Delhi District Court
Shri Misri Lal Maurya vs Shri Subhash Chandra Khandelwal on 30 October, 2018
In the Court of CCJ cum ARC, Pilot Court (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E97/18
U. ID No. 144/18
In the matter of :
Shri Misri Lal Maurya
S/o Late Shri Lalu Ram
R/o House No. 39/2986,
Beadon Pura, Karol Bagh,
New Delhi110005. ...........Petitioner
Versus
1. Shri Subhash Chandra Khandelwal
2. Shri Satish Kumar Khandelwal
3. Shri Mahinder Khandelwal
4. Shri Rajesh Khandelwal
All S/o Shri Ram Kishore Khandelwal
All at 2993 (A&B),
Ground Floor entrance from
Street 39, Beadonpura,
Karol Bagh,
New Delhi110005.
Second Address of respondent no. 1 to 4.
F313A, Mansarovar Garden, New Delhi110015. ..........Respondents Date of institution : 12.02.2018 Date of reserved for judgment : 16.10.2018 Date of judgment : 30.10.2018 Decision : Dismissed as rejected JUDGMENT :
1. An eviction petition has been filed by the petitioner against the E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 1 of 12 tenants/respondents for vacation of the tenanted premises, i.e., shop no. 2993 (A&B), Ground Floor entrance from street No. 39, Beadonpura, Karol Bagh, New Delhi110005, out of premises no. 2993, Beadonpura, Karol Bagh, New Delhi110005, shown in red colour in the site plan annexed alongwith the petition, u/s 14 (1) (b) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the shop was let out to respondent no. 1 and 2 for commercial activities vide rent agreement dated 14.08.1981, however, the tenancy had already commenced w.e.f. 30.05.1981 and the terms and conditions were reduced into writing vide agreement dated 14.08.1981. The respondent no. 1 and 2 have sub let, assigned or parted with the possession of the whole of the tenancy premises to the respondent no. 3 and 4 without consent of the petitioner either in writing or otherwise and the sub tenants are carrying on their business in the demised premises. The petitioner is the owner/ landlord of the shop in question.
On the above stated grounds, prayer is made for eviction of the respondents from the tenanted premises.
3. Summons were served upon the respondents, who appeared and filed their written statement denying all the contentions made by the petitioner in the eviction petition. In the written statement respondent no. 1 and 2 have submitted that the suit premises is situated in Slum Area and no permission u/s 19 of Slum Area Clearance Act has been obtained by the petitioner to institute this eviction petition against the respondents.
E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 2 of 12The eviction petition suffers from delay and laches and is barred by time. There is no divestment of the rights of the respondent no. 1 and 2 from the suit premises in any manner whatsoever. The rent is being continuously paid by respondent no. 1 & 2 and they continued/ continue to be in complete physical and legal possession of the suit premises and the respondent no. 3 and 4 are their real brothers, who are working with/ under them. The eviction petition contains the address form of the respondents which is of the suit premises only. The residential address of the respondents is also one and the same as mentioned in the eviction petition. The respondent no. 1 to 4 are the real brothers and have been working jointly. The eviction petition has been filed with malafide intention to get the suit premises illegally evicted from the respondents so as to enable the petitioner to relet the premises at excessive and exorbitant rate of rent.
4. It is denied that the respondent's No. 3 and 4 have been inducted as sub tenants by respondent's no. 1 and 2. It is submitted that the allegations are vague and evasive as no date, month and year of alleged subletting has been mentioned. The suit premises is under the control, possession and is under supervision of respondents no. 1 and 2, who generally open and close the shop either themselves or through their employee.
