Delhi District Court
Smt. Sita Devi Jain vs Sh. Bhagwan Dass Bajaj (Since Deceased) on 5 August, 2010
IN THE COURT OF SH. BALWANT RAI BANSAL
ARC(CENTRAL), TIS HAZARI COURTS, DELHI
E239/09
Smt. Sita Devi Jain
W/o Late Sh. Ishwar Chand Jain
R/o 4701/21A, Ansari Road
Darya Ganj, New Delhi 110002
...... Petitioner.
Versus
1. Sh. Bhagwan Dass Bajaj (since deceased)
Through his LRs :
a) Smt. Sheela Wanti
Wd/o Late Sh. Bhagwan Dass Bajaj
b) Sh. Krishan Lal Arora
S/o Late Sh. Bhagwan Dass Bajaj
Both R/o H. No. 788, Mohalla Haibatpura,
Najafgarh, New Delhi - 110043
c) Smt. Chandrakanta
D/o Late Sh. Bhagwan Dass Bajaj
R/o B4/5, Milap Nagar,
Uttam Nagar, New Delhi - 110059
d) Smt. Sarita Arora
D/o Late Sh. Bhagwan Dass Bajaj
At Laxmi Traders, Nangloi Bus Stand,
E259/09 1/37
Najafgarh, New Delhi - 110043
2. National Driving and Training School
Through partners Sh. S.S. Bawa and Brahm pal Singh
At 4704/21A, Ansari Raod,
Darya Ganj, New Delhi 110002
...... Respondents.
Eviction Petition u/s 14 (1) (a) & (b) of Delhi Rent Control Act
Date of Institution of the case : 11.11.1997
Date of Judgment reserved : 31.07.2010
Date of Judgment pronounced : 05.8.2010
JUDGMENT:
1. The present petition is an eviction petition filed by the petitioner u/s 14 (1) (a) & (b) of Delhi Rent Control Act against the respondents on the ground of nonpayment of rent and subletting, assigning or parting with possession of the suit premises.
2. Brief facts, as stated in the petition, are that the petitioner is the owner/landlady of the property No. 4701/21A, Ansari Road, Darya Ganj, New Delhi and the respondent no. 1 is the tenant in respect of one shop on the ground floor bearing No. 4704/21 on a monthly rent of Rs. 27/. It is stated that the respondent has neither E259/09 2/37 paid nor tendered the rent w.e.f. 01.01.1997 despite repeated requests and demands and despite service of legal notice dated 16.08.1997. It is further stated that the respondent no. 1 has sub let, assigned or parted with the possession of a part of the tenanted premises to respondent no. 2 through its partners Sh. S.S. Bawa and Braham Pal Singhon monthly rent of Rs. 2000/ without permission of the petitioner/landlady. Hence, the present petition has been filed and it has been prayed that an eviction order may be passed in favour of the petitioner and against the respondents in respect of suit premises.
3. The respondent no. 1 has contested the present petition and filed the written statement contending that there exist no relationship of landlord and tenant between the parties. It is further contended that the present petition is not maintainable as notice of demand was not served upon the respondent no. 1. It is further contended that the site plan of the suit property is incorrect and the tenanted premises has been wrongly described in the site plan. The respondent no. 1 has not disputed the rate of rent to be Rs. 27/ p.m. It is stated that the respondent is always ready and willing to pay the rent to the rightful heirs of the deceased landlord. The respondent no. 1 has denied that he has sublet, assigned or parted with the possession of a part of the tenanted premises to respondent E259/09 3/37 no. 2 on monthly rent of Rs. 2000/. The respondent no. 1 has prayed for dismissal of the petition.
4. The petitioner has filed the replication to the written statement filed by the respondent no. 1 in which the averments made in the petition are reiterated and reaffirmed and the averments made in the written statement are stated to be wrong and controverted.
5. It is pertinent here to mention that the respondent no. 2 was served with the notice of the petition by way of publication in the newspaper 'The Statesman' , but despite service the respondent no. 2 failed to appear in the court and was proceeded exparte vide order dated 09.11.1998.
6. It is also pertinent here to mention that during the proceedings of the case, the respondent no. 1 expired and an application u/o 22 rule 4 CPC was moved by the petitioner which was allowed and the legal heirs of the deceased respondent were brought on record as respondents vide order dated 23.09.2002 as shown in the title of the parties
7. Thereafter, in order to prove her case, the petitioner has examined her son and attorney Sh. Naveen Jain as PW1 who has deposed in his evidence more or less in terms of the averments made in the petition. He has placed on record several documents. E259/09 4/37 The attorney executed by petitioner in his favour is Ex. PW1/A, site plan of the shop in question is Ex. PW1/B, legal notice dated 16.08.1997 is Ex. PW1/C, the postal receipt is Ex. PW1/D, AD card is Ex. PW1/E, UPC receipt is Ex. PW1/F, the reply sent by the respondent dated 10.9.1997 is Ex. PW1/G, rejoinder dated 27.09.1997 is Ex. PW1/H, postal receipt is Ex. PW1/I, photographs showing subletting are Ex. PW1/J to Ex. PW1/R, certified copies of complaint case/challan and judgment are Ex. PW1/S, rent receipt dated 05.09.1989 is Ex. PW1/T and original receipt of money order sent by respondent no. 1 to petitioner is Ex. PW1/U.
8. The petitioner has also examined Sh. Vimal Prasad Jain as PW2 who has filed his evidence by way of affidavit which is Ex. P2.
