Delhi District Court
Mrs. Kiran Seonie vs Sh. Raj Kumar Sharma on 23 December, 2019
IN THE COURT OF SHRI YASHWANT KUMAR: DISTRICT &
SESSIONS JUDGE/RCT, PATIALA HOUSE COURTS: NEW DELHI
RCT No. 166/16
(Old RCT No. 20/13)
CNR No. DLND010005882013
1. Mrs. Kiran Seonie, aged about 55 years
W/o Sh. H.P. Seonie
2. Shri H.P. Seonie, aged about 60 years
S/o Late Shri S.P. Seonie
Both R/o 37, Hanuman Road
New Delhi110001
......... Appellants
Versus
1. Sh. Raj Kumar Sharma
W/o Late Sh. Bishan Lal
R/o B50, Ashoka Enclave PartII
Sector37, Faridabad, Haryana
2. M/s Impact Tours (India) Pvt. Ltd.
Through its Managing Director
Mr. Rajeev Jai
N33/10, Private No. 10
Ground Floor, Munshi Lal Building
NBlock, Connaught Circus
New Delhi110001
...... Respondents
JUDGMENT
1. This is an appeal under Section 38 of Delhi Rent Control Act, 1958 against judgment dated 16.07.2013 passed in eviction petition bearing No. E19/10 by the then learned Rent Controller, PHC, New RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 1 of 31 Delhi (in short the impugned judgment), in respect of tenanted premises i.e. premises, measuring approximately 243 square feet (9 ft x 27 ft) situated at Ground Floor, property No. N33/10, Private No. 10, Munshi Lal Building, NBlock, Connaught Circus, New Delhi (in short the premises in question), whereby the Ld. RC dismissed the eviction petition u/s 14(1) (b) of DRC Act filed by the petitionerstherein / appellantsherein.
2. The brief facts of the present appeal are that the appellant No.2 is the husband of appellant No.1 Mrs. Kiran Seonie. The respondent No.1 / tenant had sublet, assigned and / or otherwise parted with the possession of the entire suit / tenanted premises to the respondent no.2 without obtaining any consent in writing of the owner/landlord and the entire tenanted premises is in the exclusive occupation and possession of the respondent No.2/subtenant. The respondent No. 2 is paying rent to the respondent No.1/tenant. In the eviction petition, the respondents filed their written statements and petitionerslandlord filed replication. After leading evidence by the parties, arguments were heard and the impugned judgment dt.16.07.2013 RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 2 of 31 was passed by the Ld. RC, New Delhi.
3. Feeling aggrieved by the said impugned judgment, the appellants have preferred the present appeal on the following grounds among others that the Ld. Rent Controller had not focused his attention towards the real controversies between the parties. There is no pleading of any written permission. The partnership business is not proved. Section 14(4) of the DRC Act provides that for the purpose of clause (b) of the proviso to Subsection (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sublet by the tenant. In the present case, there has not been a genuine partnership between the respondents. The appellants, in the present appeal, in support of their case, relied upon the judgment in the case of G.K. Bhatnagar (Dead) by LRs v. Abdul Alim, (2002) 9 SCC
516. RW4 Mahender Kumar Sharma in his statement also stated that RW5 Ashok Kumar Jain in 2000 had given the permission to respondent No. 1 to carry on business in Partnership only with Mr. Rajiv Jai. No Minute Books containing the resolution of the respondent No.2 company to enter into any partnership business with the respondent No.1, RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 3 of 31 partnership deed, partnership accounts, Dissolution Deed etc. have been filed and proved to establish any partnership business. In his written statement, the respondent No.1 stated that the date of shifting of respondent No. 2 from the suit premises was 01.10.2010 that is the date after filing of the suit on 10.08.2010. The respondent No.2 was served with the summons of the present case on the premises in question itself, which proves that respondent No.2 was very much at the premises in question on the date of service of summons. In the memo of parties of RCA No. 15 of 2012 filed by the respondent No.1 on 24.07.2012, the address of the respondent No. 2 given as that of the suit premises only. The appellants, in the present appeal, in support of their averments, also relied upon the judgments in the cases of Gajanan Dattatraya vs. Sherbanu Hosang Patel and others, 1976 RCR (Rent) 33 (SC); Raghunath vs. Raju Ramappa Shetty AIR 1991 SC 1040 and Batoo Mal vs Rameshwar Nath and Ors. AIR 1971 Delhi 98 (DB). No records much less registration of company (ROC) records i.e. the Form No. 18, Change of address of the respondent No.2 company has been filed and proved. The respondent No. 1 in his written statement has pleaded that RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 4 of 31 the respondent no. 2 had shifted from the suit premises on 01.10.2010. This is the date after filing of the present suit for eviction and is also after service of notice of the said suit upon the respondents. The finding recorded by the Ld. Rent Controller in para 34 of the impugned order that respondent no.2 is not carrying out the business in the premises when the instant petition was filed, is against the records of the present case and same is perverse in as much as petition was filed on 10.08.2010 and even as per para 16 of the written statement of respondent no. 1, the respondent no. 2 had shifted and vacated the premises in question on 01.10.2010. Further, it has come on record as per the testimony of RW2 that the respondent no.1 has been Director of respondent No.2 company from 01.10.2008 to 01.12.2011 having the same address and the company till that period has been maintaining its registered office in the suit premises only.
