Delhi District Court
Shri Madho Prasad Kapoor vs Shri Surinder Singh Khera on 6 January, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 30207/2016
CNR No. DLWT01-005211-2014
Shri Madho Prasad Kapoor, Advocate (since deceased)
Through his transferee
Smt. Nisha Sharma
W/o Shri Ram Dev Sharma
R/o 3, Court Lane, Civil Lines
Delhi - 110054. . . . . . . Appellant
Versus
1. Shri Surinder Singh Khera
S/o Shri Vichitra Singh Khera
(a) D-8, Connaught Place
New Delhi - 110001
(b) D-10/3, Okhla Phase-II
New Delhi - 110020
2. Shri Hari Om Aggarwal
S/o Shri Chattur Bhuj Aggarwal
Shop No. 471-472, Out Side Katra Neel
Chandni Chowk, Delhi - 110006.
3. Shri Shiv Prakash Aggarwal
S/o Not Known
Shop No. 471-472, Out Side Katra Neel
Chandni Chowk, Delhi - 110006.
4. Shri Ramesh Yadav
S/o Shri Hukum Chand Yadav
Shop No. 471-472, Out Side Katra Neel
Chandni Chowk, Delhi - 110006.
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 1 of 27
5. Smt. Sunita Aggarwal
W/o Shri Shiv Prakash Aggarwal
Shop No. 471-472, Out Side Katra Neel
Chandni Chowk, Delhi - 110006. . . . . . . Respondents
Date of filing of Eviction Petition : 05.08.1996
Date of impugned judgment : 16.04.2014
Date of filing of the appeal : 20.05.2014
Date of arguments in appeal : 01.12.2021
Date of judgment : 06.01.2022
Appearances:
Mr. Deepak Gupta, Advocate for the appellant.
Mr. D.K. Rustagi, Advocate along-with Mr. Mayank Rustagi and
Mr.Kapil Gulati, Advocates for the respondents.
JUDGMENT
1. This judgment shall decide an appeal preferred by the appellant/landlord, rather the assignee/transferee of the landlord under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act') assailing order/judgment-dated 16.04.2014 passed by the Court of Sh. Vinay Singhal, the then Ld. Addl. Rent Controller, Central, Tis Hazari Courts, Delhi (hereinafter referred as 'Ld. Trial Court') in eviction petition bearing No. E-249/14 titled as 'Madho Prasad Kapoor (through his transferee Ms. Nisha Sharma) vs. Surinder Singh Khera & Ors.', whereby the eviction petition under Section 14 (1) (b) of the DRC Act filed by the appellant/landlord against the respondents was dismissed.
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 2 of 27BRIEF FACTS PLEADINGS OF THE PETITIONER/LANDLORD
2. Briefly stated, it was the case of the petitioner/landlord that his late father Sh. Hardhyan Singh Chandiwala let out two shops bearing No. 471 measuring 13' x 23' and Shop No. 472 measuring 13' x 10' to Sardar Bachiter Singh Khera Proprietor of M/S Snowhite Drycleaners in the year 1937 and 1956-57 respectively, as shown in the site plan Ex.PW-1/3, located on the ground floor, outside Katra Neel, Chandni Chowk, Delhi-110006, for commercial purposes and after his death on 19.06.1971 his son i.e. respondent No.1 Sh. Surinder Singh Khera was accepted as tenant w.e.f. 31.08.1973 in the premises vide rent letter Ex.PW-1/R-1 @ Rs. 450/- per month excluding other charges and the respondent No.1 was making payment of rent to him. The grievance of the petitioner/landlord was that respondent No.1, without his written consent, sublet the shop No.471 to respondent Nos. 2 to 4, namely Hari Om Aggarwal, Shiv Prakash Aggarwal and Ramesh Yadav, while the other shop No. 472 was let out to respondent Nos. 2,4 and 5 viz. Hari Om Aggarwal, Ramesh Yadav and Smt. Sunita Aggarwal. It was stated that the petitioner/landlord terminated the tenancy of respondent No.1 vide notice dated 26.09.1992 Ex.PW-1/1 that was duly served upon respondent no. 1 and not replied. After obtaining permission under Section 19 (1) (a) of the Slum Areas (Improvement and Clearance) Act, 1956, which order was passed on 24.07.1995, certified copy of which is Ex.PW-1/2, the petitioner / landlord instituted the Eviction petition against the respondents under Section 14 (1) (b) of the DRC Act.
