the plaint. We agree with the High Court that the present is not an appropriate case in which permission to amend the plaint should have been granted."
33. Learned counsel for the respondents no.3 and 4 submitted VIRENDER that in view of this legal position, the eviction petition itself KUMAR BANSAL was not maintainable and consequently the present appeal. It is Digitally signed by VIRENDER KUMAR BANSAL prayed that the appeal be dismissed.
Date: 2024.02.29 17:33:14 +0530 RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 14/33
34. Learned counsel for appellants submitted that so far as the contention that the petition is not maintainable as Union of India is not made a party and without making them party the petition itself should not have been entertained is not tenable as respondents no.3 and 4 themselves preferred an appeal in their own name, which was decided by the then RCT vide order dated 01.04.2011 in RCT no.43/2010 titled as 'Director of Edu- cation and Ors. Vs. Shri Ram Mehar and Ors.' for not implead- ing Union of India as a party. Even otherwise it is not the de- partment, who is running the school, it is the officials, who are running the school and, hence, they are impleaded as party.
35. After hearing the arguments and considering facts of the present case, I found that eviction petition was filed by the appellant herein for eviction of the tenant i.e. respondent no.1 herein. Considering all these facts and also the judgment relied upon by respondents no.3 to 4, I am of the opinion that the judgment is of no help to respondents in the present case, therefore, it cannot be said that the eviction petition was not maintainable and consequently that the present appeal is also not maintainable.
36. Learned counsel further submitted that as per law appeal under Section 38 of the Act can be filed only on question of law and not otherwise and in the present appeal neither any question of law has been framed nor made out from bare reading of the pleadings, definite finding with respect to relationship of landlord and tenant between the parties and subletting has been made out after considering the pleadings and evidence on record. There is VIRENDER KUMAR BANSAL no perversity in the findings and, hence, appeal itself is not Digitally signed by VIRENDER KUMAR BANSAL maintainable. Date: 2024.02.29 17:33:21 +0530
37. Learned counsel further submitted that the onus was upon RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 15/33 the appellants to prove and establish that there is relationship of landlord and tenant between the parties, but the appellants have failed to prove the same except that there is a self serving statement made by the witness that respondents no.1 and 2 were tenants of the appellants. Respondents no.1 and 2 did not appear before the court either to admit or deny relationship of landlord and tenant between appellants and the respondents no.1 & 2.
38. Learned counsel further submitted that infact appellants and respondent no.1 are one and same. They are working in same capacity as appellants as well as respondents. Appellants claim themselves to be owners of the land underneath on which respondent no.1 is stated to have been running school. The appellants admitted that they are members of the society i.e respondent no.1. The address of Ram Narain Sharma/appellant and the respondent no.1 is the same. Even in the Memorandum of Association of respondent no.1, the address is same. Hence, it is clear that there is collusion in filing of the petition. Infact, appellants have filed petition against themselves for eviction. Infact, the other petitioners, who initially filed the petition withdrew from the prosecution of the eviction petition and only Ram Narain continued to prosecute the present eviction petition which clearly establishes collusion.
39. Learned counsel further submitted that infact appellants have even failed to prove and establish relationship of landlord and tenant. The alleged counterfoils of rent receipts which are exhibited as Ex.AW1/2 (colly) on which much emphasis have been laid by the appellants have not been proved in accordance VIRENDER KUMAR with Evidence Act. None of the persons, who have executed BANSAL counter foils have been examined to prove the same. The witness Digitally signed by VIRENDER KUMAR BANSAL Date: 2024.02.29 examined has also failed to identify the signatures on the counter 17:33:28 +0530 RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 16/33 foils of rent receipts. Learned counsel submitted that these counter foils of rent receipts are forged and fabricated. Even there is no pleading in the eviction petition about this evidence i.e counter foils. Hence, in the absence of any such pleading, no reliance can be placed on the same. Learned counsel submitted that all these facts clearly show that these counter foils of rent receipts are not admissible. Merely putting exhibits on the same does not establish that the same are proved, hence, the court cannot place reliance on the same. Learned counsel in support of his arguments has placed reliance on judgment cited as R. V. E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V. P. Temple, AIR 2003 4548, wherein it was held as follows:
"18. Order 13 Rule 4 of the Civil Procedure Code provides for every document admitted in evidence in the suit being en- dorsed by or on behalf of the Court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not ad- mitted in evidence. In the latter case, the document may be re- turned by the Court to the person from whose custody it was produced.
