Delhi District Court
Neena Kapoor vs . Nirmal Singh & Another on 11 May, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
DISTRICT & SESSIONS JUDGE
SOUTH - EAST, SAKET COURTS, NEW DELHI
RCT ARCT No. 1124/2016
NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER
Smt. Neena Kapoor
W/o Late Sh. Harish Kapoor
R/o: 15, Kailash Colony,
Greater KailashI, New Delhi - 110048 .......... Appellant/
Landlord
VERSUS
1. Sh. Nirmal Singh S/o Sh. Sumer Singh
R/o: 15, Kailash Colony, Ground Floor,
Rear Setback, Greater KailashI,
New Delhi - 110048
Also At:
3/21, Pant Nagar, Jangpura Extension,
New Delhi - 110014 .......... Respondent No. 1
2. Sh. Gurcharan Singh Mehta
S/o Late Sh. A. S. Mehta
R/o: E96, Lajpat NagarII,
New Delhi - 110024 .......... Respondent No. 2
Date of filing of Appeal : 18.10.2014
Order pronounced : 11.05.2020
ORDER:
1. The present Appeal under Section 38 of the Delhi Rent Control Act has been filed by the appellant/landlord against the Judgment RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 1 of 19 dated 28.07.2014 vide which her petition under Section 14 (1) (b) of the Delhi Rent Control Act, has been dismissed.
2. The facts in brief as stated by the appellant, are that she is the owner/landlord of premises bearing No. A15, Rear Backside, Ground Floor, Kailash Colony, Greater KailashI, New Delhi, measuring 10 feet by 18 feet, which is in the tenancy of the Respondent No. 1 Sh. Nirmal Singh for residential purposes on monthly rent of Rs. 800/. The rent was increased and was payable @ Rs. 2,800/ per month at the time of filing of the petition. It has been explained that the tenanted premises was in the name of Smt. Indira Rani, motherinlaw of the appellant and after her death, the property was divided amongst the LRs and appellant is the co sharer, being the wife of predeceased son (her husband) Sh. Harish Kapoor, who had expired on 20.05.1989.
3. The appellant came to know that the MCD Officials had sealed the tenanted premises due to illegal commercial activities and was desealed subsequently on an undertaking having been furnished by the Respondent No. 1 that he would not use the premises for commercial activities. Earlier also, MCD had issued Challan dated 26.09.2001 under Section 347/461 of DMC Act against the Respondent No. 1 for change of the user of the property from residential to commercial. Respondent No. 1 had pleaded guilty in the said proceedings. Further, on 30.10.1992 a case under Section 44/39 of the Indian Electricity Act read with Section 379 IPC was registered against the Respondent No. 1 and other tenants in the property in question vide FIR No. 342/1992. The said case was RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 2 of 19 decided on 19.04.2000.
4. Respondent No. 1 has sublet the premises to the Respondent No. 2 Sh. Gurcharan Singh Mehta without obtaining the consent in writing of the appellant. The fact of subletting came to the knowledge of the appellant only on 24.09.2008 when Respondent No. 2 filed a petition for deposit of rent for the period June, 2008 to May, 2009 in which the objections were filed by the appellant stating that Respondent No. 2 is not the tenant and Respondent No. 1 has sublet the premises to the Respondent No. 2. On 08.10.2008 a Legal Notice for termination of the tenancy was sent to the respondents to which no response was given by either of them.
5. The appellant then filed a petition under Section 14 (1) (b) of the DRC Act before the Rent Controller, but the Respondent No. 1 despite service of Notice on 24.07.2009 failed to appear to contest the petition and he was proceeded exparte.
6. Respondent No. 2 in his reply took the preliminary objection that the Respondent No. 1 was never a tenant in the tenanted premises, but it is the Respondent No. 2 who is a tenant and in peaceful possession of the tenanted premises since 1984. It was further asserted that the appellant being only one of the coowner of the property in question had no independent legal right to file the eviction petition without joining her son and daughter in the present petition. On merits, it was claimed that the Respondent No. 2 was running a Restaurant in Kailash Colony, New Delhi in the name and style of M/s Relax Restaurant of which he was the sole proprietor. He used to keep his goods/articles in the tenanted premises as RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 3 of 19 godown. Later, he started a business of refrigeration and air conditioning under the name and style of M/s Mehta Engineers from the tenanted premises appellant and Respondent No. 1, who was his school friend and was having ITI Diploma in Refrigeration, was engaged to render his services for repair and maintenance of appliances under the instructions and supervision of the Respondent No. 2. The appellant herself had written a letter dated 05.01.1991 which bears her signature to Respondent No. 2 for rent.
