Delhi District Court
Uma Vati vs Smt Sudershan Kaur on 21 March, 2014
E No. 45/08 1 21.03.2014
IN THE COURT OF Ms. KIRAN GUPTA, SENIOR CIVIL JUDGE
CUMRENT CONTROLLER, NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI
E45/08
Unique ID No. 02403C0965502004
Uma Vati
W/o Late Shri Suraj Prakash
R/o M 21/8, Shaheed Bhagat Singh Marg
(Lady Harding Road)
New Delhi110001
.....Petitioner
Versus
Smt Sudershan Kaur
W/o. Sh Joginder Singh Sethi
(since deceased through LRs)
(1) Sh. Paramjit Singh
S/o. Shri Joginder Singh Sethi
(2) Sh. Jasbir Singh
S/o. Shri Joginder Singh Sethi
(3) Ms. Manjeet Kaur
D/o. Shri Joginder Singh Sethi
All R/o. H No. 311, First floor,
New Rajender Nagar
New Delhi ...... Respondents
Date of institution : 23.12.2004
Date of final arguments : 17.02.2014
Date of judgment : 21.03.2014
Uma Vati Vs. Sudershan Kaur
(since deceased through LRs) Page 1 of 29
E No. 45/08 2 21.03.2014
JUDGMENT:
1 Present petition is under section 14 (1) (b) (j) & (k) of the Delhi Rent Control Act (hereinafter referred as the Act), for recovery of possession of shop on ground floor of property bearing number 21/1, Shaheed Bhagat Singh Marg (Lady Harding Road), New Delhi as shown red in the site plan filed along with the petition (hereinafter referred as tenanted premises). The suit was initially filed against Smt. Sudershan Kaur, however since she expired during the pendency of petition, her LRs were impleaded. One LR Mr. Paramjeet Singh was proceeded exparte vide order dt. 04.01.2010. All the LRs have adopted the same written statement filed by Sudershan Kaur . The expression respondent hereinafter used shall also include LRs of deceased respondent Sudershan Kaur.
2 Brief facts of the case as stated in the petition are that:
Petitioner is the owner/ landlord of double storey building consisting of two flats and eight shops bearing no. 21 and 21 /1 to 7 built upon plot no. 10, block no. 91, Lady Harding Road, New Delhi now known as Shaheed Bhagat Singh Marg, New Delhi.
The tenanted premises was let out to Sh Joginder Singh Sethi who died somewhere in the year 199697 and after his death, respondent was accepted as a tenant at a monthly rent of Rs. 200/ Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 2 of 29 E No. 45/08 3 21.03.2014 besides other charges. The respondent had been doing the business of Ashoka Tent House in the shop. However, for the last 11/2 years, respondent has sublet, assigned and otherwise parted with the possession of the shop without obtaining the consent in writing of the petitioner to one Shri Navneet Singh who has been doing the business of mobile phones therein. It is alleged that respondent is not in possession of the shop and the shop is now in physical possession of Sh. Navneet Singh, the subtenant. It is further alleged that respondent without the permission of the petitioner and contrary to the terms and conditions, imposed by the Land & Development Office, has caused substantial damage to the premises by raising unauthorized construction of 145 sq ft ie the loft in the tenanted premises, as pointed out by L & DO while inspection in the year 1998. It is stated that despite undertaking to remove the said loft, respondent has still not removed the said unauthorized construction and has failed to comply with the direction issued by the superior lessor, thus jeopardizing the interest of the petitioner in the property besides making her liable for the acts and omissions. It is stated that she has also received another notice dt. 22.09.2004 from the office of Land and Development Office whereby she has been asked to remove the aforesaid breaches within a period of 30 days from the date of receipt of the said notice. The petitioner has also been threatened with the liability for payment of the charges for having committed Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 3 of 29 E No. 45/08 4 21.03.2014 the breach of terms of lease and for continuing with the same. It is stated that a notice dt. 08.11.2004 was served upon respondent in this regard, however, she despite the service of the notice has not complied with the same and has not removed the unauthorized construction. It is prayed that since the respondent has sublet the premises to Sh Navneet Singh and has also caused substantial damage to the tenanted portion by constructing the loft, the eviction petition be allowed and respondent be directed to hand over the possession in respect of the tenanted premises to the petitioner . In addition to the recovery of possession cost of the petition is also prayed.