19. The learned counsel for the defendant-respondent has re- lied on The Roman Catholic Mission v. The State of Madras & Anr., AIR 1966 Supreme Court 1457 in support of his submis- sion that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evi- dence should be taken when it is tendered and not subse-
quently. The objections as to admissibility of documents in evi- Digitally
signed by
dence may be classified into two classes :- (i) an objection VIRENDER
VIRENDER KUMAR
KUMAR BANSAL
that the document which is sought to be proved is itself inad- BANSAL Date:
2024.02.29
missible in evidence; and (ii) where the objection does not dis-
17:33:35 +0530 pute the admissibility of the document in evidence but is di- rected towards the mode of proof alleging the same to be ir- regular or insufficient. In the first case, merely because a doc-RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 17/33
ument has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is ten- dered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for prov- ing the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tender- ing the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tender- ing the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of find- ing of the Court on the mode of proof sough to be adopted go- ing against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to herein- above, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in supe- rior Court.
20. Privy Council in Padman and Others v. Hanwanta and Others [AIR 1915 Privy Council 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed :
"The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient VIRENDER foundation being led for its admission. No KUMAR objection, however, appears to have been taken in BANSAL the first court against the copy obtained from the Digitally signed by VIRENDER Registrar's office being put in evidence. Had such KUMAR BANSAL Date: 2024.02.29 objection been made at the time, the District 17:33:43 +0530 Judge, who tried the case in the first instance, RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 18/33 would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention."
21. Similar is the view expressed by this Court in P.C. Purushothama Reddiar v. S. Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed :
"Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head- constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility - See Bhagat Ram v. Khetu Ram and Anr. [AIR 1929 Privy Council 110]."
22. Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.
23. So is the observation of the High Court that the photocopy of the rent note was not readable. The photocopy was admitted in evidence, as already stated. It was read by the trial court as also by the first Appellate Court. None of the said two courts appear to have felt any difficult in reading the document and understanding and appreciating its contents. May be, that the copy had fainted (faded?) by the time the matter came up for hearing before the High Court. The High Court if it felt any difficulty in comfortable reading of the document then should have said so at the time of hearing and afforded the parties an opportunity of either producing the original or a readable copy of the document. Nothing such was done. The High Court has not even doubted the factum of the contents of the documents having been read by the two courts below, drawn deductions therefrom and based their findings of fact on this document as well. All that the High Court has said is that the document was inadmissible in evidence being a photocopy and with that view we have already expressed our disagreement. Nothing, therefore, turns on the observations of the High Court that the document was not readable when the matter came up for hearing before it."
VIRENDER KUMAR BANSAL
40. Learned counsel for the appellants submitted that Digitally signed by VIRENDER KUMAR BANSAL executants of counterfoils i.e the persons, who signed those Date: 2024.02.29 17:33:50 +0530 counter foils are not available and, hence, cannot be produced in RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 19/33 the witness box. So far as examination of witness Sangeet Narain Sharma AW1 is concerned, he has failed to prove these documents as Ex.AW1/2 (colly). Learned counsel pointed out that during cross-examination of AW1, specific question was put to the witness which is reproduced as under:
"Q. Can you identify the signatures appearing on the counterfoils collectively exhibited as Ex.AW1/2?
Ans. After seeing the Ex.AW1/2, he stated that on the counterfoil dated 06.01.1973, there is signature of Ram Chander at point A encircled in red today and there is one signature on which there is a stamp also but I cannot identify whose signature is there and the same is encircled in red at point A. After seeing the next counterfoil dated 10.07.1973 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B encircled in red today under the stamp, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 05.01.1974 witness stated that there is signature of Ram Chander encircled at point A and there is no signature at point B encircled in red today. However, there is a stamp of President of Nihal Education. After seeing the next counterfoil dated 02.07.1974 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B of President of Nihal Education Society under the stamp of Nihal Educational Society encircled in red today.
