Delhi District Court
M/S Singh Bros. (1925) Regd vs Smt. Nirmala Devi (Deceased) Now on 16 March, 2007
IN THE COURT OF SHRI M.C. GARG, ADDL. RENT CONTROL
TRIBUNAL, DELHI.
RCA No.179/1996
1 M/s Singh Bros. (1925) Regd.
Arms & Ammunition Dealer,
1/1371, Kashmere Gate, Delhi-6.
2 Mahant Joginder Singh,
S/o Late Mahant Santokh Singh,
1/1371, Kashmere Gate, Delhi-6.
3 Mrs. Harjit Kaur, widow of Jaswant Singh,
r/o 28, Feroze Gandhi Road, New Delhi. ...Appellants.
Versus
1 Smt. Nirmala Devi (Deceased) now
Represented by her following LRs:-
a) Sh. Jugal Kishore Gupta, S/o Sh. Ram Kishore Gupta,
b) Sh. Kamal Kishore Gupta, S/o Sh. Ram Kishore Gupta,
c) Sh. Nirmal Kishore Gupta, S/o Sh. Ram Kishore Gupta,
d) Sh. Vinod Kishore Gupta, S/o Sh. Ram Kishore Gupta,
All R/o 1/1372, Sultan Singh Building, Kashmere Gate, Delhi-6
2 Sh. Jasjit Singh Chadha @ Ricky Chadha
S/o Late Sh. Jaswant Singh Chadha,
3 Sh. Karanwir Singh Chadha @ Micky Chadha
S/o Late Sh. Jaswant Singh Chadha,
4 Ms. Dubby Musafir,
5 Ms. Shimly Bedi
All R/o 28, Feroze Gandhi Road, New Delhi. ...Respondents
RCA No.224/1996
1 Sh. Jasjit Singh Chadha,
S/o Late Sh. Jaswant Singh Chadha,
1
2 Sh. Karanwir Singh Chadha,
S/o Late Sh. Jaswant Singh Chadha,
Both R/o 28, Feroze Gandhi Road, New Delhi.
...Appellants
Versus
1 Smt. Nirmala Devi,
Widow of Late Sh. Ram Kishore Gupta,
R/o 1/1372, Sultan Singh Building, Kashmere Gate, Delhi-6
2 M/s Singh Bros. (1925) Regd.
Arms & Ammunition Dealer,
1/1371, Kashmere Gate, Delhi-6.
3 Mahant Joginder Singh,
S/o Late Mahant Santokh Singh,
1/1371, Kashmere Gate, Delhi-6.
4 Mrs. Harjit Kaur, widow of Jaswant Singh,
r/o 28, Feroze Gandhi Road, New Delhi.
5 Ms. Dubby Musafir,
6 Ms. Shimly Bedi
both R/o 28, Feroze Gandhi Road, New Delhi.
...Respondents
RCA No. 828/1996 (cross objections by the landlady
in respect of order passed under
section 14(1) (B) and on other
grounds)
1. M/s Singh Bros. (1925) Regd.
Arms & Ammunition Dealer,
1/1371, Kashmere Gate, Delhi-6.
2 Mahant Joginder Singh,
S/o Late Mahant Santokh Singh,
2
1/1371, Kashmere Gate, Delhi-6.
3 Mrs. Harjit Kaur, widow of Jaswant Singh,
r/o 28, Feroze Gandhi Road, New Delhi. ...Appellants.
Versus
1 Smt. Nirmala Devi,
Widow of Late Sh. Ram Kishore Gupta,
R/o 1/1372, Sultan Singh Building, Kashmere Gate, Delhi-6
2 Sh. Jasjit Singh Chadha @ Ricky Chadha
S/o Late Sh. Jaswant Singh Chadha,
3 Sh. Karanwir Singh Chadha @ Micky Chadha
S/o Late Sh. Jaswant Singh Chadha,
4 Ms. Dubby Musafir,
5 Ms. Shimly Bedi
All R/o 28, Feroze Gandhi Road, New Delhi.
...Respondents
RCA No. 27/1998(cross objections by the landlady in
respect of order passed under
section 14(1) (B) and on other
grounds)
1 Sh. Jasjit Singh Chadha,
S/o Late Sh. Jaswant Singh Chadha,
2 Sh. Karanwir Singh Chadha,
S/o Late Sh. Jaswant Singh Chadha,
Both R/o 28, Feroze Gandhi Road, New Delhi.
...Appellants
Versus
1 Smt. Nirmala Devi,
Widow of Late Sh. Ram Kishore Gupta,
R/o 1/1372, Sultan Singh Building, Kashmere Gate, Delhi-6
2 M/s Singh Bros. (1925) Regd.
3
Arms & Ammunition Dealer,
1/1371, Kashmere Gate, Delhi-6.
3 Mahant Joginder Singh,
S/o Late Mahant Santokh Singh,
1/1371, Kashmere Gate, Delhi-6.
4 Mrs. Harjit Kaur, widow of Jaswant Singh,
r/o 28, Feroze Gandhi Road, New Delhi.
5 Ms. Dubby Musafir,
6 Ms. Shimly Bedi
both R/o 28, Feroze Gandhi Road, New Delhi. ...Respondents
JUDGMENT
1. This order shall dispose off the Rent Control Appeals filed by the tenant and the legal heirs of one of the deceased partners of the tenant as well as the cross-objections of the landlady against the order of the Additional Rent Controller Delhi dated 20.1.1996 passed in Eviction Suit No. 215/1992, by which the Additional Rent Controller allowed the eviction petition filed by the landlady in part but dismissed the same on other grounds.
2. The suit was instituted by late Smt. Nirmala Devi now represented by her legal heirs against the tenant M/s Singh Bros (regd) inducted in the suit property bearing No. 1/1371 and 1/1372 situated at Kashmere Gate Delhi by the previous owner long ago. The tenant attorned Smt. Nirmala 4 Devi (Deceased) as the landlady after she purchased the property from Major General Virender Singh in the year 1966 by means of a registered sale deed.
3. In brief the case pleaded in her eviction petition was that the Suit Premises was let out to the tenant only for doing the business as a dealer of Arms and Ammunition only. However, now it has been used for carrying on other business such as sale of spare motor parts of M/s Pronto Tools (P) Ltd., plying video games machines of M/s Weston Company, selling leather goods of M/s Bharat Leather Corporation and Aristocrate Luggage of M/s Universal Luggage Manufacturing Co. (P) Ltd. It is her case that the aforesaid act amounts to misusing the premises by tenant. It is also alleged that the tenant also caused substantial damage to the suit property by adding a mazenine in the suit premises measuring about 550 Sq. Ft and also raised other constructions without her permission or the permission of the MCD. It is also alleged that the suit property has become unsafe for human habitation and requires extensive repairs which can not be carried out without evicting the tenant.
4. The landlady also alleged that the tenant has sublet assigned or otherwise parted with the possession of the suit property to M/s Pronto Tools (P) Ltd, M/s Weston Company, M/s Bharat Leather Corporation as 5 well as M/s Universal Luggage , without her written permission and as such the tenant was liable to vacate the suit property in view of the provisions contains u/s 14(1)(a)(b)(c)(j) and (f) of the DRC Act. The ground of non payment was not pressed before the ARC itself.
