Delhi High Court
Niranjan Lal Kanodia vs Harbans Lal on 1 April, 1995
Equivalent citations: 1995IIAD(DELHI)347, 1995(34)DRJ14
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT Arun Kumar, J.
(1) The appellant has filed the present appeal against the judgment of the Rent Control Tribunal dated 25th September 1981 whereby an eviction order was passed against the appellant under clause (b) of the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act).
(2) The brief facts are that the respondent filed an eviction petition against the appellant herein alleging that the appellant tenant had sublet,.assigned or otherwise parted with possession of the tenancy premises and, therefore, was liable to be evicted in view of the provisions of Clause (b) of proviso to Sub-section (1) of Section 14 of the Act. The respondent landlord claims to have purchased the property in suit on 16th December 1968 through a duly registered sale deed. The appellant is an old tenant in a shop in the property bearing No.3116,Gali Chapa Khana Wali, Sadar Bazar, Delhi. In the eviction petition itself the landlord stated that the appellant was an old tenant. According to the appellant he was a tenant with respect to the shop in question since the year 1944. Unauthorised sub-tenants were alleged to be M/s Kanodia Hosiery Mills, Kanodia Company, Modern Straw Board Mills Pvt. Ltd. and S.D. Company. According to the landlord a notice dated 9th March 1969 was duly served on the tenant terminating the tenancy. A further notice dated 16th March 1970 was also served on the tenant. The landlord had also obtained the requisite permission under section 19 of the Slum Areas (Improvement' & Clearance) Act, 1956.
(3) In the written statement the case of the tenant was that there was no relationship of tenant and landlord between the parlies. The tenant had no knowledge of the purchase of premises in suit by the landlord who instituted the eviction petition. The allegation regarding sub-letting, assigning or parting with possession etc. was vehemently denied. The case of the tenant was that he was in occupation of the tenancy premises since the year 1944. He was the sole tenant of the premises in his individual capacity. He was sole proprietor of M/s Kanodia Hosiery Mills and Kanodia Company. Regarding Modern Straw Board Mills Pvt. Ltd. it was stated that the tenant Niranjan Lal Kanodia was himself the Chairman and Director of the said company and, therefore, the company was his own concern. As regards S.D. Company it. was slated that this firm was a partnership firm consisting of his wife and his son as partners. The said firm was commission agent for the goods manufactured by Kanodia Hosiery Mills. M/s Kanodia Hosiery Mills was owned by Kanodia Company. Kanodia Company was the sole proprietorship of Niranjan Lal Kanodia. The rent of the premises was paid by Kanodia Company. Therefore, according to tenant it could not be said to be a case of sub-letting, assigning or parting with possession of the tenancy premises.
(4) The Addl. Rent Controller found that Harbans Lal Jain, respondent was the landlord of the premises in suit and, therefore, had locus standi to file the eviction petition. On the main point of controversy, i.e. Section 14(l)(b) of the Act the Addl. Rent Controller came to the conclusion that the landlord had failed to prove his case regarding sub-letting, assigning or parting with possession of the whole or part of the suit premises. It .was held that the landlord failed to prove that the tenant Niranjan Lal Kanodia had divested himself of all the rights in the property in suit as tenant. Therefore, the eviction petition was dismissed. The landlord filed an appeal against the judgment of the Addl. Rent Controller. Landlord's appeal before the Rent Control Tribunal succeeded and by the impugned order the Tribunal held I hat ingredients of Clause (b) of the proviso to Sub-section (1) of Section 14 of the Act were made out. An eviction order was, therefore, passed against the tenant. Thus the tenant is the appellant in this Court.
