Delhi District Court
M/S. Atma Ram Properties Pvt. Ltd vs Capt. M.N. Narang (Since Deceased ... on 14 November, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
PATIALA HOUSE COURTS : NEW DELHI
RCT19/2017
CNR No. DLND010105272017
M/s. Atma Ram Properties Pvt. Ltd.
Office No.8, First Floor,
Atma Ram Mansion (Scindia House),
Connaught Circus,
New Delhi110001
Through its Director/Principal Officer
Sh. C.M. Chadha .......Appellant
Versus
1. Capt. M.N. Narang (since deceased through his LRs)
(a) Mrs. Krishna Narang (since deceased)
Through her Legal Heirs
who are already parties as respondents No. 1(b), 1(c), 1(d), 1(e)
(b)Shri Sominder Nath Narang
S/o Late Capt. M.N. Narang,
R/o K49,Jangpura Extn. Market,
New Delhi110014
(c) Mrs. Poonam Kumar
D/o Late Capt. M.N. Narang,
Hartmann Ibach, Str. 63, 60389 Frankfurt,
Germany
(d)Mrs. Meena Mehra
D/o Late Capt. M.N. Narang
D19, Nizamuddin West
New Delhi110013
(e) Mrs. Anu Soni
D/o Late Capt. M.N. Narang
I14, Birbal Road, Jangpura Extension,
New Delhi110014
RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 1 of 33
2. Mr. P.N. Narang
S/o Late Dr. D.N. Narang
R/o 34/23, East Patel Nagar,
New Delhi 110008 (Ex parte vide order dated 26.09.2017)
3. Mrs. Kamlesh Kalra (since deceased)
Through LRs
(a) Sh. Praveen Kalra
S/o Late Smt. Kamlesh Kalra
R/o House No. 144, First Floor,
Sector9B, Chandigarh
(b)Ms. Bela Prasad
D/o Late Smt. Kamlesh Kalra
R/o House No. 144, First Floor,
Sector9B, Chandigarh (Ex parte vide order dated 04.01.2018)
4. Dr. Sudha Narang
D/o Late Dr. D.N. Narang
R/o 1046 Startford Lane
Bloomfield Hills
Michigan48013 (U.S.A.) (Ex parte vide order dated 27.11.2018)
5. M/s. Narang Corporation
P25/90, Connaught Circus
(Below Madras Hotel)
New Delhi110001
6. M/s. Suneja Book Centre
P24/90, Connaught Circus
(Below Madras Hotel)
New Delhi (Ex parte vide order dated 26.09.2017)
7. M/s. Navrang Corporation
(Franchise of M/s. Idea Cellular Ltd.)
Shop No. P25/90, Connaught Circus
(Below Madras Hotel)
New Delhi110001 (Ex parte vide order dated 06.03.2018)
RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 2 of 33
Also at:
6025, Naya Bans
Delhi110006
8. M/s. Idea Cellular Limited
A30, Mohan Coop. Industrial Estate
Mathura Road,
New Delhi110044
Also at:
Plot No. A68, Sector64,
(Opposite Fortis Hospital)
Noida201301, Uttar Pradesh ..... Respondents
Date of filing of Eviction Petition : 15.12.2003
Date of impugned judgment : 03.06.2017
Date of filing of the appeal : 11.08.2017
Date of arguments in appeal : 02.11.2022
Date of judgment : 14.11.2022
Appearances:
Mr. Amit Sethi and Ms. Ekadhana Sethi, Advocates for the appellant.
Mr. Ajay Kapur, Sr. Advocate alongwith Sh. Raghuveer Kapur, Sh. Prashant
Choudhary, Advocates for the respondent Nos. 1(b), 3(a) and 5.
Sh. Prashant Choudhary, Advocate for respondent No.8.
Remaining respondents are ex parte.
JUDGMENT:
1. This judgment shall decide an appeal preferred by the appellant/landlordcompany (hereinafter referred as the appellant/landlord) under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act') assailing order/judgmentdated 03.06.2017 passed by the Court of Ms. Vandana Jain, the then Ld. Senior Civil JudgecumRent Controller, New Delhi District, Patiala House Courts, New Delhi (hereinafter referred as 'Ld. Trial Court'), whereby the eviction petition bearing RC No. RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 3 of 33 5535/16 (Old No. D1633/03) under Section 14 (1) (b) of the DRC Act filed by the appellant/landlord against the respondents was dismissed. FACTUAL BACKGROUND:
2. Briefly stated, the appellant/landlord filed an eviction petition through Sh. S. Dasan, its Manager, who claimed to be duly authorized to institute, plead, prosecute and testify in the eviction petition by virtue of Resolution passed by the Board of Directors dated 03.12.2003 Ex.PW1/1. It was the case of the appellant/landlord that the premises in dispute viz. Shop No. 2425 (also known as Shop No. P24 and P25) bearing Municipal No. 4766 & 4767, Block 90, Connaught Circus, New Delhi, was purchased by the appellant/landlord from its previous owners, namely Smt. Bholi Devi Jain and Sh. Alok Kumar Jain through registered Sale Deed dated 09.09.1992 Ex.PW1/3. It was stated that the tenancy premises were let out to Dr. D.N. Narang @ Rs. 304/ excluding other charges by Smt. Rajeshuri Devi(which is wrongly spelt and correct name is Rajeshuri and be read accordingly), the then predecessorintitle of the appellant/landlord for business/ commercial purposes; and that by virtue of notice dated 12.04.1993 Ex.PW1/20 served by the appellant/landlord, the contractual tenancy was terminated by the end of tenancy month of May1993; and that the original tenant Dr. D.N. Narang died on 08.01.1988 leaving behind by respondent Nos. 1 to 4 as his legal heirs and the grievance of the appellant/landlord was that the respondent Nos. 1 to 4 unauthorizedly sublet, assigned or otherwise parted with the possession of the tenancy premises without its due consent in writing. It was the case of the appellant/landlord that respondent Nos. 1 to 4 sublet the shop bearing Municipal No. 4766 (shop No. 24 or P24) and part of shop RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 4 of 33 bearing Municipal No. 4767 (shop No. 25 or P25) to respondent No.5 and respondent No.5 has further unauthorizedly sublet, assigned or parted with the possession of the shop No. 25 or P25 to the respondent Nos. 7 and 8. While stating that respondent No.6, as also respondent Nos. 7 and 8 are not necessary parties as they have been in unauthorized occupation of the shops, the appellant/landlord nevertheless impleaded them in the petition to avoid any future dispute; and accordingly eviction of the respondents was sought under Section 14 (1) (b) of the DRC Act.