4. The appellants, in their present petition, have further taken the grounds that the application for eviction was filed on 10.08.2010 and not on 11.08.2010 as has been recorded in para 13 of the impugned order. It is not alleged that the registered office of the respondent no. 2 RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 5 of 31 company has also shifted. The respondent no.2 company had been registered at the suit premises in 2002 and the same has been continuing upto 2011 and there was no trace of any connection of respondent No. 1 much less a controlling authority of the respondent No. 2 company. Even, if the subtenant had shifted the suit premises just before filing the application for eviction, the same will not make any difference. No document of any kind have been produced or proved by respondent No. 1 to show his link to or his presence in or doing any kind of the business in the suit premises in the context of subletting, assigning and parting with possession of the premises. The electricity bills are no material evidence to disprove the subletting. The incidence of subletting is totally different than the rent receipts issued by the petitioners and the electricity bills existing in the name of respondent no. 1 tenant. The respondent being a lady, there was nothing wrong if her husband enters into witness box to give evidence on her behalf. It is settled that even if the plaintiff or defendant does not appear in the witness box to support his case, but there is other reliable evidence, the courts can definitely take that evidence into consideration. In this regard, the appellants, in their present RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 6 of 31 appeal, relied upon the judgment in the case of Kishan Lal vs Shanti Devi decided on 23.04.2001 by Rajasthan High Court 2002 (1) WLC 635. The registered agreement to sell (Ex.AW1/2) was in favour of petitioner No.1 and the registered power of attorney (Ex.AW1/3) has been in favour of petitioner No.2 and it is the petitioner No.2 who has been dealing with the respondent no.1 throughout even for and on behalf of petitioner no.1 and as such it was thought fit to make both of them petitioners so as to avoid any kind of technical objections with regard to the title of the suit premises. The appellants have also relied upon the judgment in the case of Man Kaur (Dead) by LRs vs Hartar Singh Sangha (2010) 10 SCC 512 and gave summary of the said judgment as to who should give evidence in regard to matters involving personal knowledge. The denial of two suggestions referred to in page no. 6 of the written arguments of the respondent no.1 are against the respondents rather against the petitioners.
5. The appellants, in their present petition, have also taken the grounds that the appellants / petitioners discharged the onus by legal evidence showing that the respondent no. 2 was in exclusive possession RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 7 of 31 of the premises for the valuable consideration and has also proved the presence of the respondent No. 2 in the suit premises. The payment of rent or monetary consideration by the respondent no. 2 to the respondent no. 1 has been fully admitted by the respondent no. 1. RW2 Mr. Rajeev Jai has never appeared in the witness box either for tendering of his evidence or for his crossexamination. Neither the affidavit of RW2 Mr. Rajeev Jai was tendered nor he was put to crossexamination. There was vesting of possession by the respondent no. 1 in respondent no.2 by divesting himself not only of physical possession but also of the right to possession. The legal possession was not retained by the respondent No.1. The crossexamination of PW1 does not in any manner shakes the case of the appellants or supports the case of the respondents. The visiting card of respondent no. 2 as well as the photographs Ex.AW1/9 to AW1/11 not only pertain to the year 200809 but were continuing even after filing of the present petition. The date and time when the respondent no. 1 parted the possession of the suit property was not so relevant when the witnesses of the respondents have admitted so and as also the records show that the respondent No. 2 was in the premises since 2000. The RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 8 of 31 observations of Ld. Rent Controller that the documents i.e. visiting card of the respondent no. 2, photographs of the display board and annual returns does not have conclusive proof to show that the premises was let out by respondent no. 1 to respondent no. 2 or the respondent no. 1 has parted with the possession of the same, are also perverse and shows the nonapplication of judicial mind. The testimonies of the witnesses of the respondents do not prove conclusively that there was no subletting, parting with possession etc. by the respondent no. 1 in favour of respondent no. 2. The testimony of RW5 Mr. Ashok Kumar Jain is beyond pleadings. Even the alleged partnership business has not been proved. When written permission is required, the same cannot be proved by the oral testimony only. The respondent no. 1, in his written statement, has not pleaded that there was any written permission. He has pleaded only a permission. The respondent No.2 company has its registered office in the suit premises and no record has come for shifting of the registered office of the respondent no. 2. The appointment of Director of the respondent No.1 only for the period from 01.10.2008 to 01.12.2011 itself shows that he was not the controlling person of RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 9 of 31 respondent No.2 company and that the respondent No. 2 company was in the suit premises upto 01.12.2011. In partnership, tenant could always have legal possession of the premises with him. The respondent no. 1 has admitted in his crossexamination that he used to collect rent from respondent no. 2 @ Rs.30,000/ to Rs.35,000/ pm.
