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[Cites 7, Cited by 0]

Delhi District Court

Smt. Satya Aggarwal vs Smt. Shimla Rani on 5 December, 2012

          IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
                  RENT CONTROLLER (SOUTH),
                  SAKET COURTS, NEW DELHI.


E­65/12
Unique Case ID No.   02406C0236482012
Smt. Satya Aggarwal 
Wife of Sh. R.P. Aggarwal
R/o F­90, Green Park, New Delhi.
                                             ..... Petitioner

                              Versus

1.    Smt. Shimla Rani
      W/o Late Mr. Subhash Chand Bhalla,
      40, Manglapur, Near Mehruali,
      New Delhi.
2.    Smt. Kaushalaya Devi
      W/o Mr. Bansi Lal Bhalla, 
      309, SFS Flats, Hauz Khas,
      New Delhi.
3.    Mr. Ramesh Chander Bhalla
      309, SFS Flats, Hauz Khas,
      New Delhi
                                           ..... Respondents




E-65/12                                              1 of 27
             Petition u/s 14(1)(b) of The Delhi Rent Control Act.

DATE OF INSTITUTION                                            :       01.06.2001 
DATE OF RESERVING JUDGMENT                                     :       24.11.2012
DATE OF PRONOUNCEMENT                                          :       05.12.2012

                               JUDGMENT

1. The petitioner Smt. Satya Aggarwal has filed the present eviction petition against the respondents Smt. Shimla Rani, Smt. Kaushalya Devi and Mr. Ramesh Chander Bhalla U/S 14(1)(b) of The Delhi Rent Control Act, (in short DRC Act) for passing an order of eviction against the respondents in respect of tenanted premises i.e shop no. 6, R­1, Green Park (Main), New Delhi 110 016 as shown in red colour in the site plan (hereinafter referred to as 'tenanted shop') on the ground of sub­letting. BRIEF FACTS OF PETITIONER'S CASE:

2. The petitioner owner/landlord of the tenanted shop let out the shop to Mr. Subhash Chand Bhalla in October, 1966. Mr. Subhash Chand Bhalla expired on 02.02.1999 leaving behind his widow Smt. Shimla Rani (respondent no. 1) and his mother Smt. Kaushalya Devi (respondent no. 2) as his only legal heirs. The rate of rent at the time of filing of the E-65/12 2 of 27 eviction petition was Rs. 300/­ per month. After the death of Mr. Subhash Chand Bhalla, respondents no. 1 and 2 have inherited the tenancy rights in respect of the tenanted shop by operation of law. The petitioner has alleged that late Mr. Subhash Chand Bhalla or after his death respondents no. 1 and 2 have unauthorizedly sub­let, assigned or parted with the possession of the tenanted shop to respondent no. 3 without her consent. She has further alleged that the respondent no. 3 and his employees are in exclusive possession of the tenanted shop. Therefore, the petitioner has sought the eviction of the respondents from the tenanted shop on the ground of sub­letting.

DEFENCE OF RESPONDENTS:

3. The respondent no. 1 contested the petition of the petitioner by way of filing written statement wherein she has vehemently opposed the petition. The respondent has contended that after the death of her husband, the tenancy rights have devolved upon her only being the wife of deceased tenant. She admitted the petitioner to be the landlord of the tenanted shop. She has controverted the assertions of the petitioner that respondent no. 2 also became the tenant in the tenanted shop after the E-65/12 3 of 27 death of her husband. The respondent has pleaded that she became tenant after the death of her husband as per the Will dated 30.01.1999 executed by her husband in her favour. She denied that the tenanted shop is in occupation of respondent no. 3. She claimed that she is in occupation of the tenanted shop. The respondent has further denied the tenanted shop to have been sub­let to respondent no. 3 without the consent of the petitioner. She has alleged that the respondents no. 2 and 3 are harassing her and are trying to grab the assets left behind by her husband on the basis of forged and fabricated Will. The respondent has referred to various litigations pending between her family members in various courts. She has stated that the respondents no. 2 and 3 have no right in the tenanted shop.