After seeing the next counterfoil dated 13.02.1975 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B of President of Nihal Education Society under the stamp of Nihal Educational Society encircled in red today.
After seeing the next counterfoil dated 15.01.1976 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today but I cannot identify whose signature is this.
After seeing the next counterfoil dated 09.07.1976 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 12.01.1977 witness VIRENDER stated that there is signature of Ram Chander encircled at point KUMAR BANSAL A and there is another signature at point B under the stamp of Digitally signed Nihal Educational Society encircled in red today, but I cannot by VIRENDER KUMAR BANSAL identify whose signature is this.
Date: 2024.02.29 17:33:58 +0530 After seeing the next counterfoil dated 15.07.1979 witness RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 20/33 stated that there is signature of Ram Chander encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 31.07.1979 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 12.01.1980 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 10.01.1981 witness stated that there is signature of Ram Chander encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 15.07.1981 witness stated that there is signature of Ram Mehar encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 20.01.1982 witness stated that there is signature of Ram Mehar encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 13.02.1983 witness stated that there is signature of Ram Mehar encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 20.01.1984 witness stated that there is signature of Jai Narayan encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 27.01.1985 witness stated that there is signature of Ram Mehar encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 09.01.1987 witness stated that there is signature of Ram Mehar encircled at point A VIRENDER and there is another signature at point B under the stamp of KUMAR BANSAL Nihal Educational Society encircled in red today, but I cannot Digitally signed by identify whose signature is this. VIRENDER KUMAR BANSAL After seeing the next counterfoil dated 29.02.1988 witness Date: 2024.02.29 17:34:05 +0530 stated that there is signature of Ram Mehar encircled at point A RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 21/33 and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 16.01.1990 witness stated that there is signature of Ram Mehar encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 21.01.1991 witness stated that there is signature of Daya Nand encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 02.02.1994 witness stated that there is signature of Ram Mehar encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
After seeing the next counterfoil dated 03.02.1995 witness stated that there is signature of Jai Narayan encircled at point A and there is another signature at point B under the stamp of Nihal Educational Society encircled in red today, but I cannot identify whose signature is this.
41. Learned counsel submitted that this testimony of AW1 clearly shows that these counter foils are duly proved and estab- lished in accordance with law. Even signatures of executants have been identified, hence, now respondents cannot be al- lowed to say that these are not proved. Even otherwise, no ob- jection as to mode of prove was taken when these documents were proved and established. Now respondents cannot be al- lowed to challenge the mode of proof. Learned counsel submit- ted that as per law if executant is not available as he has already expired in this case then the person, who is acquainted with his signatures and handwriting can also prove the same as has been VIRENDER KUMAR done in the present case. It is prayed that as relationship of BANSAL Digitally signed landlord and tenant has been proved and established from these by VIRENDER KUMAR BANSAL Date: 2024.02.29 17:34:12 +0530 counter foils, and there is no evidence that after 01.04.1995 they have paid rent. Service of demand notice is not denied.
RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 22/33There is nothing on record that they have paid or tendered rent after receipt of notice. It is submitted that as there was sufficient evidence on record with respect to relationship, but the court has misdirected itself by considering that there is no relation- ship of landlord or tenant. This finding itself is not in accor- dance with evidence placed on record particularly when origi- nal tenant has not denied the relationship of landlord and tenant and it is only the sub tenant, who is saying that there is relation- ship of landlord and tenant.
42. Learned counsel further submitted that so far as role of members is concerned, respondent does not deny it that respon- dent no.1 was having on rent an office in premises no. 24, Bhola Nath Nagar, Shahdara, Delhi and in premises no.1/4490A, Ram Nagar Extension, Shahdara, Delhi, since 1972 as their witness stated that he has no knowledge if respon- dent no.1 was tenant in respect of one office in premises no. 24, Bhola Nath Nagar, Shahdara, Delhi since 1972 and same is his reply with respect to other office. Hence, this argument that they are one and same person is not legally tenable. Even other- wise, a society registered under Society Registration Act is a distinct legal entity separate from its members and, hence, it cannot be said that appellants filed petition against themselves. Learned counsel submitted that as the order of the Trial Court is not sustainable and is against the settled law, same be set aside.
