Delhi District Court
Narayan Shamnani vs Mrs. Chani on 28 January, 2016
E No. 27/12 1 28.01.2016
IN THE COURT OF MS KIRAN GUPTA, SENIOR CIVIL JUDGE
CUMRENT CONTROLLER, NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI
E No. 27/12
Unique ID No. 02403C0086272012
Narayan Shamnani
S/o. Late Sh. Hari Das
R/o. 5, Bhagat Singh Marg
Gole Market
New Delhi ..... Petitioner
VERSUS
1. Mrs. Chani
Shop no. 1/5, Bhagat Singh Marg
Gole Market, New Delhi
2. Mr. Chandan
M/s. S S Hair Saloon,
Shop no. 1/5, Bhagat Singh Marg,
Gole Market, New Delhi
3. Mr. Narayan @ Mr. Sajid
M/s. S S Hair Saloon,
Shop no. 1/5, Bhagat Singh Marg,
Gole Market, New Delhi
.... Respondents
Narayan Shamnani Vs Mrs. Chani & Ors. Page 1 of 21
E No. 27/12 2 28.01.2016
Date of institution : 22.12.2012
Date of conclusion of final arguments: 22.01.2016
Date of judgment : 28.01.2016
JUDGMENT
1 Present petition was initially filed under section section 14 (1) (a) (b) & (g) of the Delhi Rent Control Act (hereinafter referred as the Act), however petitioner vide statement dt. 01.12.2014 withdrew his claim with respect to the relief sought under section 14 (1) (a) and (g) of the Act with the liberty to file it afresh. Hence the present petition is only for recovery of premises bearing shop no. 1/5, Bhagat Singh Marg, Gole Market, New Delhi (hereinafter referred as tenanted premises ) as shown red in colour in the site plan on the ground of subletting, assignment or parting with possession under section 14 (1) (b) of the Act.
2 Brief facts of the case as stated in the petition are that:
Petitioner is the owner/ landlord of the tenanted premises. The premises was originally let out to Sh. Bharat Bhushan vide lease deed dt. 06.08.2000 and now after his death, Narayan Shamnani Vs Mrs. Chani & Ors. Page 2 of 21 E No. 27/12 3 28.01.2016 the same is in possession of respondent no. 1 who is his wife. It is alleged that respondent no. 1 has sublet the tenanted premises in favour of respondent no. 2 and 3 without the consent in writing of petitioner. Respondent no. 2 and 3 are running M/s. S S Hair Saloon in the said premises. Legal notice dt. 24.04.2012 was also sent to the respondents, however they have failed to vacate the premises, hence the present petition for eviction u/s. 14 (1) (b) of the Act.
3 Written statement/ reply has been filed by the respondent no. 1 and 2 denying all the allegations levelled in the petition. It is stated that respondent no. 1 has never sublet the tenanted premises to any other person including respondent no.
2. There is no person by the name of Mr. Narayan working or in possession of the tenanted premises. The persons alleged to be the subtenants are the employees of respondent no. 1 since past many years. It is alleged that present petition has been filed only to get the premises vacated. It is further stated that petitioner is neither the owner nor the landlord in respect of the tenanted premises, hence he has no locus standi to file the present eviction petition.
Narayan Shamnani Vs Mrs. Chani & Ors. Page 3 of 21E No. 27/12 4 28.01.2016 3.1 It is further stated that respondent no. 1 has been
running a Hair Saloon business / work in the tenanted premises and respondent no. 2 is her employee, who is working for the last 12 years in the tenanted premises and there is no such person by the name of Narayan, who has been made as respondent no. 3 in the present petition. In the year 1999, husband of respondent no. 1 entered into an agreement of lease with petitioner and premises is being used for the purpose of saloon shop since 1999. After death of husband of respondent no. 1, she is controlling the business which is being run under the name and style of M/s. S S Hair Saloon.
4 In the replication filed on behalf of petitioner , he while denying all the contents of written statement has reiterated the facts as stated in the petition. It is stated that the real name of respondent no. 3 is Mr. Sajid and his nick name has been stated in the petition.
5 During pendency of the trial, respondent no. 2 made the statement dt. 12.08.2013 that he has no concern with the tenanted premises and he is only employee of respondent no. 1 and does not want to file any reply to the petition. Respondent Narayan Shamnani Vs Mrs. Chani & Ors. Page 4 of 21 E No. 27/12 5 28.01.2016 no. 3 was proceeded exparte vide order dt. 30.10.2013.