(5) The main controversy in the present case revolves round the fact as to whether there is sub-letting, assigning or parting with possession by the tenant of the tenancy premises or any part thereof. In the eviction petition four parties were mentioned as the alleged sub-tenants. The controversy before the Addl. Rent Controller as well as before the Rent Control Tribunal and also before this court has been confined to M/s Modern Straw Board Mills Pvt. Ltd.(hereinafter referred to as the Limited Company) and M/s S.D. Company. So far as the other two alleged sub-tenants are concerned, i.e. Kanodia Hosiery Mills and Kanodia Company there is even otherwise no scope for any controversy because Kanodia Company is the sole proprietorship of Niranjan Lal Kanodia. Kanodia Company owns Kanodia Hosiery Mills. The sole tenant in the premises was Niranjan Lal Kanodia in his individual capacity. Therefore, no question can be raised qua Kanodia Company and Kanodia Hosiery Mills.
(6) The law on the question of sub-letting is fairly well settled. Mere user of a premises by any person or party does not amount to sub- letting, assigning or parting with possession so long as the tenant retains legal possession of the premises with himself. The lest to be applied is: has the tenant given up or lost the right to the premises? If he retains the right to possess the premises it will not be a case of sub-letting. In Jagdish Prasad vs. Angoori Devi, it was observed "the Act does not require the Court to assume a sub-tenancy merely from the fact of presence of an outsider". In Jagan Nath vs. Chander Bhan, , a case under the same provision which is for consideration in the present case, it was held "it is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by the other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of Clause (b) of Section 14(1) of the Act. It was further observed "where the tenanted premises were residential-cum-commercial and the tenant was carrying on the business with his sons and the family was a joint Hindu family, it was difficult to presume that the tenant had parted with possession legally to attract the mischief of Section 14(l)(b) of the Act. Even though the tenant had retired from business and his sons had been looking after the business, it could not be said that the tenant had divested himself of the' legal right to be in possession.
(7) In Deepak Banerjee vs. Lilavati Chakravorty, , it was observed that in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of some compensation or payment of rent.
(8) In the background of this legal position it is to be examined whether it can be said qua private limited company and/or as the company that there was sub-letting, assigning or parting. with possession of the tenanted premises or part of tenanted premises so as to bring the case within the mischief of Clause (b) of proviso to Section 14(1) of the Act. First I will take up the case qua the private limited company. The only material witness on this point is Gopal Dass, AW- 1, a Clerk from the office of the Registrar of Companies. According to the statement of this witness address of the registered office of the said company in the records of the Registrar of Companies is that of the premises in dispute. The witness says that the annual return of the company are signed by two directors. The names of the two directors are Niranjan Lal Kanodia and Shanti Devi. Niranjan Lal Kanodia is stated to be the Chairman of the said company as per the records of the Registrar of Companies and as per the returns filed by the company. In the statement of the witness recorded in Urdu by the Addl. Rent Controller, instead of N.L.Kanodia, it is written as N.S.Kanodia. It is nobody's case that there is any one by the name of N.S.Kanodia. There appears to be an obvious mistake in recording N.S.Kanodia instead of N.L.Kanodia. Ex.A-1 which is an original document from the office of the Registrar of Company bears the signatures of Niranjan Lal Kanodia as Chairman of the Company. Therefore there is no scope or any doubt that actually the name is Niranjan Lal Kanodia and N.S.Kanodia appears to be an inadvertent error. The witness has stated that Shanti Devi is the director of the company since 30/1/1965. Further according to the witness the annual return of the company filed on 30th April 1973 showed that there were two directors of the company, namely, Niranjan Lal Kanodia and Shanti Devi. In cross-examination the witness said that the earlier address of the registered office of the company was 35, Basti Harphool Singh. It is also revealed by the witness that Niranjan Lal Kanodia was one of the original directors of the company. Thus it is clear that Niranjan Lal Kanodia was really the director of the company. He was also the Chairman of the company. He has continuously held this position in the Company from its inception. The registered office of the company was shifted from Basti Harphool Singh to the premises in dispute as per information received on 18th October 1969. According to the witness Niranjan Lal Kanodia is still the Chairman of the company as per records. The witness has also stated that Shanti Devi, the other director of the company is wife of Niranjan Lal Kanodia.