4. The respondents no. 2 and 3 in their joint written statement have contended that after the commencement of the tenancy, late Mr. Subhash Chand Bhalla, started the partnership business in the name and style of M/s Unique Colour Lab and the petitioner started accepting the rent from the said firm of two partners by way of cheque and hence accepted the said firm as a tenant. The respondents have stated that the tenancy, which was commercial was inherited by respondents no. 1 and 2. In the E-65/12 4 of 27 alternative, they have contended that if it is concluded that the tenancy was in the name of firm of deceased husband of respondent no. 1 and respondent no. 3, in that eventuality the tenancy devolve upon the firm, wife of Mr. Subhash Chand Bhalla and his mother as also the other partner of the firm i.e respondent no. 3. The respondents have relied upon the Will dated 04.01.1999 whereby the entire goods of the tenanted shop was bequeathed by late Mr. Subhash Chand Bhalla in favour of respondent no. 3. They have stated that after the death of Mr. Subhash Chand Bhalla, the possession of the tenanted shop remained in the hand of tenant or in the hands of partners of the firm. It has further been contended that the constitution of the firm has been changed and now respondents no. 2 and 3 are the partners of the firm.

5. The petitioner filed replication to the written statement of the respondents wherein she controverted and denied the averments made in the written statement and has re­asserted her stand as stated in petition.

6. The parties led their evidence in support of their respective contentions. After conclusion of evidence of the parties and hearing final arguments in the case, learned predecessor of the Court vide judgment E-65/12 5 of 27 dated 31.10.2011, allowed the application of the petitioner and passed an order of eviction in respect of the tenanted shop against the respondents.

7. The respondent no. 1 Smt. Shimla Rani feeling aggrieved by the judgment dated 31.10.2011, challenged the same in appeal. The learned Appellate Court vide judgment dated 31.08.2012 passed on file no. ARCT no. 64/11 allowed the appeal preferred by the appellant. The judgment passed in the case was set aside. The case was remanded back to this Court for fresh adjudication of the matter on the basis of evidence already led by both the parties. The learned Appellate Court permitted both the parties to file the certified copies of public documents (Court record) as additional material .

8. Pursuant to the judgment dated 31.08.2012 of learned Appellate Court, the respondent no. 1 filed the certified copy of orders dated 07.07.2010 and 27.07.2010 passed by learned Civil Judge in suit no. 528/08 and some other documents. The documents filed on record by respondent no. 1 were supplied to counsel for petitioner. The petitioner has not filed any document on record after remand of the case from the Appellate Court.

E-65/12 6 of 27

9. I have heard and considered the submissions advanced by learned counsel for both the parties, gone through the testimony of witnesses and the documents proved by them during their deposition. I have also gone through the documents filed by respondent no. 1 after remand of the case in this Court, the written submissions of the parties and the judgments relied upon by them.

10. The respondents no. 2 and 3 after remand of the case made appearance in the Court on 24.09.2012 through their counsel. Thereafter, none appeared on their behalf to advance arguments in the case.

11. In order to appreciate the rival contentions of both the parties in right perspective, it is pertinent to reproduce Section 14(1) (b) of The DRC Act. The relevant portion of Section 14(1) reads as under:

"14: Protection of tenant against eviction: (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against the tenant:
E-65/12 7 of 27 Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds namely:­
(a) XXXX XXXX XXXX
(b) That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord,"

12. A bare reading of the aforesaid provision of law shows that the landlord can seek recovery of possession of the tenanted premises if the tenant has sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the written consent of the landlord.

13. In order to prove her case, the petitioner has examined herself as PW1. She filed her evidence by way of affidavit wherein she has re­ iterated the same facts as stated in the petition. In the course of her E-65/12 8 of 27 deposition, the petitioner relied upon and proved the documents from Ex.PW1/1 to Ex.PW1/30. The petitioner has also got examined Mr. Pradeep Aggarwal, her son as PW2 in support of her case.

14. On the other hand, the respondent no. 1 Smt. Shimla Rani Bhalla has got examined herself as RW1 and respondent no. 3 Mr. Ramesh Chander Bhalla has got examined himself as R3W1 in support of their contentions as made in the written statement. The respondent no. 2 has neither examined herself nor examined any other witness in support of her contentions.