9. On the other hand, Sh. Kishan Lal, the son of the respondent no. 1 has examined himself as RW1 and filed his evidence by way of affidavit which is Ex. RW1/A.
10. The respondents have also examined Sh. Chhabila as RW2 and Sh. Das Raj Sharma as RW3. However, cross examination of RW3 Sh. Des Raj Sharma could not be completed as the witness did not turn up for his crossexamination and the Ld. Counsel for the respondents gave up the said witness. E259/09 5/37
11. I have heard the Ld. counsel for the parties and perused the record carefully.
12. Ground U/s 14(1)(a) of DRC Act The ingredients required to be proved for the ground u/s 14 (1)
(a) of DRC Act are:
(i) Existence of relationship of landlord and tenant between the parties;
(ii) Existence of arrears of rent, legally recoverable rent from the date of notice of demand; and
(iii) Service of notice of demand in the manner as provided in section 106 of the Transfer of Property Act and
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
13. The respondent no. 1 has disputed the relationship of landlord and tenant between the parties and has taken a stand in the written statement that there exist no relationship of landlord tenant . However, RW1 who is son of the respondent no. 1 has categorically admitted in his crossexamination that, "I know Smt. Sita Jain, the petitioner and have met her also. She is the landlady of this property." Apart from this, the petitioner has demanded the E259/09 6/37 arrears of rent from the respondent no. 1 vide legal notice dated 16.08.1997 Ex. PW1/C and the said notice was also replied by the respondent no. 1 through his counsel vide reply dated 10.9.1997 Ex. PW1/G. In para 6 of the said reply Ex. PW1/G it has been stated, " That many a times my client requested your client to receive the amount of rent for the said period but she refused to receive the same; Therefore my client has sent the due amount of rent for the month of January, 1997 to 31.08.1997 to your client through cheque No. 664899 dated 25.08.1997 for Rs. 216/ under registered cover. Therefore no rent is outstanding against my client."
14. In view of aforesaid contents of the reply Ex. PW1/G sent by the respondent no. 1 through his counsel, when the respondent no. 1 himself admits that he has been sending the rentals to the petitioner, then question of disputing the relationship of landlordtenant between the petitioner and respondent no. 1 does not arise. Moreover, the RW1 who is son of the respondent no. 1 has categorically admitted in his crossexamination that the petitioner is the landlady of the property in question. Therefore, in view of categorical admission of RW1 and contents of reply Ex. PW1/G, the relationship of landlord and tenant between the petitioner and the respondent no. 1 stands proved by the petitioner. E259/09 7/37
15. So far rate of rent of the suit premises is concerned, there is no dispute that the rate of rent of the suit premises is Rs. 27/ p.m. However, petitioner has alleged that the respondent has not paid the rent w.e.f 01.01.1997 despite service of legal notice dated 16.08.1997 Ex. PW1/C. The respondent no. 1 has disputed the service of legal notice Ex. PW1/C in the written statement. In this regard, RW1 has stated in his crossexamination that he does not know if Sh. Bhagwan Das has received any notice prior to filing of the present petition. He has further stated that he is not aware about any reply given by their counsel to the said notice as during the lifetime of his father he was dealing with the shop matters and hence he has got no knowledge about tendering of the rent or giving reply of the notice.
16. On the other hand, PW1 has categorically deposed in his evidence that Sh. Bhagwan Dass had paid rent upto December 1996 and thereafter he stopped making the payment of rent and rent is due w.e.f. 01.01.1997 and despite service of legal notice dated 16.8.1997 Ex. PW1/C the respondent failed to make the payment of rent. He has further deposed that the respondent sent the reply dated 10.09.1997 which is Ex. PW1/G and on receipt of the reply he sent rejoinder dated 27.09.1997 Ex. PW1/H and, thereafter, the respondent neither paid the rent nor sent any reply to the rejoinder. E259/09 8/37 No crossexamination has been done by the Ld. Counsel for the respondent on these aspects and testimony of PW1 has gone un rebutted and uncontroverted on this aspect. Furthermore, RW1 has stated in his crossexamination that he does not know as upto which period the rent was tendered by his father to Sh. Sumer Chand Jain. He further stated that he also does not know when his father lastly tendered the rent and to whom.
17. In view of above, it stands proved that the respondent no. 1 is in arrears of rent w.e.f. 01.01.1997. It also stands proved that the legal notice dated dated 16.8.1997 Ex. PW1/C, by which the petitioner has demanded the arrears of rent w.e.f. 01.01.1997 till date @ Rs. 27/ p.m., was duly served upon the respondent and same was also replied by the respondent vide reply dated 10.09.1997 Ex. PW1/G. Now, there is nothing on record that the respondent has paid or tendered the arrears of rent as demanded vide legal notice Ex. PW1/C within two months of its service. Hence, the petitioner has successfully proved the grounds u/s 14 (1)
(a) of DRC Act and case of first default is made out against the respondent no. 1 u/s 14 (1) (a) of DRC Act.
18. In the present case, the orders u/s 15 (1) of DRC Act have already been passed by the Ld. Predecessor of this Court vide order dated 22.11.1999 by which the respondent was directed to E259/09 9/37 pay or deposit the arrears of rent @ Rs. 27/ p.m. w.e.f. 01.01.1997 till date i.e. 22.11.1999 within one month and respondent was further directed to continue to deposit the future rent in the Court at the said rate month by month by the 15th day of each succeeding month of English Calendar.