5. To support her case besides leading other evidence heavy reliance was placed on the report of a Local Commissioner dated 07.1.19/81 appointed in another suit filed by the landlady against the tenant for injunction as evidence of causing substantial damage to the suit property, sub-letting the same and misusing it. The said report is Ex. AW6/1.
6. The tenant in their written statement denied all the allegations made by the landlady. Regarding sub-letting it has been stated, that no portion of the suit property was sub-let in favour of anyone and that the legal possession of the suit property always remained with the tenant. The entire business which was carried on from the suit property was always under their control and supervision.
7. Dealing with the case of M/s Bharat Leather Corporation Ltd. and M/s Universal Luggage Mfg. (P) Ltd, it is stated, that the tenant is a dealer of the aforesaid two Corporations and had been selling their goods through their own employees on commission basis. Regarding Pronto Tools, it was denied that the premises had been sub-let to them. It was 6 stated that in any event, the two partners of the tenant being the Directors of the said Company, the physical control and possession of the premises always remained with them. Regarding video game machines of M/s Weston Company, it was pleaded that those machines were installed in the suit premises for a very short time but the business of running those machines was also looked after by the tenant or its employees.
8. Refuting allegation of causing substantial damage it was submitted that no new construction was carried out by the tenant in the suit premises after letting out. It was also denied that the premises is unsafe for human habitation or that the change of user of the premises or carrying on additional businesses by the tenant is misuser within the meaning of Sec. 14(1) (c) of the DRC Act. It was stated that, since the property was let out for commercial purposes using it for commercial purpose for any business could not be termed as misuser. Referring to the report of the Local Commissioner, it was averred that the said report was of no consequence and was not admissible in evidence.
9. By the impugned order, the Additional Rent Controller allowed the eviction petition in part and passed an order of eviction u/s 14(1)(b) of the DRC Act, by holding that the suit property had been un-unauthorizedly sub let to M/s Bharat Leather Corporation Ltd. And M/s Universal 7 Luggage. However, he dismissed the suit 14(1) (c)(j) as well as u/s 14(1)(f) of the DRC Act. The Trial Court also dismissed the petition u/s 14(1) (b) in relation to the other allegations made by the landlady qua M/s Pronto Tools (Pvt) Ltd. And M/s Weston Company.
10. By filing of RCA 179/96 and RCA 224/96 the tenant has assailed the first part of the order while cross objection registered as RCA 224/96 and RCA 27/98 have been filed by the landlady assail the remaining part of the order .
11. I have heard the submissions of both the sides. I have also gone through the record and the written arguments including the judgments cited by the learned counsel for both the parties.
12. In the appeals as well as the cross-objections issue of sub-letting is one of the main issues which requires consideration. It is to be seen, "Whether the tenant has sublet, assigned or otherwise parted with the possession of the suit property in favor of any or all the parties as alleged in the suit by the landlady within the meaning of Section 14(1)(b) of the DRC Act."
13. According to the tenant no evidence has been led by the landlady to prove the presence of third parties while the tenant has adduced cogent evidence to explain that there was no sub-letting assignment or parting 8 with the possession of the suit premises to any one. It is also their case that the legal possession always remained with the tenant and that all the business are carried on by them though its partners/employees and in any case under the control and supervision of the partners or employees of the tenant. It is submitted that mere user of the premises by third person do not constitute sub-letting. It is, therefore, prayed that the impugned order of eviction passed by the Additional Rent Controller against them be set aside and the cross objection be dismissed.
14. On the other hand it is contended by the objectors/landlady that the evidence available on record proves the case of the landlady that third parties are in possession of the suit property. This is also the admission of the tenant. Yet the tenant has failed to give any explanation to justify the presence of the third parties or to prove the arrangements , if any, between the tenant and those parties to show that it was not a case of subletting and therefore a presumption must be drawn that it was a case of subletting in respect of all as stated above. The landlady also submits that no record which may establish that the business being run on behalf of Bharat Leather Corporation Ltd., Universal Luggage and other parties was the business of the tenant. However, it is submitted that the trial court has only accepted their case in relation to Bharat Leather and Universal 9 Luggage and to that extent the order must be upheld, while it needs to be modified by also passing an eviction order even in respect of the other parties for which the landlady has preferred her objections.
15. Both the parties have filed number of judgments in support of their case. The landlady relied upon the following judgments:
1)Jagdish Kumar Vs. Agra Taxi Service, 1983 RLR 197
2)Gopi Chand Vs. Gopi Chand Thelia, 1989 (2) RCR 392( SC )
3) Kishan Chand Vs. Bnarasi Dass, 1989 (2) RCJ 407
4) Gobind Prashad Jagdish Parshad Vs. Shri Hari Shanker & Ors. 136(2007) DLT 259
5) Hari Ram Vs. Rukmani Devi 1996 RLR 522
6) Noor Mohammad Vs. Radheyshyam & Ors. 1997 (1)RCJ 601
7) M/s Bharat Sales Ltd. Vs. Life Insurance of India , 1998 (1) RCR 272 (SC).
8) Mohd. Kasam Vs. Baker Ali, 1998 RLR (SC) 592
9) Raj Rani Vs. Kaushalya Devi, 1999 (2) RCR 384
10)Kusumben Vasantlal Amratlal Vs. Shrenikbhai Kasturbhai, 1998(2) RCR 572
11)Dr. Ashok Kumar Thapar Vs. Amrit Lal, 1998(2) RCR 52
12)Bharat Sales ltd. Vs. Life Insurance Corporation of India, 72(1998) DLT 50
13)Darshana Devi Vs. Des Raj Singh Thakur, 1997 (2) RCR 170
14) Narain Singh & Ors. Vs. Vijendra Singh Chadha & Anr., 61(1996) DLT 32
15) K. Achyuta Bhat Vs. Veeramneni Manga Devi & Anr., AIR 1989 SC 93
16) Kishore Brothers & Anr. Vs. Sushila Devi, 1980 (2) RCJ 567
17)Chic International Vs. Naintara, 1994, RLR 170
18)Kailash Kumar, Prakash Wati Vs. R.L. Kapoor, 1994, RLR 387
19)LIC of India vs. Bharat Sales Ltd. 1995, RLR 106
20)Gurdial Singh vs.Raj Kumar Aneja, 2002 RCR 194
21)Ram Sarup Vs. Sita Ram, 2003 (1) RCR 646 10
22) Rishi Vs. Sham Lal, 1994 (1) RCR 294
23)Viredra Kashinath Ravat Vs. Vinayak N. Joshi and Ors. 1998 (2) RCR 594
24)Shah Phoolchand Lalchand vs. Parvati Bai 1989 (1) RCR 483 (SC)
25) Lalit Kumar Vs. Municipal Corporation of Delhi; 56 (1994) DLT 117
26)Shah Phulchand Vs. Parvati Bai, 1989 RLR (NSC) 64
27)Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh AIR 1968 (SC) 933
28)New India Traders & Ors. Vs. Satish Swarup Gupta, 35 (1988) DLT 229
29) S.C. Mese Coop. Society Vs. VK Nambiar, 1989 RLR (NSC) 14
30)N.K. Rastogi Vs. Karrori Lal, 1993, RLR 358
31)S.P. Chengalvaraya Vs. Jaganath, 1994, RLR (SC) 102
32)Phoolwati & Ors. Vs. Harch Gogia & Ors, 1996, RLR 340
33)K. Ayya Thayalnaygiammal Vs. T.V. Thomas, JT 2000 (3) SC 171
34)Smt. Chander Kali Bai & Ors. Vs. Shri Jagdish Singh Thakur, 1978 (1)RCJ 17 (SC)
35)Mithlesh Kumar Vs. Smt. Subhadra Devi, 1978 (1) RCJ 17 (SC)
36)Kashi Nath Vs. Jaganath JT-2003 (SC) 358
37)Rambhau Sadashivappa Jatkar Vs. Tryambak Shenfal Satbharkre 2006(2) RCR 357
38) Manohar Lal Vs. State,1990 RLR (Note)22
39) Sudhir Engg. Co. Vs. Nitco Roadways, 1995 RLR 286
40)Jahuri Sah & Ors. Vs. Dwarka Prasad Jhunjhunwala & Ors. AIR 1967 (SC) 109.
