Delhi District Court
Smt. Madhu Bala Rastogi W/O Sh. Hari Nath ... vs Sh. Yash Pal Chail S/O Sh. Amar Nath Chail on 28 September, 2012
1
In the court of Sh. Vivek Kumar Gulia
CCJ Cum Additional Rent Control (North District)
Tis Hazari Courts, Delhi.
Case No. E10409/05
Unique I.D. No. 02401C0287252005
In the matter of :
Smt. Madhu Bala Rastogi W/o Sh. Hari Nath Rastogi,
R/o Prithvi Raj Road, New Delhi. .......... Petitioner
Versus
1. Sh. Yash Pal Chail S/o Sh. Amar Nath Chail,
R/o R6/26, Raj Nagar, Ghaziabad, U.P.
Also at: Premises bearing Municipal
No.1735, Private Quarter no.9/1,
1st floor, Mangal Building no.1,
Ram Gali, Bhagirath Place, Chandni Chowk, Delhi.
2. Dharmender Khanna,
C/o 1735, Private Quarter No.9/1,
1st floor, Mangal Building no.1,
Ram Gali, Bhagirath Place, Chandni Chowk, Delhi.
3. M/s Onida Pharma,
C/o 1735, Private Quarter No.9/1,
1st floor, Mangal Building no.1,
Ram Gali, Bhagirath Place, Chandni Chowk, Delhi. .........Respondents
Page 1 of 15 E10409/05
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APPLICATION FOR EVICTION OF TENANT
UNDER SECTION 14 (1) (b) OF THE DELHI RENT CONTROL ACT
Date of Institution: 07.04.2005
Final arguments heard/case reserved for Judgment: 28.08.2012
Date of Judgment: 28.09.2012
Decision: Dismissed
JUDGMENT:
1. This is an eviction petition filed by the petitioner u/s 14 (1) (b) of the Delhi Rent Control Act, 1958 [in short "the Act"]. The brief facts, as mentioned in the petition, are that the tenanted premises, i.e., Private Quarter No.9/1, 1st floor, property no.1735, Mangal Building no.1, Ram Gali, Bhagirath Place, Chandni Chowk, Delhi, admeasuring 11.1 feet X 7.1 feet, as shown in the red colour in site plan filed with petition, was let out to respondent no.1 on monthly rent of Rs.300/ apart from electricity charges in terms of rent deed dt.12.06.1991. Further it is mentioned that respondent no.1 in or about 2000 sublet, assigned and otherwise parted with possession of a portion of the tenanted premises to respondent no.3 and the remaining portion of the said premises to respondent no.2 in the year 2002 without any consent in writing of the landlord. Further it is mentioned that it has been revealed that respondent no.2 and 3 are in Page 2 of 15 E10409/05 3 illegal and unauthorized use and occupation of the said premises and respondent no.2 has electricity and telephone connections in his name in the said premises. It is also mentioned that respondent no.1 is neither the proprietor nor partner of respondent no.3 firm and even Drug License issued in the name of respondent no.3 does not show respondent no.1 as its partner/proprietor. Further it is mentioned that M.L. Khanna obtained the Drug License in the name of respondent no.3 and carried on the business from the said premises. It is further mentioned that in other portion of the premises respondent no.2 is carrying on business and he is a near relation of Sh. M.L. Khanna. Further it is mentioned that no part of tenanted premises is in use and occupation of respondent no.1 and he has divested himself of the physical possession as well as the right of the possession of the said premises. Further it is mentioned that legal notice dt. 12.01.2002 was served on respondent no.1 for making payment of arrears of rent w.e.f. 01.04.2001 and for terminating his tenancy. Further it is mentioned that premises is situated in slum area and the requisite permission under Section 19 of the Slum Areas Act, 1956, has been granted by competent authority vide order dt. 20.12.2004. In view of above, it is prayed that eviction order may be passed in the favour of petitioner against respondents in respect of tenanted premises. Page 3 of 15 E10409/05 4
2. The notice of petition was served upon respondents and they have contested the eviction proceedings. By way of their written statement, it is mentioned that respondent no.3 is a partnership firm, consisting of respondent no.1 and Late Sh. T. N. Khanna, father of the respondent no.2, and it is running business in the tenanted premises right from inception of tenancy with the knowledge and consent of the petitioner. Further it is mentioned that Sh. T.N. Khanna had expired and thereafter his wife Smt. Sunita Khanna had joined as partner of the respondent no.3 firm. Further it is mentioned that respondent no.1 is in actual and legal possession of tenanted premises and it is denied that Sh. M.L. Khanna is running the business in the name of the respondent no.3. Further it is mentioned that Sh. M.L. Khanna was an employee of respondent no.3 and drug license was issued in his name. Further it is mentioned that respondent no.2 is son of the Late Sh. T.N. Khanna and he was earlier assisting his father in the business and after death of his father, he is now assisting his mother. Further it is mentioned that respondent no.1 himself opens and closes the shop and respondent no.2 is only assisting his mother in day to day work of business of respondent no.3 firm.
