Delhi High Court
M/S T.P. Pall vs S. Harisimran Singh & Another on 1 December, 2011
Author: Indermeet Kaur
Bench: Indermeet Kaur
I-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 01.12.2011
+ CM (M) No. 1381/2007 & CM No. 13908/2007
M/S T.P. PALL
........... Petitioner
Through: Mr.Sanjiv Bahl, Advocate.
Versus
S. HARISIMRAN SINGH & ANOTHER
..........Respondents
Through: Mr. Riju Raj Jamwal, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Order impugned before this Court is the order dated 20.08.2007 vide which the learned Additional Rent Control Tribunal (ARCT) had directed that the eviction petition filed by the landlord under Section 14 (1)(b) read with Section 14 (1)(j) of the Delhi Rent Control Act (DRCA) be remanded back to the Additional Rent Controller (ARC) with a direction to the ARC to record evidence of the respondent/tenant to establish that as to whether he is still in physical possession and control of the suit CM (M) No. 1381/2007 Page 1 of 5 property with liberty to the landlord to lead evidence in rebuttal. This order remanding the case back to the trial court is the subject matter of challenge in the present petition. 2 Record shows that an eviction petition had been filed under Section 14 (1)(b) read with Section 14 (1)(j) of the DRCA. The case set up by the landlord was that the premises in dispute comprise of two portions i.e. half of which had been let out to Roop Chand Jewellers and second half in the tenancy of T.P. Pall; contention being that T.P. Pall had sub-let his portion of the premises to Roop Chand Jewellers and Roop Chand Jewellers is alone in occupation of the suit property and T.P. Pall had divested himself from the suit property; a case of sub-letting is made out. 3 Evidence had been led before the ARC. AW-1 was the landlord; in his cross-examination he has made certain categorical admissions which have been correctly appreciated by the ARC; they were to the effect that T.P. Pall is continuing to pay rent of his portion till date through cheque; the cheque in respect of other portion let out to Kriplani (Roop Chand Jewellers) is issued by them; the respondent (T.P. Pall) is carrying on the business in his name and style in his own portion; electricity connection in CM (M) No. 1381/2007 Page 2 of 5 this portion and bills of electricity are also being issued in the name of T.P. Pall.
4 In this background, the learned ARC had recorded the fact finding that no case of sub-letting which has been made out; he had accordingly dismissed the eviction petition under Section 14 (1)(b) of the DRCA; no ground had been made out under Section 14 (1)(j) also which is even otherwise not the controversy before any Court.
5 The RCT in an appeal under Section 38 of the DRCA which appeal has be to heard only on a question of law had gone into the evidence recorded before the ARC and had remanded the matter back to the ARC holding that it was for the tenant to prove as to whether he was in possession of the premises or not. 6 The law of sub-letting as contained under Section 14 (1)(b) of the DRCA places only an initial burden upon the landlord to make out a case of the exclusive possession of the suit premises with the sub-tenant; onus then shifts upon the tenant to prove that it is not a case of sub-letting. In the present case, the findings of fact have correctly been recorded by the ARC and there was no reason as to why the order of remand had been passed by the CM (M) No. 1381/2007 Page 3 of 5 RCT; even before this Court AW-1 is not wriggling out of his aforenoted admitted admissions made in his cross-examination. 7 In 134 (2006) DLT 369 Manbhari Devi Vs. Jaimat Rai Ashwani Kumar & Another where the RCT had upset the finding of fact recorded by the ARC which hearing before the ARCT was to be on a question of law under Section 38 of the DRCA, the said finding was set aside. The Tribunal under Section 38 of the DRCA is not a court of appeal on facts when there is no patent illegality in the said fact finding.
8 In (1999) 1 SCC 298 Thatchara Brothers and Another Vs. M.K. Marymol and Others where the matter had been remanded back by the High Court to the trial Court for recording further evidence, the Apex Court had noted that if further evidence was not required, the order of remand was liable to be set aside. 9 In the instant case, in view of clear and categorical evidence which has come on record and specifically the cross-examination of AW-1 wherein he has himself admitted that the tenant i.e. T.P. Pall continues to be in occupation of the suit premises; he continuing to pay rent of his portion of the premises; electricity bills continue to be issued in his name and he is still retaining CM (M) No. 1381/2007 Page 4 of 5 possession of the suit premises, the question of sub-letting does not arise.
10 In these circumstances, the order of the ARC dismissing the eviction petition is up-held and the order of remand passed by the RCT for recording fresh evidence is set aside. Petition disposed of.
INDERMEET KAUR, J DECEMBER 01, 2011 A CM (M) No. 1381/2007 Page 5 of 5