Delhi District Court
Sh. Ankush Aggarwal vs Sh. Om Prakash on 20 March, 2021
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER-02 (CENTRAL), TIS
HAZARI COURTS, DELHI.
CNR No. DLCT03-00637/2011
E-335/14/11
ARC No: 79709/16
1. Sh. Ankush Aggarwal
2. Sh. Vineet Aggarwal
Both sons of Sh. Kishan Kishore Aggarwal
Both R/o H.No. 1/19, Roop Nagar,
Delhi-110007. ...... Petitioners
VERSUS
Sh. Om Prakash
S/o Sh. J.L. Saini
R/o H.No. 39, 1st Floor,
G.B. Road, Delhi-110006. ..... Respondent
Date of Filing : 09.08.2011
Date of Judgment : 20.03.2021
JUDGMENT
1. Brief facts of the present case are that on 09.08.2011, the Petitioners filed the present petition Under Section 14 (1) (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 Petitioners and against the respondent in respect of premises i.e. one room forming part ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 1 of 1st floor of the property no. 3908, Gandi Gali, G.B. Road, Delhi- 110006 which is more specifically shown in red colour attached with the petition (hereinafter referred to as "Tenanted premises").
2. It is inter alia averred by the petitioners that they are the lawful joint owners and landlords of the 1st floor of the property bearing no. 3908, Gandi Gali, G.B. Road, Delhi-110006 and the petitioners have purchased the said property from its previous owner Sh. Dinesh Jain. That the respondent/tenant deliberately and intentionally had sub-let the tenanted premises to one Sh. Satinder Saini, forcibly and illegally and without the written permission, information and consent of the petitioners and Sh. Satinder Saini has been running an office in the tenanted premises under the name and style of M/s Satinder Saini & Company. The respondent/tenant is liable to be evicted from the tenanted premises U/S 14(1)(b) of DRC Act, 1958.
Lastly, it is prayed by the Petitioners that an eviction order may be passed against the respondent.
3. Written Statement was filed by the respondent in response to petition filed by the Petitioners U/S 14 (1) (b) of D.R.C Act praying to the court to dismiss the present petition with costs.
It is inter-alia contended by the respondent that Sh. Satinder Saini is the brother in law of the respondent. He is Charted Accountant by profession and has his office at 514, Suneja Towers-1, District Centre, Janakpuri, New Delhi since 1988. He has no concern whatsoever with the ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 2 tenanted premises nor he ever remained in the tenanted premises. That the tenanted premises is being used as godown by the respondent. That the tenanted premises was admittedly purchased in two different names through two different sale deeds. It is not certain in whose portion, the tenanted premises falls. There is no fittings of water as the tenanted premises is godown for the last more than 22 years. That there is no facility of electricity even the same is not required. That the rent stood paid upto 31.07.2011 as the same was tendered vide cheque No. 592592 dated 17.08.2011 for Rs.9075/- drawn on Oriental Bank of Commerce for the period 01.01.2007 to 31.07.2011. The alleged photographs are forged and fabricated documents.
Lastly, it is prayed by the respondent that the present eviction petition may be dismissed.
4. Thereafter, the Petitioners examined petitioner No.1 as PW1 and relied upon several documents. Petitioner No.1 was cross-examined length. Thereafter, Petitioners closed the evidence.
5. On the other hand, respondent did not lead any evidence and the court struck of the right of leading evidence.
6. I have heard the arguments at length advanced. I have also carefully gone through pleadings, testimony of all the witnesses, documents filed and material on record.
ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 3 Land lordship:-
7. Perusal of record shows that in the present petition, the Petitioners have claimed to be landlords and owners of the tenanted premises on the basis of sale deeds Ex.PW1/1 and Ex.PW1/2.
On the other hand, the respondent has not specifically disputed the landlordship of the Petitioners and he has merely stated that tenanted premises was purchased in two different names through two different sale deeds and it is not certain in whose portion, the tenanted premises falls.
8. Perusal of record shows that the respondent has himself admitted in paragraph no. 11 that he has tendered the rent through cheque but he has not specifically mentioned in whose favour the same has been tendered. Moreover, entire written statement shows that he has not specified who is the landlord/owner of the tenanted premises, if not the petitioners. Perusal of record clearly shows that there exist the relationship of landlord-tenant between the parties and the petitioners have been able to prove that they are something more than the tenants.
Section 14 (1) (b) sub-letting:-
9. 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 recovery of ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 4 possession of any premises shall be made by court or any 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 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".