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 3 of 273. It is pertinent to mention here that an application under Order XXII Rule 10 CPC was moved on 09.03.2005, whereby Mrs. Nisha Sharma was substituted in place of the petitioner/landlord vide order dated 08.08.2005 as she had admittedly purchased the property in question vide registered sale deed dated 10th January, 2005 inter alia transferring the right to pursue actionable claim vested in the seller i.e. the petitioner Madho Prasad Kapoor including the right to pursue the eviction petition, which order was not challenged and has become final.
4. It appears from the Trial Court Record that initially respondent No.1 hotly contested the eviction petition and in his written statement inter alia took the preliminary objections that the petitioner / landlord was abusing the process of law as sometime in the middle of year 1990 the petitioner approached him with a request to relinquish the tenancy and create a new tenancy in favour of respondent Nos. 2 to 5, who were desirous of taking the premises on rent; and he agreed to this proposal but when the date of surrender of the tenancy rights arrived, the petitioner showed his inability to accept the surrender of the tenancy directly and create new tenancy rights in favour of respondent Nos. 2 to 5; and that during discussion it was revealed that the sisters of the petitioners had filed a civil suit bearing No. 74/1982 before the Hon'ble High Court of Delhi, in which direction dated 07.12.1984 was given thereby restraining the petitioner from creating any new tenancy or changing or altering the existing tenancy with regard to shop No. 469-472 without approval of the Hon'ble High Court of Delhi, and therefore, the petitioner prepared and brought letter dated 15.12.1973 RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 4 of 27 (Ex.PW-1/R-1 & also Marked 'A-1') used as camouflaged for accepting the surrender of tenancy rights and creating new tenancy in favour of the respondents No. 2 to 5; and that due to pre-occupancy in business, respondent No.1 rather instructed respondent No.4 Ramesh Yadav to supervise the formalities of surrender of tenancy rights and creation of a new tenancy in their favour. It was further stated that the letter dated 15.12.1973 was never acted upon and there was never any occasion to issue such letter on the date it bore; and thus the respondent No.1 denied any relationship of landlord and tenant between the parties w.e.f. May-1990. Further denying the case of the petitioner/landlord on merits, it was denied that respondent no. 1 was tenant under the petitioner or liable to pay any rent to him since June- 1990 and it was stated that rental/usufruct of the tenancy premises received from the respondent Nos. 2 to 5 was routed through him as per the instructions of the petitioner himself.
5. Respondent Nos. 2, 3, and 5 filed joint written statement, which is Ex.R2W1/P-1 and contested the eviction petition raising preliminary objections to the effect that the petitioner/landlord being an Advocate by profession was taking undue advance of the faith reposed in him; and that since the petitioner/landlord was not in a position to accept the surrender of tenancy from the respondent No.1 Surinder Singh Khera and also not in a position to create sub-tenancy in favour of respondent Nos. 2, 3 and 5 with regard to tenancy shops, it was the petitioner who prepared a back letter dated 15.12.1973 (Ex.PW-1/R-1) thereby allowing the respondent No.1 to create a sub-
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 5 of 27tenancy from back date and respondent Nos. 2 to 5 were introduced by the petitioner to respondent No.1 and it was only respondent No. 4 Ramesh Yadav who was liasoning for the completion of the deal; and thus answering respondents claimed that they had become direct tenants under the petitioner/landlord in respect of suit premises w.e.f. June-1990.
6. Respondent No.4 Ramesh Yadav filed a separate written statement and contested the eviction petition. He towed the same line of defence as propounded by respondent No.1 as also remaining respondents in their separate written statements. Suffice to state, respondent No.4 took preliminary objections to the effect that respondent No.1 was a Director in many companies and Proprietor of Snowhite Drycleaners, and therefore, being a preoccupied man, he instructed him to work out the formalities for successful surrender of the tenancy and then create a new tenancy in favour of respondent Nos.2, 3 and 5 besides himself; and that it was at the instance of petitioner/landlord that a back letter dated 15.12.1973 Ex.PW-1/R-1 was prepared and consent was given from back date for subletting of the premises; and that as per disposition insisted by the petitioner/landlord, rent of the premises was only routed through respondent No.1 Sardar Surinder Singh Khera; and that the petitioner never disclosed any details of the pendency of dispute with other co- owners regarding title of the suit property as well as his right to receive rent, and therefore, he became lawful tenant under the petitioner/landlord. Thus, it was claimed that eviction petition under RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 6 of 27 Section 14 (1) (b) of the DRC Act was misconceived and should be dismissed. Needless to state that respondent Nos. 2 to 5 in their separate written statements denied the averments/pleadings of the petitioner/landlord on merits. Likewise, the petitioner filed separate replications to the written statements filed by the respondents as detailed above and he reiterated and reaffirmed his averments in the eviction petition.
