Delhi District Court
Sh. Ranbir Yadav vs Sh. Y.K.D Batra on 23 June, 2020
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25679/2016
Sh. Ranbir Yadav
S/o Late Sh. Umrao Singh
R/o 56, Jawala Heri,
Paschim Vihar,
New Delhi-110063. .... Petitioner
VERSUS
Sh. Y.K.D Batra
Wine Shop, Sarbati Complex,
56, Jawala Heri, Paschim Vihar,
New Delhi-110063.
New address of respondent for service
Sh. Y.K.D. Batra
S/o Sh. Charan Das Batra
New Delhi Archies Gallery
Choudhary Kishan Chand Shopping Complex
Jawala Heri, Paschim Vihar
New Delhi-110063. ... Respondent
Date of Filing : 04.06.2011
Date of Judgment : 23.06.2020
JUDGMENT
1. Brief facts of the present case are that on 04.06.2011, the petitioner filed a petition Under Section 14 (1) (b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an order of eviction in favour of the petitioner and against the respondent in respect of tenanted premises i.e. Shop having covered area of about 550 sq. ft. of the Building (marked red in the plan annexed) forming part of property bearing No. 56 (old no.) (new No. 237), Sarbati Complex, Jawala Heri, New ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 1 / 20 Delhi (hereinafter referred to as "tenanted premises").
2. It is averred by the petitioner that the respondent/tenant has sublet, assigned or otherwise parted with the whole of the tenanted premises without obtaining the consent in writing from the petitioner/landlord. That the respondent has parted the possession of the tenanted premises with another person who exclusively opens and closes the shop. Further, the respondent has given free access of tenanted premises to the sub tenant and its employees, agents and representatives and the respondent has ceased to have any right or control over the actual use and occupation of the tenanted premises. The amount of consideration for allowing the actual, exclusive and physical occupation is being received by respondent from the sub-tenant which might not be less than Rs. 10,000/- p.m. That the respondent is enjoying and receiving the substantial amount of consideration for parting with the exclusive, actual and physical control of the tenanted premises to run therein a wine shop. The wine shop even otherwise can not be run without obtaining a proper license from the authorities concerned which is required to be renewed from year to year. The sub-tenant is in actual and physical occupation of the tenanted premises. At the time of opening of the shop as a wine shop, 'No objection' was obtained by the respondent from the petitioner which was valid only for one year. Thereafter, the respondent has not obtained any "No-Objection" from the petitioner for renewal of its license till date to continue to use the tenanted premises as a wine shop. The name of the petitioner also stands entered in the records of MCD as the owner of the property and with new number of property as 237 as per letter dated 14.02.2002 issued by the Joint Assessor & Collector West Zone MCD, Rajouri Garden. The respondent having admitted and accepted the ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 2 / 20 petitioner as owner-landlord has been paying the rent to the petitioner against the rent receipts being issued to the respondent w.e.f. April, 2001. The counter foils to rent receipts issued by the petitioner are duly signed by the respondent. Original rent receipts issued to him by the petitioner are in possession of the respondent.
Lastly, it is prayed by the petitioner that an eviction order may be passed in favour of the petitioner and against the respondent.
3. Written Statement was filed by the respondent in response to petition filed by the petitioner U/S 14 (1)(b) of D.R.C Act praying to the court to dismiss the present petition with costs.
It is inter-alia submitted by the respondent that petitioner is neither the owner nor the landlord of the tenanted premises. That the petitioner has not filed on record any document of title showing that he is the owner of the tenanted premises. That the tenanted premises was let out to the respondent at a monthly rent of Rs.300/- by Sh. D.P Yadav on behalf of Sh. Satinder Yadav who was a minor in the year 1981. The respondent has been paying the rent of the tenanted premises to Sh. D.P Yadav who has been receiving the same on behalf of Sh. Satinder Yadav as he is the landlord of the tenanted premises. That the respondent will be placing on record the rent receipts which will clearly show that the rent was/is being paid by the respondent to Sh. Satinder Yadav. Subsequently, Sh. Satinder Yadav and Sh. D.P Yadav stopped issuing the rent receipts and the respondent was compelled to write a letter dated 08.04.1996 to them thereby asking them for issuance of the rent receipts. The respondent has never paid the rent to the petitioner. That the respondent has not sublet, assigned or otherwise parted with possession of the tenanted premises to any third person. The petitioner has not even alleged in the petition for eviction as to when ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 3 / 20 the respondent has allegedly sublet, assigned or otherwise parted with possession of the tenanted premises. That the respondent has given the tenanted premises as a licensee to M/s Delhi State Civil Supplies Corporation and a license deed has also been executed between the respondent and M/s Delhi State Civil Supplies Corporation. That the tenanted premises has been on license basis since 06.11.1985 and it has been specifically mentioned in the license deed that the licensee will have no right, title or interest in the tenanted premises and/or legal possession of the tenanted premises which will always remain with the respondent.