41)Najabat Babibux Vs. Munnibai @ Kulsum , 2002 (1) RCR 103
42)Raghbir Singh Vs. Kanahya Lal & Anr. , DLT I Vol 21(1982)
43) Vithal N. Shetti & Anr. Vs. Prakah N. Rudrakar & Ors. 2002(2) RCR (SC) 708
44)Mrs. Santosh Tangri Vs. Ved Matta, 2002 (2) RCR 657
45)Krishan Kumar Vs. Mukandi Lal,2003 (1) RCR 578
16. The tenants in support of their submissions relied upon the following case law:
1. Hazari Lal & Anr. Vs. Giani Ram & Others., 1972 AIR, Page 41 11
2. 2. Abdul Hammed Vs. Noor Mohd. 1977 RCR Pg. 301 (Delhi)
3. Diptal Banerjee Vs. Lita Bati Chakarobarty, 1987 (2) AIR, paged 644
4. Atul Gupta Vs. D.C.M. 1991 (i) AIR, Page 281
5. 5. G.D. Choudhary Vs. Anand Swaroop, 1966 DLT pg. 28 Punjab High Court.
6. Niranjan lal Kanodia Vs. Harbans Lal, 1995 (II) A.D. (Delhi) Pg. 347
7. Shyam Sunder Dania Vs. J.K. Kapoor & Others, 2007 (93) DRJ pg. 571
8. Shri Amolak Ram Vs. Ram Prasahd (Deceased), RCA 493/2005 by this Hon'ble Court.
9. Janaki Veshdev Bhojwanit Vs. Indus Ind. Bank Ltd. 2005 S.C.C.R. Page 42
17. There is no need to cite every authority because the law of subtenancy is well settled. Still it may be useful to refer a few of the judgments cited by both the parties.
18. Firstly, I may refer to the judgment relied upon by the tenant delivered in the case of Janaki Veshdev Bhojwani Vs. Indus Ind. Bank Ltd.(supra) to question the authority of AW1 to depose about the fact of this case. In this regard there is no dispute that the family members including AW1 are the residents of the upper floor of the same building where the suit property is located. He has deposed about the facts on the basis of his personal knowledge as he has deposed that while coming to the suit premises for the purpose of going to his house or coming out he happens to watch what is going on in the tenanted premises. As such he was a 12 competent witness. In the aforesaid judgment also deposition by a attorney about facts known to him has not faulted with and has been relied upon. Thus the aforesaid judgment does not come to the help of the tenant.
19. In the case of Bharat Sales Ltd (supra) the Hon'ble Supreme Court has laid down the following basic principles to deal with the allegations of subletting: -
"4. Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overtacts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant, to whom the property was let out has put some other person into possession of that property. In such a 13 situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump--sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infere that the premises were sublet.
That transactions of subletting in the guise of licences are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be furnished direct evidence in every case."
20. Thus, when the landlord is able to establish that there was a third party present in the suit property without his/her written consent then the onus shifts upon the tenant to justify/explain the presence of third party. The said third party may be an employee, a partner or a user without having 14 legal possession of the suit property but to discharge the onus it is shifted upon the tenant he is required to lead cogent evidence to explain his presence.
21. In Jagdish Kumar Vs. Agra Taxi Service (supra) Hon'ble Delhi High Court held, that once the tenant is sued for subletting and admits, the presence of another person, then he must plead the status, licensee or employment of the person occupying the premises. Onus of proving the status is on him. Tenant must also plead, that though the alleged sub- tenant is occupying the premises, legal possession remained with him.
22. It is also the consistent views taken by the superior courts that non production of documents/account books which may justify the presence of third party either as employee or agents or as a partner, adverse inference can be drawn against the tenant. This has been so held in the case of Gobind Prashad Jagdish Parshad Vs. Shri Hari Shanker & Ors. (supra) wherein it has been held:-
"23. On consideration of the submissions advanced by learned Counsel for the parties, I am of the view that the impugned order of the Tribunal cannot be sustained. The presence of strangers being original respondent Nos. 4 and 5 is not in dispute. That respondent Nos. 4 and 5 were closing their portions 15 separately is also not in dispute. The defence of the the tenant was that the said original respondents Nos. 4 and 5 were employees. In such a case, it was for the tenant to lead the evidence to show that such respondent Nos. 4 and 5 were not sub-tenants but employees.
24. In Kailash Kumar's case (supra), it is the aforesaid aspect, which has been emphasized as discussed above. In fact, the factual matrix is almost identical-the tenanted shop being used for restaurant, small portion carved out being used for pan shop and sale of cigarettes, allegation of sub-letting,defence of the sub-tenant being an employee and no account books being produced. I am, thus, of the considered view that the principles laid down in Kailash Kumar's case (supra) are liable to be followed and are absolutely applicable in the facts of the present case to hold that the tenant had failed to discharge the onus of explaining the presence of the alleged subtenants.
25. In M/s Nath Oil Company's case (supra) also, it has been emphasized that where the stand of the tenant is that the occupant is an employee, the best evidence in his possession should be produced, which would include the income -tax records or other records showing that he is an employee.
26. I am unable to accept the plea of learned Counsel for respondent No. 1/tenant no adverse inference can be drawn in the circumstances in view of the aforesaid judgments of the Apex Court as those were matters where the issue was of proving the accounts and no adverse inference being drawn on account of non production of the accounts. Oral testimony had been led. These judgments have application to the facts of the present case.
16
The dispute in the present case relates to the issue whether there is sub-tenancy or not or parting with possession or not. There is presence of third parties. It was for the tenant to explain the presence of such third parties and to produce any material in support thereof. No material whatsoever was produced in that behalf. A reference to the account books and the salary register in the order of the ARC arose on account of the testimony of the tenant that such registers/accounts were being maintained.
Despite this, the same were not produced. It was for the tenant to have produced the best material in support of the plea that original respondent Nos. 4 and 5 were employees and respondent No. 1 failed to discharge this onus and, thus, adverse inference must be drawn against respondent No. 1.