43. After hearing arguments and going through the record, I found that so far as the issue that appeal under Section 38 of the Act is not maintainable, there is no substantial question of law VIRENDER either pleaded or made out. I found that in this case the basic is- KUMAR BANSAL sue is whether there is relationship of landlord and tenant be-
Digitally signed by VIRENDER KUMAR BANSAL Date: 2024.02.29 17:34:20 +0530tween the parties. It is important to note that the original tenant RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 23/33 has not appeared before the Court and, hence, there is nothing on record to deny the same except that other respondents claim that there is no relationship of landlord and tenant. The appel- lants have not claimed that there was any relationship of land- lord and tenant between the appellant and respondents no.2 to 4 herein in the appeal. The claim is that the tenant was Nihal Edu- cational Welfare Society. The photocopy of the counter foils of rent receipts were on file. The original of the same have now been proved on record as Ex. AW1/2 (colly). Though learned counsel for respondents submitted that these are not admissible as same are not proved in accordance with law, but the file shows that the executant i.e Ram Narain Sharma is no more alive. He cannot be brought in the witness box. So far as wit- ness Sangeet Narain Sharma is concerned, he has proved these rent receipts, identified signatures of executants i.e. Ram Chan- der, Ram Mehar, Jai Narain and Daya Nand. There is nothing on record to show that he was not conversant with signatures or was not able to identify those signatures. It is also important to note that counterfoils have been produced from the custody where these should have been i.e in the custody of landlord or the person, who succeeded to landlords. Hence, in my opinion this objection has not merit. The counter foils of rent receipts have been proved on record. So far as this contention that these were not pleaded in the petition, it is settled law that evidence need not be part of the pleadings, hence, I do not find any merit VIRENDER in this contention as these have not been pleaded in the eviction KUMAR BANSAL petition, hence, it cannot be relied upon. Even otherwise, Digitally signed by VIRENDER KUMAR BANSAL Date: 2024.02.29 counter foils are proved on file, hence, relationship of landlord 17:34:28 +0530 and tenant is also established.
RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 24/3344. In view of this proposition of law as no objection was raised by the respondents when original counter foils of the rent receipts were proved, the original counterfoils are also coming from the custody of the person concerned thirdly, he also identi- fied the signatories of the counterfoils, therefore, I am of the opinion that the judgment relied upon by learned defence coun- sel is of no help to the respondents. In the case relied upon by learned counsel for the respondents the Supreme Court had ob- served that once the documents were admitted in evidence with- out objection, it cannot be held that same are inadmissible. In that case those documents were photocopies which were admit- ted in evidence and the originals were not produced, still the Supreme Court of India held that these documents can be relied upon. Here in this case the originals have been produced and proved, hence, in my opinion this judgment is of no help to the learned counsel for the respondents.
45. The next contention raised by the learned counsel for the respondents is that appellants and respondent no.1 are one and same as address of respondent no.1 is also the address of Ram Narain Sharma. It is important to note here that respondent no.1 is legal entity i.e. Society registered under Societies Registra- tion Act, 1860.
46. Law in this regard is well settled as cited in judgment ti- tled as Permanent Building Management and Funds Com- mittee Vs. Naraina Industries Association (Delhi) 1999 (82) DLT 353, wherein it is held in para 6 as under:
"6. Defendant No. 1, however, is a legal entity, having been VIRENDER KUMAR duly registered under the Societies Registration Act on October BANSAL 18, 1973. Having been so incorporated it must act within the Digitally signed by VIRENDER parameters and powers of its own Constitution. The rigid and KUMAR BANSAL Date: 2024.02.29 17:34:36 +0530 inviolable rigours of the principle of intra vires and ultra vires acts would be equally applicable to the defendant RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 25/33 Association/Society as it would be to a company registered under the Companies Act. Courts has assiduously struck down or restrained actions taken by such persons where these actions do not have the sanction contained in the Objects clause in its Memorandum. It is no doubt true that Courts must be extremely slow and shy from interfering in the internal affairs and management of a legally constituted body. However, where the internal affairs of society are being conducted in a manner which is not envisaged or permitted by its own Constitution, Courts are duty-bound to restrain such acts."
