Delhi District Court
Kailash Dang (Through Lrs) vs Sudesh Kumar Bhasin on 11 August, 2023
IN THE COURT OF SHRI NAROTTAM KAUSHAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
CNR NO. DLCT010084072021
RCT NO. 33/2021
1. SH. KAILASH DANG
S/o LATE SH. CHELA RAM
1A. MRS. PROMILA DANG
W/o LATE SH. KAILASH DANG
1B. MR. AMIT DANG
S/o LATE SH. KAILASH DANG
BOTH AT:
S128, G.F. GREATER KAILASHI
NEW DELHI
1C MRS. SONIA SETHI
W/o DR. SUMIT SETHI
R/o 12 C, UNDER HILL LANES
CIVIL LINES, DELHI110 054
....APPELLANTS
VERSUS
1. SUDESH KUMAR BHASIN
S/o LATE SH. MAQSUDAN LAL
R/o J1260, MAIN SECTOR ROAD
PALAM VIHAR, GURGAON
HARYANA122 017
2. SH. ASHOK KUMAR GUPTA
RCT no. 33/2021
Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 1 of 11 pages
3. SH. MOHIT GUPTA
BOTH AT BASEMENT, PRIVATE NO. 1
BUILDING NO. 2368, GALI NO. 1314
BEADON PURA, KAROL BAGH
NEW DELHI110 005
....RESONDENTS
Date of filing :03.07.2021
Arguments concluded on :08.08.2023
Date of Decision :11.08.2023
APPEARANCE : Sh. Hitender Kapur, counsel for appellant
Sh. Sunil Malhotra, counsel for respondent no.1
JUDGMENT
1. By way of judgment and order dated 05.04.2021 of the Additional Rent Controller, assailed in the present appeal by the tenants, eviction order in respect of basement bearing private no.1 in premises no. 2368, Gali no.1314 Beadonpura, Karol Bagh, New Delhi (hereinafter referred to as "the subject property") was passed on the grounds stipulated under Section 14 (1) (b) of the Delhi Rent Control Act (hereinafter to be referred to as 'the Act') and petition under Section 14 (1) (a) of the Act was allowed, directing the Nazir to prepare report qua compliance of order under Section 15 (1) of the Act.
2. Briefly stated facts relevant for the present appeal are as follows.
2.1 Respondent no. 1 herein being petitioner no. 1 in the eviction petition had filed an eviction petition under Section 14(1)(a) RCT no. 33/2021 Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 2 of 11 pages and (b) of the Delhi Rent Control Act against the present appellant being respondent no. 1 in the eviction petition on the premise that the appellant had failed to pay/tender arrears of rent demanded vide notice dated 27.07.2009. It was further alleged in the petition that the appellant had sublet the subject property without written consent of respondent no. 1 to one Sh. Ashok Kumar Gupta and Sh. Mohit Gupta, being respondents no. 2 and 3 herein as well as in the eviction petition.
2.2 Appellant expired during the pendency of the said eviction petition and his legal heirs were brought on record after following due process of law.
2.3 It was averred in the eviction petition that eviction petitioner being Karta of the HUF was authorised by his coowners to manage the affairs related to the subject property including to act as landlord, enter into rent agreement to terminate rent agreements and to receive/collect rent for the subject property. The eviction petitioner alongwith his wife being coowners of the subject property leased out the subject property vide rent deed dated 01.05.1985 to respondent no. 1 (appellant herein) and one Sh. Chela Ram jointly. The respondents despite service of demand cum termination notice dated 27.07.2009 had failed to clear the arrears of rent since 01.11.2008 and had also sublet the subject property to respondents no. 2 and 3 without prior permission or consent of the eviction petitioner. The respondents no. 2 and 3 were running their business of wholesale footwear under the name and style of M/s. Gupta Traders from the subject property. Hence, eviction of the respondents from the subject property was prayed on the grounds RCT no. 33/2021 Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 3 of 11 pages stipulated under Section 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act.
2.4 The respondent no. 1 (appellant herein) filed his written statement denying all the averments made by the eviction petitioner in the petition. The respondent no. 1 claimed to be in exclusive possession of the subject property doing business in partnership with respondent no. 2. It was averred that respondent no. 3 had nothing to do with the subject property. It was further averred that on receipt of notice dated 27.07.2009, respondent no. 1 tendered rent but the eviction petitioner avoided to receive the same. Thereafter, respondent no. 1 filed petition under Section 27 of the DRC Act for deposit of rent which was dismissed on 21.02.2011 and deposited Rs. 22,400/ as arrears of rent for the period from 01.11.2008 to 28.02.2011 in the bank account of the eviction petitioner. Respondent no. 2 also filed his written statement wherein he denied all the averments made in the petition claiming that the subject property was occupied by respondent no. 1 (appellant herein) and that the respondents no. 2 and 3 had nothing to do with the subject property. Hence, it was prayed that the eviction petition be dismissed.
2.5 The respondent no. 1 being eviction petitioner in the eviction petition filed replications to both written statements to reaffirm the contents of his petition.