6 Petitioner in order to support his contentions has examined himself as PW 1 and has tendered his evidence by way of affidavit Ex. PW 1/1 and has relied upon following documents:
a) The copy of lease deed dt. 01.02.2008 is Ex. PW 1/A.
b) The copy of lease deed dt. 10.06.2010 is Ex. PW 1/B.
c) Rent receipt dt. 27.04.2012 is Ex. PW 1/C.
d) Legal notice dt. 24.04.2012 is Ex. PW 1/D.
e) Postal receipts are Ex. PW 1/E.
f) Site plan is Ex. PW 1/F.
g) Notice dt. 20.09.2012 is Ex. PW 1/D1 and postal receipts are Ex. PW 1/D2.
6.1 PW 2 is Sh. Ravinder Kumar. He has tendered his evidence by way of affidavit Ex. PW 2/A and has relied upon the licence deed dt. 12.10.2006 issued by NDMC for the period from 19.06.2000 to 31.03.2011 as Ex. PW 2/1. He further stated that it was renewed by another licence deed mark PW 2/2. PW 3 is Sh. Sudesh Kumar Sehgal who has tendered his evidence by way of Narayan Shamnani Vs Mrs. Chani & Ors. Page 5 of 21 E No. 27/12 6 28.01.2016 affidavit Ex. PW 3/A. He has filed few invoices alongwith copy of etickets as Ex. PW 3/1 to Ex. PW 3/6 (colly).
7 Respondents have examined Sh. Sunny as RW 1 and he has tendered his evidence by way of affidavit Ex. RW 1/1.
8 It is argued by Ld. counsel for petitioner that petitioner has discharged the onus upon him that the respondent no. 1 has sublet and parted with possession of the tenanted premises in favour of respondent no. 2 and 3 without obtaining consent in writing of petitioner. It is further argued that PW 2 and PW 3 who are independent witnesses have proved the factum of receipt of rent by respondent no. 1 from respondent no. 2 and 3 and there is no cross examination to this effect except some suggestions. It is further argued that petitioner in the petition has categorically stated that it is the respondent no. 2 and 3 who are in exclusive possession of the premises and the said fact has not been refuted by the respondent no. 1. It is further argued that no evidence has been led by respondent no. 1 that respondent no. 2 and 3 are her employees and not subtenants. It is submitted that since petitioner has proved his case, the petition be allowed in favour Narayan Shamnani Vs Mrs. Chani & Ors. Page 6 of 21 E No. 27/12 7 28.01.2016 of petitioner. In support of his arguments, Ld. counsel for petitioner has relied upon the following judgments :
a) Vidhyadhar Vs. Mankikrao& Ors. AIR 1999 SC 1441.
b) M/s. Bharat Sales Ltd. Vs. Life Insurance Corporation of India, AIR 1998 SC 1240
c) Vaishakhi Ram & Ors. Vs. Sanjeev Kumar Bhatiani (2008) 14 SCC 356
d) Celina Coelho Pereira Vs. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217
e) Kishan Chand Vs. Banarsi Dass 1989 (2) RCJ 412.
f) Satyendra Kumar Sharma Vs. Jitender Kudsia, 2006 (1) RCR 207
9 Per contra, it is argued by Ld. counsel for respondents that petitioner has failed to prove that respondent no. 1 has sublet the premises in favour of respondent no. 2 and
3. It is further submitted that respondent no. 1 is running hair saloon in the premises and respondent no. 2 is her employee. It is argued that petitioner has not stated anything about subletting in the legal notice sent to respondent no. 1 and now has concocted this false story, which has not been proved during trial. It is submitted that since petitioner has failed to prove his case, petition be dismissed accordingly.