3 In reply filed by the respondent, she has denied all the allegations levelled in the petition. It is admitted that the tenanted premises was let out to her husband in which the Ashoka Tent Industries and Ashoka Telecom are being running. The respondent being the elder member of the family of late Sh. Joginder Singh, the original tenant is running the business left behind by her husband with her two sons namely Paramjeet Singh Sethi and Jasbeer Singh Sethi. It is stated that she is continuously and unentruptedly in the possession of the tenanted premises. It is admitted that petitioner is landlady / owner of the entire building and after the death of her husbad,Sh. Joginder Singh she has been accepted as a tenanted at Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 4 of 29 E No. 45/08 5 21.03.2014 monthly rent @ Rs. 200/ per month besides other charges. It is submitted that she is still doing business in the shop under the name and style of Ashoka Telecom, a Sister concern of Ashoka Tent Industries. (Word "Industries" was added in place of house during the life time of late Sh. Joginder Singh and since then Ashoka Tent Industries is being run by the name of Ashoka tent house). It is denied that respondent is not in possession of the shop or that the shop is now in physical possession of Sh. Naveneet Singh , the alleged subtenant. It is stated that Navneet Singh is employed with M/s. Ashoka Telecom at monthly salary of Rs. 3,000/ per month, which was given to him against voucher duly signed by him. The documents filed by petitioner alongwith petition regarding alleged subtenancy in favour of above said Navneet Singh, have been procured / prepared by Navneet Singh on the directions of the petitioner and her son Ajay Prakash. The petitioner and her son had made the abovesaid employee Sh. Navneet to work for themselves for certain consideration and on the directions of the petitioner and her son, Navneet Singh also filed a collusive suit against the present petitioner in respect of the suit property. However, later on after having come to the know the real story and trick being played by the petitioner and her son, Navneet Singh withdrew the abovesaid suit after giving statement , which was pending in the Hon'ble Court of Ms. Navita Kumari, Ld. Civil Judge, Delhi. It is further stated that at the time of letting out Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 5 of 29 E No. 45/08 6 21.03.2014 of the tenanted premises , in favour of her husband, the above said loft, allegedly unauthorized constructions, was already in existence and same is an old one. Moreover, the superior lessor ie Government of India, Ministry of Works and Housing Land and Development office, Nirman Bhawan , New Delhi had issued several circulations in regard to condonation of breaches, one of such circulation is circulation no. 24 (3)/75CDN dt. 22.03.2003 vide office order no. 7/83 in which providing lofts and providing false ceilings have been condoned / compounded by the concerned authority. It is further stated that no notice has been issued by the superior lessor to the petitioner in respect to the tenanted premises and the petitioner has falsely and baselessly alleged that the superior lessor has issued notices and raised objections against the alleged unauthorized construction. Even otherwise, the alleged unauthorized construction, though not admitted to have been carried out by the respondent is compoundable according to the circulars issued by the superior lessor. It is prayed that present petition is without any merits and is liable to be dismissed accordingly.
4 In the replication filed by the petitioner, she while denying the allegations levelled in the reply has reiterated the facts as stated in the petition. Petitioner has categorically denied that Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 6 of 29 E No. 45/08 7 21.03.2014 Navneet Singh was employee in the tenanted premises under the management of Ashoka Telecom sister concern of Ashoka Tent Industries being run by the sons of respondent. It is further stated that Navneet Singh was inducted as Sub Tenant in the premises and there was litigation between the respondent and sub tenant which further strengthen the plea of subletting raised by the petitioner. It is further stated by civil suit preferred by the Navneet Singh was not a collusive suit but the same was filed in order to assert the independent right in the tenanted premises. It is further stated that none of the unauthorized construction in the form of loft has been condoned or compounded by the superior lessor and showed its ignorance regarding circular no. 24. It is further stated that respondent has divested with the possession of the tenanted premises in favour of Navneet Singh and now he has no control over the same. The affidavit and the voucher are fabricated and cannot be relied.