6. The respondents herein have not filed reply to the appeal. However, they opposed the present appeal.
7. I have heard Ld. Counsel for the appellants and Ld. counsel for respondent and also carefully gone through the synopsis filed on behalf of the appellants, written submissions filed on behalf of the respondent No. 1 / Raj Kumar and the impugned judgment as well as the materials on record.
8. Learned counsel for the appellants argued that neither the partnership deed nor the bank account statement is on record then how the Ld. Trial Court has considered that respondents are in the business of partnership firm. There has to be resolution regarding the said partnership. No income tax record of partnership business is on record. The respondent No.1 admitted that he was receiving the rent from RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 10 of 31 respondent No.2. The respondent No.1 also admitted that the entire property is in possession of respondent No.2. All the averments of respondent No.1 are in oral. He has to show that he is in legal possession of the premises in question. The Ld. Counsel for the appellant referred the crossexamination of RW1 wherein RW1 admitted that he used to collect rent from respondent no. 2 and also collected the rent sometime Rs.30,000/ or sometime Rs.35,000/ per month and further admitted that respondent No.2 company has been carrying on its business at the entire premises in question. If it is a registered office then it has to maintain the records of the company that is being run in partnership from the premises in question. Ld. Counsel for the appellants referred the judgment in the case of Roop Chand v. Gopi Chand Thelia AIR 1989 Supreme Court 1416 and stated that nothing has been dealt with by the Ld. Trial Court in this case. In 2010, petition was filed by appellants before the Ld. Trial Court. The respondent No.2 is a company and not a partnership firm. Trial Court assumed that even if it is considered that respondent No.1 has sublet, assigned or parted with possession of the suit property to the respondent No.2, RW5 has proved that such subletting or carrying on RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 11 of 31 business was his written permission. As per order dt.29.10.2011, the Ld. Trial Court ordered that the document i.e. letter dt.16.10.2000 sought to be filed on behalf of the respondents shall not be filed and only affidavit of Mr. Raj Kumar Sharma shall be filed. Further, vide separate orders dt.08.05.2012, two applications u/o VIII Rule 1A (3) and Section 151 CPC, filed on 06.02.2012 and 13.04.2012 on behalf of respondent for filing of documents were dismissed. In the impugned judgment, the Ld. Trial Court also observed that the letter written by Mr. Ashok Kumar Jain to the respondent No. 1 with respect to the permission to carry out the business was not proved and document was not taken on record. The Ld. Trial Court further considered the judgment reported as 12 (1976) DLT 123 titled Muni Lal v. Dulara & Ors. as applicable in the facts and circumstances of this case but ignored the same in the impugned judgment.
