Delhi High Court
Sohan Lal vs Sri Pal And Ors. on 29 May, 1992
Equivalent citations: 48(1992)DLT65
JUDGMENT S.C. Jain, J.
(1) Facts giving rise to this second appeal are that an eviction petition was filed with respect to the premises comprising the entire the first floor, second floor along with stairs of premises No. 5730 (old) and 5011 (new) Rui Mandi, Sadar Bazar, Delhi on the ground that the tenant appellant has sub let, assigned or parted with the possession of the demised premises to R.P. Hosiery, T.R. Hosiery and Lovely Hosiery without the written consent of the landlord somewhere in 1966. The grounds of substantial damage and misuse were also pleaded but these grounds were not pressed.
(2) The eviction petition was contested by the appellant tenant pleading that no valid notice of termination of tenancy has been served and as such the eviction petition was not maintainable. On merits, he pleaded that the premises were not sub let, assigned or parted with possession by him to any one. There are no sub tenants in the premises in question.
(3) On the basis of oral as well as documentary evidence adduced by the landlord and relying upon the decisions of this Court in Abdul Aziz v. Mohd. Yahub, 1971 Dlt 192 both the Courts of the Addl. Rent Controller and the Rent Control Tribunal came to a finding that the appellant has sub let the demised premises after 1952 without the consent of the landlord and as such the eviction order under Section 14(1)(b) of the Delhi Rent Control Act was passed.
(4) Aggrieved, the appellant has filed this second appeal.
(5) Clause (b) to proviso to sub-Section (1) of Section 14 of the Delhi Rent Control Act, uses there expression, namely, "sub letting", "assigning" and "parting with possession" of the whole or part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with different concepts and apply to different circumstances. In sub letting. there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and the instance of letting or the tenancy must be found namely the transfer of an interest in the estate, demand of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression parting with possession undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been assigned by the lease and the parting with possession must have been by the tenant. The mere user by other person is not parting with possession so long as the tenant retains the legal possession himself or in other words, there must be vesting of the possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The divestment or abandonment of right to possession is necessary in order to invoke the clause of parting with possession.
(6) This is the law as has been laid down by this Court in Hazari Lal v. Giani Rani, 1972 R.C.R. 74 and Vishwa Nath v. Chaman Lal, approved by the Supreme Court in .
(7) The Court below mainly relied upon the statement of S.L. Aggarwal clerk of the Labour Department Awi, Srivastava official of the Sales tax Department, Aw 5, Balwant Singh, official from the Income tax Department AW6, Babu Ram clerk of Punjab National Bank AW7, Bishamber Nath clerk from State Bank of India Aw 8, Shri Harish Chander Photographer Aw 9 and Sumer Chand Gupta Aw 4 and came to the conclusion that the three firms P.R. Hosiery, T.R. Hosiery and Lovely Hosiery had been working at certain time from the demised premises. According to the Courts below it is very difficult for any landlord to procure any direct evidence of sub letting. The landlord has to depend on circumstantial evidence in order to show that his tenant has sub let the premises to the strangers. Relying upon the decision of this Court in Abul Aziz v. Mohd. Yakub, 1971 Dlt 192 the Courts below held that since these firms had been shown to be in possession of the. premises, it was for the tenant to explain as to in what capacity they were there in. the suit premises but the tenant has failed to explain and, therefore the finding must be given that the tenant has sub let the premises without the written consent of the landlord.
(8) The plea of the learned Counsel for the respondent that sub letting is a question of fact and therefore, this court in the second appeal cannot reappreciate the evidence is not tenable in the present circumstances of the case. It is true that ordinarily High Court does not reappreciate the evidence in the second appeal, ^however, this Court can interfere in the concurrent finding of fact if it comes to the conclusion that the reasoning of the Court below is against the settled principles of law or the findings are perverse. Supreme Court in Siri Chand v. Gulzar Singh, (1991) 6 J.T. 532 while approving the judgment of Delhi High Court reported in (1991) 29 Dlt 50 held that such a finding cannot be sustained which is based on inadmissible evidence under the Act. If the finding of sub letting or parting with possession of the premises was reached by the Rent Controller and the Tribunal primarily based on in admissible evidence, the High Court has power to interfere in such a finding in the second appeal.
(9) In view of this legal position it has to be seen whether the reasoning of the Courts below is against the settled principles of law or the findings are perverse. It is also to be seen in this second appeal whether the finding of the Courts below is primarily based on inadmissible evidence.