7. Respondent No. 2 has stated that he was looking after the business of restaurant in the same locality alongwith his brother Sh. Jaspal Singh Mehta. The appellant, as well as, her children used to order food from the restaurant of the Respondent No. 2 on credit basis and the delivery of food was duly acknowledged on the bills/slips by the appellant or her family members. Respondent No. 2 never objected to the same on account of relationship between them. However, with passage of time, the orders being placed by the appellant and her family members became more frequent and the cost of the food also increased and was much in excess of the monthly rent. The Respondent No. 2 thus, asked the appellant to clear the outstanding bills, but she did not do so and Respondent No. 2 stopped giving food to the appellant and her family members on credit basis. The relationship between the parties turned sour and consequently Legal Notice was served upon the Respondent No. 2.
8. Respondent No. 2 has further explained that the rented premises comprises of one room and does not have any facility of bathroom/ latrine. The family of the Respondent No. 1 comprising of himself, RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 4 of 19 his wife and two sons and it is hard to believe that the rented premises could have been let out to the Respondent No. 1 for residential purposes. It was denied that there was facility of common bathroom and latrine in the premises.
9. Respondent No. 2 had further submitted that he had given an undertaking pursuant to the directions of the Hon'ble Supreme Court of India to the concerned department, consequent to which the premises was desealed. The Respondent No. 2 has thus, asserted that he was running two businesses, one of the restaurant in the same vicinity and other of refrigeration & air conditioner from the tenanted premises. It is claimed by him that Respondent No. 1 was challaned by the MCD instead of Respondent No. 2 and for the reasons best known to the Respondent No. 1, he did not disclose this fact to the Respondent No. 2 and pleaded guilty before the Hon'ble Court. In fact, Respondent No. 2 himself has also been challaned under the DMC Act on 06.10.2004 and 21.07.2004 by the Mobile Court.
10.Likewise, FIR for electricity theft had been lodged on behest of the appellant against the Respondent No. 1 who was deliberately made a party as Mehta Engineers with the sole intention of showing him as a tenant. It is claimed that the Respondent No. 2 is the original tenant and in possession of the property in question since 1984 and Respondent No. 1 was never a tenant in the suit property.
11. The appellant Ms. Neena Kapoor has examined four witnesses in all in support of her case. She appeared as PW1 and deposed about the facts as already narrated above.
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12. PW2 Ms. Preeti, UDC from Record Room, Patiala House Courts, New Delhi, has proved the CA Form bearing Report Ex. P2/A.
13. PW3 HC Dhani Ram produced the record pertaining to FIR No. 342/1992, under Section 39/44 I. E. Act and Section 379 IPC, copy of which was exhibited as Ex. PW3/A.
14. PW4 Sh. Ramesh Chand was the Caretaker of the suit premises, who deposed on similar lines as the appellant.
15. Respondent No. 2 Sh. Gurcharan Singh Mehta appeared as RW1 and reaffirmed his entire defence, as already narrated above and claimed himself to be the tenant in suit premises.
16. Respondent No. 2 also examined Sh. B. S. Negi, OfficeIncharge, Building Department, South Zone, Green Park, New Delhi as RW2, who proved the affidavit dated 12.04.2006 that was submitted by him before the MCD Authority. The letter of Assistant Engineer dated 18.04.2006 in regard to desealing of the premises was proved as Ex. RW2/A.
17. HC Praveen Kumar was examined as Court Witness and he proved the entire record pertaining to FIR No. 342/1992, PS Greater Kailash under Section 39 & 44 of the Electricity Act read with Section 379 IPC.
18.Ld. Rent Controller after considering the entire evidence and documents concluded that a mere challan under Section 347/461 of DMC Act in which Respondent No. 1 had pleaded guilty and the trial under the Electricity Act was not sufficient to conclude that Respondent No. 1 was the original tenant or that the Respondent RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 6 of 19 No. 2 was the subtenants, the Petition under Section 14 (1) (b) of the Delhi Rent Control Act was accordingly dismissed.