7. During the course of long trial, PW-1 the petitioner came in the witness box and his examination-in-chief was conducted on 04.11.1997 and he was put to a long searching and grilling cross- examination on 26.03.1998; 16.10.2001; 12.11.2001; 10.01.2002; 26.05.2003; and lastly on 08.01.2003. The petitioner also examined PW-2 Sh. Gulab Chand, the Record Clerk from the office of the Competent Authority (Slums) who produced the summoned record with regard to proceedings before the Slum Authority, and cc of the original affidavit of petitioner dated 27.05.1992 CC was proved as Ex.Pw-2/1 and cc of the original affidavit of Surinder Singh Khera dated 22.01.1993 was proved as Ex.PW-2/2. Another witness PW-3 Record Clerk was examined from the Court of Sh. L.K. Sharma, the then Ld. Civil Judge, Tis Hazari, Delhi who produced the summoned judicial record in the case titled as 'Leela Arora v. Surinder Khera' and proved the certified copy of order dated 16.08.1990 Ex.PW-3/A and written statement of Surinder Singh Khera as Ex.PW-3/2.
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 7 of 278. On the other hand, respondent no. 1 produced one Shri A.K.Jha, authorized representative of M/s Snowhite Drycleaners who filed his detailed affidavit in evidence dated 15th Septmenber, 2004 but this witness was not produced for cross-examination, and therefore, his deposition can not be read for a decision in this appeal. For the remaining respondents, only respondent n. 4 chose to appear in the witness box and he filed his detailed affidavit in evidence dated 15 th September, 2004 Ex. R-2-W-1/1 and he was also subjected to extensive grilling cross-examination on 18.04.2011, 25.052011, 30.05.2011 and lastly on 02.04.2012.
IMPUGNED JUDGMENT
9. Ld. Trial Court vide the impugned Judgment dated 16.04.2014 after appreciating the evidence led by the parties on the record, raised following questions for answer; 'whether a sub-tenancy was created by the respondent No.1 in favour of respondent Nos. 2 to 5; and (a) if so, whether the said alleged sub tenancy is without the consent of the petitioner and (b) if, the consent of the petitioner was taken, whether the consent was accorded in terms of defence raised by the respondent Nos. 2 to 5 in order to overcome the order dated 07.12.1984 passed by the Hon'ble High Court of Delhi restraining the petitioner from creating any such tenancy without its approval. Suffice to reflect that ld. Trial Court did not accept the plea of PW-1 that he had executed letter dated 15.12.1973 Ex.PW-1/R-1 only for allowing creating a sub-tenancy in favour of son of respondent No.1 and the Ld. Trial Court also did not accept the case of PW-1 that said letter was not executed in May-1990. It was observed that since admittedly tenancy was created in favour of the respondent No.1 on 31.08.1973, there was RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 8 of 27 no occasion to execute any letter after 3½ months on 15.12.1973 and it was not believable that petitioner/landlord did not enquire from respondent No.1 as to why from 1973 till 1992 he had not inducted his son as tenant/subtenant ; and thus the Ld. Trial Court held that PW- 1/R-1 was issued for the purpose of creation of tenancy in favour of respondent Nos. 2 to 5 in order to overcome the order dated 07.12.1984 of the Hon'ble High Court of Delhi and rent of the premises paid by respondent No. 2 to 5 was only routed through respondent No.1 as per the disposition verbally agreed with the petitioner/landlord; and thus the petitioner/landlord had given his expressed and implied consent for induction of respondent Nos. 2 to 5 as direct tenant under him and not by way of sub-tenants. Accordingly, the petition under Section 14 (1) (b) of the DRC Act was dismissed.
