Rukmani Devi Jaipuria Charitable Trust vs Shri Jiwan Dass on 31 May, 2022

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Delhi District Court

Rukmani Devi Jaipuria Charitable Trust vs Shri Jiwan Dass on 31 May, 2022

IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.

RCT No. 30384/2016 (104/2013)
1. RUKMANI DEVI JAIPURIA CHARITABLE TRUST
THROUGH ITS CHAIRMAN
Shri MAHABIR PRASAD JAIPURIA
52, JANPATH, NEW DELHI

2. Shri MAHABIR PRASAD JAIPURIA
S/o LATE SETH BENI PRASAD JAIPURIA
52, JANPATH, NEW DELHI
CHAIRMAN/TRUSTEE OF RUKMANI DEVI JAIPURIA
CHARITABLE TRUST

3. Shri ANURAAG JAIPURIA
S/o LATE SETH BENI PRASAD JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF RUKMANI DEVI JAIPURIA CHARITABLE
TRUST

4. Smt. NITIKA JAIPURIA
W/o Shri ANURAAG JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF RUKMANI DEVI JAIPURIA CHARITABLE
TRUST
....APPELLANT

VERSUS

1. Shri JIWAN DASS
SINCE DECEASED THROUGH LEGAL
REPRESENTATIVE
A. LATE Shri BANSI LAL
SINCE DECEASED THROUGH LEGAL
REPRESENTATIVE
RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016,
RCT No. 30387/2016, RCT No. 30448/2016 Page 1 of 61 pages
Digitally signed
by GIRISH
KATHPALIA
GIRISH
Date:
KATHPALIA 2022.06.02
14:53:11
+0530
a) Mrs. PUSHPA BHUTANI
W/o LATE Shri BANSI LAL

b) Mrs. RENU BERI
W/o Shri SANDEEP BERI
D/o LATE Shri BANSI LAL

c) Mrs. REETA SINGH
W/o Shri PARVEEN SINGH
D/o LATE Shri BANSI LAL

d) Mrs. REKHA CHAWLA
W/o Shri HITESH CHAWLA
D/o LATE Shri BANSI LAL

a) TO d) ALL RESIDENT OF
C3/241, FIRST FLOOR, JANK PURI,
DELHI 110058

e) Mr. RAKESH BHUTANI
S/o LATE Shri BANSI LAL
R/o (LAST KNOWN ADDRESS)
C3/241, FIRST FLOOR, JANK PURI,
DELHI 110058
C/o DUBAI (AS ALLEGED BY THE
RESPONDENT A (ad)

B. Shri GULSHAN KUMAR

C. Shri KAILASH CHAND

D. Shri SANJEEV KUMAR
A TO D ALL SONS OF LATE Shri JIWAN DASS
C/o SHOP No. 617, WARD No. V, KATRA ASRAFI
CHANDNI CHOWK, DELHI 110006
......RESPONDENTS

Date of filing :14.08.2012
First date before this court : 05.08.2019

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016,
RCT No. 30387/2016, RCT No. 30448/2016 Page 2 of 61 pages
Digitally signed
by GIRISH
KATHPALIA
GIRISH
Date:
KATHPALIA 2022.06.02
14:53:27
+0530
Arguments concluded on : 18.05.2022
Date of Decision : 31.05.2022

APPEARANCE : Shri Preet Pal Singh, counsel for appellants
Choudhary Ranjit Singh, counsel for respondents

RCT no. 30388/2016 (181/2013)

1. RUKMANI DEVI JAIPURIA CHARITABLE TRUST
THROUGH ITS CHAIRMAN
Shri MAHABIR PRASAD JAIPURIA
52, JANPATH, NEW DELHI

2. Shri MAHABIR PERSHAD JAIPURIA
S/o LATE SETH BENI PRASAD JAIPURIA
52, JANPATH, NEW DELHI
CHAIRMAN/TRUSTEE OF RUKMANI DEVI JAIPURIA
CHARITABLE TRUST

3. Shri ANURAAG JAIPURIA
S/o MAHABIR PERSHAD JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF RUKMANI DEVI JAIPURIA CHARITABLE
TRUST

4. Smt. NITIKA JAIPURIA
W/o Shri ANURAAG JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF RUKMANI DEVI JAIPURIA CHARITABLE
TRUST
....APPELLANT

VERSUS

1. M/s SOBHA SINGH SADHU RAM
SHOP No. V/559, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006
THROGH Shri SUNDER SINGH

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016,
RCT No. 30387/2016, RCT No. 30448/2016 Page 3 of 61 pages
Digitally signed
by GIRISH
KATHPALIA
GIRISH
Date:
KATHPALIA 2022.06.02
14:53:38
+0530
2. CHABRA TRIPLE FIVE FASHION PVT. LTD.
SHOP No. V/616, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006
THROGH ITS DIRECTOR Shri JAGDEEP CHHABRA

....RESPONDENTS

Date of filing :14.08.2012
First date before this court : 05.08.2019
Arguments concluded on : 18.05.2022
Date of Decision : 31.05.2022

APPEARANCE : Shri Preet Pal Singh, counsel for appellants
Choudhary Ranjit Singh, counsel for respondent

RCT no. 30386/2016 (183/2013)

1. RUKMANI DEVI JAIPURIA CHARITABLE TRUST
THROUGH ITS CHAIRMAN
Shri MAHABIR PRASAD JAIPURIA
52, JANPATH, NEW DELHI

2. Shri MAHABIR PRASAD JAIPURIA
S/o LATE SETH BENI PRASAD JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF PETITIONER No. 1

3. Shri ANURAAG JAIPURIA
S/o Shri MAHABIR PERSHAD JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF PETITIONER No. 1

4. Smt. NITIKA JAIPURIA
W/o Shri ANURAAG JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF PETITIONER No. 1
....APPELLANTS

VERSUS
RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016,
RCT No. 30387/2016, RCT No. 30448/2016 Page 4 of 61 pages
Digitally signed
by GIRISH
KATHPALIA
GIRISH
KATHPALIA Date:
2022.06.02
14:53:50
+0530
1. Shri HANS RAJ
S/o Shri MANGAL DASS
V/560, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006

2. Shri GIRDHARI LAL
S/o Shri MANGAL DASS
V/560, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006
(SINCE DECEASED) NOW REPRESENTED BY
A) Smt. SUMITRA DEVI WIDOW
B) Shri INDERJIT SON
C) Shri ASHOK KUMAR SON
D) Shri KULDEEP KUMAR SON
E) Shri JAGDISH KUMAR SON
F) Smt. NEELAM RANI DAUGHTER
G) Smt. VEENA DAUGHTER
H) Smt. TRIPTA DAUGHTER
ALL R/o 14/65, WEST PUNJABI BAGH
NEW DELHI 110026

3. Shri HANS RAJ & COMPANY
THROUGH ITS OWNER Shri RAJINDER KUMAR
V/560, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006

4. Shri JAGDISH KUMAR & SONS
THROUGH ITS OWNER Shri RAJINDER KUMAR
V/560, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006
....RESPONDENTS

Date of filing :14.08.2012
First date before this court : 05.08.2019
Arguments concluded on : 18.05.2022
Date of Decision : 31.05.2022

APPEARANCE : Shri Preet Pal Singh, counsel for appellants
Shri Sanjay Aggarwal, counsel for respondents

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016,
RCT No. 30387/2016, RCT No. 30448/2016 Page 5 of 61 pages
Digitally signed
by GIRISH
KATHPALIA
GIRISH
Date:
KATHPALIA 2022.06.02
14:54:03
+0530
RCT No. 30387/2016 (182/2013)
1. RUKMANI DEVI JAIPURIA CHARITABLE TRUST
THROUGH ITS CHAIRMAN
Shri MAHABIR PRASAD JAIPURIA
52, JANPATH, NEW DELHI

2. Shri MAHABIR PRASAD JAIPURIA
S/o LATE SETH BENI PRASAD JAIPURIA
52, JANPATH, NEW DELHI
CHAIRMAN/TRUSTEE OF RUKMANI DEVI JAIPURIA
CHARITABLE TRUST

3. Shri ANURAAG JAIPURIA
S/o Shri MAHABIR PERSHAD JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF RUKMANI DEVI JAIPURIA CHARITABLE
TRUST

4. Smt. NITIKA JAIPURIA
W/o Shri ANURAAG JAIPURIA
52, JANPATH, NEW DELHI
TRUSTEE OF RUKMANI DEVI JAIPURIA CHARITABLE
TRUST
....APPELLANT

VERSUS

1. Shri ANAND KUMAR
S/o Shri MEGH RAJ
V/560A, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006

2. Shri AJAY KUMAR
S/o Shri MEGH RAJ
V/560A, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016,
RCT No. 30387/2016, RCT No. 30448/2016 Page 6 of 61 pages
Digitally signed
by GIRISH
KATHPALIA
GIRISH
Date:
KATHPALIA 2022.06.02
14:54:18
+0530
3. M/s R.K. & COMPANY
THROUGH ITS OWNER
Shri SATISH KUMAR SHOREWALA
V/560A, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006
....RESPONDENTS

Date of filing :14.08.2012
First date before this court : 05.08.2019
Arguments concluded on : 18.05.2022
Date of Decision : 31.05.2022

APPEARANCE : Shri Preet Pal Singh, counsel for appellants
Shri Sanjay Aggarwal, counsel for respondents

RCT No. 30448/2016 (107/2013)