23. Carrying on a business by a third party in their own name can also be a good instance to interfere subletting. This has been so held in the case of Kishan Chand Vs. Banarsi Dass (supra). Reference can be made to paragraph 12 of the aforesaid judgment:
"12. Mr. Thapar, learned counsel for the tenants relying on the decision of the Supreme Court in Smt. Krishan Want's Case (supra) contended that the landlord must prove that the sub-tenant was occupying the premises for valuable consideration in order to make out a case of subletting. The Supreme Court in the above referred judgment had no where laid down that the landlord must prove that the tenant had parted with the exclusive possession of the 17 property in dispute for valuable consideration to the subtenants. On the other hand while discussing that Sohan Singh alleged sub-tenant being the husband of the tenant and that they were living together and carrying on business in the shop in dispute and that Sohan Singh used to help his wife occasionally it was held to be a case of license at the most. The Supreme Court referred to the decision of Associate Hotels of India Ltd. , Delhi Vs. S.B. Sardar Ranjit Singh,wherein it was held that where the landlord discharged the onus by leading evidence that the occupants were in exclusive possession of the premises for valuable consider, it would be for the tenant to lead evidence".
24. In the case of Raj Rani Vs. Kaushalya Devi (supra) it was held that subletting is normally created by an arrangement between the tenant and the subtenant. It cannot be proved by the landlord and it can only be proved by the circumstantial evidence. Once the initial onus is discharged by the landlord then it is for the tenants to prove that there was no subletting. While referring to sub clause 4 of section 14 of the DRC Act which permits entering into partnership, the Hon'ble Gujarat High court in its judgment delivered in the case of Kusumben Vasantlal Amratlal Vs. Shrenikbhai Kasturbhai (supra) observed that if account books which may establish sharing of profits by the tenant and the alleged sub tenants are 18 not filed it may prove that the partnership was a sham transaction. Reference can also be made to Trilochan Singh Vs. Amarjeet Singh Jasoti reported in 2003 (69) DR 63 wherein it has been held as under:
"Protection of the Rent Control Act is meant for personal use of those to whom tenancy is granted. It is the original guarantee alone who is entitled to this protection of law. Such protection is not to be abused. Using the premises for self use is one thing, but making a monetary gain by allowing its use by another is quite a different thing. If the tenant does not need the premises, he must restore it to the landlord. He cannot allow the use of the premises or any part thereof by another while himself remaining there only in name. The monetary gain in such a situation is a matter of inference from the combination of these facts : (a) that a third person is using it; (b) that the tenant himself is not exclusively using it; and (c) that the premises have a monthly usufruct (for rateable value) which far exceeds the rent which is payable to the landlord. Law comes down heavily against those who try to abuse Rent Control protection in this manner. On the plain facts, an inference of sub-letting would follow and is sufficient but here on record there is much more."
25. In the case of Narain Singh & Ors. Vs. Vijendra Singh Chadha & Anr. (supra) it has been held by our own High Court that shifting stands of the tenants can also lead to a inference about subletting are reproduced hereunder:-
"9. An important fact to be noted is that the stand of the appellants regarding Ratan Singh, 19 appellant No. 3 is shifting. Ratan Singh when he appeared as a witness stated that he was an employee and was being paid a sum of Rs.
100/- to Rs. 150/- per month for working in the demised premises. However, when Khem Singh appellant no. 2 appeared as RW9, he stated in his cross-examination that Ratan Singh was not being paid anything and was having only his meals in restaurant in lieu of the work he was doing for the restaurant. In the written statement there was no plea that Ratan Singh was only an employee. This apart from absence of proper pleadings, is a case of contradiction in evidence on a very material aspect. The contradiction in the evidencepointed out above knocks out in the case sought to be set up in evidence that Ratan Singh was only an employee. The next question will be in what capacity Ratan Singh was found to be present on the premises. The obvious answers is that he was occupying the pan shop either as a sub-tenant or a person in whose favour possession of the said portion had been parted with.
26. Report of Local Commissioner was also relied upon as a evidence of the present of a third party in the case of S.C. Mese Coop. Society Vs. VK Nambiar (supra).
27. In the case of Hazari Lal and Others Vs. Shri Giani Ram & Others (supra) it has been held:
"that the expression parted with possession means 20 giving possession to persons other than those to whom possession has been given by the lease and parting with possession must have been by the tenant. The mere user by other persons is not parting with possession so long as the tenant retains the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration, it would not be possible to say that tenant has parted with possession even though, for the duration of his stay, the guest has been given the exclusive use of the whole or part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time he cannot be said to have parted with possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with 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."
28. In the case of Abdul Hammed Vs. Noor Mohd (supra) it has been held:-
"The expression "parting with possession' as meaning giving possession to persons other than those to whom possession has been given by the lease, the mere user by other persons is not 21 ''parting with possession'' as long as the tenant retains the legal possession himself in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. It was further observed that the mere fact the tenant himself was not in physical possession of the tenancy premises for any period of time would not amount to parting with possession so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof.
29. In the case of Atul Gupta Vs. D.C.M. (supra) it was held that if there is an agreement between the tenants and a third party not with a purpose to create a tenancy, it may not be a case of subletting. Thus, the terms of agreement can always to be looked into with a view to scrutinize as to whether the agreement was genuine or not.
30. In the case of G.D. Choudhary Vs. Anand Swaroop (supra) it was held that as long as the legal possession of the suit premises is retained by the tenant it cannot be considered a case of subletting.
31. In the case of Niranjan lal Kanodia Vs. Harbans Lal (supra) it has been held:-
" Therefore, relationship between tenant and the sub- tenant is not the test for determining sub-letting or parting with possession. The test is, as already stated, 22 has the tenant divested himself of the right to possess the tenancy premises and whether he has totally effaced himself for the premises? In the present case whether it is the private limited company or its is S.D. Company, the facts show that the tenant Niranjan Lal Kanodia never divested himself of the right to possess the premises nor the premises or any portion of the premises ever vested in the alleged sub-tenants. Niranjan Lal Kanodia never effaced from the premises."
32. In RCA No. 179/96 and RCA No. 224/96, it has been submitted by the tenant that the eviction order passed by the ARC by holding that the suit property was sublet to M/s Bharat Leather and Universal Luggage cannot be sustained. It is submitted that no evidence has been led by the landlady even to prove the presence of either in favour of M/s Bharat Leather Corporation Ltd. or M/s Universal Luggage Manufacturing Co. (P) Ltd., as third parties in the suit premises. Testimony of AW-2 also does not inspire confidence as the said witness is admittedly a client of Sh. Vinod Kumar son of Smt. Nirmala Devi and as such is an interested witness.