GROUNDS OF APPEAL
10. The petitioner/landlord has assailed the impugned judgment dated 16.04.2014 inter alia on the grounds that the Ld. Trial Court has passed an absolute perverse order completely ignoring the oral and documentary evidence besides written submissions submitted before it; and that the Ld. Trial Court has approached the matter with a predetermined mind ignoring the facts and circumstances established on the record that respondent No.1 never surrendered the tenancy rights in respect of premises in favour of anybody much less the original petitioner/landlord; and that the Ld. Trial Court completely ignored the established facts and legal pleas on the record that onus to prove the surrender of tenancy was upon the respondent No.1 as also RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 9 of 27 creation of new tenancy in favour of respondent No.2 to 5; and that the Ld. Trial Court failed to appreciate that relationship of petitioner and respondent No.1 had not come to an end in summer of 1990; and that the respondent No.1 continued to pay the rent after divesting himself of the exclusive possession and/or control over the tenancy premises; and that the Ld. Trial Court failed to appreciate that respondent No.1 was in collusion with respondent Nos. 2 to 5 and if he had surrendered his tenancy rights qua the premises in question in early summer of 1990 there was no reason for him i.e. respondent No.1 to continue to pay the rentals/usufruct even after commencement of the present legal proceedings; and that the Ld. Trial Court was completely swayed by the submissions of contesting respondents in wrongly making an assumption that the petitioner/landlord brought about disposition of surrender and creation of sub-tenancy as camouflage by preparing letter dated 15.12.1973 so as to avoid contempt proceedings under CS (OS)-74/1982 titled as 'Smt. Leela Arora v. Madho Prasad Kapoor & Ors.'; and that the Ld. Trial Court failed to appreciate that new tenancy was created by the respondent No.1 in favour of respondent Nos. 2 to 5 contrary to the directions passed by the Hon'ble High Court of Delhi dated 07.12.1984, and therefore, the creation of sub-tenancy by the respondent No.1 in favour of respondent Nos. 2 to 5 was non est in law; and that the Ld. Trial Court failed to appreciate that respondent No.1 was an elite businessman of the town, who failed to come in the witness box and yet continued to pay crossed cheques rentals/ usufruct qua tenancy in question despite claiming that he had surrendered the same; and that the Ld. Trial Court ought to have drawn an adverse RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 10 of 27 inference against the respondents for withholding the best evidence from the Court in the nature of surrender of tenancy rights. Suffice to state that the appellant/landlord and now his assignee / transferee has assailed the impugned judgment based on wrong appreciation of evidence as well as applying the wrong proposition of law.
11. I have given my thoughtful consideration to the submissions advanced by the ld Counsel for the respondents whereas ld counsel for the appellant did not advance any oral submissions either by physical appearance or through video conferencing despite affording several opportunities. I have also meticulously perused the record of the instant appeal filed as also oral and documentary evidence led during the trial. I have also gone through the written submissions filed by the ld counsel for the parties.
DECISION:
12. In order to decide the instant appeal, it would be expedient to reproduce the relevant provisions of Section 14 (1) (b) of the DRC Act for our better understanding, which goes as under:-
"Section 14 : Protection of tenant against eviction - (1) Not withstanding 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 a tenant.
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 grounds only.
(b): that the tenant has, on or after the 9 th 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."RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 11 of 27
13. It is settled proposition of law that to constitute "subletting" there must be parting of legal possession by the tenant in the sense of giving up right to include or exclude others, which is always a question of fact. It contemplates a situation where the tenant and the sub-tenant are in a legal relationship akin to one between a landlord and tenant. To cut the long story short, the expressions "sublettin, "parting with possession" as also "assignment" in section 14(1)(b) of the DRC Act connote handing over the exclusive possession and control of the tenancy premises to another for some consideration or the other. 18. After examining several case law on the subject, the Hon'ble Supreme Court in the case of Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholakar, (2010) 1 SCC 217, reiterated and summarized law on the subject as under:-
"25. The legal position that emerges from the aforesaid decisions can be 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 RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 12 of 27 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."
14. Emphasizing the aforesaid parameters vide point No. (i),
(v) & (vi), the landlord is required to prove the following essential conditions in order to succeed in a petition under Section 14 (1) (b) of the DRC Act:-
"(i) The tenant sub-let, assigned or parted with the possession of the whole or part of the premises i.e. the sub tenant or assignee was in exclusive possession of whole or part of the property.
(ii) No consent in writing was taken from the landlord by the tenant."
15. Thus, the core element of this ground of eviction constitutes a stranger coming into possession of the tenanted premises wholly or partly without the consent of the landlord. 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 RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 13 of 27 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, 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.
16. In view of the aforesaid proposition of law, reverting back to the instant case, the moot questions are: (1) Whether the petitioner landlord had given any consent in writing vide letter dated 15.12.1973 Ex. PW-1/R-1 to respondent no. 1 to sublet the premises to Respondent no. 2 to 5?; (2) whether the deceased tenant had surrendered the tenancy and completely divested himself of having any control over the exclusive possession of the tenancy premises by parting over with the possession of the shop, wholly or in partly, in favour of respondent no. 2 to 5?; and (3) Whether respondent no. 2 to 5 directly became Tenants under the petitioner/landlord w.e.f June, 1990, and if so, what effect?
