Delhi District Court
Mrs.Shakuntala Lall W/O Sh.D.P.S. Lal vs Smt.Shakuntala on 21 August, 2010
1
IN THE COURT OF SHRI S.P.GARG; DISTRICT
JUDGEIV; NEW DELHI
ID No.02403C0254102009
RCTA No.37/09/08
1. Mrs.Shakuntala Lall w/o Sh.D.P.S. Lal,
r/o 7, Barakhamba Road,
New Dehli01
2 Mrs.Rewa Krishan, w/o Lt. Col. R.Krishan,
r/o 7, Barakhamba Road,
New Dehli01
3 Mrs.Kamala Daftary deceased through Lrs
3 (A) Praful Daftary
Husband of Late Kamala Daftary,
R/o 7, Barakhamba Road,
New Delhi01.
3 (B) Anand Daftary
S/o Late Kamala Daftary,
R/o 7, Barakhamba Road,
New Delhi01.
3(C) Mani Daftary,
S/o Late Kamala Daftary,
R/o 7, Barakhamba Road,
New Delhi01. ...... Appellants
Versus
Smt.Shakuntala
versus 1 of 40
Suraj Kala Jain
2
1 Mrs.Suraj Kala Jain (dead)
65B Khan Market, New Delhi
Through LRs
1A) Sh.Subhash Jain s/o Late Mrs.Suraj Kala Jain
65B Khan Market, New Delhi
1B) Smt.Veena Devi d/o Late Mrs.Suraj Kala Jain
F93, B.K. Dutt Colony,
Lodhi Road, New Delhi
1C) Smt.Kamlesh d/o Late Mrs.Suraj Kala Jain
w/o S.Vinod Kumar Gupta
r/o C176, Lohiya Nagar, near Guru Nanak
School, Ghaziabad, U.P.
2. Sh.Ram Krishan Aggarwal,
65B Khan Market, New Delhi
3 Sh.Subash Jain,
65B Khan Market, New Delhi ...
Respondents
4. Anita Gupta d/o Late Mrs.Sumitra Devi,
Grand daughter of Late Suraj Kala Jain,
r/o Near Super Auto Service Jharsa Road
Gurgaon 122 001 ............ Proforma
Respondent
Date of institution of the appeal : 19.08.2009
Date when reserved for orders :
Smt.Shakuntala
versus 2 of 40
Suraj Kala Jain
3
05.08.2010
Date of announcement of order : 21.08.2010
ORDER:
1 Present appeal has been preferred by the appellants against the order dated 15.7.2009 passed by Sh.Anand Swaroop Aggarwal, learned SCJ cum RC, New Delhi District in Eviction Case No.E741/07/98 (New Eviction No.50/09) dated dated 6.3.99 whereby the eviction petition filed by the appellants u/s 14 (1) (b) DRC Act against the respondents was dismissed.
2 Appeal was admitted for hearing. Notice of the appeal was given to the respondents. Sh.Kalka Prasad Aggarwal Advocate appeared on behalf of respondent no.1(C) Smt.Kamlesh. Respondent No.3 Subhash Jain appeared in person. Summons issued to respondent No.2 Ram Krishan Aggarwal and Smt.Veena Devi respondent No.1(B) received back with the report of refusal. They were proceeded ex parte vide order dated 7.11.2009. Respondent No.4 Anita Gupta could not be served despite issuance of process to her. On 16.1.2010 learned counsel for the appellants stated before the court that he did not press his appeal against respondent Smt.Shakuntala versus 3 of 40 Suraj Kala Jain 4 No.4 Anita Gupta and her name be deleted from the array of the parties. In view of this, name of the respondent Anita Gupta were ordered to be deleted.
3. Cross objections were filed by respondent No.1 Smt.Kamlesh. She also filed an application u/o 41 rule 27 CPC . Learned counsel for the appellant stated that he did not want to file any formal reply to the application u/o 41 rule 27 CPC and would address arguments on merits directly. Learned counsel for the appellant also did not prefer to file any reply to the cross objections. It was stated by the learned counsel for respondent No.1(C) Smt.Kamlesh that her cross objections be treated as reply to the appeal filed by the appellants.
4. During appeal, an application u/s 151 CPC was moved on behalf of respondent No.1(C) Smt.Kamlesh to dismiss the appeal filed by the appellant as Anita Gupta was not joined in the appeal and the appeal filed by the appellants was not maintainable in her absence. This application was disposed of vide order dated 18.2.2010. Review application moved by respondent No.1(C) for review of the order dated 18.2.1020 was dismissed vide order dated 3.5.2010.
Smt.Shakuntala
versus 4 of 40
Suraj Kala Jain
5
5. I have heard the learned counsel for the appellants and the learned counsel for respondent No.1(C) Kamlesh Kumari and respondent no.3 in person and have gone through the trial court record.
6. On perusal of the trial court record, it reveals that eviction petition u/s 14 (1) (b) of the Delhi Rent Control Act was filed by the appellants against Mrs.Suraj Kala Jain (since deceased) as respondent No.1; Ram Krishan Aggarwal and Subash Jain as respondents No.2 and 3 on 31.3.98. It was pleaded by the petitioners therein that they were the owners/landlords of the premises bearing No.65B,Khan Market, New Delhi. They had inherited the said property from their late father Sh.Shyam Lal Kapur who expired on 9.2.1980. The said shop was acquired by Sh.Shyam Lal Kapur from the Office of Settlement Commissioner in an auction on his coming to India from Pakistan after Partition. It was further pleaded that husband of respondent No.1 was a tenant in the said premises. He was attorned as a tenant to late Sh.Shyam Lal Kapur. After the demise of original tenant Sh.Surji Ram Jain, his widow Smt.Suraj Kala Jain stepped into his shoes and became the tenant of the suit premises. The tenant did Smt.Shakuntala versus 5 of 40 Suraj Kala Jain 6 not tender the rent fixed @ Rs.50/ p.m. for the last sever years./ The appellants who were residing outside Delhi,on their recent visit to Delhi, came to know that respondent No.1 Suraj Kala Jain had sublet the suit premises to respondent no.2 and 3 without their written consent and/or knowledge. The said action of subletting of the suit premises was illegal, malafide and against the spirit and tenor of the privity of contract between the landladies and the late husband of respondent No.1. The appellants served a notice dated 26.3.97 upon Suraj Kala Jain which was replied by her vide reply dated 27.3.1997.
