Delhi District Court
Old Address vs Smt. Gurbachan Kaur (Since Deceased) on 3 September, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 34/2016
CNR No. DLWT01-001330-2014
In re:
Sardar Jaspal Singh
S/o Late Sardar Bhagat Singh
R/o S-2/209, Old Mahavir Nagar,
Tilak Nagar, New Delhi -110018
Old Address:
Shop No. 139-A/4,
New Mahavir Nagar, Tilak Nagar,
New Delhi-110018 . . . . . . Appellant
Versus
Smt. Gurbachan Kaur (since deceased)
through her son and legal heir
Shri Purshottam Singh
S/o Late Sh. Ajit Singh
R/o WZ-139-A/4, A-4,
New Mahavir Nagar, Tilak Nagar,
New Delhi-110018 . . . . . . Respondent
Date of filing of Eviction Petition : 03.07.2006
Date of impugned judgment : 11.09.2007
Date of filing of the appeal : 26.08.2014
Date of arguments advanced
(through Video Conferencing) : 26.08.2020
Date of judgment : 03.09.2020
Appearances:
Mr. Amarjeet Singh, Advocate for the appellant/tenant.
Mr. Sat Narain, Advocate for the respondent/landlady.
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JUDGMENT
1. This judgment shall decide an appeal preferred under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act') by the appellant/tenant, who is assailing judgment dated 11.09.2007, passed by the Court of Ms. Kaveri Baweja, the then Ld. ARC, Rohini Courts, Delhi, in Eviction Petition bearing E.No.1067/2006 titled as 'Gurbahcan Kaur vs. Jaspal Singh', whereby an eviction order was passed in respect to the tenancy premises against the appellant/tenant and in favour of the respondent/ landlady under Section 14 (1) (b) of the DRC Act.
BACKGROUND FACTS:
2. Briefly stated, the petitioner/landlady filed an eviction petition seeking eviction of the tenant under section 14(b) & (j) of the DRC Act in respect of Shop No. 139-A/4, New Mahavir Nagar, Tilak Nagar, New Delhi-110018, as per Site Plan Ex.AW-1/2, claiming that she had let out the same to the tenant at a monthly rent of Rs. 600/-
excluding other charges in the year 1988. It was the case of the petitioner/landlady that the tenant had sub-let the premises since 1996; and that earlier he had sub-let the premises to Sh. Amarjeet Singh, who used to do business of Tea shop and later he sub-let the tenancy premises to All India Crime Prevention Society, which organization is in possession of the tenancy premises and running its affairs. The petitioner/landlady also stated that sub-tenant has caused serious damages to the ceiling of the shop that requires urgent repairs.
RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 2 of 123. It is a matter of record that the tenant failed to appear despite due service of summons and was proceeded exparte w.e.f. 13.02.2007. During the course of trial, the petitioner/landlady examined her son and Attorney Sh. Purshottam Singh, who proved GPA in his favour executed by petitioner/landlady as Ex.AW-1/10 and substantiated the averments of the petitioner/landlady also proving on record the earlier Judgment by Sh. Inderjeet Singh, the then Ld. ARC Eviction Petition No. 30/1995 dated 05.10.2005, copy of which is Ex.AW-1/1, whereby the benefit of Section 14 (2) was accorded to the tenant. The petitioner/landlady further examined Sh. Kamruzama Khan as AW-2, who supported the case of the petitioner/landlady with regard to sub-letting of premises in favour of All India Crime Prevention Society.
4. Briefly stated, ld. ARC in her Judgment dated 11.09.2007 found that the petitioner/landlady had failed to prove the grounds for eviction under Section 14 (1)(j) of the DRC Act and accordingly the said petition was dismissed. However, at the same time, in view of unrebutted testimony of the witnesses on record, it was held that petitioner/landlady had been able to prove that tenant had sub-let the premises in favour of third party, and accordingly an eviction order was passed under Section 14 (1) (b) of the DRC Act against the tenant. It is also matter of record that on being dispossessed in execution of warrants of possession, the appellant/tenant filed an application under Order IX Rule 13 CPC for setting aside the exparte judgment dated 11.09.2007 and also moved an application under Section 144 CPC for RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 3 of 12 restoration of tenancy premises in his favour. The said application bearing M-08/2009 was decided by Sh. Devender Kumar, the then Ld. CCJ-cum-ARC (West), who vide order dated 18.08.2012 found that non appearance of the tenant in the proceedings subsequent to issuance of notice / summons was intentional and deliberate and, therefore, the application under Order IX Rule 13 CPC was dismissed as also application under Section 144 CPC.
