Delhi District Court
E.No: 9/08 vs Sh.Parvinder Singh on 30 November, 2011
IN THE COURT OF SH. VIKAS DHULL : SENIOR CIVIL JUDGE CUM
RENT CONTROLLER,
DWARKA COURTS, NEW DELHI
E.No: 9/08
Sh.Jasbir Singh Loyal
S/o late Sh.Joginder Singh Loyal
R/o II/40/14, Sadar Bazar, Delhi Cantt.
Delhi--110010.
... Petitioner
Versus
1. Sh.Parvinder Singh
S/o late Sh.Mohinder Singh
II/40/1A, Dalip Singh Building
Sadar Bazar, Delhi Cantt., Delhi
2. Sh.Gurmeet Singh
Shop No. II/40/1A, Dalip Singh Building
Sadar Bazar, Delhi Cantt., Delhi.
... Respondents
Date of institution of petition : 02.12.2008
Date on which judgment reserved : 18.11.2011
Date on which judgment pronounced : 30.11.2011
JUDGMENT
1. This is a petition for eviction filed by petitioner u/s 14(1)(a) and (b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act). It is averred in the petition that one shop bearing no.II/40/1-A, Dalip Singh Block, Sadar Bazar, Delhi Cantt., New Delhi (hereinafter E.09/08 1/31 referred to as tenanted shop) was let out for commercial purpose to respondent no.1 through an oral agreement by the previous Karta and Manager of M/s.Dalip Singh (HUF) Sh.Joginder Singh Loyal at a monthly rent of Rs.430/-p.m. The petitioner is seeking eviction of respondent no.1/tenant on two grounds i.e.on the ground of subletting and non-payment of rent.
2. On the ground of subletting, it is alleged in the petition that respondent no.1 has permanently migrated to America about 15-16 years back after subletting the tenanted shop to respondent no.2. It is further alleged that respondent no.2 is in continuous and uninterrupted possession of tenanted shop which is being run under the name and style of M/s.Fancy Jewellers without the written consent and permission of the petitioner. It is also alleged that respondent no.2 is in exclusive possession and opens the lock and also closes the shop.
3. On the ground of non-payment of rent , it is alleged that respondent no.1/tenant had not paid the rent of the tenanted shop from May, 2007 till September, 2007 @ Rs.430/-per month. It is further alleged that a demand notice dated 21.07.2008 was sent through registered AD and UPC but despite service of statutory notice, arrears of rent of Rs. 2150/-has not been cleared despite lapse of two months from the date of service. Accordingly, it was prayed that eviction order be passed against the respondent/tenant with regard to tenanted shop.
E.09/08 2/314. Respondent no.1 is only contesting the eviction petition as respondent no.2 despite being served did not appear and accordingly, he was proceeded exparte vide order dated 30.09.2010.
5. In the written statement filed by respondent no.1, a preliminary objection was taken with regard to maintainability of present eviction petition on the ground that petitioner has no locus standi to file the present eviction petition. It was submitted that landlord of the premises is Dalip Singh (HUF) and its Karta is Kuldeep Singh Loyal. It was further submitted that since landlord is the HUF, therefore, petition can only be filed through its Karta and Manager. It was further submitted that Sh.Kuldeep Singh Loyal has claimed himself to be the Karta and Manager of Dalip Singh (HUF) and even rent has been claimed by him which respondent has paid till date.
6. Secondly, maintainability of petition was challenged on the ground that petitioner alone cannot maintain the present eviction petition without impleading other co-owners of tenanted property. It was further submitted that in the light of non-joinder of co-owners, petition is bad for non-joinder of necessary and proper parties.
7. Thirdly, maintainability of petition u/s 14(1)(a) of the DRC Act was challenged on the ground that notice of demand was issued E.09/08 3/31 incorrectly and malafidely to Sh. Parminder Singh and not to the respondent/tenant. It was further submitted that Smt.Harjit Kaur has made demand of arrears of rent but she is not a party to the present petition and petitioner has never made any demand for arrears of rent. It was further submitted that even notice sent to respondent no.1 was sent at incorrect address. Therefore, it was incapable of being complied with.
8. Fourthly, maintainability of petition u/s 14(1)(a) of the DRC Act was challenged on the ground that entire rent stood paid upto date to Sh.Kuldeep Singh Loyal, Karta and Manager of Dalip Singh (HUF).
9. Fifthly, the maintainability of petition u/s 14(1)(b) of the DRC Act was challenged on the ground that there is no subletting or parting with possession. It was submitted that tenanted shop was let out to late Sh.Mohinder Singh, father of respondent no.1, who was doing business in partnership under the name and style of M/s.Fancy Jewellers with respondent no.1. After the death of father of respondent no.1, mother of respondent no.1 i.e. Smt.Harbans Kaur was inducted as partner and the said business is continuing. Respondent no.2 being the son in law of Smt.Harbans Kaur is representing the mother of respondent no.1 in the said business. The respondent no.2 has nothing to do with the said business in any manner whatsoever. It is further submitted that respondent no.1 and E.09/08 4/31 Smt.Harbans Kaur are paying water and electricity charges and are assessed to income tax.