Narayan Shamnani Vs Mrs. Chani & Ors. Page 7 of 21E No. 27/12 8 28.01.2016 10 Heard Counsels for the parties and perused the
complete record file. The foremost thing which has to be considered in any petition under the Act is whether there is a relationship of landlord and tenant between the parties. Though respondent no. 1 in her written statement has denied the relationship of landlord and tenant between her and petitioner, however at the same time she in para 5 of preliminary objections of the written statement has stated that in the year 1999 her husband Mr. Bharat Bhushan entered into an agreement of lease with petitioner with respect to tenanted premises. Petitioner has also placed on record the lease deed dt. 01.02.2008 Ex. PW 1/A and 10.06.2010 Ex. PW 1/B between him and respondent no. 1. The said lease deeds have not been denied by respondent no. 1. From these documents and the admission made by respondent no. 1 in the written statement, it is evident that premises was let out by petitioner to the husband of respondent no. 1 in the year 1999 and after his death, respondent no. 1 being his legal heir has become the tenant in the premises and has also entered into fresh lease agreement Ex. PW 1/A and Ex. PW 1/B. Hence, as such there is no dispute regarding relationship of landlord and tenant between petitioner and respondent no. 1.
Narayan Shamnani Vs Mrs. Chani & Ors. Page 8 of 21E No. 27/12 9 28.01.2016 11 Now coming to the allegations regarding sub letting.
It is stated by petitioner that the respondent no. 1 without his permission and consent in writing has sublet the tenanted premises to respondent no. 2 and 3.
12 Under section 14 (1) (b) of the Act, the landlord is entitled for the order of eviction, if, the tenant has sublet , assigned or otherwise parted with possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. Thus the provision has three facets, firstly subletting, secondly assignment and thirdly parted with possession. In case of subletting, there has to be transfer of interest in favour of the sub tenant for valuable consideration ie rent and the right to possession against the tenant . In assignment, the tenant has to divest himself of all the rights that he has as a tenant. While the expression parting with possession postulates parting with legal possession i.e giving possession to persons other than those to whom possession has been assigned by the lease.
12.1 In Narayan Ratan v. India Mill Stores 1977 RCR, it was held by Hon'ble M.P. High Court that:
Narayan Shamnani Vs Mrs. Chani & Ors. Page 9 of 21E No. 27/12 10 28.01.2016 "the question whether there is unlawful subletting is, in most cases, a matter of inference to be drawn from the facts of each cases. The initial onus of proving unlawful subletting, in the first instance lies upon the plaintiff. Subtenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed on the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but establish a positive aspect about the capacity in which the alleged subtenant is occupying the premises and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts, in which a third person has been inducted into the whole or any part of the premises are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of subletting".
12.2 In Sohan Lal Vs. Sripal & Ors. , 48 (1992) DLT 65, it was held that "in sub letting there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and the instance of letting or the tenancy must be found namely the transfer of an interest in the estate, demand of rent and the right to possession against the tenant in respect of the premises sublet. In assignment Narayan Shamnani Vs Mrs. Chani & Ors. Page 10 of 21 E No. 27/12 11 28.01.2016 the tenant has to divest himself of all the rights that he has as a tenant. The expression parting with possession undoubtely postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been assigned by the lease and the parting with possession must have been by the tenant. The mere user by other person is not parting with possession so long as the tenant retains the legal possession himself. In other words, there must be vesting of the possession by the tenant in other person by divesting himself not only of physical possession but also of right to possession . The divestment or abandonment of right to possession is necessary in order to invoke the clause of parting with possession."
12.3 In Shri Gurdial Singh Vs. Shri Brij Kishore & Ors 1970 RCJ1001 it has been held that "what is to be seen in each case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee.
Though a person may be absent from the premises at a time yet if he has an intention to return to them, it may fairly be said that he is still actually in possession and , therefore, entitled to be protected. If a lessee retains legal possession at all times he does not commit a breach of the covenant against parting with the possession by allowing other people to use the premises. A covenant against the parting with the possession is not broken by sharing the possession with Narayan Shamnani Vs Mrs. Chani & Ors. Page 11 of 21 E No. 27/12 12 28.01.2016 another. It is quite possible in law that a man can permit anyone to occupy and at the same time remain in possession, where the tenant remained in control of each of the companies and the facts shows that he was really and easily carrying on the business of others at his own premises which remained his from first to last, then he cannot be said to have parted with possession. The mere act of letting other persons into the possession by the tenant and permit them to use the premises for their own purpose is not , so long as he retains the legal possession himself, a breach of the covenant."
12.4 In Stening Vs. Abraham (1931) 1 CR 470 it was observed that, "a lessee cannot be said to part with the possession of any part of the premises unless his agreement with the licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user, there is no parting with possession. Retention of a key may be negative indicium but nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to parting with possession. The fact that the agreement is in form of a licence is immaterial as a licence may give the licensee so exclusive a right to the legal possession to a part with possession. It is not the law that no sooner does any as to amount person other than a lessor occupy a premises it must be held that the tenant has parted with the possession of the demised premises . To my mind it is all a question of fact."