10. 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.
ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 5
11. 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.
It is also settled that mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself. Subletting takes place only when there is divesting of 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 cannot 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.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
12. 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."
ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 6 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.
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 the court to raise an inference that such possession was for monetary consideration.
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 ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 7 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."
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."
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.
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 ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 8 of the whole or part of the premises to the sub-tenants and this should be substantiated by the evidence.
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 the shape of an express or implied admission made in the compromise agreement itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible 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 ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 9 receivable at the rivalas evidence are by themselves not conclusive. They can be shown to be wrong."' 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 subtenancy lies on the landlord. 0The Supreme Court in "Jagan Nath Vs Chander Bhdn, AIR 1988 SC1362", 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."
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)."
"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)."
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 :-
ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 10 "4. Learned counsel for the Petitioners has argued that mere change of the constitution of firm from partnership to proprietorship 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 the partners in whose favour the tenancy was created is in possession of the shop and another person, who was later on inducted as a partner and then becomes sole proprietor of the 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 dissolving 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."
13. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the testimony 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.
14. 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.
15. Perusal of record shows that in the present case, petitioners have claimed that Sh. Satinder Saini is in possession of the tenanted premises who is running the office under the name and style of M/s Satinder Saini ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 11 & Company in the tenanted premises and also claimed to have filed two photographs showing the name board of the company of Satinder Saini.
On the other hand, respondent has claimed that the possession is still with the respondent which is being used as godown and Sh. Satinder Saini has nothing to do with the tenanted premises.
I have gone through the documents filed on record, pleadings and material on record. Perusal of record shows that although the petitioners have claimed to have filed photographs in present petition but these were not on record due to which in the chief examination these were de- exhibited. Perusal of record shows also that no documentary evidence has been placed on record by the petitioners showing that someone else is in possession of tenanted premises. Moreover, during the cross-examination, the petitioner/PW1 Sh. Ankush Aggarwal has inter-alia deposed that "I do not know if Satinder Kumar is having its office in Janakpuri at 514, Suneja Towers-I, Distt. Centre, Janakpuri, New Delhi-110058. I have not place any document on file of the court to prove that Satinder Kumar sits in the premises in question and runs his office. It is correct that there is no connection of electricity and water in the premises in question. It is wrong to suggest that computer is necessary for the practice of C.A. There is Bar Association of Advocates practising in Taxation. I can not say if Satinder Kumar Saini is having his office of C.A at Janakpuri address since 1994. I am not aware if Satinder Kumar is having his phone no. 5511904 at Janakpuri office in his name. It is correct that institute of Charted Accountants of India has its office at I.T.O, New Delhi....."
ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 12 As such, perusal of testimony of PW1/petitioner clearly shows that he himself has admitted to have not filed any document showing that the office is being run by Sh. Satinder Saini in the tenanted premises. Moreover, it is also admitted that there is no water and electricity connection in the tenanted premises. Perusal of entire record shows that the petitioners have misreably failed to prove even prima-facie that someone other than the respondent is in physical as well as legal possession of the tenanted premises.
21. It is well settled that the Petitioner/landlord has to prove prima-facie case that somebody else in the possession of the tenanted premises and once he has been able to prove it then onus shifts to the respondent/tenant to explain the reasons for presence of other person in the tenanted premises. It is also well settled that not only the physical possession but also legal possession should be parted with by the tenant/respondent to prove the sub-letting U/Sec. 14(1)(b) of D.R.C. Act.
In view of the exhaustive reason and material on record, the Petitioners have not been able to prove the parameters of sub-letting as discussed earlier.
As such, this ingredient is not satisfied.
(ii). No consent in writing was taken from the landlord by the tenant.
ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 13
22. Since the Petitioners have not been able to satisfy the first ingredient of section 14(1)(b) of DRC Act, the present ingredient has become infructuous.
CONCLUSION:-
23. In view of exhaustive discussion, the Petitioners have not been able to prove all the ingredients of Sec. 14(1)(b) of D.R.C. Act against the respondent. As such, the present petition is dismissed.
24. This file be consigned to Record Room after due compliance.
Digitally signed AJAY by AJAY NAGAR
Date:
NAGAR 2021.03.20
14:41:03 +0530
Announced in open court (Ajay Nagar)
on 20.03. 2021 Additional Rent Controller-2
Central District, THC, Delhi.
(This judgment contains 14 pages)
ARC No.79709/16 Sh. Ankush Aggarwal Anr. Vs Sh. Om Prakash 14