7. It was further pleaded that respondents No.2 and 3 in collusion and connivance with respondent No.1 were seeking to divest the petitioners/landladies of their rights and were using and enjoying premises in question without the consent written or otherwise of the petitioners/landladies.
8. The said eviction petition was contested by respondents No.1 to 3 therein and they filed joint written statement. In the written statement, the respondents controverted pleas of the appellants and pleaded that the appellants were not the owners or landlords/landladies of the suit premises. There Smt.Shakuntala versus 6 of 40 Suraj Kala Jain 7 existed no relationship of landlord and tenant between them. The eviction petition was not filed by duly constituted attorney and the power of attorney was not signed by the petitioners. The petitioners had no locusstandi to file the eviction petition. On merits, it was pleaded that there was no subletting to respondent no.2 and 3. The premises in question were never let out to Surji Ram Jain, husband of respondent No.1. The shop in dispute was let out to M/s Jain Provision Store, a partnership concern of Respondent No.1 and 2 on a monthly rent of Rs.50/. Sh.Shyam Lal Kapur used to collect rent from the partnership concern. He also used to issue rent receipt in the name of said concern. Respondent No.3 was not a partner of M/s Jain Provision Store. The shop in dispute remained in exclusive use and occupation of M/s Jain Provision Store, a partnership concern in the capacity of a tenant since long and as such there were no question of its subletting.
9. The petitioner/landladies did not prefer to file any replication to the written statement of the respondents No.1 to
3.
10. Petitioner Shakuntala Lall examined herself as PW 1 Smt.Shakuntala versus 7 of 40 Suraj Kala Jain 8 besides producing PW 2 R.K. Bhatia, Assistant in the Office of L & D O and PW 3 Ami Chand, Senior Accountant, Ministry of home Affairs, Rehabilitation Division. The respondents examined RW1 Ram Kishan Aggarwal who was cited as respondent No.2 in the eviction petition.
11. After hearing the learned counsel for the parties and on appraisal of the evidence adduced on record, Sh.Gulshan Kumar, the then Ld. ARC passed eviction order in favour of the petitioners/landladies vide order dated 5.8.2004.
12. Respondent No.3 Subash Jain son of late Surji Ram Jain, Smt.Veena Devi, Smt.Sumitra Devi and Smt.Kamlesh all daughters of late Sh.Surji Ram Jain and Smt.Suraj Kala Jain challenged the said judgment dated 5.8.2004 delivered by Sh.Gulshan Kumar, the then Ld.ARC before the ld. Rent Control Tribunal. Sh.Ram Kishan Aggarwal and one Mrs.Anita Gupta were made respondents in the said appeal. Sh.B.B. Choudhary, the then Addl. Rent Control Tribunal vide order dated 02.03.2006 in RCA No.427/07 set aside eviction order dated 5.8.2004 and matter was remanded to the court of learned A.R.C where the parties were directed to put their appearance on 13.3.2006. Since Suraj Kala Jain respondent Smt.Shakuntala versus 8 of 40 Suraj Kala Jain 9 No.1 had expired prior to the delivery of judgment by Sh.Gulshan Kumar, ld. ARC, and the petitioners/landladies had failed to bring on record her legal heirs, the landladies were directed to bring on record the legal representative of deceased Suraj Kala Jain. Learned ARC was directed to decide the eviction petition as per law.
13. Thereafter an application under order 22 rule 4 CPC was moved seeking substitution of the legal heirs of deceased /respondent No.1. Two other applications were moved on behalf of the petitioners/landladies, one u/o 22 rule 3 CPC and another u/o 22 rule 10 CPC. Vide order dated 17.1.2008 application u/o 22 rule 3 and application u/o 22 rule 4 were allowed. Vide order dated 10.3.2008 application u/o 22 rule 10 CPC was kept pending till the execution of valid sale deed in favour of the applicants Ms.Seema Kapur and Ms.Shefali Bhushan.
14. During trial, on the application u/o 47 rule 1 CPC of the newly incorporated legal heirs of deceased/respondent no.1, they were permitted to file their written statement. Respondent No.1(C) Smt.Kamlesh filed her written statement. Other legal heirs brought on record failed to file any fresh Smt.Shakuntala versus 9 of 40 Suraj Kala Jain 10 written statement. Vide order dated 24.9.2008 respondent No.1 (C) Kamlesh was directed to file fresh written statement by taking a defence appropriate to her character only and vide order dated 6.10.2008 fresh written statement was filed on record on behalf of respondent No.1 (C). Request made by respondent No.1 (C) Smt.Kamlesh to permit her to lead evidence in defence was dismissed by learned trial court vide order dated 15.4.2009.
15. After hearing the learned counsel for the appellants and the learned counsel for respondent No.1 (C) Smt. Kamlesh, and on appraisal of the evidence adduced on record and after considering the authorities relied upon by both the sides, vide impugned order dated 15.07.2009,the learned trial court dismissed the eviction petition filed by the appellants. Aggrieved by the said orders, the appellants have come in appeal.
