Delhi District Court
M/S Tirath Ram Sahni (Huf) vs Sardar Gurmukh Singh on 31 July, 2018
-1-
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No: 25470/2016
1. M/s Tirath Ram Sahni (HUF)
Through its Karta Sh. Tirath Ram Sahni,
2. Sh. Tirath Ram Sahni
S/o Sh. Peshori Lal Sahni
3. Sh. Ascharaj Lal Sahni, (HUF)
Through its Karta Sh. Ascharaj Lal Sahni
4. Sh. Pankaj Sahni, (HUF)
Through its Karta Sh. Pankaj Sahni
18, DLF, Industrial Area,
Najafgarh Road, Moti Nagar,
New Delhi.
....Petitioners
VERSUS
1. Sardar Gurmukh Singh
R/o J-10/23, Second Floor,
Rajouri Garden, New Delhi.
IInd Address:-
18, D.L.F. Industrial Area,
Najafgarh Road, Moti Nagar,
New Delhi.
2. Sh. Kirpal Singh
S/o Sh. Aroor Singh
R/o C-67, Namdhari Colony,
Kirti Nagar, New Delhi.
Also at:-
18, D.L.F. Industrial Area,
Najafgarh Road, Moti Nagar,
New Delhi. .... Respondents
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh
2
Date of Institution : 17.09.2011
Date of Judgment : 31.07.2018
JUDGMENT
1. Brief facts of the present case are that on 17.09.2011, the petitioner filed a 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 respondents in respect of the tenanted premises in property No. 18, DLF Industrial Area, Najafgarh Road, Moti Nagar, New Delhi, as shown in red colour in the site plan (hereinafter referred to as "tenanted premises").
2. The case of the petitioner is that respondent no. 1 has sublet, assigned or otherwise parted with possession of the tenanted premises to the respondent no. 2 without the consent in writing of the petitioners and respondent no. 2 is in actual and exclusive possession of the tenanted premises and the respondent no. 1 has no concern with the business being carried out by respondent no. 2 in the premises in dispute.
It is further averred that premises were let out to the respondent no. 1 under the deed of rent agreement dated 07.08.2004. It is also submitted that petitioners being the owners of the tenanted premises are landlords qua respondent no. 1 and the respondent no. 1 has paid rent to the petitioners upto 31.05.2011.
It is further averred that the petitioners are the owners of ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -3- the property in dispute and they have been recovering rent from the respondent no. 1 under the name and style of M/s Bhagwan Woolen and Cotton Press.
It is further averred that respondent no. 2 (sub-tenant) is carrying on business in the tenanted premises in the name of M/s Hemkunt Engineers.
3. Written Statement was filed by both the respondents jointly i.e. respondent no. 1 & 2 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 cost.
In their written statement, the respondents inter-alia took the preliminary objections that the petition is without any cause of action and liable to be dismissed.
It is admitted by the respondents in para 11 of their W.S. that actual rate of rent is Rs. 1331/- per month excluding House Tax and the other charges. It is further submitted by the respondents that the electricity connection has been installed by the tenants at their own cost and paying the bills directly to the authorities concerned.
It is further submitted that the respondent no. 2 (sub- tenant) has no concern with the tenanted premises as he is business partner of the respondent no. 1 (tenant). It is further submitted that respondent no. 1 is lawful tenant in respect of tenanted premises in question and occupied the same.
The landlordship of the petitioners is admitted by the respondents but they have denied that respondent no. 1 has not paid or tendered the rent w.e.f. 01.06.2006. It is further claimed by the respondents that respondent no. 1, who is the tenant and ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh 4 in occupation of tenanted premises has tendered the rent to the petitioners through his employee who usually collects cheques from the tenants but 01.06.2011 onwards he has refused to collect the cheques from the respondent no. 1 on the pretext that he has been asked by his employer not to collect cheques from respondent no. 1.
It is further contended that respondent no. 1 is running his partnership business with the respondent no. 2 in tenanted premises vide Partnership deed dated 22.10.2010.
It is further contended that respondent no. 1 is in the exclusive actual physical possession and having full control over the tenanted premises and operating his business therefrom.
Lastly, respondents pray to the court to dismiss the present eviction petition with cost.
4. Record reveals that the replication was filed by the petitioners in which the petitioners have reiterated and reasserted their stand taken in the petition.
It is inter-alia denied by the petitioners that respondent no. 1 is running partnership business with respondent no. 2 in the tenanted premises vide partnership dated 20.10.2010. It is further contended that no copy of the alleged partnership deed has been filed by the respondents on record. It is claimed that the respondent no. 2 is in actual and exclusive possession of the tenanted premises and respondent no. 1 has no concern with the business being run therein by the respondent no. 2.
