Delhi District Court
Pawan Dewan Ors vs . M/S Hari Sons Anr. on 2 December, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL, NEW DELHI
In the matter of :
RCT No. 161/2016
1. Sh. Pawan Dewan S/o Late Major Jai Gopal
R/o 6, Shankracharya Marg
Delhi110 054.
2. Sh. Rajeshwar Gopal (Deceased) S/o Late Sh. Bans Gopal
To be represented through his LRs.
i) Smt. Vandana Srivastava (Deceased)
W/o Late Sh. Rajeshwar Gopal @ Rajesh Gopal
Through L.R. Ruby Dewan
R/o Unitech Horizon, Tower No. 17, Flat no. 301
Sec. Pi2, Greater Noida201308, UP.
ii) Shri Ashish Dewan
S/o Late Shri Reajeshwar Gopal @ Rajesh Gopal
3. Sh. Ramesh Gopal S/o Late Sh. Bans Gopal
4. Sh. Shiweshwar Gopal
Since deceased through LRs
i) Ms. Swati Gopal D/o Late Sh. Shiweshwar Gopal
RCT No. 161/16 Page 1 of 55
Pawan Dewan Ors vs. M/s Hari Sons Anr.
5. Sh. Manmohan Gopal S/o Late Sh. Bans Gopal
6. Sh. Virender Gopal S/o Late Sh. Ram Gopal
7. Sh. Mahinder Gopal S/o Late Sh. Sri Gopal
8. Sh. Jitender Gopal S/o Late Sh. Sri Gopal
9. Mrs. Rajani Sinha W/o Dr. S.N. Sinha
10. Mrs. Rashmi Srivastava W/o Dr. R.K. Srivastava
11. Sh. Rajendra Gopal S/o Late Sh. Madan Gopal
12. Smt. Chanda Dewan W/o late Sh. Anil Kumar
13. Ms. Menka Dewan D/o Late Sh. Anil Kumar
14. Sh. Tusshar Dewan S/o Late Sh. Anil Kumar
15. Sh. Pradeep Gopal S/o Late Sh. Madan Gopal
16. Sh. Deepak Dewan S/o Late Sh. Madan Gopal
17. Smt. Sushila Devi (deceased) W/o Late Sh. Girdhar Gopal
To be represented through her son
Shri Inder Gopal S/o Late Sh. Girdhar Gopal
18. Shri Girdhar Gopal (deceased)
Through LR Sh. Inder Gopal (son)
S/o late Sh. Girdhar Gopal
19. Sh. Inder Gopal S/o late Sh. Girdhar Gopal
Appellant nos.2 to 19 are residents of :
House No. 2991, Ballimaran, Delhi110006.
RCT No. 161/16 Page 2 of 55
Pawan Dewan Ors vs. M/s Hari Sons Anr.
20. Smt. Sushila Devi W/o Late Sh. Brij Gopal
21. Sh. Sudhir Gopal (deceased)
Through LRs
i) Smt. Mridula Srivastava W/o late Sudhir Gopal
ii) Mr. Nitin Gopal Srivastava S/o late Sudhir Gopal
iii) Mr. Jitin Gopal Srivastava S/o Late Sh. Sudhir Gopal
22. Smt. Archana Srivastava W/o Late Sh. Sunil Gopal
22A. Sh. Karan Gopal s/o Late Sh. Sunil Gopal
22B. Sh. Ishan Gopal S/o Late Sunil Gopal
23. Sh. Sanjay Gopal S/o Late Sh. Brij Gopal
24. Sh. Sameer Dewan S/o Late Sh. Brij Gopal
25. Sh. Ajay Srivastava S/o Late Sh. Brij Gopal
Appellant nos. 20 to 25 are residents of:
BE76/77, Hari Nagar, Delhi.
26. Mrs. Indu Srivastava (deceased)
W/o Late Major Jai Gopal
Through LRs
i) Smt. Seema Johri D/o Late Major Jai Gopal
Appellant no. 26 her LR is resident of :
House No. 907B, The Magnolias
DLF 5, Gurgaon 122009.
RCT No. 161/16 Page 3 of 55
Pawan Dewan Ors vs. M/s Hari Sons Anr.
27. Late Smt. Raj Dulari (deceased)
W/o Late Dr. M.B. Lall
Through LRs
28. Sh. Sushil Kumar Lall S/o Late Dr. M.B. Lall
29. Sh. Vimal Kumar Srivastava S/o Late Dr. M.B. Lall
30. Sh. Raj Kamal Srivastava S/o Late Dr. M.B. Lall
31. Sh. Sunil Kumar Lall S/o Late Dr. M.B. Lall
All appellant no. 27 to 31 are residents of :
20A, Rajpur Road
Civil Lines, Delhi110054.
32. Mrs. Prem Dulari (deceased)
Through LRs
i) Mrs. Veena Srivastava w/o Sh. Harnam ji
ii) Mrs. Salil w/o Late Sh. V. Kapoor
Both residents of C/o Sh. Harnam Ji Srivastava
S94A, Sunder Block, Shakarpur
Delhi110 092.
33. Sh. Vijay Kumar S/o Late Sh. R.B. Srivastava
34. Sh. Ravi Kumar S/o Late Sh. R.B. Srivastava
Both appellant nos. 33 & 34 are residents of :
Flat No. 7, Dewan House
RCT No. 161/16 Page 4 of 55
Pawan Dewan Ors vs. M/s Hari Sons Anr.
Ajay Enclave, New Delhi110 018.
35. Sh. Vinod Kumar S/o Late Sh. R.B. Srivastava
R/o B1/483, 2nd Floor, Janak Puri
New Delhi110 058.
36. Sh. Atul Kumar (deceased)
Through LRs
i) Sh. Abhinav S/o Late Sh. Atul Kumar
ii) Ms. Priyanka Srivastava D/o Late Sh. Atul Kumar
All appellant nos. 36 and his LRs are residents of:
C/o Sh. Harnam Ji Srivastava
S94A, Sunder Block, Shakarpur
Delhi110 092.
37. Smt. Usha Sahay W/o Late Sh. J.N. Sahay
38. Sh. Diwakar Sahay S/o Late Sh. J.N. Sahay
39. Sh. Shrish Sahay S/o Late Sh. J.N. Sahay
All appellant nos. 37 to 39 are residents of:
Flat no. 54, Sector 15A,
Noida, UP.
All above mentioned appellants through
their Attorney Sh. R.K. Srivastava .....Appellants
RCT No. 161/16 Page 5 of 55
Pawan Dewan Ors vs. M/s Hari Sons Anr.
Versus
1. M/s Hari Sons, a Partnership firm
at G30, Connaught Circus
New Delhi110 001.
Through its Partner.
2. Sh. Lajpat Rai Nandwani (deceased)
to be represented through his LRs
i) Sh. Ajay Nandwani s/o late Sh. Lajpat Rain Nandwani
ii) Sh. Rohit Nandwani s/o late Sh. Lajpat Rai Nandwani
iii) Smt. Sadhna Vij D/o Late Sh. Lajpat Rai Nandwani
To be served at :
G30, Connaught Circus
New Delhi110001.
All R/o D1082, New Friends Colony
New Delhi110065. .....Respondents
Date of filing of appeal : 10.08.2015
Date of arguments : 29.11.2021
Date of judgment : 02.12.2021
JUDGMENT
1. Vide this judgment, I propose to dispose of the RCT No. 161/16 Page 6 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
present appeal filed under Section 38 of the Delhi Rent Control Act, 1958 (In short "the DRC Act") challenging the impugned order dated 09.07.2015, vide which, the Ld. Trial Court dismissed the petition under Section 14(1)(a)(b)&(j) of the DRC Act.