3. Joint written statement was filed by respondent No.1, 3 and 5 wherein inter alia contesting the eviction petition, it was stated that there was no cause of action to file the eviction petition as the tenancy premises was let out by Pandit Manmohan Nath Dar to Dr. D.N. Narang, who had requested the landlord Pandit Manmohan Nath Dar to permit him to sublet the premises and accordingly, the erstwhile owner/landlord Pandit Manmohan Nath Dar gave written consent to Dr. D.N. Narang to sublet the premises in lieu whereof the rent was also increased by 25% vide letter dated 1st April 1951 Ex. RW1/1; and consequently the original tenant Dr. D.N. Narang had let out part of the tenancy premises to Sh. Ram Suneja w.e.f 01.04.1951. It was the case of the respondent Nos. 1,3 and 5 in the joint written statement that certain objections were taken in year 1964 by one Sh. Atma Ram, who was Attorney of the landlords that the rental cheques issued by Narang Corporation were not acceptable , that prompted Dr. D.N. Narang to write a letter to Smt. Rajeshuri Devi (who was daughter of Pandit Manmohan Nath Dar, who had inherited the right, title and interest in the tenancy premises by virtue of Will dated 10.01.1959 left behind in her favour by her father) that RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 5 of 33 the tenancy premises stood in his name but he was paying 25% extra rent on being given permission to sublet the premises. It was the defence of the respondent Nos. 1,3 and 5 that Smt. Rajeshuri Devi vide letter dated 16.04.1964 Ex.RW1/3 wrote/replied to Dr. D.N. Narang that she had 'no objection' to his subletting the premises to M/s. Narang Corporation and Mr. Sri Ram Suneja of Suneja Book Centre; and that Smt. Rajeshuri Devi further agreed to accept the cheques issued by M/s. Narang Corporation. It was further the case of the answering respondents that vide letter dated 11.08.1990 Ex.PW1/4 Smt. Rajeshuri Devi informed Dr. D.N. Narang that she had sold the property in question to Smt. Bholi Devi Jain and Sh. Alok Kumar Jain and the factum of premises being sublet had been mentioned in the Sale Deed dated 16.05.1979 PW1/R1 ; and that Mr. Praveen Kalara in the capacity of Partner of M/s. Narang Corporation had written a letter to the appellant/landlord dated 17.03.1993 Ex.PW1/13 informing the appellant/ landlord about permission accorded to them to sublet the premises, which was even replied by the appellant/landlord vide letter dated 22.03.1993 Ex.PW1/14. It was thus the case of the answering respondents/legal heirs of deceased Dr. D.N. Narang that the premises had been lawfully sublet as per provisions of the DRC Act so much so that the consent for subletting granted to Dr. D.N. Narang had been indicated in the Sale Deed dated 16.05.1979 executed by Smt. Rajeshuri Devi in favour of Smt. Bholi Devi Jain and Sh. Alok Kumar Jain, which fact was indicated by her in her letter dated 19.10.1980 Ex.PW1/15 addressed to Dr. D.N.Narang, and therefore, it was urged that the appellant/landlord stepped into the shoes of the original owner/landlord and was bound by the consent given by the erstwhile RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 6 of 33 owner/landlord for allowing them to sublet the tenancy premises. On merits, denying the case of the appellant/landlord, it was submitted that the answering respondents/LRs No. 1, 3 and 4 have been in complete control of the tenancy premises in question whereas respondent Nos. 6, 7, and 8 had no right, title or interest in the premises in question; and it was stated that M/s. Narang Corporation is rather a Franchise of M/s. Idea Cellular Limited that was providing consignments of respondent No.8 to respondent No.5 on commission basis and it is the respondent No.1, who all along has been conducting consultancy business from the premises in question under the name & style 'Simplex Consultants' besides also conducting business of food processing, machinery, firefighting equipments etc. and it was specifically denied that any sale or purchase of respondent No.8 is conducted from the tenancy premises.
4. Needless to state, a detailed replication was filed by the appellant/landlord and the averments made in the written statement by the answering respondents were refuted tooth and nail. The respondent Nos. 2, 4, 6, 7 and 8 were proceeded ex parte. During the course of trial, the appellant/landlord examined Sh. S. Dasan, its Manager as PW1, who filed a detailed affidavit in evidence dated 06.01.2005 Ex.PW1/A and was subjected to lengthy crossexamination on 06.09.2005; 08.01.2007; and 18.09.2007. Likewise, when it came to the turn of the respondents, the respondent No.1 Captain M.N. Narang was examined as RW1, who tendered his affidavit in evidence dated 10.03.2008 Ex.RW1/A and he was crossexamined on 18.08.2008. RW2 was Sh. Ashok Kumar, UDC from the office of Registrar of Firms, who deposed about the copies of Form A, B RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 7 of 33 and C of M/s. Narang Corporation, which are Ex.RW2/1 to RW2/3 respectively. RW3 was Sh. Virender Kumar, who deposed about statement of account of M/s. Narang Corporation in Allahabad Bank for the period 01.01.2001 to 23.07.2007 Ex.RW3/1; RW4 was Man Singh, Head Clerk from Trade and Taxes Department but he was unable to produce any record since it had been weededout; and the last witness was RW5 Ms. Poonam Narang, Partner of M/s. Narang Corporation/ respondent No.5. She filed her affidavit in evidence dated 18.08.2008 Ex.RW5/A and was crossexamined on 16.04.2015 and 30.06.2015; and RW6 was Sh.Mukesh Kumar, Tax Assistant but he could not produce the summoned record i.e. the income tax record of M/s.Narang Corporation for the assessment year 196566. IMPUGNED JUDGMENT:
5. In a nutshell, Ld. Trial Court vide the impugned Judgment dated 03.06.2017 on appreciation of evidence came to the conclusion that the tenancy premises was allowed to be sublet by the original tenant Dr. D.N. Narang, which fact was verified by Smt. Rajeshuri Devi in her letter dated 16.04.1964 Ex.RW1/3 so much so that said fact was recorded in the Sale Deed dated 16.05.1979 and evidence brought out that respondent No.5 had been conducting business from the tenancy premises for more than 50 years.