10.Lastly, the maintainability of the petition was challenged on the ground of mis-joinder and non-joinder of proper parties. It was further submitted that Sh.Gurmeet Singh is neither proper nor necessary party whereas legal heirs of late Sh.Mohinder Singh are necessary parties as tenancy has devolved upon them on his death.
11.On merits, it was denied that only respondent no.1 is the tenant. It was further submitted that legal heirs of late Sh.Mohinder Singh are also the tenants of the tenanted shop. It was denied that respondent no.1 has permanently migrated to America and has settled there after letting the tenanted shop to Sh.Gurmeet Singh, respondent no.2, without the consent of the landlord, who is running the tenanted shop under the name and style of M/s.Fancy Jewellers. It was further submitted that Sh.Gurmeet Singh, being the brother in law of respondent no.1, has been looking after the interests of Smt.Harbans Kaur, who is a partner with respondent no.1. It was denied that respondent no.1 has sublet the tenanted shop to respondent no.2. It was denied that tenanted shop was let out to respondent no. 1. It was further submitted that it was let out to father of respondent no.1 who unfortunately died in October, 1994 and thereafter tenancy had devolved upon respondent no.1 and his mother Smt.Harbans Kaur.
E.09/08 5/31However, late Sh.Joginder Singh Loyal had been issuing rent receipts in favour of respondent no.1 as rent was being tendered by him. It was denied that respondent no.2 is in exclusive possession and opens the lock and closes the tenanted shop. It was denied that respondent no.1 has not paid rent of the tenanted shop from May, 2007 till September, 2007 @ Rs.430/-per month. It was denied that respondent no.1 was served with the legal notice demanding arrears of rent. It was submitted that rent for the period from May, 2007 till September, 2007 was collected by Sh.Joginder Singh Loyal personally but rent receipts were not issued by him on the ground that he has to submit accounts in the court and rent receipts will be issued in the month of January, 2008 but unfortunately he died in December, 2007 before the issuance of rent receipts. It is further submitted that rent from January, 2008 till 31.12.2008 has been paid to Sh.Kuldeep Singh Loyal against receipt, who is the karta and manager of Dalip Singh (HUF). Accordingly, a prayer was made to dismiss the petition.
12.In the rejoinder filed by petitioner, it was denied that M/s.Dalip Singh (HUF) is existing and is governed by its karta and manager Sh.Kuldeep Singh Loyal. It was further submitted that issue with regard to existence of Dalip Singh (HUF) has already been dealt with by this court while deciding the amendment application in the present petition. It was further submitted that Dalip Singh (HUF) is no more in existence. It was denied that without impleading other co-owners, the E.09/08 6/31 present petition is not maintainable. It was further submitted that sole co-owner can maintain eviction petition without impleading other co- owners of the property. It was submitted that rent tendered by respondent/tenant to Sh.Kuldeep Singh Loyal is not a valid tender as his tenancy stood terminated by the then karta and manager late Sh.Joginder Singh Loyal. It was denied that tenanted shop was let out to father of respondent no.1 and mother of respondent no.1 became partner in the said business. It was again reiterated that respondent no.2 was in exclusive possession of tenanted shop and was doing the business of jewellary items. It was further submitted that respondent no.2 was running the business from the shop and while doing his business, he came under heavy debt from various banks who had also obtained decree of Rs.1,35,000/-against respondent no.2. Remaining averments of the written statement were denied and those stated in the petition were reiterated.
13.After the completion of pleadings of parties, the matter was posted for petitioner's evidence. Petitioner has examined himself as PW1 and has also examined Sh. Manoj Kumar Shah, ahlmad from the court of Ms.Sangeeta Dhingra Sehgal, Ld.ADJ, Tis Hazari Courts, Delhi as PW2. No other witness was examined by the petitioner. Accordingly, his evidence was closed.
14.Thereafter, the matter was posted for respondent's evidence.
E.09/08 7/31Respondent has examined himself as DW1. Respondent has also examined Sh.Atul Kharbanda as RW2 to prove the issuance of notice dated 27.04.2008 Ex.DW1/4 on behalf of Sh.Kuldeep Singh Loyal demanding rent from the respondent/tenant. RW3 Sh.Lajpat Rai from Delhi Cantonment Board has proved that in the records of Delhi Cantonment Board, respondent is shown as tenant of the tenanted shop and water and conservancy tax is also being paid by him. RW4 Sh.Mahinder Kumar from NDPL, Inderpuri, New Delhi has proved that electricity connection in the tenanted shop was installed in the year 1993 for commercial purpose in the name of Sh.Mohinder Singh and Parvinder Singh. RW5 Sh.Kuldeep Singh has deposed on oath that the tenanted shop is still in the possession of respondent/tenant. RW6 Sh.Bachi Singh has only proved the application u/s 151 CPC filed by petitioner before the court of Ld.ADJ, Tis Hazari Courts, Delhi which is Ex.PW2/C. RW7 Sh.Arvind Kumar from post office, Tis Hazari, Delhi has proved on record that pin code no.110006 pertains to Delhi GPO covering the area of Sadar Bazar, Chandni Chowk, Baratuti and Chawri Bazar. No other witness was examined by the respondent. Accordingly, respondent's evidence was closed. Thereafter the matter was posted for final arguments.