2. Briefly stating the facts are that an eviction petition bearing No. 191/97 (New No. 56/08) dated 12.12.1997 was filed on 15.12.1997 by the petitioner Sh. Pawan Dewan and others for eviction of the respondent M/s Hari Sons on the ground under Sections 14(1)(a)(b)&(j) of the DRC Act. The premises was let out to the respondent allegedly for running a shop at the ground floor at property bearing no. G30, Connaught Circus, New Delhi 110001. The rent of the premises was Rs.550/ per month and all other charges were payable by the respondents to the concerned departments, however, the House Tax was being paid by the petitioner. It was alleged that Rent Note was duly executed by the earlier owner from whom the property had devolved upon the present owner/petitioners. It was further alleged that respondents/tenants except respondent no.5 have been habitual defaulter in making the payment of rent and have failed to tender the rent w.e.f. 01.04.1995. Despite service of legal notice dated 13.08.1996, respondents have failed to tender the arrears of rent.
RCT No. 161/16 Page 7 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
3. It was further alleged that respondents through one Sh. Lajpat Rai Nandwani sent the money orders in the name of Sh. R.K. Srivastava, however, the petitioner refused to accept the same being invalid tender of rent and was not in the name of the landlord. It was further stated that respondent no.5 Sh. Lajpat Rai Nandwani is occupying the shop in question alleging himself to be the partner of respondents firm. It was further alleged that at no point of time, the petitioners/landlords have ever recognized Sh. Lajpat Rai Nandwani as tenant and as such, he is illegally occupying the tenanted premises.
4. It was further alleged that respondents have made unauthorised addition and alteration in the tenanted premises by constructing miani in the said shop thereby making additional floor without the consent of the petitioners.
5. The respondent no.1 & 5 in their written statement stated that Smt. Durga Devi/respondent no.4 had expired on 04.12.1987 and therefore, the petition is not maintainable against a dead person. It was further stated that the petition has been filed merely to harass the respondents and to increase the rent. It was further stated that respondent no.5 Sh. Lajpat Rai Nandwani is a legitimate partner of M/s Hari Sons in whose name the tenancy RCT No. 161/16 Page 8 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
stands. Initially, late Smt. Durga Devi, Sh. Daya Nand and Sh. Om Prakash were the partners of M/s Hari Sons and the tenancy has been in the name of Partnership firm M/s Hari Sons. Late Smt. Durga Devi was the real mother of the respondent no.5 Sh. Lajpat Rai Nandwani, who inherited 1/3rd share in the assets and liabilities of the above said partnership firm, out of which 1/3rd share was being possessed by the said Smt. Durga Devi. It has further been stated that the partnership deed dated 01.04.1990 mentioned that respondent no.5 Sh. Lajpat Rai Nandwani, being the son of deceased partner Smt. Durga Devi, has inherited the entire assets left by late Smt. Durga Devi under a will dated 19.06.1986. It was further stated that landlords were throughout accepting the rent from the respondent no.1 knowing fully well that the respondent no.5 has been the legitimate partner of the respondent no.1 and thus, are estopped by their own conduct to challenge the authority of respondent no.5 as a legitimate partner of respondent no.1.
6. It was further stated that the site plan annexed with the petition is not correct. The veranda as marked and shown covered in the site plan, is a covered veranda even before the inception of tenancy. With respect to the alleged construction of miani, it is stated that the same is in fact a small loft, which RCT No. 161/16 Page 9 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
existed even prior to the inception of tenancy.
7. It was stated that the rent of the premises was originally Rs.38/ per month, which has been increased to the present rate of rent of Rs.550/ per month. It was further stated that no notice dated 13.08.1996 was served upon the respondent no.1. Rather, notice dated 18.09.1996 was sent to the tenants by the landlords through their attorneys Major J.G. Srivastava and Sh. Raj Kamal Srivastava, however, no allegations of any additions or alternations were made in the said notice. Respondent no.1 through respondent no.5 duly tendered the rent on receipt of notice dated 18.09.1996. On refusal of the same, the respondents tendered the entire arrears of rent w.e.f. 01.04.1995 to 31.10.1996 @ Rs.550/ per month by way of money order to Sh. Raj Kamal Srivastava, attorney of landlords. However, since the same was refused to be accepted, the respondents deposited the said rent in the court of Ld. ARC in DR case No. 217/96.
8. In the replication filed by the petitioner, averments made in the petition were reaffirmed and contentions made in the written statement were denied.
9. The petitioners/landlords examined two witnesses in order to prove his case. On behalf of the respondents also, the RCT No. 161/16 Page 10 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
evidence was led.
10. The Ld. Trial Court after appreciating the evidence and considering the rival contentions of the parties inter alia held that it is no more res integra that one of the coowners can file a suit for eviction against the tenant and relied upon the judgments of Yaspal vs. Chamanlal Sachdeva 129 (2006) DLT 200 and M/s India Umbrella Manufacturing Co.& Ors. vs. Bhagabandel Agarwalla (dead) by LRs and Ors. AIR 2004 Supreme Court 1321.
11. In regard to the authority of RW1, the Ld. Trial Court rejected the arguments of the Ld. Counsel for the petitioner that the Power of Attorney Ex.RW1/1 was not filed prior to the filing of the affidavit of the witness and held the said argument is of no relevance as the power of attorney has been filed along with the affidavit of the witness. Ld. Trial Court further held that any person is a good witness if he deposes about the facts which are in his personal knowledge.
12. In regard to the service of demand notice dated 13.08.1996 Ex.PW1/11, the Ld. Trial Court inter alia held that there is only one notice which is dated 13.08.1996 Ex.PW1/11, which was posted on 18.09.1996 and the said notice has been RCT No. 161/16 Page 11 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
received by respondent no.1. Thus, the service of the notice has been proved and admitted by the respondents.
13. In respect of arrears of rent, it is held by the Ld. Trial Court that in the present matter, the rate of rent @Rs.550/ per month is not disputed by either of the parties. The money order(s) for the period from 01.04.1995 to 30.06.1995 for the amount of Rs.1,650/, 01.07.95 to 30.09.95 for the amount of Rs.1,650/, 01.10.95 to 31.12.95 for the amount of Rs.1,650/, 01.01.96 to 31.03.96 for the amount of Rs.1,650/, 01.04.1996 to 30.06.1996 for the amount of Rs.1,650/ and 01.07.96 to 30.09.96 for the amount of Rs.1,650/ were duly sent. All these money orders, as per the postal receipt, were posted on 26.09.1996 and were received back with the remarks refused on 28.09.1996. The legal notice dated 13.08.1996 was posted on 18.09.1996. Thus, these money orders were sent by the respondents within the period of two months from the date of service of the said legal notice. The Ld. Trial Court further held that merely because the rent was sent by respondent no.5, whom petitioners' treat as subtenant, has no relevance as the rent was sent for and on behalf of respondent no.1, who is admittedly the tenant of petitioner.
14. In regard to the objection of the petitioners that the RCT No. 161/16 Page 12 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
rent was not accepted as it was not paid in the valid name i.e. G 30 coowners, it was held by the Ld. Trial Court that admittedly, the legal notice dated 13.08.1996 was sent by the attorneys of petitioners i.e. Major J.G. Srivastava and Raj Kamal Srivastava. As per the postal receipts, the money orders were sent to one of the attorneys Sh. Raj Kamal Srivastava. PW2 during his cross examination admitted that he used to collect the rent on behalf of M/s Dewan & Sons Investment Pvt. Ltd. He used to collect rent from M/s Dayanand, who was one of the partner in M/s Hari Sons. Thus, from the testimony of PW2, it is evident that he used to collect the rent on behalf of petitioners from respondents. The Ld. Trial Court further observed that when an attorney can send a legal notice on behalf of petitioners, then the tenant has the right to tender the rent to the attorney who sends him the legal notice on behalf of landlords. The landlord cannot be allowed to approbate and reprobate at the same time and accepted the arguments of Ld. Counsel for the respondent that since G30 is neither legal nor juristic person and has no legal entity, the rent could not be sent by way of money order to G30 but was sent to the attorney who sent the legal notice. The Ld. Trial Court accordingly, dismissed the petition under Section 14(1)(a) DRC Act.