19. As the grounds u/s 14 (1) (a) of DRC Act is held to be successful and the respondent has been held first defaulter and in case of first default, statutory protection u/s 14 (2) of DRC Act is available to the respondent, let Nazir report be called vide separate miscellaneous file as to whether the respondent has complied the orders u/s 15 (1) of DRC Act passed by the Ld. Predecessor of this Court on 22.11.1999 for considering the benefit of Section 14 (2) of DRC Act to the respondent.
20. Ground U/s 14(1)(b) of DRC Act 14 (1) (b) of DRC Act reads as under: That the tenant has on or after the 9th day of 1952 sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
21. The facts of the present case are within narrow compass. As per the petitioner the respondent no. 1 is the tenant in the suit premises who has sublet, assigned or parted with the possession of E259/09 10/37 a part of the tenanted premises to respondent no. 2 through its partners Sh. S.S. Bawa and Sh. Brahm Pal Singh on monthly rent of Rs. 2000/ without permission of the petitioner/landlady. On the other hand, the respondent no. 1 has denied the same in the written statement.
22. The respondent no. 1 has also disputed in the written statement that the site plan of the suit property is incorrect and tenanted premises has been wrongly described as eviction petition relates to premises No. 4704/21A, Ansari Road, Darya Ganj, New Delhi, whereas in the site plan tenanted premises has been described as 4701/21A, Ansari Road, Darya Ganj, New Delhi. However, there is no merit in this contention of the respondent no.
1. It is the case of the petitioner that she is owner of the property No. 4701/21A, Ansari Road, Darya Ganj, New Delhi and the respondent no. 1 is the tenant in respect of one shop on the ground floor bearing No. 4704/21 forming part of the aforesaid property No. 4701/21A. The PW1 Sh. Naveen Jain who is son of the petitioner has also deposed to the same effect in his examination inchief and no crossexamination has been done on this aspect and no single suggestion has been given by Ld. Counsel for the respondent to PW1 in his crossexamination that suit shop No. 4704/21 is not a part of property bearing No. 4701/21A, Ansari E259/09 11/37 Road, Darya Ganj, New Delhi. Moreover, the respondent no.1 has not filed any contrary site plan to show the number of premises in respect of which he is a tenant. Furthermore, it has already been established that there exist relationship of landlord and tenant between the petitioner and the respondent no. 1. Therefore, there is no merit in the contention of the respondent no. 1 that tenanted premises has been wrongly described in the site plan filed by the petitioner or the site plan filed by the petitioner is incorrect.
23. Now, in order to succeed under this ground that the respondent no. 1 has sublet, assigned or parted with possession of a part of the tenanted premises to the respondent no. 2 , initially the onus was upon the petitioner to show that the third person other than respondent no. 1, who is tenant in the suit premises, is in possession of the part of the suit premises.
24. In order to prove her case, the petitioner has examined her son and attorney Sh. Naveen Jain as PW1 who has deposed in his evidence that the respondent has sublet the part portion of the shop to Sh. Sukhvinder Singh and Braham Pal which is shown as green in the site plan Ex. PW1/B and said Sh. Sukhvinder Singh and Braham Pal are running Motor driving school in the name of National Motor Driving Training School. He further deposed that in support of subletting to Sh. Sukhvinder Singh and Braham Pal , E259/09 12/37 who are running motor driving school, he has taken photographs which are Ex. PW1/J to Ex. PW1/R along with negatives. He further deposed that this fact of subletting and occupation by Sh. S.S.Bawa and Braham Pal, who are running motor driving school was informed through legal notice dated 16.08.1997 Ex. PW1/C and questioning therein as to in which capacity, these people are running their motor driving school. He has further deposed that on confrontation with S.S. Bawa and Braham Pal, they told that they are tenants and paying rent at the rate of Rs. 2000/ to Sh. Bhagwan Dass. He further deposed that despite service and verbal request, said Sh. S.S. Bawa and Braham Pal are continuing their motor driving school from this shop under dispute till date. He further deposed that in February, 2001, there was quarrel for parking of driving car in front of his shop by sublettee Sh. S.S. Bawa and on asking not to park his car in front of his shop, Sh. S.S. Bawa started shouting and in support of Sh. S.S. Bawa, Sh. Bhagwan Dass Bajaj tenant came forward and objected for the demand of Naveen Jain to remove the car. He has further deposed that during the course of quarrel, the police personnels who were on duty in the area took them i.e. he himself, Sh. S.S. Bawa and Sh. Bhagwan Dass Bajaj to the PS and a case was registered against them and they were fined Rs. 100/ each and certified copies of said case and judgment are E259/09 13/37 Ex. PW1/S along with annexures.
25. In the crossexamination of PW1, nothing material could come out to shake his testimony. He categorically stated in his crossexamination that the photographs exhibited have been taken by him, his brother and his friend as well. He admitted that there is a pavement in front of the demise property, but he is not aware about the width of the pavement. He stated that he cannot tell whether the width of the pavement is 8' or 10'. He further stated that the area where the demised property is situated is widely known as 21, Darya Ganj whereas the demised property No. is 4701. He also admitted that in front of the demised shop, there is a telephone pole, which is fixed on the corner of the pavement and between the road and same is visible in photograph Ex. PW1/J. He denied the suggestion that the sign board of National Motor Training School shown in photograph Ex. PW1/Q used to be placed on the pole Ex. PW1/J. He further denied the suggestion that the photograph Ex. PW1/Q was taken in the absence of the respondent when he was away from his shop to his house in the afternoon for a rest. He further denied the suggestion that the respondent has not sublet his shop to Sh. Sukhvinder Singh Bawa and Braham Pal Singh. He admitted that the respondent is carrying on the business of dry cleaning of garments. He denied the E259/09 14/37 suggestion that Sh. Sukhvinder Singh Bawa and Braham Pal Singh are regular customers of the respondent. He admitted that the road in front of the shop is also used for parking of the vehicles and further that Sukhvinder Singh has parked his vehicle in front of his shop which was objected by him and thereafter, respondent also intervened and supported to parking of the vehicle by Sukhvinder Singh. He has denied the suggestion that there is no subletting of the shop.
