Delhi District Court
Smt. Usha Chauhan vs Sh. Harnam Dass Luthra on 22 December, 2020
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER-02 (CENTRAL), TIS HAZARI
COURTS, DELHI.
E-244/14/09
ARC No: 80310/2016
Smt. Usha Chauhan
W/o Shri Ashok Kumar Chauhan,
R/o House No. 29/9, Shakti Nagar,
Delhi. ......Petitioner
VERSUS
Sh. Harnam Dass Luthra
(Now deceased through his legal heirs)
Smt. Shakuntala Devi - Widow
Mr. Kanwal Nain - Son
Mr. Har Prakash - Son
Ms. Suman - Daughter
All residents of
15/62, Subhash Nagar,
New Delhi - 110 027 .........Respondent
Date of Institution : 02.12.2009
Date of Judgment : 22.12.2020
JUDGMENT
1. Brief facts of the present case are that on 02.12.2009, the pe- titioner filed the present petition Under Section 14 (1) (a) & (b) of the Delhi Rent control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an order for eviction in favour of the peti- tioner and against the respondent in respect of the Shop No. 29/9, Ground Floor, Shakti Nagar, Delhi - 1100 07 as shown red in the site plan. AJAY Digitally signed by AJAY NAGAR Date: NAGAR 2020.12.22 17:00:05 +0530 ARC No. 80310/16 Ms. Usha Chauhan Vs Sh. Harnam Dass Luthra Page 1 of 14
2. It is averred by the petitioner that the respondent is the tenant at a monthly rent of Rs.96.80/- p.m. and has neither paid nor ten- dered the agreed rent since 01.08.2003.
3. The petitioner got served a legal notice dated 18.08.2009 upon the respondent thereby demanding the arrears of rent w. e. f. 01.08.2003 within the statutory period of two months from the date of the receipt of the said notice. However, the respondent has sent a vague, frivolous and vexatious reply dated 17.09.2003 in response to the legal notice dated 18.08.2009 sent on behalf of the petitioner. The respondent has failed to clear the arrears of rent w. e. f. 01.08.2003 within the stipulated period, in terms of the legal notice dated 18.08.2009. That the respondent has sub-let the Shop in question to one Shri Kapil Luthra S/o Shri Veer Bhan @ Rs.5500/- p.m. without the knowledge, consent or permission of the petitioner. Moreover, the sub letee namely Shri Kapil Luthra is using a shop in question as Godown and has taken exclusive possession of the shop in question. It is prayed that appropriate orders may be passed for eviction of the Respondent from the Shop No. 29/9, Ground Floor, Shakti Nagar, Delhi - 1100 07 shown red in the light of the facts and circumstances explained.
4. Written Statement was filed by the respondents in response to petition filed by the petitioner U/S 14 (1)(a) of D.R.C Act, praying to the court to dismiss the present petition with exemplary costs.
5. In the written statement, the respondent has inter-alia submit- ted that the present petition is not maintainable on the ground that the answering respondent is running a partnership business of cycle works from Shop bearing No. 29/5, Shakti Nagar, Delhi which is adja- cent to the shop under reference. Since the very beginning the said Digitally signed by AJAY NAGAR AJAY Date:
NAGAR 2020.12.22 17:00:16 ARC No. 80310/16 Ms. Usha Chauhan Vs Sh. Harnam Dass Luthra Page 2 of 14 +0530 shop is being used as a godown for storing spare parts, cycle etc. and the said fact is well within the knowledge of the petitioner.
6. It is submitted by the respondent that the previous owner of the tenanted premises was one Sh. Ram Avtar who used to collect the rent from the respondent and later on the petitioner herein had purchased the shop from him and had accepted the rent from the an- swering respondent.
7. It is denied by the respondent that the answering respondent has sublet the shop in question to Sh. Kapil Luthra, S/o Sh. Virbhan @ Rs.5500/- p.m. It is also denied that the alleged sub-lettee Sh. Kapil Luthra is using the shop in question as a godown and has taken exclusive possession of the same.