Although, the Ld. Trial Court did not find any merit in the plea by the learned Counsel for the respondents that the eviction petition was barred by limitation, it categorically observed that there was no merit in the claim of the the appellant/landlord that since the "written consent" was not registered in terms of Section 17 of the Registration Act, 1908, it could not be read in evidence. Ld. Trial Court also did not find any substance in the plea that no RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 8 of 33 notice had been given by the sublettee M/s. Narang Corporation or Shri Ram Suneja in terms of Sections 16, 17 and 18 of the DRC Act, and therefore, there was no consent for subletting, for which reliance was placed on decision in the case of Muarari Lal v. Abdul Ghaffar, 1973 RLR 748 (DB). Ld. Trial Court also found that the testimony of PW1 S. Dasan was not reliable as he had not deposed about certain vital aspects of the case from his personal knowledge and he had been evasive about permission given to Dr. D.N. Narang to sublet the premises by Smt. Rajeshuri Devi in terms of letter dated 16.06.1964 Ex.RW1/3 and/or for that matter reflection or stipulation in the Sale Deed dated 16.05.1979 executed by Smt. Rajeshuri Devi in favour of Smt. Bholi Devi Jain and Sh. Alok Kumar Jain. Ld. Trial Court recorded a categorical finding that RW5 had closed its business for more than 10 years and prior to 2008, he was purchasing goods from respondent No.7 and it found no evidence to support the case of the appellant/landlord that the tenancy premises had been sublet to respondent Nos. 7 and 8, or that they were ever in exclusive possession of the same. Ld. Trial Court relied on decisions in the case of Padma Sundara Rao & Ors. v. State of Tamil Nandu & Ors., (2002) 3 SCC 533 and accordingly the petition under Section 14 (1) (b) of the DRC Act was dismissed.
GROUNDS OF APPEAL:
6. The appellant/landlord has assailed the impugned Judgment dated 03.06.2017 inter alia on the grounds that the Ld. Trial Court wrongly relied upon the letter dated 01.04.1951Ex. RW1/1 and 16.04.1964 Ex. RW 1/3 whereby the alleged permission for subletting was given as they formed part of an unregistered sale deed contrary to the ratio given in the case of RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 9 of 33 Bajaj Auto Ltd. v. Behari Lal Kohli, AIR 1989 SC 1806; and that the Ld. Trial Court overlooked the violation of or legal implication of Section 17 (1)
(b) of the Registration Act, 1908; and that there was no valid consent for subletting of the premises to the original tenant or his legal heirs, which was only a personal right and not otherwise inheritable and the appellant/landlord had never consented to continuation of subletting in favour of respondent Nos. 5 to 8; and that the Ld. Trial Court wrongly concluded that since the erstwhile landlord/owner had not raised any issue about nonserving of mandatory notice under Section 17 of the DRC Act, the successorininterest i.e., the appellant/landlord was barred from raising such issue; and that the Ld. Trial Court failed to appreciate that nonserving of notice or belated notice dated 17.03.1993 by the respondent No.5 to the appellant/landlord was not in accordance with Rule 21 of the DRC Rules, 1959; and that the Ld. Trial Court did not correctly appreciate the ratio decidendi in the case of Murari Lal vs. Abdul Gaffur (Supra) and the Ld. Trial Court overlooked the settled law by the Apex Court in the case of Girdhari Lal & Sons v.
Bablbir Nath Mathur and Ors. 1986 (2) RCR 361, wherein it was clearly held that if the twin conditions of Section 17 of the DRC Act are not satisfied, the subtenant cannot take advantage or claim himself to be lawful tenant or subtenant in the tenancy premises; and that the Ld. Trial Court overlooked the testimony of PW5 Ms. Poonam Narang, who conceded in her crossexamination that respondent No.5 was inducted as subtenant in the year 1964 in respect of the property No. P25 and the document Ex.RW1/2 dated 15.04.1964 is on the Letter Head of the respondent No.5; and that if the consent was given on 16.04.1964 how come the respondent Nos. 5 and 6 RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 10 of 33 claim themselves to be in possession on 15.04.1964; and that the Ld. Trial Court failed to appreciate that RW5 in her testimony conceded that the respondent No.5 was in possession of premises No. P25 measuring about 800 Sq. Feet, which fact completely demolished the stand taken by RW1 that he was in possession of the part of the portion of P25; and that the Ld. Trial Court wrongly concluded that there was no mention by the appellant/landlord in the petition to Section 18 of the DRC Act, which was by all means a jurisdictional question that could always be raised; and that the Ld. Trial Court erroneously concluded that Sh. S. Dasan was not a competent witness merely because the minutes book was not produced; and that once the appellant/landlord has been able to demonstrate that the third party was in part control and possession of the tenancy premises, the onus of proof shifted upon the respondents/legal heirs of the deceased Dr. D.N. Narang to prove the manner of use, occupation and control of the premises. LEGAL SUBMISSIONS:
7. The main plank of the legal submissions of Sh. Amit Sethi, Ld. Counsel for the appellant/landlord was that purported letter of consent dated 01.04.1951 Ex.RW1/1 and letter dated 16.04.1964 Ex.RW1/3 were not in the nature of written permission allowing the original tenant Dr. D.N. Narang to sublet the premises and even if it is assumed to be giving consent, the said letters were useless piece of paper, which could not be read in evidence by virtue of the same having not been registered as per law under Section 17 (b) of the Registration Act, 1908. It was vehemently urged that since such letters were creating subletting, it was mandatorily required to be registered; and it was urged that since Dr. D.N. Narang died on 08.01.1988 the permission or RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 11 of 33 right to sublet got extinguished and did not survive in favour of the LRs of deceased original tenants since the contractual tenancy was terminated vide letter dated 12.04.1993 Ex.PW1/20. Mr Sethi also vehemently urged that even assuming any permission was given for subletting, since no notice was given as per Section 17 of the DRC Act in terms of Form (F) prescribed in Rule 21 of the DRC Rules by the original tenant or the subtenant, there was no permission in the eyes of law to sublet the premises. It was vehemently urged that even if consent or permission is given for subletting, it is not valid for all times to come for which reliance was placed on the decision in the case of M/s. Sardar Estates v. Atma Ram Properties Ltd. & Ors., SAO No. 51/1998 by the Hon'ble Judge of the Hon'ble High Court of Delhi dated 1st January, 2000. It was also vehemently urged that the consent, if any, was personal to the original tenant Dr. D.N. Narang and the appellant being the landlord never consented to continuation of the subtenancy as per several letters proved on the record, and reference was invited to the documents placed on the record that go to suggest that constitution of the partnership firm has been changed over the years and at present Mr. Praveen and Ms. Poonam are the partners and the latter was not even a legal heir of deceased Dr. D.N. Narang. In his submissions, Ld. Counsel for the appellant/landlord has placed reliance on decisions in Phoolwati & Ors. v. Smt. Harsh Gogia & Ors., 62 (1996) Delhi Law Times 485; Avinash Kumar Chauhan v.