16. Contention of learned counsel for the appellant is that the impugned order passed by the learned trial court can't be sustained as the law laid down by the Hon'ble Supreme Court in Parvinder Singh's case (2004) 4 SCC 794 was not appreciated properly. The appellants had established that Smt.Shakuntala versus 10 of 40 Suraj Kala Jain 11 under the garb of partnership , respondent No1 Suraj Kala Jain had sublet the premises in question to respondent no.2 Ram Kishan who in his cross examination admitted that the said shop was opened and closed by him alone and he used to sign 99% of the cheques for the last 5 years. U/s 14(4) of DRC Act , rent controller was to satisfy himself about the reality of the transaction. Whenever a defence of partnership was put up by the respondents, the rent controller was bound to look into the reality of the transaction irrespective of the recitals of the partnership deed. If the reasoning of the learned Rent Controller was accepted, than mere existence of a partnership deed containing a clause that the tenant would retain legal possession without anything more would be enough to make section 14(4) of DRC Act meaningless. The learned Rent Controller did not appreciate that actual, physical and exclusive possession of a person other than the tenant revealed that the tenant to whom the landlord had let out the suit property had put some other person into possession of that property. There was no genuine and bonafide partnership between Suraj Kala Jain and Ram Krishan Aggarwal. The findings recorded by learned Rent Controller on this aspect are Smt.Shakuntala versus 11 of 40 Suraj Kala Jain 12 contrary to the correct position of law. Section 14 (4) of the DRC Act being a special Act does not approve the technical concept of legal possession as deducible from Partnership Act 1932. Protection of Rent Control Act is meant for personal use of those to whom the tenancy is given. It is the original grantee alone who is entitled to the protection of law. Using the premises for self purpose is one thing but making a monetary gain by allowing its use by some one else is quite a different thing. If the tenant did not need the premises, he or she must restore it to the landlord. He or she cannot allow the use of the premises or any part thereof by another while himself/herself remaining there only in name. The deed of partnership can't be used as a mere cloak or subterfuge on the reality of the transaction. The partnership deeds relied by the respondents are sham and false documents. The partnership has been used as a mere cloak or subterfuge to conceal the subtenancy. The learned Rent Controller failed to tear the veil of partnership set up by the respondents to find out the real nature of transaction entered into between respondent No.1 and 2. From the oral testimony of RW1 Ram Krishan Aggarwal, respondent No.2, it stands proved that the Smt.Shakuntala versus 12 of 40 Suraj Kala Jain 13 actual possession and control of the suit premises was exclusively handed over to respondent No.2 ostensibly on the ground of partnership. Respondent No.1 completely disassociated herself from the suit premises by appointing one Deena Nath Gupta as her representative to check the partnership. Respondent No.1 herself did not appear in the witness box.
17. Reliance has been placed on the authorities reported in Joginder Singh vs. Amar Pal 2005 (1) SCC 31; Bhar Sales vs. LIC 1998 (3) SCC 1; Amar Singh Trilochan Singh vs. Jasoti 2003 (69) DRJ 63 and Parvinder Singh's case (2004) 4 SCC 794.
18. Written submissions have also been filed by the learned counsel for appellants in support of his arguments.
19. On the other hand learned counsel for respondent No.1 (C) Smt.Kamlesh has controverted the arguments of the learned counsel for the appellants and has pleaded that the premises in question were never sublet by respondent No.1 to Respondent No.2 and 3 as alleged. The appellants have failed to prove by leading any cogent evidence on record that the premises in question were sublet by Suraj Kala Jain to Smt.Shakuntala versus 13 of 40 Suraj Kala Jain 14 respondents No.2 and 3. The respondents have produced on record cogent documents showing that the premises are in occupation of M/s Jain Provision Store, a partnership concern for the last so many years. The respondents have produced on record the assessment orders showing M/s Jain Provision Store to be a partnership concern consisting of Suraj Kala Jain and Ram Kishan Aggarwal. The rent receipts issued by the predecessorininterest of the appellants also are in the name of M/s Jain Provision Store. Respondent No.3 Subash Jain was never a partner in M/s Jain Provision Store.
20. It is further argued that the appeal filed by the appellants is not maintainable in the absence of Anita Gupta who was one of the respondents before the learned trial court. No contradictory judgment in appeal can be passed against Anita Gupta in her absence against whom eviction petition filed by the appellants was dismissed. Anita Gupta was one of the legal heirs of deceased Sumitra Devi who was brought on record u/o 22 rule 4 CPC after the demise of Suraj Kala Jain. It is further argued that u/o 41 rule 27, documents filed on record by the respondents are required to be taken into consideration as their genuineness is not doubtful. There is Smt.Shakuntala versus 14 of 40 Suraj Kala Jain 15 no illegality in the impugned order passed by the learned trial court. The partnership deed between Suraj Kala Jain and Ram Krishan Aggarwal were genuine and bonafide.
21. Reliance has been placed on the authorities reported in 2006 viii AD (Delhi) 235; 1972 All India Rent Control Journal 548 ; 119 (2205) DLT 585 (DB); AIR 1959 Kerala 246; AIR 1987 SC 1782; 1995 AIHC 1137; 51 (1993) DLT 375 and 85 (2000) DLT 263.
