Delhi District Court
Sh. Lachhi Ram vs Shri Ram Parshad on 19 December, 2018
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
ARC No: 24/2017
Sh. Lachhi Ram,
S/o Late Sh. Har Dayal,
R/o 381-C, Part-III,
Gali No.42, Mahavir Enclave,
New Delhi. .... Petitioner
VERSUS
1. Shri Ram Parshad
S/o Sh. Rudal Yadav,
R/o B-25, Gali No.19,
Dass Garden, Baprola Vihar,
New Delhi.
(Last known address)
2. Mohd. Farid Ahmad,
R/o B-25, Gali No.19,
Dass Garden, Baprola Vihar,
New Delhi. .... Respondents
Date of Filing : 14.02.2017
Date of Judgment : 19.12.2018
JUDGMENT
1. Brief facts of the present case are that on 14.02.2017, the petitioner filed this petition Under Section 14 (1) (b) (k) of the Delhi Rent Act, 1958 (hereinafter referred to as 'DRC Act') praying to this court to pass an order for eviction in favour of the petitioner and against the Respondents/Tenants (hereinafter ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 1 / 8 referred to as 'respondents') from one room, common latrine and open court yard at plot No. 25, Block-B, Gali No. 19, Nangli Vihar Extension, Dass Garden, Baprola Vihar, New Delhi as shown in red colour in the site plan Ex. PW-1/7 attached with the petition (hereinafter referred to as 'tenanted premises').
2. That the tenanted premises was purchased by the petitioner from previous owner Sh. Roshan Lal vide agreement to sell dated 24.02.2003, GPA and Will dated 24.02.2003.
That the respondent No.1 was the pre-existing tenant of the previous owner in the tenanted premises and after the petitioner had purchased the tenanted premises, the respondent no.1 paid the rent to the petitioner till 31.08.2003.
That the petitioner got issued legal notice to the respondent no.1 herein on 16.04.2005 for the recovery of the arrears of rent.
That the petitioner filed a suit for recovery of arrears of rent and damages for an amount of Rs. 29,000/- on 27.01.2006 against the respondent no.1 herein and the same was decided ex-parte on 24.03.2008 in favour of the petitioner herein.
That the petitioner herein has also filed execution proceedings against the respondent no.1 herein from where he came to know that the respondent no.1 herein had illegally sublet the tenanted premises to the respondent no.2. However, the said execution has been stayed sine-die as the respondent no.1 had been avoiding the execution proceedings after subletting the tenanted premises to the respondent no.2.
That thereafter the petitioner herein filed a suit for ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 2 / 8 possession, permanent injunction and consequential relief against the respondents which was proceeded ex-parte. However, the said suit was withdrawn by the petitioner on 12.01.2017 due to technical ground.
The respondents have also illegally made alterations in the tenanted premises and have constructed an unauthorised floor in the tenanted premises.
3. Summons of the present petition issued to the respondents but none appeared on behalf of the respondents despite service through publication also and consequently, the respondents were proceeded ex-parte vide order 20.09.2018.
4. Since the respondent was proceeded ex-parte on 20.09.2018, an ex-parte evidence was led by the petitioner wherein the petitioner Sh. Lachhi Ram examined himself as PW-1. Sh. Lachhi Ram/ PW-1 tendered his evidence by way of affidavit and relied upon various documents i.e. copy of GPA Ex.PW1/1(OSR), Copy of agreement to sell Ex.PW1/2(OSR), Copy of Will Ex.PW1/3 (OSR), Photo copy of certified copy of decree and judgment Ex.PW1/4, copy of legal notice Ex.PW1/5, Courier receipt of legal notice Ex.PW1/6 and the Site plan Ex.PW1/7. Thereafter, petitioner evidence was closed.
5. Perusal of the record shows that vide order dated 03.12.2018, the petitioner withdrew his prayer U/Sec. 14(1)(k) D.R.C. Act and pressed his prayer U/Sec. 14(1)(b) D.R.C. Act only.
ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 3 / 86. I have heard the Ld. Counsel for the petitioner at very length and gone through the record very carefully and minutely.
Section 14 (1) (b) subletting:-
7. It is expedient to reproduce the Section 14 (1) (b) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(b) That the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord".
8. As per Delhi Rent Act, Section 14 (1)(b) is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely prohibited by the law or by the Delhi Rent Control Act but the ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 4 / 8 subletting should be with the consent of landlord and such consent should be in writing. 14 (1)(b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
(ii). No consent in writing was taken from the landlord by the tenant.
9. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting take place only when there divesting of physical possession as well as of the right to possession. In other words, there must be vesting of possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession.
ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 5 / 8So long as the tenant keeps the control with him, it can not be said that sub-tenant is exclusive possession of premises and in such situation the case does not fall within Section 14 (1)
(b) D.R.C. Act.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
10. Perusal of the record shows that the petitioner claims that the respondent No.1 was the pre-existing tenant of the previous owner in the tenanted premises and after the petitioner had purchased the tenanted premises, the respondent no.1 paid the rent to the petitioner till 31.08.2003.
Perusal of the record also shows that the petitioner got issued a legal notice to the respondent no.1 herein on 16.04.2005 for the recovery of the arrears of rent and the petitioner filed a suit for recovery of arrears of rent and damages for an amount of Rs. 29,000/- on 27.01.2006 against the respondent no.1 and the same was decided ex-parte on 24.03.2008 in favour of the petitioner.
Perusal of the record further shows that the petitioner has also filed execution proceedings against the respondent no.1 herein from where he came to know that the respondent no.1 herein had illegally sublet the tenanted premises to the respondent no.2. However, the said execution has been stayed sine-die as the respondent no.1 had been avoiding the execution proceedings after subletting the tenanted premises to the respondent no.2. Record further shows that the respondents have also illegally made alterations in the tenanted premises ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 6 / 8 and have constructed an unauthorised floor in the tenanted premises.
11. I have carefully and minutely gone through the material and testimony of the witness/petitioner on record.
On the other hand, the respondents have already been proceeded ex-parte and no written statement was filed by the respondents to rebut the same.
As such, no evidence has been led by the respondents in the present case. Moreover, no cross examination of the petitioner has been conducted by the respondents. As a result of which, the testimony of petitioner has been remained unrebutted and unchallenged.
12. As such, in view of aforesaid discussion, material on record, testimony of PW-1 and legal proposition of law, I am of the view that the ingredients in respect of sub-letting have been satisfied by the petitioner U/Sec. 14 (1) (b) of DRC Act.
CONCLUSION:-
13. In view of the aforesaid discussion and settled proposition of law, this court has come to the conclusion that the petitioner has satisfied the ingredients of Section 14(1)(b) of D.R.C. Act and consequently an eviction order is passed in favour of petitioner and against the respondents in respect of the tenanted premises i.e. one room, common latrine and open court yard at plot No. 25, Block-B, Gali No. 19, Nangli Vihar Extension, Dass Garden, Baprola Vihar, New Delhi as ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 7 / 8 shown in red colour in the site plan Ex. PW-1/7 attached with the petition.
14. File be consigned to Record Room after due compliance.
Announced in the open court on 19th December, 2018. AJAY Digitally signed by AJAY NAGAR (This judgment contains 8 pages) NAGAR Date: 2018.12.19 16:59:59 +0530 (AJAY NAGAR) Commercial Civil Judge-cum-
Additional Rent Controller, West District, THC, Delhi.
ARC No. 24/2017 Lachhi Ram Vs Ram Parshad Page 8 / 8