Delhi District Court
Smt. Mamta vs Smt. Preeti on 23 May, 2023
IN THE COURT OF MS. SHAIL JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE / RENT
CONTROL TRIBUNAL, SHAHDARA DISTRICT,
KKD COURTS DELHI
RCT No.2/21
SMT. MAMTA
W/o Sh. Manoj Kumar
R/o H.No.1/6826, East Rohtas Nagar,
Main Road, Shahdara, Delhi32.
.....APPELLANT
VERSUS
1. SMT. PREETI
D/o late Sh. Prem Lata
W/o Sh. Babu Lal
Shop No.3, Premises No.1/6826,
East Rohtas Nagar, Main Road,
Shahdara, Delhi.
2. SH. PAWAN KUMAR
S/o Sh. Trilok Chand
Shop No.3, Premises No.1/6826,
East Rohtas Nagar, Main Road,
Shahdara, Delhi.
.....RESPONDENTS
Date of filing the appeal : 18.06.2021
Date of Decision : 23.05.2023
JUDGMENT
1. This is an appeal filed under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') by petitioner/landlady/appellant herein, seeking setting aside of order/judgment dated 18.03.2021, passed by Ld. SCJ-cum-RC, RCT No.2/21 Mamta Vs. Preeti & Anr Page 1 of 12 Shahdara, KKD Courts, Delhi (hereinafter referred to as 'Ld. Rent Controller').
2. Briefly stated, the relevant facts necessary for disposal of the appeal are; the petitioner/appellant herein claims herself to be the owner of the entire premises bearing No.1/6826, East Rohtas Nagar, Main Road, Shahdara, Delhi. It is the case of the petitioner/appellant that she had let out Shop No.3 situated in the premises bearing No.1/6826 to Smt. Prem Lata i.e. the mother of respondent no.1, several years back at a monthly rent of Rs.266/-. After the death of Smt Prem Lata, her daughter i.e. respondent no.1 is in unauthorized occupation of the shop. It is further the case of the petitioner/appellant that respondent no.1 has sublet part of the Shop No.3 to respondent no.2 who is running there a jewellery shop in the name and style 'Bhushan Bhandar'. The petitioner/appellant herein filed a petition under Section 14 (1)
(a) & (b) of DRC Act against respondents. After getting served with the notice of the petition, respondents filed their written statement/reply, wherein respondent no.1 pleaded that there is no arrears of rent due upon her and also denied the allegation of creation of sub-tenancy and claimed that respondent no.2 is working as an employee in the shop. Ld. Rent Controller vide the impugned order/judgment dated 18.03.2021 dismissed the petition. Feeling aggrieved by the said order/judgment, the present appeal has been preferred by the landlady/appellant. The grievances raised by the appellant in the instant appeal have been reiterated by Ld. Counsel for the appellant in his arguments, which have been discussed in the succeeding paragraphs.
RCT No.2/21 Mamta Vs. Preeti & Anr Page 2 of 123. Respondents have contested the appeal and filed reply to the same, wherein they have denied the contents of the appeal and have submitted that the present appeal is based on false and frivolous grounds. They have further submitted that the impugned order/judgment has been passed by Ld. Rent Controller after considering the facts, law and documents and after due application of mind and hence there is no illegality or irregularity in the same. Hence, it has been prayed that the appeal be dismissed with costs.
4. Ld. Counsel for the appellant has argued that the order passed by Ld. Rent Controller suffers from material irregularities as he has failed to consider that respondent no.2, the alleged sub tenant, has not appeared in the witness box nor crossexamined any witness/appellant herein. It is the case of the appellant that respondent no.2 Pawan Kumar was earlier tenant of the appellant/landlady in another shop who got evicted by the appellant in the year 2012 and after that respondent no.1 Preeti has sublet Shop No.3 to respondent no.2. In respect of his arguments, Ld. Counsel for the appellant has submitted that there is a case of stolen jewellery registered in PS Ashok Vihar and in the same case FIR No.8/18, PS Ashok Vihar, during investigation police had recovered stolen jewellery and other articles from the shop in question, which were got recovered by respondent no.2 Pawan Kumar, which shows that respondent no.2 was in exclusive possession of the shop in question and hence, it proves that the shop has been sublet by respondent no.1 to respondent no.2. Thus, it has been prayed that the order passed by Ld. Rent Controller is liable to be set aside.