47. Reliance in this regard can also be placed on judgments titled as Kumaran Aodakkavoor Olluparampu Vs. Ardhana- reeswara Devaswom (Kerala) 1989 Volume 1, Kerala Law Journal 163; T. R. Balasubramanian Vs. Shriram Scientific and Industrial Research, Delhi 2006 (129) DLT 763; Uni- world Garden Apartment Owners Association Vs. Unitech Realty Private Ltd., 2018 (246) DLT 735; Satyavart Sidhan- talankar Vs. Arya Samaj, AIR 1946 Bombay 560.
48. Reliance in this regard is also placed on judgment titled as The Board of Trustees Ayurvedic Andunani Tibia Col- lege, Delhi Vs. State of Delhi, AIR 1962 SC 458, wherein it is held as under:
"It is trite law that society registered under the Society Regis- tration Act, is legal persona capable of suing and being sued in the name of its President, Chairman or Principal Secretary or Trustees as may be determined by the rules and regulations of the Society."
49. The other contention is that they are having the same ad- dress. In my opinion, this does not affect the relationship of landlord and tenant as appellants are different and respondent no.1 is a different entity. According to appellants, respondent VIRENDER KUMAR BANSAL no.1 was tenant in one office in property i.e no.24, Bhola Nath Digitally signed by VIRENDER KUMAR BANSAL Nagar behind Geeta Bhawan, Shahdara, Delhi. RW1 when ap- Date: 2024.02.29 17:34:43 +0530 peared in the witness box, he does not say that respondent no.1 RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 26/33 was not tenant in one office of the properties bearing no.24, Bhola Nath Nagar behind Geeta Bhawan and in premises no.1/4490A, Ram Nagar Extension, Shahdara, Delhi.
50. Keeping in view this factual position on record and legal position that a society registered under Society Registration Act is legal entity, therefore, appellants are different then respon- dent no.1. This point also shows that the appeal raises a sub- stantial Question of Law with respect to finding on the issue of landlord and tenant.
51. As per counterfoils of rent receipts proved on record, re- spondent no.1 was the tenant under appellants. According to ap- pellants, respondent no.1 have not paid rent since 01.04.1995 that also at the rate of Rs.3,000/- per month. Legal demand no- tice was sent and served. Evidence in this regard has been proved as legal demand notice has been proved as Ex.PW1/3. Postal receipts of sending legal notice to respondent no.1 have been proved on record as Ex.PW1/4 to Ex.PW1/8. There is nothing on record to disbelieve testimony of witnesses. There is no evidence that any rent was paid or tendered by respondent no.1 after receipt of this notice. Once the petitioner has proved the existence of landlord-tenant relationship between appellants and respondent no.1, the fact that respondent no.1 was in ar- rears of rent and legal demand notice was duly served upon re- spondent no.1, it was for the respondent no.1 to show that they have paid or tendered rent or was not in arrears of rent, but there is no such evidence. Hence, all the ingredients to establish ground for eviction under section 14 (1) (a) of the Act are made VIRENDER KUMAR out. BANSAL Digitally signed by VIRENDER
52. Keeping in view all these facts in my opinion the order of KUMAR BANSAL Date: 2024.02.29 17:34:52 +0530 the Trial Court dismissing the petition under Section 14 (1) (a) RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 27/33 of the Act is not sustainable, hence, the same is set aside. As in this case while dismissing the petition, no order under Section 15 (1) of the Act was passed, therefore, keeping in view the evi- dence and facts, respondent no.1 is directed to deposit rent at the rate of Rs.3,000/- per month from 01.01.1999 till date within two months from today along with interest at the statu- tory rate of 15% per annum from the date it has become due to the date on which it is paid.
53. Now I take up the ground of eviction under section 14 (1)
(b) of the act.
54. Learned counsel for the appellants submitted that admit- tedly now it is respondent no.2, who is running the school and respondents no.3 and 4 are managing the school. Respondent no.1 is nowhere in the picture. The fact that it is respondent no.2, who is running the school and is being managed by re- spondents no.3 and 4 is admitted by witness of respondents it- self i.e Suman Kataria, where she specifically stated as under:
"It is correct that respondents no.3 to 5 (respondents no.2 to
4) have received possession of the premises in question from respondents no.1 and 2. We have not filed any document or government order which can show that respondents no.3 to 5 had taken over the management of the school being run in the property in question."