8. It is further submitted that Sh. Virbhan is the nephew of the an- swering Respondent and Sh. Kapil Luthra is the son of Sh. Virbhan and at no point of time, the shop in question was ever sublet or as- signed to Sh. Kapil Luthra. The answering respondent is running a cycle works shop from Shop No. 29/5, Shakti Nagar, Delhi-07 and the shop in dispute is being used by the Respondent as godown. Sh. Kapil Luthra is only helping the answering respondent in his family business and no rent as alleged is being received by the answering respondent from Sh. Kapil Luthra. It is further submitted that the peti- tioner deliberately chose to refuse the monthly rent for the reasons best known to her. It is further submitted that the respondent was forced to deposit the rent in Court and as submitted above, rent upto November 2009 is lying deposited in the Court of Sh. Deepak Garg, Rent Controller, Delhi and Sh. Mukesh Kumar Gupta, Rent Controller, Delhi. Digitally signed by AJAY NAGAR AJAY Date:
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9. Thereafter, the petitioner examined three witnesses i.e. the pe- titioner herself as PW1, Sh. Vikas PW2 and Sh. Abhishek Sharma. PW-1 tendered her evidence by way of affidavit and relied upon the documents. PWs were cross examined by the Ld. Counsel for re- spondent. Thereafter, PE was closed.
10. The respondent has also led evidence by examining three wit- nesses i.e. RW1, RW2 and RW3, who were cross examined at length. Thereafter, RE was closed by the respondent.
11. I have heard the arguments advanced. I have also carefully gone through the testimonies of the witnesses, documents and case law relied upon and material on record.
12. It is pertinent to mention here that the present petition was filed u/s 14 (1) (a) and (b) of DRC Act which was decided by the Ld. Predecessor of this court allowing the petition u/s 14 (1) (a) and dis- missing u/s 14 (1) (b) of DRC Act. Thereafter, the appeal was filed by the petitioner before the Ld. RCT against dismissal u/s 14 (1) (b) of DRC Act and Ld. RCT allowed leading of additional evidence by both the parties and this court was directed to give fresh findings on 14 (1)
(b) of DRC Act.
SEC. 14(1) (b) D.R.C. ACT:-
13. It is expedient to reproduce the Section 14 (1)(b) of DRC Act which is as under:
"Section-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 Digitally recovery of possession of any premises shall be made signed by by court or any controller in favour of the landlord AJAY against a tenant: AJAY NAGAR Provided that the controller may, on an application NAGAR Date:
2020.12.22 made to him in the prescribed manner, make an order 17:00:39 +0530 ARC No. 80310/16 Ms. Usha Chauhan Vs Sh. Harnam Dass Luthra Page 4 of 14 for recovery of possession of the premises on one or more of the following grounds only, namely:-
(b) That the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord".
14. As per Delhi Rent Control Act, Section 14 (1)(b) D.R.C. Act is one of the grounds entitling landlord to get the order of eviction against the tenant. It is well settled that subletting is not absolutely prohibited by the law or by the Delhi Rent Control Act but the subletting should be with the consent of landlord and such consent should be in writing. Section 14 (1)(b) clearly lays down that eviction may take place even when the tenant has parted with the possession of whole or part of the premises. In view of provision of law, the landlord is required to prove following essential conditions:-
(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
(ii). No consent in writing was taken from the landlord by the tenant.
15. It is well settled that exclusive possession means the possession to the exclusion of others and it includes not only the physical possession but also the legal possession. It is also clear that parting with possession means giving possession to persons other than those to whom possession was assigned by the lessee and parting with possession must have been by the tenant.
16. It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession Digitally signed by himself. Subletting takes place only when there is divesting of AJAY AJAY NAGAR NAGAR Date:
2020.12.22 17:00:46 +0530 ARC No. 80310/16 Ms. Usha Chauhan Vs Sh. Harnam Dass Luthra Page 5 of 14 physical possession as well as of the right to possession. In other words, there must be vesting of possession by the tenant in other person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant keeps the control with him, it can not be said that sub-tenant is in exclusive possession of premises and in such situation the case does not fall within Section 14 (1)(b) D.R.C. Act.