19. Aggrieved by the said judgment, the present appeal has been filed.
20. Ld. Counsel on behalf of the appellant/landlord has submitted that the tenancy was created initially by Sh. Harish Kapoor, deceased husband of the appellant in the year 1984 in favour of the Respondent No. 1 Sh. Nirmal Singh on monthly rent of Rs. 800/ for residential purposes Sh. Harish Kapoor expired on 20.05.1989 and appellant/petitioner became the owner/landlord. The rent was subsequently increased and was payable @ Rs. 2,800/ per month. There was no written agreement for creation of the tenancy and it was the Respondent No. 1 who was the tenant. The appellant came to know about subletting only on 24.09.2008 when he filed petition under Section 27 of Delhi Rent Control Act in the Court for deposit of rent.
21.It has been further submitted on behalf of the appellant that Ld. Rent Controller failed to appreciate that the challan of MCD against the Respondent No. 1 in which he had pleaded guilty and the charge sheet under the Electricity Act against the Respondent No. 1, clearly show that it was the Respondent No. 1, who was the original tenant in the premises in question. The Ld. Rent Controller had wrongly relied upon the Restaurant Bill of the Respondent No. 2 to conclude that there was a relationship of landlord/tenant between the parties. It is further argued that it has been wrongly concluded that merely because the MCD Challan dated 19.11.2006 was issued against the Respondent No. 2 or that he submitted an affidavit before the MCD RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 7 of 19 Authority for desealing can be held to be sufficient evidence in favour of the Respondent No. 2.
22.It has been argued that both from the prosecution before Ld. Metropolitan Magistrate under Section 44/39 of the Indian Electricity Act read with Section 379 IPC and in MCD Court, Sh. Nirmal Singh, Respondent No. 1, has been shown as a tenant. These documents clearly establish the tenancy in favour of the Respondent No. 1. Ld. Rent Controller on the basis of conjunctures and surmises concluded that merely because Respondent No. 1 faced trial before the MCD Court and in the electricity theft case, does not show him as a tenant since the general tendency of the shopkeepers is to give the name of their agents, managers and employees so as to avoid appearance in the Court. However, merely because Respondent No. 1 has faced trial, does not give rise to the presumption that he held the premises in an independent capacity of tenant. It is claimed that the observations of Ld. Rent Controller are not as per law and are liable to be setaside. Moreover, the Respondent No. 2 has not been able to prove any payment of rent ever till 2008. Notice of Termination of Tenancy dated 08.10.2008 was duly served upon the Respondent No. 1 for vacating the premises on the ground of subletting. It has been argued that the Judgment of the Ld. Rent Controller is based on conjectures and surmises and is therefore, liable to be setaside.
23. Ld. Counsel for the Respondent No. 2 Sh. Gurcharan Singh Mehta has argued that the appellant had intentionally given wrong address of the Respondent No. 1 as 15, Kailash Colony, Greater RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 8 of 19 Kailash, New Delhi A15, Kailash Colony, Greater Kailash, New Delhi. Moreover, Respondent No. 1 has never been served at the second address i.e. 3/21, Pant Nagar, Jangpura Extension, New Delhi. It is argued that intentionally no effective service has been effected on the Respondent No. 1 only because he was never a tenant at the suit premises. Furthermore, the suit property is only one room with common latrine and bathroom, which is not suited for residential purposes. Moreover, the site plan Ex. PW1/A also describes the suit property as a shop. It is further argued that the appellant had been taking food from the restaurant of the Respondent No. 2 in lieu of rent. This is established from the letter dated 05.01.1991 that was sent by the appellant to the Respondent No. 2 for collection of rent. Furthermore, the appellant in her cross examination has admitted that countersigning of the food bills, which proves that the food bills were adjusted was towards the rent. Furthermore, the Respondent No. 2 in the year 1995 had submitted an affidavit for desealing of the property in question. Likewise, in the electricity theft case, it was M/s Mehta Refrigeration, who was shown as an accused. Respondent No. 2 was the proprietor of M/s Mehta Refrigeration, which again establishes his presence in the suit property. Respondent No. 1 was merely an occupier on behalf of the Respondent No. 2. The MCD License in the name of the Respondent No. 2 as proprietor of M/s Mehta Refrigeration at the suit premises has been proved as Ex. RW1/2. Moreover, it is the Respondent No. 2, who has been paying the charges in the MCD in regard to M/s Mehta Refrigeration and the receipts are Ex. RW1/87 to RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 9 of 19 Ex. RW1/94. The Income Tax Returns filed are Ex. RW1/95. It is further argued that it only the Respondent No. 2, who was tenant in the premises and it has never third party been sublet of any suit property.
24. It is claimed that the legal questions arise in the present appeal, which are as follows:
1. Whether the food bills can be held to be a valid adjustment towards payment of rent of the suit premises and can be held to be an effective payment of rent and relationship between appellant and Respondent No. 2?