Vijay Krishna Mishra, (2009) 2 SCC 532; Raja Ram Goyal v. Ashok Kumar, 1976 DLT 3; Kapil Bhargava (Mrs.) & Ors. v. Subhash Chand Aggarwal, (2001) 6 SCC 645; Daulat Singh Chadha v. Rajender Kumar & Ors., 53 (1994) DLT 437; Saremal Ratanchand v. Juhar Mal RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 12 of 33 Bhabutmal, AIR 1977 Rajasthan 85; Shanti Devi (dead) v. Dwarka Das, 2005 (2) RCR 67; Vaishakhi Ram & Ors. v. Sanjeev Kumar Bhatiani, (2008) 14 SCC 356; M/s. Bharat Sales Ltd. v. Life Insurance Corporation of India, 1998 (1) RCR 272.
8. Per Contra Sh. Ajay Kapur, Ld. Senior Advocate for the respondents was mercifully brief who urged that the appellant/landlord has tried to make out a case as if subletting had taken place after 1988 on the death of the original tenant Dr. D.N. Narang whereas the letters Ex.RW1/1 and RW1/3 dated 01.04.1951 and 16.04.1964 would clearly demonstrate that subletting had already taken place way back during the erstwhile ownership of Pandit Manmohan Nath Dar and the eviction petition is hopelessly barred by limitation. It was vehemently urged that the eviction petition was absolutely barred by limitation since the subletting had taken place prior to enforcement of the present Delhi Rent Control Act, 1958. The point that was addressed was that there was no authorization in favour of PW1 to depose in the present matter, who otherwise too had no personal knowledge of the facts and circumstances of the case, and his testimony that no written consent was ever given for subletting was contrary to the evidence brought on the record. Mr. Kapur, Ld. Senior Advocate tore into the testimony of PW1 pointing out that PW1 in his crossexamination acknowledged that it was the respondent No.1 Captain M.N. Narang, who had always been in use, possession and control of the tenancy shop running his own business, and lastly it was urged that the partnership firm has continued over the years and Sh. Praveen Kalra, who happens to be son of the deceased original tenant still runs his commission shop and has been in use and occupation of the premises. The RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 13 of 33 case law cited by the learned Counsel for the appellant/landlord was sought to be distinguished. Mr. Kapur, has relied upon decisions in Maheshwar Dayal (dead) v. Shanti Devi & Ors., 2012 III AD (Delhi) 123; Dipak Banerjee v. Lilabhai Chakraborty, AIR 1987 SC 2055; Municipal Corporation of the City of Jabalpur v. State of Madhya Pradesh, AIR 1966 SC 837; Rajgopal (dead) by LRs v. Krishan Gopal & Anr., 2003 VIII AD (SC) 277; State Bank of Travancore v. M/s. Kingston Computers (I) P. Ltd., 2011 (11) SCC 524; Atma Ram Properties (P) Ltd. v. M/s. Allied Motors (P) Ltd., 2010 VII AD (Delhi) 598; and V. Somasundra Mudaliar & Anr. v. The Madras Provincial Cooperative Marketing Society Ltd., AIR 1950 Madras 711.
DECISION:
9. I have given my thoughtful consideration to the lengthy submissions made by the learned Counsel for the rival parties at the Bar. I have meticulously gone through the oral as well as documentary evidence brought on the record.
10. In order to decide the instant appeal, it would be expedient to reproduce the relevant provisions of Section 14 (1) (b) of the DRC Act for our better understanding, which goes as under: "Section 14 : Protection of tenant against eviction (1) Not withstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant.
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more grounds only.
RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 14 of 33(b): that the tenant has, on or after the 9th day of June 1952, sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord."
11. It is settled proposition of law that to constitute "subletting" there must be parting of legal possession by the tenant in the sense of giving up right to include or exclude others, which is always a question of fact. It contemplates a situation where the tenant and the subtenant are in a legal relationship akin to one between a landlord and tenant. To cut the long story short, the expressions "sublet", "assigned" or "parted with the possession"
in Section 14(1)(b) of the DRC Act connote handing over the exclusive possession and control of the tenancy premises to another for some consideration or the other. After examining several case law on the subject, the Hon'ble Supreme Court in the case of Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholakar, (2010) 1 SCC 217, reiterated and summarized law on the subject as under: "25. The legal position that emerges from the aforesaid decisions can be summarised thus:
(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 15 of 33 alleged subtenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination, making out a case of subletting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving subletting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of subletting may then be raised and would amount to proof unless rebutted."
12. Emphasizing the aforesaid parameters vide point No. (i), (v) &
(vi), the landlord is required to prove the following essential conditions in order to succeed in a petition under Section 14 (1) (b) of the DRC Act: "(i) The tenant sublet, assigned or parted with the possession of the whole or part of the premises i.e. the sub tenant or assignee was in exclusive possession of whole or part of the property.
(ii) No consent in writing was taken from the landlord by the tenant."
13. Thus, the core element of this ground of eviction constitutes a stranger coming into possession of the tenanted premises wholly or partly without the consent of the landlord. The ingredient of "parting with possession wholly or partly" is inherent in all the three limbs. The primary burden of proving the presence of a stranger in the tenanted premises and he RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 16 of 33 being in exclusive possession of the whole or part of the tenancy premises is upon the landlord. Once the landlord has proven the fundamental facts to show that the tenants stands excluded from the tenanted premises or that he has forfeited the "right to repossess" the whole or part thereof, an inference of subletting, assignment or parting arises, thereby shifting the onus on the tenant to explain the legal status of the stranger in the tenancy premises. ISSUE OF WRITTEN CONSENT:
14. In view of the aforesaid proposition of law reverting to the instant matter, it is admitted position that the appellant/landlord purchased the premises in question from Smt. Bholi Devi Jain and Sh. Alok Kumar Jain vide registered sale deed dated 09.09.1992 Ex. PW1/3. A careful perusal of the recitals of the aforesaid sale deed would show that the vendors Smt. Bholi Devi Jain and Sh. Alok Kumar Jain had purchased the property in question from Smt. Rajeshuri Devi, D/o Pt. Manmohan Nath Dar pursuant to the execution of sale deed dated 16.05.1979, which is Ex.PW1/R1. Further, in the recitals of sale deed dated 09.09.1992 Ex. PW1/3 inter alia it was indicated that D.N. Narang S/o late Sh. Ishwar Nath Narang was the tenant but he had not been given any permission to sublet any part or whole of the tenancy premises to any third person.