1. Shri ANAND KUMAR
S/o Shri MEGH RAJ
V/560A, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006

2. Shri AJAY KUMAR
S/o Shri MEGH RAJ
V/560A, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006

3. M/s R.K. & COMPANY
THROUGH ITS PARTNERS
Shri AJAY KUMAR AND
Shri SATISH KUMAR SHOREWALA
BOTH AVAILABLE AT V/560A, KATRA ASHRAFI
CHANDNI CHOWK, DELHI 110006
....APPELLANTS
VERSUS

1. RUKMANI DEVI JAIPURIA CHARITABLE TRUST
THROUGH ITS CHAIRMAN
Shri MAHABIR PRASAD JAIPURIA
52, JANPATH, NEW DELHI 110001

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016,
RCT No. 30387/2016, RCT No. 30448/2016 Page 7 of 61 pages
Digitally
signed by
GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.06.02
14:54:31
+0530
2. Shri MAHABIR PRASAD JAIPURIA
S/o LATE SETH BENI PRASAD JAIPURIA
52, JANPATH, NEW DELHI 110001
TRUSTEE OF RESPONDENT NO. 1

3. Smt. PUSHPA DEVI JAIPURIA
W/o Shri MAHABIR PRASAD JAIPURIA
52, JANPATH, NEW DELHI 110001
TRUSTEE OF RESPONDENT NO. 1
....RESPONDENTS

Date of filing :21.08.2012
First date before this court : 05.08.2019
Arguments concluded on : 18.05.2022
Date of Decision : 31.05.2022

APPEARANCE : Shri Ram Bhakt Aggarwal, counsel for appellants
Shri Preet Pal Singh, counsel for respondents

COMMON JUDGMENT

1(a). These five appeals, brought under Section 38 of the Delhi Rent Control Act (hereinafter referred to as "the Act"), arising out of five eviction proceedings initiated by the same landlord Rukmani Devi Jaipuria Charitable Trust (hereinafter referred to as "the landlord trust") against four set of tenants pertaining to four subject premises are taken up together for disposal on account of similar factual and legal matrix. Also, before the trial court of Additional Rent Controller, evidence in those five eviction proceedings was recorded in a scattered manner by examining some witnesses in one file and some in the others, and by exhibiting some of the documentary evidence in one file and remaining in the others. It would be further significant to note that apart from these five appeals, there was one more appeal bearing RCT no. 30389/2016 RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 8 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:54:44 +0530 titled 'Rukmani Devi Jaipuria Charitable Trust vs. Dawar & Company', which appeal was dismissed as withdrawn vide order dated 22.10.2019 of this court. Some of the evidence pertaining to the present appeals was also recorded in the eviction proceedings, out of which RCT no. 30389/2016 arose and during final arguments in these appeals, I was also taken through records of those eviction proceedings as well.

1(b). The appeal RCT no. 30384/2016 assails order dated 07.07.2012 of the learned Additional Rent Controller whereby the eviction petition filed against the tenant late Shri Jiwan Dass on the grounds under Section 14(1)(a) and Section 22 of the Act was dismissed. The appeal RCT no. 30388/2016 assails order dated 09.07.2012 of the learned Additional Rent Controller whereby the eviction petition filed against the tenant M/s Sobha Singh Sadhu Ram on the grounds under Section 14(1)(a)(b) and Section 22 of the Act was dismissed. The appeal RCT no. 30386/2016 assails order dated 10.07.2012 of the learned Additional Rent Controller whereby the eviction petition filed against the tenants Shri Hansraj and Shri Girdhari Lal on the grounds under Section 14(1)(a)(b) and Section 22 of the Act was dismissed. The appeal RCT no. 30387/2016 assails order dated 10.07.2012 of the learned Additional Rent Controller whereby the eviction petition filed against the tenants Shri Anand Kumar and Shri Ajay Kumar on the grounds under Section 14(1)(a) and Section 22 of the Act was dismissed. The appeal RCT no. 30448/2016 filed by the tenants Shri Anand Kumar and Others assails RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 9 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:54:56 +0530 order dated 10.07.2012 of the Additional Rent Controller whereby eviction petition on the ground under Section 14 (1)(b) of the Act was allowed. Thus, out of these five appeals, four assail dismissal of eviction petitions and one assails allowing of the eviction petition.

1 (c). Upon service of notice, all respondents entered appearance through their respective counsel to oppose these appeals. I heard learned counsel for both sides and perused the trial court records.

2. Briefly stated, circumstances leading to each of these appeals are as follows.

RUKMANI DEVI JAIPURIA CHARITABLE TRUST vs SHRI JIWAN DASS (RCT Appeal no. 30384/2016) 2.1 Late Smt. Rukmani Devi Jaipuria being the owner of premises bearing no. V/559,560,661,617 Katra Asharfi, Chandni Chowk, Delhi created a charitable trust namely Rukmani Devi Jaipuria Charitable Trust vide registered Trust Deed dated 26.07.1975, thereby settling and dedicating the said premises for public charitable purposes. The trust came to be recognised as public charitable institution by the income tax authorities. The trust inducted the now deceased respondent Shri Jiwan Dass as a tenant in the premises no. V/617, Katra Asharfi, Chandni Chowk, Delhi (hereinafter referred to as "the tenanted premises") at a monthly rent RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 10 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:55:07 +0530 of Rs. 36.93 paise. The tenant allegedly became a defaulter of rent with effect from 01.04.1969 and fell in arrears of rent till 31.10.1984 (eviction petition filed on 29.11.1984) to the tune of Rs. 6,905.91 paise. By cashier order dated 28.08.1984 issued by HSBC, the respondent tenant paid Rs. 1,329.48 paise but did not clear the outstanding rent liability within two months of written demands. Besides, the tenanted premises are required bonafide by the landlord trust for opening a charitable dispensary and/or library/reading room in furtherance of its activities. So, the landlord trust filed eviction petition under Section 14(1)(a) and Section 22 of the Act against the tenant Shri Jiwan Dass. By way of the impugned judgment dated 07.07.2012, the learned Additional Rent Controller dismissed the eviction petition. Hence, the present appeal.

RUKMANI DEVI JAIPURIA CHARITABLE TRUST vs M/s SOBHA SINGH SADHU RAM (RCT Appeal no. 30388/2016) 2.2 Late Smt. Rukmani Devi Jaipuria being the owner of premises bearing no. V/559, 560, 661, 617 Katra Asharfi, Chandni Chowk, Delhi created a charitable trust namely Rukmani Devi Jaipuria Charitable Trust vide registered Trust Deed dated 26.07.1975, thereby settling and dedicating the said premises for public charitable purposes. The trust came to be recognized as public charitable institution by the income tax authorities. The trust inducted the respondent no. 1 partnership firm M/s Sobha Singh Sadhu Ram as a tenant in the premises no. V/559, Katra Asharfi, Chandni Chowk, RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 11 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:55:18 +0530 Delhi (hereinafter referred to as "the tenanted premises") at a monthly rent of Rs. 65/. The tenant firm became allegedly a defaulter of rent with effect from 01.11.1962 and fell in arrears of rent till 31.08.2007(eviction petition filed on 07.09.2007) to the tune of Rs. 36,546.34 paise but did not clear the outstanding rent liability within two months of written demands. Further, in or about October, 2003, the tenant firm unauthorizedly sublet or assigned or otherwise parted with possession of the duchhatti (attic) forming part of the subject premises to the respondent no. 2 M/s Chhabra Triple Five Fashion Private Limited. Besides, the tenanted premises are required bonafide by the landlord trust for opening a charitable dispensary and/or library/reading room in furtherance of its activities. So, the landlord trust filed eviction petition under Section 14(1)(a)(b) and Section 22 of the Act against the respondents. By way of the impugned judgment dated 09.07.2012, the learned Additional Rent Controller dismissed the eviction petition. Hence, the present appeal.

RUKMANI DEVI JAIPURIA CHARITABLE TRUST vs SHRI HANS RAJ (RCT Appeal no. 30386/2016) 2.3 Late Smt. Rukmani Devi Jaipuria being the owner of premises bearing no. V/559,560,661,617 Katra Asharfi, Chandni Chowk, Delhi created a charitable trust namely Rukmani Devi Jaipuria Charitable Trust vide registered Trust Deed dated 26.07.1975, thereby settling and dedicating the said premises for public charitable purposes. The trust came to be recognized as public RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 12 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:55:29 +0530 charitable institution by the income tax authorities. The trust inducted the respondents Shri Hansraj and Shri Girdhari Lal as tenants in the premises no. V/560B, Katra Asharfi, Chandni Chowk, Delhi (hereinafter referred to as "the tenanted premises") at a monthly rent of Rs. 131.87 paise. The tenants allegedly became defaulters of rent with effect from 01.04.1969 and fell in arrears of rent till 31.10.1984 (eviction petition filed on 29.11.1984) to the tune of Rs. 24,659.69 paise. The tenants paid a sum of Rs. 4747.50 paise by way of demand draft dated 28.08.1984 issued by the Union Bank of India but did not clear the outstanding rent liability within two months of written demands. Besides, the tenanted premises are required bonafide by the landlord trust for opening a charitable dispensary and/or library/reading room in furtherance of its activities. So, the landlord trust filed eviction petition under Section 14(1)(a) and Section 22 of the Act against the respondents tenants. Rather, the respondents tenants unauthorisedly sublet, assigned or parted with possession of the tenanted premises to respondents no. 3 and 4 without written consent of the landlord trust, so by way of amendment, the landlord trust added ground under Section 14(1)(b) of the Act in the eviction petition. By way of impugned judgment dated 10.07.2012, the learned Additional Rent Controller dismissed the eviction petition. Hence, the present appeal.