55. Learned counsel submitted that from this it is clear that now respondent no.1 is no more in possession. Now it is re- spondents no.2, 3 and 4, who are in possession and running the school to the exclusion of respondent no.1. Witness of appel- lants has also stated that he has seen respondents no.2 to 4 mak- VIRENDER KUMAR ing payment to respondent no.1. Learned counsel submitted that BANSAL Digitally signed by VIRENDER even otherwise for making out case for sub letting, the only re- KUMAR BANSAL Date: 2024.02.29 17:35:00 +0530 quirement is whether tenant has parted with possession of the RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 28/33 suit property without the consent of the landlord. In the present case there is no question of consent of the landlord as there is admittedly no such document placed on record. Infact even re- spondents witnesses were asked whether appellants/owners of the property were informed they stated they were not informed. Admittedly, till now respondent no.1 is not in possession and to the exclusion of respondent no.1 now respondents no.3 and 4 are managing the affairs of the school.
56. Learned counsel submitted that the Trial Court has not considered all these facts. In the facts and circumstances of the case the Trial Court should have held that it is clear case of sub letting, but instead dismissed the petition. It is prayed that in view of facts proved on record, the order of the Trial Court be set aside and eviction order under Section 14 (1) (b) of the Act be also passed.
57. Learned counsel for respondents submitted that as there was no relationship of landlord and tenant between appellants and respondent no.1, hence, question of sub letting does not arises at all. Learned counsel submitted that even otherwise it is not sub letting by the alleged tenant to respondents no.3 and 4. Infact respondents no.3 and 4 have taken over the management of the school as per provisions of Delhi School Education Act because there were financial irregularities in managing the school. The school was taken over in 1984. Learned counsel submitted that infact it is the Administrator of the Union Terri- tory of Delhi, who passed order no.645 dated 07.04.1984 VIRENDER through Joint Secretary, Education to take over the management KUMAR BANSAL of the school and consequently management was taken over. It Digitally signed by VIRENDER KUMAR BANSAL was not a voluntary act. It was by action of law and, hence, Date: 2024.02.29 17:35:08 +0530 there is no question of sub letting as it is not the tenant, who has RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 29/33 parted with possession, but it is the respondent no.3 on the or- der of the Administrator has take over the management of the school.
58. Learned counsel further submitted that it is settled law as laid down by the Hon'ble Supreme Court in the case of Vinay Kishore Punam Chand Mundhada & Anr. Vs. Bhumi Kalpataru, & Ors., 2010 SC 560, wherein it was held that sub tenancy or sub letting comes into existence when tenant volun- tarily surrenders possession of tenanted premises wholly or in part and put another person in exclusive possession thereof without the knowledge of the landlord. Para 15 of the aforesaid is reproduced as under:
"15.We are not impressed by the submission made by the learned counsel for the respondents that unless payment of consideration was established as a fact between the tenant and sub-tenant, the application under the provisions of the Rent Control order filed by the landlord cannot be allowed. Is it possible for any landlord to establish the actual agree- ment or understanding between the tenant and the person to whom the possession of the premises is delivered? It is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of scene rather, such arrangement whereby and where- under the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the ten- ant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property. It would be impossible for the landlord to prove, by direct evidence, the arrange- ment between the tenant and sub-tenant. It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid VIRENDER KUMAR monetary consideration to the tenant. Such arrangement BANSAL which may have been made secretly, cannot be proved by af- Digitally signed firmative evidence and in such circumstances, the Court is by VIRENDER KUMAR BANSAL required to draw its own inference upon the facts of the case Date: 2024.02.29 17:35:18 +0530 proved at the enquiry. Delivery of exclusive possession by the tenant to a stranger to the landlord and without the RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 30/33 prior permission of the landlord is one dominant factor based on which the Court could infer as to whether the premises was sub-let."