2. Whether the Respondent No. 2 can be held to be the actual tenant merely on the basis of prosecution under DMC Act as occupier of the tenanted premises on account of misuse?
3. Whether Ld. Rent Controller has drawn legal assumption that as general practice, the occupiers, agents, managers and employees are criminally prosecuted as proxy for facing criminal prosecution as for the offence under the Electricity Act?
4. Whether the Respondent No. 2 was able to discharge onus to prove that he was the tenant in the suit premises?
25. I have heard the arguments and perused the record. My observations are as under:
26.The appellant Ms. Neena Kapoor, as PW1, has deposed that RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 10 of 19 property in question bearing No. A15, Kailash Colony, Greater Kailash, New Delhi was in the name of her motherinlaw, who died and her fatherinlaw also died subsequently. Thereafter, the property was mutually divided between her husband and his brother. Her husband Sh. Harish Kapoor also died on 20.05.1989. Thereafter, the property was being mutated in her name in the concerned authority and thereafter she became the owner/landlord of the suit premises. She further deposed that the property in question was rented out by Sh. Harish Kapoor during his lifetime to the Respondent No. 1 Sh. Nirmal Singh for residential purposes on monthly rent of Rs. 800/. At that time, there was electricity and water connection and also a common bathroom and latrine. However, due to family problems that occurred after the death of Sh. Harish Kapoor, she was unable to manage the property. There is no crossexamination on the aspect on the assertion of the Respondent No. 1. In fact, Respondent No. 2, as per his own submission had tendered the rent to the appellant under Section 27 of the Delhi Rent Control Act, the appellant being the owner/landlord of the suit premises is therefore established.
27. The moot question is whether it is the Respondent No. 1 or the Respondent No. 2, who is the tenant in the suit premises? The appellant has deposed that it was an oral tenancy that was created; undisputably there is neither any rent agreement nor any rent receipts ever issued, either in favour of the Respondent No. 1 or Respondent No. 2. In the absence of documents, it is only the oral evidence and surroundings circumstances which have to be RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 11 of 19 considered to ascertain, whether Respondent No. 1 was a tenant in the suit premises?
28. The appellant had relied upon the certified copy of MCD Challan under Section 347/461 of DMC Act dated 27.01.2001 (Ex. PW 1/A) that was filed against the Respondent No. 1 as occupier of the suit property. In the said challan it was mentioned that Sh. Nirmal Singh (Respondent No. 1) the owner/occupier of the suit property, had changed the nature of suit property from residential to commercial and was running the shop/office of M/s Mehta Refrigeration without written permission of the Commissioner of MCD. The Respondent No. 1 pleaded guilty and was convicted & sentenced to fine of Rs. 3,000/ vide order dated 12.02.2007. It is true that Sh. Nirmal Singh (Respondent No. 1) has been defined as owner/occupier of the suit premises and running business of M/s Mehta Refrigeration but it must not be overlooked that it is a document of the year 2001 at the time when there was no dispute inter se the landlord and tenant. Thus, the MCD Challan and the conviction establishes the fact of presence of Sh. Nirmal Singh (Respondent No. 1) in the suit premises. The presence of Sh. Nirmal Singh is also not denied or challenged by the Respondent No. 2 Sh. Gurcharan Singh Mehta.
29. The other significant document is the proceedings of the case under Sections 44/39 of the Indian Electricity Act read with Section 379 IPC, which was registered vide FIR No. 342/1992. Court Witness No. 1 HC Parveen Kumar, Record Clerk from VSK produced the entire criminal record which is Ex. CW1/A. He RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 12 of 19 deposed that the entire criminal record pertaining to DD Entry No. 16A dated 01.11.1992, which was summoned by the Court has been destroyed vide order dated 14.01.2011 (Ex. RW1/B). FIR No. 342/1992 PS Greater Kailash has been proved by PW3 HC Dhani Ram as Ex. PW3/A.
30. Respondent No. 2 has not challenged the trial that was faced by the Respondent No. 1 in the said case. The FIR had been registered against M/s Mehta Refrigeration of which Sh. Nirmal Singh (Respondent No. 1) was mentioned as the proprietor. This FIR is dated 01.11.1992. It is difficult to appreciate that way back in the year 1992 the appellant would have had an inclination of any future litigation or had started planning for the defence way back in the year 1992. It is quite obvious that the facts, as narrated therein, were true facts and Sh. Nrmal Singh (Respondent No. 1) represented himself as not only being present in the suit property but was also carrying on the business in the name of M/s Mehta Refrigeration.