17. At the outset, this Rent Tribunal/Court has no hesitation in holding that the impugned judgment dated 16.04.2014 passed by the Ld. Trial Court can not be sustained in law as it is absolutely perverse to the oral and documentary evidence established on the judicial record and patently suffers from wrong application and/or non application of RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 14 of 27 fundamental laws on the subject. There is no gainsaying that the burden of proving that the premises is occupied by a person or persons other than the tenant was upon the petitioner/landlord and in the face of denial by the petitioner/landlord that no written consent was accorded in May-June 1990 to sublet the premises to the respondents no. 2 to 5, the initial burden of proving that the premises was sublet lawfully to respondent no. 2 to 5 by respondent no. 1 consequent to written consent vide letter dated 15.12.1973 Ex. PW-1/R-1 was upon the respondents. Once that burden was discharged the onus shifted to the other party to prove or disprove such facts. Now, it was common case of the parties that respondent no. 1 was tenant under the petitioner/landlord. The petitioner/landlord was able to discharge the initial burden that the respondent no. 1 had completely divested himself of his exclusive possession and control over the tenancy premises in the sense that he closed down his dry-cleaning business sometime from May-June, 1990. And it is also proven that respondent no. 2 to 5 came to occupy, possess and starting their own business of dealing in eatables i.e., sweets, khoya and paneer etc.
18. The decision in this appeal delicately hinges on the appreciation of the letter dated 15.12.1973 and PW-1 conceded in his cross-examination that the said letter was signed by him but he consistently and vociferously denied that it was executed in May-June 1990 and he reiterated time and again that it was given by him on the date it bore i.e., 15.12.1973 at the request of respondent no.1 to admit his son as a partner. On being prodded, PW-1 in his cross-examination RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 15 of 27 deposed that he did not seek permission of the High Court of Delhi since such letter was written much prior to passing of interim injunction dated 7th December 1984 in the civil suit between him and his sisters w.r.t the property in question. Before we proceed further, let us pause here for a moment and reproduce the content of the said letter in toto to appreciate its legal purport, which goes as under:
"Dated : Dec. 15, 1973.
To Shri Surinder Singh Khera M/s. Snowhite Drycleaners.
Dear Sir, This has reference to the discussion you had with me a few days ago. I hereby give my consent to you to sublet the whole or any part of the shop No. 471 and 472, Chandni Chowk, Delhi to any person/persons, but it is clearly understood that liability to pay the rent for the both shops will be entirely yours.
Sd/-
Madho Parshad Kapoor"
19. A bare perusal of the said letter would show that it was indeed not specifically worded that permission was accorded to sublet the whole or any party of the tenancy premises to son of respondent no. 1; and rather it was a written consent to do so to any other person/persons besides stipulating that the liability to pay rent shall remain that of respondent no.1. I am afraid I am unable to persuade myself to draw an inference that such letter was written in May-June 1990 as claimed by the respondents. First thing, the consent letter is not a specific one. In other words, the letter dated 15.12.1973 Ex. PW- 1/R-1 is not specifically giving consent to allow subletting in favour of RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 16 of 27 any or all of respondents no. 2 to 5. It does not provide for any period within which subletting might have been done and it is not fathomable as to why would the petitioner/landlord consent to sub-letting if there was no material gain to be derived by him. It is not the case of the respondents no. 2 to 5 that any premium or pagri amount was paid to the petitioner/landlord either. Moreover, Ex. PW-1/R-1 is not indicating anything about surrender of the tenancy rights by respondent no. 1 either.
20. Infact , there is more to the story than to meet the eyes. R- 2-W-1 Ramesh Yadav in his cross-examination conceded on 02.04.2012 that not only he never met respondent no. 1 personally but also that respondent no. 1 never told him that he wanted to surrender the tenancy rights in favour of the petitioner/landlord, which aspect is contrary to his averment in the written statement portion 'A' to 'A' wherein he stated that respondent no. 1 being a busy businessman instructed him to work out the necessary formalities for transfer of tenancy in favour of the respondents no. 2 to 5. In order to wriggle out of such conundrum, he introduced a new twist to his defense while under cross-examinaiton on 18.04.2011 that the possession of the tenancy premises was surrendered by respondent no. 1 through his manager on 24.06.1990, which fact does not find any mention in his pleadings/written statement. Interestingly R-2-W-1 Ramesh Yadav denied the suggestion that no document of surrender was executed. Well, if that was the case, no such document was produced by the respondents nor the petitioner/landlord was ever called upon to RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 17 of 27 produce it or so suggested in his cross-examination. There is more. R- 2-W-1 Ramesh Yadav in his cross examination on 25.05.2011 deposed that a Local Commissioner had visited the premises for inspection on 16th July 1990 on the orders of then ld Civil Court in the suit titled Smt. Leela Arora vs Madho Prasad Kapoor and he was seen at the spot captured by the photographs RW1/B-1 (Collectively). Interestingly, he deposed that the letter dated 15.12.1973 E. PW-1/R-1 was executed or written after the visit by the Local Commissioner on 16 th July, 1990. Interestingly, R-2-W-1 Ramesh Yadav in his affidavit in evidence pleaded "since we run a joint business in two shops under the trade name 'Welcome Pastries', we started paying the rent form the accounts of 'Welcome Pastries'. I got prepared the charts of payments made in the name of Sh. S.S.Khera to be delivered to Sh. Madho Prasad Kapoor. The details of payments are enclosed as Enclosure-1 having two sheets covering the rent for the period 24.06.1990 to 30.09.1997".