26. The petitioner has also examined Sh. Vimal Prasad Jain as PW2 who has deposed in his evidence that he has seen Sh. Bhagwan Dass Bajaj running his drycleaning shop since his childhood and after the death of Sh. Bhagwan Dass Bajaj, his sons are running the shop, however for the last few years, he has noticed that Sh. S.S. Bawa and Sh. Brahm Pal Singh have been running a driving training school in one of the corner of the said shop under the name and style of M/s National Driving & Training School. He has further deposed that his son namely Sanchit Jain has learnt driving from the said driving school about 23 years back and his daughter namely Shauray Jain have also learnt driving from the said driving school about a few months back. He has further deposed that Sh. S.S. Bawa and Sh. Brahm Pal Singh have been running the motordriving and training school in one of the portion E259/09 15/37 of the tenanted shop for the last many years.
27. In the crossexamination, PW2 categorically stated that the affidavit was prepared at his instructions and at his instance. He further stated that he is not aware the name of the previous tenant. Voluntarily he stated that tenanted shop is of dry cleaning and Mr. Bawa is sitting in one portion and giving motor training. He further stated that he knows the tenant for the last 34 years and the distance between his residence and the shop is about 1 Km. He further stated that he has come to know that driving imparted at his shop and he had gone to the place to inquire about the driving training of his son and daughter. He further stated that he does not know the number of children of the deceased respondent, however he has mentioned in his affidavit about the sons of the deceased respondent. He further stated that he has no proof to support that a driving school is run at the suit premises. Voluntarily, he stated that Sh. Bawa did not give any receipt or certificate about the training of his children. He again stated that Sh. Bawa told him that he will give receipt of the different address. He admitted that no receipt of the other address was taken by him. He further stated that Sh. Bawa told him that he can give receipt of Trans Yamuna address which has not been taken by him. He further stated that he does not know the measurement of the demised shop. Voluntarily, he stated that E259/09 16/37 the shop is of square size. He further stated that he cannot say that if the shop is more in length and lessor in the width.
28. Now, if the aforesaid testimony of PWs are gone through, the respondent has failed to extract anything which can demolish the version of the petitioner. The testimony of PW1 has gone un rebutted and uncontroverted on various aspects. There is no cross examination of PW1 on the point when he stated in his evidence that the fact of subletting and occupation by Sh. S.S.Bawa and Braham Pal, who are running motor driving school was informed through legal notice dated 16.08.1997 Ex. PW1/C and on confrontation with S.S. Bawa and Braham Pal, they told that they are tenants and paying rent at the rate of Rs. 2000/ to Sh. Bhagwan Dass. The Ld. Counsel for the respondent has not given any single suggestion to PW1 in his crossexamination that Sh. S.S. Bawa and Braham Pal are not tenants in the suit premises or that they are not paying rentals @ Rs. 2000/ to Sh. Bhagwan Dass, the respondent no. 1.
29. Similarly, when PW2 Sh. Vimal Prasad Jain categorically stated in his evidence that his son namely Sanchit Jain has learnt driving from the driving school of Sh. S.S. Bawa and Sh. Braham Pal Singh about 23 years back and his daughter namely Shauray Jain has also learnt driving from the said driving school E259/09 17/37 about a few months back, there is no crossexamination by the Ld. Counsel for the respondent on these aspects and testimony of PW2 has also gone unrebutted on these aspects. There is no single suggestion in the crossexamination of PW2 that the son and daughter of PW2 have not learnt driving from National Driving and Training School of Sh. S.S. Bawa and Sh. Braham Pal Singh. Even no suggestion has been put to PW2 that Mr. Bawa has not been sitting in one portion and also not giving motor training, when PW2 has stated that Mr. Bawa is sitting in one portion and giving motor training. It is a settled law that if a witness is not cross examined on a particular point that part of his testimony is deemed to be admitted by the other party. Reliance may be placed upon Satyender Kumar Sharma Vs. Jitender Kudsia 2006 (1) RCR 207.
30. Apart from this, in the crossexamination RW1 Sh. Kishan Lal, who is son of deceased respondent no. 1 has admitted the photographs Ex. RW1/X1 to Ex. RW1/ X6 pertains to the suit premises, when he categorically stated that he has seen the photographs Ex. RW1/X1 to X6 which are pertaining to their tenanted shop. A perusal of the photographs Ex. RW1/X1 to X6 shows that a board of National Driving and Training School is affixed in a portion of the suit premises. Furthermore, the petitioner has placed on record the certified copy of the challan filed u/s 160 E259/09 18/37 IPC along with the certified copy of bail bonds and arrest memos which is Ex. PW1/S in respect of the quarrel which had taken place between the petitioner's son namely Sh. Naveen Jain, Sh. Sukhvinder Singh Bawa and Sh. Bhagwan Dass who is respondent no. 1, in which address of Sh. Sukhvinder Singh Bawa has been given of suit premises.