3. A replication was filed by the petitioner asserting facts mentioned in the petition and the facts mentioned in the written statement are stated Page 4 of 15 E10409/05 5 to be incorrect and denied.
4. The petitioner produced five witnesses in support of her case. 4(a). Sh. Hari Nath Rastogi, general power of attorney holder of the petitioner, appeared in the witness box as PW1 and reiterated the facts mentioned in the petition. Further he proved the following documents:
I) Power of attorney Ex.PW1/A
II) Rent deed dt. 12.06.1991 Ex.PW1/1
III) Rent receipt issued in the name of resp. no. 1 Ex.PW1/2
IV) Site plan of the tenanted premises Ex.PW1/3
V) MTNL bill of respondent no.2 Ex.PW1/4
VI) BSES YPL bill of respondent no.2 Ex.PW1/5
VII) Legal notice dt. 12.01.2002 Ex.PW1/6
VIII) Postal and UPC receipts Ex.PW1/7 to 1/9
IX) Order dt. 20.12.2004 passed by competent authority Ex.PW1/10 X) Notice u/o12 Rule 8 CPC sent to respondent no.1 Ex.PW1/11 XI) Postal receipt and AD card Ex.PW1/12 and 1/13 4(b). PW2, Dinesh Chandra Saxena, Senior Section Supervisor, MTNL, deposed that telephone no. 23869477 is in the name of Dharmender Khanna (respondent no.2) and it was installed at 1735/9, 1st floor, Mangal Building no.1, Ram Gali, Bhagirath Place, Delhi. Further he produced bill Ex.PW2/1.
4(c). PW3, Sh. Surender Singh, UDC, Drug Control Department, deposed that as per summoned record, M/s Onida Pharma is situated at property bearing Municipal no.1735, Private Quarter no.9/1, Mangal Building no.1, Ram Gali, 1st floor, Bhagirath Palace, Delhi06 and on Page 5 of 15 E10409/05 6 10.12.1991 department received an application from M/s Onida Pharma through its partners T.N. Khanna and Yash Pal Chail for grant of wholesale Drug license and last application for renewal was received on 28.12.2001 given by both above mentioned persons. Further it is mentioned that license was granted for the first time in the name of Onida Pharma on 23.04.1992 and the name of the competent person was Sh. M.L. Khanna and license is EX. PW3/1 and Ex.PW3/2. Further it is mentioned that the declaration form dt. 28.12.2001 Ex.PW3/3 shows the name of the partners of M/s Onida Pharma.
4(d). PW4, Nand Lal, Business Manager, BSES, mentioned that bill Ex. PW4/1 has been issued in the name of Dharmender Khanna. 4(e) PW5, Ajeet Singh, LDC, subregistrarIII, produced original GPA Ex. PW1/A.
5. Respondents produced six witnesses in support of their case. 5(a). Yash Pal Chail (RW1) reiterated the facts mentioned in the written statement and proved following documents: I). Partnership deed dt. 20.04.88 between respondent no.1 and father of respondent no.2 Ex.RW1/1 II). Partnership deed dt. 22.03.2004 executed between respondent no.1 and mother of respondent no.2 Ex.RW1/2 5(b). RW2, Ajay Kocah, employee of respondent no.3, stated that there Page 6 of 15 E10409/05 7 is no electricity and telephone connection at the tenanted premises. Further it is mentioned that respondent no.2 is the son of late Sh. T.N. Khanna, partner of respondent no.3 firm and he has been assisting his mother after demise of his father.
5(c). RW3, M.S. Rawat, Drug Control Department, produced the original partnership deed dt. 01.08.1991 Ex. PW3/D5. 5(d). RW4, Pradeep, Drug Control Department, produced original partnership deed dt. 22.03.2004 Ex.RW1/2.
5(e). RW5 Dharmender Khanna (respondent No.2) testified that his father Late Sh. T.N. Khanna was a partner with respondent no.1 in the business being run in the name and style of M/s Onida Pharma at C7, Meerut, Industrial Area, Gaziabad and at tenanted premises. Further deposed that his father Late Sh. T.N. Khanna expired on 21.03.2004 and after his death, his mother joined respondent no.1 as partner in the same business and respondent no.1 and respondent no.3 are in possession of the tenanted premises. He further deposed that he has not applied for connection of electricity and telephone and there is no such connection there.