Narayan Shamnani Vs Mrs. Chani & Ors. Page 12 of 21E No. 27/12 13 28.01.2016 12.5 In Shalimar Tar Products Ltd. Vs. H C Sharma,
(1998) 1 SCC 70 the Apex Court had noted that, "to constitute a subletting, there must be a parting of legal possession ie possession with the right to include and also right to exclude other and whether in a particular case, there was sub letting or not was a question of fact. To establish this ground, the landlord must show that the tenant has completely divested himself from the suit premises and has lost control over it;
13 Thus from the above said judgments, it is evident that in order to prove the tenancy or sub tenancy two ingredients have to be established. Firstly, the sub tenant must have exclusive right to possess or interest in the premises in question and secondly, that right must be in lieu of some consideration or rent. Mere user is not sufficient to infer sub tenancy or parting with possession. It is for the landlord to prove that the tenant has parted with legal possession of the premises. So long as the lessor retains the legal possession he cannot commit a breach of law by allowing other people to use the premises. There must be a vesting of possession by the tenant in another person. So long as the tenant retains the legal possession, that if he retains the right to claim possession from Narayan Shamnani Vs Mrs. Chani & Ors. Page 13 of 21 E No. 27/12 14 28.01.2016 the occupant, it would not be possible to say that the tenant had parted with possession, though the occupant may have been given the exclusive user, if the tenant has a right to disturb possession at any point of time, he cannot be said to have parted with possession. Thus to establish subletting the onus is on the landlord to prove through evidence that subtenant was in exclusive possession of the property in question ; that between the sub tenant and the tenant there was relationship of lessee and lessor and that possession of the premises in question was parted with exclusively by the tenant in favour of the subtenant ( reliance placed on Kala Vs. Madho Parshad Vaidya ( 1998) 6 SCC 573: (1998 AIR SCW 2947): AIR 1998 SC 2779), Benjamin Premanand Rawade (dead) by LRs Vs. Anil Joseph Rawade (1998) 9 SCC 688 and Resham Singh Vs. Raghbir Singh AIR 1999 SCC 3087).
14 In the present case in order to prove that there is sub tenancy in favour of respondent no. 2 and 3, petitioner has examined himself as PW 1 and in addition to himself has examined PW 2 and PW 3.
Narayan Shamnani Vs Mrs. Chani & Ors. Page 14 of 21E No. 27/12 15 28.01.2016 15 PW 1 in his affidavit has reiterated the entire facts as
stated in the petition. He during his cross examination stated that respondent no. 1 has sublet the tenanted premises to respondent no. 2 and 3 in the year 2008. He further stated that he came to know about subletting only in the year 2010. He stated that he does not remember the exact date and month when he came to know about subletting, however it was in the year 2010. He stated that he does not know who all were working in the premises prior to 2008. He denied the suggestion that respondent no. 2 and 3 are the employees of respondent no. 1. He further denied the suggestion that respondent no. 2 and 3 were employed by respondent no. 1 after 2010. He stated that he does not know whether two persons by the name of Shamim and Arshad were working as employees in the premises between 20082010. He further denied the suggestion that respondent no. 1 has never sublet the premises to anyone. He denied the suggestion that respondent no. 1 and her husband have been employing boys for the purpose of cutting and other works and these employees were changed after every 1 to 1 ½ years.
16 PW 2 in his affidavit Ex. PW 2/A has stated that he
Narayan Shamnani Vs Mrs. Chani & Ors. Page 15 of 21
E No. 27/12 16 28.01.2016
goes to the tenanted premises for his hair cut and has seen Mrs. Chani , who only comes to the tenanted premises to collect rent from Mr. Chandan and Mr. Narayan @ Sajid and these persons have also told him that they are paying Rs. 18,000/ per month as rent to Mrs. Chani. He during his cross examination stated that he had seen these two persons paying Rs. 18,000/ to Mrs Chani one or two occasion when he went for his hair cut. PW 3 Sudesh Kumar also in his affidavit Ex. PW 3/A has stated that during his visits Mr. Chandan and Mr. Narayan @ Sajid have disclosed that they are the partners and running this hair saloon on payment of monthly rent of Rs. 18,000/. He during his cross examination stated that he had seen Mrs. Chani collecting rent around 8 to 10 times from Naryana and Chandan. He further stated that he cannot recollect the exact, date time and month when he had seen Mrs. Chani collecting rent from Narayan and Chandan , however it was in the year 2011, 2012, 2013, 2014 and 2015.