15. A careful perusal of the oral and the documentary evidence goes to show that notice dated 13.11.1992 Ex.PW1/8 was given by Mr. L.K. Garg, Advocate on behalf of appellant/landlord to the tenant Dr. D.N. Narang inter alia intimating him about the purchase of the property and calling upon him to pay rent w.e.f. 09.09.1992, which was replied to by Mr. Ajay Kapoor, Advocate for Capt. M.N. Narang S/o Late D.N. Nagar (respondent no.1 RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 17 of 33 herein) vide letter dated 13.12.1992 Ex.PW1/10 inter alia not only claiming himself to be the tenant in the premises in question but also informing that his client had been given written consent to sublet the premises. In reply thereof by Sh. L.K. Garg, Advocate on behalf of appellant/tenant to respondent no.1 dated 28.01.1993 Ex.PW1/11, called upon the tenant to send the building plan of the premises occupied by the legal heirs of Late Dr. D.N. Narang and refuting the claim that there was any valid or legal written consent to sublet the premises. This was further replied by respondent no.1 on his letterhead dated 21.03.1993 Ex.PW1/14 reiterating that there was a written consent to sublet the premises.
16. It is pertinent to mention herein that Smt. Bholi Devi Jain and Sh. Alok Kumar Jain also sent letter to the erstwhile tenant Dr. D.N. Narang on 18.02.1993 Ex.PW1/15 intimating him about the sale of the property to appellant/landlord and a letter dated 17.03.1993 was sent to the appellant/landlord by Sh. Praveen Kalra, Partner of M/s Narang Corporation/respondent No.5 bringing to their notice that Dr. D.N. Narang had sublet the Shop Municipal No. 4766 and part of Shop Municipal No. 4767 by virtue of written consent to it, which fact was acknowledged by Smt. Rajeshuri Devi in the sale deed dated 16.05.1979 when the property was sold to Smt. Bholi Devi Jain and Sh. Alok Kumar Jain. The record however also brings forth that by virtue of abundant caution, a notice under Section 17 of the DRC Act was given by respondent no.5, which is accompanied with Form No. 21, which was also replied by the appellant/landlord disputing the legality and correctness of the notice u/s 17 of the DRC Act vide letter dated 22.03.1993 (which for some reasons not RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 18 of 33 exhibited). Further, a letter/notice dated 12.04.1993 Ex.PW1/20 was sent by Sh. L.K. Garg, Advocate on behalf of appellant/landlord to respondent no. 1 Capt. M.N. Narang inter alia also conceding that on the death of Dr. D.N. Narang, the addressee Capt. M.N. Narang and other legal heirs have inherited the tenancy rights and calling upon him to pay arrears of rent for the period 09.09.1992 to 30.04.1993 and simultaneously terminating the contractual tenancy. What it simply goes to suggest is that the tenancy rights were not terminated during the lifetime of Dr. D.N. Narang who had already died prior to the purchase of the property by the appellant/landlord.
17. Thus, it was rightly canvassed by the Ld. Counsel for the answering respondents viz. LRs of respondent no.1,3&5 that the appellant/landlord through PW1 attempted to set up a case that no written consent had ever been given to sublet the premises to respondent No. 5. First thing first, PW1 S. Dasan indeed cut a sorry figure in his crossexamination about his lacking personal knowledge about any written consent granted to the original tenant viz. Dr. D.N. Narang. PW1 in his crossexamination testified that he had been working with petitioner company since 1982 and also acknowledged that the photocopy of the original sale deed dated 16.05.1979 executed by Smt. Rajeshuri Devi in favour of Smt. Bholi Devi Jain and Sh. Alok Kumar Jain was in his knowledge, copy of which then was marked as Ex.PW1/R1 and admitted to be correct. A bare perusal of the copy of the sale deed dated 16.05.1979 Ex.PW1/R1 would show that inter alia it contained a recital by executant Smt. Rajeshuri Devi that "none of the tenants has a right to sublet except Dr. D.N. Narang who was permitted RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 19 of 33 to sublet to M/s Narang Corporation and Sh. Siri Ram Suneja Book Centre, as evidences by letter dated 16.04.64."
18. If that was the recital in sale deed Ex.PW1/R1, the appellant/landlord cannot escape from its legal implication of stepping into the shoes of the original landlord or its assignees on having purchased the property in question on 09.09.1992 vide sale deed Ex.PW1/3. Secondly, it goes without saying that the legal heirs of Dr. D.N.Narang, who had died on 08.01.1988 prior to the purchase of the property by the appellant/landlord was served with the notice dated 13.11.1992 Ex.PW1/8 and at the first available opportunity, the same was replied by Capt. M.N. Narang vide letter dated 30.12.1992 Ex.PW1/10 bringing to light the issue of written permission having been granted by the erstwhile owner Pt. Manmohan Nath Dar. RW1 Capt. M.N. Narang in his testimony proved beyond any challenge the letter dated 01.04.1951 Ex.RW1/1 which is on the letterhead of Pt. Manmohan Nath Dar (landlord) that reads as under:
"As per your request contained in your letter of date, I hereby permit you to sublet front portion of shop no. 7466 to Mr. Sri Ram Suneja proprietor Commercial Book Co. and to allow the rest of the premises to be used by yourself and Messrs. Gardners Corporation of which you are a Director. Accordingly, the rent would be enhanced by 25% as permissible under the terms of the Rent Control Act.
It is however clearly understood that you will be entirely responsible for all the actions of your these subtenants and that you will not create any other subtenancy than this without my prior consent in writing."
19. Further, RW1 Capt. M.N. Narang also testified and proved on record the letter dated 15.04.1964 written by his father late Dr. D.N. Narang (original tenant) on the letterhead of Narang Corporation Ex.RW1/2, RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 20 of 33 addressed to Smt. Rajeshuri Jee, that reads as under:
"I have been informed by Shri Atma Ram that rental cheque from Narang Corporation is not acceptable. In this connection I have to draw your kind attention to the fact that tenancy of the said premises stands in my name but by paying 25% extra rent I was allowed by Pandit Jee the right to sublet the premises. He allowed subletting to Shri Siri Ram Suneja and to M/s Gardners Corporation.
I am paying rent with 25% subletting surcharge as under:
Rs. as. ps.
Original rent was 140 15 0
25% increase for subletting 35 4 0
Total 176 3 0
As per Government notification
15% further increase from
April 1959 26 7 0
Total 202 10 0
i.e., Rs.202/60
The firm Narang Corporation is successors to Gardners Corporation and I have already brought to your kind notice and you were kind enough to accept verbally the proposed change in subtenancy. Now that a legal point has been raised by Shri. Atma Ram Jee I request that a letter of No Objection for sub letting to Narang Corporation may kindly be given to me. Also please confirm that cheques issued by Narang Corporation will be accepted.