RCT No. 161/16 Page 13 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
15. In regard to Section 14(1)(b) DRC Act, the Ld. Trial Court held that PW2 during his crossexamination admitted that Hari Sons was tenant prior to purchase of property by M/s. Dewan & Sons Investment Pvt. Ltd. The sale deed in favour of petitioners is dated 16.08.1985. Thus, respondent no.1 is tenant in the tenanted premises prior to purchase of property by the petitioners. The Ld. Trial Court further held that from the documents placed on record, it is evident that respondent no.5 is the son of respondent no.4 Late Smt. Durga Devi. There is no dispute to the fact that respondent no.4 was one of the partners in respondent no.1. The respondent no.5 has already placed on record two partnership deed Ex.RW1/3 and Ex.RW1/4, to show that he is one of the partners in respondent no.1. The Ld. Trial Court further held that respondent no.5, being one of the LR of deceased partner of respondent no.1, had the right in the tenanted premises and inherited the same being one of the LRs. No evidence has been led by the petitioner to show that the partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law.
16. The Ld. Trial court further held that merely because RW5 has not filed any Will dated 19.06.1986, does not negate his RCT No. 161/16 Page 14 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
claim and right over the property as he has otherwise proved the same. Further, no evidence has been placed on record by petitioners to show some sort of consideration is being received by respondent no.1 to 4 from respondent no.5 or that respondent no.5 is in exclusive possession of tenanted premises to the exclusion of respondent no.1 to 4. The Ld. Trial Court further held that in the absence of any evidence to the contrary, the petitioners have failed to prove that the tenanted premises has been sublet, assigned or otherwise parted with possession by the respondent no.1 to 4 in favour of respondent no.5. On the contrary, respondent no.5 has proved by way of evidence that he being one of the LRs of deceased partner Smt. Durga Devi was inducted as partner in respondent no.1 vide partnership deed Ex.RW1/4 and held that no ground of eviction under Section 14(1)(b) DRC act was made out.
17. In regard to Section 14(1)(j) of DRC Act, the Ld. Trial Court held that petitioners have not placed on record any photographs to show that miani has been constructed by the respondents. No sketch of the unauthorised construction or the notice received from L&DO, has been placed on record by PW1 to show that some sort of unauthorised construction in the form of miani has been constructed by the respondents. Ld. Trial Court RCT No. 161/16 Page 15 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
further held that petitioners have not placed on record any document to show that any substantial damage has been caused to the tenanted premises by the construction of alleged miani and held that no ground of eviction is made out under Section 14(1)(j) of DRC Act and dismissed the eviction petition.
18. The appeal has been filed challenging the impugned order on the ground that the impugned order is based upon conjectures and surmises. The Ld. Trial Court did not consider the very concept of subletting that when there is a stranger, it is upon the tenant to show that how a stranger is occupying the tenanted premises. The Ld. Trial Court failed to consider that the occupancy of the said Sh. Lajpat Rai Nandwani is mischievous as the partnership deed or other documents have not been placed before the government authorities. The genuineness, authenticity and reliability of these documents were left open and were required to be considered at the time of final arguments. Ld. Trial Court failed to consider that the onus to show and prove on record that Sh. Lajpat Rai Nandwani had acquired right to occupy the tenanted premises has not been discharged. The Ld. Trial Court further failed to appreciate the ground as enunciated in the petition for making additional space in the form of miani. The Ld. Trial Court failed to consider that there is no document to RCT No. 161/16 Page 16 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
show that Sh. Lajpat Rai Nandwani has been inducted and has allegedly become the part of the respondent no.1. The Ld. Trial Court failed to consider that the tenant has been habitual defaulter in making the payment of the rent and has failed to pay or tender the arrears of rent w.e.f. 01.04.1995 till date and therefore, respondent no.1 is not entitled to the benefit of Section 14(2) of DRC Act.
19. The impugned order has also been assailed on the ground that Ld. Trial Court failed to consider the evidence of PW2 that when he had inspected the property in December, 2010, it could not found that miani was existing and accordingly, the said construction is contrary to the bye laws of the NDMC. The Ld. Trial Court failed to consider that admittedly Sh. Lajpat Rai Nandwani did not appear in the witness box. Sh. Ajay Nandwani had deposed on the basis of the fact being attorney of Sh. Lajpat Rai Nandwani. The Ld. Trial Court failed to consider that if the property is not in possession of the respondent no.1, the subletting stands proved and that Sh. Lajpat Rai Nandwani is liable to be evicted, being an illegal subtenant. The Ld. Trial Court failed to appreciate that neither Sh. Lajpat Rai Nandwani nor RW1 has any right, title, or interest to hold the property on behalf of respondent no.1.
RCT No. 161/16 Page 17 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
20. The appellant further stated that the Ld. Trial Court failed to consider that as per Section 69 of the Partnership Act, the partnership deed is required to be registered and therefore, the partnership deed is not legal and valid. There is no authority for Sh. Ajay Nandwani to contest the case and appear as a witness
21. Notice of the appeal was issued to the respondent.
22. Sh. K. Sunil, Ld. Counsel for the appellant has submitted that Ld. Trial Court has passed the order without appreciating the evidence and the documents. It has been submitted that late Sh. Lajpat Rai Nandwani was impleaded as respondent no.5 in the eviction petition as the alleged subtenant and it was specifically stated in para no.16 of the eviction petition that respondent no.5 is occupying the shop alleging himself to be the partner of the respondent's firm and it came to the knowledge of the petitioners when the Money Order was sent by the said late Sh. Lajpat Rai Nandwani. Ld. Counsel has referred to the petition filed under Sections 14(1)(a)(b) & (j) of the DRC Act and has submitted that it was specifically alleged that the respondents have made additions and alterations and have caused severe prejudice to the property. It was also alleged that the respondents have failed to pay or tender the arrears of rent w.e.f. 01.04.1995 RCT No. 161/16 Page 18 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
despite the service of legal notice dated 13.08.1996. It has further been submitted that written statement was filed on behalf of respondent no.1&5 and it was signed only by respondent no.5 late Sh. Lajpat Rai Nandwani. Ld. Counsel has further submitted that respondent no.5 has expired during the tenancy and RW1 Sh. Ajay Nandwani had no authority to appear on behalf of respondents and his testimony cannot be taken into account. Ld. Counsel has further submitted that partnership deed dated 01.04.1990 Ex.RW1/14 is forged and fabricated and has been prepared only to circumvent the present proceedings. Ld. Counsel has further submitted that the petitioner had raised an objection as to the exhibition of documents i.e. partnership deed dated 01.04.1962 Ex.RW1/3 and partnership deed dated 01.04.1990 Ex.RW1/4, on the ground of mode of proof. The petitioner had also raised objection that the averments made in the affidavit Ex.R1, in particular in para nos. 1&3, were beyond pleadings and therefore, not admissible in the evidence. Ld. Trial Court kept this question regarding proof and admissibility of said evidence open on that stage to be decided at an appropriate stage. However, these objections were never decided by the Ld. Trial Court and therefore, judgment passed by the Ld. Trial Court cannot sustain. Ld. Counsel has further submitted that late Sh.