9. Ld. Counsel for the appellants further argued that oral permission cannot be dealt with and as per Section 14(1)(b) written permission is necessary. Ld. Counsel for the appellant referred para No. 34 of the impugned judgment dt.16.07.2013 and stated that the Ld. Trial RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 12 of 31 Court has erred in giving finding about vacation of the suit property by respondent No.2. The respondent No. 2 has been served on 19.08.2010 at the tenanted premises. Notice was served on Rajiv Jai, one of the Directors of the company on 19.08.2010 for 20.09.2010 before the Trial Court. Therefore, the respondent No. 2 was served after filing of the petition. Ld. Counsel for the appellants referred page No. 247 and 257 of the written statement of respondent No. 1 and stated that the respondent No. 2 had shifted much prior before filing of the petition but the respondent No.2 did not lead evidence in this regard. He has neither filed affidavit nor appeared in the witness box. Ld. Counsel for the appellants also referred para No. 8 of the judgment and stated that Rajeev Jai was never examined as RW2. The Ld. Counsel for the appellants also argued that the judgment in the case of Muni Lal vs Dulara & Ors. relied upon by the Ld. Trial Court was ignored by the Ld. Trial Court but it is applicable in the present case of the appellant. There is no partnership firm between the respondent Nos.1 & 2. They have not filed document which clarifies that how much capital was invested by them in the partnership firm. Ld. Counsel for the appellants also referred para No. 8 RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 13 of 31 of the judgment in the case of Roop Chand (supra) and stated that even if a tenant parts with possession of the whole or any part of the premises without assigning or subletting the premises, he would still be liable to be evicted from the premises under the Act. As per Section 14(4) of DRC Act, any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sublet by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord.
10. During arguments, the Ld. Counsel for the appellants referred the judgment in the case of M/s Bharat Sales Ltd. versus Life Insurance Corporation of India and stated that subletting comes into existence when tenant gives up possession of accommodation, wholly or in part, and puts another person in exclusive possession thereof. Exclusive possession of respondent No. 2 has been admitted. If the entire evidence is read, it shows that the premises was being used by respondent No. 2. RW1 has also admitted that he was receiving the rent from respondent No. 2. As per Section 5 of the Partnership Act, there has to be a contract (even oral contract) between the parties. If the rent being used to be RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 14 of 31 collected, it assumes de facto partnership. Ld. Trial Court has presumed the partnership. Ld. Counsel for the appellants has also referred the reported judgment in the case of Chic International vs. Naintara 1994, Rajdhani Law Reporter 170 and stated that respondent No. 1 sublet the premises in question to the respondent No.2 by permitting respondent No. 2 to use the portion of the premises without written consent of appellant, contrary to Section 14(1)(b) of DRC Act.
11. Ld. Counsel for the appellants, in support of his arguments, has relied upon the judgments in the cases of M/s Shalimar Tar Products Ltd. v. H.C. Sharma and others AIR 1988 Supreme Court 145; M/s Bajaj Auto Ltd. vs. Behari Lal Kohli AIR 1989 Supreme Court 1806; Jiwan Industries (P) Ltd. versus Kamlesh Rani Budhiraja 208 (2014) Delhi Law Times 589; Roop Chand v. Gopi Chand AIR 1989 Supreme Court 1416; Shanti Devi (dead) versus Dwarka Das 2005 (2) RCR 67; Gajanan Dattatraya versus Sherbanu Hosang Patel & Ors. 1975 AIR 2156; Saremal Ratanchand vs Juhar Mal Bhabutmal AIR 1977 RAJ 85; Smt. Ramkubai since deceased by L.Rs and others v. Hajarimal Dhokalchand Chandak and others AIR 1999 Supreme Court 3089; Om Parkash versus RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 15 of 31 Inder Kaur 156 (2009) Delhi Law Times 292 (DB); Sharifuddin versus Mehrun Nisa & Ors. 148 (2008) Delhi Law Times 154; Man Kaur (dead) by LRs versus Hartar Singh Sangha VII (2010) SLT 144; M/s Sardar Estate through its Partner Smt. Indarjit Kaur vs. Atma Ram Properties (P) Ltd. & Ors. in S.A.O. No. 51/98 decided on 31.01.2000 by the Hon'ble High Court of Delhi; M/s Bharat Sales Ltd. versus Life Insurance Corporation of India in 1998 (1) RCR 272 SC; Chic International vs Naintara 1994 Rajdhani Law Reporter 170; Narinder Pal Singh Bindra versus Harminder Kaur Dhindsa 2000(2) RCR 229 P&H and in the case of Hari Ram versus Rukmani Devi 1997 (1) RCR 227 DHC.
