Delhi District Court
Shri Inder Pal Singh vs Smt. Kusum Khanna on 15 February, 2012
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0407922010
RCT No. 61/10
Shri Inder Pal Singh
S/o Late Sh. Inder Singh
Permanent Resident of
28/62, West Patel Nagar, N Delhi.
Presently at
R/o 1639, Hill Side Area, New Hyde Park,
New York, USA
(through GPA Sh. G. Singh )
....Appellant
Versus
1. Smt. Kusum Khanna
Wd/o Late Sh. K. K. Khanna
2. Sh. Vinod Khanna
S/o Late Sh. K.K. Khanna
Both R/o 12/4, East Patel Nagar,
New Delhi.
....Respondents
Date of Institution : 09.09.2010
Arguments heard on : 06.02.2012
Date of Order : 15.02.2012
ORDER
1. The present appeal assails eviction order dated 9.8.2010 passed by Ld. ARC on the ground of sub-letting.
RCT No. 61/10 1 of 17 2 The facts of the case are that respondent herein filed an eviction petition on the ground of non payment of rent in respect of shop No. 5 in property No. 12/4, East Patel Nagar, Delhi @ Rs. 100/- per month besides other charges. Rent from 1.9.2004 was enhanced to Rs. 110/- per month. Agreement was arrived at with the respondent though the same is not permissible in law. The landlord through their attorney let out the shop to the appellant. The appellant is chronic defaulter in payment of rent. He has neither paid nor tendered rent w.e.f. 1.4.2001 inspite of notice dated 5.7.2004. The appellant was liable to pay interest @ 18% per annum on the amount of arrears of rent. He has sub-let, assigned and parted with possession of the shop and was not in possession of the shop and the shop was in possession of the sub-tenant. He was charging rent from the sub-tenant. Earlier the landlord filed a petition on the same grounds of non payment of rent and sub-letting which was assigned to the court of Shri Atul Kumar Garg, ARC. Due to technical defect the said petition was withdrawn with liberty to file fresh petition and RCT No. 61/10 2 of 17 3 permission was granted by the said court on 1.7.2004.
2. The appellant filed written statement raising preliminary objections that petition was filed without any cause of action, petition was filed without serving notice as required u/s 14(1) (a) DRC Act. The appellant was not a tenant in the said premises. Petition is misuse of process of law based on fabricated documents. It was Smt. Dalip Kaur wife of appellant who was tenant in the premises. She was inducted as tenant by Sh. Anil Narula who is the landlord. The petitioner never gave any notice nor issued any rent receipt. Appellant was residing abroad for the last more than seven years and has got his own business at USA. On merits the appellant denied the allegations made in the petition.
3. In support of their case the respondents herein examined Smt. Kusum Khanna wife of respondent No. 1 as PW-1. Similarly the appellant examined his wife Mrs Dalip Kaur as RW-1.
4. After going through the material on record and hearing the arguments the Ld. ARC found that written RCT No. 61/10 3 of 17 4 statement has been signed by Shri G. Singh as attorney of the appellant but no power of attorney was filed. RW-1 admitted in her cross examination that appellant had not executed any power of attorney in favour of any person for appearing, signing or deposing in the present case. Thus virtually there was no written statement in the eyes of law. Yet the written statement even if taken into consideration did not help the appellant as RW-1 admitted in cross examination that the shop was let out to her husband i.e. appellant on 20.11.1984. The appellant had not come forward with the plea that he has not committed any default in payment of rent. Copy of demand notice had been proved as Ex. PW1/5, postal receipt as Ex. PW1/6 and UPC as Ex. RW1/10. RW-1 has admitted in cross examination that address of the tenanted shop as mentioned in the demand notice and UPC is correct. Thus there was presumption about service of notice as per decision in Kishan Chand Gupta Versus Satya Pal Chadha 1974 Rent Control Reporter 578 and Shashi Kumar Vs Dharam Pal Sharma AIR 1981 Delhi 169.