With regard."
20. Further, RW1 M.N. Narang then testified and proved on record letter dated 16.04.1964 sent by Smt. Rajeshuri Ex.RW1/3, which reads as under:
"As per discussions and your request, I have no objection to your subletting to M/s Narang Corporation the portion of shops no. 746667, Block90, other than that sublet to Mr. Siri Ram Suneja of Suneja Book Centre.
Cheques issued by M/s Narang Corporation will be accepted."RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 21 of 33
21. It is then also brought on the record by RW1 Captain M.N. Narang that Smt. Rajeshuri Devi sent letter dated 11.08.1980 Ex. RW1/4 to his father informing him that she had sold the premises in question to Smt. Bholi Devi Jain and Sh. Alok Kumar Jain, calling upon him to make payment of rent w.e.f. 01.06.1979 to the aforesaid two vendees so much so that another letter is proven on record addressed to father of RW1 viz. late D.N. Narang dated 19.10.1980 Ex.RW1/5 that goes as under:
"Please refer to your letter of 5th September, 1980 regarding tenancy of Shop No. 746667, Connaught Circus, New Delhi. As desired by you, I write to state as under:
a. I confirm what you have stated therein.
b. The Subleases to Sri Ram Suneja, Book Centre and to M/s Narang Corporation have been mentioned in the Sale deed itself. c. The payment of rent was accepted by me for you and on your behalf through your subtenant M/s Narang Corporation"
22. What, therefore, follows is that vide aforesaid correspondences Ex.RW1/1 to RW1/5, it was clearly brought home that late Dr. D.N. Narang had been given written permission to sublet the premises front portion of shop no. 7466 to Ram Suneja, Proprietor of Commercial Book Company and rest of the portions to him in the capacity of Director of M/s Gardners Corporation, which name was admittedly later on changed to Narang Corporation. That being the case, I am afraid the plea raised by the Ld. Counsel for the appellant/landlord that the aforesaid permission vide letter dated 01.04.1951 Ex.RW1/1 and/or acknowledgement by Smt. Rajeshuri Devi dated 16.04.1964 Ex. RW1/3, are nonest in law is bereft of any merits and the plea that such written consent was neither stamped nor registered as per law and thus cannot be read in evidence, is not sustainable in law. The plea is misconceived and a complete misinterpretation of ratio in the cited RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 22 of 33 case of Bajaj Auto Ltd. v. Behari Lal Kohli (supra), which was a case where the tenancy was created by executing a lease deed that was not registered that inter alia contained a clause allowing the tenant to sublet the premises to its associate concern without consent of the landlord. The factual narration of the cited case demonstrates that the findings were recorded that not only the permission to sublet was in general terms but even the sublettee too was held to be not an associate concern of the tenant. It is in the said context it was held that:
8."................ The question whether a lessee is entitled to create a sublease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation. If a document is inadmissible for non registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sublet. It follows that the appellant cannot, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed.
9. There is still another reason to hold that the aforesaid clause cannot come to the aid of the appellant. A perusal of its language would show that it contains the respondent's consent in general terms without reference to M/s United Automobiles.
As a matter of fact M/s United Automobiles came to be inducted as a subtenant much later. Can such a general permission be treated to be the consent as required by Section 14(1) proviso (b) of the Act? It was held by this Court in Shalimar Tar Products v. S.C. Sharma [(1988) 1 SCC 70] that Sections 14(1) proviso (b) and 16(2) and (3) of the Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific subletting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, impermissible. Since it is not suggested that the consent of the respondent was obtained specifically with reference to the subletting in favour of M/s United Automobiles, the clause in the lease deed, which has been relied on cannot save the appellant, even if it be assumed in its favour that the clause is admissible and the sublessee is appellant's RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 23 of 33 associate concern. The appeal, therefore, fails and is dismissed with costs.
23. Further, no reliance can be placed on the decision in M/s.Sardar Estates v. Atma Ram Properties Ltd. & Ors. (Supra), wherein the narration of the facts disclosed that the tenant had only been allowed to sublet the tenancy premises in general terms without naming any specific person or entity to whom the subletting could be done and it is in the said context that it was held that general permission given by the erstwhile owner cannot be read as carte blanche to the tenant to sublet the premises without the consent of the new owner. It was the case where no notice under Section 17 of the DRC Act was given either. The cited case of Phoolwati & Ors. v. Smt. Harsh Gogia & Ors. (supra), is also distinguishable because the factual narration reveals that the subletting was not proved as subtenant was found not in exclusive possession of any portion of the premises and there was no evidence that the subtenant was making any payment of rent and the Hon'ble Judge of the Delhi High Court found that the tenant was retaining the legal possession of the tenancy premises. The plea that the written consent, if any, assuming the same to be contained in Ex.RW1/1 to RW1/3 was not stamped relying on the decision in Avinash Kumar Chauhan v. Vijay Krishna Mishra (Supra), is also not tenable as the cited case was one where the suit for recovery of consideration amount was filed based on an insufficiently stamped sale documents and it is in the said context, it was held that the claim was not maintainable by virtue of Section 33 of the Stamp Act, 1899. ISSUE OF NOTICE UNDER SECTION 17 OF THE DRC ACT:
24. Indeed the plea by the Ld. Counsel for the appellant/landlord that RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 24 of 33 the letter dated 17.03.1993 on the letterhead of M/s Narang Corporation by Mr. Praveen Kalra, Partner, under Section 17 of the DRC Act was not a valid notice. All said and done, there is undeniable factual position that respondent no.5 Narang Corporation has been occupying the premises till date of such notice as a lawful subtenant under the original tenant Dr. D.N. Narang. In order to appreciate the present controversy vociferously canvassed by the Ld. Counsel for the appellant/landlord, it would be expedient to refer to Sections 16, 17 and 18 of the DRC Act, which are quoted hereunder:
"16. Restrictions on subletting.--(1) Where at any time before the 9th day of June, 1952, a tenant has sublet the whole or any part of the premises and the subtenant is, at the commencement of this Act, in occupation of such premises, then, notwithstanding that the consent of the landlord was not obtained for such subletting, the premises shall be deemed to have been lawfully sublet.
(2) No premises which have been sublet either in whole or in part on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sublet.
(3) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord,--
(a) sublet the whole or any part of the premises held by him as a tenant; or
(b) transfer or assign his rights in the tenancy or in any part thereof.