RCT No.2/21 Mamta Vs. Preeti & Anr Page 3 of 125. Ld. Counsel for appellant in support of his arguments has relied upon the following judgments:
i) Satwinder Singh Vs. Kanwar Kishan Anand 154 (2008) DLT 473.
ii) Ramesh Chand Sachdeva Vs. Raj Kumar Manchana 153 (2008) DLT 191.
iii) Govind Prasad Jagdish Prasad Vs. Hari Shankar 136 (2007) DLT 259.
iv) Kailash Kumar Vs. Dr. R.P. Kapur 54 (1994) DLT 342.
v) Ram Murti Devi Vs. Pushpa Devi & Ors (2017) 15 SCC 230.
vi) Celina Coelho Pereira & Ors Vs. Ulhas Mahabaleshwar Kholker & Ors (2010) 1 SCC 217.
viii) Mahalakshmi Vs. Balavenkatram (D) (2020) 2 SCC 531.
ix) Ramesh Chandra @ Sullulal Vs. Shri Ram & Ors, Appeal No.65 of 1984 (M.P. High Court).
6. On the other hand, Ld. Counsel for respondents has argued that since the shop in question was opened by respondent no.1, as stated by PW2, therefore, it is not established by the appellant/landlady that respondent no.2 was subtenant or he has the possession of the shop. Ld. Counsel for respondents has submitted that no public person has been examined by the appellant/landlady in respect of her case to prove that shop in question has been subtenanted by the respondent no.1. It is also stated by Ld. Counsel for respondents that no evidence has been led by the appellant to prove the subtenancy created by respondent no.1 and hence, the order passed by the Ld. Rent Controller is just and fair and should be upheld.
RCT No.2/21 Mamta Vs. Preeti & Anr Page 4 of 127. I have considered the arguments advanced by Ld. Counsels for the parties and have also gone through the material on record, the relevant provisions of law as well as the judgments being relied upon by the appellant.
8. After considering the submissions of Ld. Counsels for the parties and the impugned order passed by Ld. Rent Controller, it becomes clear that there were two grounds on which the appellant/landlady has filed the eviction petition; first ground was non payment of rent under Section 14 (1) (a) of DRC Act and the second ground was subletting of the tenanted premises under Section 14 (1) (b) of DRC Act. However, in the impugned order it has been specifically mentioned by Ld. Rent Controller that ground for non payment of rent has been waived off by the appellant/landlady and hence, Ld. Rent Controller has considered the issue of sub letting only.
9. As per the settled proposition of law laid down, while considering the provision of Section 14 (1) (b) of DRC Act which deals with subletting, the petitioner has to prove that there must be a transfer of legal possession of the whole or part of the premises in dispute to person or persons other than tenant and this parting of possession of the disputed premises must be without the consent of the landlord. Therefore, while considering the position of subtenancy the court has only to consider; firstly whether the alleged sub tenant is in exclusive possession of either the whole or part of the property in question?; and secondly whether this sub tenancy has been created without the consent/knowledge of the landlord?. It is also important to note RCT No.2/21 Mamta Vs. Preeti & Anr Page 5 of 12 herein that initial burden to prove subtenancy is on the landlord. When landlord is able to discharge the initial burden to prove that someone other than tenant is in exclusive possession or in control of the premises in question, then it is for the tenant and sub tenant to prove the non existence of subtenancy.
10. It is also of common knowledge that subtenancies are generally created at the back of the landlord and therefore there is only an initial burden laid down on the landlord to show that someone other than the tenant is/was in exclusive possession of the premises.
11. In the judgment titled Mohd. Kasam Haji Gulambhai Vs. Bakerali Fatehali, AIR 1998 SC 3214, it was held by Hon'ble Supreme Court that, "Landlord has not to establish ingredients of subletting. He is only to show presence of a person other than tenant". The basic principle is that presence of a stranger i.e. a person other than the tenant in the tenanted premises is to be shown by the landlord in order to discharge the initial burden of proof regarding the tenancy.
12. Thus, the requirement of proving subletting is that the proof of subletting thus depends upon probability of the premises having been sublet, and all that is required is material on which the court can, like a prudent person guided by his own experience and judgment, regard being had to the ordinary course of human conduct, reasonably act upon the supposition that the premises have been sublet.