12. Ld. Counsel for the respondent No. 1 argued that in para No. 18(a) (1), the appellantsherein have stated that the tenanted premises is in exclusive occupation and possession of the respondent No.2/sub tenant and the rate of rent was being collected by the respondent No.1 from respondent No.2. The respondent No.2 vacated the premises in question much prior to the filing of the eviction petition by the appellants. There has to be legal possession. The exclusive possession of the premises in question was with respondent No.1 and not with RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 16 of 31 respondent No.2, which is also affirmed by RW1 in his cross examination dt.24.09.2012. Ld. Counsel for the respondents has referred Section 4 & 6 of the Partnership Act and stated that Section 4 of Partnership Act is satisfied qua them. RW1 also stated that he was doing business with respondent No.2 combinedly. There was no whisper that it was not a genuine partnership. Ld. counsel for the respondent stated that Section 14 (4) of DRC Act was never urged before the Ld. Trial Court. This Section cannot be interpreted in pedantic manner. Section 14(1)(b) of DRC Act cannot be read in isolation without Section 16 of DRC Act. The respondent No. 2 is subtenant as per Section 2(l) of DRC Act. As per Section 9(3) while fixing the standard rent of any premises part of which has been lawfully sublet, the Controller may also fix the standard rent of the part sublet. The case relied upon by the appellants in the present appeal i.e. Raghunath vs. Raju Ramappa Shetty (supra) has already been set aside by the Hon'ble Supreme Court of India. As far as appellant No. 2 is concerned, he is not the attorney of appellant No.1. PW1 itself in his crossexamination dt 20.07.2011 admitted that Mrs. Kiran Seonie has not made any attorney in his favour pertaining to the RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 17 of 31 suit property. It is correct that Mrs. Kiran Seonnie deliberately not put herself in the witness box. In the crossexamination dt.12.08.2011, AW1 Sh. H.P. Seonie stated that he does not have any personal knowledge regarding Sh. Sharwan Kumar Sharma surrendering and relinquishing his tenancy rights in favour of Raj Kumar Sharma. AW1 denied that respondent No.1/tenant had sublet, assigned and / or otherwise parted with the possession of the entire suit/tenanted premises to the respondent No.2. AW1 seen the document MarkA and stated that it bears signatures of Mr. Ashok Kumar Jain at point A. There is no question of landlord permission at all if there was no subletting.
13. The Ld. Counsel for the respondent No. 1 further argued that respondent No. 1 entered into a partnership with respondent No.2 and allowed it to use the premises in question. Ld. Counsel for the respondent No.1 referred the judgment of Hon'ble Supreme Court in the case of Madras Bangalore Transport Co. (West) Vs. Inder Singh 1986 (3) SCC 62 and stated that mere using of premises in partnership does not constitute subletting. The exclusive possession of the premises in question was not given to the respondent No.2. The respondent No.2 RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 18 of 31 shifted from the premises on 01.10.2010. There was no General Power of Attorney in favour of appellant No.2 and appellant No.1 did not appear in the witness box. The appellants were in full knowledge of the business of partnership firm and they never objected about the partnership when they purchased the property and even till the date of filing of the eviction petition in the year 2010. The respondent No.2 shifted from the premises in question on 01.10.2010 and thereafter the respondent No.1 is in exclusive possession of the premises in question. Ld. Counsel for the respondent No.1, in support of his arguments, relied upon the judgments in the cases of Madras Bangalore Transport Co. (West) versus Inder Singh and Others (1986) 3 Supreme Court Cases 62; Helper Girdharbhai versus Saiyed Mohmad Mirasaheb Kadri and others (1987) 3 Supreme Court Cases 538; Gopal Saran versus Satyanarayana (1989) 3 Supreme Court Cases 56; Hazari Lal and another versus Shri Giani Ram and others in S.A.O. No. 246D of 1964 decided by Hon'ble High Court of Delhi on 30.03.1971; Gundalapalli Rangamannar Chetty versus Desu Rangiah and others AIR 1954 Madras 182 and Vidhyadhar versus Manikrao and another (1999) 3 Supreme Court Cases 573. RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 19 of 31
14. Vide the impugned judgment dt.16.07.2013, the Ld. ARC observed as under : "34. The instant application for eviction of the respondents was filed by the petitioners on 11.08.2010. It is proved that the respondent no. 1 is tenant in respect of property in question from 1978. From the testimonies of the witnesses and the pleading it is proved that the respondent no. 2 is not carrying out the business in the premises when the instant petition was filed and is working at other address, i.e. N8/A, First Floor, Munshi Lal Building, Connaught Circus, New Delhi which was purchased by respondent No. 2 from the petitioner himself. It is also admitted that the respondent no. 1 has vacated the premises in question before this petition was filed. So, even if it is considered that suit property was let to respondent no. 2 by respondent no. 1, it is considered that suit property was let to respondent no. 2 by respondent no. 1, it is proved that the same was vacated by respondent no. 2 even before filing the present eviction petition.