RUKMANI DEVI JAIPURIA CHARITABLE TRUST vs SHRI ANAND KUMAR (RCT Appeal no. 30387/2016) & RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 13 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:55:41 +0530 SHRI ANAND KUMAR vs RUKMANI DEVI JAIPURIA CHARITABLE TRUST (RCT Appeal no. 30448/2016) 2.4 Late Smt. Rukmani Devi Jaipuria being the owner of premises bearing no. V/559,560,661,617 Katra Asharfi, Chandni Chowk, Delhi created a charitable trust namely Rukmani Devi Jaipuria Charitable Trust vide registered Trust Deed dated 26.07.1975, thereby settling and dedicating the said premises for public charitable purposes. The trust came to be recognised as public charitable institution by the income tax authorities. The trust inducted the respondents no. 1 and 2 Shri Anand Kumar and Shri Ajay Kumar as tenants in the premises no. V/560A, Katra Asharfi, Chandni Chowk, Delhi (hereinafter referred to as "the tenanted premises") at a monthly rent of Rs. 135.62 paise. The tenants allegedly became defaulter of rent with effect from 01.04.1972 and fell in arrears of rent till 31.10.1984 (eviction petition filed on 29.11.1984) to the tune of Rs. 20,478.62 paise. By way of demand draft dated 27.08.1984 issued by the South India Bank Limited, the tenants paid a sum of Rs. 4,892.32 paise to the landlord trust but did not clear the outstanding rent liability within two months of written demands. Besides, the tenanted premises are required bonafide by the landlord trust for opening a charitable dispensary and/or library/reading room in furtherance of its activities. So, the landlord trust filed eviction petition under Section 14(1)(a) and Section 22 of the Act against the respondents tenants. Rather, the respondents tenants sublet, assigned or otherwise parted with possession of the subject premises to RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 14 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:55:52 +0530 respondent no. 3 sole proprietorship concern of one Shri Satish Kumar Shorewala without obtaining written consent of the trust. So, by way of amendment the trust added ground under Section 14(1)(b) of the Act as another ground of eviction in the petition. By way of the impugned judgment dated 10.07.2012, the learned Additional Rent Controller dismissed the eviction petition as regards grounds under Section 14(1)(a) and Section 22 of the Act, but allowed the eviction petition as regards ground under Section 14(1)(b) of the Act. Hence, the present two appeals, namely RCT no. 30387/2016 filed by the landlord trust and RCT no. 30448/2016, filed by the tenants and the subtenant.

IMPUGNED ORDERS

3. In the orders, impugned in these appeals filed by the landlord trust, broadly speaking the learned Additional Rent Controller held that the ground under Section 14(1)(a) of the Act stood not proved because no rent demand notice was sent and served upon the respondents tenants before filing the petitions under Section 14(1)(a) of the Act; that the landlord trust failed to prove that at the time of filing the eviction petitions it had been engaged in any activity which could be said to be charitable, so the trust cannot be held to be a public institution and therefore, the petition under Section 22 of the Act was not maintainable; that as regards the tenants Shri Hansraj and Shri Girdhari Lal of RCT No. 30386/2016 and M/s Sobha Singh Sadhu Ram of RCT No. 30388/2016, the RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 15 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:56:05 +0530 landlord trust had failed to establish the alleged sub tenancy; and that however, the landlord trust had successfully proved by preponderance of possibilities that neither of the tenants namely Shri Anand Kumar and Shri Ajay Kumar (appellants of RCT no. 30448/2016) is in physical possession of the tenanted premises and that the tenanted premises are in possession of a third person, namely M/s R.K. & Company, a proprietorship concern of Shri Satish Kumar Shorewala and that the tenants have divested themselves completely of possession of the tenanted premises.

4. It would be apposite to deal with the said three grounds of eviction involved in these appeals separately.

GROUND under section 14(1)(a) of the Delhi Rent Control Act

5. As mentioned above, the learned Additional Rent Controller dismissed the eviction petitions on the ground under Section 14(1)(a) of the Act, holding that the landlord trust had not issued any rent demand notice prior to filing the petitions under Section 14(1)(a) of the Act.

6. On this aspect, learned counsel for the landlord trust took me through the trial court records and contended that since there is no legislatively prescribed format of the rent demand notice under the Act, the demand of outstanding rent can be raised by the landlord through any means and if the tenant commits default, the petition RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 16 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:56:17 +0530 under Section 14(1)(a) of the Act cannot fail. Learned counsel for the landlord trust contended that in the applications Ex. PW1/1214 filed before the competent authority under the Slum Areas (Improvement and Clearance) Act (hereinafter referred to as "the Slums Act"), followed by appeals before the Financial Commissioner, the appellant trust raised specific demands of the outstanding rents but the respondents tenants opted to ignore the same, therefore the petition on the ground under Section 14(1)(a) of the Act deserved to succeed. Further, learned counsel for landlord trust also contended that even during pendency of the eviction petitions, the landlord trust filed applications under Section 15(1) of the Act followed by two applications under Section 15(7) of the Act and those applications also are tantamount to rent demand notice. In support of his arguments learned counsel for landlord trust placed reliance on the judgments in the cases of V. Dhanapal Chettiar vs. Yesodai Ammal, AIR 1979 SC 1745; Rakesh Kumar vs. Hindustan Everest Tool Limited, AIR 1988 SC 976; A.R. Ventures & Others vs. Roop Square Private Limited, 2021(2) RCR(Rent) 276; and Food Corporation of India vs. E. Kutapan, 1993 Rajdhani Law Reporter (NSC) 61.

7. On the other hand, learned counsel for respondents tenants argued that what to say of evidence, the landlord trust did not even plead having issued any notice to any of the respondents tenants as stipulated under Section 14(1)(a) of the Act, so finding of the RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 17 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:56:28 +0530 learned Additional Rent Controller in that regard in the impugned order cannot be unsettled. It was further argued on behalf of respondents tenants that regarding the contention raised during arguments in these appeals that the applications before the competent authority under the Slums Act have to be treated as the rent demand notice also there are absolutely no pleadings of the landlord trust. It was also argued on behalf of respondents tenants that the landlord trust, having admitted in the eviction petition about receipt of money towards rent from the respondents tenants ought to have specifically pleaded as to what was the outstanding balance, instead of vaguely pleading that complete rent was not paid. Learned counsel for respondents tenants also argued that even the documents related to proceedings under Slums Act pertained to certain individuals and not the trust, so the same cannot be treated as notice under Section 14(1)

(a) of the Act. On behalf of respondents tenants, reliance was placed on the judgments in the cases of Mangat Ram vs Sardar Meharban Singh, (1987) 4 SCC 319; and Daulat Ram vs Som Nath, SAO 188/95 of the Hon'ble Delhi High Court decided on 14.10.1980.

8. In rebuttal arguments, learned counsel for the landlord trust reiterated that the issue of demand notice has already been dealt with in the case A.R. Ventures (supra).

9. Thus, the admitted position being that prior to institution of eviction petitions the landlord trust did not issue any rent demand notice as contemplated under Section 14(1)(a) of the Delhi Rent RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 18 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:56:40 +0530 Control Act, the question involved in these appeals is as to whether contents of the proceedings before the competent authority under the Slums Act can be treated as a valid rent demand notice, and if so, whether the same can be so considered even in the absence of specific pleadings to that effect.

10. It is settled principle of interpretation of statutes that no provision of any enactment can be interpreted in a manner which would make any provision of law redundant. If argument of the landlord trust is accepted to the effect that their pleadings before the competent authority under the Slums Act can be read as a rent demand notice, it would make the provision of Section 14(1)(a) of the Act redundant, in the sense that the expression "a notice of demand for arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882" would be rendered otiose. If the legislature in its wisdom considered that the only prerequisite to bring an eviction petition on the ground of nonpayment of rent was a mere information of the rent being outstanding, nothing prevented the legislature from wording the provision in that manner, instead of insisting for service of the rent demand notice, that too in the manner provided in Section 106 of the Transfer of Property Act.

11. It would be absurd to even contend that the pleadings filed before the competent authority under the Slums Act were served RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 19 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:56:53 +0530 on the respondents tenants in the manner provided in Section 106 of the Transfer of Property Act.

12. I have also examined the applications under Section 19 of the Slums Act, exhibited during trial as Ex. PW1/711, which according to the landlord trust can be read as the prerequisite notice. But I find that at the most the relevant portions of the said applications are only in the form of pleadings before the competent authority under the Slums Act that the respondents tenants are in arrears of rent of a particular amount with effect from a particular date and the same have not been paid despite repeated demands. The same cannot be overstretched to be read as "demand" of the outstanding rent, much less the legally recoverable rent, so as to be treated as the prerequisite rent demand notice, stipulated under Section 14(1)(a) of the Act.

13. Even the applications Ex. PW1/1214 filed before the competent authority under the Slums Act, which learned counsel for the landlord trust wants to be read as demand of the outstanding rent, have been examined by me. What is sought in those applications is a direction to the respondents tenants to pay the alleged arrears of rent and the same cannot be treated as a "demand" raised on the respondents tenants to pay rent arrears. But more significantly, those applications Ex. PW1/1214 appear to have been filed in some other case in which the petitioners are Seth Mahavir Prasad Jaipuria & Ors, not the landlord trust. Therefore, even those applications cannot be RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 20 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:57:04 +0530 read as rent demand notice, stipulated under Section 14(1)(a) of the Act.