31. Another significant aspect is that is the statement of the appellant Ms. Neena Kapoor, it had clearly been stated that Sh. Nirmal Singh (Respondent No. 1), proprietor of M/s Mehta Refrigeration was the tenant in the suit premises. Moreover, in the judgment dated 19.04.2000 in this case, it has been mentioned that Neena Kapoor who appeared as PW2 had deposed in crossexamination stated that there was no written rent agreement. There was no reason for the appellant to have claimed Respondent No. 1 as the tenant instead of Respondent No. 2. Statement of appellant Ms. Neena Kapoor was recorded way back in the year 1993 when Sh. Nirmal Singh RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 13 of 19 (Respondent No. 1) was occupying the suit premises as tenant. It may be worthwhile to note here that the trial was faced by Sh. Nirmal Singh (Respondent No. 1), which resulted in acquittal vide Judgment dated 19.04.2000.
32.This criminal proceeding, as well, not only shows the presence of Sh. Nirmal Singh (Respondent No. 1) in the suit premises, but also shows that he was running business in the name of M/s Mehta Refrigeration.
33. In this context, it is significant to consider the documents and the defence that has been put up by the Respondent No. 2 Sh. Gurcharan Singh. He has proved the MCD Registration Certificate as Ex. RW 1/2, which shows that the Registration of the Certificate was taken on 19.05.1995. The first entry shows that the Registration Fees had been deposited from 01.04.1985 till 31.03.1996. This implies that the registration of the business for the first time was done in the year 1995, though it was for the period since 01.04.1995. The address mentioned in the Registration Certificate of MCD is that of suit premises. Likewise, there are Challans Ex. RW1/185 to Ex. RW 1/193 to show that it is the Respondent No. 2 who had been depositing rent with the MCD. The Respondent No. 2 has also filed his Income Tax Returns for the Assessment Year 20042005 vide Ex. RW1/195, which shows his income from the business M/s Mehta Refrigeration at the suit premises.
34. The question is whether these documents relied upon by the Respondent No. 2 are sufficient to establish that he was the original tenant in the suit premises. The significant aspect in this regard is his RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 14 of 19 own deposition as RW1/1, wherein he has explained that he is the school friend of the Respondent No. 1 Sh. Nirmal Singh, who was known to him since 40 years. He used to take the services of the Respondent No. 1 in the business of refrigeration and air conditioning since he was having ITI Diploma in Refrigeration and that Respondent No. 1 used to repair Air Conditioner and Refrigerators at the tenanted premises on his instructions and supervision he used to pay Respondent No. 1 a certain percentage of the earning though there was no written agreement between them in this regard. The facts, as deposed by the Respondent No. 2 himself clearly show that he was proprietor of M/s Mehta Refrigeration and he had entered into business agreement with the Respondent No. 1, who was a tenant in the suit premises for carrying out the business of M/s Mehta Refrigeration, of which the Respondent No. 2 was the proprietor.
35. These admissions of the Respondent No. 2 clearly establishe that it was the Respondent No. 1 Sh. Nirmal Singh, who was the tenant and not the Respondent No. 2. There was an arrangement between the Respondent No. 1, the tenant and the Respondent No.2, proprietor of M/s Mehta Refrigeration for the purpose of carrying out the business of repair of Air Conditioners and Refrigeration. The observations of Ld. Rent Controller that generally there is tendency of the shopkeepers to get the name of their agents, managers and employees so as to avoid appearance in the Court is merely based on conjectures and surmises, which cannot be legally sustained.