21. Now, this portion mark 'Z' to 'Z-1' when confronted about in the cross examination, R-2-W-1 Ramesh Yadav replied that the said aspect in his affidavit was wrongly written. And then R-2-W-1 Ramesh Yadav brought a new twist to the story that thereafter the rent was paid directly to Madho Prasad Kapoor, vide paragraph (5) of his affidavit in evidence Ex. R-2-W-1/1. It is significant to note that R-2-W-1 Ramesh Yadav did not produce any books of accounts or bank statements evidencing that they were making any payment of rent to respondent no. 1 either. Incidentally, R-2-W-1 Ramesh Yadav did not deny the RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 18 of 27 knowledge about the application filed by the petitioner/ landlord for seeking permission under section 19(1)(a) of the Slum Areas (Improvement and Clearance) Act, 1956, admitting in his affidavit Ex. R-2-W-1/1 vide paragraph (7) at the bottom that he merely coordinated with counsel of the petitioner/landlord while at the same time further acknowledging in his cross-examination on 25.05.2011 that he even appeared in the slum proceedings at the instance of respondent no. 1, which does not strike to common sense and logic in the background of their claim that they had become direct tenants under the petitioner/landlord. I am find myself in complete agreement with the plea advanced in the written submissions filed by the ld counsel for the appellant that Respondent no. 4 has completely demolished the very edifice of the defense of the respondents.
22. That being the case, I am further unable to persuade myself to subscribe to the view expressed by the ld Trial Court that adverse inference be drawn against the petitioner/landlord since he did not take any legal action after coming know of the sub-tenancy in June 1990 till September, 1992. Merely because the petitioner/landlord was residing in the same building on the upper floors did not result in any kind of acquiescence to accept respondent no. 2 to 5 as his tenants. In any case, subletting can never be established on mere acquiescence and moreover neither the petitioner/landlord ever demanded any rent from respondents no. 2 to 5 nor ever acknowledged them as his direct tenants. In fact, respondent no. 2 to 5 never even tendered rent to the petitioner/ landlord directly either. There was no inordinate delay on the RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 19 of 27 part of the petitioner/landlord in filing/instituting the eviction petitioner after serving legal notice dated 26.09.1992 Ex. PW-1/1 since the cause of action had already accrued and the ld Trial Court failed to appreciate that the tenancy premises is falling in a slum area and application u/s 19(1)(a) of the Slums Act was filed which took about a year and half to arrive at a decision. Ld Trial Court failed to appreciate that admittedly the rental/usufruct was being paid through respondent no. 1 from June 1990 till about 16.12.1997 by describing it as 'damages' i.e., even after filing of the eviction petition and no endeavour was made by respondent no. 2 to 5 to pay or tender the rent to the petitioner/landlord so as to substantiate that they had become direct tenants under the petitioner/landlord. Infact R-2-W-1 Ramesh Yadav in his cross- examination on 25.05.2011 conceded that they were paying rent to respondent no. 1 even after filing of his written statement on 05.02.1997.
23. Further, ld Trial Court failed to appreciate that the burden of proving that the tenancy was surrendered, was upon respondent no. 1, who chose not appear in the witness box to substantiate his assertions and respondent no.1 did not even produce his witness RW1 A.K.Jha for his cross-examination. It is pertinent to mention that it was Shri D.K.Rustogi Advocate who had cross-examined PW-1 on behalf of all the respondents. It further escaped the attention of the Court that it was the same counsel who had been representing the respondents throughout the length and breadth of the trial that rules out any issue of collusion between the petitioner/landlord and respondent no.1. Now, if RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 20 of 27 the interests of respondent nos. 2 to 5 were adverse to respondent no. 1 or if they suspected any collusion between the latter and the petitioner/ landlord, as was canvassed during the arguments, they should have cared to call, summon and examine respondent no. 1 in the witness box to substantiate that they had become tenants directly under the petitioner/landlord. The whole defense of the respondents that they had done every thing at the instance of the petitioner/landlord is not palatable. In any case, even if it is assumed that such was the case, the respondents were equally guilty parties to the conspiracy to dodge the directions passed by the High Court of Delhi in the civil suit involving the petitioner/ landlord and his sisters. They can not turn around and claim advantage of their own wrong.