31. In view of above, the petitioner has established that a motor driving and training school in one of the corner of the tenanted shop under the name and style of M/s National Driving & Training School is being run by Sh. Sukhvinder Singh Bawa and Sh. Braham Pal Singh and as such the petitioner has proved the presence of third person in the suit premises other than respondent no. 1 who is tenant in the suit premises. Therefore, the onus shifts upon the respondent no. 1 to show that in what capacity M/s National Driving & Training School through its partners Sh. Sukhvinder Singh Bawa and Sh. Braham Pal Singh is occupying the portion of suit premises.
32. In this regard, first of all the respondent no. 1 has not specifically denied in his written statement the averments made in the petition that the respondent no. 1 has sublet, assigned or parted with the possession of a part of the tenanted premises to respondent no. 2 through its partners on monthly rent of Rs. 2000/. Only a E259/09 19/37 vague and evasive denial has been made by the respondent no. 1 in his written statement that he has not sublet, assigned or parted with the possession of a part of the tenanted premises to respondent no. 2 on monthly rent of Rs. 2000/.
33. However, Sh. Kishan Lal who is son of deceased respondent no. 1 has examined himself as RW1 and stated in his evidence that during the life time of Sh. Bhagwan Dass and after his death the demised premises were never sublet to Sh. S.S. Bawa and Sh. Braham Pal Singh. He has further deposed that Sh. Bhagwan Dass died on 20.04.2002 and after his death the affairs of the shop are looked after by Smt. Sheela Wanti, wife of the deceased with his help and her grand son Sorabh. He has further deposed that the premises are only used for running the dry cleaning business and no business of motor driving and training school is/was conducted from the premises. He has further deposed that Sh. S.S. Bawa and Sh. Braham Pal Singh are strangers for him and respondent and as such allegations of partnership is false and fabricated and malacious. He has further deposed that the statement of the petitioner about charging the alleged rent of Rs. 2000/ p.m. is false. He has further deposed that no possession of any portion of the demised shop was ever parted to the respondent no. 2. He has further deposed that the respondent no. 1 had replied to the notice E259/09 20/37 of the petitioner vide letter dated 10.09.1997 Ex. PW1/G that the respondent never subletted any portion of the shop and the photographs Ex. PW1/J to Ex. PW1/R are false and fabricated and they only show the portion of main road and never indicate any subletting of the shop, however one photograph shows one board as driving school which was affixed in the absence of respondent when the shop was closed, photographed and removed by the petitioner and he only came to know of that board when the photograph was filed in the Court.
34. Now, as discussed herein above that in the written statement, the respondent no. 1 has not specifically denied the averments of the petitioner regarding the subletting of a part of the tenanted shop to respondent no. 2, but in view of evidence of RW 1, who is son of the deceased respondent no. 1, it emerges out that after the death of respondent no. 1 Sh. Bhagwan Dass, his wife Smt. Sheela Wanti with the help of her son Sh. Kishan Lal and her grand son Sorabh is running the business of drycleaning in the tenanted shop.
35. But, in the crossexamination RW1 categorically stated that he is working in JNU as PA to the Chairperson and his mother Smt. Sheelawanti is aged about 76 years. He has further stated that he has got two sisters and no brother and both of them are residing E259/09 21/37 in Delhi and are married. He has further stated that Saurabh is his son and aged about 24 years and he has studied upto 10th standard and is not doing study since 1998. He further deposed that his son is not doing any other work except to look after the business of his grandfather Sh. Bhagwan Dass and one of his nephew namely Kamal also used to assist his son Saurabh in running the said business. He has further stated that after the death of his father Kamal has started visiting the shop and both Kamal and Saurabh are sharing the income from the said shop, however, the share is not fixed and both of them draw for their expenses from the income of the shop as per their requirements. He denied the suggestion that his son Saurabh is not at all looking after the business of dry cleaning which his father was running in the said shop. He stated that he does not know who is Sukhvinder Singh nor he knows Brahm Pal Singh and he never met both these persons. He further stated that he does not know if any quarrel had taken place on 22.02.2001 between Naveen Jain, Sukhvinder and Bhagwan Dass. He further stated that he also does not know if his father Bhagwan Dass was arrested in the said quarrel/case which was registered in PS Darya Ganj u/s 160 IPC. He further stated that he used to assist his father when he was alive in doing the said business.
36. RW1 Sh. Kishan Lal has further stated in his cross E259/09 22/37 examination that RW2 Chhabila is working at their shop since 1993 but he does not know if his name is entered in any employment register or not. He stated that his salary is about Rs. 3000/ p.m. and they have been issuing the receipt of payment of his salary. He further stated that he does not know if any such receipt has been filed in the record or not nor he has brought the same today. He further stated that he has read the contents of para 12 of his affidavit which is with regard to some quarrel between his father and Naveen Jain but he does not know as to when such quarrel had taken place. He further stated that he has stated the facts contained in para 12 of his affidavit as disclosed to him by his father during his lifetime and he has no personal knowledge about the allegations made in para 12 of the affidavit. He further stated that same is his reply with regard to allegations contained in para 11 of his affidavit with regard to the photographs and these things were also disclosed to him by his father during his lifetime that photographs were taken by Naveen Jain when the shop was closed after putting the board. He further stated that he does not know who were the three persons fined in the court as referred by him in para 12 of his affidavit because he is having no knowledge about the same and it has been stated only on the basis of information given by his father during his lifetime. He further stated that the E259/09 23/37 allegations made in para 9 of his affidavit have also been written on the basis of information which was given by his father during his lifetime and he has got no personal knowledge about the same. He further categorically stated that the entire allegations made in para 7, 9, 10, 11 and 12 have been stated by him in the affidavit Ex. RW1/A on the basis of the information which his father used to tell during his lifetime to him and he has got no personal knowledge about the same. He further stated that same is his reply with regard to para 3 and 4 of his affidavit that the detail given in para 3 and 4 of the affidavit are also based on the information which his father used to given to him during his lifetime.