5 Petitioner in order to support her contentions has examined Smt. Gurcharan Kaur as PW 1 who has relied upon the copy of perpetual lease deed Ex. PW 1/1, copy of mutation letter dt. 23.02.1962 as Ex. PW 1/2, notice issued by L& DO dt. 21.01.1974 in respect of the breaches / unauthorized construction as Ex. PW 1/3. The copy of the inspection report of the department carried on Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 7 of 29 E No. 45/08 8 21.03.2014 24.05.1974 as Ex. PW 1/4. The copy of the inspection report of 1983 is Ex. PW 1/5 . the copy of the inspection report dt. 06.06.1983 is Ex. PW 1/6 . The copy of the inspection report carried on 28.02.1989 is Ex. PW 1/7 and the copy of inspection on 16.10.1998 and 13.05.1993 is Ex. PW 1/8 and Ex. PW 1/9 . The notice sent to respondent dt. 22.09.2000is Ex. PW 1/10 .
5.1 PW 2 Shankar Prasad is the front officer, support executive, Induslnd Bank, Barakhamba Road. He proved the certified copy of account opening form and ledger report of account no. 0005111782050 in the name of Lucky Telecom opened by one Navneet Singh being its proprietor with the address at 21/1, Bhagat Singh Marg, New Delhi as Ex. PW 2/1. The certified copy of documents supplied by said Navneet Singh at the time of opening the account is Ex. PW 2/3 to PW 2/7.
5.2 PW 3 Smt. Uma Vati tendered her evidence by way of affidavit Ex. P 3 and relied upon the documents Ex. PW 3/1 to Ex. PW 3/8. PW 3/1 is the copy of property tax bills. Ex. PW 3/2 is the copy of site plan, Ex. PW 3/3 is the photograph of the premises, Ex. PW 3/4 is the carbon copy of the notice dt. 08.11.2004, Ex. PW 3/5 is the postal receipt and Ex. PW 3/6 is the AD card, Ex. PW 3/7 is the receipt of the courier and Ex. PW 3/8 is the receipt of the UPC. PE Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 8 of 29 E No. 45/08 9 21.03.2014 was closed vide order dt. 11.02.2011.
6 Respondent has examined Naresh Kumar as RW 1 who has proved the attested copy of office order no. 7/83 dt. 22.03.1983 as Ex. RW 1/A , regarding condonation of breaches for violation of properties belonging to L&DO.
6.1 RW 2 Sh. Jasbir Singh Sethi has tendered his evidence by way of affidavit Ex. R2 and relied upon the documents Ex. RW 2/1 to RW 2/19. Ex. RW 2/ 1 to Ex. RW 2/15 are the salary vouchers duly signed by Navneet Singh , Ex. RW 2/16 is the affidavit of Navneet Singh , Ex. RW 2/17 to Ex. RW 2/18 is the certificate issued by Chartered Accountant in which salary given to Navneet Singh is shown for the period from August 2003 to March 2004. Ex. RW 2/19 is the income tax return filed by respondent in the year 2005 for the year 20032004.
6.2 RW 3 Hilal Ahmed Baktoo has tendered his evidence by way of affidavit Ex. R 3. He is one of the tenants in the same building where the tenanted premises is situated and is also the tenant of petitioner.
6.3 RW 4 Avinash Chander Gupta and RW 5 Manjeet Singh Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 9 of 29 E No. 45/08 10 21.03.2014 have tendered their evidence by way of affidavit Ex. R 4 and Ex. R5 . RE was closed vide order dated 20.07.2013.
7 It is argued by the counsel for petitioner that respondent in the entire written statement or during the evidence has not denied that Lucky Telecom was not being run at the tenanted premises at any point of time. It is further argued that the fact that the Lucky Telecom was being run by one Navneet Singh is evident from the bank account which has been duly proved . It is further argued that RW 2 during his cross examination has specifically admitted that he did not keep any register and cannot tell how many servants were employed by him. It is argued that respondent has taken the frivolous plea that Navneet Singh was its employee, when in fact he was the sub tenant who was operating his mobile shop from the tenanted premises as is evident from the documents i.e the bank account opened by Navneet Singh and the same has been proved from the testimony of PW 2. It is further argued that petitioner has successfully proved that the premises were sub let by the respondent and in the absence of any evidence to the contrary, the eviction petition be allowed accordingly. It is further argued that despite specific request by petitioner, the respondent and her LRs have not removed the unauthorized construction ie the loft and hence, the suit be decreed on this Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 10 of 29 E No. 45/08 11 21.03.2014 ground also.