22. I have considered the arguments addressed by learned counsels for the parties and have scrutinized the trial court record minutely. It is not in dispute that the premises in question were owned by Sh.Shyam Lal Kapur, father of the appellants. The appellants have filed on record documents mark 'B' dated 21.3.1957 which was addressed to Shyam Lal Kapur whereby with reference to his bid in an auction of the shop in question along with shop No.65A, it was informed to him that his bid was accepted by the Regional Settlement Commissioner and he was directed to deposit Rs.41,000/. Mark'C' dated 4.6.1958 has also been filed on record whereby instructions were issued to the Executive Engineer for giving provisional possession of the premises in question to Smt.Shakuntala versus 15 of 40 Suraj Kala Jain 16 Shyam Lal Kapur. After demise of Shyam Lal Kapur, the lease hold rights in the property in question have been transferred in the name of the appellants. The appellants have filed on record document Mark'A' dated 25.11.2980 whereby the appellant Smt.Shakuntala Lall was informed regarding substitution of lease hold rights in respect of the property in question in favour of the appellants consequent upon the death of Shyam Lal Kapur. PW 2 R.K.Bhatia, Assistant in the Office of L & D O brought the summoned record and testified that the photo copy of the letter dated 25.11.1980 , MarkA, was issued by Ministry of Works and Housing, L& DO. No evidence to the contrary has been adduced on record by the respondents. It thus stands established that the appellants have locusstandi to file the eviction petition being the legal heirs of the deceased Shyam Lal Kapur to whom the premises in question were allotted in the auction.
23. The respondents have not denied Shyam Lal Kapur to be the landlord of the premises in question. Rather the respondents have admitted that Sh.Shyam Lal Kapoor used to collect rent at the rate of Rs.50/ p.m. from them and used to issue rent receipts. The respondents have proved on Smt.Shakuntala versus 16 of 40 Suraj Kala Jain 17 record rent receipts Ex.PW1/R1 and Ex.PW1/R2. PW1 Smt.Shakuntala Lall admitted in the cross examination that her father Sh.Shyam Lal Kapur used to issue rent receipts. She volunteered to add that her father used to issue rent receipts in the name of respondent No.1. RW1 Ram Kishan testified that Shyam Lal Kapur used to issue receipts for the rent received of the ship in dispute upto the year 1980. Ex.PW1/R1 and Ex.PW1/R2 were some of the rent receipts issued by Shyam Lal Kapur. RW1 Ram Kishan further identified signatures of Shyam Lal Kapur on letter Ex.PW1/R3 written by him to M/s Jain Provision Store. In the cross examination, genuineness of these rent receipts and letter by Shyam Lal Kapur was not controverted. The fact remains that Shyam Lal Kapur was the landlord of the premises in question. After his death, the lease hold rights have been substituted in the name of the appellants. Hence appellants have locus standi to file the eviction petition regarding the premises in question. Rate of rent is not disputed between the parties.
24. Material question to infer is as to who was tenant in the premises in question at the time the property in question was let out at the first instance. Admittedly, prior to the Smt.Shakuntala versus 17 of 40 Suraj Kala Jain 18 acceptance of bid in auction in the year 1957, Shyam Lal Kapur was not in picture. Admittedly, the premises in question were on tenancy, prior to Shyam Lal Kapur becoming the owner of the property in question. PW1 Smt.Shakuntala Lall has admitted in the cross examination that the shop in dispute was not let out by late Sh.Shyam Lal Kapur but it had already been let out before it was auctioned. None of the parties has produced on record any document to show as to when by whom and to whom the premises in question were let out. Case of the appellants is that the premises in question were in the tenancy of Surji Ram Jain, husband of respondent No.1 and after the allotment of the shop in question on acceptance of his bid in auction, Surji Ram Jain was attorned as 'tenant' of Shyam Lal Kapur. The respondents have denied this contention. Burden was heavily upon the appellants to prove as to who was tenant in the premises in question when it came into his possession in the year 1957. However, the appellants have not produced on record any oral or documentary evidence as to who infact was tenant in the premises in question and who used to pay rent or to whom the rent was being paid by the said tenant. The appellants did not summon Smt.Shakuntala versus 18 of 40 Suraj Kala Jain 19 any relevant record from the Ministry of Rehabilitation or from the office of L&DO to show as to who was tenant in the premises in question when the shop in question was auctioned. Letters Mark 'B' and 'C' filed on record by the appellants do not show if Surji Ram Jain was a tenant in the premises in question in his individual capacity. Again in the letter MarkA dated 25.11.80 there is no mention of tenancy in the premises in question. There is oral testimony of PW 1 Smt.Shakuntala Lall only to prove that the premises in question were let out to Surji Ram Jain. This oral testimony of PW1 Smt.Shakuntala Lall is of no substance as the premises in question were not let out by her father to Surji Ram Jain. PW1 Smt.Shakuntala Lall has testified that Surji Ram Jain was attorned as a tenant and an attornement letter was issued. However, no such attornment letter has been produced on record by the appellants. Adverse inference is to be drawn against the appellant for withholding this material piece of evidence. After acceptance of bid of Shyam Lal Kapur in auction, some documents regarding the property in question, like conveyance deed/lease deed/sale deed etc. must have been executed containing the name of the occupant in the Smt.Shakuntala versus 19 of 40 Suraj Kala Jain 20 premises in question. No such document has been produced on record by the appellants to infer status of the person occupying the premises in question as a tenant at that time. There are no averments in the eviction petition that or prior to the demise of Sh.Shyam Lal Kapur, no rent was being paid by the tenant to him. On the other hand the respondents have proved on record rent receipts Ex.PW1/R1 and Ex.PW1/R2. These rent receipts are in the handwriting of Shyam Lal Kapur and contain his signatures on revenue stamps affixed on the same. One receipt is dated 27.7.1964 which is rent receipt for th the period upto 30 September 1964. As per this receipt, the rent was received from Jain Provision Store. Rent receipt Ex.PW1/R2 is on the printed memo in the name of Jain Provision Store, 65B, Khan Market, New Delhi. This receipt again contains proper receipt having revenue stamp containing the signatures of Shyam Lal Kapur. It depicts the payment of rent for September, October, November and December 1969. The respondents have further proved on record letter dated 17.9.1965 (Ex.PW1/R3) in the handwriting of Sh.Shyam Lal Kapur which he had written in the name of Jain Provision Store asking for certain money order by return of post for Rs.300/ Smt.Shakuntala versus 20 of 40 Suraj Kala Jain 21 only towards rent. There is mention about visit of daughter of Shyam Lal Kapur to M/s Jain Provision Store for that purpose. All these receipts categorically show payment of rent up to date till December 1969 by M/s Jain Provision Store. The appellants have failed to place on record any document to show if at any time any rent receipt was issued by late Sh.Shyam Lal Kapur in the individual name of Surji Ram Jain. All the rent receipts referred above were in the name of Jain Provision Store. It shows that Jain Provision Store is in existence in the premises in question from the very inception. At no stage late Sh.Shyam Lal Kapur objected to the running of Jain Provision Store in the premises in question.
