Delhi District Court
Smt. Pankaj Nagpal vs Nitco Roadways Ltd on 18 September, 2019
IN THE COURT OF SH. SACHIN SANGWAN: ACJ/CCJ/ARC
(SOUTH): DISTRICT COURT SAKET: NEW DELHI.
In re,
RC ARC No.57/2017
1. Smt. Pankaj Nagpal
w/o Sh. Satish Nagpal,
R/o: BE59, West Shalimar Bagh,
Delhi 110088.
2. Smt. Poonam Malik
w/o Sh. Satish Malik,
R/o: C33, First Floor,
Kalkaji,
New Delhi 110019.
3. Dr. Pinky Sharma
w/o Dr. Ramesh Sharma,
R/o: C2/394, Janakpuri,
New Delhi 110058 ....... Petitioner
v.
Sh. Manmohan Singh
s/o Sh. Lal Singh
R/o: B4/190C, Safdarjung Enclave,
New Delhi 110029. .............Respondent
Date of Institution : 01.05.2017
Date of judgment reserved for orders : 05.09.2019
Date of Decision : 18.09.2019
JUDGMENT
APPLICATION FOR EVICTION OF TENANT UNDER SECTION 14(1)(b) OF THE DELHI RENT CONTROL ACT, 1958 RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 1/12 CASE OF PETITIONER
1. As per petitioner, originally the property bearing no.14, Block 4B, Safdarjung Development Residential Scheme, Community Centre, New Delhi (hereinafter referred to as suit property) was purchased by Sh. Pran Nath Nangia from the DDA in public auction held on 18.08.1966. However, unfortunately Sh. Pran Nath Nangia died on 22nd January, 1985 and thereafter the petitioners and their mother Smt. Krishna Kumari Nangia became the owner of the suit property. As per petitioners, subsequently DDA executed perpertual lease deed dated 29.05.1997 in their and Smt. Krishna Kumari Nangia's favour. However, unfortunately Smt. Krishna Kumari Nangia died on 24.10.2012 and thereafter the petitioners became the coowners and colandlords of the suit property.
2. As per petitioners, Smt. Krishna Kumari Nangia let out the basement of the suit property to the respondent for nonresidential purposes. Unfortunately, Smt. Krishna Kumari Nangia also died and the respondent started paying the rent to them after her death and paid the rent upto 31.12.2013.
3. As per petitioners, recently they came to know that the tenanted premises is not being used by the respondent but the same is being used by M/s Rajindra Xpress for running its restaurant activities. As per petitioners, the respondent/tenant sub letted/assigned and parted with possession of the tenanted premises RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 2/12 to M/s. Rajindra Xpress without their written consent/permission. As per petitioners, M/s Rajindra Xpress had been running its restaurant activities from the adjoining basement and recently the respondent in collusion with M/s Rajindra Xpress has removed part of common wall in between the basements and a passage was constructed to join the adjacent basements for greater space for running the restaurant and M/s Rajindra Xpress has started running its restaurant activities from the premises in question unauthorizedly and as such the respondent is liable to be evicted u/s 14(1)(b) of the Delhi Rent Control Act.
Accordingly, present petition has been filed u/s 14(1)(b) of Delhi Rent Control Act, 1958 RC Act for passing an eviction order in favour of petitioners and against the respondents in respect of the basement situated at suit property i.e. plot no.14, block AB, Safdarjung Development Scheme, Community Centre, New Delhi 29.
CASE OF RESPONDENT
4. In the WS filed by the respondent, it is averred that there is no subletting whatsoever on his part and he still retain the exclusive possession and exercises full control over the tenanted premises and in fact he is carrying on his business of Property Consultant under the name and style of M/s Guru Nanak Associates from the entire premises in question, even till date. As per respondent, the petitioners have failed to place on record any document or other material to show that premises in question has been sublet by him RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 3/12 and the only document which has been filed in support of the said hollow allegation comprise of certain photographs which are false and fabricated and the same are not of the premises in question. Respondent averred that though one of the photographs annexed at page 34 of paperbook show that the signboard pertains to one 'Rajinder Xpress', however the petitioner themselves stated in their eviction petition that the said Rajinder Xpress has been running its restaurant activities from the adjoining basement. As per respondent, the proprietor of M/s Rajinder Xpress is the owner/landlord of a wine shop situated on the ground floor and thus he has a right to place the signboard over his own shop and the said signboard is over and above the signboard of the respondent. Respondent stated that the other photographs annexed with the present eviction petition are not of the premises in question let out to him and therefore the respondent has no knowledge with regard to the same and the said photographs are false, manipulated and fabricated. Respondent vehemently denied that M/s. Rajinder Xpress has been inducted as Subtenant in the property in question without the consent of the landlord/petitioners. Respondent stated that there has been no subletting whatsoever and the entire tenanted premises is in possession and control of him and as such, no question arises for taking consent of the petitioners/landlords. Respondents vehemently denied that he has paid rent upto 31.12.2013 and the tenanted premises are not being used by him but the same is being used by M/s Rajindra Xpress for running its restaurant activities.
RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 4/12 Respondent has vehemently denied that he in collusion with M/s Rajinder Xpress removed part of the common wall in between the basements and a passage was formed to join the adjacent basements for greater space for running the restaurant. He further vehemently denied that M/s. Rajinder Xpress has started running its restaurant activities from the premises in question unauthorizedly. Respondent stated that no prudent man/landlord will allow his tenant to be in possession of the tenanted property without receiving rent for more than three years. Respondent stated that petitioners have not claimed any relief with regard to the payment of arrears of rent as alleged and no documents has been filed by the petitioners in support of their alleged claim of subletting. He stated that the photographs filed by the petitioners are false and fabricated as they are not of the premises in question and even no wall of the premises has been removed and the premises in question is in the same position as it was at the time of letting out. Respondent stated that the rent has been paid regularly to the petitioners and even petitioners did not make any claim with regard to the alleged arrears of rent since the last three years or even in the present petition.
REPLICATION
5. In the replication, petitioners have denied the contents of the written statement filed by the respondent and have reaffirmed the averments made in the petition.
RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 5/12 PETITIONER's EVIDENCE
6. Petitioner no.3 Dr. Pinky Sharma examined herself as PW1. She tendered her evidence by way of affidavit Ex.PW1/A and she relied upon the following documents:
a) site plan as Ex.PW1/1 (objected to by counsel for respondent as to the mode of proof)
b) copies of death certificate of Prem Nath Nangia and Smt Krishna Nangia as Ex.PW1/2 (OSR) & Ex.PW1/3 (OSR)
c) copy of mutation letter dated 07.10.1996 issued by DDA in favour of petitioners as Ex.PW1/4 (OSR)
d) copy of perpetual lease deed dated 29.05.1997 executed by DDA in favour of petitioners as Ex.PW1/5 (OSR)
e) Mark A is the copy of property tax receipt dated 27.06.2016
f) Mark B is the copy of rent receipt dated 26.01.2014
g) Ex.PW1/8 (colly) are the six photographs RESPONDENT's EVIDENCE
7. Respondent Manmohan Singh examined himself as RW1. He tendered his evidence by way of affidavit Ex.RW1/A. He relied upon following documents :
a) Ex.RW1/1 (collectively) are the six photographs
b) Ex.RW1/2 is the site plan.
FINDINGS RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 6/12
8. I have considered the pleadings and evidence of both the parties. I have heard the arguments of counsels for both the parties and have carefully perused the file.
9. As per section 14(1)(b) of DRC Act, the rent controller may make an order for recovery of the possession of the premises if the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of whole or any part of the premises without obtaining the consent in writing of the landlord.
Thus, the conditions of applicability regarding section 14(1)(b) of DRC Act are: a. The tenant has sublet, assigned or otherwise parted with possession b. It may be in respect of whole or any part of the premises c. Such subletting etc. had taken place on or after the 9 th day of June, 1952 d. Such subletting etc. had taken place without obtaining the consent in writing of the landlord.
10. In the present case, the petitioners have alleged that the premises is being used by M/s Rajindra Xpress for running its restaurant activities. It is submitted that said concern have been running its restaurant activities from the adjoining basement and recently a common wall was removed by the respondent in collusion with M/s Rajindra Xpress and the adjacent basement was joined for RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 7/12 larger space for running the restaurant and it was done unauthorizedly without consent or permission of petitioners. The respondent has denied all said allegations regarding removal of common wall, parting the possession/assigning / subletting the premises to M/s Rajindra Xpress and the running of restaurant business of M/s Rajindra Xpress from the demised premises. In support of their case, petitioners have examined only one witness i.e. petitioner no.3 as PW1. However, her oral testimony does not help the case of petitioners as same is nothing but hearsay evidence only. In her affidavit of evidence, she has deposed that at the time of filing of petition, the petitioners had "come to know" that the tenanted premises is not being used by the respondent but same is being used by Rajindra Xpress for running its restaurant activities. It is no where stated that the PW1 ever visited the premises and saw such scenario. More importantly, in her cross examination, she has deposed as follows : "Q. how did you come to know that the rented premises has been sub letted only (or) assigned in favour of M/s Rajindra Xpress? Ans. My husband and two brotherinlaws went to Rajindra Xpress which is a restaurant for taking food and therein they found that the separating wall between Rajindra Xpress and the demised premises was having a passage and the demised premises was being used as part of Rajindra Xpress." Accordingly, it can be seen that the testimony of PW1 is hearsay only.
As far as documentary evidence is concerned, the petitioner has not filed any document i.e. bill / business card etc RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 8/12 showing the address of M/s Rajindra Xpress as that of tenanted premises and the only documents regarding the alleged usage of the premises by Rajindra Xpress are the site plan Ex.PW1/1 and photographs Ex.PW1/8 (colly). However, as discussed in succeeding paragraphs, even the same have not been duly proved.