37. In view of the aforesaid testimony of RW1, the case of th respondent is that no business of motor driving and training school is/was conducted from the premises and Sh. S.S. Bawa and Sh. Braham Pal Singh are strangers for him and respondent and as such allegations of partnership is false and fabricated and malacious. First of all, so far the contention of RW1 regarding the partnership between the respondents i.e. his deceased father Sh. Bhagwan Dass and respondent no. 2 is concerned, it was never the case of the petitioner either in the petition or in the evidence that there was any partnership between the respondent no. 1 Sh. Bhagwan Dass and respondent no. 2 National Driving and Training E259/09 24/37 School, through its partners Sh. S.S. Bawa and Brahm Pal Singh. Rather, the case of the petitioner is that the respondent no. 1 has sublet, assigned or parted with the possession of a part of the tenanted premises to respondent no. 2 through its partners Sh. S.S. Bawa and Brahm Pal Singh on monthly rent of Rs. 2000/ without permission of the petitioner.
38. Further, RW1 has claimed in his evidence that Sh. S.S. Bawa and Sh. Braham Pal Singh are strangers for him and respondent no. 1. He also stated in his crossexamination that he does not know who is Sukhvinder Singh nor he knows Brahm Pal Singh and he never met both these persons. He also stated that he does not know that if any quarrel had taken place on 22.02.2001 between Naveen Jain, Sukhvinder and Bhagwan Dass. He also feigned ignorance regarding the fact that his father Bhagwan Dass was arrested in the said quarrel/case which was registered in PS Darya Ganj u/s 160 IPC. But, in para 12 of the examinationin chief itself, the RW1 has deposed that his father never objected to the demand of Sh. Naveen Jain for parking of the vehicle in front of his shop. However, his father was falsely implicated and therefore all the three persons including Naveen Jain, son of the petitioner were fined Rs. 100/ each. As such, RW1 is contradicting his own statement. At one hand, he states in his crossexamination that he E259/09 25/37 does not know if any quarrel had taken place on 22.02.2001 between Naveen Jain, Sukhvinder and Bhagwan Dass. While, in the examinationinchief itself in para 12 he narrates the facts regarding the said quarrel. The testimony of RW1 goes haywire when in the later part of his crossexamination he stated that the facts contained in para 12 of his affidavit were disclosed to him by his father during his lifetime and he has no personal knowledge about the allegations made in para 12 of the affidavit.
39. Similarly, RW1 has also stated in para 9 of his affidavit that the respondent no. 1 had replied to the notice of the petitioner vide letter dated 10.09.1997 Ex. PW1/G that the respondent never subletted any portion of the shop. In para 11 of the affidavit towards examinationinchief he stated that the photographs Ex. PW1/J to Ex. PW1/R are false and fabricated and they only show the portion of main road and never indicate any subletting of the shop, however one photograph shows one board as driving school which was affixed in the absence of respondent when the shop was closed, photographed and removed by the petitioner. Meaning thereby, as per RW1 photographs Ex. PW1/J to Ex. PW1/R do not indicate any subletting of the shop and photographs were affixed in the absence of the respondent when the shop was closed. But, in the crossexamination he categorically stated that he has no E259/09 26/37 personal knowledge about the allegations made in para 12 of the affidavit and same is his reply with regard to allegations contained in para 11 of his affidavit with regard to the photographs and these things were also disclosed to him by his father during his lifetime that photographs were taken by Naveen Jain when the shop was closed after putting the board. He further stated that he does not know who were the three persons fined in the court as referred by him in para 12 of his affidavit because he is having no knowledge about the same and it has been stated only on the basis of information given by his father during his lifetime. He further stated that the allegations made in para 9 of his affidavit have also been written on the basis of information which was given by his father during his lifetime and he has got no personal knowledge about the same. He further categorically stated that the entire allegations made in para 7, 9, 10, 11 and 12 have been stated by him in the affidavit Ex. RW1/A on the basis of the information which his father used to tell during his lifetime to him and he has got no personal knowledge about the same.
40. As such, the aforesaid testimony of RW1 shows that his entire evidence is hearsay and he has got no personal knowledge about the facts as stated in his affidavit. Therefore, version of RW 1 that photographs Ex. PW1/J to Ex. PW1/R were taken by the E259/09 27/37 petitioner after affixing the board of National Driving & Training School on the tenanted shop in his absence when the shop was closed cannot be said to have been substantiated. When the witness RW1 has no personal knowledge about the said fact and further there is no other evidence to prove that the petitioner had taken the said photographs by putting the board in the absence of respondent when the shop was lying closed, then this contention of the respondent cannot be believed.
41. Not only this, the RW1 also feigned ignorance and stated in his crossexamination that Sh. S.S. Bawa and Sh. Braham Pal Singh are strangers for him and respondent. But, the petitioner has placed on record the certified copy of the challan filed u/s 160 IPC along with the certified copy of bail bonds and arrest memos which is Ex. PW1/S in respect of the quarrel which had taken place between the petitioner's son namely Sh. Naveen Jain, Sh. Sukhvinder Singh Bawa and Sh. Bhagwan Dass who is respondent no. 1 which is Ex. PW1/S. The documents Ex. PW1/S are not in dispute and genuineness and authenticity of the said document has not been challenged by the respondent. In the crossexamination of PW1, there is no single suggestion given by Ld. Counsel for the respondent that the documents Ex. PW1/S are forged and fabricated document.