(9) From the above evidence which was produced by the landlord himself it is clear that the private limited company is a business controlled and owned for all practical purposes by Niranjan Lal Kanodia. There is no outsider involved in the Company. The husband and the wife are the directors of the company. The husband Niranjan Lal Kanodia is also the Chairman of the company. Though in law the company has a separate entity yet Niranjan Lal Kanodia is practically the only man behind the said company. Therefore, it cannot be said that Niranjan Lal Kanodia has divested himself of the right to possession of the tenanted premises by allowing the Company's presence in the premises. There is no allegation or evidence of payment of any rent by the company to Niranjan Lal Kanodia. The learned counsel for the respondent landlord emphasised that if the company was originally registered at the address of the tenanted premises it could not be said to be a case of sub-letting, assigning or parting with possession. However, according to the learned counsel, the company was originally registered at the address of Basti Harphool.Singh and was subsequently shifted to the address of the tenancy premises. Therefore, the case will fall within the mischief of Clause (b) of Section 14(1). I fail to understand how the change of the registered office of the company will make any difference on the legal question. The evidence on record reveals that the premises at Basti Harphool Singh was also that of Niranjan Lal Kanodia where Kanodia Hosiery Mills was functioning.
(10) The finding of the Rent Control Tribunal on this aspect of the case is based on an obvious misreading of the statement of Gopal Das, AW-1. The Tribunal has observed that the company has two directors Shanti Devi and Niranjan Lal Kanodia. The Tribunal has further proceeded to observe in the impugned order that there are only two directors in the company now, viz. Shanti Devi and Narender Kumar. On this basis he goes on to observe that Niranjan Lal Kanodia, therefore, has nothing to do with the said company. I do not know from where does the Tribunal get the name Narender Kumar. I have referred to the evidence of Gopal Dass, AW-1 in extenso. The only thing which could be pointed out from the evidence of the said witness was the mention of the name N.S.Kanodia instead of N.L.Kanodia. This I have already explained. This is an obvious mistake in recording of the statement. The document which the witness .produced as well as the reading of his statement in its entirety shows that the only Kanodia referred to at various places is Niranjan Lal Kanddia and none else. Of course Shanti Devi, the other director admittedly is the wife of Niranjan Lal Kanodia. Thus it Is a misreading of the statement of Gopal Das, AW-1 which has led to the error in the judgment of the Tribunal. By reading the name Narender Kumar instead of' Niranjan Lal Kanodia, the Tribunal has proceeded to hold that Niranjan Lal Kanodia had nothing to do with the company. This finding being contrary to record, is totally erroneous and cannot be sustained.
(11) . Now coming to the aspect of the functioning of the said company in the premises in suit, it is not in dispute that the company has its address of the premises in dispute. It has also come in evidence that the company's sign board is also displayed on the premises in dispute. The landlord has tried to lead evidence that the shop had a partition separating one portion of the shop from the other. Some of the witnesses have said that it was a wooden partition while others have said it was a glass partition. Further some witness says that the partition no longer exists and it was there only for a brief period. Be that as it may, whether the partition was there or not, in view of the settled legal position the presence of the limited company cannot lead to the conclusion that there is sub- letting, assigning or parting with possession of the tenancy premises in its favor. The company may be carrying on its business from the premises in suit but the question remains who is the company? In reality the company is none else than Niranjan Lal Kanodia. He is the man behind the company. The.only other director (which is there in order to meet the statutory requirement that there should be at least two directors in a private limited company) is his wife Shanti Devi. In these facts and applying the legal tests as laid down by the Supreme Court a find referred to hereinbefore, can it be said that Niranjan Lal Kanodia has effaced himself from the tenancy premises or a part of the tenancy, premises? Further in these facts can it be said that Niranjan Lal Kanodia has divested himself of the right to possess the premises and the right to possess has vested in the company which is a third party. The answer to all these questions on the basis of the facts on record is only one and that is that none of these tests are satisfied. Niranjan Lal Kanodia retains the right to possess the premises. He has not divested himself of the right to possess the premises. Mere-presence of the company on the premises and the mere fact that it is functioning from the premises does not amount to sub-letting, assigning or parting with possession. Therefore, display of the sign board of the company or even if the portion of .the tenancy premises is partitioned or the company is present in the partitioned portion does not make any difference so far as the legal consequences of such acts arg concerned.