2.6 On the basis of above rival pleadings, learned Additional Rent Controller heard counsel for both sides and by way of impugned RCT no. 33/2021 Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 4 of 11 pages order passed eviction order on the grounds stipulated under Section 14 (1) (b) of the Delhi Rent Control Act and petition under Section 14 (1)
(a) of the Act was allowed, directing the Nazir to prepare report qua compliance of order under Section 15 (1) of the Act.
2.7 Hence, the present appeal.
3. Sh. Hitender Kapur, learned counsel for appellant/tenant had argued that the trial court has miserably failed to discuss the evidence that had come up on record. Challenging the finding on the question of non payment of rent it is argued that amount of Rs. 20,000/ was available with the landlord towards security which amount could have been adjusted towards the rent due. Learned trial court has ignored the admission by landlord of the security amount of Rs. 20,000/ lying with the landlord. Reliance has been placed upon law laid down in K. Narasimha Rao vs. T.M. Nasimuddin Ahmad (1996) 3 SCC 45.
3.1 On the point of subtenancy it is argued that the testimony of PW3 to PW6 have been wrongly relied upon by the learned trial court. Each of the four witnesses when crossexamined deposed that he had not visited the spot to verify the fact of M/s. Gupta Traders i.e. respondent no. 2 occupying the premises and not the tenant i.e. present appellant. PW4 in his crossexamination admitted that no phone was installed at the Karol Bagh shop. Documents sought to be proved through these witnesses have been wrongly exhibited and were not proved as per the procedure laid RCT no. 33/2021 Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 5 of 11 pages down in the Indian Evidence Act. It is thus argued that the trial court has wrongly relied upon the evidence and the pleadings and absolutely incorrect finding has been recorded on both the grounds.
4. Sh. Sunil Malhotra, learned counsel for respondent no. 1/landlord has argued that appeal under Section 38 of the DRC Act envisages the same to be heard on points of law. No question of law has been argued by the counsel for the appellant and the appeal which is only based on appreciation of evidence cannot be entertained. It is next argued that the nature of proceedings being summary, evidence is not required to be discussed at length. There were admissions by the respondents in the written statements itself which did not need any further evidence by the eviction petitioner. As regards the plea of Rs. 20,000/ lying as security it is argued that no such plea was taken in the written statement. Moreover, the law relied upon by Sh. Kapur, pertains to Tamil Nadu Rent Act and the same is not applicable to Delhi Rent Control Act. Reliance has been placed upon law laid by the Hon'ble High Court in Narain Dass P. Godhwani vs. Nenu Mal 2015 (2) RCT (RENT) 19 to argue that the provisions of Tamil Nadu Rent Act cannot be imported to Delhi Rent Control Act when there is no such provision in the statute. Sh. Malhotra has also relied upon law laid down by Hon'ble High Court of Delhi in Behari Lal Chand vs. Deepak Narula 2017 5 AD (DELHI) 595 to argue that no appeal under Section 38 of the Act is maintainable unless it raises substantial question of law.
RCT no. 33/2021Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 6 of 11 pages
5. I have heard learned counsel and with their assistance perused the trial court record, the impunged judgment and the judgments relied upon.
Eviction Under Section 14(1)(a) of the Act for Non Payment Of Rent
6. As per legal notice of demand dated 27.07.2009 Ex. PW1/5, appellant was in arrears of rent w.e.f. 01.11.2008 @ Rs. 800/ per month. The appellant tenant took the plea that he had deposited the amount by way of cheque for an amount of Rs. 27,000/, annexed with the reply to notice. However, no documentary evidence of the dispatch of aforesaid amount by way of cheque was placed on record. Having thus failed to prove the plea taken in the written statement, at the stage of evidence a new plea was introduced that an amount of Rs. 20,000/ which was lying as security with the landlord could have been adjusted against the rent due. On this Sh. Hitender Kapur has relied upon law laid down by Hon'ble Supreme Court in K. Narasimha Rao vs. T.M. Nasimuddin Ahmad (1996) 3 SCC 45. I am afraid reliance by Sh. Kapur on the aforesaid judgment is totally misplaced, as dealing with the same judgment the Hon'ble High Court of Delhi in Narain Dass P. Godwani (supra) held the judgment to be not applicable in Delhi as the same was rendered on Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and was not applicable on Delhi Rent Control Act. For ready reference paras 11 and 12 of the judgment passed by the Hon'ble High Court of Delhi are reproduced herein below:
RCT no. 33/2021Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 7 of 11 pages
11. The judgment in the case of K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed (1996) 3 SCC 45 is once again not under the Delhi Rent Control Act, but is under the T.N. Buildings (Lease and Rent Control) Act, 1960 and therefore, the same would not apply to cases to be decided under the Delhi Rent Control Act, 1958 in view of Section 13 of the DRC Act. Another reason by the judgment in the case of K.Narasimha Rao (supra) would not apply is also because in the case of K. Narasimha Rao(supra) Supreme Court was dealing with the adjustment of advance rent lying with the landlord and not of security deposit amount which was lying with the landlord. Therefore, the judgment in the case of K.Narasimha Rao (supra) will not apply to the facts of the present case where the claim is of adjustment and amount lying towards security deposit. It may be noted at this stage that security deposit amount is not only towards adjustment of rent but also for any claim towards any damage to the tenanted premises, as also for claims towards unpaid electricity or water charges by the tenant and so on and which amounts are only known when the tenant vacates the suit premises and therefore, this is another reason by a security amount cannot be taken towards discharge for payment of rent which falls due under Section 14(1)(a) of the Act.