RCT No.2/21 Mamta Vs. Preeti & Anr Page 6 of 1213. In the present case, respondent no.1 i.e. the original tenant has taken the defence that respondent no.2 is her employee and in that capacity he was in possession of the shop but she has not sublet the shop in question to respondent no.2. On this aspect, appellant herein has stressed upon the fact that in the FIR No.8/18, PS Ashok Vihar, the chargesheet has been filed against respondent no.2 as well, IO of this case was examined by the appellant as PW2 who has specifically stated in his evidence that on 25.01.2018 at the instance of accused (respondent no.2 herein), the stolen property was recovered from the shop (in dispute) vide seizure memo Ex.PW2/F and Ex.PW2/G. Perusal of the document Ex.PW2/F clearly shows that respondent no.2 had opened the safe of the relevant shop and taken out silver brick from it which was recovered and seized by the IO. Similarly, as per the document Ex.PW2/G various silvers utensils and articles were got recovered by respondent no.2 in the case FIR No.8/18, PS Ashok Vihar from the shop in question.
14. Ld. Rent Controller while considering the testimony of PW2 has stated that merely filing the seizure memo or relying upon the seizure memo cannot be considered by the court to be the proof against respondent no.2. Ld. Rent Controller has specifically observed that it cannot be said without trial that said articles were stolen by respondent no.2 and kept in the tenanted shop. However, I am of the opinion that Ld. Rent Controller has not correctly interpreted the evidence given by PW2 and not considered the documents Ex.PW2/F and Ex.PW2/G correctly and has also misinterpreted the specific aspect of initial burden of RCT No.2/21 Mamta Vs. Preeti & Anr Page 7 of 12 proof which was lying on the landlord. It is stated by the IO of the case FIR No.8/18, PS Ashok Vihar that on 25.01.2018 it was the accused Pawan (respondent no.2) at whose instance the stolen articles were recovered from the property in question i.e. Shop No.3. It is also stated by the IO that it was respondent no.2 Pawan who had opened the safe of the shop and got recovered the silver brick and silver utensils from the shop. Ld. Rent Controller has given too much weightage to the point that Preeti is the tenant as it was stated by the neighbourers to the IO that she is managing the property. PW2 in his crossexamination has stated that respondent no.1 met him on 12.01.2018 but the shop was closed. He has further stated in crossexamination that, "after 12.01.2018, we inspected the shop for two times, but we could not find the owner of the shop". After considering the testimony of PW2 in its entirety, that on the first date i.e. 12.01.2018, as per the crossexamination of PW2, when police reached at the shop, respondent no.1 met them but the shop was locked. If respondent no.1 was having the keys of the shop she could have opened the shop at that time for the police officials and investigation could have been conducted by the police at that time, but the recovery of stolen articles from accused Pawan i.e. respondent no.2 could be effected only on 25.01.2018 when on 24.01.2018 he had surrendered himself before the court and after his surrender and arrest he was taken to the shop and at his instance the stolen articles were recovered. There was question put to PW2 in crossexamination by Ld. Counsel for defendants in respect to the person who has opened the shop on 25.01.2018, to this question PW1 answered that shop was opened by Preeti RCT No.2/21 Mamta Vs. Preeti & Anr Page 8 of 12 i.e. respondent no.1. If it is believed that respondent no.1 was in possession of shop in question being tenant, why she did not open the shop on 12.01.2018 and why the IO of case had to look for owner of the shop. If respondent no.1 was actually in possession of shop, she could have opened the shop for inspection/investigation by police. Failure to do so raises doubt against her being in possession of shop. If on both the dates keys of the shop was with respondent no.1 Preeti, then it has not been explained as to why she did not open the shop on 12.01.2018 itself. In my opinion proving of this fact by the appellant satisfies the requirement of discharge of initial burden of proof by the landlord that there is subtenancy created by the tenant.
15. In the case titled Mukesh Seth Vs. A.B. Lal & Sons, 2010 (60) RCR (Civil) 221 it was held by Hon'ble Delhi High Court that, "if the tenant claims that the person in possession of the premises is his employee, the burden to prove the same is also on the tenant". In the case titled Jagan Nath Vs. Chander Bhan, AIR 1988 SC 1362, it was held by Hon'ble Supreme Court that, "Once it is proved that a particular portion of the demised premises has been given in exclusive possession to a stranger then the onus shifts on the tenant to show that in what capacity that stranger is in exclusive possession of that portion and on the failure of the tenant to explain the presence of such person in exclusive possession of the portion of the demised premises, would lead to presumption that the said portion has been sublet or parted with possession in favour of the stranger by the tenant".