36. Another interesting fact of significance is that the Respondent No. 2 RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 15 of 19 in his affidavit of evidence Ex. RW1/A has merely stated that the premises was let out to him for commercial purpose only. However, he is absolutely silent about the date of the commencement of the tenancy or about the person who inducted him as a tenant; even the rate of rent has not been stated by him in his entire evidence. Infact, he was a tenant as has been claimed by him, there is no explanation as to why he has failed to assert the date on which he took the premises on rent and the rate at the time of creation of tenancy. Interestingly, in regard to payment of rent, he has come up with an explanation that he was running a business in the name of M/s Relax Restaurant in the vicinity and the appellant and her family members used to order food from time to time and rent was being adjusted against the food orders. The Respondent No. 2 has proved the order receipts as Ex. RW1/4 to Ex. RW1/182 wherein various bills of various amounts starting from Rs. 40/ to Rs. 400/ or more, since 1995 till about 2001 have been placed on record. The appellant when confronted with all these receipts of food bills, had denied her signatures and signatures of her daughter and son. PW4 Ramesh Chand, Caretaker of the appellant, however, identified the signature of Mr. Sumit Kapoor, son of the appellant on some of the food bills. However, merely because Sh. Sumit Kapoor, son of the appellant had been regularly ordering food from the restaurant of the Respondent No. 2 is not sufficient to show that the said food bills were to be adjusted towards rent. In fact, it is difficult to appreciate that the food bills which ranged from Rs. 40/ to more than Rs. 400/ per month were being adjusted towards the monthly rent for more RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 16 of 19 than six years, especially when rate of rent has not been specified by the Respondent No. 2 in his evidence. The Respondent No. 2 himself has stated that when the food orders became excessive and the food became expensive, he requested the appellant to clear the outstanding bills and when she failed to do so, he stopped giving food on credit basis. These assertions of Respondent No. 2 again show that food was being paid on credit basis and appellant despite the request for Respondent No. 2, failed to settle the accounts. If the food was being supplied on credit basis as per Respondent No. 2, where is the question of settling off the rent against the food bills. Even if food items were being ordered by the appellant and her family members from the restaurant of the Respondent No. 2, it has not been shown by any cogent evidence that the adjustment of the foods bills was being done against the monthly rent. If so was the case, why was no notice ever received upon the appellant to seek adjournment or demand outstanding due. No statement of account of any kind has been produced by the Respondent No. 2 in support of his claim. One of the most important incidence is of tenancy is payment of rent and there is no evidence whatsoever to show that Respondent No. 2 ever paid any rent to the appellant.
37.The Respondent No. 1 had filed an affidavit Ex. RW1/183 dated 10.11.2006 before the Commissioner of MCD at the time of desealing of the property, but this merely shows that he was in occupation of the premises, which definitely does not make him the tenant in the suit premises by the same logic which was putforth by him in regard to criminal trials faced by the Respondent No. 1.
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38.Respondent No. 1 had also relied upon the letter dated 05.01.1991 Ex. RW1/3 allegedly written by the appellant, which reads as under:
Relax Hotel Dear Sir, You are requested to give the rent to my servant, sended by me to your hotel. His name is Jagdish.
Sd/ Thanking you, Yours faithfully A15, Kailash Colony, New Delhi
39. Appellant when confronted with the said letter denied her signatures on it and also that she had ever written that letter for claiming rent. This letter has been denied by the appellant and is of no assistance to Respondent No. 2 to show that he was a tenant in the property in question.
40.The Ld. Rent Controller thus, fell in error in holding that Respondent No. 1 was not a tenant in the suit premises. Overwhelming evidence by way of the statement of the appellant made way back in the year 1993 alongwith vague plea of the Respondent No. 2 of being the tenant without proving either date of tenancy or the rate of rent or the mode of payment of rent, clearly shows that Respondent No. 2 was never inducted as a tenant in suit premises by the appellant.
41. The evidence on record and circumstances as established by the appellant, clearly prove that it was the Respondent No. 1 Sh. Nirmal RCT ARCT No. 1124/2016 NEENA KAPOOR VS. NIRMAL SINGH & ANOTHER Page No. 18 of 19 Singh, who was inducted as tenant. Admittedly, it is the Respondent No. 2 Sh. Gurcharan Singh Mehta who is in exclusive possession of the suit shop atleast since 2006 when he filed his affidavit before the Commissioner of MCD. Thus, it is clearly established that the Respondent No. 1 the original tenant, has parted with the possession of the suit shop in favour of the Respondent No. 2 without the consent of the owner. The ground of subletting is proved from the evidence on record. The appeal is allowed and the impugned judgment dated 28.07.2014 passed by the Ld. Rent Controller is therefore setaside. An eviction order in respect of the suit premises No. A15, Rear Backside, Ground Floor, Kailash Colony, Greater KailashI, New Delhi, as shown in red in the Site Plan Ex. PW1/A is hereby made in favour of the appellant under Section 14 (1)(b) of Delhi Rent Control Act.
42.Trial Court Record be sent back alongwith a copy of this order.
43.File be consigned to Record Room. Digitally signed by
NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2020.05.11
KRISHNA 15:26:53 +0530
Announced in the open Court (Neena Bansal Krishna)
on 11.05.2020 District & Sessions Judge
(KSR) South East, Saket Courts,
New Delhi
RCT ARCT No. 1124/2016
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