Delhi District Court
Sh. Jai Shankar vs Ms. Poonam Bala on 8 May, 2012
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0203852010
RCT No. 09/2012 (old no. 35/10)
1. Sh. Jai Shankar
S/o Shri Gauri Shankar ...Appellant
R/o 4, Battery Lane
Civil Lines
Delhi - 100 054
VERSUS
1. Ms. Poonam Bala
D/o Late Shri Gyan Chand
R/o 3384, Gali Tabela Bala Prasad ,
Bazar Sita Ram
Delhi - 110 006 ....Respondent
Date of institution : 11.05.2010
Arguments heard on : 04.05.2012
Date of order : 08.05.2012
ORDER
1. The present appeal is directed against eviction order dated 12.4.2010 passed by Ld. ARC on the ground of subletting. Vide same order petition on the ground of non- payment of rent, not residing and acquisition of alternative accommodation was dismissed.
RCT No. 09/12 1 of 9 2
2. The petition pertain to private number 42 in property no. 674, Second floor, Katra Hira Lal , Chandni Chowk, Delhi. According to the respondent / landlord the premises were let out on 15.2.1984, rate of rent was Rs. 33 /- per month, the same was enhanced by 10% to Rs. 36.30/- per month vide notice dated 17.12.2003. The appellant was defaulter w.e.f 1.4.1993. He had shifted his residence to No.4 , Battery Lane, Rajpur Road, Delhi. The appellant was not residing in the tenanted premises. He had sublet the property without consent of the landlady to Mr. Mohan Goel of M/s Mohan Textiles. He has been misusing the premises as godown. The appellant filed a written statement stating that respondent was neither owner nor landlord. The premises were let out to M/s Jai Shankar and sons by M/s Mahali Ram for commercial purposes. The rent receipts make it clear that premises were let for commercial purposes. Rent was Rs. 30/- per month. Mr. Mohan Goel was an employee of M/s Jai Shankar & sons. The rent was tendered which was not received by the landlady. Thereafter the same was RCT No. 09/12 2 of 9 3 deposited u/s 27 DRC Act. There was no bathroom and kitchen in the premises.
3. In support of his case the respondent examined three witnesses. PW1-Padam Chand is brother / general attorney of respondent herein. He filed affidavit Ex. P-1 and referred to copy of power of attorney as Ex. PW1/1, site plan as Ex. PW1/2, copy of notice as Ex. PW1/3, postal receipt as Ex. PW1/4 and reply as Ex. PW1/5. Copy of sale deed of flat No. 4, Rajpur Road in the name of appellant as Ex. PW1/6, electricity bill of said premises as Ex. PW1/7, copy of order of slum authority as Ex. PW1/8. PW-2 Nihal Chand is resident of the same property. He filed affidavit Ex. P-2. PW3 Arjun Singh, Record Clerk, House Tax Department produced copy of application, affidavit and indemnity bond regarding mutation of flat No. 4, Civil Line, Delhi as Ex. PW3/A to C and copy of assessment order as Ex. PW3/D.
4. On the other hand the appellant examined two witnesses. RW-1 Jai Shankar is karta of M/s Jai Shankar and sons ( HUF). He filed affidavit Ex. R-1 and referred to RCT No. 09/12 3 of 9 4 the copy of rent deed as Ex. RW/1, rent receipt as Ex. RW1/2, money order coupon as Ex. RW1/3, refusal report as Ex. RW1/4, copy of order u/s 27 DRC Act as Ex. RW1/5 and Treasury Challan thereof as Ex. RW1/6. RW-2 Madan Mohan is alleged sub-tenant. He filed affidavit which is Ex. R-2.
5. After going through the material on record and hearing the arguments the Ld. ARC found that since the appellant has pleaded that earlier owner was M/s Mahali Ram Laxman Dass and respondent herein had purchased the premises from him, the respondent became the landlady. As regard tenant it was held that M/s Jai Shankar and Sons was a proprietory firm. There is no difference between proprietor and proprietorship firm. Thus appellant was a tenant. Rent was held to be Rs. 30/- per month and the purpose of letting was held to be residential as well as for the purpose of office on the basis of rent note Ex. RW1/1. Thus ground u/s 14 (1) (d) and (h) DRC Act was not available.
