Delhi District Court
(Under Section 14 (1) (A) (B) & (C) Of Drc ... vs M/S Food Products on 14 May, 2018
:IN THE COURT OF ATUL KRISHNA AGRAWAL
ADDITIONAL RENT CONTROLLER (SOUTH):
COURT ROOM NO. 204, SAKET COURTS: NEW DELHI
a) Eviction Petition No. 6421/2016
(Under section 14 (1) (a) (b) & (c) of DRC Act.
Smt. Uma Wati, (Since deceased)
Through LRs namely
i) Virender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o B4/162, Safdarjung Enclave,
New Delhi 29
ii) Shri Harender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o B4/162, Safdarjung Enclave,
New Delhi 29
iii) Shri Pushpender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o N12, Green Park Extension,
New Delhi 26
......... Petitioner
Vs.
1. M/s Food Products,
B4/162, Safdarjung Enclave,
New Delhi
Through its Partner Shri Sajiv Trehan,
S/o Sh H N Trehan,
B4/162, Safdarjung Enclave, New Delhi
2. Sh. Sajiv Trehan,
S/o Sh H N Trehan,
B4/199, Safdarjung Enclave, New Delhi110029
3. Sh. Nirmal Kumar Jain,
S/o Sh. Girdhari Lal Jain,
Partner, Food Products,
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.1 / 39
Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018
B4/162, Safdarjung Enclave, New Delhi
House Address B220, Saraswati Vihar,
Delhi
............Respondents
Date of filing : 20.03.1990
Date of Institution : 20.03.1990
b ) Eviction Petition No.6422/2016
(Under Section 14 (1) (a) (b) & (c) of the Delhi Rent Control Act
Smt. Uma Wati,
W/o late Thakur Tej Singh Rathore,
R/o N12, Green Park Extension,
New Delhi16
Through her Attorney Smt. Bimla Devi,
wife of Sh. Thakur Onkar Singh, Advocate,
R/o N12, Green Park Extension, New Delhi
......... Petitioner
Vs.
1. M/s Food Products,
B4/162, Safdarjung Enclave,
New Delhi
Through its Partner Shri Sajiv Trehan,
S/o Sh H N Trehan,
B4/162, Safdarjung Enclave, New Delhi
2. Sh. Sajiv Trehan,
S/o Sh H N Trehan,
B4/199, Safdarjung Enclave, New Delhi110029
3. Sh. Nirmal Kumar Jain,
S/o Sh. Girdhari Lal Jain,
Partner, Food Products,
B4/162, Safdarjung Enclave, New Delhi
House Address B220, Saraswati Vihar,
Delhi ............Respondents
Date of filing : 20. 03.1990
Date of Institution : 20.03.1990
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.2 / 39
Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018
c) Eviction Petition No. 6143/2016
(Under section 14 (1) (k) of DRC Act.
Smt. Uma Wati, (Since deceased)
Through LRs namely
i) Virender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o B4/162, Safdarjung Enclave,
New Delhi 29
ii) Shri Harender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o B4/162, Safdarjung Enclave,
New Delhi 29
iii) Shri Pushpender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o N12, Green Park Extension,
New Delhi 26
......... Petitioner
Vs.
1. M/s Food Products,
Through its Partner
Sh. Nirmal Kumar Jain,
B4/162, Safdarjung Enclave,
New Delhi29
Service to be effected on Sh. Nirmal Kumar Jain
S/o Sh. G L Jain, R/o B220, Saraswati Vihar,
Delhi34 ............Respondent
Date of filing : 08. 03.2004
Date of Institution : 20.03.1990
d) Eviction Petition No. 6121/2016
(Under Section 14 (1) (k) of the Delhi Rent Control Act
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.3 / 39
Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018
Smt. Uma Wati, (Since deceased)
Through LRs namely
i) Virender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o B4/162, Safdarjung Enclave,
New Delhi 29
ii) Shri Harender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o B4/162, Safdarjung Enclave,
New Delhi 29
iii) Shri Pushpender Pratap Singh Charak,
S/o late Thakur Onkar Singh Charak
R/o N12, Green Park Extension,
New Delhi 26
......... Petitioner
Vs.
1. M/s Food Products,
Through its Partner
Sh. Nirmal Kumar Jain,
B4/162, Safdarjung Enclave,
New Delhi29
Service to be effected on Sh. Nirmal Kumar Jain
S/o Sh. G L Jain, R/o B220, Saraswati Vihar,
Delhi34 ............Respondent
Date of filing : 08.04.2003
Date of Institution : 08.04.2003
DATE OF PRONOUNCEMENT : 14.05.2018
JUDGMENT
1. Vide this judgment, I shall dispose off four petitions filed by petitioners under clauses (a) (b) (c) and (k) of section 14 (1) of Delhi Rent Control Act (for short "DRC Act") thereby praying that an order of eviction be passed in favour of petitioners and against the respondents. Eviction petition bearing no. 6421/16 u/s 14(1) (a)(b) and (c) DRC Act and Eviction petition bearing no.6121/16 u/s Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.4 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 14(1) (k) of DRC Act are qua One room self contained residential premises at the front on the ground floor of House No. B4/161, Safdarjung Enclave, New Delhi110029 (hereinafter also referred to as the "front portion of the suit property"). Eviction petition bearing no.6422/16 u/s 14(1) (a)(b) and (c) of DRC Act and Eviction petition bearing no. 6143/16 u/s 14(1) (k) of DRC Act are qua three rooms with bath/WC at the back side on the ground floor of House No. B 4/161, Safdarjung Enclave, New Delhi110029 (hereinafter also referred to as the "rear portion of the suit property"). The facts in issue in all the eviction petitions are similar and even as per order dated 21.08.1998 passed by Ld. Predecessor of this court upon application under Section 151 CPC for consolidation, petitions no. 6421/2016 and 6422/2016 were consolidated. Further allegations in the eviction petitions i.e. 6121/2016 and 6143/2016 are also similar and common questions of law and fact arise therein, hence these eviction petitions are decided together. The eviction petitions were initially filed by one Smt. Uma Wati, however vide order dated 01.06.2005, in view of her death on 20.01.2005, she stands substituted by her LRs i.e. the present petitioner Sh. Virender Pratap Singh and his other brothers, in view of the Will dated 12.01.2005 of Late Smt. Uma Wati.
FACTS IN BRIEF
2. In brief, case of petitioners is that the rear portion of the suit property was initially let out by original petitioner Smt.Uma Wati through her attorney Smt. Bimla Devi to respondent no.1, M/s Food Products on 03.10.1985 for residential purposes vide Lease Agreement dated 03.10.1985. The rent of the said portion of the suit property was Rs.1,500/ per month excluding electricity and water consumption charges which were to be borne by respondent as per bill. Similarly, later on, the front portion of the suit property was let out by original petitioner through her attorney Smt. Bimla Devi to respondent no.1 on 18.11.1985 for residential purposes vide Lease Agreement dated 18.11.1985.
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.5 / 39Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 The rent of this portion of the suit property was Rs.1,300/ per month excluding electricity and water consumption charges.
3. As per petitioner, suit premises were taken on lease actually by respondent no.2 Sh. Sajiv Trehan for residential purposes as a partner of M/s Food Products i.e. respondent no.1, however the lease agreement dated 03.10.1985 and 18.11.1985 was made in the name of respondent no.1 but executed and signed by respondent no.2 as partner of respondent no.1. It is further stated that there was no name or even casual mention of respondent no.3 Sh. Sushil Kumar Jain, at the time of execution of above lease agreements. It is averred that petitioner or her attorney never heard the name of respondent no.3 from respondent no.2.
4. It is further stated that the original petitioner Smt. Uma Wati was a widow and wanted to keep the premises for her residence but one Sh. Gopi Chand Poddar, fatherinlaw of respondent no.2, approached Thakur Onkar Singh (soninlaw of original petitioner Uma Wati and father of present petitioner Virender Pratap Singh). Sh. Gopi Chand Poddar being well known to Thakur Onkar Singh, on his persuasion and requests, Thakur Onkar Singh requested and persuaded the petitioner to let out the said premises to respondent no.2. Thereafter the front portion and the back portion of the premises were let out to respondent no.2 for his residence so that respondent no.2 could live separately and independently with his newly wedded wife in the said premises and also for the employers servants of respondent no. 1.