15.I have heard Sh.Mani Mishra, counsel for petitioner and Ms.Renu Gupta, counsel for respondent no.1/tenant. I have also carefully perused the written arguments filed on behalf of respondent no.
E.09/08 8/311/tenant and judgments relied upon by respective counsels. I have also carefully perused the material available on record.
16.First, I will take up the ground of eviction sought by petitioner on the basis of non-payment of rent u/s 14(1)(a) of the DRC Act. For making out a case for eviction u/s 14(1)(a) of the DRC Act, the petitioner has to prove the following ingredients:--
A. Existence of relationship of landlord and tenant B. Existence of arrears of rent legally recoverable on the date of service of notice of demand C. Service of notice of demand and consequent failure of respondent/tenant to tender the legally recoverable arrears of rent within two months from the date of service of demand notice.
17. A. Existence of relationship of landlord and tenant In the present case, it is an admitted position between the parties that tenancy of respondent no.1 was created by Dalip Singh (HUF) through its karta and manager Sh.Joginder Singh Loyal. It is also an admitted position that late Sh.Joginder Singh Loyal, karta and manager of Dalip Singh (HUF) has expired in December, 2007. It is also not in dispute between the parties that a suit for partition has been filed by one of the co-parcener of Dalip Singh (HUF) i.e. Sh.Johny Loyal which is still pending in the Tis Hazari Courts, Delhi.
E.09/08 9/31In the light of admitted facts as mentioned above, following questions arise for consideration a) whether Dalip Singh (HUF) is still in existence or not? b) Whether Sh.Kuldeep Singh Loyal has right to represent as karta and manager of Dalip Singh (HUF) or not? and c) whether suit filed by petitioner claiming himself to be the co-owner of the tenanted shop is maintainable or not? The answer to all these questions lies in the various judgments of the Hon'ble Supreme Court of India discussed hereinbelow. In Raghavamma v. Chenchamma, AIR 1964 SC 136, it was held by the Hon'ble Supreme Court of India that a joint family status comes to an end the moment a co-parcenor of the joint family shows his intention to sever from the joint family. It was further held that intention to sever can manifest in various ways like issuance of notice or by filing a suit. In another judgment of the Hon'ble Supreme Court of India reported as Kalyani (dead) by L.Rs. V Narayanan and Ors., AIR 1980 SC 1173, it was held that once a disruption of joint family status takes place, co-parceners cease to hold the property as joint tenants i.e. as co-sharers but they hold as tenants-in-common i.e. as co-owners.
18.Since in the present case, filing of suit for partition by Sh.Johny Loyal, one of the co-parcener of Dalip Singh (HUF) is not in dispute, therefore, status of M/s.Dalip Singh (HUF) has come to an end and each co-parcener has become a co-owner of the Joint Hindu Family property. It is also not in dispute that petitioner Sh.Jasbir Singh Loyal E.09/08 10/31 was one of the co-parcener of Dalip Singh (HUF). Therefore, once disruption in the Joint Family status takes place by filing a suit for partition, petitioner has also become a co-owner of the tenanted shop.
19. It has been further held by the Hon'ble Supreme Court of India in Sh.Ram Pasricha V Jagannath & Ors, AIR 1976 SC 2235 and Sh. Pal Singh V Sh.Sunder Singh (dead) by Lrs and Ors., 1989 (16) DRJ that a co-owner is as much owner of the property as any sole owner and as such co-owner is entitled to seek eviction without impleading other co-owners.
20.In the light of aforesaid judgments, the suit filed by petitioner for eviction of respondent/tenant without impleading other co-owners is maintainable. The petition filed by petitioner is also maintainable without impleading other co-owners in the light of aforementioned judgment of the Hon'ble Supreme Court of India. Further Sh.Kuldeep Singh Loyal cannot act as karta and manager of Dalip Singh (HUF) as it is no longer in existence once disruption of its status has come into existence by filing of partition suit by one of the co-parcener i.e. Sh.Johny Loyal. Hence, it is proved on record that there exists relationship of landlord and tenant between the petitioner and respondent no.1 and he is competent to file the present eviction petition.