RCT No. 161/16 Page 19 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
Lajpat Rai Nandwani and RW1 Sh. Ajay Nandwani, are strangers to the present proceedings and therefore, the petition was liable to be allowed.
23. Appellants have also filed detailed written submissions. In the written submission, it has been submitted that respondent no.1 M/s Hari Sons was consisting of partners namely Sh. Dayanand, Sh. Om Prakash and Smt. Durga Devi and late Sh. Lajpat Rai Nandwani illegally and unauthorisedly occupying the tenanted premises. It has further been submitted that the tenants were in arrears of rent since 01.04.1995 and the legally recoverable rent was neither paid nor tendered within two months of the service of the demand notice. It has further been submitted that rent tendered by late Sh. Lajpat Rai Nandwani in the name of Sh. R.K. Srivastava was not a valid tender and the same was rightly refused. Late Sh. Lajpat Rai Nandwani had no authority to tender the rent being the illegal occupant of the tenanted premises. The appellants/landlords have never consented to induct late Sh. Lajpat Rai Nandwani as the tenant in the premises in dispute. It has further been submitted that tenants have raised unauthorised construction without the permission and consent of the landlords. Appellants further stated that defence taken by the respondents/tenants is totally sham and is contrary to RCT No. 161/16 Page 20 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
the record.
24. The appellants further stated that the petitioners/ landlords have duly proved on record the ingredients of Section 14(1)(b) of DRC Act, however, Ld. Trial Court failed to appreciate the evidence in accordance with the law and passed the impugned judgment on conjectures and surmises. It was further submitted that late Sh. Lajpat Rai Nandwani being a stranger, it was upon the respondents to show that in what capacity he was occupying the tenanted premises. Appellants further stated that the alleged partnership deed or the documents, which have been subsequently placed on the record, are forged and fabricated and had never seen the light of the day before RW1 appeared in the witness box. The genuineness, authenticity and reliability of these documents were seriously doubtful and the learned trial court did not return any finding on the same despite objection having been taken by the appellants/landlords.
25. Appellants further stated that alleged partnership deed is only a camouflage document and the respondents have failed to prove that late Sh. Lajpat Rai Nandwani had acquired any right to occupy the tenanted premises. Appellants stated that RW1 Sh. Ajay Nandwani has miserably failed to prove the case of the RCT No. 161/16 Page 21 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
respondents and his evidence cannot be taken into account. The appellants stated that the respondents had never intimated the appellants/landlords that late Sh. Lajpat Rai Nandwani had been inducted as a partner in the firm.
26. It has been submitted that Ld. Trial Court has wrongly rejected the evidence of PW2 wherein he had stated that miani was in existing in the property and even in December 2010 during inspection, it was found that miani was existing and said construction was contrary to the bylaws. The appellants further stated that Ld. Trial Court was required to examine that whether respondent no.1/tenant has lost the control on the property and if the respondent no.1 is not in the possession of the property, the subletting stands proved. It was further submitted that respondents/tenants are misusing the provision of law and created a forged partnership deed, which was therefore, not registered. Appellants have further submitted that it has not been pleaded that late Sh. Lajpat Rai Nandwani was authorised by the firm or other partners to sign the partnership deed. The appellants further stated that the alleged Will, by virtue of which late Sh. Lajpat Rai Nandwani had inherited the estate of Smt. Durga Devi, has not been placed on the record. Respondents have also not filed any Income Tax Return showing the investments or income as RCT No. 161/16 Page 22 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
partners of respondent no.1. Appellants have also stated that there is no document on the record that late Sh. Lajpat Rai Nandwani was the son of Smt. Durga Devi. Appellants have further stated that there is nothing on the record to show that as to why the written statement was not signed by Sh. Om Prakash and Sh. Dayanand, i.e. the other partners of the firm. Ld. Counsel for the appellants has further submitted that objection taken by the respondents that eviction petition filed was not maintainable as the same was not filed by the JSR Family Trust has been dealt with by the Ld. Trial Court thereby stating that there is no misjoinder of necessary parties as it is settled law that even one of the coowner can file a suit for eviction. It has further been submitted that JSR Family Trust is one of the owner and the petitioners are the coowners of the premises in dispute. Ld. Counsel further submitted that it is a settled proposition that one of the coowner can file a suit for eviction of a tenant in the property owned by the coowners. Reliance has been placed upon M/s Indian Umbrella Manufacturing Co. and others vs. Bhagabandei Agarwalla (Dead) by L.R.'s and others AIR 2004 SC 1321. Further reliance has been placed upon Yashpal vs. Chamanlal Sachdeva 129 (2006) DLT 200.
RCT No. 161/16 Page 23 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
27. Sh. K. Sunil, Ld. Counsel for the appellants has further submitted that whether the partnership deed dated 01.04.1990 Ex.RW1/4 is a genuine document or a sham transaction, is a mixed question of law and facts. It was stated that in Helper Girdharbhai Vs. Saiyed Mohd. Mirasaheb Kadri & Ors., (1987) 3 SCC 538, it was inter alia held as under :
"Whether there was a partnership or not may in certain cases be a mixed question of law and fact, in the sense that whether the ingredients of partnership as embodied in the law of partnership were there or not in a particular case must be judged in the light of the principles applicable to partnership. The following important elements must be there in order to establish partnership (1) there must be an agreement entered into by all parties concerned; (2) the agreement must be to share profits of business; and (3) the business must be carried on by all or any of the persons concerned acting for all. Sharing of profits and contributing to losses were not the only elements in a partnership, existence of agency was essential."
28. Ld. Counsel for the appellants has further submitted that protection afforded by the Delhi Rent Control Act, is only for the tenant so long as it uses the premises. Such protection is withdrawn if the premises have been sublet by the tenant. In RCT No. 161/16 Page 24 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
Parvinder Singh Vs. Renu Gautam & Ors., (2004) 4 SCC 794, it has been inter alia held as under :
"The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is subletting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rackrenting.
To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and subtenants of bringing into existence a deed of partnership which gives the relationship of tenant and subtenant an outward appearance of partnership while in effect what has come into existence is a subtenancy or parting with possession camouflaged under the cloak of partnership. However, merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. This is a general statement of law which out to be read in the light of the lease agreement and the law governing the tenancy. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, maybe along with the RCT No. 161/16 Page 25 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant.
The rule as to exclusion of oral by documentary evidence, governs the parties to a deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. Oral evidence in departure from the terms of a written deed is therefore admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different.
The existence of deed of partnership between the tenant and the alleged subtenant would not preclude the landlord therefore from bringing on record material and circumstances, by adducing evidence or by means of crossexamination, making out a case of subletting or parting with possession or RCT No. 161/16 Page 26 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
interest in tenancy premises by the tenant in favour of a third person."
29. Reliance has also been placed upon G.K. Bhatnagar (Dead) by LRs vs. Abdul Alim (2002) 9 SCC 516.
30. Ld. Counsel for the appellants further submitted that in the present case respondents/tenants have not proved the partnership and therefore, they are liable to be evicted. Reliance has been placed upon Hiralal vs. Gian Singh and Co. and others AIR (38) 1951 Punjab 441. In this case, it was held that if the partnership has not been proved, it becomes the case of assignment or parting with the possession.
31. Ld. Counsel for the appellants further submitted that in the present case, the appellants have successfully proved the possession of late Sh. Lajpat Rai Nandwani in the premises in dispute and once the presence of late Sh. Lajpat Rai Nandwani has been shown, then it was for the tenant to show the capacity of alleged subtenant. Reliance was placed upon Mohd. Kasam vs. Baker Ali 1998 Rajdhani Law Reporter (SC) 592.