5. It is further averred that at present respondent no.3, who claims that he is partner of M/s Food Products, has forcibly occupied the said premises and turned out respondent no.2 from the suit property on the ground that the erstwhile socalled business of M/s Food Products has been closed and stopped. It is alleged that respondent no.3 in connivance with respondent no.2, sublet the said premises to M/s Tahiti Courier but now respondent no.3 has turned out respondent no.2 and wanted that tenancy should be transferred in his personal Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.6 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 name. It is alleged that at present, the said premises is in illegal possession and occupation of M/s Tahiti Couriers who illegally, unauthorizedly and without permission of petitioner, forcibly occupied the said premises. It is further stated that respondent no.2 seems to have settled at Shimla and started a Hotel in Manali and respondent no.3 is taking advantage of his absence. It is further stated that respondent no.2 had written a letter to respondent no.3 dated 22.04.1989 from Shimla and had sent a copy thereof to the petitioner and her attorney, for their information and action.
6. It is further alleged that the respondents have damaged the said premises under their tenancy and without the consent and permission of petitioner, they have illegally built an extra room of 10'.6" x 7'.8" by fixing a door in the wall of tenanted portion, opening into another independent room residential set, by covering it with asbestos sheets, which is also under the tenancy and use of respondents no.1, 2 & 3.
7. Petitioner has sought eviction of respondent on the ground of non payment of rent. It is alleged that respondents have neither paid nor tendered the whole of the arrears of rent legally recoverable i.e. since 18.08.1988 onwards (till date) in spite of repeated demands and notices and are defaulters thereof.
8. As per petitioner, tenancy was single however respondents have now sublet, assigned and parted with possession of the said tenanted premises to one M/s Tahiti Couriers, without consent, permission and knowledge of petitioner or her attorney and now the said premises are in exclusive possession of the said subtenant. This is another ground on which eviction is sought u/s 14(1) (b) of DRC Act.
9. Petitioner has further sought eviction of respondents on the ground under section 14 (1) (c) of DRC Act i.e. on the ground of use of premises for other purpose other than that for which they were let. It is alleged that premises was let out for residential purpose but the respondent/tenant has used it and continues to use it for commercial purposes in spite of repeated warnings of the Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.7 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 petitioner. It is thereby alleged that the respondents have violated the terms of Agreement dated 03.10.1985.
10. Accordingly, the present petitions under section 14 (1) (a) (b) and (c) of the DRC Act was filed by petitioner against the respondent for eviction in respect of front and rear portion on the ground floor of H. No. B4/162, Safdarjung Enclave, New Delhi. Prayer is also made qua release of arrears of rent since August 1988 till date. Prayer is also made qua arrears of water and electricity consumption dues as per bills of concerned authority.
11. In the two eviction petitions u/s 14 (1) (k) of DRC Act vide eviction petition no.6121/16 and 6143/16, it is further alleged by the petitioner that the tenant/respondent has notwithstanding notice dated 05.05.2003, used or dealt with the suit premises i.e. both the rear portion as well as the front portion in a manner contrary to conditions imposed on the petitioner/landlady by DDA while granting lease of the land on which the suit premises are built. As per petitioner, suit premises are residential but the respondent is using them for commercial purposes. It is stated that notice was served upon the respondent, however no reply was given. It is further stated that original rent of the front portion was Rs.1300/ per month which has been increased to present level of Rs.1,573/ per month after service of statutory notices. Further the original rent of rear portion was Rs.1,500/ per month which has been increased to present level of Rs.1,996.50 after service of statutory notices.
12. Written statement was filed only by respondent no.3 Sh. Nirmal Kumar Jain. Other respondents have not contested the eviction petition and infact it is stated that respondent no.1 has since been dissolved. In the WS, respondent no.3 alleges that the present petition was malafide, misconceived and devoid of material particulars and petitioner was guilty of gross misrepresentation and suppression of material facts. It is stated that Microbase Software Systems Pvt. Ltd of which respondent no.3 is director, is the tenant in suit premises bearing Municipal no.B4/162, Safdarjung Enclave, New Delhi (front portion) in its Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.8 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 own capacity.
13. It is further stated that respondent no.1 M/s Food Products, a partnership concern of which respondent no.3 alongwith respondent no.2 Sajive Trehan, was partner, was dissolved in the year 1989 and Microbase Software Systems Pvt. Ltd became tenant in the suit premises much prior to that, with the consent and knowledge of petitioner, who had attorned Microbase Software Systems Pvt. Ltd as tenant and had also been accepting rent from it. It alleged that petitioner has deliberately with malafide intentions, made M/s Food Products as a party knowing fully well that the firm does not exist any more and that respondent no. 1 has no concern with the suit premises.
14. Respondent no.3, admits that there are two tenanted portions in the premises bearing House No.B4/162, Safdarjung Enclave, New Delhi29. One portion is in the rear side of the property, comprising of three rooms with bath/WC and the other portion is in the front side comprising of one room with WC, which are the subject matter of present petition. It is further stated that the rear portion was let out for commercial and office purposes by petitioner on 15.10.1985 to M/s Food Products on a rent of Rs.1,500/. Similarly, the front portion was let out for commercial and office purposes by petitioner on 18.11.1985 to M/s Food Products on a rent of Rs.1,300/ per month. The said firm had since been dissolved on 17.04.1989 upon notice of dissolution having been given by respondent no.2, about which petitioner was well aware. The premises in question was obtained through a property dealer to whom the petitioner had instructed to find a tenant. It is alleged that the story of Mr. Poddar was a concoction.
15. Further stated that in the middle of year 1987, respondent no.1 stopped doing any business at all and it was not in a position to bear the rental liability and as such, with effect from October 1987, it was mutually agreed between petitioner Smt. Uma Wati, respondent no.2 and respondent no.3 that M/s Microbase Software Systems Pvt. Ltd. be made tenant in respect of front portion Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.9 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 and consequent upon this mutual agreement, there was surrender of tenancy i.e. front portion in favour of M/s Microbase Software Systems Pvt. Ltd. which became tenant in respect of front portion at the rent of Rs.1300/ per month and started paying rent to the petitioner.
16. With regard to rear portion, it is averred that after M/s Food Products stopped doing any business, some time in April 1988, it was mutually agreed between petitioner Smt Uma Wati, respondent no.2 and respondent no.3 that respondent no.3 shall occupy the vacant, approximately half of the rear portion and carry on his business from there as a tenant and pay rent to petitioner. Consequent to the aforesaid mutual agreement, respondent no.3 exclusively occupied the said half area of the rear portion and started his sole proprietary business in the name and style of M/s Tahiti Couriers and started paying rent of Rs.750/ per month to the petitioner.
17. It is further stated that respondent no.2 had shifted to Himachal Pradesh and as such, sometime in August / September 1988, he showed his inability to pay 50% rent i.e. Rs.750/ per moth in respect of remaining rear portion and requested respondent no.3 to pay this amount also. Upon this, sometime in September 1988, it was agreed between petitioner, respondent no.2 and respondent no.3 that the entire rent of Rs.1,500/ per month for the rear portion be paid by respondent no.3 who shall be tenant in respect of the entire rear portion and do his business from the said vacant rear portion. After surrender of tenancy in favour of respondent no.3, he became tenant in respect of rear portion since then, under petitioner who attorned him as her tenant at the rent of Rs.1500/ per month.
18. It is further alleged that there is misjoinder and nonjoinder of necessary parties. The petitioner was neither the owner nor the landlord of the entire premises and had no right, title or interest in the suit premises and as such the petition itself was not maintainable. It is further stated that somewhere in September 1988, when the rent was about to be paid to petitioner Uma Wati as Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.10 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 had accrued till then, one Col. V P Talwar approached respondent no.3 and told him that one Sh. Sudarshan Kumar of Jammu & Kashmir, was the owner of the entire property and Col. V P Talwar stated himself to be the Attorney of said Sudarshan Kumar. Few days later, said Col Talwar again visited the suit property and showed Perpetual lease deed which was issued by Delhi Development Authority in the name of Sudarshan Kumar. Col. Talwar further informed that Sh. Sudarshan Kumar, the owner of property in question had given Power of Attorney to Thakur Onkar Singh to look after the premises in question and petitioner Uma Wati was the mother in law of Thakur Onkar Singh. Col. Talwar further said that Smt Uma Wati had no concern with the property in question and Sh. Sudharshan Kumar had infact cancelled / revoked the Power of Attorney given by him to Sh. Thakur Onkar Singh, vide a written document and showed the said deed / document of cancellation of Power of Attorney given to Thakur Onkar Singh.