15. Admittedly, the petitioner is the land lady of the tenanted shop. The tenanted shop was let out by the land lord to Mr. Subhash Chand Bhalla in October, 1996 at a monthly rent of Rs. 300/­ per month and Rs. 6.50/­ per month being the water, scavenging and fire charges. The petitioner has proved the site plan of the suit shop as Ex.PW1/1. The petitioner in her affidavit has stated that the rent of the tenanted shop was paid six month in advance by draft / pay orders by late Mr. Subhash Chand Bhalla against proper rent receipts. Mr. Bhalla after taking the rent receipt used to sign the counter­foils. She proved the original counter­ E-65/12 9 of 27 foils for the period 01.10.1985 to 30.09.1998 as Ex.PW1/2 to Ex.PW1/26 respectively. She further stated that the rent for the period 01.10.1998 to 31.03.1999 was tendered on 31.10.1998 by pay order by Mr. Subhash Chand Bhalla. However, he did not come to collect the rent receipt and sign the counter foil for this period, although the same was prepared by her. She proved the rent receipt for the aforesaid period as Ex.PW1/27.

16. The petitioner has further stated that she received registered letter dated 03.04.1987 on behalf of Mr. Subhash Chand Bhalla wherein he stated that he was the tenant in the tenanted shop. He tendered the rent for the period 01.04.1987 to 30.09.1987 by means of a draft. She further received another letter dated 05.10.1987 on behalf of Mr. Bhalla tendering the rent for six months w.e.f 01.10.1987. She proved both the letters as Ex.PW1/28 and Ex.PW1/29 respectively.

17. The respondent no. 1 Smt. Shimla Rani Bhalla has admitted the site plan of the suit shop proved by petitioner during her deposition. She also admitted that her husband late Mr. Subhash Chand Bhalla was the tenant in the tenanted shop. She admitted the signature of Mr. Subhash Chand Bhalla on the counter foils Ex.PW1/2 to Ex.PW1/26. She also E-65/12 10 of 27 admitted the sending of letters Ex.PW1/28 and Ex.PW1/29 to petitioner by the erstwhile tenant Mr. Subhash Chand Bhalla.

18. The respondent no. 3 Mr. Ramesh Chander Bhalla has also admitted in his cross examination that Mr. Subhash Chand Bhalla was the tenant in the suit shop. He has not disputed the signature of late Mr. Subhash Chand Bhalla on the receipts Ex.PW1/2 to Ex.PW1/25.

19. Thus from the deposition of petitioner and categorical admission made by respondent no. 1 and 3, it is clear that Mr. Subhash Chand Bhalla was the tenant in the suit shop.

20. The respondents no. 2 and 3 in their joint written statement have contended that after taking the premises in dispute on rent, the respondent no. 3 and late Mr. Subhash Chand Bhalla, the alleged sole tenant started partnership business under the name and style of M/s Unique Colour Lab and prior to that Mr. Subhash Chand Bhalla was carrying out the business in partnership with his late father Mr. Bansi Lal Bhalla. They have stated that after the partnership business of late Mr. Subhash Chand Bhalla and Mr. Ramesh Chander Bhalla commenced, the petitioner started accepting the rent from the firm of two brothers by way E-65/12 11 of 27 of cheques and thereby consented the firm as a tenant. The petitioner in her cross examination has denied that the suit premises was let out to partnership firm and Mr. Subhash Chand Bhalla and Mr. Ramesh Chander Bhalla were the partners of the firm. She categorically stated that only Mr. Subhash Chand Bhalla was her tenant. She further denied the suggestion for receiving the rent from both the brothers. She re­ asserted that the rent was being paid only by Mr. Subhash Chand Bhalla. The respondent no. 3 Mr. Ramesh Chander Bhalla himself admitted in his cross examination that there was no Partnership Deed. He stated that a paper was executed with the word written 'Partnership' but there was no proper Partnership Deed with respect to the shop in question. He also admitted that both the Partnership Deeds i.e Ex.R3W1/R1 dated 24.01.1995 and Ex.R3W1/R3 dated 03.02.1999 were mere formalities and there was no actual partnership between him and his brother Mr. Subhash Chand Bhalla. The original Partnership Deeds have neither been produced nor proved on record as per law in the Court. The claim of respondents no. 2 and 3 with respect to the partnership firm being the tenant of petitioner remained unsubstantiated. The respondents have miserably failed to prove on record that there was in fact any Partnership E-65/12 12 of 27 Deed, consisting of Mr. Subhash Chand Bhalla and Mr. Ramesh Chander Bhalla, was the tenant in the suit shop and the partnership firm was paying rent to the petitioner. In view of categorical admission made by the respondents in their written statement, it has been duly proved on record that the tenanted premises was let out to Mr. Subhash Chand Bhalla and only he was the tenant in the suit shop.