Status of Jain Provision Store :
25. Whether it was a proprietorship firm of Surji Ram Jain or was a partnership concern of Suraj Kala Jain and Ram Krishan prior to 1970 has not been proved beyond doubt by any of the parties. There is no substance in the plea of the respondents that premises in question were let out to M/s Jain Provision Store, a partnership concern consisting of Suraj Kala and Ram Krishan. No evidence on that aspect has been brought on record by the respondents. In the cross Smt.Shakuntala versus 21 of 40 Suraj Kala Jain 22 examination, Ram Krishan Aggarwal, respondent No.2 appeared as RW1 and categorically admitted in the cross examination that he did not have in his possession any proof to show that he was partner of M/s Jain provision store before 1970. He did not remember the exact date when he became partner in the business of M/s Jain Provision Store prior to1970. Reliance was placed by the respondents on the partnership deed, the photo copy of which is Ex.RW1/A, to show that M/s Provision Store is a partnership concern consisting of Suraj Kala Jain and Ram Krishan Aggarwal. On perusal of the partnership deed Ex.RW1/1 reveals that there is mention that the business of M/s Jain Provision Store was being carried out by Suraj Kala Jain as its proprietor. There is no mention in this partnership deed executed on 17.6.1970 that the premises in question were under the tenancy of partnership concern consisting of Suraj Kala Jain and Ram Krishan Aggarwal. Rather it contains another averment that second party i.e. Ram Krishan Aggarwal was acting as manager in the said firm prior to the execution of the partnership deed dated 17.6.1970. It shows that partnership deed dated 17.6.70 which was to take effect from 1.4.70, Ram Smt.Shakuntala versus 22 of 40 Suraj Kala Jain 23 Krishan Aggarwal was not a partner in M/s Jain Provision Store. The respondents have failed to show as to how and what circumstances status of Ram Krishan Aggarwal was recorded as Manager prior to 17.6.1970. Had the premises been let out to a partnership concern consisting of Suraj Kala Jain and Ram Krishan Aggarwal running business under the name of style of M/s Jain Provision Store, there was no occasion for Ram Krishan Aggarwal to work as a Manager in the said firm. The respondents have failed to prove that the premises in question were let out to a partnership concern prior to the predecessorininterest of the appellants acquiring the interest in the property in question in 1956/57.
26. The appellants have pleaded that the premises in question were let out to Surji Ram Jain and after his death his widow Suraj Kala Jain stepped into his shoes and she became the tenant in the premises in question. It shows that the appellant have recognized respondent No.1 Suraj Kala Jain to be a tenant in the premises in question after the death of her husband SurjiRam Jain. Admittedly at the time of death, Surji Ram Jain had left behind his widow Suraj Kala, three daughters Ms.Veena Devi, Ms.Kamlesh and Sumitra and Smt.Shakuntala versus 23 of 40 Suraj Kala Jain 24 two sons Satya Narain and Subash Jain. The appellants have failed to explain as to how Suraj Kala Jain alone inherited the tenancy of her deceased husband. 27 Main emphasis of the appellants in the appeal/eviction petition is that respondent no.1 Suraj Kala Jain sublet the premises in question to respondent No.2 Ram Krishan Aggarwal and respondent No.3 Subash Jain. This fact has been vehemently denied by the respondents. The burden was heavily upon the appellants to prove that respondent No.1 Suraj Kala to whom they have recognized a tenant in the premises in question had infact sublet, assigned or parted with the possession of the premises in question to respondents No.2 and 3 and if so when and in what manner. In the eviction petition filed before the learned trial court, there is no mention as to when the premises in question were sub let by respondent no.1 Suraj Kala Jain to respondent No.2 Ram Krishan Aggarwal and respondent No.3 Subash Jain. It was also not pleaded as to how and under what circumstances the subletting took place. It was also not pleaded if the respondents No.2 and 3 were in exclusive possession of the premises in question jointly after the alleged Smt.Shakuntala versus 24 of 40 Suraj Kala Jain 25 subletting. During trial, no cogent evidence was adduced on record to prove as to when respondent No.1 Suraj Kala Jain sublet the premises in question and if so, in what manner. The appellants only examined PW1 Ms.Shakuntala Lall who in her deposition before the court did not at all testify as to when and under what circumstances respondent no.1 sublet the premises in question to respondents No.2 and 3. She merely stated that they had not consented or agreed to the premises being rented to respondents no.2 and 3 to be subtenants and they never recognized them as subtenants. Admittedly this witness was residing out of India and on her visit to India in the year 1997 she came to know about the alleged sub tenancy. She however failed to explain as to on what circumstances, she inferred that the respondent No.1 had sub let the premises in question to respondent no.2 and 3. Nothing was testified by this witness if respondents No.2 and 3 were joint subtenants or subtenantsin common. Nothing was revealed if respondent No.2 and 3 were exclusive in occupation of the premises in question and if so in what capacity i.e. whether they were running their separate business in the premises in question or whether they were Smt.Shakuntala versus 25 of 40 Suraj Kala Jain 26 running M/s Jain Provision Store jointly. Respondent No.2 as RW 1 in his deposition before the court deposed that respondent No.3 Subash Jain was not a partner in M/s Jain Provision Store. The premises in question were never sublet, assigned or parted with to respondent no.3 Subash Jain. This statement of the witness RW 1 has remained unchallenged in the cross examination. No suggestion whatsoever was put to this witness in the cross examination that respondent No.3 Subash Jain was also in occupation of the premises in question or that respondent No.1 had sublet the premises in question to him also. Only suggestion put to the witness in the cross examination was that the shop in dispute was sublet to him. Learned counsel for the appellants has failed to explain as to how the appellants had pleaded that the premises in question were also sublet to Respondent no.3 Subash Jain along with Ram Krishan Aggarwal Respondent No.2.