Lastly, the petitioners pray to the court to pass an eviction order against the respondents.
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -5-
5. Thereafter, the matter was fixed for Petitioners' Evidence. The petitioners examined petitioner No. 3 Sh. Ascharaj Singh as PW-1 as only witness to prove their case. The petitioner no. 3/PW-1 tendered his evidence by way of affidavit Ex. PW-1/A on 05.11.2012 and was cross examined at length by the Ld. Counsel for the respondents. PW-1 relied upon the document Ex. PW-1/1 site plan.
6. Thereafter, the matter was fixed for respondents' evidence. Both the respondents examined themselves by way of affidavits as witnesses RW-1 and RW-2 and they have relied upon the documents Ex. RW-1/1 i.e. Partnership Deed and Ex. RW-1/2 notice for dissolution of Partnership deed.
7. I have heard the arguments advanced by both the Ld. Counsels for the parties at length and also gone through the case law relied upon i.e. Amar Singh Trilochan Singh vs. Jasoti 2003 (69) DRJ 63. Learned counsel for petitioners inter-alia submits that Landlordship of the petitioners are not disputed by the tenants/respondents in the present case and he relies on Section 14(4) of D.R.C. Act. He further argues that it is the duty of the respondent/tenant to prove that genuine partnership was created by the tenants/respondents. He further relies on the testimony of witnesses. He also submits that the partnership deed filed by the respondents is dated 22.11.2010 but in the affidavit filed by the respondents date mentioned is 22.10.2010. As such, he claims that such partnership deed is fabricated and it cannot be relied upon. Further, he also claims that no book of accounts has been maintained by the respondents. Moreover, ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh 6 he refers to Ex. RW-1/2, letter of dissolution of partnership deed by respondent no. 1. He further claims that partnership deed is not enough for creating partnership and the respondents have not been able to prove the functions of partnership.
On the other hand, Ld. Counsel for the respondents submit that petitioners have to prove the exclusive possession of the sub-tenant in the tenanted premises but the petitioners have not been able to prove it on record. He further claims that respondent No. 1 is still holding the tenanted premises and he further argues that the main question before this court is whether the subtenant is independently doing the business in the tenanted premises or not. He further contends that in the eviction petition, the petitioners have not mentioned the details how the respondent no. 1 has sublet or assigned or parted with the possession of the tenanted premises in favour of respondent no. 2 and the petitioners have merely reproduced the language of legislature as used in Sec. 14(1)(b) of D.R.C. Act. He further claims that the partnership was dissolved by the respondents as the business was not going on well and just because of those reasons statements of accounts and books were not maintained by the respondents. Lastly, he claims that the respondent no. 1 is still having the exclusive possession of the tenanted premises after the dissolution of partnership.
8. I have carefully gone through the material on record and the case law relied upon by the parties. It is expedient to discuss some case law and statutory provision of law in this regard.
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh 7
9. Section 14 (1) (b) sub-letting:-
"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 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) 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:-
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -8-
(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.
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.
12. 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. Sub-letting takes place only when there 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 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.
The divestment or abandonment of the right to possession is always necessary to invoke the clause of parting with possession.
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -9-
13. 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."
14. It is well settled that initial burden to prove that subtenant 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.
15. In the case titled as Associated Hotels of India Limited Delhi Vs. S.B. Sardar Ranjit Singh, 1968, AIR (SC) 933, it was held that when eviction is sought on the ground of subletting, this onus to prove subletting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
16. 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 ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -10- 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.
17. 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 ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -11- 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."
18. 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 of the whole or part of the premises to the sub- tenants and this should be substantiated by the evidence.
19. 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. ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh 12 Mohini Devi, etc. that the initial burden lies upon the landlord to establish that any of the conditions mentioned in the clauses (a) to (e) of the proviso exists (vide at page 170-I of the report."
20. Keeping in view, the aforementioned principles of law and observations made by the Hon'ble Superior Courts, I have carefully gone through the entire testimonies of all the witnesses from the petitioner side and respondent side and also all the relevant documents filed by both the parties and arguments advanced by the Ld. Counsels and I have also gone through carefully the case law relied upon by the Ld. Counsel for the parties.