33. It is submitted that the evidence of the tenant proves that the appellant was only a dealer who used to sell the goods manufactured by M/s Bharat Leather Corporation Ltd. and M/s Universal Luggage Manufacturing Co. (P) Ltd. on commission basis by themselves. It is also submitted that there 23 is nothing on record which may establish that the exclusive possession of the suit premises was vested in the aforesaid two Corporations that the tenant was excluded from there. As regards production of account books etc. it is submitted that the documents produced by them shows that the business was conducted in the suit property only by the tenant and no one else. It is submitted that deposition of RW-7 and V.K. Gupta also proves that the tenant was Dealer of those Corporations and used to sell their goods on commission basis. This fact is also corroborated by the testimony of RW4, a witness from Sales Tax Department. It is submitted that even otherwise, mere user of the suit premises by the third parties where, the legal possession and control and supervision is with the tenant would not constitute sub-letting.
34. The learned counsel for the landlady, on the other hand, has submitted that the evidence of AW-1, 2, 4, 5 & 6 establishes that the goods of the two Corporations were sold by the employees of the Corporation and that the defence taken by the tenant that they are dealers of the two corporations has not been established at all. The agreements relied upon by the tenant were not even proved as per the provisions of the Evidence Act and further the tenant also failed to place on record the documents which may establish that, they use to purchase the goods from the 24 aforesaid two Corporations and were selling the same through their own employees. Regarding the evidence of AW-2, it is submitted that even if the said evidence is not taken into consideration, yet it was for the tenant to establish that the goods were sold by their employees but they have not done so, in as much as, they have not produced the attendance register or the salary register of their employees. As regards their accounts, number of discrepancies have been pointed out which goes to show that the account books maintained by the tenant are not worthy of credence. In this regard cross-examination of RW4 proves that the document brought by him is different than the one produced by the tenant. There are also difference in the rate amount and commission credited. As such, it is submitted that the judgment of the trial Court holding that the suit property was sublet to the aforesaid parties does not suffer from any infirmity. It is submitted that even if the deposition of AW2 is not considered, than also there is more than sufficient evidence to prove their case.
35. Both the parties have relied upon number of judgments in support of their respective cases. I have gone through the same. The crux of the ratio of the judgments relied upon can be summarized as under:-
"once presence of third parties is shown in the suit 25 property by the landlord, the onus to justify their presence and to explain as to in what capacity they are occupying the suit property, shifts upon the tenant. It is for the tenant to show that the third parties are either their partners or their employees and are not in exclusive possession of the suit premises or are mere user subject to the control and supervision of the tenant. In case tenant refers to an arrangement between the third parties and themselves, the tenant is then obliged to lead cogent evidence to prove the understanding between him and the third party which must go to show that it was not a case of sub-letting failing which presumption can be drawn against the tenant."
36. In the present case, AW-1 the son of the Landlady, has deposed :
"That the premises were sub-let to M/s Bharat Leather Corporation Ltd. and M/s Universal Luggage Manufacturing Co. (P) Ltd. and that in October, 1982, the respondent had put up a board of M/s Bharat Leather Corporation Ltd. and started the business of shoes. Staff of M/s Bharat Leather Corporation Ltd. was also sitting in the premises and for that consent of the petitioner was never obtained."
37. The landlady also proved the advertisements given in the newspapers on behalf of M/s Bharat Leather Corporation Ltd. which are Ex.AW5/1 and 5/2 and goes to show that the goods of M/s Bharat Leather Corporation Ltd were sold from the suit premises as their sales outlet. AW-1 also deposed that in December, 1983 M/s Universal Luggage Manufacturing Co. (P) Ltd. also started selling Aristocrat goods in the premises and its staff used to sit regularly and this Company also gave 26 advertisement in newspaper vide advertisement Ex.AW4/1. The language of Ex.AW4/1 is similar to Ex.AW5/1 and 5/2. The advertisements was given by M/s Universal Luggage Manufacturing Co. (P) Ltd., even though as per the Dealership Agreement, no such expenditure should have been incurred by the said company. A suggestion was given to AW-1 that no employee of M/s Bharat Leather Corporation Ltd. or M/s Universal Luggage Manufacturing Co. (P) Ltd. used to sit in the premises and that the goods were sold by the employees of the tenant, yet no record of the employees of the tenant was brought on record. Rather RW-1 who appeared as a witness on behalf of the tenant was unable to identify signatures of one Mukesh on the receipt Ex.RW1/A-12 as their employee.
38. As regards goods of M/s Universal Luggage Manufacturing Co. (P) Ltd. RW-1 deposed in his cross-examination that they did not have any separate bank account of that company for keeping the sale proceeds of the goods sold for that company on a particular day to be deposited in that bank account, even though such a term was one of the conditions of the Dealership Agreement relied upon by the tenant. The trial Court made the following observations:-
"Petitioner's case is that these goods were being sold by employees of these two companies who were sub-tenant whereas respondent's case is that goods were being sold by 27 respondent's themselves and it were being sold on commission basis. No employees of these two companies was there in the shop to sell those products. Witness further deposed that they are purchasing those goods from the companies and were selling under their cash memos. Witness admits in cross-examination that they have not filed account books of respondent's company or of M/s Bharat Leather Corporation Ltd. to show how money was being received by way of commission and how it was been accounted for in the books of accounts. Witness further admitted that M/s Bharat Leather Corporation Ltd. were advertising the goods for sale in the suit premises and respondent were not doing so. Witness further replied the suggestion as incorrect that employees of M/s Bharat Leather Corporation Ltd. were effecting the sale. Witness admitted that memo of sale of goods issued by him or any other partner have not been produced to show that goods were sold by respondent on behalf of M/s Bharat Leather Corporation Ltd. witness again admit in cross that attendance register of employees employee with M/s Singh Bros was not produced. Witness was confronted with receipt Ext. RW-1/A-12, where he deposed he did not know if signature of one Mr. Mukesh appearing on it was employee of M/s Bharat Leather Corporation Ltd. As regarding goods of M/s Universal Luggage Manufacturing Co. (P) Ltd. witness deposed in cross that he did not have any separate bank account of that company was being maintained or that sale proceed of a particular day in respect of goods of that company were deposited in that bank A/c. Witness admitted that books of account of respondent's firm had not been produced to show as to how money received from M/s Universal Luggage Manufacturing Co. (P) Ltd. were accounted for in our books of account. Witness admitted correctness of newspaper advertisement which were Ext. AW4/1 and AW 5/1 and AW5/2".
39. It is a matter of record that no bills for purchase of goods from M/s Bharat Leather Corporation Ltd. or M/s Universal Luggage Manufacturing 28 Co. (P) Ltd. have been produced by the tenant nor they have given any proof of the sale of these goods by them. Even though it is an averment made on behalf of the landlady that employees of these companies were selling their goods from the suit shop and hence it was a case of sub- letting. Moreover there is a admission that the advertisements Ex.AW4/1, 5/1 & 5/2 have been given by the aforesaid two Corporations and have not been given by the tenant. Under these circumstances, the trial Court further observed as under:-
"Had respondent been just agent selling goods of these companies on commission basis then there could not have been a need for these companies to issue an advertisement for sale of these products from the suit shop. There is no record coming from respondent company as about purchase of goods of these companies, if at all respondent company seeks to establish that they were selling the goods on commission basis after they have purchased it from these two companies. A/c books were also not produced to show that sale proceeds of goods of those two companies were being accounted on commission basis."