5(f). RW6, M.L. Khanna, testified that he was appointed as sales representative and competent person by M/s Onida Pharma w.e.f., 01.07.1991 and he applied for Drug licence vide application Ex.PW3/4 and filed declaration Ex.PW3/3 showing respondent no.1 and Late Sh. Page 7 of 15 E10409/05 8 T.N. Khanna as partners of said firm. He mentioned that license Ex.PW3/1 and Ex.PW3/2 was issued to the said firm. Further it is deposed that there is no electricity and telephone connection in the tenanted premises. Further stated that respondent no.2 is son of the Late Sh. T.N. Khanna, the partner of respondent no.3 firm and he had been assisting his father during his life time in the business and entire possession of the shop remained with respondent no.1, who was running business in partnership firm, during his employment.
6. I have heard Sh. O.P. Khanna, Ld. Counsel for petitioner and Sh. N.N. Anand, ld. Counsel for respondents.
7. In the present case, the question for consideration is whether mischief contemplated under Section 14 (1) (b) of the Act has been committed as respondent no.1 had sublet, assigned or parted with possession of whole or part of the premises to respondents no. 2 and 3 without obtaining consent in writing of the landlord. The petitioner has alleged that respondent no.1 had sublet, assigned or otherwise parted with possession of a part of tenanted premises in favour of respondent no.2 and remaining in favour of respondent no.3 without obtaining her consent in writing. Per Contra, the respondents have claimed that physical and legal possession of the tenanted premises has been with Page 8 of 15 E10409/05 9 respondent no.1 since inception of the tenancy and he has been running business in partnership with mother of the respondent no.2 at present and father of respondent no.2 earlier in name and style of M/s Onida Pharma, respondent no.3.
8. The petitioner has claimed that the respondent no.1 has no connection with respondent no.3 and he is neither proprietor nor partner of the said firm and premises is being used by respondent no. 2 and Sh. M.L. Khanna on behalf of respondent no.3 and both are near relatives. It is also mentioned that electricity and telephone connections have been taken by respondent no.2 in his name in the tenanted premises. To support her case, the petitioner produced her Power of Attorney, PW1, who has deposed to the same effect and has filed bills of electricity and telephone Ex.PW1/4 and Ex.PW1/5 raised in the name of respondent no.2. During crossexamination, he replied that he is not aware as to whether Sh. T.N. Khanna and Yash Chail are partners of M/s Onida Pharma. He also replied that he is not aware that respondent no.2 is son of Sh. T.N. Khanna. Further he mentioned that entire property bear four Municipal Nos. 1735 to 1738 and further it has been given about 40 private numbers. PW2 had replied that he is not having documents related to processing of the application of Dharmender Khanna for getting telephone connection at the tenanted premises. PW3 replied in Page 9 of 15 E10409/05 10 his cross examination that as per their records Sh. Yash Chail and Late Sh. T.N. Khanna are partners of M/s Onida Pharma and in this regard Sh. M.L. Khanna executed affidavit dt. 25.11.1991 Ex.PW3/D3 and affidavit dt. 26.02.1992 Ex.PW3/D4. He also admitted that partnership deed dt. 01.08.1991 [Ex.PW3/D5 and PW3/D8] was also filed in their department. Further he admitted letters dt. 31.04.1998 and 20.08.1991 [Ex.PW3/6 and PW3/7] given by Yash Pal Chail to Sh. M.L. Khanna. PW4 admitted in crossexamination that electricity bill Ex.PW4/1 in the name of Dharmender Khanna does not bear address 1735/9/2, 1st floor, Bhagirath Palace.
9. Respondent no.1 has testified that he was a partner with Sh. T.N. Khanna and they were running business from tenanted premises in name and style of M/s Onida Pharma (Respondent no.3). He also testified that respondent no.2 was earlier assisting his father and now he is assisting his mother in the same business. Further he denied that partnership deed Ex. RW1/2 is forged and fabricated and that no partnership deed of Late Sh. T.N. Khanna was executed in 1991. He also admitted that M/s Onida Pharmaceuticals is a partnership concern consisting of him and Sh.T.N. Khanna and since inception of the partnership in 1988, they are carrying on business at Gaziabad. It is also mentioned that M/s Onida Pharmaceuticals and M/s Onida Pharma (Respondent no.3) are having Page 10 of 15 E10409/05 11 same partners. RW3 produced original partnership deed dt. 01.08.1991 Ex.PW3/D5 and Ex.PW3/D8 in the court. RW4 was summoned to produced original partnership deed dt. 22.03.2004 executed between respondent no.1 and mother of respondent no.2 for running business in the name of the respondent no.3 firm from the tenanted premises. Respondent no.2 (RW5) also deposed on the lines of RW1. RW6 also corroborated case of respondent no.1 in regard to facts that respondent no.1 and Late Sh. T.N. Khanna were running business in the name of respondent no.3 from tenanted premises and respondent no.2 was assisting his father in running of said business.