It is also contended by the respondent that the respondent is not realizing any rent from M/s Delhi State Civil Supplies Corporation and only commission charges are being paid to the respondent by M/s Delhi State Civil Supplies Corporation which are variable each month. The license for running the wine shop in the tenanted premises has been obtained and is being renewed from time to time. No such alleged 'No objection' was ever taken by the respondent from the petitioner when the petitioner is neither the owner nor the landlord of the tenanted premises. No copy of the alleged letter dated 14.02.2002 has been supplied to the respondent. That recording of the name in the records of MCD does not confer any title of the property on a person and it is only reflected in the records of MCD for the purposes of property/house tax.
Lastly, it is prayed by the respondent that the present eviction petition may be dismissed.
4. Record reveals that replication has also been filed by the petitioner to the written statement filed by the respondent. The petitioner has denied all the allegations leveled by the respondent and reiterated and reasserted all the facts as stated in the petition.
ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 4 / 205. Thereafter, the petitioner examined himself as PW1 and Sh. Ranjit Kumar as PW-2 who brought the documents Ex.PW2/1 to Ex.PW2/5, PW3 Sh. Kanahiya Yeti brought documents Ex.PW3/1 to Ex.PW3/3, PW4 Sh. Ranbir Singh, UDC official from MCD brought documents Ex.PW4/1 and Ex.PW4/2 and PW5 Sh. Navdeep Arora brought documents Ex.PW5/1 to Ex.PW1/6. Thereafter, petitioner's evidence was closed.
On the other hand, respondent examined himself as RW1 and relied upon documents Ex.RW1/1 to Ex.RW1/20 to prove his case. Thereafter, respondent evidence was closed.
6. I have heard the arguments advanced. I have also carefully gone through the testimonies of all the witnesses, documents, material on record and case law relied upon.
Landlordship:-
7. Perusal of record shows that petitioner has claimed to be landlord of the tenanted premises on the basis of counter foils to rent receipts issued by him to the respondent and on the basis of letter dated 14.02.2002 issued by Joint Assessor & Collector, MCD, Delhi.
On the other hand, respondent has claimed that counterfoils to rent receipts placed on record by the petitioner is false documents and the letter dated 14.02.2002 is also a false document and secondly, such record does not confer any title of the property on a person and thirdly, copy of such letter dated 14.02.2002 has not been supplied to him.
8. Perusal of record shows that the petitioner has placed on record several documents to prove his ownership and landlordship.
ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 5 / 20It is well settled that U/S 14(1)(b) of DRC Act, the petitioner is required to prove landlordship only and he need not to prove his ownership regarding tenanted premises. Moreover, even U/S 14(1)
(e) of DRC Act, the petitioner need not prove his ownership in absolute terms. It is sufficient for the petitioner to show that he is something more than the tenant.
9. I have perused all the documents filed by both the parties, testimony of all the witnesses and material on record.
Perusal of record shows that the petitioner has placed on record several counter foils to the rent receipts, I.e. Ex.PW1/8 to Ex.PW1/15, application given by the respondent to Delhi Vidyut Board for getting electricity connection Ex.PW5/1, receipt issued by DVB Ex.PW5/2, Indemnity Bond filed by the respondent Ex.PW5/4, affidavit filed by respondent Ex.PW5/5 and rent receipt submitted with DVB Ex.PW5/3, electricity bill Ex.PW5/6, letter by DSCSC Ex.PW2/1 and Ex.PW2/2 and Ex.PW2/4, NOC regarding sub-letting Ex.PW2/5, letter dated 16.06.1996 written by respondent to DSCSC Ex.PW2/3, letter by Union Bank Ex.PW1/1, Bank statement Ex.PW3/2, Ex.PW1/6, Ex.PW3/3, letter dated 14.12.2002 written by Joint Assessor & Collector, West Zone, Delhi to respondent, property tax receipt Ex.PW4/1.