19. It is further stated that Col. Talwar asked respondent no.3 and M/s Microbase Software Systems Pvt. Ltd. to make payment of rent directly to Sh. Sudarshan Kumar and not to pay any rent to Smt. Uma Wati otherwise they would take legal action against respondent no.3 also in addition to legal action they had contemplated against petitioner Smt. Uma Wati, Smt Bimla Devi and Thakur Onkar Singh. When enquired by respondent, Thakur Onkar Singh and Smt. Bimla Devi admitted that Sudershan Kumar was actually the owner of suit premises and pleaded for time to sort out the matter with Sudarshan Kumar. It is further stated that in January 1989, Sh. Sudarshan Kumar himself visited the premises and asked for rent and since then, Sh. Sudarshan Kumar had been claiming rent from the respondent.
20. It is contended that suit property was let out to Microbase Software Systems Pvt Ltd for nonresidential, commercial and office purpose. It is further stated that besides respondent and M/s Microbase Software Systems Pvt. Ltd., there are two more tenants in the said property on the ground floor itself and Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.11 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 both the said units are also let out for commercial purposes by said petitioner. In fact whole of the ground floor of said property, had been let out for commercial purposes by the petitioner since last more than 20 years. It is further contended that tenanted premises was not a self contained residential set rather the same is and had been let out for commercial and office purpose.
21. It is further alleged that the site plan attached by petitioner was incorrect.
It is denied that premises had been sublet to M/s Tahiti Couriers without consent, permission and knowledge of petitioner. It is stated that no copy of alleged Agreement dated 03.10.1985 had been supplied to respondent no.3 and any agreement between petitioner and respondent no.1 is totally irrelevant and inconsequential in view of creation of new tenancy.
22. It is denied that Microbase Software Systems Pvt. Ltd. had in any manner damaged the premises in question or had built any extra room or had done anything or much less with / without the permission and consent of the petitioner. It is further denied that there was any ground of nonpayment of rent in favour of petitioner. It is stated that Sh. Sudershan Kumar has been claiming to be the owner of the premises which has also been admitted by the petitioner as well as Thakur Onkar Singh and Sh. Sudershan Kumar had been demanding rent from respondent no.3 however, even after passage of considerable time, petitioner has not yet sorted out the matter with Sh. Sudershan Kumar, who alleges that petitioner is in wrongful and illegal occupation of the premises in question.
23. It is further denied that suit premises was sublet, assigned or possession of the whole or any part of the premises was parted to anyone. It is reiterated that suit premises have been let out for office and commercial purposes to Microbase Software Systems Pvt. Ltd. and the same was being used as such, ever since.
24. It is further denied that any notice was ever served on respondent no.3. It was denied that Microbase Software Systems Pvt Ltd had forcibly occupied the Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.12 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 premises in question or had turned out respondent no.2 Sajive Trehan from the premises. It is alleged that petitioner and respondent no.2 are attempting to collude with each other against Microbase Software Systems Pvt. Ltd. as respondent no.2 has to pay a lot of amount to respondent no.3 on account of business of respondent no.1 and in order to somehow avoid payment of the same, respondent no.2 was likely to tow the line of petitioner.
25. It is stated that the correct description of the rear tenanted premises was three rooms, with two covered with asbestos sheet roof, two covered spaces and one bath room, all these covered with asbestos sheet. It is denied that rent of the front portion of the premises is Rs.1573/ per month rather it was Rs.1300/ per month. It is further denied that rent of the rear portion of the premises was Rs.1996.50 per month rather it was Rs.1500/ per month. It is stated that ever since 1987, respondent has been tenant in respect of premises in question (rear portion) unto whom the premises were surrendered and he was made the exclusive tenant in his personal capacity. It is specifically denied by respondent that he had used or dealt with both the portions of the tenanted premises in a manner contrary to the conditions imposed on the petitioner by DDA while granting lease of land on which the suit premises are built. It is contended that the petitioner was not a lessee under the DDA. The receipt of legal notice dated 05.05.2003 qua both the portions was also denied. Prayer is made for dismissal of the eviction petitions with costs.
26. Replication was filed on behalf of petitioner to the WS of respondent denying the objections raised by respondent no.3. It is stated that premises were let out to M/s Food Products of which respondent no.3 was one of the partners. It was denied that respondent no. 3 was tenant in the rear portion of premises in his personal capacity. It is further stated that petitioner had no knowledge of dissolution of said firm nor she was informed about the same by any of the respondents.
27. It is contended that no unilateral agreement of tenancy can be created Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.13 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 against the respondent. It was denied that petitioner had attorned respondent in any manner whatsoever or that respondent paid any rent in his personal capacity. It is alleged that firm / respondent no.1 has defaulted in payment of rent since 18.08.1988 despite repeated demands and notice in writing. It is admitted to the extent that two tenancies have been created in favour of respondent no.1 and the extent of accommodation is correctly described in the two eviction petitions filed against respondent no.1 and its partners.
28. It is further contended that the petitioner had created tenancy in favour of respondent no.1 M/s Food Products and unless she agrees to create fresh tenancy in favour of any other person/party, the said M/s Food Products continues to be her tenant. It is denied that partnership had been dissolved w.e.f. 17.04.1989 and that any notice of dissolution was given. It is stated that even otherwise, petitioner was not bound by such notice unless she consents to create tenancy in favour of any other than respondent no.1. It is stated that both the portions i.e. rear and front, were let out for residential purposes and not for commercial purpose.
29. It is further denied that respondent no.1 stopped doing any business in the middle of year 1987 or that it was mutually agreed between the partners Sanjiv Trehan and respondent no.3 that Microbase Software Systems Pvt Ltd be made tenant in respect of front portion and that there was surrender of the tenancy rights as alleged. It is contended that it was otherwise illogical and unacceptable that petitioner would create a fresh tenancy in favour of respondent no.3 at the same rate of rent i.e. Rs.1300/ per month for which the premises were originally let out to respondent no.1.
30. It is also denied that respondent no.3 started his business in the name and style of M/s Tahiti Couriers and started paying Rs.750/ per month in respect of rear portion. It was further denied that respondent no.2 Sh. Sanjiv Trehan had shifted to Himachal Pradesh and that he showed his inability to pay rent in August / September 1988 and that he requested respondent no.3 to pay the half Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.14 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 of the rent i.e. Rs.750/. It is further denied that Sajive Trehan and respondent no.3 agreed that the entire rent of Rs.1500/ per month for the rear portion shall be borne and paid by respondent no.3 and that respondent no.3 alone shall be the tenant. It is stated that the story of respondent no.3 becoming the exclusive tenant in respect of suit premises was most ridiculous and incredible for, if it were so, the petitioner could not have forsaken her right to proportionately enhance the rate of rent at the time of socalled creation of exclusive tenancy in favour of respondent.
31. It was denied that there was any misjoinder or nonjoinder of necessary parties in the present petition. It was denied that respondent no.3 had become a direct tenant in respect of suit premises after the tenancy rights were surrendered by the other respondents in favour of respondent no.3. It is stated that there never was any dispute regarding the ownership of the suit premises. It is stated that respondent no.1 having been inducted as tenant by petitioner, it has no locus standi to challenge or question the ownership of petitioner in the suit premises. It is further stated that even the partners of respondent no.1 cannot challenge or question the ownership of the petitioner.
32. It is stated that petitioner is the motherinlaw of deceased Thakur Onkar Singh and that she has purchased the property No.B4/162 by virtue of power of attorney executed by Sudershan Kumar. It is denied that the power of attorney in favour of Thakur Onkar Singh had been cancelled by a written instrutment and that any such document was shown to respondent no.3. It is further denied that any such meeting of respondent no.3 or any incident took place with Col. V P Talwar and Sh. Sudershan Kumar, as was contended in the written statement. It is averred that the petitioner was the owner / landlady of the suit premises and the perpetual lease deed was also in her possession and that Sh. Sudershan Kumar was left with no right, title or interest in the suit property as he had sold, transferred and alienated the same, in favour of petitioner. It is alleged that a false and frivolous story had been spun by respondents in order to evade and Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.15 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 avoid his obligations to pay the huge arrears of rent which are due from him/them.