21. In the case titled as Shri Amar Singh Trilochan Singh vs Smt. Jasoti; 2003 (69) DRJ 63 (Relied upon by the petitioners) it was observed as under:-
"Similarly in the case of Lal & Co. Vs. A.R. Chadha 1969 Rent Control Reporter 940, it was held by Hon'ble Mr. Justice Desphende that if a tenant is in exclusive possession and enters into a partnership with another person then it would not amount to sub-letting or parting with possession because it was observed that partnership is not a legal person and is merely an association of persons and the name given to it.
24. Examining the facts of the present case in the light of the aforesaid decisions at the outset I may mention that there is no dispute that if a tenant enters into a partnership with another person then the question of subletting or parting with possession does not arise. But all the same the Controller and ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -13- the authorities under the Act are duty bound to examine the partnership deed and to separate the grain from the shaff so as to see if it is bogus or a sham document or a genuine document.
Keeping in view this, sub-section (4) to Section 14 of the Act has been incorporated which is to the following effect:-
"For the purpose of clause (b) of the proviso to sub- section (1), any premises which have been let for being used for the purpose of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person."
It was further observed that :-
"It is not merely the document, which makes one to conclude that it is not a genuine but the appellants had full opportunity to show if any such partnership functioned at all or not. As reproduced above, the said partnership has no bank account. It does not pay income-tax; it is not a registered partnership; it maintains no register of employees; and no account are maintained or produced so as to show that any such partnership functioned. Above- all, there is not even a single voucher purported to have been signed by any of the appellants on behalf of the partnership. If appellants were partners of any such concerned, they would have had some ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh 14 transactions which are totally absent."
It was further observed that:-
"When a third person is established to be functioning in the property in question and there is nothing to show that the tenant did any business from the shop in dispute the conclusions of sub- letting or parting with possession are obvious. To the same effect is the decision of Hon'ble Mr. Justice Khanna in the case of Abdul Aziz Vs. Mohd. Yaqub 1970 Rent Control Journal 492. The trial court on that score rightly passed the order of eviction."
22. On the other hand, respondent has relied upon the judgment United Bank of India vs. Cooks and Kelvey Properties (P) Ltd. 1995 AIR 380; It was observed as under:-
"From the evidence, it is clear that though the appellant had inducted the trade union into the premises for carrying on the trade union activities, the bank has not received any monetary consideration from the trade union, which was permitted to use and enjoy it for its trade union activities. It is elicited in the cross-examination of the President of the trade union that the bank had retained its power to call upon the union to vacate the premises at any time and they had undertaken to vacate the premises. It is also elicited in the cross-examination that the bank has been maintaining the premises at its own expenses and also paying the electricity charges consumed by the trade union for using the demised premises. Under ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -15- these circumstances, the inference that could be drawn is that the appellant had retained its legal control of the possession and let the trade unionto occupy the premises for its trade union activities. Therefore, the only conclusion that could be reached is that though exclusive possession of the demised premises was given to the trade union,the possession must be deemed to be constructive 6 (1988) 1 SCC 383 possession held by it on behalf of the bank for using the premises for trade union activities so long as the union used the premises for trade union activities. The bank retains its control over the trade union whose membership is only confined to the employees of the bank. Under these circumstances, the inevitable conclusion is, that there is no transfer of right to enjoy the premises by the trade union exclusively, for consideration.
Thereby, the existence of consideration an ingredient of the subletting has not been present to hold that the respondent had sublet as would make it liable for eviction under Section 13(i)(a) of the Tenancy Act."
20. In the case titled as Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Others3, it was held that in a case where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the demised premises while he himself retains legal possession thereof, the act of the landlord does not amount to subletting. It was held that whether there is genuine partnership or not must be judged in the facts of each case in the light of the principles applicable to partnership.
23. In the case titled as Celina Coelho Pereira & Ors vs Ulhas ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh 16 Mahabaleshwar Kholkar & Ors on 30 October, 2009 Civil Appeal No. 7258 of 2009 (Arising out of SLP(C) No. 3660/2007); the Hon'ble Apex Court observed as under:-
"28. The legal position that emerges from the aforesaid decisions can be summarised thus :
(i) In order to prove mischief of subletting 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 tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has (2008) 7 SCC 722 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 subletting. 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 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.
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -17-
(iv) If 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 subletting is on 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 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 landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
24. A three-Judge Bench of Hon'ble Supreme Court in Parvinder Singh v. Renu Gautam and Others (2002) 9 SCC 516 (2004) 4 SCC 794 commented upon the device adopted by tenants many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The following observations are worth mentioning :
"The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh 18 of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack- renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub- tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, maybe along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant."