E.09/08 11/3121. B. Existence of arrears of rent legally recoverable on the date of service of notice of demand The onus to prove existence of arrears of rent was upon the petitioner. PW1 Sh.Jasbir Singh Loyal has deposed in his affidavit that in the legal notice dated 21.07.2008 Ex.PW1/9, demand for arrears of rent was made but respondent no.1 did not comply with the same. The legal notice dated 21.07.2008 Ex.PW1/9 states that respondent no.1 is in arrears of rent @ Rs.430/-per month from May, 2007 till September, 2007 i.e.total arrears of rent of Rs.2150/-. In the entire cross examination of PW1, no suggestion has been given by respondent/tenant either regarding there being no arrears of rent from May, 2007 till September, 2007 or the arrears of rent had been tendered to the petitioner or to any other co-owner. Further, PW1 has deposed in his cross examination that during the life time of his father, Sh.Joginder Singh Loyal, respondent no.1 had stopped paying rent and even this deposition was not challenged by the respondent/tenant. Therefore, the fact regarding existence of arrears of rent from May, 2007 till September, 2007 stands admitted by respondent no.1 and hence proved by the petitioner.
22.Even the evidence led on record by respondent no.1 proves the existence of arrears of rent from May, 2007 till September, 2007. Although in the written statement, respondent no.1 has pleaded that he had paid arrears of rent from May, 2007 till September, 2007 to E.09/08 12/31 Sh.Joginder Singh Loyal personally for which no rent receipts were issued to him but in his evidence by chief, RW1 i.e.respondent/tenant has not deposed anything with regard to tendering of rent to Sh.Joginder Singh Loyal the then karta and manager of Dalip Singh (HUF) for the period from May, 2007 till September, 2007. Only in the cross examination, RW1 has deposed on oath that he has paid rent from May, 2007 till September, 2007 to Sh.Joginder Singh Loyal. This deposition made by RW1 in his cross examination is not believable firstly because no suggestion to this effect has been given to petitioner PW1 Sh.Jasbir Singh in his cross examination. Secondly, it has come on record that during the period from 2002 till 2009, RW1/respondent/tenant was not in India. The respondent/tenant has not clarified as to how he tendered rent to Sh.Joginder Singh Loyal in 2007 when he himself was not in India. Therefore, the question of his tendering rent to Sh.Joginder Singh Loyal in 2007 for the period from May, 2007 till September, 2007 does not arise. The plea of respondent/tenant that late Sh.Joginder Singh Loyal had not issued rent receipts for the period from May, 2007 till September, 2007 is not believable as respondent/tenant has himself filed on record rent receipts issued by Sh.Joginder Singh Loyal which are Ex.PW1/D1 to Ex.PW1/D3. This further proves that rent receipts were being issued to respondent/tenant by late Sh.Joginder Singh Loyal as and when rent was tendered by him and since respondent/tenant did not tender rent from May, 2007 till September, 2007, therefore, he is not in E.09/08 13/31 possession of rent receipts. Therefore, it is proved on record that respondent/tenant was in arrears of rent from May, 2007 till September, 2007 @ Rs.430/-per month and said arrears of rent were in existence at the time of issuance of notice dated 21.07.2008 Ex.PW1/9.
23.During the course of arguments, it was contended by the counsel for respondent that in the notice dated 10.09.2007 Ex.PW1/6 issued on behalf of Sh.Joginder Singh Loyal, facts regarding existence of arrears of rent are absent. This further proves that respondent/tenant was not in arrears of rent and had he been in arrears of rent till September, 2007, the said fact would have been incorporated in the legal notice Ex.PW1/6 dated 10.09.2007. This plea of counsel for respondent is not acceptable because the onus was upon the tenant to show that he had paid rent to the landlord which he has failed to discharge. Although it is true that in the legal notice Ex.PW1/6, there is omission by landlord in mentioning about the existence of arrears of rent but that itself does not prove that respondent/tenant was not in arrears of rent from May, 2007 till September, 2007. Further the notice dated 10.09.2007 Ex.PW1/6 was in relation to termination of tenancy of respondent/tenant on the ground of subletting and it was not a notice issued for demanding arrears of rent. Therefore, absence of demand of arrears of rent in Ex.PW1/6 is quite understandable. Hence, contention of counsel for respondent that respondent/tenant E.09/08 14/31 was not in arrears of rent holds no water and is accordingly rejected.
24.In the light of above discussion, petitioner/landlord has proved on record the existence of arrears of rent from May,2007 till September, 2007 @ Rs.430/-per month on the date of issuance of notice dated 21.07.2008 Ex.PW1/9.
25.C. Service of notice of demand and consequent failure of respondent/tenant to tender the legally recoverable arrears of rent within two months from the date of service of demand notice.
The onus to prove service of notice dated 21.07.2008 Ex.PW1/9 which is relevant for deciding the petition u/s 14(1)(a) of the DRC Act was upon the petitioner. PW1 Sh.Jasbir Singh Loyal has deposed on oath that he has sent legal notice dated 21.07.2008 Ex.PW1/9 to the respondent/tenant through registered post and UPC receipts of which are collectively exhibited as Ex.PW1/10. It is further deposed that the original envelope containing the notice was avoided to be received by respondent no.1 and is Ex.PW1/11.