21. The respondent no. 1 as well as respondent no. 3 both are claiming the tenancy rights in the tenanted shop on the basis of Wills. The respondent no. 1 in her affidavit has stated that she is the wife of late Mr. Subhash Chand Bhalla and is the exclusive tenant in the tenanted shop by way of inheritance as well as execution of Will by late Mr. Subhash Chand Bhalla in her father. She alleged that respondents no. 2 and 3 in collusion with other brother of her husband namely Mr. Naresh Chand Bhalla fabricated and forged Will dated 04.01.1999 and on the basis of said forged Will started claiming the tenancy right in the suit shop. The petitioner filed probate petition no. 42/06/2000 Ex.PW2/D­22, which was allowed in her favour and the Will dated 30.01.1999 executed by Mr. Subhash Chand Bhalla in her favour was declared to be the last and genuine Will.

E-65/12 13 of 27 On the other hand, the respondents no. 2 and 3 in their written statement have claimed that late Mr. Subhash Chand Bhalla died intestate leaving behind a registered Will dated 04.01.1999 bequeathing the entire goods in the shop and the premises in favour of respondent no.

3. The respondent no. 3 also filed a probate petition Ex.PW2/D­20 before the court of competent jurisdiction.

22. All the family members including the respondent no. 1 Smt. Shimla Rani Bhalla and respondent no. 3 Mr. Ramesh Chand Bhalla amicably resolved all their outstanding disputes. A Memorandum of Family Settlement dated 17.02.2004 Ex.R3W1/R2 was signed by all the parties concerned and undertook to remain bound by the same. Consequent upon the Family Settlement arrived between the family members, the respondents in the probate petition no. 42/06/2000 i.e Mr. Ramesh Chand Bhalla, Mr. Naresh Chand Bhalla and Smt. Kaushalya Devi Bhalla gave no objection in favour of petitioner i.e Smt. Shimla Rani Bhalla on 11.05.2005. Accordingly, after conclusion of the proceedings in the case, the probate petition filed by respondent no. 1 Smt. Shimla Rani Bhalla was allowed vide judgment Ex.PW2/D1 passed by Shri V.K. Gupta, learned ADJ, Delhi. Similarly, the probate petition E-65/12 14 of 27 filed by Mr. Ramesh Chander Bhalla was dismissed as withdrawn on 10.11.2005 in view of Family Settlement arrived between the parties. Thus, none of the parties can claim exclusive right in the tenanted shop on the basis of Will alleged to be executed by Mr. Subhash Chand Bhalla in their favour.

23. The respondent no. 1 has claimed exclusive right in the tenanted shop on the basis of alleged Will dated 30.01.1999 executed by Mr. Subhash Chand Bhalla in her favour. It is a well settled law that commercial tenancy is inheritable and therefore the tenancy in the present case after the death of erstwhile tenant namely Mr. Subhash Chand Bhalla has been inherited by class­I heirs namely respondents no. 1 and 2. The Will, if any, executed by Mr. Subhash Chand Bhalla, the erstwhile tenant in respect to the tenancy rights in the tenanted shop in favour of respondent no. 1 will have no bearing on this case as the erstwhile tenant could not bequeath his tenancy rights exclusive in favour of respondent no. 1. It was held in The Vaish Co­operative Adarsh Bank Limited v. Sudhir Kumar Jain (2010) 174 DLT 391 that the tenancy rights cannot be the subject matter of a "bequest". Mr. Subhash E-65/12 15 of 27 Chand Bhalla died issue­less. The respondent no. 1 being the wife and the respondent no. 2 being the mother falling in class­I legal heirs have inherited the tenancy rights in the tenanted shop after the death of Mr. Subhash Chand Bhalla. Thus, it has been duly established on record that late Mr. Subhash Chand Bhalla was the tenant of petitioner and after his death the tenancy rights have been inherited by respondents no. 1 and 2.