10. After examining the evidence, which has been discussed above, led by both the sides, it emerges that M/s Onida Pharma is running business from tenanted premises since 1991 and respondent no.1 and Late Sh. T.N. Khanna, father of respondent no.2, were its partners and after death of Sh. T.N. Khanna, his wife / mother of respondent no.2, Smt. Sunita Khanna, became partner of respondent no.1 in the same firm. Even the plaintiff witness PW3 has produced number of documents of the year 1991 to show that respondent no.1 was a partner of respondent no.3 firm with father of respondent no.2 and they were carrying on business at the tenanted premises. The partnership of respondent no.1 with father of respondent no.2 has also been proved on Page 11 of 15 E10409/05 12 record by RW1, RW5 and RW6. RW3 and RW4 have also corroborated the case of respondents by producing the original partnership deed dt. 01.08.1991 Ex.PW3/D5 and dt. 22.03.2004 Ex.RW1/2. On the other hand, petitioner side has not been able to elicit anything from respondent witnesses during cross examination which has tendency to demolish case of respondents or anything corroborating her case. The most important petitioner witness, i.e., PW1 Hari Shanker Rastogi, has showed his ignorance as to whether respondent no.1 was a partner of respondent no.3 and as to whether respondent no.2 was son Sh. T.N. Khanna, partner of respondent no.3. Thus, petitioner has not been able to bring on record sufficient material in order to demolish the defence of respondent side.
11. Ld. Counsel for the petitioner also argued that petitioner was a partner with Late Sh. T.N. Khanna and they were carrying on business in the name M/s Onida Pharmaceuticals from C7, Meerut Road, Industrial Area, Ghaziabad, UP, and not at the tenanted premises and the partnership deed dt. 20.04.1988 filed by respondents on record make the picture quite clear. It is observed that the respondents side has not disputed the said partnership and running of business from Ghaziabad but in view of evidence discussed in above paragraphs, there remains no doubt that M/s Onida Pharma and M/s Onida Pharmaceuticals are two Page 12 of 15 E10409/05 13 different partnership firms and they are carrying out business from tenanted premises and Ghaziabad respectively. These facts have been made clear by RW1 and RW6 in their cross examination. In view of this, I do not see any merit in the arguments of petitioner side that respondent no.1 is not a partner of respondent no.3.
12. Further counsel for the petitioner argued that even if it is assumed that respondent no.1 is the partner of respondent no.3 firm alongwith some third person, it is sufficient to draw inference that he has parted with physical possession of the tenanted premises and thus conditions of Section 14 (1) (b) of the Act are satisfied in order to ask for eviction of respondents. On this issue, counsel for respondents contended that it is well settled that the fact of carrying on of business of the partnership in the premises by the tenant/partner with other partners would not amount to subletting leading to the forfeiture of the tenancy. I am in agreement of submissions made by Ld. Counsel for respondents. In this regard reliance can be placed on case laws M/s Madras Banglore Transport Company (West) Vs. Inder Singh and Others, reported as AIR 1986 SC 1564 and Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and others, reported as AIR 1987, SC 1782.
Page 13 of 15 E10409/05 14
13. Otherwise also, parting with possession means giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14 (1) of the Act. In this regard reference can be have to the decision given the Apex court in the case titled as Jagan Nath (Deceased) through LRs vs. Chander Bhan & Ors, reported as 36 (1988) Delhi Law Times 267 (SC). It has already been held that respondent no.1 is partner of respondent no.3 firm which is running business at the tenanted premises. The respondents witnesses have also proved that respondent no.1 has been active partner of the firm since its inception and at present respondent no.1 and 3 are in possession of the premises. RW 5 and RW6 have also made it clear that possession of the tenanted premises always remained with respondent no.1 since beginning. The petitioner had alleged that M.L. Khanna (RW6) is in possession of the tenanted premises on behalf of respondent no.3 but in view of discussion made above, it is proved on record that M.L. Khanna was only an employee of Page 14 of 15 E10409/05 15 respondent no. 3 firm and thus, this plea appears to be baseless. Thus, there is sufficient material on record to show that physical as well as legal possession of the shop always remained with respondent no.1. RELIEF:
14. In light of discussion made above, it is concluded that petitioner has failed to prove her case under Section 14 (1) (b) of the Act. Accordingly, eviction petition is dismissed.
Announced in open Court [VIVEK KUMAR GULIA] on 28 Day of September, 2012. CCJ cum ARC (North District) st (This judgment contains 15 pages) Tis Hazari Courts, Delhi Page 15 of 15 E10409/05