26. The defence of the respondent/tenant is that notice dated 21.07.2008 Ex.PW1/9 was sent at the incorrect address with the incorrect name of the respondent and the same was not received by him. The respondent/tenant also suggested to PW1 that address on the notice E.09/08 15/31 is wrongly mentioned as that of Sadar Bazar, Delhi-6 and the legal notice Ex.PW1/9 was never posted. Even in his examination in chief, respondent/DW1 has deposed that legal notice dated 21.07.2008 Ex.PW1/9 was sent at Sadar Bazar, Delhi-6 address and not at Delhi Cantt.address which is having pin code no. 110010. To prove its defence that registered post Ex.PW1/10 was never sent at his address, respondent/tenant examined RW7 i.e.Sh.Arvind Kumar, postal assistant from post office, Tis Hazari, Delhi. He has proved on record that pin code no.110006 pertains to Delhi GPO covering the area of Sadar Bazar, Chandni Chowk, Baratuti and Chawri Bazar.
27.I have perused the speed post receipt pertaining to notice Ex.PW1/9 filed on record and in the said speed post receipt, address of respondent/tenant is shown as that of Sadar Bazar, Delhi having pin code no.110006. Since speed post receipt Ex.PW1/10 is having the address of respondent/tenant of Sadar Bazar having pin code no. 110006, therefore, onus was upon the petitioner to prove that despite having wrong pin code number, notice Ex.PW1/9 was correctly delivered at the address of respondent/tenant in Delhi Cantt.area having pin code no.110010. However, no witness from the postal department has been examined by the petitioner to prove that legal notice Ex.PW1/9 sent through registered speed post Ex.PW1/10 was received back undelivered from Sadar Bazar, Delhi Cantt.area having pin code no.110010. Hence, petitioner/landlord has failed to prove E.09/08 16/31 that undelivered report on speed post envelope Ex.PW1/11 that "addressee is out of country" pertains to respondent/tenant or to some other person residing in Sadar Bazar, Delhi having pin code 110006. Therefore, petitioner/landlord has failed to prove that legal notice Ex.PW1/9 sent through speed post Ex.PW1/10 was served upon the respondent/tenant.
28.Even assuming that legal notice Ex.PW1/9 sent through speed post Ex.PW1/10 was sent at the correct address of respondent/tenant then also as per report of postal employee on speed post envelope Ex.PW1/11, it was not served as addressee was stated to be out of country. This fact is further corroborated by the evidence of PW1 Sh.Jasbir Singh Loyal who has deposed that respondent/tenant was not in India when legal notice was sent. Therefore, when petitioner himself had the knowledge that respondent/tenant is not in India, therefore, question of service of notice through registered post upon respondent/tenant does not arise. Therefore, it is proved on record that legal notice Ex.PW1/9 was not served upon the respondent/tenant vide speed post Ex.PW1/10.
29. The facts of the present case shows that petitioner/landlord never intended to get the respondent/tenant served with notice of demand Ex.PW1/9. It has come on record that petitioner/landlord knew that respondent/tenant is not residing in India for past many years. Hence, E.09/08 17/31 it was in the knowledge of petitioner/landlord that it was not possible to serve respondent/tenant through registered speed post as he was out of this country. Other methods provided for service of notice of demand were not availed of by petitioner. Section 14(1)(a) of the DRC Act provides that service of notice of demand can be done in the manner prescribed u/s 106 of the Transfer of Property Act, 1882(hereinafter referred to as TP Act).
30.Section 106 of the TP Act provides for service of notice as under:--
"Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or to be tendered or delivered personally to such party, or to one of his family or servants, at his residence , or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
31.Section 106 of the TP Act provides various modes for sending a demand notice. Once the petitioner knew that respondent/tenant was out of country then it has not been explained by the petitioner/landlord as to why other modes provided in Section 106 of the TP Act were not availed of for sending notice of demand. It has come in the evidence that petitioner/landlord was residing just above the tenanted shop. Therefore, notice could have been served upon any other member of respondent's family or upon the servant found in the tenanted shop and in case, tenanted shop was found lying closed, it could have been E.09/08 18/31 served by affixing at some conspicuous place of the tenanted shop as provided u/s 106 of the TP Act. However, no such steps were taken for service of notice of demand which further proves that legal notice was intentionally sent through speed post that too at an incorrect address just to prevent the respondent/tenant from making compliance of the same by tendering rent.
32. With regard to sending of notice Ex.PW1/9 through Under Postal Certificate, it is the defence of the respondent/tenant that same was not received by him. Once the respondent/tenant had denied regarding receipt of notice, therefore, onus was upon the landlord to prove service of notice Ex.PW1/9 through certificate of posting Ex.PW1/10. However, no postman has been examined to prove the service of notice Ex.PW1/9 through UPC Ex.PW1/10. Even presumption of service u/s 114(f) of the Indian Evidence Act, 1872 cannot be raised with regard to notice sent through certificate of posting. It has been held by the Hon'ble Supreme Court of India in Fakir Mohd Vs Sita Ram, AIR 2002 (SC) 433 in para 10 that presumption under illustration (f) of Section 114 of Indian Evidence Act is a permissive presumption which the Court may or may not raise depending on the facts and circumstances of a particular case. In another judgment of the Hon'ble Supreme Court of India reported as Shiv Kumar & Ors. Vs. State of Haryana & Ors., (1994) 4 SCC 445 in para 6 it was observed that "we have not felt safe to decide the E.09/08 19/31 controversy in hand on the basis of the certificate of posting produced before us, as it is not difficult to get such postal seals at any point of time."