RCT No.2/21 Mamta Vs. Preeti & Anr Page 9 of 1216. It is settled proposition of law that once initial burden has been discharged by the landlord that someone other than the tenant is in exclusive possession of the premises in dispute, then it is for the tenant to prove that he/she has not sublet / parted with the possession. In the present case, respondent no.1 has alleged that respondent no.2 is her employee and was having the possession of the shop in capacity of his being an employee. At this, Ld. Counsel for appellant has asserted that in cross examination respondent no.1 has not been able to give any satisfactory explanation about the alleged business being carried out by her. She has stated that she does not pay salary to respondent no.2 as he is being paid on work to work basis but she does not maintain any account with respect to the payments made to respondent no.2. On specific question put to respondent no.1 about her business of jewellery, she has replied that she does not know the name of person from whom she purchases readymade jewellery nor she can produce the bills of purchased jewellery articles. She did not remember when she had started the work of selling readymade jewellery. She further stated that she does not maintain accounts of her income & expenditure. Though, it is the case of respondent no.1 that she is doing the business of jewellery in the shop in question and respondent no.2 is her employee, but she was not able to give any satisfactory reply to the question put to her in crossexamination regarding the accounts of the business and the payments made by her for above said business. Also, she was not able to explain or produce any document to show what type of payment is being made to RCT No.2/21 Mamta Vs. Preeti & Anr Page 10 of 12 respondent no.2. In my opinion, respondent no.1 has not been able to prove that respondent no.2 is not her subtenant.
17. In the case titled Suresh Kumar Chauhan Vs. Dr. Puneesh Rohtagi, CM (M) 1592/2018, the Honble Justice Pratibha M. Singh of Hon'ble Delhi High Court has held that, "In a case where the tenant alleged that the person in possession of the premises is his employee and the commission is being paid to him but the facts brought on record show that the Tenant is permanently residing in Rajasthan. The everyday control of the suit property is thus with Mr. Chander Singh. The alleged sub tenant also admits to be getting paid commission on the gross sale of the business. However, it is claimed that no accounts of the business are maintained. No commission can be paid in the absence of accounts being maintained. In the absence of accounts, an adverse inference is liable to be drawn against the Tenant. The relationship between him and Mr. Chander Singh is thus that of a tenant and subtenant and not of an employer and employee. The plea of employeremployee is, accordingly, liable to be rejected".
18. In view of above discussion, I am of the opinion that Ld. Rent Controller has not been able to appreciate the evidence correctly. The fact that respondent no.2 was found in possession of the premises in question i.e. Shop No.3 and was having the control to open the safe of the shop and effected the recovery of stolen silver brick and silver articles from the shop itself creates suspicion against the tenant / respondent no.1 that she has sublet the shop to respondent no.2. Therefore, I am of the opinion that RCT No.2/21 Mamta Vs. Preeti & Anr Page 11 of 12 initial burden of proof was discharged by the appellant/landlady while proving her case and it was for the respondent no.1 to prove that respondent no.2 was in capacity of an employee in the shop in question and not in the capacity of subtenant, which she has failed to discharge.
19. In view of foregoing discussion, the impugned order/judgment dated 18.03.2021 is set aside. Eviction petition under Section 14 (1) (b) of DRC Act is allowed. The respondents are granted two months time to vacate the disputed shop in question and handover physical possession thereof to the appellant/petitioner Smt. Mamta. The appeal is accordingly disposed of as allowed. Copy of this order alongwith TCR be sent to Ld. Trial Court for 29.05.2023 for compliance of the judgment. Parties are directed to accordingly appear before the Ld. Trial Court. Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT On 23 rd May, 2023.
(SHAIL JAIN) PRINCIPAL DISTRICT & SESSIONS JUDGE/ RENT CONTROL TRIBUNAL, SHAHDARA, KARKARDOOMA COURTS: DELHI RCT No.2/21 Mamta Vs. Preeti & Anr Page 12 of 12