17. The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
18. In the case titled as Vaishakhi Ram & Others Vs Sanjeev Kumar Bhatiani 2008, 14 SCC, it was held as under:-
"21. It is well settled that the burden of proving subletting is on the landlord but if the landlord proves that the subtenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of subletting."
19. It is well settled that initial burden to prove that sub-tenant is in exclusive possession of the suit property is on the owner. However, the onus to prove the exclusive possession of the subtenant is that of preponderance of probability only and he has to prove the same prima- facie only and if he succeeds then the burden to rebut the same lies on the tenant.
20. In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for Digitally the court to raise an inference that such possession was for signed by AJAY AJAY NAGAR monetary consideration. NAGAR Date:
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21. In the case titled as Prem Parkash Vs. Santosh Kumar Jain & Sons and another, 2017, law suit (SC) 872, the relevant para is as under:-
"18. sub-tenancy or subletting comes into existence when the tenant gives a 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. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet, had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sublease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to have been paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the fact of the case."
22. In the case titled as Munshi Ram Vs Bhoj Ram through LRs in C.M. (M) No.1612/2010 and C.M. No.8004/2005, wherein it was observed as under:-
"It is well settled that to make out a case for subletting or parting with possession, it means giving a possession to persons other than those to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant. The word 'subletting' necessarily means transfer of an exclusive right to enjoy the property in favour of the third party." Digitally signed by AJAY AJAY NAGAR Date:
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23. In the case titled as Shalimar Tar Products Ltd. Vs H.C. Sharma, 1988, 1 (SCC) 70, the Hon'ble Apex Court noted that to constitute a subletting, there must be a parting with a legal possession and whether in a particular case, there was subletting or not, was a question of fact.
24. It is well settled that to establish the aforesaid ingredients, the landlord must establish that tenant had completely divested himself of the suit premises and parted with possession of the suit premises of the whole or part of the premises to the sub-tenants and this should be substantiated by the evidence.
25. In the case titled as Praveen Saini Vs Reetu Kapur & Anr. 246 (2018) DLT 709, the Hon'ble High Court of Delhi inter-alia observed as under:-
"On the aspect of admissions being binding, this Court would like to straightaway refer to the judgment of the Supreme Court in the case of Nagindas Ramdas Vs Dalpatram Ichharam alias Brijram & Others, 1973 (SLT Soft) 15 (1974) 1 SCC 242, because in this judgment the Supreme Court has laid down the ratio that evidentiary admissions are different than judicial admissions.
Supreme Court has held that admissions which are made in judicial proceedings are on a higher pedestal than evidentiary admissions made in the form of correspondence etc and that judicial admissions can be a basis in themselves for deciding the claim. The relevant para 27 of the judgment in the case of Nagindas Ramdas (supra) read as under:-
"27. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the court, on the basis of which the court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in Digitally the shape of an express or implied admission made in signed by the compromise agreement itself. Admissions if true and AJAY AJAY NAGAR clear are by far the best proof of the facts admitted. NAGAR Date:
Admissions in pleadings or judicial admission admissible 2020.12.22 17:01:28 +0530 ARC No. 80310/16 Ms. Usha Chauhan Vs Sh. Harnam Dass Luthra Page 8 of 14 under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rivalas evidence are by themselves not conclusive. They can be shown to be wrong."
26. In the case titled as Sukhpal Singh & Anr. Vs Satbir Singh & Anr. 296 Capital Law Judgment 2012 (4), the Hon'ble Delhi High Court inter-alia observed as under:-
"4. It is important to note that the onus of proving sub- tenancy lies on the landlord. 0The Supreme Court in "Jagan Nath Vs Chander Bhdn, AIR 1988SC 1362", enunciated the principles whereby once the landlord has proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts upon the tenant."