5. Aggrieved thereof, the appellant/tenant filed an appeal before Ms. Anu Malhotra, Ld. District & Sessions Judge (West), as her ladyship was then, bearing ARCT/RCT No. 73/2012 titled as 'Jaspal Singh v. Gurbachan Kaur/ and admittedly the said appeal was found to be without any merit and came to be dismissed vide Judgment dated 11.11.2013. The tenant then assailed the said Judgment dated 11.11.2013 before the Hon'ble High Court of Delhi in CM (M) 738/2014 & C.M.No. 12902/2014 and it came up for hearing before Hon'ble Mr. Justice Valmiki J. Mehta and following order was passed on 11.08.2014:
"After arguments, the petition is dismissed as not pressed, inasmuch as the Counsel for the petitioner states that the petitioner/tenant intends to challenge the main judgment dated 11.9.2007 decreeing the eviction petition under Section 14 (1)
(b) of the Delhi Rent Control Act i.e. on the ground of subletting.
Accordingly, this petition is dismissed as not pressed and the petitioner is at liberty, of course in accordance with law, to challenge the main judgment dated 11.9.2007."
GROUNDS OF APPEAL:
6. It is subsequent to the aforesaid order dated 11.08.2014 that the present appeal is filed on 26.08.2014. The impugned judgment RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 4 of 12 dated 11.09.2007 is assailed in the present appeal inter alia on the grounds that the ld. Trial Court failed to appreciate that the petitioner/ landlady had failed to show any prima facie case that tenant had sublet the premises to any third party; and that the ld. ARC mechanically considered the general and vague pleadings of the petitioner / landlady with regard to the allegations of subletting of the tenancy shop; and that the Judgment dated 11.09.2007 was passed by the ld. ARC without appropriate hearing and without appreciating the documents on the record; and that the witnesses examined on behalf of the petitioner / landlady failed to substantiate that 3-4 gentlemen were in exclusive possession of the shop and using the same; and that the ld. ARC failed to appreciate that in the photographs placed on record Ex.AW-1/3 and AW-1/4, the name of the tenant was also mentioned as Vice President of the All India Crime Prevention Society on the board installed outside at the top of the shop; and that the ld. ARC failed to appreciate the report of process server which clearly showed that it was the tenant Sh.
Jaspal Singh who was in possession of the premises and not any other their person.
IMPLEADING LR OF DECEASED LANDLADY:
7. It is pertinent to mention here that during pendency of the case, the respondent/landlady is stated to have expired on 04.06.2016 and application under Order XXII Rule 4 CPC was moved on 16.11.2016 for bringing on record the legal heirs of the deceased respondent/ landlady by the appellant/tenant and amended memo of parties was filed, thereby seeking to substitute the son of the landlady, RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 5 of 12 namely Sh. Purshottam Singh S/o Late Sh. Ajit Singh as her legal heirs.
In reply dated 28.02.2017, the only objection was taken that it was in the knowledge of the appellant that the landlady had died on 24.05.2016, which was intimated to the Court on 04.06.2016 and since the application was not moved within the stipulated period of limitation, the petition stood abated.
8. The said application has remained pending on the record without any decision and taking a liberal view, the same is allowed and the respondent/landlady is allowed to be represented through her son.
SUBMISSIONS BY THE LD. COUNSEL FOR PARTIES
9. In brief, Sh. Amarjeet Singh, ld. Counsel for the appellant has urged that the Ld. ARC passed the eviction order dated 11.09.2007 in a mechanical way without bothering to look into the photographs that clearly showed that Jaspal Singh was Vice-President of All India Crime Prevention Society and referred to the pleadings to the effect that allegations levelled with regard to subletting were too general and vague.
10. Per contra, Sh. Sat Narain, ld. Counsel for the respondent that the present appeal has been filed after inordinate delay of seven years of the passing of the impugned eviction order and the same was hopelessly barred by limitation. It was urged that no liberty was given by the Hon'ble Judge of the High Court of Delhi vide order dated 11.08.2014 to the appellant to file any appeal. On merits, it was RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 6 of 12 submitted that although, name of the tenant was displayed on the Board, there is no evidence that he was in control and possession of the tenancy premises to the exclusion of others.
11. I have given my thoughtful consideration to the submissions made by Ld. Counsel for the parties at the Bar. I have also gone through the trial Court record and the evidence brought on record besides the documents relied upon in the present appeal.
12. At the outset, as regards the plea by the ld counsel for the respondent of the same being barred by limitation, it is manifest that the appellant/tenant had been diligently pursuing other remedies in law. There is a reasonable justification that that the appellant/tenant chose to challenge the exparte judgment passed against him and he was within his rights to challenge the same up to the superior Courts. Any how, he chose to withdraw the same and preferred this appeal. Though, it is filed almost after seven years of the impugned order, the delay in filing the appeal is justifiable and the same is condoned.
