Delhi District Court
Sh. Sameer Wason vs Sh. Sambhu Dayal on 28 November, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS
HAZARI COURTS, DELHI.
E243/07
28.11.2011
1. Sh. Sameer Wason
S/o Sh. C M Wason
2. Sh. C M Wason
S/o Late Sh. C R Wason
Both r/o 27/56, Old Rajinder Nagar,
New Delhi.
...Petitioners
VERSUS
Sh. Sambhu Dayal
S/o Sh. Lekh Raj
Shop No. 53B, Old Rajinder Nagar,
New Delhi. ...Respondent
Petition u/s 14 (1) (a) and (b) of Delhi Rent Control Act
1. Date of institution of the case : 06.02.1999
2. Date of Judgment Reserved : 21.11.2011
3. Date of Judgment pronounced : 28.11.2011
JUDGMENT
The brief facts as stated in the petition are that the petitioners are the owners/landlords in respect of shop No. 53B, Old Rajinder Nagar, New Delhi and the respondent is the tenant in respect of the said shop @ Rs. 71.50/ E243/07 Page 1 of 21 //2// per month. It is stated that the shop in question was let out by Late Sh. C.R.Wason, father and grand father of the petitioners. It is further stated that the respondent was paying the rent to the petitioners against receipt and paid the same upto 01.03.1994 against receipt. Thereafter the respondent stopped paying the rent and the rent was due w.e.f 01.04.1994 and the same has not been paid inspite of repeated requests and demands. Thereafter petitioner sent a notice dated 03.02.1995 and after that the counsel for the petitioner also sent a notice dated 17/18.08.1996 demanding the arrears of rent. Despite issuance of above said notices the respondent neither paid nor tendered the arrears of rent nor enhanced the rent. Thereafter a notice dated 27.09.1998 was sent by the counsel for the petitioner to the respondent under registered AD as well as UPC but the respondent refused to accept the same and again a notice dated 03.11.1998 was sent and after receipt of notices a false reply was sent and false plea was taken but the payment was not made. A draft was sent but the said draft was not the complete rent due upon the respondent. The respondent has not paid the interest and even not enhanced the rent. Even it is not in the knowledge of the petitioner that who sent the draft and even the draft is not the mode of payment and as such the said draft was sent back. Hence the respondent failed to comply with the notices and present eviction petition was filed on the ground of non payment of rent. E243/07 Page 2 of 21
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2. It is further stated that the respondent has sublet, assigned or parted with the possession of the shop in question without the consent and knowledge of the petitioner. It is further stated that the respondent is not at all in possession of the shop in question and sub tenant is in exclusive possession of tenancy shop.
3. Written statement filed on behalf of the respondent wherein it is stated that the rate of rent for the premises was Rs. 65/ per month inclusive of the charges of electricity for one tube light, bulb and a fan. The petitioner served a notice dated 27.09.98 to enhance the rent by 10%. The rent was increased to Rs. 71.50/ per month. It is denied that the petitioners sent a letter dated 03.02.1995, notice dated 17/18.08.96 or the rent was demanded to be enhanced by 10%. It is further denied that the petitioners have regularly issued the rent receipt for the payment of the rent. The notice dated 27.09.98 was duly replied by the respondent wherein requested the petitioners to accept the rent and to issue the rent receipt against the payment of the rent made regularly. However the petitioner in various ways refused to issue the receipts for the payment of the rent. The petitioner refused to accept the rent from the respondent, therefore, the respondent then deposited the rent since March, 1994 till April 1997 in the court of Dilbagh Singh, Ld. ARC, Delhi in DR No. 54/97 and another sum of Rs. 195/ as the rent for the month of May E243/07 Page 3 of 21 //4// 1997 to July 1997 in the court of Sh. N.P.Kaushik, Ld. ARC, Delhi. It is denied that the respondent stopped paying the rent. It is further denied that the respondent have sublet, assigned or parted with the possession of the shop. It is stated that the petitioner is in the exclusive possession of the shop and he is running the business of making shoes.