RCT No. 61/10 4 of 17 5 Similar view was taken in Madan Lal Seth Vs Amar Singh Bhalla 1980 (1) DRJ 72. Since order u/s 15(1) DRC Act was not passed earlier, the same was passed at the time of final judgment on 9.8.2010. After compliance of said order benefit u/s 14(2) DRC Act was granted vide order dated 4.10.2010.
5. Regarding sub-letting the Ld. ARC held that the appellant has admitted in written statement that his wife was in exclusive possession of the tenanted shop. In Bimal Kumar Vs Ajay Kumar 2008(2) Rent Control Reporter 97 it was held that if a tenant has parted with the possession and surrendered his right to retain possession in favour of his family member, it will amount to sub- letting. In Kailash Kumar Versus Dr. R.K. Kapur 1994 (2) Rent Control Reporter 36 our own Hon'ble High Court held that when premises are taken on rent by wife and her husband does business in portion independently and wife does not take a plea that she and her husband were living as joint family and she has retained legal possession, it is a case of sub-letting. Thus eviction order was passed.
RCT No. 61/10 5 of 17 6
6. In appeal the grievance of the appellant is that appellant has executed a power of attorney in favour of his son Sh. G. Singh to contest the suit which was not placed on record by the previous counsel. The copy of special power of attorney dated 23.8.2010 has been filed now along with the appeal which is placed at page 33 of the appeal. In various precedents the Apex Court held that in order to establish sub-letting two ingredients must be established. One that sub-tenant must have exclusive right of possession and second that the right must have been in lieu of payment of some compensation or rent. The respondent miserably failed to prove the said ingredients. The Ld. ARC has wrongly applied ratio of decision in Bimal Kumar Versus Ajay Kumar and Kailash Kumar Versus Dr. R.K. Kapur.
7. I have gone through the material on record and heard the arguments. The counsel for the appellant submitted that affidavit of authority dated 01.04.2005 in favour of wife of the appellant has been placed on record which is at page 34 of the appeal. He vigorously argued RCT No. 61/10 6 of 17 7 that it is a strange case in which husband is alleged to have sub-let the premises to wife without alleging that the two are living separately.
8. On the other hand the counsel for the respondent submitted that it is peculiar that the case set-up by the appellant in written statement and case set up in appeal is contradictory. According to case in written statement the appellant was not the tenant, rather his wife Smt. Dalip Kaur was the tenant. In sub-clause (5) of the ground of appeal, the appellant has taken a plea that Smt. Dalip Kaur is part of the family of the appellant who is using the premises as merely a licencee while legal possession is still with the appellant.
9. I have given my deep thought to the arguments and find that it is a case of poor drafting. The appeal read as a whole gives sufficient impression that the case set-up by the appellant is that he is not tenant and there is no inconsistency in the stand taken before the Ld. Trial Court viz a viz stand taken in appeal.
10. One of the point raised by the counsel for the RCT No. 61/10 7 of 17 8 respondents is that no power of attorney in favour of Shri G. Singh was filed on record before the Ld. ARC. The power of attorney filed even now is dated 23.8.2010 which is subsequent to the filing of the written statement in 2005. The same is not valid power of attorney as same has been executed outside India, in New York. The same has not been stamped within 3 months of being received in India and has not been registered. I asked the counsel for the respondent about the source of requirement of stamping or registration of a power of attorney executed outside India. He banked upon sec. 18 stated that there was a decision of Hon'ble Mr. Justice P.K. Bahri in that regard. He did know better than to make this submission. Judgment was not cited and particulars thereof were not supplied.
11. With my own effort I could lay my hand on decision in Rajesh Wadhwa Vs Dr. ( Mrs) Sushma Govil AIR 1989 Delhi 144 which is a decision of Hon'ble Mr. Justice P.K. Bahri. There is not even an iota of observations about stamping or registration of power of attorney executed in foreign country. Rather in para 14 and 15 of the judgment it RCT No. 61/10 8 of 17 9 is mentioned that attestation of documents by Notary Public of foreign country is a sufficient compliance of section 57 of Indian Evidence Act. In that case the power of attorney executed in USA and notarised by Notary of USA was held to carry a presumption u/s 85 of the Evidence Act. In doing so reliance was placed on earlier decision of Hon'ble Mr. Justice Sultan Singh in suit No. 671/77 titled as Bank of India Versus Ajaib Singh decided on 26.4.1979. Reliance was also placed on Abdul Jabbar AIR 1960 Allahbad 369.