(12) Unfortunately the Rent Control Tribunal did not advert to the legal questions involved in this connection and on the basis of mere presence of the private limited company on the premises in dispute it has been held that it is a case of sub- letting. This was a totally erroneous approach (13) "M/S Madras Bangalore Transport Co. (West) vs. Inder Singh & Ors. is a case in point. A partnership firm occupied the premises as a tenant. The firm founded a limited company with its partners as directors. The firm allowed the company to operate from its tenanted premises Along with it. Both the company and the firm had there sign boards at the premises and they were both registered under the Delhi Shops and Establishments Act as having their offices at the tenancy premises. The owner of the premises filed a suit for eviction alleging sub-letting. The Supreme Court hold that there was no sub- letting, assigning or parting with possession of the premises by the firm to the limited company. The firm continued in occupation of the premises even after the private limited company came in. The firm never effaced themselves from the premises. The private limited Company though a separate legal entity was in fact a creature of the partners of the firm and was the very image of the firm. The limited company and the partnership firm were two only in name but one for practical purposes. There was substantial identity between the limited company and the partnership firm. As such even though the firm and the company were distinct legal entities there was no sub-letting or assignment. This was also a case under Section 14(1)(b) of the Act.
(14) Now let us consider whether a case of sub-letting, assigning or parting with possession is made out on the basis of presence of S.D. Company on the premises in suit. S.D. Company was a partnership firm consisting of Shanti Devi, wife of Niranjan Lal Kanodia that is why the name S.D. Company. The other partner-was none. else but the son of Niranjan Lal Kanodia, namely, Inder Kumar, A copy of the partnership deed is on record as EX.RWX. S.D. Company was appointed as the sole selling agent of Kanodia Company which in turn owned Kanodia Hosiery Mills. Ex.RW1/2 dated 1st April 1963 is the letter of engagement of S.D. Company. The letter is issued by Niranjan Lal Kanodia. This letter throws light on certain aspects which are important for the present cases. Conditions 4 and 5 show that Niranjan Lal Kanodia allowed use of its premises, i.e. premises in dispute to S.D. Company free of rent. Secondly S.D. Company was not to be charged anything for the use of telephone, electricity etc. Further all the bills were to be raised by Kanodia Company regarding sales of its goods. The payments were to be received in the name of Kanodia Company and no payment was to be received from the customers by S.D. Company in its name. S.D. Company was to be allowed commission on the sales at a fixed rate. It appears that S.D. Company was a mere device on the part of Niranjan Lal Kanodia to divide the income possibly as part of income tax planning. On the total sales of the products of Kanodia Company Kanodia Hosiery Mills,S.D. Company was to be allowed certain fixed percentage by way of commission. Therefore, S.D. Company was really not required to do anything. It was just meant to pocket a portion of the income of Kanodia Company. The presence of a sign board of S.D. Company on the premises in dispute has been sought to be established in evidence. As already observed in the context of the private limited company the same reasoning applies here. Presence of S.D. Company on the premises in dispute does not and cannot lead to the conclusion that there is sub- letting, assigning or parting with possession in its favor. Again the test to be applied is: has Niranjan Lal Kanodia effaced himself from the premises? Has he divested himself of the right to possess the premises? The answer to both the questions has to be in the negative. It is nobody's.case that Kanodia Company, or Kanodia Hosiery Mills were not functioning or carrying on business from the premises in shop. In fact the allegation in the eviction petition is of sub- letting on the ground that Kanodia Company and Kanodia Hosiery Mills are in possession of the tenancy premises. In view of this allegation of the landlord himself he cannot say that Kanodia Hosiery Mills or Kanodia Company are not on the premises. If they arc on the premises then Niranjan Lal Kanodia is very much on the premises and he has not effaced himself from the premises. Therefore, it cannot be said that the case will fall within the mischief of clause (b) of Section 14(1) of the Act in view of presence of S.D. Company on the premises in suit.