PW1 has relied on the site plan Ex.PW1/1, however it appears that same was not prepared in her presence or on her instructions. During her cross examination, she has deposed that "I do not remember the date on which the site plan was got prepared. The same was got prepared by my husband and by my two brotherinlaws. The site plan has been prepared by the Chartered Engineer after measuring the plot. I do not know the date when premises was visited by Chartered Engineer." Therefore, it can be seen that the site plan Ex.PW1/1 was prepared by a Chartered Engineer and that too at the instruction of persons other than PW1. Accordingly, the same have not been duly proved by petitioners.
Further, PW1 has relied on six photographs Ex.PW1/8 (colly). However, there is no assertion in the entire evidence of affidavit that the photographs were taken in the presence of PW1. Though, it is stated that petitioners took the photographs but during her cross examination PW1 has deposed that " the photographs relied upon by me have been clicked by my husband and two brotherinlaws." Hence, it is clear that the respective husbands of the petitioners and not the petitioners have taken the photographs. Further, neither the negatives of photographs have been filed nor any CD alongwith RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 9/12 certificate under section 65B of Indian Evidence Act have been filed. The counsel for petitioners has argued that no objection was taken in regard to the mode of proof of the photographs when the same were exhibited and accordingly, same have been properly proved. On the other hand, counsel for respondent has argued that even if no objection was taken, still the petitioners have to prove the documents as per the principles of Indian Evidence Act and mere mentioning an exhibit number is not sufficient and is not equivalent to proof of a document. The counsel for respondent has relied upon judgment of Hon'ble High Court of Delhi titled Sudhir Engineering Company Vs Nitco Roadways Ltd, 1995 (34) DRJ 86 on this aspect. I have considered the submissions. Indeed, no objection was taken regarding the mode of proof, however, a document has to be proved by its executant or by the attesting witnesses or by an expert or by the persons acquainted with the handwritings of the parties or such other modes provided in the Indian Evidence Act. Likewise, a photograph being a document has to be proved by its creator i.e. photographer or the persons in whose presence the same was clicked or the other modes provided in the Indian Evidence Act. However, PW1 is admittedly neither the photographer qua the photographs nor there is any evidence that she was present when the same were clicked. A document / photograph may be proved by the admission of other party also, however all the photographs except one were denied by the respondent in his WS. Accordingly, court is in agreement with the submissions of counsel for respondent that the RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 10/12 photographs have not been proved as per law. As far as one photograph admitted by respondent in his WS is concerned, same is of the entrance to the premises. There is indeed a board of Rajinder Xpress visible in the same but same is above the board of Guru Nanak Property Consultant and it is admitted case of petitioner that Rajinder Xpress was already working in adjacent basement. Therefore, such placing of boards is not sufficient proof of alleged subletting etc in such scenario. Moreso, the sign board of Guru Nanak Property Consultant has an arrow pointing towards the entry of the premises but there is no such arrow on the sign board of Rajinder Xpress so as to conclude that the board pertains to the basement of the premises in question.
The counsel for petitioners has argued that in the case of subletting, assigning or parting of possession of tenanted premises, the petitioners have to only prima facie prove the existence of a third person in the premises and the burden is on the tenant to show the status of said third person and the legality of his occupation in the premises. The counsel has argued that the photographs filed by the petitioners prima facie prove running of Rajindra Xpress from the tenanted premises and moreso, the photographs filed by the respondent are of recent period and show new furniture and fresh white wash etc. indicating that the respondent has taken measures after filing of the petition so as to close the common wall and escape the eviction order. I have considered the arguments. As pointed out earlier, the photographs filed by the petitioners have not been duly RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 11/12 proved. As far as the photographs filed by respondent are concerned, the mere fact that new furniture have been brought by the respondent and whitewashing etc has been done after the filing of eviction petition does not in itself prove that premises was earlier sublet, assigned or parted with possession to some third entity. Moreover, no photograph filed by respondent specifically show any reconstructed wall in particular.
Summing it up, the petitioners have failed to examine any independent witness or even the alleged persons who themselves saw the alleged state of affairs despite the fact that they are spouses of the petitioners. The only witness examined by the petitioners have failed to prove the pleadings made in the petition either by oral or by documentary evidence. Further, nothing substantial has come in the cross examination of respondent so as to conclude that the averments made in the petition are correct. Therefore, the petitioners have failed to prove the alleged subletting/assigning/parting of possession of premises to a third person. Accordingly, the petition is dismissed.
File be consigned to record room after due compliance.
Digitally signed by SACHIN SACHIN SANGWAN
SANGWAN Date: 2019.09.19
15:19:49 +0530
(ANNOUNCED IN THE (SACHIN SANGWAN)
OPEN COURT ON ACJ/CCJ/ARC (SOUTH):
18th September, 2019) DISTRICT COURT SAKET:
NEW DELHI.
RC ARC No.57/2017 Pankaj Nagpal & Ors. v. Manmohan Singh Pages 12/12