(10) The Courts below mainly relied upon the statements of AW1 S.L. Aggarwal clerk from the office of Labour Department who deposed that Lovely Industries applied for registration on 10.1.66 and furnished the address of 5011 Rui Mandi, Sadar Bazar. In the cross-examination he deposed that no verification was done before granting the registration. He had not brought any record of Lovely Hosiery as it was not summoned from him and he did not know whether any such record existed in the Department or not. Aw 5 Shri S.K. Shrivastava from Sales Tax Department brought the official record and deposed that T.R. Hosiery has given the address of 501 I, Rui Mandi for obtaining the sales tax number and since 27.10.66 sales tax number has been allotted to the said firm at the aforesaid address. Similarly P.R. Hosiery has been allotted sales tax number at the address 5011 Rui Mandi, Sadar Bazar, Delhi since 24.6.63. Lovely Industries had been granted sales tax number at premises 5011 Rui Mandi since 17.1.1966. In respect of the first two firms the witness stated that the sales tax number expired in 1968 and 1969 respectively while in respect of the third firm he stated that sales tax number still survives. This witness deposed that he never visited the demised premises and therefore he was not in a position to say whether any such firm existed at the given address. Aw 6 Balwant Singh from the Income Tax Department brought files of these firms which showed that these firms had given the address of 501, Rui, Mandi. In his cross-examination he admitted that he bad not visited the premises in question. Aw 7 clerk of Punjab National Bank brought account opening form Ex. Aw 7/1 and its copy Ex. AW. 7/2 showing that Lovely Industries had opened account giving the address of 5011 Rui Mandi. This account had been in operation till 10.5.67. Aw 8 clerk of State Bank of India brought the account opening form of P.R. Hosiery and proved a copy Ex. Aw 8/1. Similarly he produced the account opening form of T.R. Hosiery copy of which is Ex. Aw 8/2 which showed that these firms had opened bank account giving the address of 5011 Rui Mandi. But in the cross-examination he stated that he had never been to the suit premises. Aw 9 is the photographer who proved photographs Aw 9/1 to Aw 9/5 which shows the board of the firms displayed outside the suit premises.
(11) Besides relying upon the statements of these witnesses the trial Court also relied upon the statement of Sumer Chand Aw 4 who alleged himself to be a dealer in hosiery goods. He deposed that his firm had been selling goods to P.R. Hosiery and T.R. Hosiery and he produced Ex. Aw 4/1 to Aw 4/1 I bills taken out from his bill book which allegedly bear the signatures of persons carrying on business of these two firms. He also deposed that he had been visiting the said firms in the property in question. He deposed that there was an office on the right hand where he saw these firms working He stated that both the firms were working from one room. Aw 3 Sham Lal stated that he had purchased hosiery goods from Lovely Hosiery. According to him he visited the said firm on the top floor of the house. Another witness is Rc Gupta Aw 2 who claims to be an industrial consultant. He proved a copy of letter Aw 2/1 addressed to P.R. Hosiery which he had sent by registered cover, which was received by P.R. Hosiery against Ad receipt Ex. PW/3. By this letter he had introduced himself as an industrial consultant with a view to render his services for procuring import license etc. (12) On the basis of the evidence produced by the landlord, the Courts below came to the conclusion that the said firms had been working at certain time in the demised premises. However, it was observed that it was very difficult for any landlord to procure any direct evidence of sub-letting.
(13) Now touching the evidence adduced by the landlord respondent, I find that there is not an iota of evidence to indicate that the appellant tenant had sub let the suit premises to either of these firms or to all of them. Nobody has come forward to say that there existed relationship of landlord and tenant between the tenant and the sub tenant. Even the transfer of interest in the estate, demand of rent and right to possession against the tenant in respect of the premises sub let has not been proved. From the evidence of the officials of Labour Department, Sales Tax, Income Tax Departments and banks it can at the most be presumed that firms P.R. Hosiery, T.R. Hosiery and Lovely Industry gave their address of 5011 Rui Mandi. No official has come forward to state that they had gone to the site and found these firms working in the demised premises. Whether these firms existed on the ground floor, first floor or second floor has not been proved by the statement of these officials. The entire building comprising of the ground floor, first floor, second floor bear Municipal No. 5730 (old) and 5011 (new) Rui Mandi, Sadar Bazar, Delhi. It is admitted case that whole of the building is not in the tenancy of the appealllant. Only the portions on the first floor and second floor were let out to the appellant. The appellant is concerned only with the portion let out to him and not with the rest of the building which also bears Municipal No. 5011. Supreme Court in Jagdish Parshad v. Angoori Devi, repelled the proposition of law as laid down in the case of Abdul Aziz v. Yakub Khan, 191 R.C.J. 492 (Delhi) and relied upon by the Court below in this case and observed that merely from the presence of a person other than the tenant in the shop sub letting cannot be presumed.