CASE LAW ISSUE OF SURRENDER OF TENANCY
24. Avoiding a long academic discussion on the law w.r.t "implied surrender", suffice to invite reference to a decision in the case of Fab India Overseas Private Ltd. vs S.N.Sheopori, 199 (2013) Delhi Law Times 351 (DB), wherein it was observed that "implied surrender under section 111(f) of the Transfer of Property Act cannot be assumed or accepted, as it is essential that the lessee should give up possession of the holding under the old lease even in cases of implied surrender". It is pertinent to mention that the ratio propounded in an earlier decision by the Delhi High Court in the case titled Manphul Singh Sharma vs Mst. Ahmedi Begum, AIR 1987 Delhi 87 was quoted with approval, which is to the following effect:
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 21 of 27"It is well known that implied surrender occurs by creation of new relationships or by relinquishment of possession. It is however essential that for the new lease to operate as a surrender of the old one, the new lease must be operative. If the new lease is void or voidable or does not pass an interest according to the intention of the parties it does not operate as an implied surrender of the old lease."
25. Thus, suffice to state that there is iota of evidence as to when or in what manner there was any relinquishment or surrender of the initial tenancy. Even the setting up of new lease, assuming it was done as propounded by respondent no. 2 to 5 for the sake of convenience, was not lawful in view of the interim directions passed by the High Court of Delhi. At this juncture, this Court/Rent Control Tribunal should also consider the legal implications of section 16, 17 & 18 of the DRC Act, which legal aspects have escaped the attention of the ld Trial Court, that provide as under:
"16. Restrictions on sub-letting. - (1) Where at any time before the 9th day of June, 1952, a tenant has sub-let the whole or any part of the premises and the sub-tenant is, at the commencement of this Act, in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises shall be deemed to have been lawfully sub-let. (2) No premises which have been sub-let either in whole or in part on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sub-let.
(3) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord, -
(a) sub-let the whole or any part of the premises held by him as a tenant; or
(b) transfer or assign his rights in the tenancy or in any part thereof.
(4) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub-letting of the whole or any part of the RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 22 of 27 premises held by the tenant.
17. Notice of creation and termination of sub-
tenancy. - (1) Whoever, after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the promises are sub-let may, in the proscribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such sub- tenancy within one month of such termination.
(2) Where, before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub- tenant to whom the premises have been sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination.
(3) Where in any case mentioned in sub-section (2), the landlord contests that the premises were not lawfully sub- let, and an application is made to the Controller in this behalf, either by the landlord or by the sub-tenant, within two months of the date of the receipt of the notice of sub- letting by the landlord or the issue of the notice by the tenant or the sub-tenant, as the case may be, the Controller shall decide the dispute.
18. Sub-tenant to be tenant in certain cases. - (1) Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy has been given to the landlord, the sub- tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued. (2) Where, before the commencement of this Act, the interest of a tenant in respect of any premises has been determined without determining the interest of any sub- tenant to whom the premises either in whole or in part had been lawfully sub-let, the sub-tenant shall, with effect from RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 23 of 27 the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued."
26. A conjoint reading of the aforesaid provisions would show that as per section 16(2) of the DRC Act, there is no presumption in law or fact that a premises has been lawfully sublet, wholly or in part, unless and until there is a written consent to do so by the landlord. Further, section 17(1) DRC Act clearly mandates that in the event a premises is sublet after obtaining previous consent in writing of the landlord, the tenant or the sub-tenant is mandated to serve a notice upon the landlord in prescribed form. As per the Delhi Rent Control Rule, 1959, framed under section 56 of the DRC Act, such notice vide Rule 21 is required to be sent as per the prescribed 'Form-F'. Lastly, in case such notice is given and the tenant later on ceases to have any legal right or the tenancy is determined, the subtenant becomes a tenant directly under the landlord. The legislative intent is very clear that not only written consent must be previous and specific but also that notice of sub-tenancy must be given to the landlord. Suffice to state that no notice in prescribed form was ever served by the tenant or the sub-tenants in the instant case as per section 17(1) of the DRC Act, and thus the plea of the respondents no. 2 to 5 that they became direct tenants under the petitioner/ landlord cannot be sustained.