4. Replication to the WS of the respondent filed by the petitioner wherein the averments made in the WS were denied by the petitioner and the contents and averments of the petition were reaffirmed and reiterated.
5. Thereafter, in order to prove his case, petitioner no. 2 has examined himself as AW1, one Sh. Hira Lal as AW2. The documents exhibited are the original lease deed in favour of the father of the petitioner no. 1 Ex. AW1/1, copy of conveyance deed Ex. AW1/2, letter in which land & development deptt. transferred the property in question in the name of the mother the petitioner no. 2 is Ex. AW1/3, mutated letter in the name of petitioner no. 1 and 2 Ex. AW1/4, mutation of the corporation is Ex. AW1/5, the notice dated 03.02.1995 Ex. AW1/6, UPC Ex. AW1/7 and registered envelope Ex. AW 1/8, notice dated 15.04.95 Ex. AW1/9, notice dated 08.05.95 Ex. AW1/10 and the notice sent by UPC is Ex. AW1/11, notice dated 17.08.96 Ex. AW 1/12, reply of the respondent of the notice Ex. AW1/13, cheque of Rs. 2516 dated 23.09.96 Ex. AW1/14 returned with letter Ex. AW1/15, postal receipt E243/07 Page 4 of 21 //5// Ex. AW1/16, notice dated 22.09.98 Ex. AW1/17, envelope with remarks Ex. AW1/18, notice sent under UPC was received is Ex. AW1/19, notice dated 05.11.96 Ex. AW1/20, postal receipt Ex. AW1/21, AD card Ex. AW1/22, postal receipt Ex. AW1/23, notice dated 03.11.98 Ex. AW1/24, postal receipt Ex. AW1/25, UPC is Ex. AW1/26, notice dated 21.12.98 Ex. AW1/27, postal receipt Ex. AW1/28, AD is Ex. AW1/29, registered AD envelope of the earlier notice Ex. AW1/30, postal receipt Ex. AW1/31 and UPC is Ex. AW 1/32, site plan Ex. AW1/33.
6. On the other hand respondent has examined himself as RW1 and his evidence by way of affidavit Ex. R1, one Sh. Pushpender @ Pappu, grandson of respondent has examined as RW2 and his evidence by way of affidavit is Ex. R2.
7. The documents exhibited are the photographs Ex. DW1/1 and DW 1/2, the receipt of the money orders are Ex. DW1/3 to DW1/6, the postal reports received back are Ex. DW1/7 to DW1/13, postal receipts of the refusal of the cheque Ex. DW1/14 and DW1/15 and AD cards are Ex. DW 1/16 and DW1/17, the challan dated 17.05.1997 Ex. DW1/18, challan of deposited the rent in the court of Sh. N.P.Kaushik, Ld. ARC Ex. DW1/19, pay order for Rs. 1046.50/ Ex. DW1/20 and the reply to the notice is Ex. DW 1/21 and the postal receipts are Ex. DW1/22 and DW1/23 and AD card Ex. E243/07 Page 5 of 21
//6// DW1/24.
8. Arguments heard from both the Ld. Counsel and gone through the entire record carefully.
9. Ld. Counsel for petitioners relied upon the following rulings :
(i) Phalwant Singh Vs. Jai Narayan, 1980 RLR 558.
(ii) Hazari Lal Vs. Birla Cotton Spg & Wvg. Mill, 1976 RLR 402.
(iii) Gopi Chand Vs. Jain Plastic, 2002, RLR 385 (SC).
(iv) R.C.Madan Vs. Atma Devi, 30 (1986) DLT 386. (v) Sarla Goel Vs. Kishan Chand, 2009 RLR 369. (vi) Traders Syndicate Vs. Union of India, AIR 1983 Cal. 337. (vii) Ganpat Ram Khosla Vs. Kishen Lal and anr., Vol. LX1958 PLR 349.