32. Ld. Counsel for the appellants further submitted that if landlord by evidence indicates presence of stranger in tenanted RCT No. 161/16 Page 27 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
premises then it is for the tenant to give best evidence to prove that stranger is not a subtenant. Reliance was placed upon Hari Ram vs. Rukmani Devi 1996 Rajdhani Law Reporter 522.
33. The appellants have further relied upon Duli Chand (dead) by LRs. vs. Jagmender Dass 1990 Rajdhandi Law Reporter (SC) 13, wherein it was inter alia held that if a tenant of a shop permits his natural son given away in adoption to another to do his own proprietary business in the shop, the tenant having no interest in the business and works elsewhere with no concurrent user of tenanted shop then it is parting with possession.
34. Ld. Counsel for the appellants has further submitted that in the present case, the alleged partnership deed dated 01.04.1990 Ex.RW1/4 is in fact a sham document and the court is required to tear off the veil to see the real intention of the respondent. Reliance has been placed upon Haji Abdul Shakoor vs. The Rent Control and Eviction Officer, Kanpur & Ors. AIR 1959 Allahabad 440 (V 46 C 111).
35. Ld. Counsel for the appellants further submitted that this court being the first appellate court is empowered to reject the testimony of RW1 as the same suffers from question of credibility. Ld. Counsel submitted that this evidence has not been RCT No. 161/16 Page 28 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
properly appreciated by the Ld. Trial Court. The reliance has been placed upon Radha Prasad Singh vs. Gajadhar Singh and others AIR 1960 SC 155 (V 47 C 19).
36. Sh. G.P. Thareja, Ld. Counsel for the respondents submitted that the present appeal is liable to be dismissed outrightly as there is no question of law involved. Ld. Counsel submitted that in absence of any question of law being raised in the appeal, this court has no jurisdiction to hear and entertain the same. It has further been submitted that late Sh. Lajpat Rai Nandwani, being son of Smt. Durga Devi, has inherited the tenancy and therefore, there is no substance in the case of the appellants. It has further been submitted that admittedly, it was a commercial tenancy and late Sh. Lajpat Rai Nandwani, being son of one of the partner, has become the tenant in view of judgment delivered in Smt. Gian Devi Anand Vs. Jeevan Kumar & Ors., AIR 1985 SC 796.
37. Ld. Counsel for the respondents has further submitted that Section 4 of the Indian Partnership Act, 1932, specifically provided that firm is a compendious name of partners and therefore, late Sh. Lajpat Rai Nandwani, being legal heir of one of the partner, is well within his rights to occupy the tenanted RCT No. 161/16 Page 29 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
premises. Ld. Counsel has further submitted that relationship of landlord and tenant is not disputed. It has further been submitted that in respect of Section 14(1)(a) of the DRC Act, the appellants have taken only an objection that the rent was not tendered to the owners/landlords and was tendered to attorney. Ld. Counsel further submitted that this objection is without any basis.
38. Respondents have also filed the detailed written submission. In the written submission, it has been stated that during the pendency of the petition, the petitioner nos. 2 & 23 had died and the application for substitution of legal heirs was dismissed and therefore, the petition had abated. It has further been submitted that the appeal has been filed on behalf of appellant nos.2&23 through the legal representative without the leave of the court and therefore, the appeal on their behalf is not maintainable. It has further been submitted that as per Sale Deed Ex.PW1/8, the property from M/s Deewan had been purchased by the plaintiffs along with JSR Family Trust. The trust has not been impleaded in the suit, although, it is one of the coowner. It has further been submitted that trust could not have been excluded and the trustees should have been made parties after a resolution of the trustees for filing the suit against the respondents and in absence of the trust/trustees, the suit is bad for nonjoinder of RCT No. 161/16 Page 30 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
necessary parties. It has further been submitted that impleadment of trust was a legal requirement and therefore, even in the absence of any objection having been taken, the Ld. Trial Court should have impleaded the trust. It has further been submitted that though the document Ex.PW1/8 was deexhibited vide order dated 19.09.2008, however, the respondent can take advantage of the same to show that the JSR Family Trust has intentionally been omitted from the petition. It has further been submitted that in view of Sections 47 & 48 of the Trust Act, the appeal is not maintainable.
39. Respondents have further submitted that as per Section 38 of the DRC Act, the appeal is maintainable only on the question of law. It has further been submitted that Ld. Trial Court has returned a categorical finding in respect of Section 14(1)(a)
(b)&(j) of the DRC Act. Ld. Counsel has further submitted that in view of the categorical finding of the Ld. Trial Court in respect of all the three grounds of eviction and in absence of any legal issue raised by the appellant, the appeal is liable to be dismissed. Ld. Counsel for the respondents has further referred to Section 4 of the Partnership Act, as per which, the firm name is only a compendious name of partners and therefore, the tenancy in the name of M/s Hari Sons would be that of Sh. Dayanand, Sh.
RCT No. 161/16 Page 31 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
Omprakash and Smt. Durga Devi. It has further been submitted that on the death of Smt. Durga Devi, her heirs would have represented the estate left by her. Late Sh. Lajpat Rai Nandwani was the son of Smt. Durga Devi, who not only succeeded to the estate of Smt. Durga Devi, but he was also inducted as one of the partner in 1987 and was disclosed one of the partner in the partnership deed dated 01.04.1990. Respondents have further submitted that petitioner intentionally did not implead the LRs of late Smt. Durga Devi and similarly, on the demise of Sh. Dayanand and Sh. Omprakash, their LRs have also not been impleaded. Ld. Counsel for the respondents further submitted that the suit would have been abated had respondent no.5 not been impleaded. It has further been submitted that nonproduction of Will is of no consequence. Respondent no.5/Sh. Lajpat Rai Nandwani being the son of Smt. Durga Devi inherited her estate and became a partner in the firm. Ld. Counsel further submitted that under Sections 19 and 22 of the Partnership Act, a partner has implied authority to act on behalf of firm. It has further been submitted that there is no subletting or parting with the possession of the tenanted premises and no case thereof of sub letting is made out.
RCT No. 161/16 Page 32 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
40. I have heard the learned counsel for both the parties and perused the record carefully.
41. Section 38 of the DRC Act specifically provides that the appeal can only be filed on the point of law. The Court of Ld. Rent Controller/Addl. Rent Controller is considered to be the final arbiter on the facts. Before proceeding further, it is necessary to examine the scope of jurisdiction to be exercised by the Rent Control Tribunal. Section 38 of the DRC Act provides that an appeal shall lie from every order of the Controller made under this Act only on questions of law. It is pertinent to mention here that the jurisdiction was restricted by an amendment in the year 1988. In Kulwant Singh & Anr. Vs. Arjun Singh, CM (Main) No. 1063/2004, DOD 15.11.2006, the Hon'ble Delhi High Court inter alia held that u/s 38 DRC Act, the RCT is to act as an Appellate Court only on a question of law. Similarly, in Dr. Mrs. Sushil Puri & Ors. Vs. Sh. Jai Gopal & Ors., Cav. No. 120/06, DOD 10.11.2006, the Hon'ble Delhi High Court inter alia held as under:
"An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law and second appeal to this Court has RCT No. 161/16 Page 33 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
been abolished...."
42. In Smt. Kiran Sajjan & Ors. Vs. Smt. Swarnkanta Mahajan, DOD 25.08.2006, the Hon'ble Delhi High Court inter alia held as under:
"It cannot lost sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision was taken to amend the said provision in December 1988 prior whereto the appeal was both on a question of law and on a question of fact. Thus the scope of scrutiny itself by the Tribunal was said to be restrictive and the Additional Rent Controller was construed to be a final Court for appreciation of evidence....."
43. Thus, a bare reading of the legislative provision and the judgments on the point, makes it clear that the court of RCT is required to restrict itself to the question of law. Thus, this court is under a legal mandate to examine that whether there is any question of law having been raised or arisen in the present case.