The above observations of the trial court are born out from the record and goes to prove that the tenant despite admitting about the sale of goods of M/s Bharat Leather Corporation and M/s Universal Luggage from the suit property failed to prove that those goods were sold by the tenant himself or through their employees. This raises a strong presumption about the presence of the above mentioned corporations as third parties in the suit 29 premises.
40. The learned counsel for the tenant submits that Ex.RW7/1 and 7/2 proves that the tenant was a dealer of the aforesaid two companies and used to sell the goods on commission basis. The tenant also referred to the record of the Sales Tax Department where they got endorsement about the sale of materials like leather goods and aristocrat luggage on the Sales Tax Registration and therefore, it was argued that there was enough evidence led by the tenant to establish , that they were the dealers of the aforesaid two Corporations.
41. However the aforesaid argument is untenable as the Dealership Agreement Ex.RW7/1 and 7/2 are the photocopies and were not duly proved and no corroborating evidence such as account books and purchase bills etc. were filed on record. In this regard, the trial Court made the following observations:-
"Now when we find petitioner establishing the case that goods of these two companies namely M/s Bharat Leather Corporation Ltd. and M/s Universal Luggage Manufacturing Co. (P) Ltd. were being sold by employees of these two companies then as per ruling 1994-RLR -170, onus to proving capacity of possession was on the tenant. It was permissible for the court to draw an inference that permitting another to occupy portion was for monetary consideration. Now towards discharge of this onus respondent relied upon documents Ext. RW7/1 and RW7/2.30
First of all I find myself agreeable with the submission of ld. petitioner counsel that merely because documents were exhibited it cannot be said that the documents were duly proved. The documents exhibited were photostat copies. RW7 prove these documents with statement that original agreement were with M/s Bharat Leather Corporation Ltd. and likewise original of RW7/2 was with M/s Universal Luggage Manufacturing Co. (P) Ltd. There is nothing on record that original of these two documents could not be got produced from these two companies. In the absence of material to prove that original documents was destroyed or could not be produced that photocopies could not be allowed to be read as evidence. Ld. Counsel on this point refer to 1995-RLR-286, where it has been held that:
"when a document is produced in evidence and is marked as an exhibit then it is only for identifying the document and is not its proof. Proof of contents of the document must be proved established by independent evidence. ''
42. I have carefully gone through the evidence which has come on record as well as the impugned order, and find that the order of the trial court based upon the correct appreciation of the evidence.
43. On the one hand the evidence led by the landlady goes to show that the goods of M/s Bharat Leather and Universal Luggage were sold from the suit property who were also advertising that the suit property was one of their outlet and a Board of M/s Bharat Leather was also put up outside the suit property through their own employees. Yet, the tenant has not led any evidence to prove that the goods were sold by their employees or that the 31 dealership agreement relied upon by them was genuine and was acted upon. Neither the documents of purchase nor the cashmemo's to show the regular sale of the product of the aforesaid companies through their own employees has been proved on record. As rightly observed by the trial court the tenant has also failed to prove the dealership agreements as per law. Even otherwise the two documents placed on record i.e. Ex. RW7/1 and RW7/2 shows that they are copies of two different documents . One has come from the tenant and one from RW7. Thus all the ingredients required to establish sub-letting have been proved in the case of M/s Bharat Leather and Universal Luggage. The judgment of the trial court to that extent needs no interference by this tribunal. Consequently RCA 179 and 224 of 1996 are dismissed.
44. Now coming to the cross objections landlady in respect of allegations of SUB-LETTING in relation to M/s Pronto Tools and M/s Weston Company I find that the allegations and reply of the parties was as under: 32
Allegations Reply
i) In 1978 the respondent sublet, i) It is denied that the tenant has
assigned and parted with the sublet, assigned and parted with
possession of the suit property to the possession of the suit property
M/s Pronto Tools (P) Ltd. in which to M/s Pronto Tools (P) Ltd. It is
Sardar Joginder Singh and Sardar denied that majority of the shares
Jaswant Singh were Directors but were held by outsiders or that the
the majority share holders were same was camouflaged company.
outsiders. Their presence was The report of local commissioner
certified by a report given by a is meaningless. Moreover, the
local commissioner appointed in overall control and supervision is
Suit No. 17/81. The company was with the tenant.
still in possession of the suit
property.
ii) Possession of the front portion ii) Allegations are denied. It is was handed over to M/s Weston further submitted that Video Company through S.K. Jain who Games Machine for some time installed video games with a view were placed by the tenant in a to augment income of the tenant. portion of the suit property but the same were operated under the control and supervision of the tenant and none else. The said business was however stopped before the filing of the suit.
45. Presence of M/s Pronto Tools Pvt. Ltd is established from the pleadings of the parties, evidence as well as from the report of AW6, The Local Commissioner for the sake of reference is reproduced hereunder:-
IN THE COURT OF Sh. S.K. TANDON, SUB JUDGE, FIRST CLASS:
DELHI.Suit No. 17/81 33
Smt. Nirmala Devi Versus M/s Singh Bros. Regd.
REPORT OF THE LOCAL COMMISSIONER Sir, I was appointed as local commissioner by this Hon'ble court in the above noted case and was directed to visit the shop bearing No.1.1371, Kashmere Gate, Delhi-110 006. I was also directed to prepare its plan and report as if any addition or alteration are being carried on in the above said shop or not.
Accordingly, I visited the said shop No. 1/1371, Kashmere Gate, Delhi-110 006 at about 5.00 P.M. When I reached at the shop, Mr. Vinod Gupta met out side the said shop, who told me that he is present on behalf of the plaintiff as he is the son of Smt. Nirmala Devi.
I entered in the said shop, where Sardar Maheder Singh, S. Dharam Pal Singh and Sardar Shampi Chadha were present. I show them the order of this Hon'ble court and told them the purpose of my visit. Firstly all of them hesitate on the pretext that neither they are props. of the firm nor partners and they can't allow me to inspect the shop without the permission of the owner of the firm. But later on they allowed me to inspect the shop. Mr. Shammi Chandha accompany me and show me all the shop. Mr. Shampi Chadha told me that they are rennovating the shop.
On going through the whole shop, it appears as if some wooden Recks, Woode Almirahs, and show -cases etc. have been removed and shifted from on place to other place recently. Some other portion inside the shop appears to be newly constructed. Electric wires and other electric fittings were not in a proper order and electric wires were handing here and there on the walls, which also appeared to be uprooted recently. In the passage (inside the shop) some old Iron angles and wooden racks, partitions etc. were lying. In the inner portion of the ground floor there were two wooden and ply-wood rooms iter crossing the one another. In one room some pare parts (Motor parts) were lying, which were containing the wrapper of PRONTO INUSTRIES: On the wall of both these inter- linked room sticker of 'PRONTO INDUSTRIES' were put up. One of these rooms there were about 10/12 'NEONSIONS' 34 (electric boards) of 'PRONTO INDUSTRIES some files and documents were lying pertaining to pronto Industries in one room. In one room there were three cases of wood containing the spare parts of pronto industries. Both these rooms of ply- wood were seems to be newly constructed. Mr. Shampi Chadha told me that 'PRONTO INDUSTRIES' also their own firm.