33. It is denied that suit premises i.e. rear portion was let out by petitioner to respondent for commercial purpose or that other Units have been let out for commercial purposes by petitioner. It is contended that it is none of the business of respondent to claim that the suit premises have been let out for commercial purposes to respondent no.1 merely because some other portions in the property have been let out for commercial purposes to other tenants. It is stated that any user contrary to the contracted one, is misuser of the premises and does not confer any right on the respondent or any of them to continue to use the same. It was denied that there was any collusion between petitioner and respondent no.2 or that respondent no.2 had to pay a lot of money to respondent no.3. The contents of the petition were reiterated and contentions raised in the written statement were denied.
34. During the proceedings, original landlord/petitioner Smt. Uma Wati expired and the present petitioner Sh. Virender Pratap Singh was impleaded vide Order dated 01.06.2005 as her LR alongwith other LRs, being their Attorney.
EVIDENCE
35. Vide order dated 21.08.1998, it was directed that eviction petition no.
1093/91 (New No. 6422/16) and eviction no. 1092/91 (New No. 6421/16) be consolidated and evidence recorded in one case, would be treated as an evidence in the other case Evidence in Eviction petition no. 6422/16
36. Petitioner led evidence and examined official witness N K Sharma, Public Relation Inspector, office of Senior Suptd. Of Post Office, Central Division New Delhi as AW1 who deposed that records pertaining to letter No.s 2962 to 2970 dated 27.05.1989 sent from Patiala House Post Office have been Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.16 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 weeded out being time barred. Petitioner also examined another official witness Prem Sagar, Record Keeper, PNB Green Park, New Delhi as AW2 who brought the summoned record i.e. certified copies of S.B.A/c 13399 of Smt. Uma Wati and Smt. Bimla Devi maintained in Green Park Branch, PNG, Delhi and exhibited the same as Ex.AW2/1 to Ex.AW2/4.
37. Thereafter, Sh. Virender Partap Singh, petitioner no.1 was examined as AW3 who deposed that he was the duly constituted attorney of Smt. Uma Wati who is her maternal grand mother and exhibited copy of power of attorney as Ex.AW3/A. He relied on documents i.e. lease agreement dated 18.11.1985 as Ex.AW3/B, site plan of front portions of premises as Ex.PW3/C, legal notice sent to respondents qua front portion as Ex.AW3/D, registered notices returned unserved as Ex.AW3/E to Ex.AW3/H, site plan qua another tenancy in favour of respondent no.1 in respect of back portion i.e. three rooms, open spaces, latrine and bathroom as Ex.AW3/I, its agreement of lease as Ex.PW3/J, its legal notice as Ex.AW3/K, its returned unserved registered notices as Ex.AW3/K1 to Ex.AW3/K5.
38. AW3 has further relied on documents i.e. notice for enhancement of rent as Ex.AW3/6 and Ex.AW3/7 and its ADs as Ex.AW3/8 to Ex.AW3/9, its UPC and receipts as Ex.AW3/10 to Ex.AW3/12. Notices sent under section 8 of DRC Act on 02.11.1999 to respondent vide registered post as Ex.AW3/13 to Ex.AW3/16, its UPC as Ex.AW3/17, notice as Mark A & B.
39. Petitioner's witnesses were duly cross examined by counsel for respondent. Thereafter, PE was closed on 28.07.2016 and matter was fixed for RE. However, despite opportunities, Respondent evidence was not led by the contesting respondent/Nirmal Kumar Jain and vide order dated 02.06.2017 of Ld. Predecessor of this court, RE was closed. It is worth reiterating that no separate evidence was tendered in eviction petition no. 6421/16 and the above evidence is being read in both the cases. Further even the documents exhibited in the testimony of petitioner's witnesses can be found scattered in both the Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.17 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 eviction petitions.
Evidence in Eviction petition no. 6121/16
40. Petitioners led evidence and examined Sh. Thakur Virender Pratap Singh Charak (petitioner no.1) as PW1 who tendered his evidence by way of affidavit Ex.PW1/A and has relied upon following documents: copy of Will and death certificate of Smt. Uma Wati are Ex.PW1/1 & Ex.PW1/2, site plan as Ex. PW1/3, copy of lease deed executed between deceased Smt Uma Wati and respondent as Ex.PW1/4, copy of perpetual lease deed as Ex.PW1/5, copy of agreement to sell dated 15.01.1973 in favour of Smt Uma Wati as Ex.PW1/6, copy of registered GPA in favour of Thakur Onkar Singh as Ex.PW1/7, carbon copy of notice dated 05.05.2003 as Ex.PW1/8, postal receipts as Ex.PW1/9 (colly) and UPC as Ex.PW1/10 and AD cards showing receipt of notice by respondent as Ex.PW1/11 (colly).
41. He was duly cross examined by counsel for respondent. During the course of cross examination, witness was confronted with document Ex.PW1/R1 and he admitted that the said letter was written by him. Petitioners also examined one official witness Sh. Sant Ram, Assistant, Posted at LAB (R) Vikash Sadan DDA, New Delhi as PW2, who brought the record pertaining to property No.B4/162, S J Enclave, New Delhi and deposed that said property is a residential one. Witness also brought misuser charges record and as per which, no misuser charges have been imposed upon M/s Food Products, M/s Tahiti Courier and Ms Microbase Software Pvt Ltd. This witness was also cross examined by counsel for respondent.
42. Respondent led his evidence and examined himself as R3W1 and tendered his evidence by way of affidavit as Ex.R3W1/A. No document was exhibited in his testimony. He was also crossexamined.
Evidence in Eviction petition no. 6143/16
43. Evidence of petitioners in this case is same as in petition no. 6121/16 as Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.18 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 referred above. Petitioners examined Sh. Thakur Virender Pratap Singh Charak (petitioner no.1) as PW1 who tendered his evidence by way of affidavit Ex.PW1/A and has relied upon following documents: copy of Will and death certificate of Smt. Uma Wati are Ex.PW1/1 & Ex.PW1/2, site plan as Ex.PW1/3, copy of lease deed executed between deceased Smt Uma Wati and respondent as Ex.PW1/4, copy of perpetual lease deed as Ex.PW1/5, copy of agreement to sell dated 15.01.1973 in favour of Smt Uma Wati as Ex.PW1/6, copy of registered GPA in favour of Thakur Onkar Singh as Ex.PW1/7, carbon copy of notice dated 05.05.2003 as Ex.PW1/8, postal receipts as Ex.PW1/9 (colly) and UPC as Ex.PW1/10 and, AD cards showing receipt of notice by respondent as Ex.PW1/11 (colly).
44. During the course of cross examination, witness was confronted with document Ex.PW1/R1 which was admitted to be written by him. Thereafter, Sh. Sant Ram, Assistant, posted at LAB (R) Vikash Sadan DDA, New Delhi was examined as PW2. This witness was also cross examined by counsel for respondent.
45. In respondent evidence, respondent examined himself as R3W1 and tendered his evidence by way of Affidavit as Ex.R3W1/A. No document was exhibited in his testimony. He was also crossexamined.
FINDINGS
46. I have heard arguments from both sides and have also perused the record.
I will deal with both the portions of the suit property separately.
47. In order to succeed in all the aforesaid eviction petitions, the petitioner was required to prove the existence of landlord and tenant relationship between the parties. Only one of the respondent i.e. respondent no.3 Sh. Sushil Kumar Jain has contested the eviction petitions. Perusal of WS of this respondent shows that the landlord and tenant relationship is admitted by him. The front and back portion of the suit property which are the subject matters herein, were Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.19 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 let out to M/s Food Products (of which respondent no.3 was admittedly a partner) by deceased petitioner Smt. Uma Wati on 18.11.1985 and 03.10.1985 respectively. Lease agreements are exhibited as Ex.AW3/B and Ex. AW3/J respectively and are not in dispute by respondent. In fact, even in the WS, respondent has admitted at several places that the suit premises herein, was let out to respondent no.1 by deceased petitioner herself. He has further admitted that he had paid rent of the front portion of the premises to the petitioner till August 1988. Furthermore, respondent no.3 also contended that M/s Mircobase Software Systems Pvt. Ltd. entered into a new tenancy agreement with petitioner herself, after respondent no.1 M/s Food Products was dissolved. So it is clear that the premises being let out by petitioner herself, she was undisputedly its landlord as far as respondent is concerned. Under such circumstances, the existence of landlordtenant relationship between the parties stands established.