24. The other aspect which needs to be considered is as to whether the tenanted shop has been sub­let by Mr. Subhash Chand Bhalla or respondents no. 1 and 2 to respondent no. 3 without obtaining the consent in writing of the petitioner. The petitioner in her petition and also in her affidavit has alleged that late Mr. Subhash Chand Bhalla, the tenant or after his death, respondent no. 1 and 2 have unauthorizedly sub­ let, assigned or parted with the possession of the tenanted shop to respondent no. 3 without her written consent and the respondent no. 3 is in illegal occupation of the tenanted premises. The petitioner in her cross examination has stated that after the death of Mr. Subhash Chand Bhalla, the respondent no. 3 is in exclusive possession of the suit shop. The petitioner was cross examined by counsel for respondents at length. She remained firm throughout her cross examination and nothing has come E-65/12 16 of 27 from her cross examination to doubt her veracity. She throughout in her cross examination has maintained that Mr. Ramesh Chander Bhalla is in occupation of the tenanted shop.

25. The respondent no. 3 in his cross examination by counsel for respondent no. 1 has admitted that he has been in possession of the tenanted premises before the death of late Mr. Subhash Chand Bhalla in pursuance of an arrangement with respect to the suit shop and the shop in his occupancy near Qutab Minar. He stated that at the time of Family Settlement also he was in possession of the shop. He admitted that the respondent no. 1 Smt. Shimla Rani has many times tried to break open the locks of the keys and demanded keys from him. Respondent no. 3 was also cross examined by counsel for petitioner and in his cross examination he admitted that he has been continuously in possession of tenanted shop since 1983 as part of understanding between him and his brother. He stated that since 1983, he is alone in possession of the tenanted shop. He admitted that in 1983 his brother Mr. Subhash Chand Bhalla did not take any permission or consent from the landlord to put him in possession of the tenanted premises. He stated that the business, which he was running from the tenanted shop was his own personal E-65/12 17 of 27 business and the entire profit earned therefrom was retained by him. He further stated that even after the death of his brother Mr. Subhash Chand Bhalla, he is continuing in possession of the tenanted premises. He categorically stated that the respondent no. 1 has not done any business in the tenanted shop after the death of his brother. He stated that after the death of his brother he was extending financial help to respondent no. 1 but the same was stopped because of dispute between him and her.

26. The Family Settlement Ex.R3W1/R2 dated 17.02.2004 was arrived between the family members including the respondent no. 1 and respondent no. 3 whereby they settled all their disputes. The Family Settlement is being relied upon by both the respondents. The same is not in dispute between them. The statement made by respondent no. 3 in his cross examination finds support and corroboration in the Family Settlement. At page 2 in para no. 3 of the Family Settlement, it is categorically mentioned that late Mr. Subhash Chand Bhalla was a tenant in the suit shop. He and his brother Mr. Ramesh Chander Bhalla i.e respondent no. 3 were doing business in partnership since 1995 in the suit shop under the name and style of M/s Unique Color Lab and remained in possession thereafter till date. It is further mentioned that Mr. Subhash E-65/12 18 of 27 Chand Bhalla was also doing the business under the name of M/s Camera Film House from the tenancy shop of Mr. Ramesh Chander Bhalla at 4/5 Qutab Minar Market, Mehrauli, New Delhi. Thus, from the contents of the Family Settlement, in which the respondent no. 1 was herself a party, it is clear that the respondent no. 3 was doing business in the suit shop alongwith his brother Mr. Subhash Chand Bhalla and he is in possession of the suit shop till date. Late Mr. Subhash Chand Bhalla, the husband of respondent no. 1 was doing the business from the tenancy shop of respondent no. 3 at Qutab Minar Market, New Delhi.

27. In view of the unambiguous and categorical admission made by respondent no. 3 in his cross examination supported by the Family Settlement, it is proved on record that respondent no. 3 is in possession of the tenanted shop.