(viii) Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif, AIR 1968 SC 1413.
(ix) Rajesh Kumar Aggarwal Vs. Pavneet Singh, 153 (2008) DLT 121.
(x) Manjit Kaur Vs. Durga Builder Pvt. Ltd. & Anr., 155 (2008) DLT 240.
(xi) Shamim Siddiqui (Mohd.) Vs. Gurdayal Wadhwa, 2009 III AD(Del) 181.
(xii) United Technical Consultants Pvt. Ltd. (M/s) Vs. Smt. Shanti Devi & Ors. 2006 VIII AD (D) 778,
(xiii) Vaishakhi Ram & Ors. Vs. Sanjeev Kumar Bhatiani, AIR 2008 SC 585.
(xiv) Joginder Singh Sodhi Vs. Amar Kaur, (2005) 1 SCC 31. E243/07 Page 6 of 21
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(xv) Mange Ram (deceased) through LRs & Ors. Vs. Chhuttan Lal (deceased) through LRs, 81 (1999) DLT 589.
Grounds u/s 14 (1) (a) of DRC Act reads as under :
10. The ingredients required to be proved for the ground u/s 14 (1) (a) of DRC Act are :
(i) Existence of relationship of landlord and tenant between the parties;
(ii) Existence of arrears of rent, legally recoverable rent from the date of notice of demand;
(iii) Service of notice of demand in the manner as provided in section 106 of the Transfer of Property Act ;
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
(i) Existence of relationship of landlord and tenant between the parties;
The respondent has not disputed the relationship of landlord and tenant between the parties. It is admitted case of the petitioner that petitioner are landlords and respondent is tenant qua the suit premises. Hence this ingredient is decided in favour of the petitioners and against the respondent. E243/07 Page 7 of 21
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(ii) Existence of arrears of rent, legally recoverable rent from the date of notice of demand;
AW1 has deposed that the respondent has paid the rent upto March, 1994 and thereafter from April, 1994 he stopped paying the rent. AW1 further deposed that his son sent a notice dated 03.02.95 to the respondent Ex. AW 1/6 and the UPC and the registered AD cover Ex. AW1/7 and AW1/8 respectively. The notice Ex. AW1/6 was duly received by the respondent which was sent under UPC as the notice was sent at the correct address of the respondent. The notice which was sent under registered AD cover returned back with the report of refusal. AW1 further deposed that despite the service of notice dated 03.02.95 Ex. AW1/6, the respondent has neither paid any rent nor tendered the enhance rent. AW1 further deposed that when the registered AD cover Ex. AW1/8 was tendered to the respondent by the postman and he (AW1) was present in the shop and the report of the postman at point marked A in Ex. AW1/8 was written in his presence. AW1 further deposed that another notice dated 15.04.95 Ex. AW1/9 was sent by his counsel Sh. V.R.Vadhani, advocate. Again notice dated 08.05.95 Ex. AW1/10 was sent to the respondent under UPC receipt Ex. AW1/11. Another notice dated 17.08.96 Ex. AW1/12 was sent and duly served upon the respondent. The respondent had sent a reply Ex. AW1/13 to said notice E243/07 Page 8 of 21 //9// but no amount was sent. However, earlier to that reply he received a cheque of Rs. 2,516 dated 23.09.96 but the same was returned as the mode of payment of rent was always in cash and not in cheque. After the returning of the cheque Ex. AW1/14 the respondent neither paid nor tendered the arrears of rent. The petitioner again sent a notice dated 27.09.98 Ex. AW1/17. Another notice dated 05.11.96 Ex. AW1/20 was sent by the son of the petitioner which was received by the respondent on 07.11.1996. AW1 further sent a notice Ex. AW1/24 under registered AD and UPC. The notice dated 03.11.98 Ex. AW1/24 was also sent earlier on 27.09.98 but same returned unserved but the notice which sent under UPC was received by the respondent. The respondent has sent a reply to the notice dated 27.09.98 through his counsel. The petitioners sent a rejoinder dated 21.12.98 to the reply of the respondent through his counsel, the same is Ex. AW1/27. AW1 further deposed that he had sent earlier a notice to the respondent Ex. AW 1/30. AW1 was not cross examined by the respondent despite opportunities were given.