In the Mezzanine floor there were two rooms and some open covered space as shown in the enclosed site plan. In space also some wooden racks, partitions, Iron were lying. One of the room facing the wooden were found closed, and Mr. Chandha expressed his unability in opening the same. I have drawn the plan of the shop which is enclosed as ANNEXURE 'A' photostat copy of the site plan was supplied to me by Sh. Vinod Gupta also, which is according the situation of the shop, which is also enclosed as ANNEXURE 'B'. My proceeding is enclosed as ANNEXURE 'C' Hence report is submitted accordingly.
Encl. As above (3) Sd/- NARENDER JAIN, ADVOCATE LOCAL COMMISSIONER 13.01.81.
File Sd/- Illeible Sub Judge Delhi.
46.The tenant has questioned the authenticity and relevancy of the report but they have not disputed that such inspection was carried out. Even if, it is taken that AW6 was not authorized to make observations about the existence of M/s Pronto Tools Pvt. Ltd., his testimony can certainly be considered as a chance witness. In this regard I can also rely upon the observations made in the case of S.C. Mese Coop. Society Vs. V.K. Nambiar (supra).
35
47. Now coming to the stand of the parties I find, that while, the landlady was specific in stating that the business of M/s Pronto Tools Pvt. Ltd was carried out in the suit property and even though two of the partners of the tenant were its Directors, yet they also specifically pleaded that the majority shares of M/s Pronto Tools Pvt. Ltd was with others. This fact was denied by the tenant in the written statement. Yet, the tenant has not led evidence to show, that the majority shares of the aforesaid company were with the partners of the tenant.
48. AW1 Shri Jugal Kishore Gupta on oath has stated that M/s Pronto Tools Pvt. Ltd are still in the premises. The back portion in the shop is occupied by M/s Pronto Tools Pvt. Ltd. Yet he has not not been cross- examined by the tenant on this aspect Shri N.K. Jain, Local Commissioner who appeared as AW6 has proved his report Ex. AW6/1. A perusal of the report goes to show that motors spares parts of the M/s Pronto Tools Pvt. Ltd. Were lying in the suit premises. Yet, in his cross- examination, no suggestion has been given that the report given by him is not a correct report or that M/s Pronto Tools Pvt. Ltd. is not presence in the suit property.
49. Now coming to the evidence of the respondent, RW1 Shri Jaswant 36 Singh Chadha one of the partners deposed as under:-
"Pronto Tools Pvt. Ltd. is a public Limited Company. It has about 6/7 directors having its factory at Loni and registered office at 123 Ansal Bhawan, New Delhi. I was one of the directors of the said company in the year 1983. Respondent No. 2 Mahant Joginder Singh was also director of the said company and he remained its director up to 1985. No part of the suit premises was either sublet or signed or parted with possession by the respondent and to the said Pronto Tools Pvt. Ltd. We used to carry some samples and bring some samples of motor spare parts manufactured by Pronto Tools Pvt. Ltd. for the purposes of showing as samples in the motor parts market which is situated nearby. We never used to store any of the manufactured goods of the said Pronto Tools Pvt. Ltd. No place or room whatsoever was earmarked for the said company Pronto Tools Private Ltd. we never used to receive any rent from Pronto Tools Ltd. nor any portion was let out to them. Whatever samples were brought at the suit premises , they were under either my control or under the control of Mehant Joginder Singh respondent No. 2. Neither any employee nor any other person from Pronto Tools Pvt. Ltd. ever functioned from the suit premises. During the time when I and respondent No. 2 were directors of Pranto Tools Pvt. Ltd., the control of the suit premises was always of respondent No. 1 and its partners."
50. The aforesaid deposition of RW1 establishes that the suit propery was being used for storing and selling of the goods belongings to M/s Pronto Tools Pvt. Ltd. In his cross-examination he deposed as under:-
"Prompto Tools was and is a private Ltd. I was a Director of the said Pronto Tools but I resigned in 37 1983. Mahant Joginder Singh was another person who was Director in the Pronto Tools who also retired in 1985. Pronto Tools Pvt. Ltd. did not enter into any arrangement in writing or otherwise for carrying on its activities at the premises of Singh Brothers at Kashmeri Gate. Vol: Pronto Tools Pvt. Ltd. was never operated from the suit premises."
51. Another witness namely Mahant Joginder Singh RW4 who is also a partner of the tenant, deposed as under:
"M/s Pronto Tools Pvt. Ltd. is a private Ltd. company the registered office of the said company is at 123 Ansal Bhawan New Delhi. I cannot give the exact date on which the said company was floated but it was about in the year 1980 or so, when the said company was floated, myself and respondent no. 2 Shri Jaswant Singh were also the Directors of the said company. The said company was functioning from 123 Ansal Bhawan where it had its registered office and the company had its factory at Lone. The said company was engaged in the manufacturing of Motor and Truck parts. I resigned from the Directorship of the said company in the year 1985 whereas respondent No. 2 Sardar Jaswant Singh resigned from the Directorship of the said Co. in the year 1983. No part of th suit premises was ever given on rent or otherwise to the said M/s Pronto Tools Pvt. Ltd. nor any rent was ever received from the said Pronto Pvt. Ltd. No employee or anybody else on behalf of the said M/s Prompto Tools Ltd. ever operated or functioned from the suit premises. The control and management of the suit premises during the period when we were directors of the said M/s Promto Tools Pvt. Ltd. remained with the partners of respondent No. 1. During the time 38 when the said company was floated and we remained directors of the said company, the management, central and supervision and supervision of the suit premises was with the partners of respondent No. 1, we used to open and close the shop. The product was sold by M/s Pronto Tools Pvt. Ltd. in the Kashmeri Gate Motor Market and the goods were sold through the registered office of the company at 123 Ansal Bhawan and also from Loni Factory. We some times used to bring samples for showing in the motor market. I have brought the original books of accounts with me since 1978, of respondent No. 1. In our books of accounts of respondent No. 1 no transaction of Pronto Tools Pvt. Ltd. are entered nor there is any income shown. Similarly in our books of account there is no dealing of any nature with the said Pronto Tools Pvt. Ltd. Pronto Tools Pvt. Ltd. has no connection whatsoever in the suit premises."
52.From the deposition of RW1 and 4 read with the report of local commissioner it is proved that the goods of M/s Pronto Tools were being sold from the suit premises without the permission of the landlady adn without keeping any record of such sale. Admittedly, there is no arrangement between the said company and the tenants to prove that the possession of M/s Pronto Tools Pvt. Ltd. was only permissive and the user of the premises by them was not for commercial purposes and to earn profit. The tenants have also not placed on the record the share holding pattern of M/s Pronto Tools Pvt. Ltd., despite admission that majority 39 shares of the company were with the outsider. In this regard cross- examination of RW4 recorded on 09.8.1991 recorded on 09.8.1991 can be noticed. The said portion is reproduced for the sake of reference:
" It is correct that I was holding 50 shares for the value of Rs. 5000/- only in the total in Pronto Tools Pvt. Ltd. I cannot admit or deny if the total shares allotted by Pronto Tools Pvt. Ltd. were were Rs. 2450. S.D. Bali was one of the Directors and B.S. Rana was another Director. Harbans Singh was also a Director but I cannot say if he was holding maximum number of shares i.e. 1250 shares. We used to keep the sample of Pronto Tools at Singh Brother to show in the market for sale of the product. There was no agreement between the Pronto Tools Pvt. Ltd. and Singh Brothers."