28. Contrary to the stand taken by respondents no. 2 and 3, the respondent no. 1 in her written statement at para no. 18 of reply on merits has stated that she is in possession of the shop in question and respondents no. 2 and 3 have no right whatsoever in the shop. She denied the suggestion that the premises has been sub­let, assigned or parted with E-65/12 19 of 27 possession to respondent no. 3 without the consent of the land lady. She has alleged that respondents no. 2 and 3 and the other son of respondent namely Mr. Naresh Chand Bhalla are harassing her and trying to grab the assets left behind by her late husband on the basis of fabricated Will.

29. The respondent no. 1 has maintained silence about her possession in the tenanted shop. In her cross examination, she admitted that she has no documentary evidence to show that after the death of her husband, she started sitting in the premises in dispute to look after the business. She denied the suggestion that the respondent no. 3 got the possession of the premises in dispute after the death of her husband with her consent as well as the consent of her mother in law i.e respondent no.

2. She could neither admit nor deny the suggestion that after the death of her husband, the control of the business that was earlier being run by her husband came in the hand of her brother in law i.e respondent no. 3. She also could not tell the understanding between her husband and respondent no. 3 during his lifetime.

30. The respondent no. 1 in her cross examination has indirectly admitted that she is not in possession of the tenanted shop. She admitted E-65/12 20 of 27 that the keys of the premises in dispute is with respondent no. 3 and he is not allowing her to take the key of the premises in dispute. She further admitted that she went to take forcible possession of the premises in dispute on 06.06.2007 but she could not get the possession because of the resistance offered by the petitioner. Thus, from the admission made by respondent in her cross examination, it is clear that she is not in possession of the tenanted shop and the respondent no. 3 is in possession.

31. The respondent no. 1 Smt. Shimla Rani had filed a suit for partition and rendition of accounts against respondent no. 3 Mr. Ramesh Chander Bhalla before Hon'ble High Court of Delhi. In her suit, the she alleged that her husband had entered into a Partnership Agreement alongwith his younger brother Mr. Ramesh Chander Bhalla. According to the said partnership, her husband and the defendant Mr. Ramesh Chander Bhalla were to share profits as well as losses in proportion of 50% each. She stated that after the death of her husband, the partnership was dissolved by operation of law but the defendant i.e respondent no. 3 was not rendering accounts of the assets of the partnership firm. She alleged in her suit that the respondent no. 3 was not permitting her to manage any activity of the firm. She further alleged that despite dissolution of the E-65/12 21 of 27 firm after the death of her husband, the respondent no. 3 neither vacated the premises nor gave any proper accounts of her business. The aforesaid suit filed by the respondent no. 1 was disposed off vide order dated 01.10.2004 in terms of the Memorandum of Family Settlement arrived between the parties. There is nothing on record to suggest that in pursuance of the Memorandum of Family Settlement, the respondent no. 1 has got the possession of the tenanted shop till date.

32. The petitioner of the present petition had also filed a suit for permanent and mandatory injunction against respondents wherein she prayed for restraining the respondent no. 3 i.e Mr. Ramesh Chander Bhalla, his agents etc from transferring, alienating or creating any third party interest or handing over the possession of the suit premises i.e the tenanted shop to any third party or to respondents no. 1 and 2 i.e defendant no. 2 and 3 in the said case. She had further prayed for directing the defendant no. 1 i.e Mr. Ramesh Chander Bhalla to hand over the keys of the suit premises to her or to deposit the same in the Court. On 27.07.2010 while deciding the injunction application of the plaintiff i.e petitioner, the court of learned Civil Judge restrained the defendant no. 1 i.e Mr. Ramesh Chander Bhalla from transferring the property to E-65/12 22 of 27 anyone else other than defendant no. 2 i.e Smt. Shimla Rani Bhalla during the pendency of the suit. The prayer of the plaintiff for restraining the defendant no. 1 from handing over the possession of the suit premises to defendant no. 2 was declined. The final order passed by the Court, if any, in the suit filed by the plaintiff has not been filed. Hence, this court is unable to further appreciate the matter. In view of the findings given by learned Civil Judge in the suit of the plaintiff i.e. petitioner, it is seen that the respondent no. 1 i.e Smt. Shimla Rani Bhalla was/is not in possession of the tenanted shop.