RW1, the respondent deposed that he had requested the petitioner to accept the rent but petitioner refused to accept the rent. He had sent the rent to the petitioners by way of money orders. The receipt of money order Ex. DW1/3 to DW1/6 and postal reports received back Ex. DW1/7 to DW1/13. E243/07 Page 9 of 21
//10// The money order were returned back by the postal authorities with the refusal report. RW1 further deposed that he received a notice dated 17.08.96 and tendered the rent in cash to the petitioners but the petitioner avoided to accept the rent. RW1 further deposed that he sent a reply alongwith cheque to the petitioner but the petitioner refused the same. The postal receipts of sending the cheque Ex. DW1/14 and DW1/15 and AD cards Ex. DW1/16 and DW1/17. RW1 further deposed that he deposited the rent from March, 1994 to April, 1997 amounting to Rs. 2,470/ in the court of Sh. Dilbagh Singh, the then ARC in DR petition no. 54/97. The challan dated 17.05.97 Ex. DW1/18. RW1 further deposed that he deposited the rent from May, 1997 to July, 1997 in the court of Sh. N.P.Kaushik, the then ARC, Delhi vide challan dated 09.09.97 on 10.09.97 Ex. DW1/19. RW1 further deposed that he never received the notice dated 03.02.95 from the petitioners. There are number of shops in the premises but there is no number on any shop. No notice dated 15.04.95 was served upon him and he requested the petitioner to accept the rent but the petitioners refused. RW1 further deposed that he received the notice datd 03.11.98 and also sent a reply dated 23.11.98. He had also sent a pay order for Rs. 1,046.50/. RW1 further deposed that he enhanced the rent after the receipt of notice dated 03.11.98 and tendered the rent in cash from August, 1997 to October, 1998 @ Rs. 65/ per month and E243/07 Page 10 of 21 //11// from November, 1998 @ Rs. 71.50/ per month but the petitioners have refused.
AW1, the petitioner no. 2, categorically deposed that he had sent a notice Ex. AW1/6 to the respondent to increase the rent at the rate of 10% which was duly served upon the respondent as the same was sent to the correct address of the respondent. The petitioner has also proved Ex. AW1/7 and Ex. AW1/8 which are postal and UPC receipts regarding sending the notice Ex. AW1/6. The respondent failed to cross examine AW1 despite opportunities were given, therefore, his deposition regarding service of notices goes unrebutted and it is proved that the notice Ex. AW1/6 was duly served upon the respondent. The deposition of RW1 that notice Ex. AW1/6 was not served has no substance because Ex. AW1/6 was sent at correct address of the respondent and there is presumption of service u/s 27 in General Clauses Act that if notice sent at correct address under UPC and same not returned to sender then it amounts to service. Not only this, even the perusal of registered AD cover Ex. AW1/8 reveals that the postman visited the suit premises many times but the receiver refused to accept the same and AW1 (petitioner) has deposed in his evidence that he had seen the postman visiting the suit premises and writing his report. The petitioner has not been cross examined. The petitioner has increased the then existing E243/07 Page 11 of 21 //12// rent i.e Rs. 65/ per month by 10% and as the notice was served upon the respondent, therefore the rent of the suit premises increased by 10% from April, 1995 and become Rs. 71.50/ per month from April, 1995. However, the respondent had deposited the arrears of rent amounting to Rs. 2,470/ from March, 1994 to April, 1997 in the court of Sh. Dilbagh Singh, the then Ld. ARC and from May, 1997 to July, 1997 amount to Rs. 195/ @ Rs. 65/ per month in the court of Sh. N.S.Kaushik, the then Ld. ARC. As discussed above the rent was already increased from Rs. 65/ to Rs. 71.50/ from April, 1995 thus the respondent has not deposited the entire arrears of rent upto July, 1997. Thereafter the respondent has sent a draft for Rs. 1046.50/ for the arrears of rent from August, 1997 to November, 1998. However, the rent for the period from August, 1997 to November, 1998 comes to Rs. 1,144/ @ Rs 71.50/ per month. This again shows that the respondent has not deposited the entire rent. Hence when the legal demand notice dated 03.11.98 Ex. AW 1/24 was issued, the arrears of legally recoverable rent was in existence. Hence this issue is decided in favour of the petitioner and against the respondent. It is important to mention here that the petitioners again increased the rent @ 10% after three years by their notice dated 03.11.98 Ex. AW1/24 and same was admittedly served, therefore, the rent from January, 99 become Rs. 78.65/ and the respondent is liable to pay rent @ E243/07 Page 12 of 21 //13// Rs. 78.65/ per month from January, 99.