(15) The Tribunal has relied on an affidavit, filed by Niranjan Lal Kanodia before the Competent Authority in proceedings between the parties under the Slum Areas (Improvement and Clearance) Act 1956. A certified copy of the affidavit is , Ex.AW4/10. In para 3 of the said affidavit it has been stated by Niranjan Lal Kanodia that "I am the owner of Kanodia Hosiery Mills, Kanodia Company,Chairman of Modern Straw Board Mills Pvt. Ltd. The rent of the premises is paid by me from the funds of the Kanodia Company who is the proprietor of the Kanodia Hosiery Mills. S.D. Company is only the selling agents of Messrs. Kanodia Hosiery Mills under the partnership of my wife Shanti Devi and my son Shri Inder Kumar Kanodia. The rent of the premises is sometimes paid out of the funds of S.D. Company by cheques. I file herewith the list of the cheques showing payment of rent out of the funds of S.D.Company. The Depot of Kanodia Hosiery Mills exists on these premises. Bills are also issued by Kanodia Hosiery Mills. This would show that there is no subletting, assignment or otherwise parting with possession of the tenancy premises. No bills are issued by the S.D. Company, all mills are issued by Kanodia Hosiery Mills at the depot. All challans are issued to the customers by Kanodia Hosiery Mills and not by the S.D. Company".
(16) From this quotation it emerges that Niranjan Lal Kanodia claims himself to be the owner of Kanodia Hosiery Mills and Kanodia Company and Chairman of Modern Straw Board Mills Pvt. Ltd. He says that the rent of the premises is paid by him from the funds of Kanodia Company which is the proprietor of Kanodia Hosiery Mills, Further he says that S.D. Company is only the selling agent of Kanodia Hosiery Mills and S.D. Company is a partnership firm of his wife Shanti Devi and son Inder Kumar. Much emphasis has been placed on the statement that sometimes rent was paid out of funds of S.D. Company by cheques. From this statement it is sought to be made out that Niranjan Lal Kanodia was charging consideration from S.D. Company for its presence in the tenanted premises and therefore ingredients of sub-letting are made out. The other part of para quoted above is also important where Niranjan Lal Kanodia says that no bills are issued by S.D. Company. All bills are issued by Kanodia Hosiery Mills. All challans are issued by customers by Kanodia Company and not by S.D. Company. Mere statement that sometimes rent was paid out of the funds of S.D. Company will not make any difference on the legal issues involved. The real issue was what was S.D. Company. As already stated it was only a device possibly to save income tax and there was no one else behind S.D. Company except Niranjan Lal Kanodia himself. Further it was important to note that the inquiry before the Competent Authority (Slums) is to find out the financial status of the tenant so as to see whether he will create further slums if he is evicted from the tenanted premises. In such an inquiry the approach of the tenant is always to suppress his income and show that he does not have any financial status or standing. It appears that it was for this purpose that Niranjan Lal Kanodia suggested that rent was sometimes paid out of the funds of S.D. Company. In any event this statement does not show that Niranjan Lal Kanodia charged' any rent from S.D. Company for allowing it to use tenancy premises. On the other hand there is a specific term in the engagement letter of S.D. Company which is Ex.RW1/2 referred to hereinbefore according to which no rent is to be charged from S.D. Company for use of the premises.