33.From the aforesaid judgments of the Hon'ble Supreme Court of India, it can be safely concluded that it is not safe to raise presumption under illustration (f) of Section 114 of the Indian Evidence Act, 1872 with regard to certificate of posting and it is the discretion of the court to raise presumption or otherwise depending upon the facts of the present case.
34.In the facts of the present case, this court is not inclined to raise presumption u/s 114(f) of the Indian Evidence Act, 1872 with regard to service of notice Ex.PW1/9 on the basis of UPC Ex.PW1/10. The first reason for not raising the presumption is that petitioner had the knowledge that respondent/tenant was not in India in 2008 and, therefore, question of serving notice through UPC would not have been possible. Secondly, it has also come on record that petitioner/landlord had received letters addressed to respondent no.2 and same have been filed on record by the petitioner/landlord. This fact further prevents the court from raising presumption as it was quite possible that petitioner/landlord might have received the notice Ex.PW1/9 himself sent through UPC Ex.PW1/10 in the absence of respondent/tenant to prevent respondent/tenant from making E.09/08 20/31 compliance of demand notice. Therefore, if presumption under illustration (f) of Section 114 of the Indian Evidence Act, 1872 is not raised with regard to UPC Ex.PW1/10 then there is no evidence on record to show that legal notice Ex.PW1/9 was duly served upon the respondent/tenant as per UPC Ex.PW1/10. The petitioner/landlord could have examined the postman to prove the service of demand notice through UPC Ex.PW1/10 but in the light of non-examination of postal employee, petitioner/landlord has failed to prove service of demand notice through UPC also.
35.Once it is proved on record that respondent/tenant was not served with demand notice Ex.PW1/9, therefore, question of respondent/tenant not making compliance regarding demand of arrears of rent within two months period from the date of service does not arise. Since one of the main ingredients of Section 14(1)(a) of the DRC Act i.e. Service of demand notice has not been proved by petitioner/landlord, therefore, he is not entitled to eviction of respondent/tenant u/s 14(1)(a) of the DRC Act.
36. Now, I shall deal with the issue as to whether the ground for eviction of respondent/tenant is made out u/s 14(1)(b) of the DRC Act or not. Section 14(1)(b) of the DRC Act provides for eviction of tenant if tenant sublets, assigns or otherwise parts with the possession of whole or part of tenanted premises without obtaining the consent in E.09/08 21/31 writing of the landlord. It is a settled principle of law that when eviction is sought on the ground of subletting, onus is always on the landlord to prove the same. If the landlord prima facie shows that occupant who was in exclusive possession of premises let out for valuable consideration, is not the person who was inducted as tenant then onus shifts to the tenant to rebut the same. In this regard, reference can be made to the judgment of the Hon'ble Supreme Court of India reported as Associated Hotels Of India Ltd. vs S. B. Sardar Ranjit Singh, AIR 1968 SC 933.
37.Now, let us see whether petitioner/landlord has been able to prove the exclusive possession of tenanted shop by respondent no.2 (i.e.sub- tenant). The petitioner has examined himself as PW1 and has deposed on oath that respondent/tenant had parted with the possession of tenanted shop in favour of respondent no.2 and thereafter, he migrated to America about 17 years back. It was further deposed to by him that respondent no.2 is now carrying on the business under the name and style of M/s.Fancy Jewellers from the tenanted shop without the consent and permission of the landlord. In order to further corroborate its evidence,PW1 has filed on record certain documents to show exclusive possession of respondent no.2. PW1 has filed on record letters addressed to respondent no.2 which are Ex.PW1/12, copy of memo of parties of civil suit no.96/08 Ex.PW1/13, copy of process server dated 28.03.2009 Ex.PW1/14, E.09/08 22/31 certified copy of loan recall notice addressed to respondent no.2 Ex.PW1/15, report on summons which are collectively exhibited as Ex.PW1/16 and the certified copy of decree passed against respondent no.2 which is Ex.PW1/17. In the cross examination of PW1, no suggestion was given to PW1 with regard to documents Ex.PW1/12 to Ex.PW1/17 showing the address of respondent no.2 as that of tenanted shop. Further, the petitioner in the cross examination of DW1/tenant also confronted him with the Election I.Card of respondent no.2 Sh.Gurmeet Singh Ex.DW1/P2. Said document Ex.DW1/P2 i.e.Election I.Card of respondent no.2 having the address of tenanted shop was not denied. Further it was also admitted by DW1/respondent/tenant in his cross examination that between 1991 to 2002, he was frequently visiting different countries and from 2002 till 2009, he was in U.S.A. In the light of admitted documents Ex.PW1/12 to Ex.PW1/17 and Election I.Card Ex.DW1/P2 and having regard to the fact that respondent/tenant used to remain out of country from 1991 till 2009, there is prima facie evidence on record to show possession of tenanted shop by respondent no.2. Now, it was for the respondent/tenant to have rebut the said evidence and explain the possession of respondent no.2 in the tenanted shop.