8 Per contra, it is argued by Ld. counsel for respondent that the petitioner issued the notice regarding sub letting dt. 08.11.2004 and thereafter Navneet Singh who was got employed by petitioner herself , in collusion with petitioner filed the suit for injunction on 22.11.2004. When the respondent came to know about the same, she immediately filed the application U/o. 1Rule 10 CPC on 14.12.2004 and thereafter the said suit was dismissed as withdrawn by Navneet Singh on 14.12.2004 itself. It is further argued that Navneet Singh was only employed by respondent at the monthly salary of Rs. 3,000/ per month and the same cannot be termed as subletting. It is further argued that the account, if any opened by him was in connivance with petitioner, without any knowledge to respondent. It is further argued that even today, Ashoka Telecom is being run in the premises, which is the sister concern of Ashoka Tent. It is argued that as regards the alleged unauthorized construction, same was already existing when the tenanted premises was let out and further by the subsequent notification of L& DO same has been regularized. It is argued that since the petitioner has not proved anything ie the alleged sub letting and unauthorized construction / misuser, petition be dismissed accordingly.
Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 11 of 29 E No. 45/08 12 21.03.2014 9 Heard Counsels for the parties and perused the complete record file. In the present petition, petitioner is claiming the possession of the tenanted premises , firstly on the ground that the same has been sub let by the respondent to one Sh. Navneet Singh and secondly on the ground that the respondent without her permission has carried out unauthorized construction ie the loft in the shop.
10 The foremost thing which has to be considered in any petition under the Act is whether there is a relationship of landlord and tenant between the parties. There is no dispute regarding the relationship of landlord and tenant between the parties in the present case. Respondent in the written statement has admitted petitioner as the landlord / owner of the tenanted premises and there is no such dispute regarding the said relationship. PW 3 during her cross examination admitted that at the time of letting out the tenanted premises, it was being run under the name and style of Ashoka Tent House and the same was being run by the husband of deceased Smt. Sudershan Kaur. RW 2 during his cross examination admitted that his father Sh. Joginder Singh was inducted as a tenanted by the erstwhile owner Sh. Kishori Lal. Smt. Sudershan Kaur is the wife of Late Sh. Joginder Singh and she has also expired. After the death of Joginder Singh, Smt. Sudershan Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 12 of 29 E No. 45/08 13 21.03.2014 Kaur was accepted as a tenant at the rate of Rs. 200/ per month besides other charges somewhere in the year 1995. He admitted that the tenanted premises has been correctly shown marked red in the site plan Ex. PW 3/2. Thus the relationship of landlord and tenant between the parties and the size of the tenanted premises is not disputed.
SECTION 14 (1) (b) 11 Now coming to the allegations regarding sub letting. It is stated by petitioner that the respondent without her permission has sub let the tenanted premises to one Navneet Singh. The fact that Navneet Singh filed one civil suit no. 559/04 for permanent and mandatory injunction against Uma Vati ie the petitioner, before the Ld. Civil Judge against dispossession in respect of the tenanted premises is admitted. Further the said suit was disposed of as withdrawn on the basis of the application of Navneet Singh U/o. 23 Rule 1 CPC vide order dated 14.12.2004 is also admitted.
11.1 As per the petitioner, the tenanted premises was sub let by the respondent to Navneet Singh. On the contrary, as per the respondent, Navneet Singh was not the sub tenant but employee of Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 13 of 29 E No. 45/08 14 21.03.2014 Ashoka Telecom ie the sister concern of Ashoka Tent. Though both the parties have alleged against each other that the other in collusion with Navneet Singh filed the civil suit, however, the present court qua the present petition does not has to dwell on the issue as to whether the suit no. 559/04 was a collusive suit between the petitioner and Navneet Singh or respondent and Navneet Singh. The real question for determination is whether the tenanted premises have been sub let by the respondent to said Navneet Singh or not . Further whether Navneet Singh was the sub tenant of respondent or not.