53.The evidence as discussed above has not even been referred to by the Trial Court. This kind of approach of the trial court is erroneous and makes the order illegal. Scrutiny of the evidence establishes the presence of M/s Pronto Tools Pvt. Ltd as their goods were stored and sold from the suit property. In the absence of any record maintained by the tenants about dealing with Pronto Tools Pvt. Ltd and admissions of the tenant that the majority of the shares of the company were with outsider establishes their presence in the suit property as a third party without any explanation as to their right to use the tenanted property without the consent of the landlady. I am, therefore, of the considered opinion that this is also a case of subletting and therefore, the landlady is also entitled 40 to a decree of eviction u/s 14(1)(b) of the DRC Act even on the ground of subletting of the suit property in favour of the M/s Pronto Tools Pvt. Ltd.
54. Now coming to the case of M/s Weston Company, I find, that the respondents in their written statement have admitted that Video Game Machines for some time were plied in a portion of the premises and the same were being operated under the supervision and control of the tenant Later on they stopped the business of video games machines before the institution of the present eviction petition. In this regard AW1, Shri Jugal Kishore Gupta stated on oath that in 1981 the respondents sublet the premises to Shri S.K. Jain proprietor of Skyways Construction Company for running Video Games of M/s Weston Company without the consent and permission of the landlady. I have gone through the cross- examination of AW1 but nothing came on record to deny his statement.
55. Respondents witness RW4 Sardar Mahant Joginder Singh deposed , "
M/s Skyways of video games was numbering 8 to 10 were installed and they were running under our supervision and control. We used to share proceeds of sale from the game. There was no agreement in writing with M/s Sky Ways Video. The arrangement with Sky Ways Company was oral.
The said Sky Wave were not paying any rent nor we have given. These video games were run for about years and a half. We are showing our 41 income from the books of accounts." However, it will also be appropriate to take note of his cross-examination on this aspect:-
"It is incorrect to suggest that I have not produced the record because the rent of Skyways Company, Pronto Tools Pvt. Ltd., Bharat Leather Corporation, Universal Luggage Manufacturing Co. Pvt. Ltd are reflected in the Books of Accounts for the period 1979 to 1983. It is incorrect to suggest that trading, profit and loss, balance sheet accounts etc for the year 1979 to 1983 are all false, fabricated and forged and are not based on the books of accounts of this period."
56.It is, therefore, apparent, that the video game machines of M/s Weston Company were plied in the suit premises and the tenant was sharing the profits out of the income generated from running of these machines in ratio of 50:50. Yet, no evidence has been led to prove such arrangement so as to exclude the possibility of a secrete arrangement between the tenant and Shri S.K. Jain . No account which may show that what was the total income and how much was paid to the person who supplied the video games and how much has been appropriated by tenants is reflected in the books of accounts. Mr. S.K. Jain has not been examined.
57. Thus, the statement of the witnesses of the respondent itself disclose some kind of arrangement between the tenant and the machine supplier which has been kept behived. Even if, for the sake of argument is is 42 accepted that the tenants' share was 50% of the income by running the machines in question and the machines were being plied under their control and supervision, it only establishes, that by keeping those machines in the suit property which was not the normal business of the tenants they were earning to the extent of 50% of the share of the proceeds in for just keeping those machines in the suit property. It only means that, they allowed user of the suit property for earning income out of the use of the suit premises. This cannot be permitted.
58. Even if it was a case of genuine partnership, the onus to prove such a partnership was upon the tenant. Only if relevant records would have come before the trial court, then only a scrutiny could have been possibility to accept the version of the tenant as to how and on what basis the video game machines were allowed to be run in the suit property. Thus, an inference can certainly be drawn that what was coming to the share of tenant for using the suit premises by Shri S.K. Jain of Sky Ways for plying the machines of M/s Weston Company with a view to earn to earn income by user of the suit premises and therefore this also would constitute subletting. The judgment of Jagdish Kumar Vs. Agra Taxi Service (supra) can also be referred to in this regard. Consequently the landlady also succeed in respect of her cross objections in this regard also. 43
59. In her cross-objections the landlady has made grievance about dismissal of the their case on the ground u/s 14(1) (c) (j) and (f) of the DRC Act. In this regard the trial court in para 24 of the judgment has made the following observations:-
"24. As regarding other grounds of misuser I find petitioner does not make out a case. First of all it is undisputed fact that premises were let out for commercial purposes and it has been used for commercial purposes. There is no evidence on record that letting purposes of premises was initially for Arms and Ammunition dealer . Premises was let out much much before petitioner purchased it in 1966. Business carried out by respondent other than Arms and Ammunition from time to time does not amount to misuse of premises. Likewise there is no case found proved and established that respondents have cause any subnstantial damages to the petitioner. Petition case that by removing a display window respondents have caused damage to the fron wall which has gone weak on which whole building is resting and has remained just a plea. Not substanitate by evidence of any architect or experts."
60. Allegations of landlady about misuser, causing substantial damage, and making the premises inhabitable are detailed in Annexure B, C and D which has also been discussed by me in para 3 of the judgment above. All the allegations have been denied by the respondent..
61. A perusal of the record goes to show that the only evidence led by the landlady to prove her aforesaid allegations is the report of the Local 44 Commissioner who appeared as AW6. I have quoted the report in para 48 of the judgment. This report does not by itself show, that substantial damage has been caused in the suit property or that the property has become unsafe for human habitation. There being no other evidence such as the report an architect, the allegations of landlady causing substantial damage to the property or making it unfit for human habitant cannot be accepted.
62. As regard the plea of misuser , no evidence that the suit property was only let out for doing the business of Arms and Ammunition dealer has come on record. In the absence of any written lease, it cannot be presumed , that the tenant was not entitled to carry on other business once it was let out for commercial purposes. Thus, I do not find any infirmity in the trial court judgment in this regard. Accordingly, the cross-objections with respect to the grounds u/s 14(1) (c) (j) and (f) of the DRC Act are dismissed.
63. In view of my detailed discussions held above, the appeals filed by the tenant are dismissed. However the cross-objections filed by the landlady are allowed by modifying judgment of the trial court the ground of subletting of the suit property in favour of M/s Pronto Tools Pvt. Ltd., and M/s Weston Company also stand proved. However, the cross- 45 objection filed by the landlady qua the ground of eviction u/s 14(1) (c) (j) and (f) are dismissed with costs of Rs. 20,000/- to be payable by the tenant to the appellant.
64. Application filed by the tenant u/o 41 rule 27 CPC in RCA No 179/96 has been dismissed vide separate order. Copy of this order be sent to the trial court along with TCR and copy thereof be kept in all the files. Appeal files be consigned to the record room.
(M.C.GARG) ADDL. RENT CONTROL TRIBUNA,DELHI Dated: 16.3.2007 46