44. The plea of the Ld. Counsel for the appellant is that the question that late Sh. Lajpat Rai Nandwani had become a partner, is a mixed question of law and fact. It has been submitted that it has repeatedly been held by the superior courts RCT No. 161/16 Page 34 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
that a partnership created only as camouflage or to circumvent the provision of subletting, is liable to be ignored. It has further been submitted that therefore, the factum of late Sh. Lajpat Rai Nandwani having been become partner is a mixed question of law and fact. The plea of the Ld. Counsel is that therefore, question raised in the present appeal is not restricted to question of facts. It has further been submitted late Sh. Lajpat Rai Nandwani was totally a stranger and tenanted premises has been sublet to him without any permission or consent of the landlord.
45. In regard to the unauthorised construction also, the plea of the appellants is that Ld. Trial Court has not correctly appreciated the evidence and has committed a serious error in law by ignoring the testimony of PW2.
46. Per contra, the case of the respondents is that the Ld. Trial Court has returned a categorical finding regarding all the three grounds of eviction i.e. nonpayment of rent, subletting and unauthorised construction and the findings are based on the correct appreciation of evidence and there are no legal questions/ points in the appeal.
RCT No. 161/16 Page 35 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
Ground of eviction under Section 14(1)(a) of DRC Act
47. In regard to the ground of eviction under Section 14(1)(a) of DRC Act, the plea of the appellants is that question of law is involved as the rent was not tendered by the tenant and to the landlord. It has been submitted that the fact that rent was tendered to the attorney could not have been held to be a valid tender.
48. Before proceeding further, it is advantageous to refer to the findings of the Ld. Trial Court in respect of grounds of eviction.
49. In respect of nonpayment of rent, Ld. Trial Court has inter alia held as under :
"17.4 Now the stand of respondents is that in compliance of said notice, the rent was tendered on number of occasions but Mr. J.G. Srivastava and Sh. Raj Kamal Srivastava who are the attorneys of the landlords refused to accept the rent so tendered. It was Major J.G. Srivastava and Sh. Raj Kamal Srivastava, the said attorneys, who had been dealing with respondent no.1 and its partners throughout. Respondent no.1 through respondent no.5 duly tendered the rent on receipt of notice dt. 18.09.1996. When the attorneys refused to accept the rent so tendered, respondents were constrained to send the RCT No. 161/16 Page 36 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
entire arrears of rent w.e.f. 01.04.1995 to 31.10.1996 @Rs.550/ per month by money order to Sh. Raj Kamal Srivastava, attorney of landlords. But the same was also refused by him and respondents duly deposited the rent for the said period in the court of Ld. ARC in DR Case no. 217/96, which was duly allowed. Even thereafter the rent was tendered but was not accepted and respondents were constrained to send a cheque no.585333 dt.12.11.1997 in favour of G30, coowners as rent for the period w.e.f. 01.11.1996 to 31.10.1997 to the attorney of landlords Sh. Raj Kamal Srivastava. However, the petitioners did not encash the said cheque. Six separate money orders each for Rs.1,650/ as rent for the period from 01.04.1995 to 30.09.1996 were sent. The money order could not be sent in the name of G30, co owners and hence was sent in the name of specific persons i.e. Sh. Raj Kamal Srivastava, attorney of the landlords as he was dealing with the tenants.
17.5 The fact that respondent no.5 sent the money order in the name of Sh. R.K. Srivastava is admitted by the petitioners in their petition but it is stated that they did not accept it, as it was not a valid tender and was not in the name of G30 co owners as used to be in the past.
17.6 Respondents have placed on record the money order and acknowledgement receipts in respect of the rent sent by respondent no.5 to petitioners as Ex. RW6/1 colly. It is argued RCT No. 161/16 Page 37 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
by the counsel for petitioners that rent was not accepted as respondents did not pay the entire rent and it was not paid in the valid name i.e. G30 coowners and was wrongly sent in the name of attorneys. In the present matter the rate of rent i.e. Rs.550/ per month w.e.f. 01.10.1969 is not disputed by either of the parties. The money order is for the period from 01.04.95 to 30.06.95 for the amount of Rs.1,650/, 01.07.95 to 30.09.95 for the amount of Rs.1,650/, 01.10.1995 to 31.12.1995 for the amount of Rs.1,650/, 01.01.1996 to 31.03.1996 for the amount of Rs.1,650/, 01.04.1996 to 30.06.1996 for the amount of Rs.1,650/, 01.07.1996 to 30.09.1996 for the amount of Rs.1,650/. All these money orders as per the postal receipt were posted on 26.09.1996 and were received back with the remarks refused on 28.09.1996. The legal notice as discussed above though is dt. 13.08.1996, however the same was posted on 18.09.1996 as per the testimony of PW 1 himself. Thus these money orders were went by the respondents within the period of two months from the date of service of the said legal notice.
17.7 Though the Ld. Counsels for petitioners has argued that the rent was not accepted as the entire rent was not paid, however the counsel for petitioners have failed to show how the entire rent was not paid. The admitted rent is Rs.550/ and the exact amount for the particular period was sent by the respondents by these money orders. PW1 during his cross RCT No. 161/16 Page 38 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
examination admitted that money order of Rs.9900/ for the rent w.e.f. 01.04.1995 for 18 months was sent by respondents to him.
17.8 In each money order, it is specifically stated that the rent is in respect of property no. G30, Connaught Circus and for and on behalf of M/s Hari Sons. Merely because it was sent by respondent no.5, whom petitioners' treat as subtenant has no relevance as the rent was sent for and on behalf of respondent no.1 who is admittedly the tenant of petitioners.
17.10 Thus from the above discussion, it is evident that the petitioners have failed to prove that respondents have not tendered the arrears of rent within the period of two months from the service of notice dt. 13.08.1996. No ground of eviction is made out u/s. 14(1)(a) of the Act."
50. The appellants have challenged the finding under Section 14(1)(a) of the DRC Act, predominantly on the ground that the tender of rent was not valid as it was tendered by late Sh. Lajpat Rai Nandwani, who was not the tenant in the tenanted premises and furthermore, it was sent to the attorney of the petitioners. It is an admitted fact that legal notice dated 13.08.1996 Ex.PW1/11 (dated 18.09.1996 Ex.PW1/R5) was duly served upon the respondent/tenant. It is also an admitted fact that RCT No. 161/16 Page 39 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
this notice was posted on 18.09.1996 and it was received on 20.09.1996. It has also come on the record that after receipt of this notice, the rent was tendered through money order and finally, a petition under Section 27 of DRC Act was filed on 15.11.1996 for deposit of rent from the period w.e.f. 01.04.1995 to 31.10.1996. The certified copy of the petition under Section 27 of the DRC Act Ex.PW1/R1 has been placed on record. The Ld. Addl. Rent Controller in DR No.217/1996 vide order dated 24.10.1997, allowed the deposit of rent and respondents were granted the liberty to withdraw the rent without prejudice to their rights and contentions. In the said petition under Section 27 of DRC Act, Major J.G. Srivastava and Sh. Raj Kamal Srivastava, Attorney of the petitioners were made party. It is also a matter of record that notice Ex.PW1/11 and Ex.PW1/R5 were also served on behalf of Major J.G. Srivastava and Sh. Raj Kamal Srivastava.
51. I consider that the argument being raised by the Ld. Counsel for the appellants that it was not a valid tender does not hold any force. The rent was duly tendered, firstly vide money orders, then it was deposited in the court within two months of service of the demand notice. I consider that there is no illegality in the impugned order of the Ld. Trial Court. Hence, the appeal qua eviction under Section 14(1)(a) of DRC Act, is dismissed.