(iii) Service of notice of demand in the manner as provided in section 106 of the Transfer of Property Act ;
The respondent has not disputed the service of legal demand notice Ex. AW1/24. The respondent has also sent reply to the legal demand notice. Hence this ingredient is decided in favour of the petitioners and against the respondent.
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
After the service of legal demand notice dated 03.11.98 Ex. AW1/24, the respondent has sent a pay order for Rs. 1,046.50 as arrears of rent from August,1997 to October, 1998 @ Rs. 65/ per month and for November, 1998 @ Rs. 71.50/ per month. However, as discussed above in the ingredient no. 2 the rent was increased from Rs. 65/ to Rs. 71.50/ per month from April, 1995 and the respondent had not deposited the entire arrears of rent upto July, 1997. The petitioner has demanded the arrears of rent in the legal notice dated 03.11.98 Ex. AW1/24 from March, 1995 @ Rs. 65/ per month and from May, 1995 till 30.09.98 @ Rs. 71.50/ per month and also enhanced the E243/07 Page 13 of 21 //14// rent 10% from December, 1998. The petitioner had also demanded the interest on the arrears of rent. However, the respondent only send a draft of Rs. 1046.50/ to the petitioner. The said draft was refused by the petitioner but the respondent did not deposit the arrears of rent in the court u/s 27 of DRC Act. The respondent even failed to pay the interest as demanded in the legal demand notice Ex. AW1/24 Thus it is proved that the respondent had not paid the entire legally recoverable rent within two months from the date of service of the notice dated 03.11.1998 Ex. AW1/24. Hence this ingredient is decided in favour of the petitioner and against the respondent.
11. In view of the above discussions as all the ingredients are decided in favour of the petitioners and against the respondent, therefore, the petition in respect of section 14 (1) (a) of DRC Act is allowed.
12. Perusal of records reveals that an order u/s 15 (1) of DRC Act was passed on 26.10.99 directing the respondent to pay or deposit the arrears of rent @ Rs. 71.50/ w.e.f January, 1996 till October,1998 and rent @ Rs. 78.65/ for November,1998 within one month from date of said order and future rent @ Rs. 78.65/ per month by the 15th of each succeeding month. However, the said order was modified by order dated 08.02.2000 and it was ordered on 08.02.2000 that the respondent should pay the rent @ Rs. 65/ per month till October, 1998 and thereafter future rent @ Rs. 71.50/ per E243/07 Page 14 of 21 //15// month by the 15th day of each succeeding month. As discussed above, it is proved that the rent of the suit premises was increased by 10% from Rs. 65/ to 71.50/ from April, 1995, thereafter again the rent was increased after three years by legal notice Ex. AW1/24 from Rs. 71.50/ to Rs. 78.65/ from January, 1999. Therefore the order passed u/s 15 (1) of DRC Act on 08.02.200 is required to be modified. Accordingly, the respondent is directed to pay or deposit the arrears of rent @ Rs. 71.50/ from February, 1996 to December, 1998, legally recoverable rent for three years from filing of the present petition, alongwith interest @ 15% per annum after adjusting the rent which have been deposited in compliance of order dated 08.02.2000 as well as the rent which was deposited in the court of Sh. Dilbagh Singh, the then Ld. ARC and in the court of Sh. N.P.Kaushik, the then Ld. ARC vide challan dated 17.05.97 and 09.09.97. The respondent further directed to deposit the rent from January, 1999 to till date @ Rs. 78.65/ per month after adjusting the rent which have been deposited in compliance of order dated 08.02.2000. The respondent is further directed to deposit all the arrears of rent within 30 days from today.