6. Petition u/s 14(1) (a) DRC Act was dismissed on the RCT No. 09/12 4 of 9 5 ground that appellant has complied with the notice of demand by making the payment within two months.
7. However regarding sub-letting it was held that appellant pleaded in the written statement that Mohan Goel was his employee. During evidence RW-1 stated in cross examination that he had no employee at the suit shop. Mohan Lal Gupta was husband of his niece (bhanji) and was looking after the shop. Mohan Lal was working as his employee on commission basis. Mohan Lal was opening and closing the shop and keys were with him. Thus there was conflict between pleadings and evidence. Hence an eviction order was passed.
8. In appeal the grievance of the appellant is that Ld. Trial Court has mis read the statement of RW2 and returned finding that RW-2 admitted in cross examination that Madan Mohan Goel was having an account of his firm in the name of M/s Mohan Textiles with Punjab National Bank, Chandni Chowk, Delhi at the same address.
9. During the course of arguments the counsel for the appellant moved an application u/o 41 R 27 CPC for RCT No. 09/12 5 of 9 6 producing two photos of the entrance door of the tenancy premises to show name plate of appellant firm. The same could not be produced before Ld. ARC inadvertently. The photos are necessary for just decision of the case.
10. The counsel for the respondent opposed the application orally by submitting that photos can be manipulated at any time. Additional evidence cannot be allowed to fill up the gap and remove the lacuna. I find considerable force in the submission of the counsel for the respondent. The application for additional evidence is dismissed.
11. On merits the counsel for the appellant high lighted that in eviction petition what was alleged is that appellant has sub-let the premises and it was not the case of the landlady that the premises had been assigned or otherwise parted with . According to her for sub-letting a strict proof of exclusive possession being given to someone and charging of rent by tenant from sub-tenant have to be proved. In support of his submission she placed reliance on Nirmal Kanta Vs Ashok Kumar and Another 2008 (7) RCT No. 09/12 6 of 9 7 SCC 722. In that case the tenant had allowed the so called sub-tenant to operate his feet driven sewing machine from portion of the shop and that too for the purpose of assisting the tenant in his cloth business. In that background eviction on the ground of sub-letting was declined. The said decision is not applicable to the case in hand.
12. Elaborating her submission the counsel for the appellant submitted that RW-2 spoke of his business at 710/1, Katra Hardayal, Chandni Chowk, Delhi. The subsequent statement containing words at the same address referred to those premises. Those premises are different from the suit premises. To that extent she appears to be correct.
13. Anyhow the counsel for the respondent submitted that the case of the appellant as set-up in the written statement was complete variance from the evidence. In written statement the appellant tried to make out that Mohan Goel is his employee. In cross examination appellant as RW-1 submitted that he had no employee at the suit shop, the husband of his niece (Bhanji ) namely RCT No. 09/12 7 of 9 8 Mohan Lal Gupta was looking after the shop. He was looking after the business for 6/7 years. He was working as his employee on commission basis. He had not mentioned in his written statement that Mohan Lal Gupta was his employee. He had not filed any document to show that Mohan Lal Gupta was paid on commission basis. Mohan Lal Gupta was opening and closing the shop and keys were with him.
14. The counsel for the respondent submitted that once presence of outsider is established, it is for the tenant to rebut as to in what capacity, the said third person is there. In support of his submission he relied upon Gobind Prasad Jagdish Parshad Vs Shri Hari Shankar & Ors. 136 (2007) DLT 259.
15. Mere fact that sub-tenant is related to the tenant is no ground to repel sub-letting. In support of his submission he relied upon Sushil Puri Vs Jai Gopal 2007 (1) RCJ 70. The said decision is delivered by our own Hon'ble High Court and squarely applies to the case in hand.
RCT No. 09/12 8 of 9 9
16. The counsel for the appellant urged that appellant has categorically stated that he used to go to the premises on every Diwali. If he had no interest in the premises, he would not have gone to the suit premises. I am unable to appreciate the arguments. So many relatives attend Puja on Diwali but that does not mean that they continue to hold control over the premises.
17. In view of the above discussion I do not find any infirmity in the impugned order. The appeal fails and is dismissed. Trial Court record be sent back along with the copy of this order. Appeal file be consigned to Record Room.
Announced in the open court
on 8th May, 2012. (O.P. GUPTA)
DJ&ASJ-In-Charge(West)/ARCT
Delhi
RCT No. 09/12 9 of 9