14. Besides, as reflected from trial court records, vide order dated 07.07.2001, the learned Additional Rent Controller dismissed the applications under Section 15(7) of the Act, observing that according to report of the Civil Nazir, the respondents tenants were regularly depositing the rent in advance.

15. Going a step deeper, it also is not in dispute that in the pleadings or even evidence led before the trial court, there was not even a whisper from the side of the landlord trust, contending that the pleadings before the competent authority under the Slums Act have to be treated as the prepetition notice of rent demand. There is no averment on the trial court record pinpointing the specific document, which, according to the landlord trust, has to be treated as rent demand notice stipulated under Section 14(1)(a) of the Act.

16. In the case of Mangat Ram (supra), the Hon'ble Supreme Court of India dealt with the provision under Section 20 of the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, which stipulates :

"20. Bar of suit for eviction of tenant except on specified grounds ....

(2) A suit for the eviction of the tenant from a building after the determination of his tenancy RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 21 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:57:16 +0530 may be instituted in one or more of the following grounds, namely

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand."

The Hon'ble Supreme Court of India held that according to the plain terms of the Section 20 of the UP Act, no suit for eviction on the ground of default in payment of rent lies unless it is established (a) that the tenant was in arrears of rent for not less than four months, and (b) that he had failed to pay the sum to the landlord within one month from the service upon him of the notice of demand and further held that these two conditions are prerequisite for maintainability of a suit based on ground specified under Section 20(2) of the UP Act. As regards the requirement of rent demand notice, the Hon'ble Supreme Court of India observed thus :

"Furthermore, the second condition of Section 20(2)(a) of the Act is also not complied with. Admittedly, there was no notice in terms of the section i.e. from October 1980 to 1983. The contention of Shri Shanti Bhushan, learned counsel for respondent 1 that the appellants were served with a notice under Section 106 of the Transfer of Property Act 1882 and that it was a composite notice making a demand does not satisfy the requirements of Section 20(2)(a) of the Act. The quit notice served by respondent 1 merely asserted that the rent of the demised premises was due from June 01, 1979. It follows that there being no notice of demand in terms of Section 20(2)(a) of the Act, the suit as framed must fail".

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2022.06.02 14:57:28 +0530

17. In the case of Daulat Ram (supra), the Hon'ble Delhi High Court while dealing with Section 14(1)(a) of the Delhi Rent Control Act held thus :

(11) The words 'the arrears of rent' in the expression "a notice of demand for the arrears of rent" used in this clause mean 'arrears of rent' legally recoverable which are to be paid or tendered by the tenant within two months of the service of a notice of demand. If rent was not legally recoverable on the date of notice of demand, the tenant would not be liable to pay or tender such amount. He is required to pay or tender what was legally recoverable and for which a demand has been made by the landlord by means of a notice. Unless there is demand for legally recoverable rent there is no liability of the tenant to pay or tender to defeat eviction proceedings. In the absence of demand of legally recoverable rent, cause of action for eviction does not accrue to a landlord. Further, there must be failure on the part of tenant to pay or tender the said legally recoverable rent within two months of the service of notice of demand. The expression "rent legally recoverable" means, 'rent' for the recovery of which a suit can be filed. In other words, it means rent recovery of which is not barred by the law of limitation. The cause of action for eviction on the ground of nonpayment of rent thus consists of the following facts :

i)Relationship of landlord and tenant;

ii) Existence of arrears of rent legally recoverable on the date of notice of demand;

iii) Service of notice of demand in the manner provided in Section 106 of the Transfer of Property Act; and

iv) Failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 23 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:57:39 +0530 from him within two months of the date of service of notice".

18. At this stage, it would also be apposite to briefly traverse through the judicial precedents cited on behalf of the landlord trust on the issue of rent demand notice.

18(a). In the case of V. Dhanapal Chettiar (supra), the circumstances were quite different from the present case insofar as the issue involved was necessity of a notice to quit before filing eviction petition under the Tamil Nadu Rent Act on the grounds of bonafide personal necessity and the Hon'ble Supreme Court held that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a surplusage, therefore making out a case under the Rent Act for eviction of the tenant by itself is sufficient and no notice to quit is necessary in order to get an order of eviction. The present case stands on completely different footing insofar as the issue involved in the present case is the notice to demand rent and not the notice to quit. A landlord is entitled to eviction of the tenant under Section 14(1)(a) of the Delhi Rent Control Act only if the landlord is able to establish that the tenant did not clear the legally recoverable rent arrears within two months of service of the rent demand notice.

18(b). In the case of Rakesh Kumar (supra), it is the validity of the notice served on the tenant prior to institution of eviction petition under Section 14(1)(a) of the Act, which was in question. It was not RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 24 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 14:57:52 +0530 a case where prior to institution of the eviction petition, no notice at all was served on the tenant. It is in such circumstances that after reading the notice in question, the Hon'ble Supreme Court came to the conclusion that the tenant was in arrears of rent and there was a demand to pay the same, with the intimation that in default of rent payment, an eviction petition as a consequence would follow. It is in this context that the Hon'ble Supreme Court held that the notices of such type should be read in appropriate logical way in common sense point of view bearing in mind how such notices are understood by ordinary people.

18(c). In the case of A.R. Ventures (supra), the circumstances before the Hon'ble Punjab and Haryana High Court were that in an eviction petition under Section 20 of the Punjab Rent Act, alongwith the written statement the tenant also filed an application seeking rejection of the eviction petition as not maintainable for the reason that the landlord had not given the notice in the prescribed form as required by Section 20(2) of the Punjab Rent Act. The landlord in the eviction petition had pleaded having verbally requested the tenant to pay the rent arrears, but to no avail. The Hon'ble High Court held that the consequence of not giving notice to the tenant in prescribed format may arise at a later stage, but that cannot be a ground for rejection of the eviction petition. That judgment basically deals with rejection of the eviction petition at the threshold for want of rent demand notice in a case where the landlord had pleaded having made verbal demand of rent.

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 25 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:58:02 +0530 18(d). The reference in the case of Food Corporation of India (supra) is of no help insofar as the same is only from notes of cases and not the complete judgment.

19. Therefore, I am unable to find any infirmity in the view taken by the learned Additional Rent Controller in the impugned order that since the landlord trust failed to issue any rent demand notice prior to filing the petitions under Section 14(1)(a) of the Act, the petitions on that ground are liable to fail.

GROUND under section 22 of the Delhi Rent Control Act

20. Learned counsel for the landlord trust contended that the findings arrived at in the impugned orders to the effect that the landlord trust is not engaged in any charitable activity and as such cannot be treated as public institution is not sustainable in view of evidence available on record. Learned counsel for landlord trust took me through evidence on record in support of his contention that the landlord trust is running a homeopathic dispensary at Janpath, New Delhi, a dispensary in Mahalaxmi market in Bhagirath Palace, Delhi and a hospital in Jaipur, so it cannot be said that the landlord trust was not engaged in any charitable activity at the time of institution of the eviction petitions. Learned counsel for appellant trust took me specifically through the income tax records of the landlord trust as well as the agreement Ex.PW1/29 between the trust and the RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 26 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:58:13 +0530 Government of Rajasthan as regards the hospital in Jaipur and contended that the trust is clearly engaged in charitable activity on the basis of no profit no loss.

21. On the other hand, learned counsel for respondents tenants supported the findings recorded in the impugned order to the effect that the landlord trust had failed to prove that it was engaged in any charitable activity at the time of filing the eviction petitions. Learned counsel for respondents tenants argued that the landlord trust failed to even plead the specific charitable activity, allegedly carried out by it, so evidence as regards the alleged running of two dispensaries and one hospital has to be discarded as beyond pleadings. It was also contended on behalf of respondents tenants that even regarding the Jaipur hospital, no money at all was spent by the landlord trust and even otherwise, whatever charitable activity allegedly undertaken by the appellant trust, the same was subsequent to filing of the eviction petitions. Learned counsel for respondents tenants also argued that crossexamination of the solitary witness PW1 examined on behalf of the landlord trust shows that the trust has no serious intentions to ever use the tenanted premises for any charitable activity and there is no bonafide requirement of the trust in that regard.

22. In rebuttal arguments, learned counsel for landlord trust simply reiterated the above recorded arguments.

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23. At this stage, it would be apposite to briefly traverse through the legal position relevant for present purposes. As mentioned above, broadly speaking, the argument of the respondents tenants is that the landlord trust is not a public institution within the meaning of Section 22 of the Act, so not entitled to eviction order on this ground.

24. In the case of Siya Ram Gupta vs Shrimati Ganga Devi Jain Dharmarth Trust, Delhi 1960 SCC Online Punjab 87, the issue before the Punjab & Haryana High Court was related to the respondent trust, which had filed the suits against tenants under Section 17 of the Act of 1952, claiming itself to be a public institution requiring the subject premises for furtherance of its activities. In the said case, the trust was created under a Will executed by one Smt. Ganga Devi Jain in 1935 and parts of the premises forming the trust property occupied by tenants were directed to be used as a Dharamshala for Sadhus and Mahants. The trial court held that the respondent was a public trust and it was a public institution within the meaning of Section 17 of the Act of 1952 and that it required bonafide the subject premises for furtherance of its activities. The Hon'ble Punjab & Haryana High Court examined as to whether a charitable trust is necessarily a public institution within the meaning of Section 17 of the Act, in which while the term is not defined but it is illustrated by the explanation (which is same as in explanation to Section 22 of the Delhi Rent Control Act) and held that a charitable institution of the nature of plaintiff's trust, is not RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 28 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:58:35 +0530 necessarily public institution within the meaning of Section 17 of the Act of 1952. The Punjab & Haryana High Court placed reliance on an earlier judgment of the same High Court in which it was held that if every charitable trust was intended to be within the ambit of Section 17, the legislature would have used that expression instead of using the expression "public institution".