48. Perusal of WS however also shows that the respondent had sought to raise a defence that petitioner was not the owner of the suit premises by contending that somewhere in September 1988, one Colonel V. P. Talwar approached him and told him that one Sh. Sudarshan Kumar was the owner of the suit property and he (Colonel Talwar) was the Attorney of said Sudarshan Kumar. Said Colonel Talwar also showed him the property papers such as Perpetual lease deed issued by DDA, in favour of Sudarshan Kumar. Colonel Talwar also informed the respondent that petitioner Uma Wati had no concern with the suit property and he also asked respondent to pay rent directly to Sudarshan Kumar and not to pay rent to Smt. Uma Wati. Thereafter in January 1989, Sudarshan Kumar himself asked the respondent to pay rent to him. Accordingly, respondent stopped paying rent to the petitioner since petitioner Uma Wati was not the owner of the suit premises. Hence as per respondent, after coming to know about this fact, he was no longer a tenant under petitioner Uma Wati.
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.20 / 39Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018
49. Perusal of record shows that there is no valid conveyance deed in favour of deceased petitioner Uma Wati or the present petitioner as only a GPA Ex. PW1/7 (in the name of Thakur Onkar Singh) and Agreement to Sell Ex. PW1/7 in her name, have been filed by deceased petitioner as proof of her title in eviction petition no. 6143/16. These documents do not make a person absolute owner of any immovable property. Further even the names of neither the deceased petitioner or the present petitioner have been impleaded in the records of DDA as lessee, till date.
50. However, the law is well settled. Section 116 of Indian Evidence Act prohibits a tenant from disputing title of his landlord during the subsistence of tenancy. If a tenant wants to dispute title of his landlord, he is first required to surrender the possession of tenanted premises to the landlord and then challenge his title. Further, for the purposes of instituting a petition for eviction on the ground of section 14 (1) (a) (b) & (c) of DRC Act as well as under section 14 (1) (k) of DRC Act, there is no requirement in law that the petitioner / landlord is required to be the registered or absolute owner of the tenanted premises. Law only requires that a landlord should be something more than the tenant. There are catenas judgments to this effect that tenant cannot challenge the title of the landlord.
51. In fact, judgment filed by counsel for petitioner in the case of Madan Mohan Vohra Vs Sharwan Kumar, 1990 (42) DLT 271, is squarely applicable to the case herein, where it was held that petition under section 14 (1)
(a) of DRC Act can be filed by a landlord though he may not be the owner of the property. It has been further held that in Maya Devi Vs Rafeeqa Khatoon, 2015 (2) RLR 598, that in an eviction petition, landlord/landlady is not required to prove absolute ownership and it is sufficient even if the landlord is able to establish the he/she has a better claim than the tenant. Reliance was also placed by the petitioner on judgment of Hon'ble High Court of Delhi in case titled as Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.21 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 Madhusudan Kakkar Vs. Jawahar Lal 2017 (238) DLT 515, wherein it was held that the landlord was not expected to prove absolute ownership of the tenanted premises but only a title better than that of tenant. This judgment is also applicable to the facts of the case since, respondent is admittedly only a tenant in the property and his claim cannot be superior to that of landlord.
52. Respondent also took a plea that one of the contentions of the petitioner herself, was that he (respondent no.3) was a stranger to the original petitioner Uma Wati as the premises were taken on rent by respondent no.1 through respondent no.2 and respondent no.3 was no where in the picture and infact he forcibly occupied the premises. Hence this eviction petition was not maintainable. In my considered view, this contention is also misplaced.
53. It is an admitted fact that the front and back portion of the premises were taken on tenancy by respondent no.1 which is a partnership firm, through one of its partner. A partnership firm is not a separate legal entity. It is only a collective name of partners who are carrying on business in common with one another. So if a premises is taken on rent by a partnership firm, it is really the partners of the firm who take it on tenancy but in the name of the firm. In Shyam Sunder And Ors. vs Brij Lal Chaman Lal Purani and Ors. AIR 1968 P H 28, it was held as follows : "It is common ground that the firm Brij Lal Chaman Lal consisting of only two partners, namely Brij Lal and Chaman Lal, was the tenant of the shop in question. In other words, these two persons were the tenants and owners of the leasehold rights and not the firm as such A firm is not an entity or 'person' in law, but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who nave agreed to carry on business in partnership. (See in this connection Dulichand Laxminarayan v. Commissioner of Income Tax, Nagpur, AIR 1956 SC 354). It is undisputed that all the members of an ordinary partnership are interested in the whole of the partnership property. No partner has a right to take Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.22 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 any portion of the partnership property and say that it is his exclusively (Vide Lindley on Partnership, Eleventh Edition, page 426). In a partnership each partner has a right to enjoy and use the entire joint property for his own benefit as any other coowner. Community of interest and unity of possession are the necessary attributes of partnership property."
54. This leaves no doubt that the possession of tenanted property by a partnership firm, is in effect possession of property by its individual partners collectively and jointly and not individually. It is admitted position that respondent no.1 M/s Food Products in whose name the lease deed was executed, was a partnership firm of which respondent no. 2 and respondent no. 3 were partners thereof. The fact that respondent no.2 got executed lease deed Ex. AW3/B and Ex. AW3/J in the name of firm, hardly makes any difference since one partner is the agent of another partner of the firm and binds the other partner for acts done by him in the name of the partnership firm. So the tenanted premises was in possession of both the partners and not only respondent no.2. It is also undisputed that Sh. Sajiv Trehan has settled in Shimla and the suit premises are at present in the exclusive possession of respondent no.3, if not Microbase Software Systems Pvt. Ltd., as is being contended by respondent no.3. So respondent no.3 automatically becomes tenant of petitioner by virtue of being partner of M/s Food Products. Infact respondent no.3 contends that even Microbase Software Pvt. Ltd. had entered into oral lease agreement with petitioner Uma Wati. I will deal with aspect of creation of alleged tenancy or subtenancy in favour of Microbase Software Pvt. Ltd. separately while adjudicating upon the ground of eviction u/s 14 (1)(b) of DRC Act.
55. However for the purposes of present issue, in view of the aforesaid, there is no doubt that there exists relationship of landlordtenant between the parties. The fact that petitioner is having title dispute with a third person is hardly the concern of respondents who are merely tenants in the suit premises and they cannot take any advantage in the alleged defect in title of the person who had Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.23 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 inducted them in the suit property.
56. Respondent also took a plea of misjonder of parties contending that respondent no.1 M/s Food Products was dissolved and respondent no.2 had no concern with the suit property, which facts were within the knowledge of petitioner at the time of filing of eviction petition. However no evidence has been led by respondent as to how petitioner was given information that M/s Food Products had been dissolved. Respondent no.3 has not brought any document on record to show as to when M/s Food Products was dissolved. There is one letter dated 22.04.1989 filed on record, which is written by respondent no.2 to respondent no.3 from Shimla, of which a copy was sent to petitioner. Both the parties are admitting this letter but none of them have exhibited it in their evidence. Infact this letter is the basis on which petitioner is alleging that respondent no.3 has forcibly occupied the suit premises.
57. Even if this letter is taken into consideration, it only shows that M/s Food Products had stopped working. It does not show that the Firm also stood dissolved and from what date. Further through this letter, respondent no.2 infact warned respondent no.3 not to usurp his tenancy rights in the suit property and also to petitioner not to induct respondent no.3 as tenant in independent capacity. This letter infact belies the claim of respondent no.3 that he entered into fresh tenancy agreement with petitioner in a meeting with petitioner and respondent no.2.
