Delhi District Court
Sh. Vipin Kalra vs Dr. K.B. Watts on 1 March, 2012
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 26/2011
ID No.: 02406C0106872011
Sh. Vipin Kalra,
S/o Shri Prem Das Kalra,
D33, Lajpat NagarII,
New Delhi110024. ... Appellant
Versus
Dr. K.B. Watts,
S/o Late Shri M.L. Watts,
R/o C45, Jangpura Extension,
New Delhi
Service of Notice also to be served at
Watts Dental Care Centre,
D33, Lajpat NagarII,
New Delhi110024. ... Respondent
Instituted on : 05.05.2011
Judgment reserved on: 01.03.2012
Judgment pronounced on : 01.03.2012
ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 1 of 22
J U D G M E N T
1 This appeal under Section 38 of Delhi Rent Control Act (hereinafter referred to as "the DRC Act") is directed against judgment dated 20.03.2011 passed by Sh. Balwant Rai Bansal, Addl. Rent Controller (South) (ARC) in eviction petition no. E96/2009 (2004), registered on the basis of petition of the appellant presented on 05.04.2004 seeking an order of eviction U/s 14 (1)(b) of the DRC Act against the respondent in respect of tenanted premises described as one shop on the ground floor of property No. IID/33, Lajpat Nagar, New Delhi, as more specifically shown in red colour in the site plan Ex. PW1/2 (hereinafter referred to as "the tenanted premises"). Vide the impugned judgment, the ARC held that the appellant had failed to prove that the person alleged to be subtenant was in exclusive possession of the tenanted premises or that the respondent had lost the physical and legal possession over it. With this conclusion, the petition of the appellant was dismissed.
2 Aggrieved with the findings that have been returned, the present appeal has been preferred primarily on the ground that the evidence has not been properly appreciated and the law has been misapplied. The appeal has been resisted by the respondent ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 2 of 22 mainly relying on the trial Court record.
3 I have heard Ms. Veena Goswami, Advocate for the appellant and Sh. Sunil Malhotra, Advocate for the respondent. During the course of arguments, I have been taken through the trial Court record.
4 The controversy lies in a very narrow compass in this case as most of the facts are undisputed.
5 It is admitted case that the property, of which the tenanted premises is a part, was originally owned by another person. The respondent was inducted as a tenant by the erstwhile owner. Admittedly, the purpose of letting was nonresidential, in that the respondent is a dentist by profession and has used the premises ever since inception for running a dental clinic. It is admitted in the pleadings that the appellant purchased the property in question from the erstwhile owner through sale deed registered on 17.04.2000. It is not disputed that after acquisition of the property by the appellant information was conveyed to the respondent vide letter dated 05.07.2003 and, in response, the respondent accepted the appellant as his landlord and started paying rent to him w.e.f. 01.07.2003.
6 Even in the pleadings it was admitted that the ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 3 of 22 respondent had suffered a paralytic attack on account of old age due to which he was unable to attend to his professional work as dentist, atleast for some period. It is further admitted case on both sides that the family of the respondent includes his son Ashok Watts, who is also a dentist by training and profession. It is further common ground that Mrs. Radhika Watts is the wife of Dr. Ashok Watts and, thus, daughterinlaw to the respondent. 7 The case of the appellant before the ARC was that the respondent had sublet, assigned or otherwise parted with the possession of the tenanted premises to his son Dr. Ashok Watt and daughterinlaw Mrs. Radhika Watts who were running the clinic independently, opening and closing the shop on their own. The appellant contended that the possession of the shop had been given by the respondent to his son and daughterinlaw without his written consent. He claimed that he had issued a notice dated 24.10.2003 terminating the tenancy, to which a reply was sent by the respondent on 07.11.2003, which was also countered by him through his own reply dated 24.11.2003.
8 The respondent contested the eviction petition denying any cause of action had arisen in favour of the appellant. He submitted that the dental clinic in the tenanted premises was being ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 4 of 22 run by him since inception and that he continued to be in actual, legal and physical possession thereof. He pleaded that his son Dr. Ashok Watts and his wife Dr. Mrs. Radhika Watts were also doctors by profession to the knowledge of the appellant. He submitted that Dr. Ashok Watts had been helping him in the dental clinic assisting as a Junior Doctor for about 13 years, working under his guidance and supervision. He submitted that during the short period when he had suffered the paralytic attack and had been advised bed rest, Dr. Ashok Watts had continued to work under his guidance and supervision only. The allegation of subletting etc. were thus denied.