35 The judgment reported as 12 (1976) DLT 123 titled Muni Lal v. Dulara & Ors. is squarely applicable in the facts and circumstances of this case. The Hon'ble Court has also relied upon judgment of Hon'ble Supreme Court in Gajanan Dattatraya v. Houseand Patel and Ors. As on the date of filing the petition the respondent no. 2 was not in possession of the premises, even otherwise this petition cannot be allowed.
36. From the materials on record, testimony of witnesses, the relevant provisions of law and in view of the above discussion, this court is of the opinion that the petitioner has categorically failed to prove that the premises have been sublet or its possession has been parted with by the respondent no. 1 to the respondent RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 20 of 31 no. 2 without obtaining the consent of the landlord in writing. The petitioners have failed to prove the ground of eviction under clause (b) of proviso to subsection (1) of section 14 of the Act 59 of 1958 against the respondent. In these circumstances the petition for eviction is dismissed with costs."
15. The appellants filed this appeal aggrieved by the impugned judgment dt.16.07.2013 of the Ld. Trial Court on the main grounds among others that the real controversy between the parties was not considered and appreciated. There was no pleading of any written permission and the partnership business is not proved by the respondents. No Minute Books containing the resolution of the respondent No.2 company to enter into any partnership business with the respondent No.1, partnership deed, partnership accounts, Dissolution Deed etc. have been filed and proved to establish any partnership business. The respondent No.2 was served with the summons of the present case on the premises in question itself, which proves that respondent No.2 was very much at the premises in question on the date of service of summons. In the memo of parties of RCA No. 15 of 2012 filed by the respondent No.1 on 24.07.2012, the address of the respondent No. 2 given as that of the suit premises only. The appellants / petitioners discharged the onus by legal RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 21 of 31 evidence showing that the respondent no. 2 was in exclusive possession of the premises for the valuable consideration and has also proved the presence of the respondent No. 2 in the suit premises. The payment of rent or monetary consideration by the respondent no. 2 to the respondent no. 1 has been fully admitted by the respondent no. 1. RW2 Mr. Rajeev Jai has never appeared in the witness box either for tendering of his evidence or for his crossexamination. There was vesting of possession by the respondent no. 1 in respondent no.2 by divesting himself not only of physical possession but also of the right to possession. The legal possession was not retained by the respondent No.1. The testimonies of the witnesses of the respondents do not prove conclusively that there was no subletting, parting with possession etc. by the respondent no. 1 in favour of respondent no. 2. The testimony of RW5 Mr. Ashok Kumar Jain is beyond pleadings. Even the alleged partnership business has not been proved. When written permission is required, the same cannot be proved by the oral testimony only. The respondent no. 1 has admitted in his crossexamination that he used to collect rent from respondent no. 2 @ Rs.30,000/ to Rs.35,000/ pm. RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 22 of 31
16. Whereas, the respondent has claimed that the tenanted premises is in exclusive occupation and possession of the respondent No.1. The respondent No.2 vacated the premises in question much prior to the filing of the eviction petition by the appellants. The exclusive possession of the premises in question was with respondent No.1 and not with respondent No.2. Respondent No.1 was doing business with respondent No.2 combinedly. Mrs. Kiran Seonie has not made any attorney in favour of appellant No.2 pertaining to the suit property and she deliberately did not put herself in the witness box. Even, AW1 Sh. H.P. Seonie does not has any personal knowledge regarding Sh. Sharwan Kumar Sharma surrendering and relinquishing his tenancy rights in favour of Raj Kumar Sharma. There is no question of landlord permission at all if there was no subletting. The respondent No. 1 entered into a partnership with respondent No.2 and allowed it to use the premises in question. Mere using of premises in partnership does not constitute subletting. The appellants were in full knowledge of the business of partnership firm and they never objected about the partnership when they purchased the property and even till the date of RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 23 of 31 filing of the eviction petition in the year 2010. The respondent No. 1 also claimed that he was running the firm in partnership along with the respondent No. 2 with the permission of erstwhile landlord Sh. Ashok Kumar Jain and the same was / is in the knowledge of the present petitioners/appellants and they have never objected for the same.