58. However, the petitioner has exhibited legal notice Ex.AW3/K qua the rear portion wherein petitioner has herself stated that she had learnt from reliable sources that M/s Food Products had been dissolved by respondent no.2. Under such circumstances, since original petitioner knew about dissolution of respondent no.1, she or her LRs i.e. petitioners herein, later on cannot claim that they had no information about dissolution of M/s Food Products. Hence, as far as respondent no.1 M/s Food Products is concerned, the eviction does suffer from misjoinder of parties. However, it still does not make any difference to Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.24 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 the merits of this case as partnership firm is not a legal entity in the eyes of law and its impleadment or nonimpleadment does not make any difference. At the same time, since it was respondent no.2 who had entered into a lease agreement with petitioner, he was a necessary party to the eviction petition and the petition is not bad for misjoinder of respondent no.2. Under such circumstances, petitioner was well within her/his rights to file the eviction petition against respondent no.2. Accordingly, I hold that there is no merit in the contention that the petitioner was neither the landlady or the owner of the suit premises, as far as the present case is concerned or there is misjoinder of necessary parties.
59. Now I shall deal with all the grounds of eviction separately.
Front portion of the property bearing no. B4/161, Safdarjung Enclave, New Delhi110029, comprising of one room with WC in Eviction Petition No. 6421/16 u/s 14 (1) (a) (b) and (c) of the Delhi Rent Control Act Ground of eviction u/s 14 (1) (a) of DRC Act.
60. In order to succeed on the above ground, besides the existence of landlordtenant relationship between parties, petitioner/landlord was also required to prove the fact that respondent/tenant was in arrears of legally recoverable rent and thirdly, nonpayment of rent within two months despite service of notice of demand of arrears of rent.
61. My above findings already establishes existance of landlord and tenant relationship between the parties. As regards arrears of rent being due from the respondents is concerned, respondent no.3 has himself admitted in his WS that when Col. Talwar met him somewhere in September 1988 and informed him that Sh. Sudarshan Kumar was the owner of suit property, he had stopped paying rent to the petitioner. It is also on record that rent had not been paid to the petitioner even thereafter and it was only after the present eviction petition was filed by petitioner, an order dated 08.05.1997 u/s 15 (1) of DRC Act was passed against respondent no.3 directing him to deposit arrears of rent in court Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.25 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 from 15th Aug 1988 onwards that the respondent started depositing rent before the court which was infact later on, permitted to be released to the petitioner herein, as he was found to be the landlord. So, default on the part of respondent in making payment of arrears of rent being admitted, does not require any further deliberations.
62. The other requirement i.e. nonpayment of rent by the tenant for two months even after service of demand notice by the landlord is concerned, as per petitioner, he had issued a legal notice Ex.AW3/D dated 25.05.1989 to the respondents seeking demand of arrears of rent w.e.f. 17.08.1988 onwards but the same were returned back unserved vide envelopes Ex.AW3/E to Ex.AW3/H.
63. In this regard, law is well settled that if the legal notices are sent on the correct address of the addressee and they are returned back unserved for the reason of "refusal" or for some like reason, it is deemed to be valid service in the eyes of law. In the present matter, notice was sent on the correct addresses of respondents including both at the address of suit property as well as their residential addresses, by registered post. This is the best the petitioner could have done to serve legal notice. However, the notices were returned unserved with the report of "intentional refusal" on envelope Ex. AW1/F and Ex. AW1/H by both respondent no.2 and 3 at their residential addresses and even on the address of suit property, the envelopes were returned unserved for one or the other reason. However, in view of refusal at home addresses, the notices shall have to be treated as deemed service of notice of demand of rent, in the eyes of law. Reliance can be placed on judgement of Hon'ble Delhi High Court in the case titled as Adil Hussain vs Amtul Shamim CM(M) 1040/2010 & CM 14488/2010 decided on 15.04.2015, wherein it was held : "In Kanwal Raj Sadana Vs. D.D. Saigal 58 (1995) DLT 814 relied upon by the learned counsel for the petitioner this Court held that though the envelope sent through registered post was returned Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.26 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 unserved the notice sent under postal certificate was never returned and must have been received by the tenant. Thus it was held that a valid service had been effected. In Prime Industries & Ors. (supra) tenant was served notice for payment through UPC and as regards registered post it was held that because tenant was avoiding service by registered post, since notice sent by UPC was correct address of the tenant and the same was not received back, it was presumed that tenant was served with the notice of demand."
64. Hence, once the legal notices are refused or returned unserved for any reason attributable to the addressee, it is deemed service and has full legal effect. Infact there is even no crossexamination of petitioner no.1 on the point of nonservice of legal notices and hence, the report of postman not being challenged by the respondent, the same stands proved as correct report. As already discussed above, the respondent has admittedly not paid any rent to petitioner since 18th Aug 1988. Under such circumstances, it is clear that the respondent is in default of payment of rent despite service of demand notice. Accordingly, ground for eviction of respondent from the front portion of suit property on account of nonpayment of rent, stands satisfied.
Ground under Section 14 (1) (b) of DRC Act
65. As far as above ground for eviction is concerned, in order to be successful, petitioner was required to prove that respondent had sublet, assigned or parted with the whole or part of the suit property, to a subtenant without obtaining his consent in writing.
66. In the present petition, it is alleged that the front portion of the suit property had been sublet by the respondents to Tahiti Couriers. On the other hand, as per respondent no.3, the tenancy was initially in the name of M/s Food Products however, after dissolution of the said partnership firm, M/s Microbase Software Systems Pvt Ltd. (in which he was director) became tenant under the petitioner in its individual capacity, after on understanding between the Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.27 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 petitioner, respondent no. 2 Sh. Sajiv Trehan and respondent no.3 Sh. Nirmal Kumar Jain, whereby there was surrender of tenancy of said premises in favour of Microbase Software Systems Pvt Ltd. and petitioner also attorned the company as her tenant @ Rs. 1300/ per month.
67. I have already observed above that a partnership firm is not a separate legal entity and infact it is merely a collective name of two partners carrying on a common business, so all the partners are in possession of a tenanted premises, which is leased out to a partnership firm. Hence if in the present case, respondent no.3 was in possession of tenanted premises, there would be no sub letting but if any other person other than tenant, whether a juristic or natural person, comes in its possession, than it would be a case of subletting.
68. In the present case, the name of company which is admittedly in possession of the tenanted premises i.e. Microbase Software Systems Pvt Ltd, itself suggests that the same is a private limited company. Law is well settled that whether it is a private or a public limited company, the same is a separate legal entity in the eyes of law. Such a company can even own assets and incur liability in its own name and can also be a tenant qua any property in its own name. It can also act on its own through its director. So being a private limited company, it is a separate legal entity as compared to respondent no.3 herein. So possession of tenanted premises with Microbase Software Systems Pvt Ltd. is not possession of respondent no.3, in the eyes of law. This shows that a third person is in possession of tenanted premises.
69. Respondent no.3 has contended that a fresh oral tenancy agreement was executed between the earlier petitioner Smt. Uma Wati and respondents and Microbase Software Systems Pvt Ltd. whereby the aforesaid company became new tenant of petitioner Smt. Uma Wati. Hence the onus was upon respondent no.3 to prove the new tenancy by leading cogent evidence which he has completely failed to do. Infact he has not lead any evidence in the present eviction petition or in petition no.6422/16.
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.28 / 39Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018
70. It is also surprisingly note that if a new tenancy was created in the name of the company why the existing rent was not increased by petitioner even though there had been a lapse of three years from the date when the premises were initially let out to the partnership firm. This also supports the contentions of petitioner that no new tenancy was ever created in the name of company. Respondent no.2's letter as referred above, also gives an indication that he had opposed creation of new tenancy in favour of respondent no.3 or his business concern. Infact respondent no. 3, who despite being director in the above company, also could not file any document of company such as its books of account, which can show that it had become tenant directly under the petitioner or was paying rent to petitioner. It is worth keeping in mind that the accounts of a private limited company are required to be duly audited every year, so each and every transaction being entered into by a private company cannot be oral but has to be documentary. However no documentary proof of creation of tenancy has been filed.
71. Under such circumstances, the admission of respondent no. 3 that the possession of front portion of the premises was with the company, shows that there has been a subletting of front portion of the suit property by respondent no.3 in favour of said private limited company. Respondent no. 3 has also failed to prove that any consent from earlier petitioner, Smt. Uma Wati was ever taken for creation of said new tenancy. All these facts clearly prove that the sub tenancy had been created by respondent no.3 without permission and consent of petitioner. Hence, petitioner has been able to prove this ground of eviction qua front portion of the said property.