33. Mr. Ramesh Chander Bhalla i.e respondent no. 3 had also filed a suit for permanent and mandatory injunction and also for rendition of accounts Ex.PW2/D3 against Smt. Shimla Rani Bhalla and Mr. Virender Vij. The suit filed by him was also disposed off as compromised in view of the Memorandum of Family Settlement arrived between the parties in which the respondent no. 1 was also a party.

34. The respondent no. 2 i.e Smt. Kaushalya Devi had filed a suit for permanent and mandatory injunction as well as for recovery of damages/mesne profits Ex.PW2/D4 against respondent no. 1. She had E-65/12 23 of 27 also filed an application U/O 39 Rule 1 and 2 CPC alongwith her suit. The injunction application filed by the plaintiff in the case was dismissed on 31.03.2000 by passing a very detailed and well reasoned order by the then learned Civil Judge, Delhi. The final order passed in the case, if any, has not been produced before this Court, hence this Court is unable to further appreciate the case of the parties.

35. The respondent no. 1 is still not in possession of the tenanted shop as is clear from the records. On the basis of Family Settlement Ex.R3W1/R2, she has already filed an application for execution of order/decree dated 04.05.2004, which is pending before the Court of competent jurisdiction. The petitioner of the present petition has also filed objections to the execution application of the respondent for not giving possession of the tenanted shop to her.

36. From the discussion made above, it becomes amply clear that respondent no. 1 is not in possession of the tenanted shop and only respondent no. 3 is in possession of the same. Admittedly, no permission of petitioner was ever taken by respondent no. 1 and 2 for giving possession of the tenanted shop to respondent no. 3. It was held in E-65/12 24 of 27 Joginder Singh Sodhi v. Amar Kapur (2005) 1 SCC 31 that "the burden of proof of sub­letting is on land lord but once he establishes the parting of possession by the tenant to a third party, the onus would shift on the tenant to explain his possession". The respondent no. 1 and 2 have failed to explain as to when they were dispossessed by the respondent no. 3 from the tenanted shop. The respondents have also failed to explain as to how and in what manner the respondent no. 3 came in possession of the tenanted shop.

37. Hon'ble Delhi High Court in the case titled as Kailash Kumar and Others v. Dr. R.P. Kapur (1994) DLT 342 held that "the question of sub­letting or parting with possession would depend on the peculiar facts of each case and the basic principle enunciated even by the Supreme Court is that once it is proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts on the tenant to show in what capacity the stranger is in exclusive possession of that portion and on the failure of the tenant to explain presence E-65/12 25 of 27 of such person in exclusive possession of that portion of the demised premises, presumption would arise that the portion was sub­let or parted with possession in favour of the stranger by the tenant".

38. In the case in hand, the petitioner has succeeded to prove on record that respondent no. 3 i.e a stranger with whom the petitioner has no privity of contract, is in possession of the tenanted shop. The petitioner succeeded to discharge the initial onus to prove that there was sub­letting of the tenanted shop in favour of respondent no. 3. Thereafter, the onus shifted on the respondents no. 1 and 2 to show and explain as to in what capacity the respondent no. 3 is in exclusive possession of the tenanted shop and how and when he came in possession of the same. The respondents no. 1 and 2 have miserably failed to explain the circumstances as to how and when the respondent no. 3 came in possession of the tenanted shop. Therefore, in view of the settled law, an adverse inference is drawn against the respondents no. 1 and 2 that they have sub­let or assigned or parted with the possession of the tenanted shop to respondent no. 3 without the written consent of the petitioner.

E-65/12 26 of 27

39. For the reasons discussed above, this court is of the considered view that the petitioner has succeeded to prove all the ingredients required for passing an order of eviction U/S 14(1)(b) of The Delhi Rent Control Act. Accordingly, an order of eviction is passed in favour of petitioner and against the respondents with respect to the tenanted shop i.e shop no. 6, forming part of property no. R­1, Green Park (main), New Delhi as shown in red colour in the site plan Ex.PW1/1.

40. File be consigned to record room. 

(Announced in open Court                          (RAJ KUMAR TRIPATHI)
on 05.12.2012)                                RENT CONTROLLER (SOUTH)
                                                SAKET COURTS, NEW DELHI.




E-65/12                                                                        27 of 27