17. Sh. Ashok Kumar Jain vide his letter dt.20.12.2007 Ex.AW/1/4 gave intimation to Sh. Raj Kumar Sharma regarding selling out of the premises in question to appellantherein / Mrs. Kiran Seonie in pursuance to Agreement to Sell dt.09.08.2007. The appellant No.2 is not the attorney of the appellant No.1 but there is a general power of attorney in favour of appellant No. 2 executed by Sh. Ashok Kumar Jain, the erstwhile owner of the premises in question. The appellant No.1 in the eviction petition neither appeared nor was examined in support of her averments. Appellant No.2 appeared in the witness box for leading evidence on behalf of the appellant No.1 in the eviction petition without being her attorney. The erstwhile owner Sh. Ashok Kumar Jain vide letter dt. 16.10.2000, gave no objection to Sh. R.K. Sharma to run business in the premises in question in partnership with any person / RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 24 of 31 firm. There is also a certificate issued by Arun K. Agarwal & Associates, Chartered Accountants, which certifies that Mr. Raj Kumar Sharma was appointed as Director of M/s Impact Tours India Private Ltd, N8A, first floor, Munshi Lal Building, Connaught Place, New Delhi110001 on 01.10.2008 who resigned from the directorship on 01.12.2011. It further certifies that the registered address of the company was shifted from N 33/10, Middle Circle, Connaught Place, New Delhi110001 to N8A, first floor, Munshi Lal Building, Connaught Place, New Delhi w.e.f. 01.08.2010. It also certifies that all the required compliance under ROC (i.e. Form 32 & Form 18) regarding the above were filed on due dates.
18. Sh. H.P. Seonie / appellant No. 2 / husband of appellant No. 1 examined himself as AW1 before the Ld. Trial Court. Appellant No.2/ Sh. H.P. Seonie in his crossexamination dt. 20.07.2011 admitted that Mrs. Kiran Seonie has not made any attorney in his favour pertaining to the suit property. During crossexamination, he admitted that Ms. Kiran Seonie / appellant No. 1 / wife of appellant no. 2 had not made any attorney in her favour pertaining to the suit property. AW1 also admitted that he does not have any personal knowledge regarding Sharvan Kumar RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 25 of 31 Sharma surrendering and relinquishing his tenancy rights in favour of Raj Kumar Sharma. When the question was put to AW1 that M/s Impact Tour & Travels/respondent No.2 is running its business in property bearing No. N8A, First Floor, Munshi Lal Building, Connaught Circus, New Delhi. AW1 responded that he has no knowledge regarding the same. AW1 denied that respondent no. 1 / tenant had sublet, assigned and / or otherwise parted with the possession of the entire suit / tenanted premises to the respondent No.2. Further, the question was put to AW1 that the respondent no. 1 and Sh. Rajiv Jai were running their business in partnership with the permission of erstwhile landlord Sh. Ashok Kumar Jain, he replied that he has no knowledge. Even, AW1 did not know as to whether there is any cabin in the suit premises. Moreover, AW1 admitted that he had not seen respondent No. 2 paying any rent / user charges to the respondent No. 1. AW1 also did not have any date or time when the respondent No. 1 parted AW1Sh. H.P. Seonie with possession in favour of respondent No. 2 as alleged by him. AW1 further admitted that he does not have any knowledge whether respondent No. 1 and Sh. Rajiv Jai are running the business in the name and style of M/s Impact Tours RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 26 of 31 (India) Pvt. Ltd. AW1 also admitted that he had not filed anything on record pertaining that the electricity bills and other expenses and telephone bills installed in the tenanted premises is borne by the respondent No.2. Meaning thereby, the appellant No. 2 was not having any knowledge regarding the status and capacity in which the respondent No. 2 remained at the suit property. If the appellant No. 2/ AW1 was not having the personal knowledge about the above discussed details / information / facts, then how he may depose as a witness on behalf of the petitioner No. 1/ appellant No. 1. It is pertinent to mention here that the petitioner No. 1/ appellant No. 1 did not appear in the witness box. It means that petitioner No.1/appellant No. 1 deliberately chose not to appear and depose as a witness in the Court.
19. Sh. Raj Kumar Sharma/respondent No. 1 herein examined himself as RW1 before the Ld. Trial Court and exhibited his evidence by way of affidavit as Ex.R1. In Ex.R1, he stated that he was also appointed as one of the Directors of M/s Impact Tours (India) Pvt. Ltd. in the year 2008 and Form No. 32 reflecting RW1 as Director of company M/s Impact Tours (India) Pvt. Ltd. Ex.DW1/3 and stated that respondent no. RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 27 of 31 2 never had exclusive possession of the suit premises and it was only in a portion of the suit premises, which the respondent no. 2 was using along with RW1 and that to with the permission of the landlords. RW1, in his crossexamination stated that he is in possession of the premises. However, RW1 admitted that on its letters/letterheads and visiting cards, the respondent no. 2 had been using the address of the premises. But RW1 denied that until the respondent No. 2 was existing at the premises in question, there was no trace of his at the premises in question. When the question was put to RW1 whether he was doing business with the respondent No. 2 in partnership, he replied that he was doing business with the respondent no. 2 combinedly. RW1 clarified the meaning of "combined" that there was no fixed ratio of profit between them. Sometime, the respondent no. 2 was receiving more profit and sometime himself was receiving more profit than the respondent No. 2.