10. I have perused all the documents carefully. A close scrutiny of all these documents manifestly shows that there exist a relationship of landlord and tenant between the parties. It is expedient to discuss the documents placed on record by the petitioner to prove his landlordship.
As far as counterfoils to the rent receipts Ex.PW1/8 to Ex.PW1/15 are concerned, the stand of the respondent is that these ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 6 / 20 counterfoils do not bear his signature. It is well settled law that bare denial is not sufficient. It is pertinent to mention here that one order U/S 15(1) of DRC Act was passed by the Ld. Predecessor of this court in the connected matter U/Sec. 14(1)(a) of D.R.C. Act between the same parties which was replaced with the order U/S 15(4) of DRC Act dated 21.06.2013 passed by the then Ld. ARCT and since the signatures on these counter foils to the rent receipts, I.e. Ex.PW1/8 to Ex.PW1/15 and other documents such as application to DVB Ex.PW5/1, Indemnity bond Ex.PW5/4, affidavit Ex.PW5/5, rent receipt dated 01.10.2000 filed by the respondent along with the application for electricity before DVB Ex.PW5/3, etc. were disputed by the respondent, all these documents were directed to be sent to CFSL by Ld. ARCT and ultimately, the report was filed by the CFSL in the year 2019.
11. I have perused the report dated 29.08.2019 given by CFSL, CBI, Delhi which clearly shows that CFSL has opined that disputed signatures matches with the admitted signatures of the respondent and exhaustive reasons and observations have been given by the experts.
The argument of the respondent is that this report has not been proved as per law as the experts have not been produced in the witness box.
12. It is well settled law that opinion of the expert is not always binding upon the court and the court has the discretion to refuse such opinion. Moreover, the court has a power U/S 73 of the Indian Evidence Act also.
13. I have myself minutely perused the disputed documents and ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 7 / 20 material on record and I have other reasons also to accept that the signatures on the rent receipts are those of respondent. It is pertinent to mention here that respondent claimed in his W.S itself that he has a rent receipts issued by Sh. Satinder Yadav but the perusal of record shows that these rent receipts were placed on record only on 04.02.2020 i.e. after the lapse of more than eight years. No plausible reasons have been given by the respondent for not placing these rent receipts for such a long time. This fact itself throws the doubt over the authenticity of the rent receipts Ex.RW1/1 to Ex.RW1/12 filed by the respondent to show that Sh. Satinder Yadav was the owner and landlord. Moreover, all these rent receipts are pertaining to the year prior to 1996. Although the respondent has claimed that he has paid the rent to Sh. Satinder Yadav upto 2011 but no receipts for such period have been placed on record by the respondent. The stand of the respondent is that no rent receipt were issued by the Sh. Satinder Yadav thereafter, due to which no rent receipt is available. In my considered view, this plea of the respondent is devoid of any merit as the respondent always had the right and also the duty to approach the Rent Controller in case rent receipt was not issued by Sh. Satinder Yadav after 1996 despite receiving the rent from the respondent. No such record has been produced by the respondent in this regard. No other documents except Ex.RW1/20 I.e. letter dated 08.04.1996 written to Sh. Satinder Yadav and Sh. D.P Yadav by the respondent has been placed on record. I have perused Ex.RW1/20 also which is a self serving document and secondly the document was also produced after the lapse of more than eight years despite the having possession thereof for the reasons best known to the respondent due to which these documents also does not inspire the confidence.
ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 8 / 2014. On the other hand, a plenty of documents as discussed earlier has been placed on record by the petitioner. The combined reading of all those documents manifestly shows that that there exist a relationship of landlord and tenant between petitioner and respondent. Moreover, the respondent has merely denied the signatures on all these documents. It is reiterated that mere denial is not sufficient. Moreover, documents such as property tax receipt Ex.PW4/1, letter written by MCD dated 14.02.2002 Ex.PW4/2, electricity bill in the name of petitioner Ex.PW5/6 clearly shows that there exist the relationship of landlord and tenant between the petitioner and the respondent. Moreover, Ex.PW5/1 to Ex.PW5/6 were produced by electricity department and these documents can always be relied upon as these documents were filed before DVB which was an unit of MCD which is a public authority. As such, these documents always have more authenticity, besides, perusal of testimony of RW1/Respondent shows that he has admitted the fact of taking the electricity connection in the year 2000 and the record produced by the petitioner from DVB I.e. Ex.PW5/1 to Ex.PW5/5 also shows that the electricity connection was applied in the year 2000 by the respondent before the DVB. As such, it is proved that these documents such as Ex.PW5/1 to Ex.PW5/5 were filed by the respondent at the time of applying electric connection and these documents clearly reflect that rent receipt issued by the petitioner was attached by the respondent while applying for such connection.
Moreover, if these documents were forged, the respondent could have summoned his own record from DVB in respect of his electricity connection as admitted by him during the cross examination but he has not done it which clearly shows that the documents produced by the petitioners are not the forged documents and the respondent has merely taken the false plea of ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 9 / 20 denying of his signatures on these documents. Moreover, Sh. Satender Yadav could have been examined by the respondent to prove the ownership and landlordship of Sh. Satender Yadav but he has not made any efforts to bring him in the witness box. This fact also falsify the story of respondent regarding ownership and landlordship of Sh. Satender Yadav. As such, in my considered view, in view of the exhaustive discussion as earlier and material on record, there exist a relationship of landlord and tenant between the parties.
Section 14 (1) (b) sub-letting:-
15. It is expedient to reproduce the Section 14 (1)(b) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding 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 court or any 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 recovery of possession of the premises on one or more of the following grounds only, namely:-
(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 part of the premises without obtaining the consent in writing of the landlord".ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 10 / 20
As per Delhi Rent Control Act, Section 14 (1)(b) D.R.C. Act is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely prohibited by the law or by the Delhi Rent Control Act but the subletting should be with the consent of landlord and such consent should be in writing. Section 14 (1)(b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
(ii). No consent in writing was taken from the landlord by the tenant.
16. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting takes place only when there is divesting of physical possession as well as of the right to possession. In other words, there must be vesting of possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant keeps the control with him, it can not be said that sub-tenant is in exclusive possession ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 11 / 20 of premises and in such situation the case does not fall within Section 14 (1)(b) D.R.C. Act.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
17. In the case titled as Vaishakhi Ram & Others Vs Sanjeev Kumar Bhatiani 2008, 14 SCC, it was held as under:-
"21. It is well settled that the burden of proving subletting is on the landlord but if the landlord proves that the subtenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of subletting."
It is well settled that initial burden to prove that sub-tenant is in exclusive possession of the suit property is on the owner. However, the onus to prove the exclusive possession of the subtenant is that of preponderance of probability only and he has to prove the same prima- facie only and if he succeeds then the burden to rebut the same lies on the tenant.
In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
In the case titled as Prem Parkash Vs. Santosh Kumar Jain & Sons and another, 2017, law suit (SC) 872, the relevant para is as under:-
"18. sub-tenancy or subletting comes into existence when
the tenant gives a possession of the tenanted
accommodation, wholly or in part, and puts another person
in exclusive possession thereof. This arrangement comes
ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 12 / 20
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 overt acts 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 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 in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. 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 sublease. 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 have been 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 fact of the case."
In the case titled as Munshi Ram Vs Bhoj Ram through LRs in C.M. (M) No.1612/2010 and C.M. No.8004/2005, wherein it was observed as under:-
"It is well settled that to make out a case for subletting or parting with possession, it means giving a possession to persons other than those to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant. The word 'subletting' necessarily means transfer of an exclusive right to enjoy the property in favour of the third party."
In the case titled as Shalimar Tar Products Ltd. Vs H.C. Sharma, 1988, 1 (SCC) 70, the Hon'ble Apex Court noted that to constitute a subletting, there must be a parting with a legal possession and whether in a particular case, there was subletting or not, was a question of fact.
ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 13 / 20It is well settled that to establish the aforesaid ingredients, the landlord must establish that tenant had completely divested himself of the suit premises and parted with possession of the suit premises of the whole or part of the premises to the sub-tenants and this should be substantiated by the evidence.