25. In the case of Birdhi Chand Jain Charitable Trust vs Kanhaiya Lal Sham Lal, ILR 1973 Delhi 144, the eviction petition under Section 22 of the Delhi Rent Control Act was dismissed by the Rent Controller and the dismissal was upheld by the Rent Control Tribunal on the ground that the appellant was not a public institution and that the premises were not needed bonafide in furtherance of activities of the public institution and that one of the cotrustees could not bring the eviction petition in the name of the trust. The Hon'ble Delhi High Court examined the nature and scope of the expressions "trust" and "an institution". It was held that a "trust" is primarily a legal concept, a mode of transfer of property and/or holding property, whereas "an institution" is primarily a social concept. Since in the said case, although founders of the trust had transferred their property to a charitable purpose by creating public trust, but the body to translate the trust into a living and active principle had not yet come in existence and the Hon'ble High Court held that it is that body which will be entitled to be called as "an institution". The Hon'ble Delhi High Court observed that if intention of the legislature in Section 22 of the Delhi Rent Control Act was to enable the trustees of RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 29 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:58:47 +0530 every charitable trust to avail themselves of Section 22, then nothing was easier for the legislature than to use the words "charitable trust"

in the place of the words "public institution". Thus, the Hon'ble High Court upheld the views of the Rent Controller and the Rent Control Tribunal to the effect that the Trustees and the Trust are not the public institution. The Hon'ble High Court further held thus :

"The expression "public institution" which originally means an established society or a foundation of a public character has also been at times applied to the building or buildings occupied by such an organization. Neither the organization carrying on the activity nor the building housing the organization carrying on such activities has been shown to exist in the present case. It is only the former owner of the building who are trying to get their purpose served through the facade of a public trust. It cannot be said, therefore, that their need for the premises is bonafide".

26. In the case of Gulab Rai Kishori Lal vs. Banarsidas Chandiwala Sewa Smarak Trust, (1964) ILR 2 Punjab & Haryana 348, the Hon'ble Punjab & Haryana High Court held that in order to attract the provisions of Section 17 of the Delhi and Ajmer Rent Control Act (pari materia to Section 22 of the Delhi Rent Control Act) the petitioner institution must already be a public institution i.e. the petitioner must already be running a hospital or library etc., for extending the scope of which it requires the subject premises; that it must be an existing public institution and not an institution which wants to become a public institution when the ejectment proceedings were instituted.

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 30 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:59:03 +0530

27. In the present case, what is to be seen is as to whether the landlord trust pleaded and successfully established that it is not just a charitable trust, but also a public institution, engaged in activities for the benefit of public at large. For, nature of the landlord trust as a public charitable trust is not in dispute.

28. In its eviction petitions out of which these appeals arose, the landlord trust pleaded simply that late Smt. Rukmani Devi Jaipuria being owner of the subject premises created a charitable trust and dedicated its premises for public charitable purposes; that the landlord trust is recognized by the Income Tax authorities as public charitable institution; and that the tenanted premises are required by the landlord trust for opening a free charitable dispensary and/or a library/reading room. There is not even a whisper in the pleadings of the landlord trust as any regards charitable activity being carried out by the landlord trust at the time of institution of the eviction petitions so as to treat the landlord trust as public institution within the meaning of Section 22 of the Act.

29. However, during evidence and final arguments, going much beyond its pleadings, the landlord trust claimed that the trust has been running a charitable dispensary in Mahalaxmi Market, Bhagirath Place, Delhi; a homeopathic dispensary at Janpath, Delhi; and a charitable hospital at Jaipur. On the basis of these three activities, the landlord trust claimed itself to be public institution and RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 31 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:59:13 +0530 entitled to eviction of the respondents tenants under Section 22 of the Act.

30. During final arguments, learned counsel for landlord trust fairly admitted that there is no reliable evidence on record to establish that the landlord trust has been engaged in running any charitable dispensary at Mahalaxmi Market, Bhagirath Place, Delhi.

31. As regards the homeopathic dispensary at Janpath, allegedly run by the landlord trust, the evidence adduced is not just beyond pleadings but also self contradictory. In his testimony as PW1, the appellant no. 2 deposed that the said dispensary was being run in the morning hours; but the documentary evidence Ex. PW1/R1 mentions the professional charges paid to the doctor on duty in the evening hours. This is a major self contradiction, which could not be explained on behalf of the landlord trust at any stage. Not only this, the landlord trust also failed to adduce any shred of documentary evidence in the form of records to be maintained by such dispensaries, like patient register and accounts etc. Therefore, it is difficult to believe that the landlord trust was ever engaged in running such charitable dispensary at Janpath, Delhi.

32. As regards the charitable hospital, allegedly run by the landlord trust at Jaipur, the agreement dated 05.09.1985 Ex. PW1/29 executed by the Government of Rajasthan would reflect that it was a tripartite agreement between the Government of Rajasthan, M/s Jai RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 32 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:59:26 +0530 Drinks Private Limited and M/s Capstan Meters (India) Limited, and the landlord trust for the purposes of construction of a 100 bed general hospital to be run by the Government of Rajasthan as charitable hospital. According to the said agreement, land for construction of that hospital was gifted and donated by M/s Jai Drinks Private Limited and M/s Capstan Meters (India) Limited and for development of the said land, it is the Jaipur Development Authority which had to step in. Further, according to the said agreement role of the landlord trust was only as a consultant to the architect for designing the hospital, and as member of the Tender Finalization Committee, and name of the hospital was to be Rukmani Devi Jaipuria Hospital with one fourth nominees on the management board to be of the landlord trust. There is no mention in the said agreement that the said hospital was being constructed in furtherance of the objects of the landlord trust. There is nothing on record as regards the actual running and the manner of management of the said hospital and role of the landlord trust in the same. Most importantly, the said agreement Ex. PW1/29, as mentioned above is dated 05.09.1985 whereas the eviction petition was filed by the landlord trust on 28.11.1984. In other words, when the eviction petition was filed, the said hospital in Jaipur was not in existence even on papers.

33. Merely because Income Tax authorities were assessing the landlord trust as a charitable institution, it cannot be said that the landlord trust was actually engaged in any activity, which would RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 33 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 14:59:38 +0530 make it a public institution within the meaning of Section 22 of the Act.

34. Therefore, I am unable to find any infirmity in the view taken by the learned Additional Rent Controller in the impugned orders that the landlord trust failed to prove that at the time of institution of the eviction petitions, it was engaged in any activity that could be said to be charitable, so it cannot be held to be a public institution and consequently, the petitions on the ground under Section 22 of the Act are liable to be dismissed.

GENERAL GROUND of res judicata

35. In addition to the above mentioned arguments on merits, learned counsel for respondents tenants also contended that since the RCT no. 30389/2016 titled 'Rukmani Devi Jaipuria Charitable Trust vs Dawar & Company' was dismissed as withdrawn, findings qua status of the landlord trust as not being a public institution for the purposes of Section 22 of the Act, recorded by learned Additional Rent Controller in the eviction order impugned in that appeal attained finality, so those findings qua Section 22 of the Act would operate as res judicata and cannot be reagitated in these appeals. In support of his arguments on res judicata, the learned counsel for respondents tenants placed reliance on the judicial precedents, discussed hereafter.

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2022.06.02 14:59:52 +0530

36. On the other hand, learned counsel for landlord trust argued that since tenants in the eviction petitions were different persons, the issue of res judicata does not arise. It was argued that the appeal RCT No. 30389/2016 titled 'Rukmani Devi Jaipuria Charitable Trust vs Dawar & Company' was withdrawn because the same had become infructuous, therefore, findings arrived at by the learned Additional Rent Controller in the said case do not fall within the ambit of res judicata.

37. As is obvious from plain reading of Section 11 CPC, the doctrine of res judicata would operate only if the former suit (including appeal, applying the principle that appeal is continuation of suit) and the subsequent suit (including appeal, applying the principle that appeal is continuation of suit) are between the same parties or between parties under whom they or any of them claimed, litigating under the same title. That certainly is not the present case. It is not in dispute that the tenants in all these appeals are different individuals and none of them is litigating as a successor Dawar & Company.

38. Merely because the eviction petitions were consolidated by the learned Additional Rent Controller, findings arrived at in the case for eviction against Dawar & Company cannot be treated as final and binding against or in favour of the eviction respondents of the remaining proceedings. The consolidation of the eviction proceedings vide order dated 08.04.1997 of the learned Additional RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 35 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:00:05 +0530 Rent Controller was only for the sake of convenience in recording evidence. But as mentioned above, despite having consolidated the eviction proceedings, the learned Additional Rent Controller recorded evidence in all the eviction files in a scattered manner in the sense that some witnesses were examined in one file and some in the other and also some of the documentary evidence was exhibited in one file and remaining in the others. Each of the eviction proceedings was adjudicated upon and disposed of by way of separate judgment.

39. It is trite that when a decree on merits is challenged by way of appeal, decision of the trial court loses its character of finality and what was once res judicata becomes res subjudice. Also, it is nobody's case that the appeals other than RCT No. 30389/2016 titled 'Rukmani Devi Jaipuria Charitable Trust vs Dawar & Company' were filed subsequent to the said appeal.