(14) AW4 Sumer Chand Gupta, upon whose statement much reliance has been placed by the Courts below, has not come with true facts. He seems to have joined bands with the respondent in committing forgery in creating false evidence. In his cross examination he stated that his firm is registered under sales tax at Rohtak as well as at Delhi. A persual of the copies of bills Ex. Public Witness 4/1 to Ex. Aw 4/6 show that they pertain to the period .April, 65 to October, 1965. Sales tax has been shown to have been charged on the sales alleged to have been made through these bills. He has not produced any account books nor he has shown whether any such sales tax was deposited by him which is shown to have been charged in these bills. M/S. T.R. Hosiery is a party to the eviction petition but no notice was served upon it to produce the original of the bills. Duplicate copies of the bills can be prepared at any time to show and prove their genuineness. It was incumbent upon him to show that the sales tax which was charged against those bills was accounted for and deposited with the Dapartment. Ex Aw 4/6 is dated 19.4. 1965 and it shows that a stamp of sales tax dealer has been affixed on it and sales tax No. 41118 has been mentioned. As per the statement of the clerk of the Sales Tax (Public Witness 5) T.R. Hosiery was given local sales tax No. 41118 on 27.10.1956 It means that on 19.4.65 the date mentioned on the duplicate copy of the bill, T.R. Hosiery was not having a sales tax number. This is as per se creation of false evidence. No address of T.R. Hosiery has been mentioned in the copies of the bills. No person who is alleged to have initialled these bills on behalf of T.R. Hnsiery has been examined. No reliance can be placed on such type of carbon copies of bills. Copy of bill AW-4/7 shows that it was issued on 15.3.66 but no sales tax has been charged. Rather there is an endorsement by putting stamp of P.R. Hosiery "S.T. No. 29257 D.00 11-4-63 For P.R. Hosiery Factory Partner". It shows that P.R. Hosiery was registered under sales tax on 11.4.63 and as such no sales tax was to becharged. However as per the statement of the official of Sales Tax Department, (Public Witness 5) P.R. Hosiery was issued Sales Tax Registration only on 24.6.63, whereas in the stamp on the bill the date of registration was given as 11.4.63. This stamp seems to be fabricated which was put to create false evidence. Same thing applies to copies of bills Ex Aw 4/8 to Aw 4/11. No account books have been produced to show that these amounts were duly received in the account books and the firm sold the goods to P.R. Hosiery. Even the address is not given on the bills Even Ram Bhaj who is alleged to have signed these bills on behalf of P.R. Hosiery has not been produced. By producing these duplicate copies of bills without support from the account books carries no weight and inspires no confidence. P.R. Hosiery was a party in the eviction petition but no notice of producing original bills was served upon it. The Courts below have wrongly relied upon the inadmissible evidence.
(15) His statement that he personally went to the suit premises to deliver the goods is also falsified from his own statement and from the pleas taken by the landlord respondent herein. According to him both the firms were working from one room. In the plan Ex. A 2 of the demised premises filed by the respondent, one room mark A is shown under P.R. Hosiery while four rooms mark-B are shown under T.R. Hosiery and Lovely Hosiery is shown to be in possession on the second floor. His statement is in contradiction of the plan filed by the landlord himself. In these circumstances his statement cannot be believed. He is a procured witness.
(16) The evidence of the photographer Aw 9 who has produced photographs Aw 9 I to Aw 9.5 has also been wrongly relied upon by the Courts below to arrive at the finding of sub letting. The evidence is inadmissible as he has not produced the negatives of the photographs. Even otherwise it has been laid down by the Supreme Court in Jagdish Parshad v. Angoori Devi. that the allegation that the premises were sub let has to be proved as a fact by the landlord. From the presence of the signboards of some firms on the building, fact of sub letting could not be presumed. Needless to say that the entire building 5011 Rui Mandi, is not in the tenancy of the appellant.
(17) Aw 2 R.C. Gupta is also a procured witness as has been held by the Rent Control Tribunal itself. The Rent Control Tribunal has not put any reliance on the evidence of this witness so there is no need to discuss the evidence given by him. However, this fait cannot be lost sight of that the respondent land-lord had tried to create false evidence just to get an eviction on order of commercial premises on the ground of sub letting, (18) Mr. Sham Lal Aw 3 who stated that he saw Lovely Industries working at 5011 Rui Mandi is not reliable witness. He has contradicted himself in his own statement. No effort was made by the landlord to get identification from this witness regarding the premises alleged to be in occupation of the sub tenant with reference to the site plan. He is also a procured witness who does not seem to have any personal knowledge in the matter. The landlord himself who appeared as Aw 11 has not proved the fact of sub letting. According to him he did not see the alleged sub tenants locking and unlocking the disputed premises. As long as the control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub letting, and parting with possession of the premises cannot be presumed. The Act does not require the Court to assume sub tenancy merely from the presence of an outsider.
(19) In this case, the Courts below unwarrantedly drew the presumption and looked at the evidence of the tenant appellant herein apparently to find out whether the presumption has been rebutted. There is no warrant in law for such a situation. The approach of the Courts below is totally vitiated. Merely from the presence of some persons other than the tenant in the shop, sub letting cannot be presumed. In order to prove the tenancy or sub tenancy two ingredients have to established : firstly, the tenant must have exclusive right to possession or interest in the premises in question and secondly, that right must be in lieu of some compensation or rent. Mere occupation is not sufficient, in my opinion, to infer subtenancy or parting with possession. Both the Courts below have misinterpreted the evidence on record and their reasoning is against the settled principles of law. Under these circumstances, I accept this second appeal, set aside the judgment of both the Courts below. However, the parties are left to bear their own costs.