Ground of eviction under Section 14 (1) (c) DRC Act
72. In order to be successful, the petitioner was required to prove that the respondents had used the front portion of the premises for a purpose other than Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.29 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 for which the same was let out, without obtaining his consent in writing. The contention of petitioner was that the premises were let out for residential purpose but it was used for commercial purpose. As regards the aforesaid, petitioner has relied on lease agreement Ex. AW3/B wherein it is stated that the lease of premises was for residential purposes only. There is no mention of permission to use it for commercial purposes. On the other hand, respondent admits that the premises were being used for commercial purpose but contends that since inception, the premises were let out for commercial purpose and not residential purpose, as per the oral understanding between the parties. Further as per respondent, the purpose being shown as residential was for the reason that suit premises were located in a residential locality. It is further argued on behalf of respondent that petitioner had let out other portions of the suit property to different tenants for commercial purposes which is reflected even from list of dates and events filed by petitioner himself in CS (OS) 438/2009 filed before the Hon'ble High Court of Delhi.
73. The law is that whenever any term or condition of an agreement / contract is reduced in writing, than in view of Section 91 and 92 of Indian Evidence Act, in the presence of documentary evidence, the oral evidence necessarily gets excluded. Even otherwise, respondent has not led any evidence in order to prove that there was an oral understanding between the parties that the tenanted premises were to be used for commercial purposes. Moreover as per respondent, the premises were let out for commercial purposes since its inception and not that the premises were subsequently being used for commercial purposes as per mutual understanding arrived between parties later on. Further the respondent has also failed to prove any subsequent tenancy agreement between parties, as held while deciding ground for eviction u/s 14 (1)
(b) of DRC Act. Under such circumstances, only the lease agreement Ex. AW3/B is to be seen to determine the purpose of letting.
74. Even though the said lease agreement is only for the period of 11 months Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.30 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 which has expired and is also unregistered, however all such objections are meaningless. The tenancy has continued uninterrupted with the respondent since inception. No fresh lease agreement was entered subsequently. Further it is well settled in view of Section 49 of Indian Registration Act that an unregistered document which is required to be compulsorily registered, can be still be used for collateral purposes i.e. an unregistered lease agreement can still be used in order to determine the purposes for which the lease was given.
75. Lease agreement qua the front portion Ex.AW3/B shows that the same was let out to respondent no.1 only for residential purposes. There is not even an iota of suggestion that the same was also for commercial purposes. Under such circumstances, it is not possible for the court to read the word "commercial" along with residential as the purpose of letting. Since it is admitted by respondent that the premises are being used for commercial purposes, it is clear that there is a violation of condition of letting regarding its purpose.
76. Respondent also cannot draw any benefit from the fact that the other portion in the said premises were being let out to commercial establishment by the petitioner for the reason that every contract of letting has to be evaluated in the light of its own terms and conditions. Even if the other portions of the premises have been let out to some other persons for commercial purposes, it cannot lead to a conclusion that the front portion of the premises which is in dispute herein, was similarly let out for commercial purposes even to respondent no.1 despite the fact that the lease agreement does not say so.
77. In my considered opinion as far as the front portion of the suit premises is concerned, petitioner has been able to prove that the premises are being used for purposes other than for what it was let out. Ground of eviction u/s 14(1)(C) of DRC Act stands satisfied.
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.31 / 39Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 Rear portion of the property bearing no. B4/161, Safdarjung Enclave, New Delhi110029, comprising of three rooms with bath/WC in Eviction Petition No. 6422/16 u/s 14(1)(a)(b) and (c) of Delhi Rent Control Act Ground of eviction u/s 14 (1) (a) of DRC Act
78. The landlord and tenant relationship between parties qua rear portion also stands proved as has already been discussed above. As regards arrears of rent being due from the respondent is concerned, as already stated above, respondent no.3 has himself admitted in his WS that when Col Talwar met him in September 1988 and informed him about ownership of Sh. Sudarshan Kumar, he had stopped paying rent to the petitioner. It is also on record that rent had not been paid to the petitioner thereafter and it was only after the present eviction petition filed by petitioner, an order dated 08.05.1997 u/s 15 (1) of DRC Act was passed against respondent no.3 directing him to deposit arrears of rent in court. Thereafter respondent started depositing rent before the court which was infact later on, permitted to be released to the petitioner herein, as he/she was found to be the landlord. So, default on the part of respondent in making payment of arrears of rent being admitted, does not require any further deliberations.
79. The other requirement i.e. nonpayment of rent by the tenant for two months even after service of demand notice by the landlord is concerned, as per petitioner, he had issued a legal notice Ex.AW3/K dated 25.05.1989 to all the three respondents seeking demand of arrears of rent w.e.f. 17.08.1988 onwards but the same were returned back unserved vide envelopes Ex.AW3/K1 to Ex.AW3/K5.
80. As already discussed above, if the legal notices are sent on the correct address of the addressee and they are returned back unserved for the reason of "refusal" or some like reason, it is deemed to be valid service in the eyes of law. Further a legal notice sent to a firm or any of the partner of the firm, is a notice Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.32 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 to all the partners of the firm. Even if this fact is kept aside and only the notice sent to respondent no.3 is taken into consideration, a report on the notice sent to respondent no.3 on his home address vide envelope Ex. AW3/K1 shows that the postman has reported that "praptkarta baar baar jaane per bhi jaan bhoojhkar nahi milta" which when translated means that the addressee was intentionally avoiding service of notice". Similar report of "intentional refusal" (lene mein taal matol) has been given by postman on notice sent to respondent no.2 vide envelope Ex. AW3/K4. Under such circumstances, since notice was sent on the correct address and to all the respondents by registered post, same shall have to be treated as deemed service of notice of demand of rent, in the eyes of law. It can further be seen that not a single question has been put to petitioner no.1 during his crossexamination regarding nonservice of legal notice. Hence in view of non crossexamination on such a vital fact, the same shall have to be deemed to be admitted. Infact the petitioner also made efforts to even prove the report on unserved envelopes by examining PW1 though PW1 stated that the record had been weeded out. On the contrary, respondent did not make any efforts to prove that the report of postal authorities was not correct.
81. Hence, once legal notice is refused or returned unserved for reasons attributable to the addressee, same is deemed to be valid service. As already discussed above, the respondent has admitted having not paid any rent to petitioner since 17.08.1988. Under such circumstances, it is clear that the respondent is in default of payment of rent qua the rear portion as well. Accordingly, ground for eviction of respondent on account of nonpayment of rent, stands satisfied.
Ground for eviction u/s 14 (1) (b) of DRC Act
82. In the present eviction petition, petitioner has alleged that the respondents had sublet the rear portion of the suit premises to M/s Tahiti Couriers without Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.33 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 her permission. On the other hand, as per respondent no.3, after dissolution of the partnership firm M/s Food Products, he became direct tenant under petitioner, in his individual capacity after it was mutually agreed between the petitioner, respondent no. 2 and him (respondent Sh. Nirmal Kumar Jain) whereby there was a surrender of tenancy qua rear portion of said premises in favour of respondent no.3 and petitioner also attorned respondent no. 3 as her tenant @ Rs. 1500/ per month.
83. I have already observed above that M/s Food Products being a partnership firm of which respondent no.2 and respondent no.3 were partners thereof, respondent no.3 was also in possession of tenanted premises being one of its partner. It is undisputed that respondent no.2 has abandoned the suit property and the same is now admittedly in exclusive possession of respondent no.3 and he was admittedly earlier paying the entire rent to petitioner himself. It is also not in dispute that M/s Tahiti Couriers is a proprietorship concern of respondent no.3 himself i.e. it is not a separate legal business entity being only a proprietorship business. So, merely because a tenant starts a new business from the tenanted premises, it cannot be concluded that there was any subletting by the tenant to some other person. It would have been subletting if M/s Tahiti Couriers was proprietary concern of some other person and not respondent no.3, which is not so in the present case. Hence, in my considered opinion, there is no substance in the allegation of petitioner that the rear portion of suit property had been sublet to Tahiti Couriers. Petitioner has failed to prove this ground of eviction qua the rear portion of the suit premises.
Ground of eviction u/s 14 (1)(C) of DRC Act
84. In order to prove that the premises were let out for residential purposes, petitioner has similarly relied on lease agreement Ex. PW3/K qua the rear portion wherein it is stated that the lease of premises was for godown/residential Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.34 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 purposes. It is not specifically mentioned that it was also for commercial purposes. On the other hand, respondent while admitting that the premises were being used for commercial purpose, also argued that premises being permitted to be used as godown, shows that it was for commercial purposes.