27. In support of the aforesaid hypothesis, we may invite RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 24 of 27 reference to decision in the case titled Murari Lal vs. Abdul Gaffur, 1974 RLR 39 by Delhi High Court, cited by the Ld Counsel for the appellant, where it was held that "if the lawful sub-tenant does not give notice prescribed then he does not become direct tenant on the determination of the tenant's tenancy. Only benefit he and the tenant enjoys is that they cannot be evicted on the ground of subletting. If the tenant is evicted on any ground, the sub-tenant also goes with him." Further, the issue stands clinched in a decision by the Apex Court in the case titled Kapil Bhargava vs. Subash Chander Aggarwal, (2001) 6 SCC 645, also cited by the ld counsel for the appellant. Although the said decision was given in the context of an eviction petitioner u/s 14(1)
(d) of the DRC Act, where the tenant had sublet the premises without written consent and had ceased to reside in the premises for a continuous period of six months prior to the filing of the petition, and answering the issue in the context of section 17(2) of the DRC Act, it was held that:
"16. Submission for the appellant is that once a sub-tenant is a lawful sub-tenant by virtue of Section 16(1), the notice under sub-section (2) of Section 17 would be a mere formal- ity which is procedural. Thus its non-compliance cannot take away his substantive right created under Section 16(1). This submission misses the purpose for which this sub-section (2) of Section 17 is enacted. On performance of this obliga-
tion, a right is conferred on a sub-tenant to become a tenant under Section 18. This service of notice saves a sub-ten- ant from eviction even if a decree is passed against a tenant under Section 14 and further confers on such sub-tenant an independent right as that of a tenant. Thus notice under Section 17(2) cannot be construed as mere procedural, in fact it confers substantive right on such a sub-tenant. So, a conjoint reading of Sections 16, 17 and 18 makes it clear that a sub-tenant falling under Section 16(1) is deemed to be a lawful sub-tenant even without writ-
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 25 of 27ten consent of the landlord. But Section 17(2) casts an obli- gation on such sub-tenant to give notice to the landlord un- der sub-section (2), within six months of the commencement of the Act. The legislature has used in sub-section (2) the words, "lawfully sub-let". So even if the appellant is a lawful sub-tenant by virtue of Section 16(1), still an obligation is cast on such lawful sub-tenant to serve a notice on the land- lord for gaining a right under Section 18. This as we have said is as a protective measure in favour of a sub-tenant. So, the submission that by mere declaration as lawful tenant un- der Section 16(1), no decree for eviction is enforceable against the sub-tenant has no merit and is hereby rejected. Hence we hold, unless notice under sub-section (2) of Section 17 is served by the sub-tenant, he cannot take the benefit of Section 18 and any decree passed under Section 14 against a tenant is executable against a sub- tenant. {Bold italics portions emphasiszed}"
28. A fortiori the same analogy applies to the legislative mandate under section 17(1) of the DRC Act, where a tenancy is desired to be sublet after the commencement of the DRC Act on obtaining previous consent in writing that was clearly amiss in the instant case.
FINAL ORDER
29. In the view of the foregoing discussion, the present appeal is allowed and the impugned judgment dated 16.04.2014 passed by the Court of Sh. Vinay Singhal, the then Ld. Addl. Rent Controller, Central District, Tis Hazari Courts, Delhi is set aside. Accordingly, the present Eviction petition under Section 14(1)(b) of the DRC Act is allowed and an Eviction order is passed in favour of the appellant and against the respondents in respect of two shops bearing No. 471 and 472 situated on the ground floor, outside Katra Neel, Chandni Chowk, Delhi-110006 RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 26 of 27 as shown in red in the site plan Ex.PW-1/3. In view of the peculiar facts and circumstances of the case, the respondents are burdened with costs of Rs.50,000/- which shall be payable by them jointly or severally to the appellant/landlord within three months from today failing which the appellant shall be entitled to claim the same with interest @ 6% per annum from the date of filing of the present appeal till realization.
30. The Trial Court record along-with copy of this judgment be sent back to the Ld. Trial Court.
31. The appeal file be consigned to Record Room.Digitally signed by DHARMESH
DHARMESH SHARMA
SHARMA Date: 2022.01.10
19:11:54 +0530
Announced in the open Court (DHARMESH SHARMA)
on 6th day of January, 2022 Principal District & Sessions Judge/
RCT (West)
Tis Hazari Courts: Delhi
RCT No.30207/2016 Madho Prasad Kapoor vs. Surinder Singh Khera & Ors. Page 27 of 27