E259/09 28/37
42. A perusal of documents Ex. PW1/S shows that same are chagesheet filed u/s 160 IPC against Sh. Naveen Jain, Sh. Sukhvinder and Sh. Bhagwan Dass in respect of a quarrel which had taken place among the aforesaid three persons along with annexures. In the said case, arrest memo of the aforesaid three persons were prepared and they were released on furnishing personal and surety bonds. In the personal bond, Sh. Sukhvinder Singh, who is alleged to be one of the partner of respondent no. 2, has given his address as 4704/21A, Ansari Road, Darya Ganj, Delhi which is the address of suit premises and one Sh. Desh Raj stood his surety. Similarly, Sh. Bhagwan Dass i.e respondent no. 1 has also furnished bail bonds and in his personal bond he has given the same address of the suit premises. Again, genuineness of these bail bonds are not in dispute as Sh. Desh Raj who stood surety for Sh. Sukhvinder Singh and has furnished his surety bond has also been examined by the respondent no. 1 as RW3. Though, his cross examination could not be completed and the said witness was dropped by the Ld. Counsel for the respondent.
43. In the crossexamination, RW3 Sh. Desh Raj categorically admitted that he had stood surety for Sh. Sukhvinder Singh on 22.02.2001 at police station, Darya Ganj but he does not know in which case he stood surety. He further categorically stated E259/09 29/37 that Sh. Sukhvinder Singh was giving training of motor driving. Though, voluntarily he stated at Geeta Colony. He further stated that he is not having any proper or complete address of Geeta Colony.
44. In view of above, the documents Ex. PW1/S which are not in dispute go to show that a quarrel had taken place among petitioner's son Sh. Naveen Jain, Sh. Bhagwan Dass i.e. Respondent no. 1 and Sh. Sukhvinder Singh who is alleged to be one of the partner of respondent no. 2 firm, for which challan was filed and all the aforesaid three persons have furnished their bail bonds. In the bail bonds furnished by said Sh. Sukhvinder Singh, he has given the address of the suit premises. Further, Sh. Desh Raj who stood surety for said Sh. Sukhvinder Singh and examined as RW3 also stated that he had stood surety for Sh. Sukhvinder Singh who was giving training of motor driving. Though, he tried to improve his statement by saying that said Sh. Sukhvinder Singh is giving training of motor driving at Geeta Colony . Thereafter this witness RW3 did not appear in the witness box and no cogent reason was given for his nonappearance in the witness box for completing his crossexamination.
45. Therefore, only inference which can be drawn from the aforesaid discussions is that Sh. Sukhvinder Singh is one of the E259/09 30/37 partner of the respondent no. 2 National Driving and Training School, who has been running the said firm from a part of the suit premises. Otherwise, there was no occasion for said Sh. Sukhvinder Singh to give the address of suit premises in his bail bonds furnished by him in the challan Ex. PW1/S. The respondent no. 1 has also failed to give any explanation why said Sh. Sukhvinder Singh had given his address of suit premises in his bail bonds. So far the contention of the respondent that the photograph Ex. PW 1/Q was taken by the petitioner in the absence of the respondent when the shop was closed is concerned, the same has not been proved by the respondent by leading any cogent evidence. RW1 has also admitted in his crossexamination that whatever he has deposed in his affidavit is based on information given by his father during his lifetime and he has no personal knowledge about the same and as such the evidence of RW1 is hearsay which cannot be relied upon.
46. Apart from this, although in the crossexamination PW1 has admitted that the area where the demised property is situated is widely known as 21, Darya Ganj whereas the demised property No. is 4701, but it has come on record that petitioner is owner of property No. 4701/21A, Ansari Road, Darya Ganj, New Delhi and the tenanted shop of respondent no. 1 bears No. 4704/21 which is E259/09 31/37 part of the aforesaid property No. 4701/21A. Further, if the photographs Ex. RW1/X1 to Ex. RW1/X6 which belong to the suit premises as also admitted by RW1 in his crossexamination are looked into, it shows the address of suit premises as 4704/21, Ansari Road, Darya Ganj, Delhi and not only 21, Darya Ganj, Delhi in the photographs Ex. RW1/X1, RW1/X2, RW1/X3, RW1/X5 and Ex. RW1/X6. It again strengthens the case of the petitioner that the respondent no. 2 has been running its business of motor driving and training school from a portion of the suit premises.
47. Further, in the crossexamination, PW1 has also admitted that in front of the demised shop, there is a telephone pole which is fixed on the corner of the pavement and between the road and same is visible in photograph Ex. PW1/J. A suggestion was given to PW1 by Ld. Counsel for the respondent that the sign board of national Motor Training shown in photograph Ex. PW1/Q used to be placed on the pole Ex. PW1/J which was denied by the witness. Similarly, PW1 was also suggested that photographs Ex. PW1/Q was taken in the absence of the respondent when he was away from his shop to his house in the afternoon for a rest which was also denied by PW1. The respondent has failed to lead any evidence to prove that sign board of respondent no. 2 National E259/09 32/37 Driving and Training School used to be placed on the pole Ex. PW 1/J and further that photograph Ex. PW1/Q was taken in the absence of the respondent.