RCT No. 161/16 Page 40 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
Ground of eviction under Section 14(1)(b) of DRC Act
52. In respect of ground of subletting, Ld. Trial Court after discussing the evidence and the law on the point, has inter alia held as under:
"19. In the present case, as discussed above, respondents have proved that respondent no.5 is the son of one of the partner of respondent no.1. There is no dispute to the fact that the premises was let out to the partnership firm i.e. respondent no.1 M/s. Hari Sons. After death of one of the partners i.e. Respondent no.4, a new partnership deed dt. 11.12.1987 was executed between the partners which is evident from contents of Ex. RW1/4. Further new partnership deed was executed which is Ex. RW1/4 on 01.04.1990 with respondent no.5 as one of the partners. The other two partners Sh. Dayanand and Sh. Om Prakash continued to be the partners in the new partnership deed also Ex.RW1/4. Thus the tenanted premises remained in the possession of respondent no.1 i.e. the partnership firm with Sh. Dayanand and Om Prakash as continuing partners and respondent no.5 was inducted as new partner being the son of deceased partner Smt. Durga Devi. Since the tenanted premises continued to be in possession of the original partnership firm and original tenants, a mere change in the constitution of the firm does not leads to the inference that the premises has been sublet or otherwise parted RCT No. 161/16 Page 41 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
with possession in favour of respondent no.5. Further respondent no.5, being one of the LR of deceased partner of respondent no.1 had the right in the tenanted premises and inherited the same being one of the LRs. No evidence has been lead by the petitioners to show that the partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law."
53. The petitioners have filed a petition under Section 14(1)(b) of the DRC Act on the ground that premises has been sublet to late Lajpat Rai Nandwani (R5) without the permission and consent of the landlords. It is an admitted fact that M/s Hari Sons/R1 was inducted as a tenant by the predecessorininterest of the petitioners/owners. It is also an admitted fact that Sh. Dayanand, Om Prakash and Smt. Durga Devi were partners in M/s Hari Sons. The question of subletting has come up for the discussion before the Hon'ble Supreme Court in several cases.
54. In Woodfall on 'Landlord and Tenant' 27th Edition Volume 1 page 523, it is said:
"A covenant against parting with possession in the demised premises is not broken so long as the lessee retains legal possession by allowing other person to use the premises, either under a licence RCT No. 161/16 Page 42 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
or under a declaration of trust." And again "a lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part."
55. In Bharat Sales Ltd. Vs LIC, (1998) 3 SCC 1, it was held that subtenancy or subletting comes into existence when a tenant gives up the possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof in such process. In Delhi Stationers and Printers Vs. Rajendra Kumar (1990) 2 SCC 331, the term "subletting" was explained to mean transfer of an exclusive right to enjoy the property in lieu of payment of some compensation or rent. It was observed that "parting with legal possession" mean parting with possession with the right to include and to exclude others and mere occupation is not sufficient to infer either subtenancy or parting with possession.
56. In Parvinder Singh Vs Renu Gautam, AIR(2004) SCC 799, the three Judge Bench of the Apex Court devised the test as under:
"If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, RCT No. 161/16 Page 43 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for proving a cloak or cover to conceal the transaction not permitted by law. The Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant."
57. In Joginder Singh Sodhi Vs Amar Kaur, (2005) 1 SCC 31, the Hon'ble Supreme Court noted that as far as subletting is concerned, the two ingredients namely parting with possession and monetary consideration therefore have to be established. In Seth Narainbhai Ichharam Kurmi and Anr. Vs Barbada Prasad Sheosahai Pande, AIR 1941 Nag.357, it was observed that possession includes legal possession and unless the legal possession is parted with ejectment cannot be ordered. Bare occupation and possession are two different concepts. Possession as it is understood in legal terminology is complex one which need not include actual occupation. It comprises rather the right to possession and right and control coupled with mental element namely the animus possidendi, that is to say knowledge of these RCT No. 161/16 Page 44 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
rights and the desire and intention of exercising them, if need be.
58. In G.D.Chaudhary Vs Anand Sarup, 1966 DLT 28, it was held that so long as lessee retains legal possession of whole of the premises, he does not commit a breach of law against parting with the possession by allowing other person to use the same.
59. In Gurdial Singh Vs Brij Kishore & Ors, 1970 DLT 592, it was observed that simply because the tenant has allowed another person to use or share a premises, it does not amount to breach of covenant not to part with the possession of the premises. It was further explained in this case that it is not the law that no sooner does any person other than the lessee occupies a premises, it must be held that the tenant has parted with possession of the demised premises. What has to be seen in such a case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee.
60. Section 14(1)(b) of DRC Act provides as under:
"that the tenant has, on or after the 9th day of June, 1952, sublet, 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".RCT No. 161/16 Page 45 of 55
Pawan Dewan Ors vs. M/s Hari Sons Anr.
61. The sum and substance of law on subletting is that if the tenant continues to retain the legal possession of the demised premises and has merely allowed another person to use the demised premises, it will not amount to subletting. The basic test is whether the tenant continues to be in the legal and physical possession of the premises. The another test can be that it is necessary that the tenant remains in the legal possession and the tenant must have a right to oust another person from the demised premises. The Delhi Rent Control Act is piece of welfare legislation and has been enacted to afford protection to the landlord and tenant. The eviction order can be passed only if there exists any of the grounds as mentioned in Section 14(1) of DRC Act. The general scheme of the Act is that subletting is prohibited. However, the exception is that after enactment of the Act, the subletting is permissible, if it has been done with the prior written permission of the landlord. It has also been held in catena of judgments that such permission has to be specific. Section 17 of the DRC Act requires that the tenant and the sub tenant are required to give notice in writing to the landlord of the creation of the subtenancy within one month of the date of such subletting. The scheme of the entire Act would suggest that intention of the Legislature is that premises which has been let out RCT No. 161/16 Page 46 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
to the tenant must be enjoyed by the tenant himself. The tenant cannot sublet, assign or part with the possession of the premises to anybody without prior permission in writing of the landlord. To my mind, this is being done in order to protect the interest of the landlord and to maintain the sanctity of the contract between landlord and tenant. However, there can be instances where the tenant after he has taken the premises on rent enters into partnership deed with another person and thus, does not surrender the legal possession of the premises in question. The litmus test in such partnership cases would be that, whether the tenant to whom the demised premises was let out continues to have control over the demised premises to the exclusion of the other newly inducted partners.
62. In the cases of subletting, it is very difficult to get direct evidence and the courts have to look into the attendant circumstances to reach to any conclusion. In the present case, the relationship of landlordtenant has not been disputed.
63. The broader test is that the court has to examine that whether the person inducted as a tenant has entered into an agreement and there is an agreement to share profits of business and the business is to be carried on by all or any of the partners.
RCT No. 161/16 Page 47 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
The another test is that there must be existence of agency and mere sharing of profits and contributing to losses are not the only determinative factors.
64. The respondents have placed on record the partnership deed Ex.RW1/3 & RW1/4. The perusal of partnership deed Ex.RW1/3 executed on 01.04.1962 indicates that there were three partners namely Mr. Om Parkash S/o late Lala Hari Chand, Mr. Daya Nand S/o Lala Chander Bhan and Smt. Durga Devi W/o late Lala Hari Chand. Clause 11 of said partnership deed specifically provided that upon the death of a partner, the partnership business shall not be dissolved but shall continue as usual and the representative of the deceased partner shall be taken as a partner on the same terms as the deceased partner used to enjoy.