9 The appellant reiterated his case controverting the defences set up, by filing replication.
10 The case was put to trial by the ARC in the course of which both sides led evidence. The appellant examined himself as PW1 on the basis of affidavit Ex. PW1/A. He was subjected to crossexamination on the said affidavit. The basic fact brought out through the said evidence by the appellant was that the tenanted premises was in exclusive use and occupation of Dr. Ashok Watt and his wife Mrs. Radhika Watts. He affirmed on oath that both the said persons run the clinic independently. ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 5 of 22 11 The respondent, on the other hand, examined himself as RW1 on the basis of his affidavit Ex. RW1/A. He was cross examined on the said affidavit. The respondent also examined one Bahadur Singh (RW2), a person claimed to be his patient in the dental clinic and also his wife Rita Watts (RW3). They deposed on the strength of their respective affidavits Ex. RW2/A and Ex. RW3/A. This evidence was primarily intended to show that the respondent has continued to have the control over the premises. 12 The ARC heard arguments and then passed the judgment reaching conclusions which have been indicated earlier. 13 The ARC has observed in para no.2 of the impugned judgment that the initial burden of proving the case U/s 14 (1)(b) of the DRC Act was upon the appellant who was required to show by way of cogent evidence the presence of third person other than the tenant in the tenanted premises. He observed, and rightly so, that in view of the stand taken by the respondent in the written statement, the presence of a third person having been admitted, the onus would shift upon the tenant to prove as to in what capacity the third person is occupying the premises. The ARC accepted the evidence led by the respondent through the testimonies, inter alia, of RW1 and RW3 to the effect that the respondent had remained ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 6 of 22 confined to bed for a period of about six weeks due to paralytic attack suffered in 2003 and that during such absence the clinic was looked after by Dr. Ashok Watts under the supervision and guidance of the respondent. The ARC observed that the appellant had feigned ignorance about the profession of the son and daughterinlaw, thereby putting a question mark on his credibility. On the basis of evidence led, he concluded that there cannot be any dispute as to the status of the son Dr. Ashok Watts as a Dental Surgeon and that of the daughterinlaw also as one of a Doctor (Homoeopathy Doctor).
14 The ARC has rejected the contention of the appellant that Dr. Ashok Watts was engaged in his own practice in the tenanted premises, treating it as a plea contrary to the case set up by the appellant in the pleadings. He further noted that there was no evidence as to any rent being taken by the respondent from his son and daughterinlaw for use of the premises. 15 Referring to Govindji Khera Vs. Padma Bhatia, AIR 1972 Delhi 239; Nanakchand Vs. Sansar Chand & Anr. 1983 (2) RLR 76; Chander Kishore Sharma & Anr. Vs. Kampa Wati, 24 (1982) DLT 316 and Dr. Vijay Kumar Vs. Raghbir ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 7 of 22 Singh, 1973 RLR (SC) 587, the ARC concluded that there was no material to show that the tenant had parted with possession of the suit premises so as to displace the normal inference that required to be drawn from the fact that Dr. Ashok Watts and his wife were present in the tenanted premises assisting the respondenttenant being members of his family closely related to him. He noted that photograph Ex. RW3/PA which depicts the signage displayed on the front of the suit premises (on which reliance has been placed on behalf of appellant) also shows the continued presence of the respondent as a Dental Surgeon operating from there, the name of his son Dr. Ashok Watts only coming after his name in the said display.
16 It appears that Dr. Ashok Watts has had some differences with his father (the respondent) and his mother Mrs. Rita Watts (RW3) over the partition of a property described as C45, Jangpura Extension, New Delhi110014, referred by him as ancestral residential property. It appears that he had filed a civil suit on 02.04.2007 in the Hon'ble High Court of Delhi, seeking permanent injunction against interference by the respondent and Mrs. Rita Watts from interference in his 'peaceful possession' of the tenanted premises. The said civil suit (O.S.) No. 608/2007 was ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 8 of 22 instituted on the basis of plaint (Ex. RW1/P2), in which it was, inter alia, claimed by Dr. Ashok Watts that he had been a doctor by profession practising in the tenanted premises since 1991 and that after having suffered a diabetic / paralytic attack the respondent had 'stopped practice from the suit premises since November, 2004' and that he (Dr. Ashok Watts) had been 'running his exclusive practice from the suit premises since November, 2004'.