40. Further, as reflected from order dated 19.09.2019 recorded in RCT No. 30389/2016 titled 'Rukmani Devi Jaipuria Charitable Trust vs Dawar & Company' even Shri Choudhary Ranjeet Singh, counsel for one of the respondents tenants of these appeals (who strongly pressed the argument of res judicata) himself submitted before this court that the said appeal had become infructuous, so it could be withdrawn, on which learned counsel for the landlord trust took adjournment to obtain instructions and thereafter withdrew the said appeal. Under these circumstances, it cannot be said that the landlord trust had altogether accepted the RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 36 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:00:16 +0530 findings recorded by the learned Additional Rent Controller in the orders impugned in these appeals and consequently, the present appeals cannot be hit by the doctrine of res judicata.

41. As regards the judicial precedents relied upon by learned counsel for respondents tenants, the same stand on distinguishable footing. In the case of Sheodan Singh vs Smt. Daryao Kunwar, (1966) 3 SCR 300, the issue of Section 11 CPC arose in four suits between same parties and two of the appeals were dismissed by the Hon'ble Delhi High Court, whereas that is not so in the present situation. The Hon'ble Supreme Court of India in the said case referred to a judgment of Hon'ble Orissa High Court reported as AIR 1962 Orissa 141 in which six suits were heard together mainly because an important common issue was involved, though the parties and even the subject property were different; the decision was challenged by way of appeals in all cases except one; and the Hon'ble High Court held that the decision of one suit from which no appeal was taken could not be res judicata in other suits from which appeals were taken.

42. The judgment in the case of Vitthal Yeshwant vs Shikandar Khan, AIR 1963 SC 385 relied upon by learned counsel for respondents tenants is not even relevant as in para 12 of the judgment, the Hon'ble Supreme Court of India specifically held :

"We do not propose to investigate the question whether the High RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 37 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:00:27 +0530 Court's earlier decision that the government's order of 1911 amounted in law to sanctioning a fresh lease operates as res judicata or not....".

43. None of the judicial precedents including the above cited ones, referred to by the learned counsel for respondents tenants is relevant for present purposes as none of the same holds that doctrine of res judicata can be extended even to a situation where parties to the subject proceedings are different.

44. Therefore, I am unable to agree with the argument of learned counsel for respondents tenants that since the appeal RCT No. 30389/2016 titled 'Rukmani Devi Jaipuria Charitable Trust vs Dawar & Company' was dismissed as withdrawn, findings of the learned Additional Rent Controller in the eviction order impugned in that appeal attain finality qua the status of the landlord trust as not being a public institution for the purposes of Section 22 of the Act.

GROUND under section 14(1)(b) of the Delhi Rent Control Act

45. As mentioned above, the eviction petition on the ground under Section 14(1)(b) of the Act was allowed in only one of the eviction proceedings, out of which RCT no. 30448/2016 arose. In one of the eviction petitions out of which RCT no. 30384/2016 arose the ground under Section 14(1)(b) of the Act was not taken. And in the remaining two eviction petitions out of which the remaining of RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 38 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:00:37 +0530 these appeals arose, the petition under Section 14(1)(b) of the Act was dismissed.

46. Learned counsel for landlord trust contended that findings of the learned Additional Rent Controller, assailed in RCT no. 30388/2016 and in RCT no. 30386/2016 are not sustainable since there is ample evidence on record of both trials which clearly establishes unauthorised subletting. It was argued by learned counsel for landlord trust that site plan Ex.PW1/61 clearly shows a staircase leading to the duchhatti, so findings of the learned Additional Rent Controller in the impugned order, out of which RCT no. 30388/2016 arose, that there was no independent access to duchhatti and consequently, no exclusive possession thereof with the respondent no. 2, are not sustainable. Learned counsel for the landlord trust also relied upon the telephone directory Ex.PW1/59 and contended that the same clearly establishes that the tenants Shri Hansraj and Shri Jagdish Kumar had unauthorizedly inducted the respondents no. 3 (M/s Hansraj and Company) and 4 (M/s Jagdish Kumar and Sons) of RCT no. 30386/2016 as subtenants, so it was a clear case of eviction under Section 14(1)(b) of the Act.

47. On the other hand, learned counsel for respondents tenants argued that M/s Hansraj & Company and M/s Jagdish Kumar & Sons are sole proprietorship concerns of the tenants Shri Hansraj and Shri Jagdish Kumar. As regards the directory Ex. PW1/59, learned counsel for respondents tenants argued that the same was not RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 39 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:00:49 +0530 prepared on the instructions of the respondents tenants, as such cannot be relied upon against them.

48. As regards RCT no. 30448/2016 filed by the tenants assailing the impugned order whereby eviction petition against Shri Anand Kumar and Others was allowed under Section 14(1)(b) of the Act, learned counsel for appellants tenants strongly argued that the entire evidence in these cases is a complete hearsay and none of the documents adduced in evidence was proved in accordance with law, despite the objection of mode of proof having been raised at the time when the documents were tendered in evidence. Besides, learned counsel for appellants tenants also tried to establish that the documentary evidence is even a fabricated record. Learned counsel for appellants tenants also argued that the eviction petition under Section 14(1)(b) of the Act was time barred since M/s R.K and Company is in existence since the year 1974 but the ground of subletting was pleaded for the first time by way of amendment in the eviction petition in the year 2008.

49. As regards RCT No. 30388/2016 and RCT no.

30386/2016, in rebuttal learned counsel for landlord trust reiterated his arguments recorded above.

50. As regards RCT no. 30448/2016, learned counsel for landlord trust took me through evidence on record in support of the impugned eviction order and contended that in view of Section 14(4) RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 40 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:01:00 +0530 of the Delhi Rent Control Act, onus was on the appellants tenants to prove that either of them was a partner of M/s R.K. & Company and/or they are brother of Shri Satish Shorewala and on these lines no evidence at all was led by the appellants Anand Kumar and Ajay Kumar, so the impugned eviction order was correctly passed. It was further argued that the appellants Anand Kumar and Ajay Kumar did not even prove that M/s R.K. & Company is a partnership firm.

51. In rebuttal arguments in RCT No. 30448/2016, learned counsel for appellants tenants argued that since M/s R.K. & Company has been operating from the tenanted premises since the year 1974, the eviction petition was time barred. In that regard, learned counsel for appellants tenants placed reliance on the judgments in the cases of Ganpat Ram Sharma vs Gayatri Devi, AIR 1987 SC 2016; A.S. Sulochana vs C. Dharmalingam, AIR 1987 SC 242; and Maheshwar Dayal vs Shanti Devi, 2012 (128) DRJ 334. Learned counsel for appellants tenants placed reliance on the judgment of the Hon'ble Delhi High Court in the case of Hari Narain vs Bela Devi, 51(1993) DLT 375 and argued that adverse inference could not be drawn against the appellants tenants since RW1 had brought the partnership documents during crossexamination but the same were not taken on record.

52. In view of different factual matrices related to the appeals dealing with the issue under Section 14(1)(b) of the Delhi RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 41 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:01:11 +0530 Rent Control Act, it would be appropriate to examine each case separately as follows.

RCT No. 30388/2016 (Rukmani Devi Jaipuria Charitable Trust vs M/s Sobha Singh Sadhu Ram)

53. The factual matrix pleaded by the landlord trust before the Additional Rent Controller was that in or about October 2003, the tenant (the present respondent no. 1) M/s Sobha Singh Sadhu Ram unauthorizedly sublet the duchhatti of the tenanted premises to the present respondent no. 2 M/s Chhabra Triple Five Fashion Pvt. Ltd. In written statement, the present respondent no. 1 denied any subletting in favour of the present respondent no. 2. The present respondent no. 2 filed a short reply before the learned Additional Rent Controller, claiming that it had no concern with the tenanted premises or any duchhatti.

54. RCT No. 30388/2016 assails the order and judgment dated 09.07.2012 of the learned Additional Rent Controller whereby the eviction petition under Section 14(1)(b) of the Delhi Rent Control Act was dismissed, observing that the respondent tenant had denied any subletting; that in the site plan Ex. PW1/61 there is no independent passage depicted as entry in the duchhatti portion, so the said portion could not be sublet independently; that PW1 in cross examination stated that in the year 2007 when he visited the tenanted premises, he found the respondent no. 2 (the alleged subtenant) in RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 42 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:01:22 +0530 possession of the ground floor and the duchhatti was found locked, which is a selfcontradiction.

55. Thus, the site plan Ex. PW1/61 is at the fulcrum of the entire dispute as no other cogent evidence related to the alleged subtenancy was adduced. As mentioned above, the portion of the tenanted premises allegedly sublet by the present respondent no. 1 to the present respondent no. 2 is a duchhatti (an attic), which is a space or room just under the ceiling of a house, which is often used for storage purposes. Until and unless there is a clear evidence of an independent access to the attic, an independent possession thereof cannot be inferred.

56. In order to make out a case for eviction on the grounds of subletting, the landlord has to prove parting away with possession of the tenanted premises or a part thereof in the sense that the alleged subtenant must have acquired possession to the exclusion of the tenant. In the present case, the site plan Ex. PW1/61 clearly shows that there is no independent access to the duchhatti, so the learned Additional Rent Controller correctly arrived at the findings as regards the alleged subletting, since there is no other evidence as regards the same.

57. Therefore, I am unable to find any infirmity in the view taken by the learned Additional Rent Controller in the impugned orders that the landlord trust failed to prove that the tenant M/s Sobha RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 43 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:01:33 +0530 Singh Sadhu Ram had unauthorizedly sublet any part of the tenanted premises to M/s Chhabra Triple Five Fashion Pvt. Ltd.