38. The defence of respondent/tenant is that earlier the tenanted shop was being run under the name and style of M/s.Fancy Jewellers in partnership with late Sh.Mohinder Singh and after his death, E.09/08 23/31 respondent/tenant had formed partnership with his mother in the year 1994 and since then business is being run in partnership with his mother. It is further the case of respondent/tenant that during his absence, since his mother is an old aged lady, respondent no.2 being the brother in law of respondent/tenant used to help his mother in running the business of jewellary from the tenanted shop. The respondent/tenant has proved the initial partnership between him and his father late Sh.Mohinder Singh in the light of various admitted rent receipts Ex.PW1/D1 to Ex.PW1/D3 which records the fact that tenancy was in the name of respondent/tenant and his father Sh.Mohinder Singh. The joint tenancy/partnership of respondent/tenant with his father Sh.Mohinder Singh also stands proved in the light of deposition made by RW4 Sh.Mahender Kumar from New Delhi Power Ltd., Inderpuri who has proved that electricity connection in the tenanted shop was issued in the name of late Sh.Mohinder Singh and Sh.Parvinder Singh. The respondent/tenant has also filed on record a partnership deed Ex.DW1/2 dated 10.11.1994 between himself and his mother which also records the fact that earlier partnership was between respondent/tenant and his father but after the death of his father, a new partnership, to run the business under the name and style of M/s.Fancy Jewellers, is being formed between respondent/tenant and his mother Smt.Harbans Kaur. The said partnership deed Ex.DW1/2 has not been disputed by the petitioner. Therefore, stands proved.
E.09/08 24/3139.In the light of aforesaid discussion, it is proved on record by respondent/tenant that business under the name and style of M/s.Fancy Jewellers was being run in partnership with his father and later on after his death, the same was being run in partnership with his mother vide partnership deed Ex.DW1/2. The respondent/tenant was further required to prove that respondent no.2 being the brother in law of respondent/tenant was helping his mother Smt.Harbans Kaur in running the business in his absence. To prove the same, respondent/tenant has deposed on oath that in his absence, respondent no.2 being his relative i.e.brother in law, used to represent his mother Smt.Harbans Kaur in running of his business. Even in the cross examination, it was deposed to by DW1 that Sh.Gurmeet Singh/respondent no.2 used to visit the tenanted shop with the consent of his mother. It was further deposed by DW1 that respondent no.2 was only helping the mother of respondent/tenant in running of business and he was not having the exclusive possession of the same.
40.The deposition made by DW1 regarding the respondent no.2 helping his mother in running of business is further corroborated by the evidence of RW5 Sh.Kuldeep Singh, who is also having a shop in the neighbourhood of tenanted shop. RW5 has deposed in his examination in chief that respondent no.2 Sh.Gurmeet Singh was only E.09/08 25/31 a visitor to the tenanted shop, being relative. This deposition has not been challenged in the cross examination of RW5 and stands admitted by petitioner/landlord.
41.The respondent/tenant has further proved that respondent no.2 Sh.Gurmeet Singh was not in exclusive possession of the tenanted shop by examining RW3 Sh.Lajpat Rai from Delhi Cantonment Board. RW3 Sh.Lajpat Rai has proved on record that tenant of the tenanted shop as per record is respondent/tenant and water and conservancy tax is also being paid by respondent/tenant. In his cross examination, RW3 clarified that information entered in the register regarding the tenant in occupation of tenanted shop is provided by the landlord. Therefore, the deposition of RW3 further proves that information given by the landlord to Delhi Cantonment Board was that respondent/tenant is in possession. The very fact that landlord did not mention this fact that respondent no.2 is in exclusive possession further proves that respondent no.2 being relative of respondent/tenant was helping his mother in running the business and was not in exclusive possession of the tenanted shop.
42.The respondent/tenant has further proved on record that he was in legal possession of tenanted shop by bringing on record the cross examination of Sh.Joginder Singh Loyal, father of petitioner/landlord recorded in CCP No. 140/2003 dated 03.02.2005. The said cross E.09/08 26/31 examination was admitted by petitioner's counsel. In his cross examination, Sh.Joginder Singh Loyal, father of petitioner has admitted that respondent/tenant is running jewellery shop under the name and style of M/s.Fancy Jewellers from the tenanted shop and he keeps on going abroad frequently. There is no deposition made by Sh.Joginder Singh Loyal regarding the exclusive possession of respondent no.2 Sh.Gurmeet Singh in the tenanted shop in the year 2005 which falsifies the stand taken by the petitioner/landlord that respondent/tenant had migrated to U.S.A.about 17 years back after parting with possession of the tenanted shop exclusively in favour of respondent no.2 Sh.Gurmeet Singh.