17 The plaint presented by Dr. Ashok Watts also claimed that he had been in continuous physical and peaceful possession of the suit premises from November, 2004. The said plaint was accompanied by application U/o 39 Rule 1 & 2 CPC (vide Ex. RW1/P2). It further appears that Hon'ble High Court issued notice on the said civil suit and the application for 16.08.2007 vide notice (Mark Z1) dated 03.04.2007, inter alia, communicating an interim restraint order against the respondent and his wife from dispossession of Dr. Ashok Watts from the tenanted premises. It further appears that the said civil suit was contested by the respondent and his wife through written statement (Ex. RW3/8), in which it was, inter alia, denied that Dr. Ashok Watts had been in continuous and peaceful possession of the suit premises from ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 9 of 22 November, 2004 or that Dr. Ashok Watts has been running his exclusive practice from there during that period. It was pleaded that Dr. Ashok Watts on completion of his studies (the qualification for practice as a Dentist) was allowed by him (the respondent) 'to practice with him from the suit premises under his guidance, permission and direction'. It was also pleaded that the absence of the respondent from the suit premises on account of paralytic attack was only for a short period and that subsequently (in January, 2006) he had even carried out certain repairs in the clinic and was still attending the same.
18 The civil suit ended in a compromise on 28.09.2007 as per order Ex. RW3/4. It appears for the purposes of recording of the compromise both sides had initially submitted affidavits. The copy of the affidavit of the respondent filed at that stage has been brought on record as Ex. RW3/7. In the said affidavit, the respondent, inter alia, affirmed that after his son had become a Dental Surgeon he had also joined him and 'started practicing with him'. He stated that he and the son had been practicing for the last about 15 years and that the son had been working under his supervision and guidance. Para 5 of the said affidavit dated 28.09.2007 vide copy Ex. RW3/7 read as under (wherein the ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 10 of 22 expression "plaintiff" represents Dr. Ashok Watts): "I say that I never intended to dispossess the plaintiff from the said shop. Further, I state that I shall not dispossess the plaintiff from the said shop and he shall continue to practice from the said premises with me".
19 Hon'ble Court recorded the following order on 28.09.2007 (Ex. PW3/4) to allow the suit to be withdrawn and disposed of accordingly (wherein the expression "plaintiff" denotes Dr. Ashok Watts and "defendant No.1" connotes the defendant tenant): "Both the parties have filed their respective affidavits. However, affidavit filed by the plaintiff is not proper as it suggests that it is the plaintiff who has a right in the property in suit and is giving permissive user of the property to the defendant No.1. This may create further complications as the premises in suit are on rent with defendant No.1 and probably he is facing an eviction petition on the grounds of subletting of the premises to his son, plaintiff in the suit. Therefore, this affidavit as filed being not proper is not accepted on record.
Parties are present today in the Court.
ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 11 of 22 Let their statements be recorded to avoid further appearance of defendants No. 1 & 2 in the Court as they are senior citizens and defendant No.1 is also not physically fit.
Plaintiff is permitted to withdraw the affidavit dated 25.09.2007 filed on the record. He shall file proper affidavit in terms of statement made in the Court within two days. In view of the statements of the parties recorded on separate sheets, plaintiff seeks permission to withdraw the suit. Suit is accordingly dismissed as withdrawn.
Parties shall be bound by their statements.
Pending application stands disposed of.
File be consigned to record room".
20 The statements that had been recorded by the Hon'ble High Court on 28.09.2007 leading to the aforementioned order also need to be referred to in extenso. Copy of the statement of Dr. Ashok Watts (plaintiff in the said civil suit) proved vide certified copy Ex. RW3/3, reads as under (wherein "defendant no.1" is the respondenttenant): "Statement of Dr. Ashok Watts S/o Dr. K.B. Watts, aged about 40 years, r/o 7/1, Pant Nagar, New Delhi ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 12 of 22 On Oath Defendants No.1 & 2 are my parents.
My father is the lawful tenant of the premises D2nd33, Central Market, Lajpat Nagar, New Delhi110024 in which he is running his dental clinic since the year 1966. After completing my education I joined my father as a dentist and started doing my practice in the premises in suit with his permission without any obstruction of any kind since 1991 and therefore, my father has every right to continue his practice in the said premises. Defendants have agreed to permit me to continue my practice uninterruptedly in the suit premises. I be permitted to withdraw my affidavit filed on the record in view of the observations made by the Court".
21 Copy of the statement of the respondent (defendant in civil suit) in the aforementioned suit proved vide certified copy Ex. RW3/2, reads as under: "Statement of Dr. K.B. Watts S/o Late Dr. M.L. Watts, R/o C45, Jungpura Extension, New Delhi.