5. It is submitted that the rent agreement dated 14.08.1981 is inadmissible in evidence for want of registration and proper stamp duty, therefore, the same can not be looked for any purpose. The suit premises was taken on rent by respondent no. 1 and 2 from the petitioner for E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 3 of 12 carrying on the business in the suit premises with the help of their family members i.e. the respondent no. 3 and 4 being their family members and real brothers. The long silence of the petitioner on this subject goes to prove that there is or can not be any subletting in favour of respondent no. 3 and 4, who are not the outsider. It is denied that respondent no. 1 and 2 after 30.05.1981 sublet, assigned or otherwise parted with possession of the suit premises in favour of respondent no. 3 and 4. So the question of obtaining any consent of the petitioner neither arose nor does arise at all. The respondent no. 3 and 4 have filed their written statement and have reiterated the submissions made by respondent no. 1 and 2.
6. Replication to the written statement was filed by the petitioner, wherein the petitioner has denied all the averments made by the respondents in the written statement and further, reaverred what was averred by him in the original petition. It is denied that the suit premises is situated in Slum Area. It is submitted that the rent is being paid by the respondent no. 1 and 2, however, the respondent no. 1 and 2 have sublet the premises in question to respondent no. 3 and respondent no. 4. It is submitted that Subhash Chand Khandelwal who is the proprietor of M/s Hi Fashion is having his own independent GST No. 07AAAPK6541Q1ZC. Similarly Shri Rajesh Khandelwal and Mahender Khandelwal running their business under the name and style of M/s Handloom Fabrics and having its own independent GST No. 07AAAEEEH6752N1ZX, Satish Khandelwal and Mukesh Khandelwal are running their business under the name and style of M/s Lifestyle E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 4 of 12 having their independent GST No. 07AACFL8542Q12P. Besides the Handloom Fabrics to which Mahender Kumar Khandelwal and Rajesh Kumar Khandelwal are proprietor / Director / Promoter and have their own GST and running the said business from the demised premises/ premises in question. It is further submitted that during the cross examination in suit no. E144/10 titled as Gulshan Kumar versus Mahender Kumar Khandelwal respondent, it has been deposed as under :
"It is admitted that 2993/39, Beadon Pura, Karol Bagh, Delhi, is being used to earn his livelihood from this premises as a tenant."
7. The photocopies of the GST number and the premises from where the said business has been running are attached. It is further submitted that Mahender Kumar Khandelwal - respondent, sub tenant in premises no. 2993/39, Beadonpura, Karol Bagh, New Delhi110005 has got installed his telephone no. 28728175 from the demised premises/ premises in question, the relevant bill is attached herewith.
8. During evidence, petitioner has examined himself as PW1 and deposed on the lines of the petition. Further, he relied upon the following documents : a) Site plan : Ex. PW1/1
b) Original rent agreement dated 14.08.1981 : Ex. PW1/2
c) Telephone bills for the period 01.01.18 to 31.01.2018 : Ex. PW1/3 and Ex. PW1/4
d) Copies of the GST forms : Ex. PW1/5 and Ex. PW1/6 are deexhibited and Mark A and B. Ms. Yogita, Senior Assistant from Trade and Taxes Department, Ward No. 45, 5th Floor, Sale Tax Office, I.P. Estate, New Delhi produced the document i.e. entire records of GSTIN/ UIN No. E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 5 of 12 07AACFL8542Q1ZP pertain to "life style" at 2524/08, Gurudwara Road, Karol Bagh, New Delhi, proprietor Shri Mukesh Khandelwal and Shri Satish Khandelwal, respondents as Ex. PW2/B and entire records of GSTIN/ UIN No. 07AAAPK6541Q1ZC pertain to "Hi Fashion" at 2830/19, Basement Beadonpura, Karol Bagh, New Delhi proprietor Shri Subhash Chand Khandelwal, respondent as Ex. PW2/A.