11.2 In Narayan Ratan v. India Mill Stores 1977 RCR, it was held by Hon'ble M.P. High Court that:
"the question whether there is unlawful subletting is, in most cases, a matter of inference to be drawn from the facts of each cases. The initial onus of proving unlawful subletting, in the first instance lies upon the plaintiff. Subtenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed on the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but establish a positive aspect about the capacity in which the alleged Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 14 of 29 E No. 45/08 15 21.03.2014 subtenant is occupying the premises and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts, in which a third person has been inducted into the whole or any part of the premises are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of subletting".
11.3 In Sohan Lal Vs. Sripal & Ors. , 48 (1992) DLT 65, it was held that "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 sublet. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression parting with possession undoubtely 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. In other words, there must be vesting of the possession by the tenant in other person by divesting himself not only of physical possession but also of right to possession . The Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 15 of 29 E No. 45/08 16 21.03.2014 divestment or abandonment of right to possession is necessary in order to invoke the clause of parting with possession."
11.4 In Shri Gurdial Singh Vs. Shri Brij Kishore & Ors 1970 RCJ1001 it has been held that "what is to be seen in each case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee. Though a person may be absent from the premises at a time yet if he has an intention to return to them, it may fairly be said that he is still actually in possession and , therefore, entitled to be protected. If a lessee retains legal possession at all times he does not commit a breach of the covenant against parting with the possession by allowing other people to use the premises. A covenant against the parting with the possession is not broken by sharing the possession with another. It is quite possible in law that a man can permit anyone to occupy and at the same time remain in possession, where the tenant remained in control of each of the companies and the facts shows that he was really and easily carrying on the business of others at his own premises which remained his from first to last, then he cannot be said to have parted with possession. The mere act of letting other persons into the possession by the tenant and permit them to use the premises for their own purpose is not , so long as he retains the legal Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 16 of 29 E No. 45/08 17 21.03.2014 possession himself, a breach of the covenant."
11.5 In Stening Vs. Abraham (1931) 1 CR 470 it was observed that, "a lessee cannot be said to part with the possession of any part of the premises unless his agreement with the licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user, there is no parting with possession.
Retention of a key may be negative indicium but nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to parting with possession. The fact that the agreement is in form of a licence is immaterial as a licence may give the licensee so exclusive a right to the legal possession to a part with possession. It is not the law that no sooner does any as to amount person other than a lessor occupy a premises it must be held that the tenant has parted with the possession of the demised premises . To my mind it is all a question of fact."
11.6 In Shalimar Tar Products Ltd. Vs. H C Sharma, (1998) 1 SCC 70 the Apex Court had noted that, "to constitute a subletting, there must be a parting of legal possession ie possession with the right to include and also right to exclude other and whether in a particular case, there was sub letting or not was a question of fact. To establish Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 17 of 29 E No. 45/08 18 21.03.2014 this ground, the landlord must show that the tenant has completely divested himself from the suit premises and has lost control over it;
11.7 In Jagan Nath vs Chander Bhan & Ors, (1988) 3 SCC 57, having interpreted the provisions of clause (b) of proviso to subsection (1) of section 14 of Act 59 of 1958 it has been held by the Hon'ble Supreme Court as follows:
"The parting with possession must be by the tenant. Parting with possession means giving possession to persons other than those to whom possession had been given by the lease. User by other person is not parting with possession so long as the tenant retains the legal possession himself. 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.