On Oath I am a tenant in the suit premises since January, 1966 and I am running my dental clinic in the said premises since then. After my son completed his studies I permitted him ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 13 of 22 to join the practice as a dentist being my son. I have no intention to dispossess him from the suit premises and I shall not dispossess him from the suit premises as I have all love and affection for my son".
22 The ARC was not impressed with the above mentioned material. He observed that the claim of Dr. Ashok Watts in the said civil suit about he being an exclusive possession of the suit premises was 'not binding' against the respondent. In taking this view, he referred to the judgment of Hon'ble High Court in Gulzar Singh Vs. Sri Chand Gupta, 29 (1986) DLT 50, which had been affirmed by Hon'ble Supreme Court in Sri Chand Gupta Vs. Gulzar Singh and another, (1992) 1 Supreme Court Cases 143. He observed that the statement made by Dr. Ashok Watts before Hon'ble High Court, at the stage of the civil suit being compromised, showed that he had conceded that his father (the respondent) had every right to continue his practice in the suit premises thereby acknowledging the physical and legal possession over the suit premises vesting in him (the respondent). 23 Primarily on the basis of aforementioned conclusions, the petition of the appellant was dismissed. ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 14 of 22 24 It is clear from the pleadings and the evidence on record that the tenancy was created in favour of the respondent by the erstwhile owner in 1966. It is also clear that the respondent, a dentist by profession, has been running the dental clinic in the suit premises ever since. After the purchase of the property by the appellant, respondent on being noticed attorned in his favour. 25 The evidence clearly shows that Dr. Ashok Watts, the eldest son of the respondent, became a Dental Surgeon in 1991. It is admitted case for the respondent that after attaining such qualification (vide Ex. RW1/3) Dr. Ashok Watts joined him in dental practice in the clinic in the tenanted premises. The presence of Dr. Radhika Watts (nee Simmi Gulati) wife of Dr. Ashok Watts in the suit premises as a medical practitioner is also an admitted fact. Though the respondent pleaded in written statement that Dr. Radhika Watts (daughterinlaw) would also assist him in the dental clinic, further claiming in the evidence that she would assist him by handing over to him the instruments, cotton swabs etc., it is clear from the record that Dr. Radhika Watts has no connection whatsoever with dental practice, this because she is a homoeopath by training, as shown by copy of her degree (Ex. RW1/4) certifying her to be a Bachelor of Homoeopathic Medicine and ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 15 of 22 Surgery.
26 Be that as it may, the fact remains that Dr. Ashok Watts, the eldest son, and Dr. Radhika Watts, the eldest daughter inlaw, were close members of family of respondent. This fact is further demonstrated by copy of the ration card Ex. RW1/6. On this account, their presence in the tenanted premises could not generally be objected to (in view of law in Govindji Khera Vs. Padma Bhatia (supra); Nanakchand Vs. Sansar Chand (supra) & Anr. (supra); Chander Kishore Sharma & Anr. Vs. Kampa Wati (supra) and Dr. Vijay Kumar Vs. Raghbir Singh (supra), unless there was some further material to show that the possession had been parted with.
27 Without doubt, there is no proof of any rent being actually realized from Dr. Ashok Watts or his wife by the respondent. But then, it has to be borne in mind that realization of rent is not always or invariably a sine qua non for petition U/s 14 (1) (b) of the DRC Act to be brought home.
28 It is pertinent to refer here to two judgments on the issue of subletting viz. Vishwa Nath and another Vs. Chaman Lal reported as AIR 1975 Delhi 117 and Abdul Hamid and ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 16 of 22 another Vs. Nur Mohd. reported as ILR (1976) II Delhi 250. 29 In Vishwa Nath (supra), the Hon'ble High Court observed as under: "So long as the lessee retains the legal possession of the whole of the premises he does not commit a breach of law against parting with possession by allowing other people to use the same. A tenant cannot be said to part with the possession of any part of the premises unless his agreement with the licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession (1931) 1 Ch. D 470 and 1966 Delhi LT 28. Clause (b) of the proviso to S. 14 (1) uses three expressions, namely, 'sublet' 'assign' and 'otherwise parted with possession'. These three expressions deal with different concepts and apply to different circumstances. In subletting, there exists the relationship of landlord and tenant as between the tenant and his subtenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate. Payment of rent, and the right to possession as against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has a tenant. The expression 'parted with possession' undoubtedly postulates parting with legal possession. Parting with possession means giving ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 17 of 22 possession to persons other than those to whom possession has been given by lease and "parting with possession" must have been by the tenant. The mere user by other persons is no parting with possession so long as the tenant retain the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession. 1972 RCR 74 (Delhi)".