28 Admittedly respondent No.3 is the son of deceased Surji Ram Jain and Smt.Suraj Kala Jain, the original tenants. Appellants have failed to explain as to how Suraj Kala Jain who had allegedly stepped into the shoes of her Smt.Shakuntala versus 26 of 40 Suraj Kala Jain 27 husband after his death in 196465 had sub let the premises in question to her own son. There is no averment in the pleadings or in evidence if any rent was being paid by respondent No.2 and 3 to respondent No.1 as subtenants and if so what was the said rate of rent. A son is not expected to pay rent to his mother for running the business earlier being carried out by his parents under the name and style of M/s Jain Provision Store in the absence of any document to the contrary.
29 Case of the respondents from the very inception is that respondent no.1 Suraj Kala Jain had entered into a partnership deed with respondent No.2 and the business of M/s Jain Provision Store was being carried out in partnership. The appellants have challenged various partnership deeds executed between deceased Suraj Kala Jain and respondent No.2 as sham documents to conceal the real transaction. It is alleged that these documents were being used as a mere cloak or subterfuge to conceal the reality of transaction. Again the burden was heavily upon the appellants to prove that these partnership deeds relied upon by the respondents were sham documents and were being used as a Smt.Shakuntala versus 27 of 40 Suraj Kala Jain 28 mere cloak to conceal the alleged subtenancy. Again there is no cogent evidence on record adduced by the appellants to prove these allegations. In her deposition as PW1, appellant Ms.Shakuntala Lall did not utter a word that these partnership; deeds relied upon by the respondents were bogus or sham documents and were never acted upon. She has rather stated in her testimony that her sisters and she were not aware of the premises being rented to partnership concern. Respondent No.1 never approached her and her sisters and did not represent that there was partnership concern running in the said shop. In the cross examination she admitted that she only visited the shop in dispute in the year 1997. She was not aware if M/s Jain Provision Store, a partnership concern was consisting respondent No.1 and respondent no.2. She, however, admitted that the business in the name of M/s Jain Provision Store was being run in the shop in dispute for the last more than 35 years. She further stated that she did not know if the shop in dispute was being opened and closed by respondent Nos. 1 and 2 for the last more than 35 years. She expressed her inability to depose if M/s Jain Provision Store was assessed with incometax and saletax Smt.Shakuntala versus 28 of 40 Suraj Kala Jain 29 departments at the address of the disputed property. The appellant did not examine any witness from the neighbourhood to prove that respondent No.1 had sublet the premises in question to respondents No.2 and 3. Only evidence on record is that of PW1 Ms.Shakulntala Lall who had no personal knowledge whatsoever being residing out of India to state that respondent No.1 had sublet the premises in question to respondents No.2 and 3. Contrary to that, respondents have proved beyond doubt that business in the premises in question was being run by a partnership concern consisting of respondents No.1 and 2 since 1970. These partnership deeds on record though original of two partnership deeds have not been brought on record have neverthless been relied upon by the appellants while justifying the eviction order passed by Sh.Gulshan Kumar the then ld. ARC.
30 There is no bar for an original tenant to run a business in the tenanted premises in partnership in the absence of a contract to the contrary. Learned counsel for appellant has relied upon the authority reported in Amar Singh Trilochan Singh vs. Jasoti 2003 (69) DRJ 63. It also states that if a tenant enters into a partnership with another Smt.Shakuntala versus 29 of 40 Suraj Kala Jain 30 person, then question of subletting or parting with possession does not arise. Only duty imposed upon the Controller and the authorities under the Act is to examine the partnership deed and to separate the grain from the chaff so as to see if it is bogus or a sham document or a genuine document. 31 In the present case, after the death of Surji Ram Jain in the year 196465, Suraj Kala Jain stepped into his shoes. During life time of Surjimal Jain, business in the premises in question was being run in the name and style of M/s Jain Provision Store. This business continued in the premises in question subsequent to the death of Surji Ram Jain, in the same name and style of M/s Jain Provision Store. There is no evidence on record adduced by the appellants that at any stage after the death of Surji Ram Jain, no business whatsoever was carried out in the premises in question. Partnership deed dated 17.6.1970 reveals that prior to that, the business in the name and style of M/s Jain Provision Store was being carried out by respondent no.1 Suraj Kala Jain as a proprietorship firm and at that time Ram Krishan Aggarwal was sitting in the shop in question as Manager. There is nothing on record to show if Suraj Kala Smt.Shakuntala versus 30 of 40 Suraj Kala Jain 31 Jain or her children were capable to run M/s Jain Provision Store of their own after the death of Surji Ram Jain. Under these circumstances, possibility of Suraj Kala Jain seeking assistance of Ram Krishan Aggarwal as manager to run the business in question prior to 1970 can't be ruled out.