12 Thus from the above said judgments, it is evident that in order to prove the tenancy or sub tenancy two ingredients have to be established. Firstly the tenant must have exclusive right to possess or interest in the premises in question and secondly that right must be in lieu of some consideration or rent. Mere user is not sufficient to infer sub tenancy or parting with possession. It is for the landlord to prove that the tenant has parted with legal possession of the premises. So long as the lessor retains the legal Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 18 of 29 E No. 45/08 19 21.03.2014 possession he cannot commit a breach of law by allowing other people to use the premises. There must be a vesting of possession by the tenant in another person. So long as the tenant retains the legal possession, that if he retains the right to claim possession from the occupant, it would not be possible to say that the tenant had parted with possession, though the occupant may have been given the exclusive user, if the tenant has a right to disturb possession at any point of time, he cannot be said to have parted with possession. Thus to establish subletting the onus is on the landlord to prove through evidence that subtenant was in exclusive possession of the property in question ; that between the sub tenant and the tenant there was relationship of lessee and lessor and that possession of the premises in question was parted with exclusively by the tenant in favour of the subtenant ( reliance placed on Kala Vs. Madho Parshad Vaidya ( 1998) 6 SCC 573:
(1998 AIR SCW 2947): AIR 1998 SC 2779), Benjamin Premanand Rawade (dead) by LRs Vs. Anil Joseph Rawade (1998) 9 SCC 688 and Resham Singh Vs. Raghbir Singh AIR 1999 SCC 3087) 13 In the present case in order to prove that there is sub tenancy in favour of Navneet Singh , petitioner in addition to herself has examined PW 2 ie Bank Manager, IndusInd Bank, Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 19 of 29 E No. 45/08 20 21.03.2014 Barakhamba Road Branch, New Delhi. The relevant portion of the testimony of PW 2 and the relevant portion of cross examination of PW 3 is discussed as under:
13.1 PW 2 during his cross examination deposed that he did not obtain any document from Navneet Singh regarding his nature of occupancy. He further deposed that he has no document in which Navneet Singh has written himself to be a tenant in the premises in question. He further deposed that he did not inquire from any neighbouring shopkeeper about the nature of occupancy of Navneet Singh. He did not demand no objection certificate from Navneet Singh which might have been given by the person from who he had taken the premises. He further deposed that the bank has no concern with the possession of the premises in which the person intends to open his account. It may belong to someone else.
13.2 PW 3 during her cross examination admitted that at the time of letting out the tenanted premises, it was being run under the name and style of Ashoka Tent House and the same was being run by the husband of deceased Smt. Sudershan Kaur. She further admitted that at present the shop is being run under the name of Ashoka Telecom. She denied the suggestion that Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 20 of 29 E No. 45/08 21 21.03.2014 proprietor of Ashoka Tent House and Ashoka Telecom are the same person. She deposed that the LRs of Sudershan Kaur has sub let the premises to Sh. Navneet Singh as she has seen Navneet Singh in the tenanted premises who has been paying the electricity bill and also maintaining his account in the bank by giving his address of the shop. She admitted that Navneet Singh has also filed a case against her with the claim that he should be treated as a direct tenant under her . She denied the suggestion that Navneet Singh was a servant of Smt. Surdarshan Kaur or was employee of monthly salary of Rs. 3,000/. She further denied the suggestion that Navneet Singh tendered rent to her in respect of tenanted premises treating himself as a tenant. She denied that there was any collusion between her and Navneet Singh. She deposed that she does not remember as to on which date lastly she has seen Navneet Singh at tenanted premises. She further stated that she has seen Navneet Singh at the premises about 23 years back.
When she has last time seen Navneet Singh at the premises , at that time he used to carry on business at the premises and also used to park his vehicle outside the premises. She denied the suggestion that the LRs of Late Smt. Surdarshan Kaur were always present at the premises whenever Navneet Singh used to be present at the premises. She admitted that she has never seen Navneet Singh paying any money to the LRs of Smt. Sudershan Kaur. She denied Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 21 of 29 E No. 45/08 22 21.03.2014 the suggestion that she has never seen Navneet Singh opening or closing the door of the premises. She denied the suggestion that at the time of opening or closing of the premises, she used to be at her house and was never present near the premises.
14 From the testimony of PW 2, it is evident that the concerned official or any official of the bank neither visited the premises nor took any document or certificate regarding the possession of Navneet Singh in the tenanted premises. PW 2 has categorically deposed that bank has no concern with the possession of the premises on which the person intends to open the account. It may belong to some one else. Thus from the testimony of PW 2, it can at the most be presumed that Navneet Singh gave his address that of tenanted premises. There is no evidence on record to show that any of the official of bank had gone to the tenanted premises or found that Navneet Singh was working in the tenanted premises or there existed any firm in the name of Lucky Telecom. The fact whether any firm by the name of Lucky Telecom existed at tenanted premises has not been proved by the statement of PW 2 .