RCT No. 30386/2016 (Rukmani Devi Jaipuria Charitable Trust vs Hansraj)

58. The factual matrix pleaded by the landlord trust before the learned Additional Rent Controller is that in or around the month of August 2006, the tenants Shri Hansraj and Shri Girdhari Lal unauthorizedly sublet, assigned or otherwise parted with possession of the entire tenanted premises to M/s Hansraj & Company and to M/s Jagdish Kumar & Sons, which are owned by one Jagdish Kumar.

59. However, in the memo of parties to the eviction petition, the said business entities alleged as subtenants were described as Shri Hansraj & Company through its owner Shri Rajender Kumar and Shri Jagdish Kumar & Sons through its owner Shri Rajender Kumar.

60. In written statement, the respondents tenants denied any unauthorized subtenancy and pleaded that the person named Rajender Kumar is a fictitious person; that the said two business entities alleged as substenants are in fact, the firms/ business enterprises of Shri Jagdish Kumar, son of Late Shri Girdhari Lal, the erstwhile tenant.

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61. In the impugned order, the learned Additional Rent Controller held that the appellant trust had failed to establish subtenancy, observing that testimony of PW1, the solitary witness of the appellant was hearsay, so cannot be treated as admissible evidence; and that the directory Ex. PW1/59 clearly mentioned that Shri Jagdish Kumar, son of Shri Girdhari Lal as owner/Director of the said business entities and he is in actual physical possession of the tenanted premises.

62. Admittedly, the landlord trust did not adduce even iota of evidence to establish that the said two business entities namely M/s Hansraj & Company and/or M/s Jagdish Kumar & Sons are corporate entities with independent legal identity. There is also complete darkness as regards existence of the person by the name Rajender Kumar, described as "owner" of the said business entities. So far as the directory Ex. PW1/59 is concerned, merely because it names Shri Jagdish Kumar against the column "Director", it cannot be held that the firm M/s Hansraj & Company is a corporate entity. It is nobody's case that contents of the said Directory were prepared on instructions or with approval of the present respondents tenants. Most importantly, according to the landlord trust, the alleged subletting took place in or around the month of August 2006, whereas the Directory Ex. PW1/59 bears congratulatory messages of the year 2003, which means that either the Directory Ex. PW1/59 is not a reliable piece of evidence or the case of subletting in the year 2006 is not truthful.

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63. Most importantly, there is no evidence at all to establish presence of a third party in the tenanted premises, so as to make out even a prima facie case of subletting.

64. Therefore, I am unable to find any infirmity in the view taken by the learned Additional Rent Controller in the impugned orders that the landlord trust failed to prove that the tenants Shri Hansraj and Shri Girdhari Lal had unauthorizedly sublet the tenanted premises to M/s Hansraj & Company and/or to M/s Jagdish Kumar & Sons.

RCT No. 30448/2016 (Anand Kumar vs Rukmani Devi Jaipuria Charitable Trust)

65. This appeal assails the eviction order under Section 14(1)(b) of the Delhi Rent Control Act. As mentioned above, originally the landlord trust had filed eviction petition only under Section 14(1)(a) and Section 22 of the Act, but subsequently the petition was amended, adding the ground under Section 14(1)(b) of the Act also and ultimately, the eviction petition was allowed only under Section 14(1)(b) of the Act.

66. The factual matrix set up before the learned Additional Rent Controller by the landlord trust, relevant for present purposes was that in or about the month of August 2006, the tenants Shri RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 46 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:02:08 +0530 Anand Kumar and Shri Ajay Kumar unauthorizedly sublet, assigned or parted with possession of the tenanted premises to M/s R.K. & Company, owned by one Shri Satish Kumar Shorewala.

67. In their joint written statement, the appellants tenants Shri Anand Kumar and Shri Ajay Kumar denied having unauthorizedly sublet or assigned or parted with possession of the tenanted premises and pleaded that Shri Satish Kumar Shorewala is their real brother and also one of the partner of M/s R.K. & Company alongwith the appellant no. 2 Shri Ajay Kumar; that originally the appellant no. 1 Shri Anand Kumar also was a partner of M/s R.K. & Company but later he "resigned/retired" and his wife Smt. Sulochana Anand became a partner in the said firm.

68. In the impugned eviction order, the learned Additional Rent Controller held that the appellants tenants having admitted that M/s R.K. & Company and Shri Satish Kumar Shorewala are in possession of the tenanted premises, ought to have adduced evidence to show that the appellants or either of them was also a partner in the said firm, but they failed to do so; that the appellants also failed to adduce any evidence that Shri Satish Kumar Shorewala is their real brother; and that on behalf of present appellant no. 3 M/s R.K. & Company no written statement was filed and the said firm was proceeded exparte, which shows that the appellants no. 1 and 2 have no interest to defend the rights of the appellant no. 3 firm, therefore, RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 47 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:02:23 +0530 the landlord trust was entitled to eviction order under Section 14(1)

(b) of the Act.

69. As regards the argument of learned counsel for appellants that the eviction petition to the extent of ground under Section 14(1)(b) of the Act was time barred since the same was filed through amendment in the year 2007 whereas M/s R.K. & Company is in existence since 1974, suffice it to record that according to the landlord trust, it is in April 2007 only that it came to know about the unauthorized subletting, and there is no evidence at all to show anything to the contrary. Rather, there is not even a whisper in the pleadings or even evidence to the effect that M/s R.K. & Company is in existence since the year 1974. Therefore, I cannot agree with learned counsel for appellants tenants that the eviction petition to the extent of Section 14(1)(b) of the Act was time barred.

70. It is trite that in a case for eviction on the ground under Section 14(1)(b) of the Act, the landlord has to prove only that a third party is in possession of the subject premises and once that is done, the onus shifts to the tenant to establish as to in what capacity the third party is in possession of the subject premises, because it is within the special knowledge of the tenant as to whether the third party found in possession is a relative or employee or mere visitor and not a subtenant.

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2022.06.02 15:02:34 +0530

71. In the case of Munshi Lal vs Smt. Santosh, 2017 (12) SCC 721, while elaborating Section 14(4) of the Act, the Hon'ble Supreme Court of India held thus :

"11. This subsection provides that if a person is allowed to occupy the premises ostensibly as a partner of the tenant but really for the purpose of subletting it, such an arrangement would be deemed to be subletting. Therefore, if the tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of subletting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership. The combined reading of clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sublet, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is retained as a prerequisite even for the purposes of subsection (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore allowed to occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in subsection (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the soninlaw to occupy the premises in pursuance of the Partnership deed.

12. We are satisfied that the respondentstenants have been found to have inducted the soninlaw as a sub tenant for the purpose of doing business under a partnership agreement. The arrangement between Hakim Rai and his soninlaw Raj Kumar was not a casual arrangement wherein the latter was requested to conduct business at the shop because the former was old and infirm. There was no need of entering into a partnership agreement in that case.

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13. We find upon scrutiny of the evidence in this case that the learned Rent Controller was right in coming to the conclusion that the parties had not acted on the partnership which was shown, and that there was a parting of possession of the premises in which the son inlaw was allowed to occupy the premises and carry out business exclusively. There is no evidence on record that the account books were maintained and the profits were shared between the parties as partners. The soninlaw had accepted that he was carrying out a business of sale of merchandise from the shop.

14. It is not possible for us to appreciate the view of the appellate authority that there would be no parting of possession if the alleged subtenant is a close relative like a soninlaw. In this case, the relationship is not like that of a spouse being allowed to carry out a business in the same house. The relationship is of a soninlaw and fatherinlaw who had entered into a partnership agreement.

15. In any case, there was a failure to obtain consent in writing from the appellants which is a clear prerequisite for allowing any person to occupy the premises. In other words, a tenant cannot be allowed to employ a subterfuge and permit another person to occupy the premises by claiming that he is a partner when the real intention is to sublet, without obtaining the consent in writing of the landlord.

72. In the case of Narain Singh vs Shanti Devi, 2010 (6) AD (Delhi), the Hon'ble Delhi High Court held thus :

6. There is no dispute about the fact that if a tenant retains legal possession and he merely engages someone to work for him and assist him in the business, it would not be a case of sub tenancy. In all cases where allegations of subtenancy are made the facts of each case are to be considered by ARC to arrive at a RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 50 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:02:54 +0530 conclusion whether the possession of the person alleged to be a subtenant was that of a subtenant or of a business partner and there can be no straightjacket formula. This conclusion has to be arrived at by the learned ARC by weighing the entire evidence produced by the parties.

Section 14 (4) of DRC Act makes it abundantly clear that where the premises have been let out for the purpose of business or profession, it shall be deemed to have been sublet by the tenant, if the Controller is satisfied that the tenant, without obtaining consent in writing of the landlord has allowed any other person to occupy whole or a part of the premises ostensibly on the ground that such person was partner of the tenant in the business or profession but in reality he was a subtenant. Thus, the onus of proving that the man was a partner and not a sub tenant in such cases lies heavily on the tenant.

7. A partnership firm is a joint business entity. In a partnership firm or business, the partners are liable for profits and loss in definite proportion as agreed between them. It may be that one is a sleeping partner and the other is a working partner but the very essence of a partnership is division of profits and loss, if not division of work. This division of profits and loss can be there only if proper partnership accounts are maintained and at the end of year accounting is done and it is found out as to how much was the loss and profit, how it is to be apportioned. Unless and until this apportionment of loss and profits is proved by cogent evidence by the tenant in the Court for the years when the subtenancy is alleged, no partnership can be believed by the Court. Mere oral testimony of partnership or preparation of documents of partnership would not suffice to dispel the onus cast by Section 14(4) of DRC Act on the tenant, where it is found that another person was in occupation of the premises".