9. In their turn, the respondents have not lead any evidence in their defence.
10. I have heard the contentions of both the parties and have gone through the record.
11. Ld. Counsel for the respondent no. 1 and 2 has relied upon the following case laws : Jagan Nath (deceased) through LRs v. Chander Bhan and Ors MANU/SC/0201/1988, Chander Kishore Sharma and Anr. v. Kampa Wati, MANU/DE/0337/1983, Niranjan Lal Kanodia v. Harbans Lal, 1995 (34) DRJ, Hazari Lal and Ram Babu v. Gian Ram, 1972 R.C.R. 74 DHC, Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and Ors, (1987) 3 SSC 538, Resham Singh v. Raghbir Singh and Another, (1999) 7 SCC 263, Shree Kedar Nath v. Smt. Mohani Devi, 1974 RCR 118 DHC, Ganpat Ram Sharma v. Smt. Gayatri Devi, 32 (1987) DLT 371, NDMC through Education Officer v. Arya Dharam Seva Sangh 2018(2) CLJ 568 Del in support of his arguments.
GROUNDS OF EVICTION UNDER SECTION 14(1)(b) OF THE E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 6 of 12 ACT:
12. In Bharat Sales Ltd. V. LIC of India, (1998) 3 SCC 1, it has been held that two essential conditions are required to be satisfied to prove subletting as under:
(a) That the alleged subtenant is in exclusive possession, and
(b) That between the tenant and the alleged subtenant, there is a relationship of lessor or lessee.
In, Shama Prashant Raje Vs. Ganpatrao, (2007) 7 SCC 522, it has been held by the Hon'ble Apex Court that "on subletting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and monetary consideration, have to be established."
13. Thus, the subtenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered.
14. In the present petition both the parties have admitted the ownership of the petitioner over the premises in question as well as the existence of landlord tenant relationship between the parties. The respondent has himself has placed on record rent receipts Ex. PW1/R1 to PW1/R6 in the name of respondent no. 1 and 2 from September 2017 to February 2018. Hence, there is no dispute regarding the landlord tenant relationship between the parties.
15. The contention of the petitioner is that he has let out the tenanted E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 7 of 12 premises to respondent no. 1 and 2 for commercial activities and the tenancy commenced from 30.05.1981. However, after 30.05.1981 the respondent no. 1 and 2 has sub let, assigned or parted with the possession of whole of the tenanted premises to respondent no. 3 and 4 with the consent and permission of the petitioner either in writing or otherwise. It is submitted that respondent no. 3 and 4 are in physical possession of the tenanted premises and are carrying on their business from there and open and locked the premises in question. The petitioner has relied upon telephone bills of connections in the name of respondent no. 3 which are Ex. PW1/3 and Ex. PW1/4. The petitioner has also relied on the GST number in the name of respondent no. 3 and 4 Mark A and B.
16. Per contra the respondent have stated that respondent no. 1 to 4 are brothers and working jointly. The respondent no. 1 and 2 had not parted with the possession of the tenanted premises. Ld. Counsel for respondent no. 1 and 2 have stated that merely allowing the respondent no. 3 and 4 who are brothers of respondent no. 1 and 2 to work with them does not mean that respondent no. 1 and 2 have parted with the possession of the tenanted premises. It is submitted that all the respondents are residing in the same house and the business is being carried by respondent no. 1 and 2 with the help of their family members i.e. respondent no. 3 and 4 being real brothers. It is admitted by the petitioner that all respondents are real brothers and all respondents are residing in the same house. It is also admitted that the summons of the present petition were sent on the address of the tenanted premises and have been duly served on all the E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 8 of 12 four respondents. Further it is admitted that the petitioner is accepting the rent from the respondent no. 1 and 2 and issuing rent receipts Ex. PW 1/R1 to Ex. PW1/R6. The site plan of the tenanted premises is also admitted to be correct. During crossexamination PW1 has admitted that he has not mentioned any date when the respondent no. 1 and 2 have allegedly sub let/ assigned or parted with the possession to respondent no. 3 and 4. Further it is admitted by PW1 that respondent no. 3 and 4 have never claimed tenancy of the suit premises from him. PW1 has not produced any photograph/ other document to show that he has seen respondent no. 3 and 4 opening the tenanted premises in the morning and closing the same under their own lock and key in the evening. Even though he has stated that he has seen them doing so. It is submitted by PW1 that respondents are living separately from each other but in the same building and the house.