15 Now coming to the testimony of PW 3 ie. Landlord .
Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 22 of 29 E No. 45/08 23 21.03.2014 She herself has not proved the fact of sub tenancy . She has categorically admitted that she had never seen Navneet Singh paying any money to the LRs of Smt. Sudershan Kaur. Though she has stated that he used to pay electricity bills, however, has also not placed on record any such electricity bill . She has also not placed on record any other document except the photocopy of the application form submitted by Navneet Singh to IndusInd Bank, to prove her contention that the respondent has sub let the tenanted premises to Navneet Singh or that Navneet Singh was running Lucky Telecom in the tenanted premises. In the entire petition or by the testimony of either witnesses, it has not been proved that Ashoka Telecom is the sub tenant. Even the documents i.e the bank account detail are only pertaining to Lucky Telecom. There is no whisper of Ashoka Telecom being the sub tenant in the entire petition or in evidence or otherwise. Petitioner has failed to prove that Ashoka Telecom was also being run by Navneet Singh or that he consequently changed the name to Lucky Telecom. Petitioner in a clandestine manner has placed on record only the form in respect of Lucky Telecom and not Ashoka Telecom which as per Navneet Singh was being earlier run by him as stated in the Civil Suit and subsequently he changed the name to Lucky Telecom. Though the presence of Navneet Singh in the tenanted premises is admitted, however from the testimony of either PW 2 or PW 3 it Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 23 of 29 E No. 45/08 24 21.03.2014 cannot be made out that respondent has totally effaced or divested himself of the right to possession in exclusive favour of Navneet Singh.
16 Further coming to the testimony of RW 2. He admitted that respondent was doing the business of Ashoka Tent House which was started by his father. He while denying the suggestion that the tenanted premises was sublet to Navneet Singh or that he was running the shop in the name of Lucky Telcom volunteered that Navneet Singh was their employee and no firm by the name of Lucky Telecom was ever run from the tenanted premises. He deposed that they have been running the shop under the name and style of Ashoka Telecom. He showed his ignorance and deposed that he does not know that Navneet Singh had ever opened a bank account in the name of Lucky Telecom as proprietor with IndusInd Bank, Barakhamba Road, New Delhi. He further deposed that he has no knowledge whether Navneet Singh maintained a bank account initially in the name of M/s. Ashoka Telecom and then a new account in the name of Lucky Telecom. He denied the suggestion that his mother has sub let, assigned or parted with the tenanted premises to Navneet Singh . He further denied the suggestion that his mother was receiving rent from sub tenant. He deposed that affidavit Ex. RW 2/16 was got prepared by him in Tis Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 24 of 29 E No. 45/08 25 21.03.2014 Hazari Court, when Navneet Singh was playing foul and was trying to connive with the owner. He admitted that he knows Navneet Singh as he was his servant. He admitted that Navneet Singh lodged a complaint with police against him and his brother . He admitted that Navneet Singh used to take keys from him and opened the shop in the morning. He volunteered that other servants also used to take keys from him and opened the shop. He deposed that he has no knowledge with regard to any statement of account of the bank in the name of Lucky Telecom maintained by Navneet Singh. He deposed that he kept Navneet Singh as his servant in the shop in the year 20032004 but failed to tell how many other servants were employed by him at the relevant time. He stated that he does not remember whether any salary register was maintained where the salary of Navneet Singh was shown but volunteered that salary of Navneet Singh was given to him after taking signatures on the vouchers . He denied the suggestions that vouchers Ex. RW 1/1 to RW 1/15 are forged and fabricated. He deposed that the entire record on the basis of which RW 1/17 and RW 1/18 have been prepared is in possession of his brother. He deposed that the accounts pertaining to Ashoka Tent House must have been maintained but he cannot tell the exact position as the matter is very old. He then volunteered that Ashoka Tent House belongs to his father. Ashoka Tent House was a proprietary firm .
Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 25 of 29 E No. 45/08 26 21.03.2014 His father died in 1995 and after the death of his father, he and his brother took over the said firm. The entire official working including the maintenance of the books was done by his brother. Ashoka Telcom was the sister concern of Ashoka Tent house. Ashoka telecom was a proprietary firm and he does not has any record in respect of the any of the two firm since in the year 20042005 he got separated his business from his brother. He deposed that Ashoka Telcom had a bank account in the name of Partnership firm and he and his brother were the partners of the same. He does not have record of the same . He stated that he cannot say whether any dissolution deed or any settlement in writing was prepared at the time of separation of the business from his brother.