(4) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub letting of the whole or any part of the premises held by the tenant.
17. Notice of creation and termination of subtenancy.--(1) Where, after the commencement of this Act, any premises are sublet either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the subtenant to whom the premises are sublet may, in the prescribed manner, give notice to the landlord of the creation of the subtenancy within one month of the date of such subletting and notify the RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 25 of 33 termination of such subtenancy within one month of such termination.
(2) Where, before the commencement of this Act, any premises have been lawfully sublet either in whole or in part by the tenant, the tenant or the subtenant to whom the premises have been sublet may, in the prescribed manner, give notice to the landlord of the creation of the subtenancy within six months of the commencement of this Act, and notify the termination of such subtenancy within one month of such termination. (3) Where in any case mentioned in subsection (2), the landlord contests that the premises were not lawfully sublet, and an application is made to the Controller in this behalf, either by the landlord or by the subtenant, within two months of the date of the receipt of the notice of subletting by the landlord or the issue of the notice by the tenant or the subtenant, as the case may be, the Controller shall decide the dispute.
18. Subtenant to be tenant in certain cases.--(1) Where an order for eviction in respect of any premises is made under Section 14 against a tenant but not against a subtenant referred to in Section 17 and a notice of the subtenancy has been given to the landlord, the subtenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.
(2) Where, before the commencement of this Act, the interest of a tenant in respect of any premises had been determined without determining the interest of any subtenant to whom the premises either in whole or in part had been lawfully sublet, the sub tenant shall, with effect from the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued."
25. In the cited case of Murari Lal vs Abdul Ghaffar (Supra), while examining the said provisions, it was held as under:
"With respect we are unable to agree that if a landlord is unable to deny that the subletting of the premises by his tenant to a subtenant was lawful or is for any reason estopped from contesting that the premises were not lawfully sublet then giving notice by the subtenant under Section 17 of the Act is a RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 26 of 33 pointless formality or that the consent that was given in writing by the landlord to the tenant for subletting the premises amounts to waiver on his part of notice by the subtenant under Section 17 of the Act. It would be seen that notice under sub section (1) of Section 17 of the Act can be given, in the prescribed manner and within the period mentioned in the sub section, by a subtenant to whom after the commencement of the Act any premises have been sublet in whole or in part by the tenant with the previous consent in writing of the landlord".
Under subsection (2) of Section 17 notice can be given, also in the prescribed manner and within the period mentioned in the subsection, by a subtenant to whom before the commencement of the Act any premises were "lawfully sublet" in whole or in part by the tenant. Thus except in the rare case of a subtenant to whom any premises could be deemed to have been lawfully sublet under the provisions *of subsection (1) of Section 16 of the Act any other subtenant in order to exercise the right of giving notice under Section 17 must be such to whom the premises in his occupation were sublet by the tenant with the consent in writing of the landlord. The object, therefore, of the notice to be given under Section 17 is to confer on a subtenant covered by the provisions of subsection (1) or subsection (2) of that section the special right under Section 18 of the Act of being deemed to be a tenant holding directly under the landlord in the event of an order for eviction being made under Section 14 of the Act in respect of the premises in his occupation against the tenant but not against him. As it is conceivable that a person giving notice under subsection (2) of Section 17 may not in fact be a subtenant to whom any premises may have been lawfully sublet before the commencement of the Act so in subsection (3) of Section 17 a provision was made for the landlord contesting that the premises were not lawfully sublet.
(23) In our opinion the provisions of Sections 17 and 18 of the Act do not support the view that a landlord who gives his consent in writing to a tenant to sublet any premises thereby waives notice by the subtenant under subsection (1) or sub section (2) of Section 17 or where the landlord is unable or is estopped from contesting that the premises were not lawfully sublet then giving the notice is unnecessary or a pointless formality. In order to get the benefit under Section 18 of the Act a subtenant covered by the provisions of subsection (1) or sub section (2) of Section 17 must give notice in the prescribed manner and within the permitted period. Even though the RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 27 of 33 premises in occupation of a subtenant may have been sublet to him after the commencement of the Act with the previous consent in writing of the landlord or the premises may have been lawfully sublet to him before the commencement of the Act, unless the required notice under section 17 is given he cannot claim that under section 18 of the Act from the date of the order for eviction made under section 14 of the Act against the tenant but not against him he should be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued. Of course where any premises have been sublet by a tenant, on or after the 9th day of June, 1952, with the consent in writing of the landlord, clause
(b) of the proviso to subsection (1) of section 14 will not be available to the landlord for obtaining an order against the tenant for the recovery of possession of the premises. When, however, an order for the recovery of possession is obtained by the landlord against the tenant but not against such a subtenant on any other ground or grounds as covered by clauses (a) and (c) to (1) of the proviso to subsection (1) of section 14 of the Act then the subtenant if he had not given notice under section 17 cannot claim that under section 18 he has become a direct tenant holding under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.
26. In the cited case of Kapil Bhargava v. Subhash Chand Aggarwal (Supra), the issue was whether the eviction order passed against the lawful subtenant who had been in possession much before 09.06.1952 was sustainable under section 14(1)(b) of the DRC Act ? Examining the contours of law of section 16, 17 & 18 of the DRC Act, it was held as under:
"16. Submission for the appellant is that once a subtenant is a lawful subtenant by virtue of Section 16(1), the notice under subsection (2) of Section 17 would be a mere formality which is procedural. Thus, its noncompliance cannot take away his substantive right created under Section 16(1). This submission misses the purpose for which this subsection (2) of Section 17 is enacted. On performance of this obligation, a right is conferred on a subtenant to become a tenant under Section 18.RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 28 of 33
This service of notice saves a subtenant from eviction even if a decree is passed against a tenant under Section 14 and further confers on such subtenant an independent right as that of a tenant. Thus, notice under Section 17(2) cannot be construed as mere procedural, in fact it confers substantive right on such a subtenant. So, a conjoint reading of Sections 16, 17 and 18 makes it clear that a subtenant falling under Section 16(1) is deemed to be a lawful subtenant even without written consent of the landlord. But Section 17(2) casts an obligation on such subtenant to give notice to the landlord under subsection (2), within six months of the commencement of the Act. The legislature has used in subsection (2) the words, "lawfully sub let". So even if the appellant is a lawful subtenant by virtue of Section 16(1), still an obligation is cast on such lawful sub tenant to serve a notice on the landlord for gaining a right under Section 18. This as we have said is as a protective measure in favour of a subtenant. So, the submission that by mere declaration as lawful tenant under Section 16(1), no decree for eviction is enforceable against the subtenant has no merit and is hereby rejected. Hence we hold, unless notice under subsection (2) of Section 17 is served by the subtenant, he cannot take the benefit of Section 18 and any decree passed under Section 14 against a tenant is executable against a subtenant.