13. Grounds u/s 14 (1) (b) of DRC Act AW1 deposed that when the property in question was let out to the respondent it was agreed that the respondent shall not sublet, assigned or E243/07 Page 15 of 21 //16// parted with the shop in question. The site plan is correct. The portion mark B shown in red color in the site plan Ex. AW1/23 was let out to the respondent, the plan was got prepared from the Architect Sh. S.Kumar and he identified his signature. AW1 further deposed that the respondent had also sublet, assigned and parted with the possession of the suit premises to one Sh. Pappu without their consent. AW1 further deposed that he was also having a shop which was adjoining to the shop of the respondent and Sh. Pappu is closing and opening the shop in question. The respondent was also charging rent from Pappu and he had seen Pappu paying the rent to the respondent.
14. AW2, Sh. Hiralal, deposed that he had seen the premises of the petitioner. He used to go to the property of the petitioner for the purpose of stationery and also used to go to the adjoining shop. Earlier the shop no. 53 B, Old Rajender Nagar was in possession of Sambhu Dayal, respondent who was running the business of shoe repair in the said shop. AW2 further deposed that he got repair foot wear and shoes from the respondent. AW2 further deposed that Sambhu Dayal had already left the shop in question and not in possession for the last 34 years. The said shop was in exclusive possession of Sh. Pappu who was running his business in the shop for the last 34 years. AW2 deposed in his cross examination that he had seen the premises in question, it had six shops. One was retained by the petitioner for E243/07 Page 16 of 21 //17// his own use. Other shops had been rented out to different persons. AW2 further deposed that Pappu was cobbler and doing the business in the shop of the Sambhu Dayal but he did not know what was the relationship between Pappu and Sambhu Dayal. AW2 further deposed that he did not know whether Pappu was son or grandson of the respondent, again said might be tenant or subtenant. AW2 further deposed that he had not seen Sambhu Dayal doing the work of cobbler in the said shop but Sambhu Dayal might be visited the shop in his absence. AW2 further deposed that he did not know that Pappu was helping Sambhu Dayal in carrying on his business because of his age and health. He had not seen Pappu giving the rent to Sambhu Dayal. AW2 further deposed that he did not know that Sambhu Dayal was in exclusive possession of the shop in question and carrying the business there. AW2 further deposed that he had seen Sambhu Dayal doing the business for the last ten years in the shop in question.