65. The partnership deed Ex. RW1/4 dated 01.04.1990 has been executed amongst Mr. Daya Nand S/o late Chander Bhan and Sh. Om Parkash S/o late Sh. Hari Chand. This partnership deed reveals that Smt. Durga Devi expired on 04.12.1987 and owing to her death, the firm was reconstituted by continuing partners. It further stated that Sh. Lajpat Rai Nandwani being the son of the deceased partner Smt. Durga Devi inherited RCT No. 161/16 Page 48 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
the entire assets left by late Smt. Durga Devi under a Will dated 19.06.1986. Vide this partnership deed, late Sh. Lajpat Rai Nandwani was inducted as a partner giving him 1/3rd share of deceased Durga Devi.
66. The appellants have taken the plea that this partnership deed is a sham document and has been forged and fabricated only to circumvent the provision of subletting, however, there is nothing on record to prove that this document is forged and fabricated. The registration of a partnership firm is not mandatory. The consequences of nonregistration of documents have been provided under Section 49 of the Registration Act, 1908. It is also a settled proposition, as provided under Section 4 of the Partnership Act, that the firm is only a compendious name of the partners. Section 4 of the Partnership Act, reads as under :
"Section 4. Definition of "partnership", "partner", "firm"
and "firm name" "Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.
Persons who have entered into partnership with one another are called individually "partners" and collectively a "firm", RCT No. 161/16 Page 49 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
and the name under which their business is carried on is called the "firm name".
67. It is also a settled proposition that in order to evict a tenant from the tenanted premises on the ground of subletting, the landlord is required to prove that tenant has parted with the possession of the premises. If the tenant continues to be in possession of the tenanted premises, the landlord cannot succeed on the ground of subletting. In the present case, though, the appellants have repeatedly stated that late Sh. Lajpat Rai Nandwani was inducted as subtenant but has nowhere stated or proved on record that the tenant M/s Hari Sons has divested itself of the possession from the tenanted premises. The tenant can suffer eviction if the user and control of the tenanted premises has totally been parted with and the partnership deed has been manufactured for providing a cloak or cover to conceal a transaction not permitted by law. It is correct that the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and sub tenant. However, there has to be some material on the record. Late Sh. Lajpat Rai Nandwani is the son of Smt. Durga Devi and after her death, he has been inducted as a partner in the firm. Merely by saying that the partnership deed is a sham document, RCT No. 161/16 Page 50 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
the partnership deed cannot be ignored. In order to reject the partnership deed, the appellants/landlords were required to demonstrate, in particular, the collusive nature of the document or the fraudulent or legal purpose for which, it was brought into being, however, there is nothing on the record to the same effect. The Ld. Trial Court has given a categorical finding and I do not find any reason to disturb the same. I consider that the Ld. Trial Court has correctly appreciated the evidence and there is no point to disturb the same. However, it must be mentioned that Ld. Trial Court has omitted to decide the objections, as recorded in the proceedings dated 08.10.2008 and 31.03.2012. The Ld. Trial Court should have returned the finding on the objections. Ld. Counsel for the appellants submitted that the matter may be remanded back to the Ld. Trial Court for deciding these objections. I consider that on this point, no purpose would be served for remanding the matter back. The objections were taken by the respondent on the mode of proof of document exhibited by the petitioner in his affidavit. It is a matter of record that document Ex.PW1/1 to PW1/7 were produced in original by the petitioner. It is also a matter of record that the document Ex.PW1/8 & PW1/9 were deexhibited vide order dated 19.09.2008. Documents exhibited as Ex.PW1/10, PW1/11, RCT No. 161/16 Page 51 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
PW1/12 & PW1/13, are the certified copies of site plan, legal notice, postal receipt and A.D.Card, respectively. I consider that objections taken by the respondent, as recorded in proceeding dated 08.10.2008, have no substance.
68. Similarly, the petitioners/appellants had taken the objection during the crossexamination of RW1 regarding the exhibition of Ex.RW1/3 & RW1/4 as to the mode of proof as the witness is not the party to the said documents.
69. Ex. RW1/3 and RW1/4 are the certified copies of the partnership deeds dated 01.04.1962 and 01.04.1990. RW1 being attorney of the respondents has filed the partnership deed. There is no substance in the arguments of Ld. Counsel for the respondents. It is a settled proposition that procedure is the handmaid of the justice. The document being produced are essential for the just decision of the case and the same cannot be shut merely on the technical ground of mode of proof. Similarly, the testimony of the witness/RW1 contained in para no.1 & 3 cannot be considered to be beyond pleadings. Thus, in view of the discussion made hereinabove, I do not find any ground to interfere in the findings regarding Section 14(1)(b) of the DRC Act.
RCT No. 161/16 Page 52 of 55Pawan Dewan Ors vs. M/s Hari Sons Anr.
Ground of eviction under Section 14(1)(j) of DRC Act
70. In respect of ground of unauthorised construction, Ld. Trial Court has inter alia held as under :
"23.4 Petitioners have further examined PW2 Sh. Raj Gopal who stated that he had inspected the tenanted premises in the year 1972. He stated that miani was not existing when he inspected the same. No wooden plank was found existing under the roof and above the floor. He further stated that last time he inspected the property in December 2010. He did not prepare any site plan during the said visit. He denied the suggestion that no miani exists at the property even today. He admitted that he inspected the tenanted premises from outside and had not gone inside the property. Thus from the testimony of PW2 it is evident that he had not entered the property during the inspection in December 2010, thus his testimony to the extent that miani is in existence at present in the tenanted premises is of no relevance.
23.5 The petitioners have not placed on record any photographs to show that miani has been constructed by the respondents. No sketch of the unauthorised construction or the notice received from L&DO has been placed on record by PW1 to show that some sort of unauthoised construction n the form of miani has been constructed by the respondents. The petitioners have not placed on record any document to show RCT No. 161/16 Page 53 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
that any substantial damage has been caused to the tenanted premises by the construction of alleged miani. In the absence of any evidence in this regard, no ground of eviction is made out u/s. 14(1)(j) also."
71. In regard to the ground of eviction under Section 14(1)(j) of the DRC Act, the petitioner in his affidavit has stated that respondents have made additions and alterations and thereby made unauthorised addition by which severe prejudice to the property has been caused and ultimately to the petitioners. It was further stated that respondents have made miani in the said shop thereby making additional floor without the consent of the petitioners. This point has been dealt with by the Ld. Trial Court after appreciating the evidence on the record.
72. It may be advantageous to refer to the cross examination of PW1 as recorded on 13.10.2011. In the cross examination, PW1 stated that he came to know that there are additions and alterations in the suit property on inspection and that he had prepared a sketch of the unauthorised construction in the suit property, however, he had not placed the said sketch on record. PW1 further stated that he saw a miani in the premises and also noticed that the front varandah had been covered. PW1 RCT No. 161/16 Page 54 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.
further stated that he had received a notice from L&DO regarding such unauthorised construction in the premises. However, he had not placed the same on record. PW1 further admitted that he had not placed on record any document stating loss caused to him for the unauthorised construction. PW1 further admitted that he had not placed any document suggesting any unauthorised construction in the premises.
73. I consider that on this point, Ld. Trial Court has given a categorical finding and there is no ground to interfere with the same.
74. In view of the discussions as made hereinabove, the appeal is dismissed.
75. TCR along with copy of the judgment be sent to the Ld. Trial Court, and thereafter file of appeal be consigned to Digitally signed by Record Room. DINESH DINESH KUMAR KUMAR SHARMA Date: 2021.12.02 SHARMA 17:49:05 +0530 Announced in the open (DINESH KUMAR SHARMA) court on 02.12.2021. Principal District & Sessions Judge Rent Control Tribunal Patiala House Court : New Delhi RCT No. 161/16 Page 55 of 55 Pawan Dewan Ors vs. M/s Hari Sons Anr.