17. The next and the last submission is that the landlord was not only aware of the fact that it is not the tenant but the subtenant who was residing exclusively in whole of the premises, since before 961952 and the landlord was accepting the rent from this subtenant, hence compliance with Section 17(2) could at best be said to be a mere formality. This submission has also no merit. Neither is there any such finding by any court nor any evidence pointed out that after the tenant left, the rent was paid by the subtenant on his own behalf and not on behalf of the tenant. A person in possession may continue to live and continue to pay rent which would be payment on behalf of the tenant, unless specific evidence is led that the incumbent in possession started paying rent as subtenant, receipt issued as subtenant or their exists any document of this nature. We have not been shown any such plea, evidence or any finding by any of the courts below in this regard.
27. The aforesaid academic discussion brings out that compliance of section 17(2) of the DRC Act is not a mere formality. It follows that unless RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 29 of 33 notice under subsection (2) of Section 17 is served by the subtenant, he cannot take the benefit of Section 18 and any decree passed under Section 14 against a tenant is executable against a subtenant. Thus, the plea by the Ld. counsel for the appellant/ landlord that since no notice under section 17(2) of the DRC Act was given by the tenant or the subtenant, there was no lawful subtenancy or that the subtenancy came to an end is not tenable in law. In case no notice is given, the subtenant shall not step into the shoes of the tenant in case the latter suffers an eviction order and the subtenant shall be bound to suffer the eviction decree. In other words, if in future there is passed an eviction order against the respondents no. 1 to 4 on any grounds under section 14 of the DRC Act, the subtenants viz., respondent no. 5 & 6 shall not have any shield to protect themselves under section 18 of the DRC Act and suffer an execution decree.
CONTROL OVER LEGAL USE, ENJOYMENT & POSSESSION OF THE TENANCY PREMISES:
28. At the cost of repetition, the case setup by the appellant/landlord in the pleadings as also in the testimony of PW1 is absolutely wrong that the LRs of deceased Dr. D.N. Narang viz., R1R4 had sublet the premises in favour of R5&6. It bears repetition that the subletting had already been created in the lifetime of Dr. D.N. Narang and much prior to the purchase of property in question by the appellant/landlord. Thus, I am unable to find any erroneous or perverse approach in the appreciation of evidence conducted by the Ld. Trial Court observing cracks in the testimony of PW1. PW1 was not able to vouch for the correctness of site plan Ex.PW1/4. He failed to reveal if there was any mezzanine floor, toilet and the RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 30 of 33 situation of the inner walls or partition walls and the measurements. He stated that he had never been restrained from entering into the tenancy premises and visited the premises in question for the first time in the year 1992 and lastly in the year 2006. PW1 in his crossexamination also acknowledged that it was respondent no.1 who had been doing business of selling mobile phones of Idea Cellular, Cards and Sims from the tenancy shop. In his crossexamination, he also stated that on his visit in the year 1992, he had come to know that respondent no.56 were in occupation of part of the premises. Be that as it may, there is no iota of evidence or whisper in the pleadings as also in the evidence as to how and in what manner respondent no.78 were doing business in the premises in question. On the contrary, RW1 in his affidavit dated 10.03.2008 Ex.RW1/A vide paragraph no. 11 categorically deposed that M/s Narang Corporation stopped selling the products of M/s Idea Cellular from the premises w.e.f. 31.03.2005. In paragraph no. 12 of the affidavit Ex. RW1/A, he also deposed that he had been doing the business of Consultancy from the premises in the name and style of M/s Simplex Consultants, retaining the control of the premises by retaining the lock and key of the shop under his possession and he produced on record the site plan Ex. RW1/6, the correctness of which was never disputed.
29. Further, the testimony of RW1 was not assailed that after the death of his father, the business has been run by Mrs. Poonam Narang, daughterinlaw, Mr. Praveen Kalra, nephew and Dr. Sudha Narang, who is his sister. The testimony that M/s Narang Corporation has been in occupation of portions marked as A,B,C&D in the site plan Ex.RW1/6 was not disputed.
RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 31 of 33It goes without saying that the RW2 also brought on the record that respondent no. 5 M/s Narang Corporation has been running from the premises since the very beginning and RW5 testified without any challenge that she has been in possession and control of the premises working as franchise of M/s Idea Cellular, which company has not been in any kind of use, possession or control of the tenanted premises except for selling of its merchandises through respondent no. 5. RW3 also proved on record the statement of account of respondent no.5/Narang Corporation for the period w.e.f. 01.01.2001 to 23.07.2007 thereby inviting a strong inference that respondent no.5 had been running its business from the site and not R7 and/or R8. The testimony of RW1 that respondent no. 5 had closed the business for about 10 years and prior to 2008, respondent no.5 was purchasing goods from respondent no.7 was not challenged. There is no iota of evidence led by the appellant/landlord that respondent no.7 and/or respondent no.8 have ever been in any exclusive possession of the tenancy premises thereby making R1 to 4 giving up their legal right to exclude any third person from the tenancy premises or having no control over its use, occupation or enjoyment, and therefore, the Ld. Trial Court rightly concluded that there was no evidence that the premises had been sublet to R7&8 in any manner.
30. That being the case, no reliance can be placed on the decision of Vaishakhi Ram & Ors. v. Sanjeev Kumar Bhatiani (Supra), as the appellant/landlord has failed to show that R7&8 had ever been in exclusive use, possession or enjoyment of the suit premises to the detriment of the original tenant or his legal heirs respondent no. 1 to 4, and by all means, the RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 32 of 33 answering respondents / LRs of deceased original tenant as also the sub lettees have been able to bring home that they have been in use and occupation of premises for more than 50 years by virtue of written consent granted to the original tenant.
31. In view of the foregoing discussions, I find that there is no merit in the present appeal filed under Section 38 of the DRC Act. The same is dismissed. The parties shall bear their own costs. The trial court record be sent back along with copy of the judgment.
32. The appeal file be consigned to Record Room.
Digitally signed by DHARMESH DHARMESH SHARMA
SHARMA Date: 2022.11.16
11:56:59 +0530
Announced in the open Court (DHARMESH SHARMA)
on 14th November, 2022 Principal District & Sessions Judge (NDD)
Patiala House Courts, New Delhi
RCT No.19/2017 M/s. Atma Ram Properties v. M.N. Narang Page 33 of 33