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -19-
25. I have carefully and minutely gone through the material on record. It is well settled that it is the duty of the petitioner/landlord to prove the exclusive possession of some person other than the tenant in the tenanted premises. It is also correct that the duty of the landlord is to prove it prima-facie only and once it is proved by the landlord the exclusive possession of tenanted premises by some other person, the onus shifts to tenant/respondent to prove the reasons for presence of other persons.
26. Record reveals that in the present case, the respondents have not disputed the landlordship as well as the ownership of the petitioner. Moreover, respondents have admitted that respondent no. 2 is in possession of the tenanted premises but the claim of the respondents is that respondent no. 2 is not the sub-tenant but he is the partner with the respondent no. 1 and both the respondents i.e. respondent no. 1 & 2 created a Partnership firm by way of Partnership Deed dated 22.11.2010 Ex. RW-1/1. As such, it is refuted by both the respondents that respondent no. 2 is subtenant in the tenanted premises.
On the other hand, petitioners have claimed that the partnership deed as claimed by the respondents is a sham document to conceal the sub-tenancy.
27. I have carefully and minutely gone through the evidence on record as well as the documents placed by both the parties on record specifically partnership deed Ex. RW-1/1.
Perusal of partnership deed Ex. RW-1/1 shows date of partnership deed as 22.11.2010 between the respondent no. 1 ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -20- & 2 whereas the testimony of RW-1 reveals that the respondent no. 1 has not been able to recollect not only the date, month but also the year of such partnership deed.
On the other hand, respondent no. 2 has also stated in his evidence the date of execution of such partnership deed on 22.10.2010. As such, there is variation of date of execution of such partnership deed.
28. I have also gone through the entire testimonies of all the witnesses and documents on record which show that no document has been placed on record by the respondents in respect of statement of account, bank accounts and other goods of accounts in respect of partnership deed which remained in force from 22.11.2010 to 19.04.2013 as claimed by the respondents. I have also gone through the testimony of RW-1 wherein he has deposed that he does not know whether any bill book in respect of said business was maintained or not. As such, RW-1/respondent no. 1 himself has admitted impliedly that no bill book was maintained as he has not denied that such bill book was not maintained. Moreover, RW-2 has deposed that "The partnership between me and the respondent no. 1 came into existence perhaps on 20.10.2010. A bank account of the said partnership ship firm was also opened. Bill books in respect of the said partnership business were also being maintained. I do not know as to who is in possession of the accounts books of the said partnership firm. The account books being maintained by me and the respondent no. 1 as we did not have big business. We use to make payment and received payment in respect of the said business, both in cheques and ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -21- cash. The said partnership firm continued for about two and half or three years. A dissolution deed was executed in respect of the said business. I do not remember the date, month and the year, when the said dissolution deed was executed. The respondent no. 1 is in possession of the said dissolution deed. The respondent no. 1 did not give me any notice in writing for dissolving the said partnership firm. We were not having specific work assigned to us, but we were jointly doing all the business."
Perusal of testimony of RW-2 manifestly shows that RW-1 has admitted that bank account of said partnership firm was opened. Moreover, bill books and account books in respect of said partnership were also being maintained by both the respondents but record clearly reveals that both the respondents have not placed any documents in support of aforesaid claim. Moreover, it is also claimed by RW-1 that respondents used to receive payments in cash as well as by way of cheque but no such cheque or document in regard has been produced by both the respondents.
29. Perusal of record also shows that a notice for dissolution of partnership Ex. RW-1/2 has been placed on record by the respondents but testimony of RW-1 reveals that RW-1 has deposed that no written document was ever given by him to respondent no. 2 to dissolve the said firm. Furthermore, testimony of RW-2 also shows that respondent no. 2 has claimed that respondent no. 1 is in possession of said dissolution deed but further claims that respondent no. 1 did not give him any notice in writing for dissolution of said partnership ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -22- firm. As such, there is glaring contradiction between the testimonies of both the respondents i.e. RW-1 & RW-2. Furthermore, relevant para of said partnership deed Ex. RW-1/1 is as under:-
"Handling of work:-
Both the partners shall be responsible to execute the work of the unit assigned to them. Looking to the experience and age of the parties, it has been decided amongst them as under:-
First party shall supervise the affairs related to the land taken by him on rent, which shall be reimbuse by the firm to first party/ paid directly to the landlord under the name of the first party and second party shall be looking after the unit and shall be responsible for managing of the affairs of the factory of the unit."
30. The aforesaid term of the partnership deed manifestly shows that the duty of the respondent no. 1/tenant is only in respect of land taken by him on rent and on the other hand, the duty of the respondent no. 2 is looking after the unit for managing the affairs of factory. As such, term manifestly shows that the business in the aforesaid tenanted premises is being run solely by the respondent no. 2.