59. Learned counsel submitted in the present case also there is no such evidence that respondent no.1 voluntarily surren- dered or parted with possession in favour of respondents no.2, 3 and 4. There is also nothing on record that rent is being paid by respondents herein to respondent no.1 as witness PW1 has specifically stated that he does not know if the amount paid was rent or it was for some other purpose, hence, ingredient of pay- ment of rent is also not proved and established by the appel- lants, the onus of which was on the appellants. Learned counsel submitted that under the circumstances, it is clear that the Trial Court has rightly held that no case for sub letting is made out. There is no merit in the appeal and prayed that appeal be dis- missed.
60. After hearing arguments and going through the record, I found that for making out case for sub letting, it has to be proved and established that tenant has parted with possession of the suit property without written consent of the landlord.
61. In order to prove sub letting, there must be parting with possession which means right to include or exclude other per- son and once it is proved that a particular portion of the premises has been given on exclusive possession to a stranger then onus shifts on the tenant to prove that there is no such part- ing with possession. Unless there is parting with possession to VIRENDER the exclusion of the original tenant, there is no question of sub KUMAR BANSAL letting. However, it is not required that landlord must prove Digitally signed by VIRENDER KUMAR BANSAL payment of rent as generally it is seen that sub letting is done Date: 2024.02.29 17:35:26 +0530 behind the back of the landlord to conceal the overt act and RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 31/33 transfer the possession clandestinely. It is the actual physical and exclusive possession of another person instead of the ten- ant, which ultimately reveal to the landlord that the tenant to whom the property was let out has parted with possession and sub let the same.
62. Keeping in view the fact that payment of rent is essential element of sub letting but as it is done secretly, it is not required that such payment has to be proved by affirmative evidence and court may draw its own inference in the facts and circumstances of each case. Reliance in this regard can be placed upon judge- ment titled as M/s Bharat Sales Ltd. Vs. Life Insurance Cor- poration of India, AIR 1998 SC 1240. The same principle was followed by Hon'ble Supreme Court in the case of Rajbir Kaur & Anrs. Vs. S. Chokesiri & Company (1998) Volume 1, SC Page 80.
63. In the present case as per the evidence which has come on record, it is not the tenant, who has handed over possession to respondents no.2 to 4, but the respondents no.2 to 4 have taken over possession under the Delhi School Education Act by taking over the management. This stand on different footing as transfer is by operation of law and not voluntary transfer. It is settled law as laid down in various cases i.e Hindustan Com- mercial Bank Ltd. Vs. British Motor Car Company, 2012 (180 ) DLT 84 and also in Hindustan Petroleum Corporation Ltd. & Anrs. Vs. Shyam Cooperative Housing Society and Ors., 1988 Volume 4 SC 747.
64. In view of this legal position and facts and circumstances VIRENDER KUMAR BANSAL of the case as it is not the tenant, who has handed over the pos- Digitally signed by VIRENDER KUMAR session to respondents no.2 and 4, but he has been compelled BANSAL Date: 2024.02.29 17:35:36 +0530 under law that management has been taken over by respondents RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 32/33 no.2 to 4. In my considered opinion, it is not a case of sub let- ting. The onus which was on the appellant has not been dis- charged. Hence, to that extent I do not find any merit in the ap- peal.
65. Keeping in view the above discussion, so far as the ap- peal challenging the order under Section 14 (1) (a) of the Act is concerned, the appeal is allowed. Order under Section 15 (1) of the Act as mentioned above is passed. Respondent no.1 is di- rected to make payment of arrears of rent within two months along with interest at the statutory rate of 15% per annum from the date it has become due to the date on which it is paid. Trial Court is directed to send copy of the order to respondent no.1 herein for its compliance and then pass appropriate order as to whether respondent no.1 is entitled to benefit under Section 14 (2) of the Act or not.
66. So far as appeal challenging the order under Section 14 (1) (b) of the Act is concerned, I do not find any merit in the ap- peal. Same is dismissed. Appeal is accordingly disposed of.
67. Copy of the order along with Trial Court record be send Digitally back. signed by VIRENDER VIRENDER KUMAR
68. File be consigned to Record Room. KUMAR BANSAL BANSAL Date:
2024.02.29 17:35:43 +0530 Announced in the open (V. K. BANSAL) court today i.e on Principal District & Sessions Judge, 29th February, 2024 North East, Karkardooma Courts, Delhi.RCT no.17/16 Ram Mehar Vs. Nihal Educational Welfare Society & Ors. Page 33/33