(17) Keeping all these aspects in view it cannot be said that S.D. Company was a sub-tenant in the premises or there was any purling with possession in its favor by the tenant Niranjan Lal Kanodia. In this context reference may be made to Jagannath vs. Chander Bhan (supra). The said case arose in the context of same statutory provision. The tenant was carrying on business with his sons with whom he constituted a joint Hindu family. The premises in question was residential-cum-commercial. The Court went on to observe that even though the tenant had retired from the business and his sons had been looking after the business, it could not be said that tenant had divested himself of the legal right to be in possession. If the father had a right to displace the possession of the occupants, i.e. his sons, it could not be said that the tenant had parted with possession. Same reasoning applies in the present case. It cannot be said that Niranjan Lal Kanodia had effaced himself from premises or divested himself from any right to possess the premises by allowing S.D. Company to use the premises. Moreover it has come in evidence that S.D. Company was dissolved in 1970 when Inder Kumar, the son of Niranjan Lal Kanodia who was a partner of S.D. Company joined Government service. The eviction petition itself was filed in the year 1970 on the basis of the allegation that four-five years back the premises had been sub-let, assigned or parted with possession.
(18) Another important fact to be noted is that the property in suit was purchased by the landlord in the year 1968 and he himself stated in the eviction petition that the tenant was an old tenant in the premises. The case of the tenant was that the alleged sub-tenants or business names, were in existence and functioning from the premises since much before the premises was purchased by the present landlord. The alternative case of the tenant was that these businesses were functioning from the premises with the consent and knowledge of the previous landlord. In these circumstances the respondent landlord ought to have produced the previous landlord as a witness to bring out the truth. The previous landlord was never produced as a witness.
(19) In support of his case the learned counsel for the respondent has referred to certain decisions which I propose to discuss at this stage. First he cites Dr. Vijay Kumar and Ors. vs. M/s Raghbir Singh Anokh Singh, . This Was a case in which the Rent Controller found that the tenant had partitioned the shop into two portions by way of a wooden partition wall. In one portion there was the clinic of the tenant. In the other portion his sons were carrying on business of sale and purchase of motor cars. The wooden partition divided the single door of the shop into two parts so that there were two doors, one leading to the portion in occupation of the father who was a doctor and the other leading to the portion in occupation of the sons who were doing the motor cars business. It was also found that one could not go directly from one portion to the other on account of wooden partition wall. The evidence on record also showed that the two portions were locked separately by the father on the one hand and the two sons on the other hand. On this evidence the Rent Controller found that the alleged sub-tenants were in exclusive possession of their portion and, therefore, it was held that the first appellant, i.e. the tenant had parted with possession in favor of the other two appellants, i.e. his sons. An argument was also advanced that the first appellant being the father of the other two appellants wanted to establish his sons in business and, therefore, permitted them to occupy a portion of the shop for the purpose. As a father it was natural for him to establish his sons in life. In legal terms the argument was that the possession of the sons was permissive possession only. It was held that no presumption could be drawn from mere relationship of father and son or from joint living or from joint messing that the second and third appellants were in permissive possession of the half portion of the shop. Relying on these facts the learned counsel for the respondent submitted that S.D. Company belonged to the members of family of the tenant.. Therefore, the finding of sub-letting or parting with possession was irresistable. I do not agree. Mere close relationship between tenant and the alleged sub- tenant will not change the legal position. In law for giving rise to a finding of sub-letting, the tenant should divest himself of the tenancy premises, which in lieu should vest in the sub- tenant. The facts of the present case do not leave any scope for such an argument. The question is not of close relationship between the tenant and the sub-tenant. Even when there is close relationship there can be sub-letting or parting with possession. Therefore, relationship between tenant and the sub-tenant is not the test for determining sub-letting or parting with possession. The test is, as already stated, has the tenant divested himself of the right to possess the tenancy premises and whether he has totally effaced himself from the premises? In the present case whether it is the private limited company or it is S.D. Company, the facts show that the tenant Niranjan Lal Kanodia never divested himself of the right to possess the premises nor the premises or any portion of the premises ever vested in the alleged sub-tenants. Niranjan Lal Kanodia never effaced himself from the premises.