12. Viewed in the light of aforesaid decision, special power of attorney in favour of Shri G. Singh is attested by Sh. Barbara J Strugala, Notary Public State of New York. The same carries a presumption.
13. Coming to the point of subsequent execution of said attorney, it is sufficient to observe that Shri G. Singh was not a stranger but son of the appellant. The conduct of the appellant in pursuing with the appeal through his wife Ms Dalip Kaur shows that he has impliedly ratified the act of Shri G. Singh. The question of ratification of act of the RCT No. 61/10 9 of 17 10 attorney has been dealt by Hon'ble Mr. Justice P.K. Bahri in Rajesh Wadhwa supra. After considering the previous of case law, in para 17 i.e. Allah Bakhsh and another Vs Municipal Committee of Rohtak, AIR 1926 Lahore 223, Dainish Mercantile Co. Ltd. & Others Vs Beaumount & Another 1991 (1) Ch. D 680, Subhash Pillai @ S.S.M. Ubramania Pillai Vs Sankarapandiam Pillai & others AIR 1948 Madras 369, Dhayabhai Girdhadas Vs Bobaji Dahyaji Kotwal & others AIR 1953 Bombay 28, Nadella Satyanarayana Vs Yamanoori Venkata Subbiah AIR 1957 AP 172, All India Reporter Ltd. Vs Ram Chandra Dhondo Datar AIR 1961 Bombay 292 and Ashok Kumar Daw & others Vs Gobind Chandra Dev & others AIR 1984 Cal. 337, it has been held that even thought initial act is bad, still the same could be remedied by subsequent act of the principal.
14. Coming to the merits of the case, it is quite strange that the respondents did not plead when the sub-letting was done, in whose after it was done, how much rent the appellant was charging. Everything was left inchoate.
RCT No. 61/10 10 of 17 11 The respondents admittedly filed a previous petition on the same grounds which was withdrawn with liberty to file fresh petition on the allegations that said petition suffered from formal defect. Copies of said previous petition and statement of counsel for the landlord are on record. But my discerning eyes have failed to find what was that formal defect which led the respondents to withdraw the said previous petition. The same is not disclosed even in the statement of counsel for landlords to withdraw the petition. It appears that respondents wanted to play some hanky panky.
15. Now coming to the question of relationship of landlord and tenant, the controversy is as to who is the tenant. In other words whether the appellant is the tenant or his wife is the tenant. The Ld. ARC preferred to act upon one line admission in the end of cross examination of RW-1 where she stated " it is correct that the shop in question was let out to my husband on 20.11.84". To my mind this line cannot be read in isolation. At page 2 of the cross examination she has denied the suggestion that her RCT No. 61/10 11 of 17 12 husband is the tenant or that she was falsely claiming herself to be tenant in the shop in question. She was inducted as tenant in the shop in question almost 20 years back. At the time of creation of tenancy she had paid rent of Rs. 100/- to Mr. Anil Narula. She had paid rent to Anil Narula for 4/5 years but after that he stopped collecting rent because he left the place. After that she started depositing rent with MCD. Again at page 3 of the cross examination she stated that although all the transactions about creation of tenancy was done by her husband but the tenancy was acquired in her name. She denied the suggestion that tenancy was never created in her name. She has asked Anil Narula to give receipt for the rent of Rs. 100/- paid to him at the time of creation of tenancy. Whenever she paid rent to Mr. Anil Narula for 4/5 years, she asked him to issue rent receipts. But he never issued any rent receipt.
16. In fact in the above ground the counsel for the respondents should not have been allowed to put same question repeatedly. To hold otherwise would amount to RCT No. 61/10 12 of 17 13 allowing a counsel to trap the witness and make him fall in the ditch.