85. I have already discussed above that there was a bar to lead oral evidence contrary to documentary evidence in view of Sec 91 and 92 of Indian Evidence Act. However respondent has even otherwise not lead any evidence to prove that there was an oral understanding to use the premises even for commercial purposes. I have already held above that lease agreement despite being unregistered, can still be seen to find out the purposes for which the lease was given.
86. The purposes of letting as per the lease agreement Ex.AW3/K was for godown/residence. It is common knowledge that a godown is required only for commercial establishments. Residential units do not have godown, if at all, they only have storerooms. It has also be kept in mind that the lessee is M/s Food Products and as the name suggests, it is a commercial establishment. In my considered opinion, the use of word "godown" in the lease agreement, shows that the premises were let out for composite purposes i.e. both commercial as well as for residential purposes. Since from the bare reading of lease agreement, it cannot be concluded that premises was let out only for residential purposes, so it is not open for petitioner to now contend that the premises were let out only for residential purposes of respondent no.2 as has been alleged. Hence, this ground for eviction u/s 14(1)(c) of DRC Act fails as far as the rear portion is concerned.
Ground for eviction u/s 14 (1)(k) of DRC Act Eviction Petition No. 6121/16 and Petition No. 6143/16
87. Since the allegations in both the eviction petitions bearing No.6143/16 & 6121/16 are similar, hence they are decided together.
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88. Allegation of petitioner is that respondent is using both the front and back portion of the premises for commercial purposes even though as per the Perpetual lease deed Ex. PW1/5, lease of the entire property was given only for residential purposes to the original allottee Sh. Sudarshan Kumar from whom, the earlier petitioner Smt. Uma Wati claims her right, title and interest having purchased it vide documents such as GPA Ex.PW1/7, Agreement to sell Ex.PW1/6. Hence carrying out of commercial activities from the premises was in violation of terms and conditions of the Perpetual lease deed as the premises are being used contrary to the condition imposed on the landlord while granting lease of the land on which, the suit premises are situated.
89. It is not in dispute that as per the Perpetual lease deed Ex.PW1/5, suit property i.e. both front and rear portion can only be used for residential and not for commercial purposes, without the consent and permission of the original lessor. It is also not in dispute that respondent was carrying out commercial activity from the suit premises, however defence of the respondent is that commercial activity was being carried out with consent of the landlord as at the time of letting out of premises, original landlord Uma Wati had given permission to carry out commercial activities in the same.
90. I have already held while deciding grounds of eviction under section 14 (1) (c) of DRC Act in Eviction Petition No. 6421/16, lease of front portion was granted only for residential purposes and not for commercial purposes. As regards Eviction Petition No.6422/16 qua rear portion, the lease was both for residential as well as commercial purposes. Under such circumstances, the question is whether the consent of landlord to use the premises for commercial purposes even though as per the perpetual lease deed it was given for using the premises as residential, is a sufficient ground to show that ground of eviction under section 14 (1) (k) of DRC Act is made out or not.
91. The answer is in the Negative. As per the scheme of Section 14 (1) (k) of DRC Act, the policy of legislature in enacting clause (k) was to put an end to Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.36 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 unauthorized use of the leased premises and not merely to enable the authority to get back possession of the lease land. Further, clause (k) has been enacted to serve the purposes of the Government and not of the landlord at all. Further, even where the landlord lets out premises for purposes contrary to the purpose for which lease was granted to him, such an agreement between the landlord and tenant is irrelevant, since it is the interest of the Government which has to be safeguarded under clause (k). It is the public will which underlines clause
(k), hence landlord / tenant cannot contract out of it. Hence, it is not open to a tenant to take plea that petitioner had himself permitted to use premises for commercial purposes.
92. Even otherwise in my opinion, this ground of eviction is not made out against the respondent. As already stated above, this ground of eviction under clause (k) is for the benefit of the original lessor i.e. government and not for the benefit of landlord who had let out the suit premises. In the case in hand, no document has been filed by petitioner / landlord in order to show that his name has been substituted in the place of the original lessor Sh. Sudarshan Kumar, in the records of the government. As such, there is no lease agreement between the Government and the present landlord, so the petitioner herein is still to become lessee under the Government whose alleged right, he wishes to protect. Hence, the petitioner cannot act on behalf of the original lessor who does not even recognise him as its lessee.
93. In fact, petitioner examined one Sh. Sant Ram, Assistant, LAB (R) , Vikash Sadan, DDA, New Delhi as PW2 who brought the record regarding misuser charges qua suit property bearing No. B4/162, S J Enclave, New Delhi and as per the record, no misuser charge were imposed either on M/s Food Products or M/s Tahiti Couriers or Microbase Software Systems Pvt Ltd. In fact, this witness deposed that the demand notice demanding misuser charges qua above property was issued by the department in the name of one Sh. Kailash Gupta, who had applied for conversion of the aforesaid property from Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.37 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018 leasehold to freehold, claiming himself to be the owner of the property. Hence, it is apparent that the status of petitioner qua the government / DDA regarding him being its lessee, is itself in dispute, who recognises Kailash Gupta as its lessee. So, petitioner herein cannot claim to be acting on behalf of the original lessor as condition under clause (k) is for the benefit of original lessor i.e. Government/DDA and not the petitioner for whom the only recourse was Sec 14 (1) (c) of the DRC Act.
94. Keeping in view the above facts into consideration, no ground for eviction under section 14 (1) (k) of DRC Act is made out qua both the front and rear portion of the suit property.
Decision:
95. In view of my aforesaid observations and findings, eviction petition no.
6421/2016 qua succeeds on all the three ground i.e. non payment of rent under Section 14 (1) (a) of DRC Act, subletting under Section 14 (1) (b) of DRC Act as well as for using it in violation of terms of tenancy u/s Section (c) of DRC Act. As regards eviction petition bearing no. 6422/2016 qua the rear portion, the same only succeeds on the ground of non payment of rent under Section 14 (1)
(a) of DRC Act and stands dismissed on the ground for subletting under Section 14 (1) (b) of DRC Act and for alleged use of the same in violation of terms of the lease under Section 14 (1) (c) for DRC Act. Further, petitions bearing no. 6121/2016 qua the front portion of the suit property and petition no. 6143/2016 qua the back portion of the suit property on the ground of eviction under Section 14 (1) (k) of DRC Act stands dismissed. At this stage, it is also clarified that this judgment is only confined to the rights, title and interest of the parties to the present eviction petitions and does not in any manner, affect the rights of any third person qua the suit property, who may be having some independent title.
Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.38 / 39Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018
96. Perusal of record shows that an Order dated 08.05.1997 had been passed by the Ld. Predecessor of this court directing the respondent to deposit the arrears of rent w.e.f. 18th Aug 1988 @ Rs.1,300/ per month qua the front portion of the suit premises and to continue depositing the rent @ Rs.1,300/ per month in future. Direction was also given to the respondent to deposit the arrears of rent w.e.f. 15th Aug 1988 @ Rs.1,500/ per month qua the rear portion of the suit premises and to continue depositing the rent @ Rs.1,500/ per month in future. Further petitioner has also served notice upon respondent for enhancement of rent qua both the front and back portion of the premises. In case the respondent has complied with the aforesaid order, he shall be entitled to the benefit in terms of Section 14 (2) of DRC Act in the present case, being a case of first default, on the part of the respondent. Let, a report be called from the Nazir regarding the deposition of rent by the respondent in terms of aforesaid order and future enhancement of rent. Let a miscellaneous file be opened for consideration on the aspect of entitlement of respondent to the benefit under Section 14 (2) of DRC Act. Miscellaneous file be put up by Nazir for 26.07.2018.
97. All the files be consigned to Record Room after completion of necessary formalities.
Announced in the open Court on this 14th of May 2018.
This judgment consists of 39 signed pages.
(Atul Krishna Agrawal) Administrative Civil Judgecum Additional Rent Controllercum Commercial Civil Judge:
(South):Saket District Courts:
New Delhi Evi. Ptn. No.s 6421/16, 6143/16, 6422/16 & 6121/16 Page No.39 / 39 Virender Pratap Singh Vs M/s Food Products Judgment dated 14.05.2018