(20) With reference to the evidence on partition of the shop it may be observed that admittedly the shop has two doors. Both the doors earlier had separate wooden doors which were replaced by separate steel shutters. Though the evidence regarding the partition of the two door shop is contradictory, yet assuming that there is/was a partition in between, it will not make any difference so long as the finding that Niranjan Lal Kanodia never effaced himself from the entire shop or he never divested himself of the possession of the entire shop stands. S.D. Company, though having an independent legal identity, was only allowed a permissive use of the shop, the main use of the shop always remained with Niranjan Lal Kanodia. -It is no where the case of the landlord that Niranjan Lal Kanodia divested himself of the right to possession of the shop Or he ceased to attend the shop or function there from. Similarly if in a partitioned portion the private limited company was allowed to function, that use would be that of Niranjan Lal Kanodia himself in view of the fact that Niranjan Lal Kanodia was all in all so far as the private limited company was concerned.
(21) In Kulwant Kaur vs. S.P.Bawa, , the premises in question was a. shop. The tenant who was a lady allowed his son-in-law to run and manage the business of a Printing Press in the shop. The daughter and the son-in-law of the tenant were residing with the tenant. The evidence on record showed, that the son-in-law was in exclusive possession of the shop. He was in control of the business of the Printing Press and the mother-in-law, i.e. the tenant did not have any connection with the business nor she had any control over the tenancy premises. On these facts it was found that it was a case of sub-letting, assigning or parting with possession. The close relationship between tenant and the person in whose favor assignment or parting with possession was alleged and also the fact that he was actually residing with the tenant, did not make any difference to the main question involved, i.e. whether the case fell within mischief of Section 14(l)(b) of the Act. It was a deaf case where the tenant had effaced herself from the tenancy premises.
(22) Another judgment cited by the learned counsel for the respondent is Roop Chand vs. Gopi Chand Thelia, Air 1984 Sc 1416. This is a case in which the tenant allowed a club to function in the leased premises. The name-board carrying the name of the club came to be exhibited in the premises and it was admitted that the members of the club assembled at the premises everyday and played cards and other indoor games from evening till about midnight. The club was a registered company and had its registered office in the leased premises. On these facts it was found that the tenant had parted with the possession of the premises. Firstly, parting with possession is a question of fact which had to be considered in the light of the tests referred to herein before. Learned counsel for the respondent tried to build an argument in favor of the respondent on the basis of the fact that parting with possession in this case was in favor of a registered company which in the eye of law is an independent juristic person. No doubt that a company registered under the Companies Act is an independent juristic person, yet for purposes of finding out subletting, assignment or parting with possession one has to lift the veil to find out whether there is actually sub-letting or parting with possession. In the case in hand it has been found as a fact that behind the limited company there was no one else except Niranjan Lal Kanodia. This was not so in the case before the Supreme Court. Therefore, on facts the two cases are clearly distinguishable.
(23) Thus none of the cases cited by the learned counsel for the respondent arc of any help to the respondent. This is so because of the facts of the case. learned counsel for the respondent fairly conceded that finally the case has to be decided on the basis of its own peculiar facts. So far as the propositions of law are concerned, they are well settled and there can be hardly any dispute about the same.
(24) In view of the facts on record I am of the considered view that no case of subletting, assigning or parting with possession of the tenancy premises or any part thereof has been made out. The appeal is, therefore, allowed. The order of the Rent Control Tribunal is set aside thereby restoring the order of the Addl. Rent Controller dismissing the eviction petition. I order that the eviction petition filed by the respondent landlord is hereby dismissed. In the facts and circumstances of the case there is no order as to costs.