17. I may also mention that there appears to be a typing mistake. In the last line of cross examination where RW-1 admitted the suggestion that shop was let out to her husband, It should have been "it is incorrect instead of correct."
18. What is more surprising is that in para 14 of the eviction petition the landlords themselves mentioned that a rent agreement was arrived with the respondent therein though the same is not permissible in law. I fail to understand as to what the respondent wanted to convey by saying that it was not permissible in law. There is no law which prohibits execution of rent agreement. The counsel for the respondents tried to submit that the respondents wanted to say that the agreement was not admissible in law for want of registration. Again I am at a loss to appreciate the arguments. Even if the rent agreement was not admissible for want of registration, it could have been looked into for collateral purpose to find RCT No. 61/10 13 of 17 14 out as to who was the tenant. At the most the tenure of the tenancy could not be looked into and the tenancy would have become a month to month tenancy.
19. The copy of said rent agreement was filed by landlords themselves. The same is placed at pages 237-239 of the file of Ld. Trial Court. It is true that the same has not been exhibited or marked but since it was filed by the landlords themselves, it can be looked into against them as per law laid down by our own Hon'ble High Court in Rudnap Export Import Versus V Eastern Associates Company AIR 1984 Delhi 20.
20. The counsel for the appellant submitted and rightly so that the signature of the appellant on the copy of said lease deed are forged and the respondents were guilty conscious. They did not get the same exhibited under the fear that they might be prosecuted for forging the signature of the appellant on the said agreement.
21. The counsel for the respondents submitted that appellant has taken a plea in the air that the premises were let out by Anil Narula and said Anila Narula is the RCT No. 61/10 14 of 17 15 landlord. He tried to make out as if there is no Anil Narula and that is why said Anil Narula has not been examined by the appellant. He was confronted with his own avernments in para 18 of the petition that petitioner through their attorney let out the shop in question to the respondent. In reply to preliminary objection para F of replication the landlords pleaded that Mr. Anil Narula was the attorney of the petitioners and his attorney has already been withdrawn because of the reason that both the petitioners were out of the country as Mr. Vinod Khanna was in London and Mr. K.K. Khanna was in Nepal. Since there was disturbance in Nepal and Mr. K.K. Khanna came to India, notice was given and Mr. Anil Narula let out the property in question to the wife of the respondent ( appellant ).
22. In the above back ground it is not permissible for the respondents herein to make out that Anil Narula was stranger or was not known to them. They cannot be allowed to say that appellant should have examined said Anil Narula. Anil Narula was their attorney and it was for RCT No. 61/10 15 of 17 16 them to examine said attorney to depose that he let out the premises to the appellant and not his wife.
23. The counsel for the respondents laid much stress on the f;act that onus of proving the plea of the appellant that the premises were let out to the wife of the appellant, was upon him. So appellant should have examined Mr. Anil Narula as a witness. I am unable to agree. The law regarding onus to prove is that once both the parties had adduced evidence, the question of onus become pale. Otherwise the law is that a person who comes to the court to seek a relief must prove the fact alleged by him. Initially it were the landlords who filed eviction petition to seek eviction and set up a case that premises were let out by their attorney to appellant. Thus onus was upon them to prove that the premises were let out to the appellant. The appellant has simply defended petition and he cannot be blamed not for examining the attorney of the landlords.
24. From the material on record I find that the Ld. ARC has erred in holding that it was the appellant who was the tenant. The appeal is accepted. Impugned order is set-
RCT No. 61/10 16 of 17 17 aside and I hold that the wife of the appellant is tenant. Consequently the eviction petition is dismissed. The rent deposited by the appellant in compliance of order u/s 15(1) would be deemed to have been deposited by his wife and give a valid discharge to the wife of the appellant. Trial court record be sent back along with the copy of this order. Appeal file be consigned to Record Room.
Announced in open court on
this 15th February, 2012. (O.P. GUPTA)
DJ&ASJ-In-Charge(West)/ARCT
Delhi
RCT No. 61/10 17 of 17