27. In the case titled as Padam Chand Jain Vs Messrs Mahabir Pershad & Sons and another, S.A.O. No.464 of 1968, the Hon'ble Delhi High Court inter-alia observed as under:-
"It is now settled by the decision of a Full Bench of this Court in Kedar Nath and another Vs Smt. Mohini Devi, etc. that the initial burden lies upon the landlord to establish that any of the con--ditions mentioned in the clauses (a) to (e) of the proviso exists (vide at page 170-I of the report)."
28. In case bearing C.M. (Main) No.172 of 2010 & C.M. Appl. Nos.2248-2249 of 2010 in case titled as M/s Udhey Bhan Ashok Kumar & Co. & Ors. vs. Neelam Kumari February 24, 2010; it was observed that :-
"4. Learned counsel for the petitioners has argued that mere change of the constitution of firm from partnership to pro- prietorship would not amount to sub-tenancy. I consider that this argument is not tenable. A partnership firm is not a legal entity. It is a conglomeration of partners. A tenancy in the name of partnership firm is a joint tenancy of the partners. If none of Digitally signed by the partners in whose favour the tenancy was created is in pos- AJAY session of the shop and another person, who was later on in- AJAY NAGAR ducted as a partner and then becomes sole proprietor of the NAGAR Date:
2020.12.22 17:01:35 +0530 ARC No. 80310/16 Ms. Usha Chauhan Vs Sh. Harnam Dass Luthra Page 9 of 14 firm is in possession of the tenanted premises then it is a clear cut case of sub-letting and parting with possession through the device of first inducting a stranger as a partner and then dis- solving the partnership firm and handing over the premises to him. It makes no difference that he continues the business in the same name or that he was related to an erstwhile partner. I find no force in this petition. The petition is hereby dismissed."
29. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the testimonies of the witnesses from both the sides and also all the relevant documents filed on record and I have also heard the arguments advanced and I have also gone through carefully the case law relied upon and written submissions and material on record.
30. Lets discuss the 1st ingredient:-(i).
The tenant sub-let, assigned or parted with the possession of the whole or part of the premises. i.e. the sub tenant was in exclusive possession of property or part of the property.
31. Perusal of record shows that the present case, the claim of petitioner is that the respondent has sub-let the tenanted premises to Sh. Kapil Luthra S/o Sh. Vir Bhan @ Rs. 5500/- per month without the consent of petitioner and the sublettee is using the tenanted premises as godown and has taken exclusive possession of tenanted premises.
32. On the other hand, in the written statement of the claim of respondent is that respondent is running a partnership business of cycle work from shop no. 29/5, Shakti Nagar, Delhi which is adjacent to the tenanted premises i.e. 29/9, Shakti Nagar, Delhi. It is further claimed by the respondent is that since very beginning the tenanted Digitally signed by AJAY AJAY NAGAR Date:
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premises is being used as godown or for storing spare parts, cycle etc.
33. It is also claimed by the respondent is that Sh. Vir Bhan is nephew of respondent and Sh. Kapil Luthra is the son of Sh. Vir Bhan and tenanted premises was never sublet to Sh. Kapil Luthra and Sh. Kapil Luthra is only helping the respondent in the family business and no rent is being receipt from Sh. Kapil Luthra.
34. I have carefully perused the pleadings, documents relied upon, testimonies of all the witnesses, written submissions, case relied upon and material on record.
35. Perusal of reply dt. 17.09.2009 to legal notice shows that respondent has inter alia claimed that "Sh. Kapil Luthra is the nephew of my client and he is helping my client in the family business and my family is very much in possession of the shop as a lawful tenant."
36. As such, the respondent has admitted in reply to legal notice, the presence of Sh. Kapil Luthra at the tenanted premises but has claimed that he is merely helping the respondent and respondent is in possession of tenanted premises.