17. Ld. Counsel for the respondent has relied upon the case law Jagan Nath (deceased) through LRs v. Chander Bhan (Supra) wherein it is held that so long as tenant retains right to possession there was no parting with the possession in terms of Section 14(1)(b) DRC Act. In Jagan Nath case even though the father had retired from the business and the sons had been looking after the business, in the facts of this it was held that it cannot be said the father had divested himself of the legal right to be in possession. If the father had right to displace the possession of the occupants i.e. his sons, it cannot be said that the tenant had parted with the possession. Similar view was taken in Smt. Krishnawati v. Hansraj E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 9 of 12 MANU/ SC/0420/1973 wherein it was held that if two persons live together in a house as husband as wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises. Similarly, in Chander Kishore Sharma (Supra) it has been held that if the tenancy is in the name of his father and son is carrying on business in part of the premises, and the son is living with the father as his family member it cannot be said that the provision of Section 14(1)(b) DRC Act applies. It is also held that initial burden to prove ground of eviction is on the landlord and not on the tenant. The tenant cannot be asked to prove the negative.
18. Applying the above case law to the facts of the present case, all the respondents are residing in the same house being brothers. Even if respondent no. 3 and 4 are having GST number Mark A and B as well as telephone connection in the name of respondent no. 3, it does not mean parting away with the possession by respondent no. 3 and 4. Further the petitioner has placed on record the telephone directory for the year 2009 2010 of the Beadonpura Handloom Traders Associations, Special notice of Beadonpura Handloom Traders Associations and photographs of Handloom Fabrics at the suit premises, by moving an application under Order 7 Rule 14 r/w Section 151 CPC. These documents have not been proved by leading evidence, however, even if these documents are looked into, the production of these documents does not prove any sub letting by the tenant.
E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 10 of 1219. Merely because respondent no. 3 and 4 are doing their business from the suit shop as alleged by the petitioner that does not mean that respondent no. 1 and 2 have parted with the possession. So long as respondent no. 1 and 2 retain the right to claim possession from respondent no. 3 and 4 who do not pay them any rent or consideration being family members, it would not be possible to say that respondent no. 1 and 2 have parted with the possession, even though for the duration respondent no. 3 and 4 has been given the exclusive use of the whole or part of the tenancy premises.
20. Another contention of petitioner is that respondent no. 1 and 2 are doing their business from a shop in the name of Life Style bearing shop no. 2524/8, Beadonpura, Karol Bagh. The said contention also does not prove any sub letting as respondent no. 1 and 2 are well within their rights to do their business from any number of shops in order to expand their business.
21. The mere fact that respondent no. 1 and 2 themselves are not in physical possession of the tenancy premises for any period would not amount to parting with the possession so long as during their absence respondent no. 1 and 2 had a right to return to the premises and be in possession thereof. A mere privilege or licence to use the whole or a part of the tenanted premises given to respondent no. 3 and 4 which privilege or licence can be terminated at the sweet will and pleasure of respondent no. 1 and 2 at any time would not amount to parting with the possession. Reliance in this regard may be placed upon Hazari Lal case (Supra).
E No. 97/18 Misri Lal Maurya v. Subhash Chandra Khandelwal Page 11 of 12Moreover the respondent no. 3 and 4 are neither strangers nor outsiders, but are family members and brother of respondent no. 1 and 2. Thus, no sub letting can be inferred.
22. Thus, in view of the discussion made above, eviction petition filed by the petitioner against the respondents u/s 14 (1) (b) of the DRC Act, is dismissed as rejected. In the facts & circumstances of the case, no order as to costs.
Digitally signed SUSHEEL by SUSHEEL
BALA BALA DAGAR
Date: 2018.10.31
DAGAR 05:51:51 +0530
Announced in open Court (Susheel Bala Dagar)
on 30th Day of October, 2018 Pilot Court,
CCJ cum ARC(Central)
Tis Hazari Courts, Delhi.
(This judgment contains 12 pages.)
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