31. Furthermore, relevant para of said partnership deed Ex. RW-1/1 is as under:-
"That the name and the style of the firm shall be M/s Hemkunth Engineers, which shall operate from 18, DLF Industrial Area, Najafgarh Road, Moti Nagar, Delhi-110015. Tenancy right qua this place along with the electric connection with K No. ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -23- 33185045107, shall always rest with the first party even on dissolution of the firm and the second party shall not have any claim whatsoever on the tenancy right and electric connection except removal and taking possession of firm's various assets (except the one brought in by party of the first part) installed and other stocks, which may be lying there."
32. Further Partnership Deed Ex. RW-1/1 reads as under:-
"Capital:-
Both the partners shall continue initially and from time to time such amounts and such assets for the firm as may be required to run the business smoothly. Both the parties are initially contributing few old machines besides cash of rupees 5,000.00/- each, into the firm, details and book value of which are given in a list enclosed to this partnership deed. The book value of such assets, as may be brought in by respective partner(s), shall be credited to their respective capital accounts."
33. I have carefully and minutely gone through the partnership deed Ex. RW-1/1. Above mentioned clause of partnership deed manifestly shows that both the parties are claiming to have contributed few old machines besides a cash of Rs. 5,000/- each. I have also gone through the list attached with the partnership deed which shows that two machines have been contributed by the respondent No. 1 i.e. one Lethe Machine worth Rs. 30,000/- approximately and second machine is welding set and hand tools worth Rs. 20,000/- approximately. On the other hand, respondent no. 2 has contributed three machines; first, money Milling Machine CNC machin old worth ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -24- Rs. 05 lakhs approximately, second machine, Power Press worth Rs. 1,80,000/- approximately and third machine, welding set with tools worth Rs. 25,000/- approximately.
34. Perusal of list and partnership deed manifestly shows that respondent no. 1 has contributed in the name only as the respondent no. 1 has contributed the machines and tools worth Rs. 50,000/-. On the other hand, respondent no. 2 has contributed the machines and tools worth Rs. 7,05,000/- (Rupees Seven Lakh Five Thousand Only) approximately. As such, it is clear on record that respondent no. 1 is partner in the name only and he has no role in the partnership deed.
35. Furthermore, Sec. 14(4) of D.R.C. Act manifestly shows that when any premises are let out for business or profession purpose, it shall be deemed to have been sublet by the tenant if the Rent Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business but really for the purpose of subletting. As such, Sec. 14(4) of D.R.C. Act is a presumption against the tenant in case he is claiming that other person who is in possession of the tenanted premises is his business partner and not a subtenant. As such, it is the duty of the tenant to prove that such person is a partner not a subtenant but in my considered view as discussed earlier, the respondent No. 1 has not been able to discharge his duty in this regard.
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -25-
36. It is pertinent to mention that the Ld. Counsel for the respondent has relied upon United Bank of India vs. Cooks and Kelvey Properties (P) Ltd. I have carefully gone through the aforesaid judgment but in my view this judgment is not applicable to the facts and circumstances of the present case as discussed earlier.
CONCLUSION:
37. Testimony of all the witnesses and material on record manifestly show that petitioners have been able to prove the relationship of landlord and tenant between the petitioners and respondent No. 1. Furthermore, it is not disputed by the respondents that the respondent No. 2 was in possession of tenanted premises. Moreover, it is also proved that respondent no. 2 was having the legal possession as well as the physical possession of the tenanted premises as discussed earlier. The absence of consent in writing of the landlord is also admitted.
As such, in my considered view all the ingredients of 14(1)(b) of DRC Act are satisfied.
38. Keeping in view the facts and circumstances of the case, testimonies of all the witnesses from both the sides, submissions made by the Learned Counsels for the parties, well settled position of law and material on record, I am of the considered view that all the ingredients of 14(1)(b) D.R.C. Act are satisfied and consequently, an eviction order is passed in favour of petitioners and against the respondents in respect of the tenanted premises i.e. property No. 18, DLF Industrial ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh -26- Area, Najafgarh Road, Moti Nagar, New Delhi, as shown in red colour in the site plan Ex. PW-1/1.
39. File be consigned to Record Room.
Announced in the open court on 31st July, 2018.
John Digitally signed
by John Doe
Date:
(This judgment contains 26 pages)
Doe 2018.07.31
16:17:57 +0530
(AJAY NAGAR)
Commercial Civil Judge-cum-
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25470/16 Tirath Ram Sahni vs. Gurmukh Singh