In the case titled as Praveen Saini Vs Reetu Kapur & Anr. 246 (2018) DLT 709, the Hon'ble High Court of Delhi inter-alia observed as under:-
"On the aspect of admissions being binding, this Court would like to straightaway refer to the judgment of the Supreme Court in the case of Nagindas Ramdas Vs Dalpatram Ichharam alias Brijram & Others, 1973 (SLT Soft) 15 (1974) 1 SCC 242, because in this judgment the Supreme Court has laid down the ratio that evidentiary admissions are different than judicial admissions.
Supreme Court has held that admissions which are made in judicial proceedings are on a higher pedestal than evidentiary admissions made in the form of correspondence etc and that judicial admissions can be a basis in themselves for deciding the claim. The relevant para 27 of the judgment in the case of Nagindas Ramdas (supra) read as under:-
"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the court, on the basis of which the court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rivalas evidence are by themselves not conclusive. They can be shown to be wrong."ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 14 / 20
In the case titled as Sukhpal Singh & Anr. Vs Satbir Singh & Anr. 296 Capital Law Judgment 2012 (4), the Hon'ble Delhi High Court inter-alia observed as under:-
"4. It is important to note that the onus of proving sub- tenancy lies on the landlord. 0The Supreme Court in "Jagan Nath Vs Chander Bhdn, AIR 1988 SC 1362", enunciated the principles whereby once the landlord has proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts upon the tenant."
In the case titled as Padam Chand Jain Vs Messrs Mahabir Pershad & Sons and another, S.A.O. No.464 of 1968, the Hon'ble Delhi High Court inter-alia observed as under:-
"It is now settled by the decision of a Full Bench of this Court in Kedar Nath and another Vs Smt. Mohini Devi, etc. that the initial burden lies upon the landlord to establish that any of the con--ditions mentioned in the clauses (a) to (e) of the proviso exists (vide at page 170-I of the report)."
In case bearing C.M. (Main) No.172 of 2010 & C.M. Appl. Nos.2248-2249 of 2010 in case titled as M/s Udhey Bhan Ashok Kumar & Co. & Ors. vs. Neelam Kumari February 24, 2010; it was observed that :-
"4. Learned counsel for the petitioners has argued that mere change of the constitution of firm from partnership to proprietorship would not amount to sub-tenancy. I consider that this argument is not tenable. A partnership firm is not a legal entity. It is a conglomeration of partners. A tenancy in the name of partnership firm is a joint tenancy of the partners. If none of the partners in whose favour the tenancy was created is in possession of the shop and another person, who was later on inducted as a partner and then becomes sole proprietor of the firm is in possession of the tenanted premises then it is a clear cut case of sub-letting and parting with possession through the device of first inducting a stranger as a partner and then dissolving the partnership firm and handing over the premises to him. It makes no difference that he continues the business in the same name or that he was related to an erstwhile partner. I find no force in this petition. The petition is hereby dismissed."ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 15 / 20
18. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the testimonies of the witness from the petitioner's side and also all the relevant documents filed on record and I have also heard the arguments advanced and I have also gone through carefully the case law relied upon.
19. Lets discuss the 1st ingredient:-
(i). The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
20. Perusal of record shows that in the present case, petitioner has claimed that the respondent has parted with the possession of the tenanted premises for the purposes of running a wine shop and the same is not in the actual and physical control of the respondent and the sub-tenant and its employees and representatives are having free access to it and it is being opened and closed by the sub-tenant. Besides, the respondent is enjoying and receiving the substantial amount of consideration for such parting with the possession.
On the other hand, the respondent has claimed that all the allegations by the petitioner are false and the respondent has given the tenanted premises to M/s Delhi State Civil Supplies Corporation on 06.011.1985 on license basis (hereinafter called as DSCSC) and a license deed has also been executed. The stand of the respondent is that in the license deed, it is specifically mentioned that licensee will have no right, title or interest in the tenanted premises and also ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 16 / 20 legal possession of the tenanted premises will always remain with the respondent.
21. Further stand of the respondent is that the respondent is not realizing any rent from DSCSC and only commission charge are being paid to the respondent by DSCSC which are variable each month. The license for running the wine shop in the tenanted premises is being renewed time to time. No such NOC as claimed by the petitioner was ever taken by the respondent from petitioner as he was neither the owner nor the landlord of the tenanted premises.