12. I therefore reject the first argument which is urged on behalf of petitioner/tenant that the security deposit amount is liable to be adjusted towards arrears of rent claimed under a demand notice sent under Section 14(1)(a) of the DRC Act."
7. In view of the reasons stated above learned trial court committed no error in taking a view that the appellant had failed to deposit rent due, making him liable to be evicted under Section 14(1)
(a) of the Act. The finding on this aspect is therefore affirmed.
RCT no. 33/2021Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 8 of 11 pages Eviction On The Point Of SubLetting Under Section 14(1)(b) of the Act
8. On the point of subletting, in response to the pleadings by the landlord that the tenant has sublet the premises to respondents no. 2 and 3 who were running business under the name and style of M/s. Gupta Traders, it was pleaded by the eviction petition respondent nos. 1 and 2 that they were in partnership with each other and carrying out business from the premises as partners. However, none of the two placed on record any partnership deed to prove the same. To make out a case that eviction respondent no. 1/tenant had parted possession and put in place respondent no. 2; landlord relied upon various documentary evidences viz. Directory of Karol Bagh Footwear Association Ex. PW1/6, printout of Just Dial Information Services Ex. PW 1/7, Visiting Card of respondents no. 2 and 3 with the address of tenanted premises Ex.PW1/8, Directory of Gupta Traders as PW1/11.
9. Countering the aforesaid documents it is argued by Sh. Kapur, counsel for appellant tenant that the none of the witnesses from Karol Bagh Wholesale Footwear Association or Just Dial Information Services have deposed that they had visited the premises and verified the information contained in the directory. This court is of the opinion that the argument so raised by Sh. Kapur is totally misplaced. A witness who was examined and cited only to prove the contents of the documents cannot be expected to answer that he had verified the facts.
RCT no. 33/2021Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 9 of 11 pages
10. The purpose of citing the aforesaid witnesses and examining them was only to establish that the appellant was not in possession of the premises and had parted with the possession and it was actually eviction respondent no. 2, who was carrying on business from the premises. Overwhelming evidence in the shape of existence of the name of respondent no. 2 in the Wholesale Footwear Association's directory, Just Dial Information Services, Visiting Cards, Directory of Gupta Traders etc. established that it was not the appellant/tenant, who was not in possession but eviction respondent no. 2. Moreover, the eviction respondents no. 1 and 2 in their written statements had pleaded that business was being carried out in the name and style of M/s. Gupta Traders and they were both working in partnership. Admission by eviction respondents did not need any further evidence by eviction petitioner/landlord. Nonethless, sufficient evidence was brought on record by the landlord. It is settled law that once the landlord establishes that the possession has been parted with, onus shifts upon the tenant to prove otherwise or to prove that there was a partnership. In the absence of any evidence having been led of the partnership, the present appellant cannot successfully raise the defence.
11. In fact, LR no. 1(B) of the appellant/tenant while appearing as a witness i.e. RW1 deposed that he was not aware of any partnership between his father and respondent no. 2. It may further be noticed that RW1 deposed that he was an IT Professional having graduated from Australia and was carrying out IT business under the name and style of Jaarwis Technologies Pvt. Ltd. He also RCT no. 33/2021 Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 10 of 11 pages admitted that in his profile registered with Linkdin, he had not disclosed about his footwear business. Thus, this court is of the opinion that there is no evidence that the eviction respondents i.e. present appellant and respondents no. 2 and 3 i.e. Ashok Gupta and Mohit Gupta etc. were in any kind of partnership business and that appellant was in any manner associated with the business carried out from the tenanted premises. The premises was in exclusive use and occupation of Ashok Gupta and Mohit Gupta (eviction respondents no. 2 and 3). Thus, learned trial court committed no error in recording the finding that appellant had sublet the premises to respondents no. 2 and 3, who were carrying out the business under the name and style of M/s. Gupta Traders. The finding on this aspect recorded by the learned trial court is also affirmed.
12. Finding the appeal to be totally meritless and bereft of any questions of law, the same is dismissed. Eviction order is maintained.
13. Copy of this judgment be sent to the learned trial court and file be consigned to record room.
Digitally signed by NAROTTAM KAUSHAL NAROTTAM Date: KAUSHAL Announced in the open court on 2023.08.11 11:52:01 +0530 this 11th day of August, 2023 (NAROTTAM KAUSHAL) Principal District & Sessions Judge cum Rent Control Tribunal (Central) Tis Hazari Courts, Delhi RCT no. 33/2021 Kailash Dang (deceased) vs. Sudesh Kr. Bhasin Page 11 of 11 pages