73. In the present case, I find substance in the argument of learned counsel for appellants tenants that the documents Ex.

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2022.06.02 15:03:06 +0530 PW1/53, Ex. PW1/56 and Ex. PW1/57 are not reliable pieces of evidence as despite the timely objection of mode of proof, none of these documents were proved in accordance with law by the landlord trust and the same do not inspire confidence. But more significant is that the appellants tenants themselves admitted in their pleadings as well as cross examination of RW1 that M/s R.K. & Company is a firm belonging to Shri Satish Kumar Shorewala and is operating from the tenanted premises.

74. The appellants tenants themselves having admitted presence of the third party M/s R.K. & Company in the tenanted premises, onus of proof rested upon the appellants tenants to prove that M/s R.K. & Company was a partnership firm of the appellants or either of them and that Shri Satish Kumar Shorewala was their real brother. But no such evidence was adduced during trial by the appellants tenants. Even partnership deed of M/s R.K. & Company was not placed on record by the appellants tenants. Rather, before the learned Additional Rent Controller even written statement on behalf of M/s R.K. & Company was not filed and M/s R.K. & Company was proceeded exparte though the appellants no. 1 and 2 continued to contest the eviction proceedings and that in itself lends credence to the claim of the landlord trust that appellants no. 1 and 2 have no stakes in M/s R.K & Company.

75. There is another aspect. Section 14(4) of the Delhi Rent Control Act stipulates that for the purposes of Section 14(1)(b) of the RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 52 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:03:16 +0530 Act, any premises which have been let for the purposes of business or profession shall be deemed to have been sublet if the Controller is satisfied that the tenant without obtaining the written consent of the landlord has allowed any person to occupy the whole or any part of the tenanted premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of subletting such premises to that person. Admittedly in the present case, the tenanted premises were let out for commercial purposes. And as mentioned above, there is no evidence to show that the tenants Shri Anand Kumar and Shri Ajay Kumar or either of them was a partner of M/s R.K. & Company which is admittedly operating from the tenanted premises.

76. Therefore, I am unable to find any infirmity in the view taken by the learned Additional Rent Controller in the impugned orders that the landlord trust successfully proved that the tenants Shri Anand Kumar and Shri Ajay Kumar had unauthorizedly sublet, assigned or parted with possession of the tenanted premises to M/s R.K. & Company and consequently the eviction petition under Section 14(1)(b) of the Act is entitled to succeed.

APPLICATION UNDER ORDER XLI RULE 27 CPC

77. In the appeal RCT No. 30448/2016 titled 'Shri Anand Kumar & Ors. vs Rukmani Devi Jaipuria Charitable Trust', the appellants tenants also filed an application dated 07.12.2021 under RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 53 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:03:26 +0530 Order XLI Rule 27 CPC, which was opposed by the landlord trust by way of detailed reply followed by a rejoinder of the appellants. Arguments on the said application also were advanced by both sides alongwith the final arguments.

78. By way of the application under consideration, the appellants tenants seek only to place on record certain additional documents, to be read as evidence. With the help of those additional documents, the appellants tenants seek to establish that the partnership firm M/s R.K & Company always had both or either of the tenants as its partners alongwith their brother Shri Satish Kumar Shorewala. The said additional documents are listed in para 6 of the application under consideration.

79. During arguments on the application under consideration, learned counsel for the appellants tenants contended that the additional documents in question were earlier not filed because counsel for the landlord trust while examining RW1 did not ask the witness to file the same. As regards relevance of the additional documents, learned counsel for appellants tenants reiterated that the same would prove that M/s R.K. & Company is in existence since 1974, so the ground under Section 14(1)(b) of the Act was time barred; and that the additional documents would establish that the appellants tenants and/or either of them remained a partner in M/s R.K. & Company.

RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 54 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:03:38 +0530

80. On the other hand, learned counsel for the landlord trust strongly opposed the application on the ground that there are no pleadings of the facts which are sought to be established through the additional documents and that there is no explanation for failure to file and prove the said additional documents during trial. It was also argued by learned counsel for the landlord trust that none of the documents enlisted in para 6 of the application would show that the landlord trust had knowledge of existence of M/s R.K. & Company in the year 1974, so recording of additional evidence would unnecessarily protract the proceedings. Learned counsel for the landlord trust referred to the provisions under Order XLI Rule 27 (aa) and (b) CPC and judgment of Hon'ble Supreme Court of India in the case of Union of India vs Ibrahim Uddin, 2012(8) SCC 148.

81. The provision under Section XLI Rule 27 CPC read in its entirety would leave no doubt that neither of the parties to an appeal has a right to adduce additional evidence and that wherever additional evidence is allowed by the appellate court to be adduced, the court has to record reasons for its admission. In other words, permission to adduce additional evidence at appellate stage is an exceptional exercise. The exceptional circumstances in which a party to an appeal can be allowed to adduce additional evidence have been stipulated as clauses (a), (aa) and (b) of subrule (1) of Rule 27 in Order XLI. Those exceptional circumstances are that where the trial court had refused to admit evidence which ought to have been admitted; that where the applicant establishes that notwithstanding RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 55 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:03:47 +0530 the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or that the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

82. It is nobody's case that the trial court of learned Additional Rent Controller refused to admit any evidence that ought to have been admitted. As such, case of the appellants tenants does not fall under clause (a) of subrule (1) of Rule 27 in Order XLI CPC. Therefore, application of the appellants tenants has to be tested on the anvil of clauses (aa) and (b) of Rule 27 (1) in Order XLI CPC.

83. In the case of Ibrahim Uddin (supra), the Hon'ble Supreme Court of India held thus :

"25. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 56 of 61 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2022.06.02 15:03:59 +0530 discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).

26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).

27. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ].

28. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non production of the evidence in the trial court, additional evidence should RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 57 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:04:10 +0530 not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).

29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

30. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment".

84. Falling back to the present case, as mentioned above, there is not even a whisper in the form of foundational pleadings that M/s R.K. & Company is in existence since the year 1974 and/or that the landlord trust was aware of this fact since 1974. In contrast, the landlord trust had specifically pleaded in its amendment application filed in the year 2007 that according to its information, M/s R.K. & Company was unauthorizedly inducted as subtenant in the tenanted premises in or about the month of August 2006. In written statement RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 58 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:04:22 +0530 to the amended petition, the appellants tenants specifically pleaded that M/s R.K. & Company is a partnership firm in which either or both of them were partners alongwith their brother Shri Satish Kumar Shorewala. Despite such clear and unambiguous pleadings of both sides, the appellants tenants did not adduce the requisite evidence before the learned Additional Rent Controller at the stage of trial and no reason for such failure has been advanced.

85. The appellants tenants having admitted in the written statement that it is the appellants Shri Anand Kumar and Shri Ajay Kumar who had been inducted as tenants in the subject premises and also having admitted in the written statement that it is M/s R.K. & Company, a partnership firm which is running its business from the tenanted premises, the appellants tenants ought to have led evidence during trial itself to establish that they were partners of the said firm alongwith their brother Shri Satish Kumar Shorewala. But no such evidence was led during the trial.

86. Not only this, despite a clear line of cross examination of RW1 the tenant Shri Ajay Kumar who stated that he had not brought partnership deed of M/s R.K. & Company and other documents, the appellants tenants opted to stay silent. Rather, in cross examination, RW1 even stated that he had brought the Income Tax Assessment Order and the original Bank Certificate, but neither he placed the same on record in the course of crossexamination nor adduced further evidence to prove those documents. It was certainly RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 59 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:04:33 +0530 a case of complete absence of diligence on the part of the appellants tenants, for which there is no explanation advanced at all. Therefore, I find no case for the appellants tenants under Clause (aa) of Rule 27(1) in Order XLI CPC.

87. As regards the scope of Order XLI Rule 27 (1)(b) CPC, this court does not find it not able to pronounce judgment in the absence of any additional evidence as sought to be adduced, especially because as mentioned above, the foundational pleadings were not set up by the appellants tenants.

88. Therefore, I am unable to find any merit in the application dated 07.12.2021 under Order XLI Rule 27 CPC filed by the appellants tenants in RCT No. 30448/2016. The said application dated 07.12.2021 is dismissed.

CONCLUSION

89. In view of above discussion, the orders of learned Additional Rent Controller, impugned in these five appeals are upheld and all five appeals named above as well as the application dated 07.12.2021 filed by appellants tenants in RCT No. 30448/2016 are dismissed.

90. Trial court records of all these appeals as well as of RCT No. 30389/2016 be sent back alongwith copies of this common RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 60 of 61 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:

2022.06.02 15:04:42 +0530 judgment to the trial court. All appeals files be consigned to records leaving the parties to bear their own costs.

                                                                 Digitally signed
                                                                 by GIRISH
                                                    GIRISH
Announced in the open court on                      KATHPALIA
                                                                 KATHPALIA
                                                                 Date: 2022.06.02
this 31st day of May, 2022                                       15:04:55 +0530
                                                       (GIRISH KATHPALIA)

Principal District & Sessions Judge (HQs) Rent Control Tribunal (Central) Tis Hazari Courts, Delhi RCT No. 30384/2016, RCT No. 30388/2016, RCT No. 30386/2016, RCT No. 30387/2016, RCT No. 30448/2016 Page 61 of 61 pages

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