15. RW1 deposed that AW2, Sh. Hira Lal and Sh. C.M.Wason are friends. Sh. Hiral Lal used to sit at the shop of petitioner for hours and they were residing in the same vicinity for the last several years. Late Sh. C.R.Wason and father of Sh. Hira Lal were good friends. RW1 further deposed that it was never agreed that he could not sublet the shop, however he had never sublet the shop in question to anyone. Sh. Pappu @ E243/07 Page 17 of 21 //18// Pushpendra s/o Sh. Tulsi Dass is his grandson who was assisting him to run his business of cobbler and shoes. The parents of Pappu @ Pushpendra expired and at that time he was residing with him. RW1 further deposed that he had never sublet, assigned or parted with the possession of the suit shop to Pappu and he had never taken any rent from him. RW1 deposed in his cross examination that no talks had been made between him and C.R.Wason that he had not authorized to sublet the suit premises. RW1 was confronted with the para12 of his affidavit from mark A to A1 and he admitted that this portion had been wrongly written in his affidavit. RW1 denied that Pappu was in exclusive possession and he was running his own business in the suit premises. RW1 denied that he was charging rent from Pappu in respect of suit premises. RW1 further deposed that he had no shop at Mathura but his son who expired was having a shop at Mathura. The said shop was belonging to a mandir at Mathura and his son was tenant in said shop. He had not filed the rent receipt of the said shop at Mathura. RW1 admitted that a shop in Mathura was in possession of the legal heirs of his son. RW1 further deposed that he had letters, apart from registration certificate that he was doing the business in the suit shop. RW1 further deposed that Pappu and Pushpendra are the same person and Pushpendra is also called as Pappu. Pushpendra shifted to Delhi about 1520 years ago but not permanently E243/07 Page 18 of 21 //19// residing at Delhi for the last about 20 years. Pushpendra resided at Delhi when respondent was not well.
16. AW1, the petitioner, has not deposed when the respondent has sublet the suit premises to Pushpendra @ Pappu. AW1 merely deposed that respondent has sublet, assigned or parted with the possession of the suit premises to Pappu. RW2 deposed in his cross examination that he was not aware whether the respondent was in exclusive possession of the shop in question and carrying his business in the shop. AW2 further deposed that he was not aware whether Pappu is grandson of respondent and the respondent might be visiting the shop in his (RW2) absence. AW2 further deposed that he did not know that the Pappu helped the respondent in carrying on his business because of his age and health. AW2 further deposed that he met Pappu twice or thrice in the last 4 or 5 years. AW2 further deposed that he never tried to find out the relationship between Pappu and respondent. AW2 further deposed that he had seen the respondent doing the business for the 10 years in the shop in question but he had no personal knowledge of the respondent and what business had been carrying out by the respondent. After considering the above depositions of AW1 and AW2 I am of the considered view that the petitioners failed to establish that Pushpendra @ Pappu was/is in exclusive possession of the shop in question. It is well settled E243/07 Page 19 of 21 //20// law that the burden to prove subletting is upon the landlord and when the landlord proves the exclusive possession of a third person only then the burden shifts upon the tenant to prove that the third person is not a sub tenant. In the case in hand the petitioners failed to prove the exclusive possession of Pappu in the suit premises. Subletting means transfer of exclusive rights to enjoy the property by the tenant in favour of third party and the said right must be in lieu of payment of some compensation or rent. Possession of third party alone does not establish subletting unless the exclusive possession coupled with the payment of some consideration is established. A tenant who retains the legal possession of the tenanted premises with him cannot be said to have sublet, assigned or parted with the possession of the premises. The inference of subletting can be drawn by presence of third person in the premises, but merely from the fact of presence of an outsider the Court cannot assume subtenancy. The subtenancy must be coupled with the exclusive possession to the exclusion of the tenant itself, if this fact is not there then it does not amounts to subletting. If a person is sitting in a shop on behalf of a tenant and doing the business of a tenant then he is not a sub tenant. In the case in hand the petitioner failed to prove that the respondent is not in exclusive possession of the suit premises or the subtenant is in exclusive possession of the suit premises to the exclusion of E243/07 Page 20 of 21 //21// the respondent. The respondent is an old man and his grandson is merely assisting him in the business of the respondent, therefore, it does not amounts to subletting. The rulings relied upon by the Ld. counsel for the petitioner are not applicable to the facts of the present case.
17. In view of the above discussions, I am of the considered view that the petitioners failed to prove the ingredients of section 14 (1) (b) of DRC Act and as such the petition u/s 14 (1) (b) of DRC Act is dismissed and petition u/s 14 (1) (a) of DRC Act is allowed.
File be consigned to record room.
(Announced in the open court
on 28.11.2011) (Pritam Singh)
ARC/Central/Delhi
E243/07 Page 21 of 21