48. It is also not the case of the respondent no. 1 that the respondent no. 2 National Driving and Training School has been running its business from the some other premises. When the respondent alleges that sign board of respondent no. 2 used to be placed on the pole as shown in photograph Ex. PW1/J, then the respondent should have explained from where the business of respondent no. 2 firm is being conducted. RW1 in his cross examination could not deny that if Sh. S.S. Bawa has got issued credit card from State Bank of India wherein he has given the address of his shop. He also evaded to reply the question as to if Sh. Kamal Aneja and Sh. S.S. Bawa made any statement to the police on 04.10.03 to the effect that both of then have been running business in partnership from the shop in question or that they have been running the said business since the life time of deceased respondent by merely saying that he does not remember.
49. It is also worth mentioning that though the RW1 has stated in his evidence that Sh. S.S. Bawa and Braham Pal Singh are strangers for himself and the respondent, but in the cross examination of PW1, the Ld. Counsel for the respondent has given E259/09 33/37 a suggestion that Sh. Sukhvinder Singh and Sh. Braham Pal are regular customers of the respondent, which was denied by the PW
1. As such, when the counsel for the respondent gives a suggestion that Sh. Sukhvinder Singh and Sh. Braham Pal are regular customers of the respondent, then the statement of RW1 Sh. Kishan Lal who is none else than the son of the deceased respondent no. 1 Sh. Bhagwan Dass that Sh. S.S. Bawa and Braham Pal Singh are strangers for himself and the respondent is unreliable. More particularly, when RW1 stated in the crossexamination that he used to assist his father when he was alive and was doing the said business. Moreover, if the said Sh. S.S. Bawa and Braham Pal Singh were regular customers of the respondent, the respondent could have examined them to prove that they were not running any motor driving school in any corner of the suit premises as alleged by the petitioner.
50. Similarly, so far the testimony of RW2 Chhabila who has stated that he is working in the shop of the respondent for the last 15 years and at no point of time any portion of the shop was subletted for the alleged driving school, is concerned, the testimony of this witness is not reliable and trustworthy. First of all, he has failed to prove that he has been working at Bajaj Dry Cleaning shop since 1993. Further, this witness though claims to be E259/09 34/37 working since 1993 with the respondent but disputes that any quarrel between Sh. Bhagwan Dass and Sh. Naveen Jain had taken place. In the crossexamination, he stated that since 1993 till Sh. Bhagwan Dass was alive, no quarrel had taken place with Sh. Naveen Jain. While it is admitted case of the respondent that a quarrel had taken place between Naveen Jain, Sukhvinder Singh and Bhagwan Dass for which they were chargesheeted u/s 160 IPC and were also fined vide Ex. PW1/S.
51. As discussed herein above, if the evidence of RW1 is looked into, he has no personal knowledge of the facts. Either he is deposing whatever he has been told by his deceased father during his lifetime or he has feigned ignorance and shows short of memory and his entire evidence is hearsay and contradictory to his own version in the examinationinchief. No cogent evidence has been led to by the respondent no. 1 to prove that National Motor Driving and Training School is not running in part of the tenanted shop through its partners Sh. S.S. Bawa and Sh. Braham Pal Singh. The respondent has also failed to prove that photograph Ex. PW 1/Q was taken by putting the sign board of the National Motor Driving and Training School in the absence of the respondent. On the other hand, the testimony of PW1 has remained unchallenged to the fact that Sh. S.S. Bawa and Sh. Braham Pal Singh are E259/09 35/37 running their motor driving school from the suit premises and are paying rentals @Rs. 2000/ to Sh. Bhagwan Dass which has also been corroborated by PW2 that his son Sanchit Jain and daughter Sourya Jain have learnt the driving from the motor driving and training school of Sh. S.S. Bawa and Sh. Braham Pal Singh which they are running in the name and style of National Driving and Training Motor School from one corner of the suit shop and both the witnesses have not been crossexamined on material aspects.
52. In view of aforesaid discussions, the LRs of deceased respondent no. 1 have failed to lead any evidence to show that they are in exclusive possession of the entire suit premises . On the other hand, the petitioner has successfully proved that the respondent no. 1 has sublet, assigned or parted with the possession of a part of the tenanted shop to respondent no. 2 which is running its business in the name and style of National Driving and Training School through its partners from the part of suit premises as shown in green colour in the site plan Ex. PW1/B. Hence, the petitioner has proved the grounds u/s 14 (1) (b) of DRC Act.
53. Accordingly, an eviction order is passed in favour of the petitioner and against the respondents u/s 14 (1) (b) of DRC Act in respect of suit premises i.e. one shop bearing No. 4704/21 on the ground floor of the property bearing No. 4701/21A, Ansari Road, E259/09 36/37 Darya Ganj, New Delhi2; more specifically shown in red colour in the site plan Ex. PW1/B. No order as to costs.
File be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal)
on 5th August, 2010 ARC, Central, Delhi
E259/09 37/37
E239/09
05.08.2010
Present: None.
Vide my separate judgment announced in the open court, the present petition u/s 14 (1) (a) & (b) of DRC Act is allowed. Accordingly, an eviction order is passed in favour of the petitioner and against the respondents u/s 14 (1) (b) of DRC Act in respect of suit premises.
As the grounds u/s 14 (1) (a) of DRC Act is held to be successful , let Nazir report be called for 20.09.2010 vide separate miscellaneous file as to whether the respondent no. 1 has complied the orders u/s 15 (1) of DRC Act passed by the Ld. Predecessor of this Court on 22.11.1999 for considering the benefit of Section 14 (2) of DRC Act to the respondent no. 1.
Present file be consigned to Record Room.
(B.R. Bansal) ARC (Central), Delhi/05.08.2010 E259/09 38/37