32. With effect from 1.4.1970 Ram Krishan Aggarwal was joined as a partner to run the business under the name and style of M/s Jain Provision Store in partnership. Subsequently also two other partnership deeds were executed between respondents no.1 and 2 on various dates to incorporate changed conditions. At no stage, prior to filing the eviction petition in 1998 these partnership deeds were challenged by the appellants. Prior to the issuance of legal notice for the first time in 1997, there was no objection whatsoever by the appellants of the business being run in partnership since 1970. Notice Ex.PW1/3 was served for the first time alleging subletting without giving any basis for the same. In this notice it was merely mentioned that on enquiries the appellants came to know that the tenanted premises were sublet to Ram Krishan Aggarwal and Subash Jain without their prior consent. In para No.2 of the notice, there is name Smt.Shakuntala versus 31 of 40 Suraj Kala Jain 32 of one Bal Kishan as a 'tenant' in the premises in question who continued to pay the monthly rental amount to the appellants. The appellants have failed as to how name of 'Bal Kishan' as a tenant in the premises in question cropped up in the notice dated 26.3.97. The respondents replied to the notice immediately and denied if there was any subletting to respondent No.2 and 3.The notice at least reveals that RespondentNo.3 Subash Jain s/o Surji Ram Jain and Suraj Kala Jain was also in occupation of the premises in question.
33. During the proceedings before the learned trial court agreement to sell was executed by the appellants in favour of Ms.Seema Kapur and Ms.Shefali and an application was moved u/o 22 rule 10 CPC by the purchasers which was kept pending vide order dated 10.3.2008. On perusal of the agreement to sell, photo copy of which is on record, shows that there is no mention that respondent no.2 Ram Krishan Aggarwal was in occupation of the premises in question exclusively. Rather there is mention that the premises in question were under the tenancy of heirs of Suraj Kala Jain. There is also mention that the appellants had delivered all the original documents pertaining to the property in question to the Smt.Shakuntala versus 32 of 40 Suraj Kala Jain 33 purchasers. However, no such document has been brought on record.
34 It is a matter of record that eviction order was passed by Sh.Gulshan Kumar the then learned Addl. Rent Controller u/s 14 (1) (b) of DRC Act vide order dated 5.8.2004. The said eviction order was held to be nullity by the court of Sh.B.B. Choudhary the then ld. ARCT in RC No.427/04 as the appellants had failed to bring on record the L.Rs of the deceased respondent No.1 Suraj Kala Jain. It is a matter of record tht the said eviction order was challenged before the learned ARCT by the L.Rs of the deceased Suraj Kala Jain i.e. Subash Jain, Veena Devi, Sumitra and Kamlesh. The alleged subtenant Ram Krishan Aggarwal did not prefer to challenge the eviction order. He was therefore impleaded as respondent No.4 in the appeal before the learned A.R.C.T. Appeal filed by the L.Rs of the deceased respondent No.1 was remanded and the L.Rs of the deceased respondent no.1 Suraj Kala Jain were ordered to be brought on record. Before the learned trial court, after remand, an application u/o 22 rule 4 CPC was moved seeking substitution of legal heirs of the deceased respondent No.1 After remand, respondent Smt.Shakuntala versus 33 of 40 Suraj Kala Jain 34 No.2 Ram Krishan Aggarwal did not bother to contest the eviction petition. Despite service of court notice, none appeared on his behalf before the learned trial court on 4.3.09. Again on 28.3.09 respondent No.2 Ram Krishan Aggarwal remained absent despite service through court notice. None appeared on his behalf before the ld. trial court to address arguments. In appeal in question also Ram Krishan Aggarwal has not bothered to appear and contest the case. From these circumstances, it can safely be inferred that respondent No.2 had no legal interest in the property in question as subtenant. Had respondent No.2 Ram Krishan Aggarwal been sublet the premises in question, he being the aggrieved person must have challenged the eviction order passed against him as a whole regarding the premises in question by the court of Sh.Gulshan Kumar the then ld. ARC. He did not file any appeal against the eviction order and even after remand, he did not bother to contest the eviction petition. There is nothing on record to show if he continued to occupy the premises in question after the eviction order passed by Sh.Gulshan Kumar ld. ARC. Had the legal heirs of the deceased been left with no interest in the property in question, as per alleged Smt.Shakuntala versus 34 of 40 Suraj Kala Jain 35 subletting they might not have contested the eviction order tooth and nail after the passing of eviction order by the court of Sh.Gulshan Kumar the then ld. ARC. These circumstances lend credence that respondent no.1 Suraj Kala Jain never parted with her legal interest in the premises in question to respondent No.2. The very presence of respondent No.3 Subash Jain, her son, in the premises in question even prior to the filing of the eviction petition in the year 1998 shows that the respondent no.1 continued to occupy the premises in question in partnership with Respondent No.2 Ram Krishan Aggarwal and respondent No.3 her son,Subash Jain represented her in running the business of M/s Jain Provision Store.
35 Besides above, the respondents have proved on record number of documents which show that M/s Jain Provision Store is being assessed in the official records as partnership firm. Assessment order Ex.RW1/2 for the year 197778 shows that M/s Jain Provision Store was assessed under sec.23 Delhi Salestax Act 1975. The assessment order reveals that Ram Krishan respondent No.2 had appeared in the office before the concerned officer as partner Smt.Shakuntala versus 35 of 40 Suraj Kala Jain 36 of M/s Jain Provision Store. Ex.RW1/3 is certificate of registration under Delhi Salestax Rules 1975 in the name of Jain Provision Store where the names of the partners have been mentioned as Ram Krishan Gupta and Suraj Kala Jain as on 27.1.87. It also contains signatures of the assessing authority in col. No.3. Column No.1 contains the name of the proprietor/partner etc. Column No.2 contains the signatures of the partners. This document has not been controverted by the learned counsel for the appellants. Ex.RW1/4 is authorization issued from the office of Salestax Officer, ward No.18 , New Delhi dated 3.11.1988. Again the names of the partners have been mentioned as Ram Krishan Gupta and Suraj Kala. Ex.RW1/5 is the certificate of registration under Central Salestax (Registration and Turn Over Rules) 1957. In this certificate of registration, the firm has been registered under the name of M/s Jain Provision Store. Ex.RW1/7 is the assessment order for the assessment period 198485 in the name of M/s Jain Provision Store. In the assessment order, there is specific mention that Subash Jain s/o Suraj Kala Jain appeared before the assessing authority.