22. Perusal of record shows that in the present case, the respondent has admitted the physical possession of the third person in the tenanted premises and it is undisputed fact. The only submission of the respondent is that the legal possession of the tenanted premises is with the respondent and he has also claimed that license deed bears such terms and conditions.
23. It is well settled that the petitioner/landlord has to prove prima- facie case that somebody else in the possession of the tenanted premises and once he has been able to prove it then onus shifts to the respondent/tenant to explain the reasons for presence of other person in the tenanted premises. It is also well settled that not only the physical possession but also legal possession should be parted with by the tenant/respondent to prove the sub-letting U/Sec. 14(1)
(b) of D.R.C. Act. Perusal of documents on record and the admission made by the respondent clearly shows that somebody other than the respondent is in physical and exclusive possession of the tenanted premises.
ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 17 / 2024. Perusal of record shows that although the respondent has claimed that the tenanted premises was given on the basis of license deed on 06.11.1985 but no such document has been placed on record by the respondent to substantiate his plea. Moreover, the respondent has also claimed in his W.S. that such license deed is being renewed from time to time but such renewed license deeds have not been placed on record. Perusal of record also shows that one photocopy of a license deed executed between the respondent and DSCSC dated 06.10.2004 marked as Mark-A has been relied upon by the respondent/RW-1 in his evidence.
In my considered view, this cannot be relied upon being photocopy. Moreover, original thereof has not been produced on record. In addition to this, Mark-A is of the year 2004 whereas the respondent has claimed that the first license deed was executed in the year 1985 and the same were renewed time to time.
25. As such, the respondent has not been able to substantiate his plea in respect of terms that the legal possession of the tenanted premises will remain with the respondent. Moreover, in my considered view, even if it is assumed for the sake of argument that the license deed was executed between the respondent and DSCSC, the respondent being a tenant did not have the right to part with the possession of tenanted premises being tenant and if he wanted to do it, he could have done it only after obtaining the consent in writing from the petitioner/landlord concerned. In the present case, it is admitted fact that no such consent in writing was taken by the respondent from the petitioner, the only contention of the respondent is that since the petitioner was not the owner/landlord of the tenanted premises, the question of obtaining consent in writing does not arise at all.
ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 18 / 2026. As discussed earlier while dealing with the ingredient in respect of relationship of landlord and tenant between the parties, there exists a relationship of landlord-tenant between the parties. Hence, this contention of the respondent vanishes.
27. Another contention of the respondent that he is receiving only commission from DSCSC and not the rent.
In my considered view, it does not matter the nomenclature of the amount that tenant receives. What matters is benefit or amount or consideration being received by the respondent/ tenant and it is admitted fact that something is being received by the respondent from the DSCSC in respect of tenanted premises in reciprocation of parting with the physical and legal possession of the tenanted premises.
28. As such, perusal of record, documents and testimonies manifestly show that first ingredient of Sec. 14(1)(b) of D.R.C. Act is satisfied.
(ii). No consent in writing was taken from the
landlord by the tenant.
29. Perusal of record shows that in the present petition, the respondent has not claimed in his written statement that the consent in writing was taken from the petitioner. Moreover, in the Written Statement, the respondent has himself stated that no consent in writing at all was taken by the respondent from the petitioner as he was not the owner and landlord of the tenanted premises. As discussed earlier, there exists relationship of landlord and tenant ARC 25679/2016 Sh. Ranbir Yadav Vs. Sh. YKD Batra Page 19 / 20 between the parties, Hence, this plea of the respondent has become devoid of merit.
30. As such, this is also proved that the consent in writing was not taken by the respondent from the petitioner. Hence, this ingredient is also satisfied.
CONCLUSION:-
31. In view of the discussions, the petitioner has been able to prove all the ingredients of Sec. 14(1)(b) of D.R.C. Act against the respondent. As such, an eviction order is passed in favour of petitioner and against the respondent in respect of tenanted premises i.e. Shop having covered area of about 550 sq. ft. of the Building (marked red in the plan annexed) forming part of property bearing No. (56 old no.) (new No. 237), Sarbati Complex, Jawala Heri, New Delhi.
32. This file be consigned to Record Room after due compliance.
Announced in open court on 23rd June, 2020 (This judgment contains 20 pages) (Ajay Nagar) Additional Rent Controller, West District, THC, Delhi.
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