43.In the light of evidence led on record as aforesaid, it has been proved on record that respondent/tenant was frequently going abroad. It is also proved on record that respondent's mother Smt.Harbans Kaur was running partnership business in the tenanted shop under the name and style of M/s.Fancy Jewellers. It is also proved on record that respondent's mother is an old age lady. It is also proved on record that respondent no.2 Sh.Gurmeet Singh is brother in law of respondent/tenant and was helping the respondent's mother in running business from the tenanted shop. It is also proved on record that respondent no.2 Sh.Gurmeet Singh while helping in running of business, came into physical possession of tenanted shop.
E.09/08 27/3144. Now the question arises is whether the possession of respondent no.2 Sh.Gurmeet Singh of the tenanted shop will amount to subletting or not? It is a settled principle of law that exclusive possession for making out a ground of eviction of subletting does not mean physical possession only but legal possession also. The mere user by other person is not parting with possession so long as the tenant retains the legal possession himself. So long as tenant occupies the control with him of the tenanted premises then it cannot be said that sub tenant is in exclusive possession and it will not fall within the mischief of Section 14(1)(b) of the DRC Act. (Reference in this regard can be made to the judgment of Sohan Pal V Sri Pal and Ors., 48 (1992) DLT 65 and Jagan Nath (deceased) through L.Rs. Vs. Chander Bhan and Ors., (1988) 3 SCC 57.
45. It was further held by our own Hon'ble Delhi High Court in Hazari Lal vs Shri Giasi Ram and Ors., 1972 DLT 85 that mere fact that the tenant himself is not in physical possession of the tenanted premises for any period of time would not amount to parting with the possession so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession.
46. In the present case, it is proved on record that respondent/tenant E.09/08 28/31 always remained in legal possession of the tenanted shop as water and conservancy tax was being deposited by him. Rent of the tenanted premises was also being deposited by him as made out from rent receipt Ex.DW1/5. Even the cantonment record reflects the tenancy in the name of respondent/tenant on the basis of information supplied by the landlord. The electricity connection is in the name pf respondent/tenant till date. Therefore, legal possession of tenanted shop always remained with the respondent/tenant. Further it is proved on record that respondent no.2 was in physical possession of tenanted shop only being the relative of respondent/tenant and was helping the respondent/tenant's mother in running the business during his absence from this country. Since respondent/tenant's mother was quite old, it was quite natural for the respondent/tenant to have asked respondent no.2 Sh.Gurmeet Singh to have helped his mother in running business from the tenanted shop. It is quite believable that while helping respondent/tenant's mother in running the business, respondent might have given his address of tenanted shop while taking loan from bank and while getting his Election I.Card prepared. This is the reason for the court decree having address of respondent no.2 of the tenanted shop apart from his residential address. However, documents Ex.PW1/12 to Ex.PW1/17 and Ex.DW1/P1 do not prove the exclusive, legal and physical possession of respondent no.2 in the tenanted shop.
E.09/08 29/3147.In the light of above discussion, the respondent/tenant has rebutted the evidence of petitioner and has proved and explained the physical possession of respondent no.2. It is proved on record that respondent no.2 Sh.Gurmeet Singh was in possession of tenanted shop in the capacity of relative of respondent/tenant and in his absence respondent no.2 was helping respondent/tenant's mother in running of business and he was never in exclusive possession of the same. It is also proved on record that respondent/tenant had a right to return to the tenanted shop on his return from abroad. Hence, petitioner/landlord has failed to prove that respondent/tenant has sublet or parted with the possession of tenanted shop in favour of respondent no.2 Sh.Gurmeet Singh.
48. The judgment relied upon by the petitioner reported as Chunni Lal & Anr. Vs. Vidya Devi & Ors., 138(2007) DLT 224 is not applicable to the facts and circumstances of the present case as in the aforesaid judgment, landlord had filed on record tax returns exclusively in the name of sub tenant and for the same period, no returns were filed before the Tax authorities by the main tenant with regard to tenanted premises. Further tax returns were filed by sub-tenant for different business than what was being done by tenant. Therefore, the Hon'ble High Court of Delhi came to the conclusion that tenant had sublet the tenanted premises to the sub tenant relying upon those tax returns, However, in the present case, although it is deposed to by PW1 that E.09/08 30/31 respondent no.2 is running the business under the name and style of M/s.Fancy Jewellers but no documents have been filed on record by the petitioner/landlord to show running of said business exclusively in the name of respondent no.2. Hence, the aforesaid judgment is not applicable to the facts of the present case.
49.In the light of above discussion, petition filed by petitioner/landlord is dismissed on both grounds i.e.u/s 14(1)(a) and (b) of the DRC Act. File be consigned to record room.
Announced in the open court (Vikas Dhull)
Dated: 30.11.2011 SCJ:RC
Dwarka/Delhi
E.09/08 31/31