20. It is an admitted fact by the respondent No. 1 that the respondent No. 2 had already vacated from the suit property on 01.10.2010. In the case of Helper Girdharibhai Vs. Saiyed Mohmad Mirasaheb Kadri & Ors. (1987) 3 SCC 538, it was held that it does not RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 28 of 31 amount to subletting if the tenant becoming a partner of partnership firm and allowing the firm to carry on business in the demised premises while himself retaining legal possession thereof. In Madras Bangalore Transport Co. (West) V. Inder Singh & Ors. (1986) 3 SCC 62, it was held that though the Company was a separate legal entity, actually it was only as an alter ego or corporate reflection of the tenant-firm and two were one for all practical purposes having substantial identity. There was no subletting, assignment or parting with possession of the premises by the firm to the company so as to attract Section 14(1)(b) of DRC Act, 1958. Ld. Counsel for the appellants argued that on the date of filing of the eviction petition, the subtenant was in possession of the suit property. Whereas, the Ld. Counsel for the respondent no. 1 argued that the respondent no. 2 had already vacated the suit property much prior to the filing of the eviction petition. It has been proved on record that the respondent No. 2 had already vacated the suit premises prior to the filing of the eviction petition and even on the date of notice, there was no unlawful subletting, therefore, the tenant / respondent no. 1 is not liable to be evicted. In this regard, the case of Munni Lal (supra) supports the RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 29 of 31 case of respondent No.1. The respondent No. 1 is paying the rent to the appellants which proves the relationship of landlord and tenant between the appellants and the respondent No.1. The respondent No. 1 is a tenant in the suit property since 1978.
21. Sh. Mahender Kumar Sharma examined himself as RW4 on 05.11.2012 and stated that he knows respondent Raj Kumar Sharma who is his neighbour since the year 1968. He carries his business at shop No. N33/5, Connaught Circus, New Delhi. RW4 stated that Sh. Raj Kumar Sharma / respondent No. 1 had been carrying on his business in partnership with Mr. Rajiv Jai till the year 2010 or 2011. During cross examination, RW4 stated that the respondent Raj Kumar is a tenant in a shop No. N33/10, Connaught Place, New Delhi and he is opening the said shop nowadays. RW5 Sh. Ashok Kumar Jain stated that he had given permission to Sh. Raj Kumar Sharma for doing business in partnership. He further stated that he sold the premises to Smt. Kiran Seonie / appellant No. 1 in the year 2006. Meaning thereby, the above witnesses RW4 and RW5 have also supported the case of the respondent No. 1 to the effect that the respondent No. 1 was a tenant and doing his RCT No.166/16 (Old RCT No.20/13) Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 30 of 31 business from the premises in question. The appellants have not proved on record the evidence to show that the possession and control of the business was under the respondent No.2 instead of respondent No.1 at the premises in question.
22. In view of the facts and circumstances of the case, arguments of the Ld. Counsel for the parties as well as the records & the aforesaid judgment relied upon by the Ld. Counsel for the parties, I am of the considered opinion that there is no infirmity or illegality in the impugned judgment dt.16.07.2013 passed by the Ld. Rent Controller, Patiala House Courts, New Delhi. This appeal is devoid of any merits. The Judgments relied upon by the Ld. Counsel for the appellantsherein are distinguishable from the facts and circumstances of the present case. Accordingly, the present appeal is dismissed. No order as to costs. Trial Court record along with copy of this judgment be sent back. File of appeal be consigned to Record Room.
Digitally signed by
YASHWANT YASHWANT KUMAR
KUMAR Date: 2019.12.23
17:07:17 +0530
Announced in open Court (YASHWANT KUMAR)
on 23rd day of December 2019 District & Sessions Judge/RCT
Patiala House Courts, New Delhi
RCT No.166/16 (Old RCT No.20/13)
Mrs. Kiran Seonie & Anr. vs. Raj Kumar Sharma & Anr. Page No. 31 of 31