36 The respondents in their application u/o 41
Smt.Shakuntala
versus 36 of 40
Suraj Kala Jain
37
rule 27 have annexed number of documents from income tax authorities/department showing that M/s Jain Provision Store has been assessed as a partnership concern. The respondents have also filed on record number of incometax returns and assessment order thereon in the name of Suraj Kala Jain where she had shown her income from M/s Jain Provision Store as her share of profit. All these official documents are not expected to be forged or fabricated by the respondents. Genuineness of these documents has not been challenged by the appellants in filing any reply to the application. All these official documents can't be prepared in anticipation of the eviction petition to be filed in the year 1998. All these documents were pertaining to the period much prior to the appellants coming to know about the alleged sub letting. The appellants have not filed on record any document to show if in the official record, the respondent No.2 has been shown to be in exclusive possession of the premises in question. The presence of Suraj Kala or her son Subash Jain in the official record proves beyond doubt that Suraj Kala never parted with the legal possession of the premises in question.
Smt.Shakuntala
versus 37 of 40
Suraj Kala Jain
38
37. Under the Partnership Act, there is provision for a partner to be a sleeping partner. If because of her inability to run the business in question after the death of her husband, respondent No.1 Suraj Kala Jain opted to enter into partnership with Ram Krishan Aggarwal remaining as a sleeping partner therein, no adverse inference can be drawn against her on that account. Contents of the partnership deeds filed on record demonstrate that the respondent No.1 kept the legal possession of the premises in question with her throughout. Since respondent No.1 was a sleeping partner, it was natural for Ram Krishan Aggarwal to run the business of M/s Jain Provision Store himself by opening and closing the shop in question or putting his signatures on the cheques. In the cross examination, rather RW1 Ram Krishan had asserted that in the business of M/s Jain Provision Store, for the last 10 years, the cheques were signed by respondent No.1. He admitted the suggestion of the appellants that Suraj Kala Jain was a sleeping partner since 1983 onwards. He further stated that even in the partnership deed executed prior to 1983, respondent No.1 remained a sleeping partner. Tenancy rights, goodwill right etc. were all kept by Suraj Kala Jain Smt.Shakuntala versus 38 of 40 Suraj Kala Jain 39 with her despite joining Ram Krishan as partner in M/s Jain Provision Store. In the cross examination, RW 1 Ram Krishan explained that after the death of Surji Ram Jain, right of the tenancy was exclusively in the name of Suraj Kala Jain so that in case of any future differences, she could use at least the premises for the purpose of brining up her children. The alleged subtenant to whom the premises in question in a posh area like Khan Market were allegedly sublet is not imagined to make such a sweeping statement against his own interest.
38 All the circumstances referred above prove that the partnership deeds executed between respondent No.1 and respondent No.2 were genuine and bonafide. The appellants have failed to prove on record that all these documents were forged, fabricated or sham documents or that they were never acted upon and were executed as a mere a camouflage to cover the real transaction of alleged sub tenancy. I am of the view that respondent no.1 always kept legal possession/control of the tenanted premises with her and never parted with the same in favour of respondent No.2.
39. Judgments relied upon by the learned counsel for Smt.Shakuntala versus 39 of 40 Suraj Kala Jain 40 appellants are of no help to the appellants as in the considered opinion of the court, the partnership deeds on record were genuine and bonafide. In the case of Parvinder Singh vs. Renu Gautam (supra), Hon'ble Supreme Court has observed as "..... so long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against subletting or parting with possession. This is a genuine statement of law which ought to be read in the light of lease agreement and law governing the tenancy .......'' 40 In the present case nothing has come on record to show that partnership deeds were to act as a cloak on the reality of transaction .
41. The pleas taken by the learned counsel for the appellants have already been dealt with in detail by the learned trial court and cogent reasons have been given while disagreeing with the same. I find no illegality or material irregularity in the impugned order passed by the learned trial Smt.Shakuntala versus 40 of 40 Suraj Kala Jain 41 court.
42 In the light of my above discussion, appeal filed by the appellant is dismissed.
43 In view of the dismissal of the appeal on merits, I find no occasion to deal with the application moved u/s 151 CPC by the respondents regarding maintainability of the appeal in the absence of Anita Gupta.
44 Appeal file be consigned to record room. Record of the Ld. Trial Court be sent back along with the copy of this order. Announced in open court on dated 21.08.2010 (S.P.GARG) DISTRICT JUDGEIV NEW DELHI Smt.Shakuntala versus 41 of 40 Suraj Kala Jain 42 IN THE COURT OF SHRI S.P.GARG; DISTRICT JUDGEIV; NEW DELHI ID No.02403C0254102009 RCTA No.37/09/08 Mrs.Shakuntala Lall w/o Sh.D.P.S. Lal etc., versus Suraj Kala Jain etc. 21.08.2010 Present: Ld. Counsel for the parties Vide separate order of even date the appeal filed by the appellant is dismissed.
Appeal file be consigned to record room. Record of ld. trial court be sent back along with copy of this order.
DJIV/ND
21.08.10
Smt.Shakuntala
versus 42 of 40
Suraj Kala Jain