37. But perusal of testimony of RW1 / respondent shows that he has inter alia deposed "no partnership deed was executed with Veer Bhan Luthra and Sh. Kapil Luthra, it is all oral. I do not keep any account of the partnership. All in all is Sh. Veer Bhan. The partnership is since 1975. We pay the income tax of the shop. I do not have any record of income tax i.e. income tax order, filing of Income Tax Returns or any other document. It is wrong to suggest Digitally signed by AJAY NAGAR AJAY Date:
NAGAR 2020.12.22 17:01:49 +0530 ARC No. 80310/16 Ms. Usha Chauhan Vs Sh. Harnam Dass Luthra Page 11 of 14 that I pay an Income tax. I have got only personal bank account and have no bank account in the name of the shop all partnership."
38. As such, perusal of testimony of RW1 / respondent manifestly shows that he has claimed that partnership business was being carried on with other persons but this fact was not disclosed in the reply to legal notice. It was claimed in written statement and reply to legal notice that family business was carried out.
39. As such, the respondent clearly changed his stand in the testimony although respondent has claimed that he himself is running and managing the shop alongwith his nephew but perusal of record shows that he has been unable to prove this fact as no reliable cogent and convincing documentary or oral evidence has been placed on record by the respondent. It is well settled law that petitioner / landlord has to prove his case prima facie only and thereafter it is the duty of the respondent / tenant to explain the presence of third party at the tenanted premises but in the present case the respondent has failed to prove this fact.
40. Moreover, during the cross-examination, RW2, Sh. Kapil Luthra has deposed that "I conduct the business in the name of Luthra Cycle Stores from the disputed premises. I do not have any other shop or any other business. I am an Income tax payee but I have not filed any paper with regard to the same. My firm is registered as Luthra Cycle Store with the registering authorities but I have not filed any document of the same. I deposit the rent of the suit shop in the bank through my grandfather Sh. Deshraj Luthra (Dadaji). I have not brought any record of the deposit of rent with the bank.". Digitally signed by AJAY AJAY NAGAR NAGAR Date:
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41. As such, the testimony of RW2 Sh. Kapil Luthra clearly shows that he has admitted that he is running the business in the tenanted premises and he does not have any other shop or other business. Moreover, during the cross-examination, RW2 has not claimed that he deposited the rent of tenanted premises on behalf of respondent.
42. Perusal of entire testimony of witnesses and material on record shows that respondent or his LR's are neither in physical possession nor in legal possession of the tenanted premises.
43. Perusal of additional evidence shows that some documents PW3/1 (colly) etc have been placed on record by the petitioner. Perusal of such record shows no name of the respondent or his LRs exists on this record and some people other than respondent and his LRs are in legal as well as physical possession of the tenanted premises.
44. As such, in view of exhaustive discussion as earlier, this ingredient u/s 14 (1) (b) is satisfied.
(ii). No consent in writing was taken from the landlord by the tenant.
45. Perusal of record shows that in the present petition, the respondent has not claimed in his written statement that the consent in writing was taken from the petitioner. Moreover, in the Written Statement, the respondent has stated that he has not sublet the tenanted premises.
46. As discussed earlier in the first ingredient, the subletting is proved. Moreover, this is not the case where the respondent has Digitally signed by AJAY NAGAR AJAY Date:
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claimed that consent in writting was taken from the petitioner. Hence, this ingredient is also satisfied.
CONCLUSION:-
47. In view of the discussions, the petitioner has been able to prove all the ingredients of Sec. 14(1)(b) of D.R.C. Act against the respondent. As such, an eviction order is passed in favour of petitioner and against the respondent in respect of tenanted premises i.e. Shop No. 29/9, Ground Floor, Shakti Nagar, Delhi - 110007 as shown red in the site plan Ex. PW1/1.
48. This file be consigned to Record Room after due compli- ance.
Announced in the open Court Digitally on 22nd December, 2020. signed by (This judgment contains 14 pages) AJAY AJAY NAGAR Date:
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(Ajay Nagar)
Additional Rent Controller-2,
Central District, THC, Delhi.
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