DECISION IN APPEAL SECTION 14(1)(b) of the DRC ACT
13. Section 14 (1) (b) of the DRC Act provides as under:-
"Section 14 (1) (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 any part of the premises without obtaining the consent in writing of the landlord;"
14. The import and effect of the expressions "subletting" or RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 7 of 12 "assignment" or "parting with possession" in various rent restriction laws in India has been the subject of consideration of the courts for a long time now. In the context of similar provision in Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Supreme Court in its decision reported as Gopal Saran v. Satyanarayana,(1989) 3 SCC 56, while referring to its various previous decisions including Associated Hotel of India Ltd. Delhi v. S.B Sardar Ranjit Singh, AIR 1968 SC 933; Dr. Vijay Kumar v. Raghbir Singh Anokh Singh, (1973) 2 SCC 597; and Shalimar Tar Products Ltd. v. H.C Sharma, (1988) 1 SCC 70, inter alia, held thus:
"...to constitute a sub-letting, there must be a parting of legal possession i.e, possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact. xxx ...parting with possession is understood as parting with legal possession by one in favour of the other by giving him an exclusive possession to the ouster of the grantor... xxx ...the question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either sub-tenancy or parting with possession..."
15. After examining several case law on the subject, in the Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholakar, (2010) 1 SCC 217, the law was reiterated and summarized by the Supreme Court as under:-
"25. The legal position that emerges from the aforesaid decisions can be RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 8 of 12 summarised thus:
(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-
letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 9 of 1216. Thus, a stranger coming into possession of the tenanted premises wholly or partly without the consent of the landlord, constitutes the core element of the ground of subletting, assignment or parting with possession etc. The ingredient of "parting with possession wholly or partly" is inherent in all the three limbs. The primary burden of proving the presence of a stranger in the tenanted premises and he being in exclusive possession of the whole or part of the tenancy premises is upon the landlord. Once the landlord has proven that the tenant stands excluded from the tenancy premises the fundamental facts to show that the tenants stands excluded from the tenanted premises or that he has forfeited the "right to repossess" of the whole or part thereof, that an inference of subletting, assignment or parting with arises thereby shifting the onus on the tenant to explain the legal status of the stranger in the tenancy premises.
17. In view of the said proposition of law, reverting back to the instant case, at the outset, the present appeal is devoid of any merit. The petitioner / landlady vide paragraph (18) (a) (1) of her petition had made categorical averments that tenant had sublet the premises to All India Crime Prevention Society and she pleaded that 3 or 4 gentlemen were in possession and use of the tenancy shop having its lock and keys. She pleaded that they were running their business affairs from the tenancy premises and the tenant was not coming to the shop nor was in possession or control of the same. The testimony of AW-1 Purshottam Singh that the tenant had sublet the shop to All India Crime Prevention Society and the said Society was in exclusive possession of the RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 10 of 12 tenancy shop was uncontroverted and unrebutted. Further, AW-1 proved on the record the photographs along-with negatives of the front portion of the shop, which are Ex.PW-1/6 to PW-1/9 and the said testimony was corroborated by an independent witness, namely AW-2 Kamruzama Khan.
18. At the cost of repetition, the testimony of AW-1 in his affdavit in evidence Ex.AW-1/A remained uncontroverted and unrebutted. Even bare persual of the photographs would show that apart from the sign board depicting that the tenant Jaspal Singh was Vice President, it showed other persons namely B.P. Singal (MP) Retired IAS, Janak Raj Gupta, Gurchaaran Singh and Dr. P.C. Bhardwaj running the affaris of the All India Crime Prevention Society from the tenancy shop, and therefore, it was a matter of inference that there were persons other than the tenant who were in use and occupation of the tenancy shop. No documents have been placed on record by the appellant/tenant at any stage during pendency of this litigation to suggest or raise an inference that he has been acting as Vice President of the said Society in a bonafide manner and thereby having control over the use and possession of the premises.
19. There is no merit in the plea taken by the ld. Counsel for that appellant/tenant that the ld. ARC failed to appreciate that he was also in use and occupation of the premises by virtue of his name displayed on the Board outside the shop. At the cost of repetition, the RCT-34/2016 Sardar Jaspal Singh v. Gurbachan Kaur Page 11 of 12 appellant/tenant chose to intentionally and deliberately not to contest the matter on merits and the scope of interference in the present appeal is very limited. The appellant/tenant has failed to show any discrepancy or short comings in the testimony of AW-1 and AW-2. The burden of proving that despite association of three persons in the tenancy shop, the appellant/tenant retained possession, use and control of the tenancy premises was upon the appellant/tenant, which he has miserably failed to discharge. I, therefore, find no illegallity, infirmity or incorrect approach adopted by the ld ARC in passing the impugned judgment.
FINAL ORDER:
20. In view of the aforesaid discussions, the present appeal fails and is hereby dismissed. In the peculiar facts and circumstances of the case, the parties are left to bear their own costs. The Trial Court record along-with copy of this Judgment be sent back forthwith. The appeal file be consigned to Record Room.
Digitally signed by DHARMESH DHARMESH SHARMA
SHARMA Date: 2020.09.04
18:16:12 +0530
Announced in the open Court (DHARMESH SHARMA)
on 3rd September, 2020 District & Sessions Judge/RCT (West)
Tis Hazari Courts: Delhi
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