17 RW 1 has stood the test of cross examination and categorically deposed that Navneet Singh was merely their employee and premises was never sub let. He in support of his contentions has examined other public witnesses ie RW 3, RW 4 and RW 5 to support his contentions and these witnesses have categorically deposed that there was no concern by the name of Lucky Telcom which was being run in the tenanted premises. When RW 3 was specifically put the question that the business in the name and Style of Lucky telecom was started in the tenanted Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 26 of 29 E No. 45/08 27 21.03.2014 premises, he replied that no firm by such name had ever worked from the said premises. He denied the suggestion that Navneet Singh was running a shop in the name of Lucky Telecom as proprietor in the tenanted premises or has been issuing bills and invoices of the said business. He admitted that he used to see him coming into and going from tenanted premises. He further deposed that Navneet Singh told him that he is drawing his salary in cash. Mr. Jasbir Singh has been doing his business of telephone under the name and style of Ashoka Telecom since year 2000. Prior to the year 2000, Jasbir Singh was doing the business of tent. The business under the name and style of Ashoka Telecom is still being carried on.
18 From the testimony of these witnesses also, it is evident that though Navneet Singh was seen in the premises in the year 20032004, however, he was merely an employee and never sub tenancy was created in his favour. No independent public witness has been examined by the petitioner to support her contentions of sub letting. Admittedly, Ashoka Telecom is in existence and is being carried on in the tenanted premises even today. Thus the legal possession in respect of the tenanted premises was always retained by respondent and there was no exclusive abandonment or divestment of right to possession in Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 27 of 29 E No. 45/08 28 21.03.2014 favour of Navneet Singh. The Act does not require the court to assume sub tenancy merely from the presence of an outsider.
19 At this stage, Ld. counsel for petitioner was critical about the fact that respondent has deliberately not produced the records of Ashoka Telecom. The said argument is misconceived as in eviction cases, the burden is on petitioner and respondent cannot be accused of withholding the records of Ashoka Telecom, when all along the case of respondent has been that Navneet Singh was their employee in Ashoka Telecom to whom they were paying monthly salary of Rs. 3,000/ per month for which they have placed on record the vouchers and income tax returns. Non production of the account books in respect of Ashoka Telecom does not affects or proves the sub letting as alleged by petitioner. Thus from the above discussion, petitioner has miserably failed to prove the ingredients which are necessary to prove the sub letting and has further failed to prove that Navneet Singh was the sub tenant of respondent. Hence, the petition is dismissed for the relief claimed under section 14 (1) (b) of the Act.
SECTION 14 (1) (j) & (k) 20 It is alleged by petitioner that the respondent has Uma Vati Vs. Sudershan Kaur (since deceased through LRs) Page 28 of 29 E No. 45/08 29 21.03.2014 carried out unauthorized construction in the tenanted premises by constructing the loft measuring 145 sq mt. In order to support her contentions she has examined Gurbachan Kaur as PW 1 who has relied upon the inspection reports of L & DO Ex. PW 1/4 to Ex. PW 1/9. On the contrary, the respondent has stated that the loft was already in existence when the tenancy was created in the favour of erstwhile tenant Sh. Joginder Singh. He has further examined RW 1 Naresh Kumar, i.e L&DO, who has proved the notification Ex. RW 1/A whereby the loft has been regularized by L &DO. Since the loft has been regularized by the L&DO, the same cannot be termed as unauthorized construction. Even otherwise, the petitioner has failed to show as to what substantial damage has been caused to the tenanted premises by the said loft or the same is contrary to the conditions imposed by the superior lessor i.e L&DO, in order to seek eviction U/s 14 (1) (j) & (k) of the Act. Hence, the petition for relief u/s. 14 (1)(j) & (k) is also dismissed.
On the basis of above discussion, present petition is hereby dismissed. File be consigned to record room.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 21.03.2014 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
Uma Vati Vs. Sudershan Kaur
(since deceased through LRs) Page 29 of 29