30 In Abdul Hamid and another Vs. Nur Mohd.
(supra) Hon'ble High Court has observed as under: "The expression "part with possession"
has to be understood in the legal sense. The mere fact that the tenant himself was not in physical possession of the tenancy premises for any period of time would not amount to parting with possession, so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof, Divestment or abandonment of the right to possession is necessary in order to invoke the clause 'parting with possession".
31 It is well settled that if the user with a stranger is ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 18 of 22 concurrent, there can be no parting with possession within the meaning of the expression used in Section 14 (1)(b) of the DRC Act. Mere user by other persons also does not constitute parting with possession so long as the tenant retains the legal possession with himself. To bring home a case within the mischief of Section 14 (1)(b) of the DRC Act, there must be divesting by the tenant of the physical possession as also of the right to possession. 32 The assertion by the son (Dr. Ashok Watt) through his civil suit before Hon'ble High Court to the effect that he was in exclusive possession of the tenanted premises by itself would not bind the respondent. This view taken by the ARC, would be in sync with the law laid down in case of Gulzar Singh (supra). But then, the matter did not end merely with the said assertion on the part of Dr. Ashok Watt. The manner in which the civil suit was settled and compromised by the respondent with his son has actually confirmed the case of the appellant. 33 The son (Dr. Ashok Watts) insisted even at the stage of compromising the civil suit with his father that he had joined the respondent as a dentist and had started his own practice in the tenanted premises. Noticeably, in the said statement Ex. RW3/3 he would refer to his use of the tenanted premises as 'my practice' (as ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 19 of 22 against joint practise of father and son), also stating, so as to leave no room for doubt about it, that he was in the suit premises 'without any obstruction of any kind since 1991'. He further went on to state that his father (the respondent), 'has every right to continue his practice in the said premises'. This would imply that it was the son (the stranger in the premises) who was conceding a right to the respondent (the tenant) to continue his practice. 34 The respondent not only accepted the above statement of Dr. Ashok Watts as the terms of settlement, but also agreed through his own statement to allow him (Dr. Ashok Watts) 'to continue' his practice 'uninterruptedly in the suit premises'. To leave no doubts in this regard, the respondent also stated vide his statement Ex. RW3/2 that he had 'no intention to dispossess' nor shall he 'dispossess him (Dr. Ashok Watts) from the suit premises'. 35 In my considered opinion, the above statement of the respondenttenant clinches the issue in favour of the appellant. It would show that the respondent had conceded that his son Dr. Ashok Watts who had entered the tenanted premises in 1991 (may be initially to assist him) had since been engaged in his own independent dental practice in the said premises and therefore, he could not be dispossessed from there. This would imply that the ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 20 of 22 respondent had not only inducted a stranger in the suit premises, but had also conceded a right of the said stranger to continue uninterruptedly in the suit premises and further that the said stranger had an independent right not to be dispossessed. 36 The above shows that the presence in the tenanted premises of Dr. Ashok Watts is not mere presence of a son assisting the father in the dental practice. It is presence of a stranger in a part of the premises in his own independent rights wherein he is entitled not to be dispossessed by the tenant. The tenant, thus, has not only divested himself of physical possession of a part of the premises, but also of the right to possession by throwing out the stranger. It is not even claimed by the respondent that this arrangement was with the consent of the landlord. By this reckoning, the appellant has brought home his case U/s 14 (1)(b) of the DRC Act by proving parting with possession, as interpreted in the case of Vishwa Nath (supra) and Abdul Hamid (supra). 37 Thus, the view taken by Addl. Rent Controller, in the the impugned judgment cannot be upheld. The impugned judgment is consequently set aside. The appellant is held to have brought home his case for eviction U/s 14 (1)(b) of the DRC Act. 38 The petition of the appellant is, therefore, allowed. An ARCT No. 26/11 Vipin Kalra Vs. K.B. Watts 21 of 22 eviction order is passed against the respondent U/s 14 (1)(b) of the DRC Act in respect of the tenanted premises referred to above. 39 The appeal stands allowed with above observations / directions.
40 A copy of this judgment be sent to the learned trial court with trial court record.
41 File of the appeal be consigned to Record Room. Announced in open Court today on this Ist Day of March, 2012 (R.K. GAUBA) District Judge (South)-cum-
Additional Rent Control Tribunal, Saket, New Delhi.
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