17 Both PW 2 and PW 3 have stood the test of cross examination and categorically stated that they have seen respondent no. 1 collecting rent from respondent no. 2 and 3. PW 2 is running his shop in the Gole market itself while PW 3 Narayan Shamnani Vs Mrs. Chani & Ors. Page 16 of 21 E No. 27/12 17 28.01.2016 has deposed that he had been visiting the tenanted premises for his hair cut. There is nothing in the cross examination of PW 2 and 3 to challenge their credence as witness or being interested witnesses.
18 Respondent no. 1 in the present matter has not examined herself but has examined her son as RW 1. He in his affidavit has reiterated the facts as stated in the written statement. Petitioner in his petition has categorically stated that it is the respondent no. 2 and 3 who are in exclusive possession of the tenanted premises. In the written statement, respondent no. 1 has nowhere stated that she is in legal possession of the premises or that the premises is retained by her . She has merely stated that respondent no. 2 is her employee and there is no such person by the name of respondent no. 3. However , RW 1 in para no. 9 of his affidavit has stated that respondent no. 2 is the employee of respondent no. 1 and is working under her from last 14 years and respondent no. 3 has been working with her for last 45 years as her employee. Interestingly, then he has stated that there is no person by the name of Narayan or working with respondent no. 1. Petitioner in his replication has categorically stated that the actual name of respondent no. 3 is Narayan @ Narayan Shamnani Vs Mrs. Chani & Ors. Page 17 of 21 E No. 27/12 18 28.01.2016 Sajid. There is no plea on behalf of respondents that Narayan and Sajid are two different persons. At one point of time, respondents have stated that there is no person by the name of Narayan and at the same time RW 1 in his affidavit has taken contradictory stand that respondent no. 3 is working with them.
19 RW 1 during his cross examination stated that he does not know what exactly is written in his affidavit Ex. RW 1/1 . He stated that Mr. Chandan is in premises since last 12 to 13 years. He further stated that Mr. Sajid is in the premises since last 10 years. He further stated that Mr. Sajid and Mr. Chandan if work for Rs. 100/ a day, he gives them Rs. 50/ for the day . He admitted that he is not paying any monthly salary to Mr. Sajid and Mr., Chandan for using the premises. He admitted that he does not have any proof that Mr. Sajid and Mr. Chandan are his employees at the tenanted premises. He denied the suggestion that his mother, Mr. Chandan and Mr. Sajid are deliberately not been examined as witnesses since they would not have supported his testimony.
20 No document that respondent no. 1 is running the
Narayan Shamnani Vs Mrs. Chani & Ors. Page 18 of 21
E No. 27/12 19 28.01.2016
saloon by the name of M/s. S S Saloon in the tenanted premises has been filed by respondent no. 1 or brought in evidence by RW 1. The case of petitioner is that respondent no. 1 is also the owner of adjacent premises ie. shop no. 49 A, Gole market which she has rented out to someone who is running the saloon by the name of M/s. S S Saloon. RW 1 during his cross examination admitted that his mother Mrs. Chani has given an affidavit to NDMC that since she is running the shop at 49 A , Gole market, said shop be allotted in her name. He admitted that the rent of said shop is taken by his mother.
21 No document whatsoever has been placed on record by respondent no. 1 to show that she is running the saloon by the name of M/s. S S Saloon in the tenanted premises. No document in the form of attendance register , salary register or any other allied documents have been placed on record by respondent no. 1 to show that respondent no. 2 and Mr. Sajid are her employees . As per RW 1 , respondent no. 2 and Mr. Sajid are still their employees, however, they have not been examined by respondent no. 1 . Even respondent no. 1 has not entered into the witness box to prove her contentions. The statement made by RW 2 dt. 12.08.2013 has no relevance as no opportunity Narayan Shamnani Vs Mrs. Chani & Ors. Page 19 of 21 E No. 27/12 20 28.01.2016 was granted to the Ld. counsel for petitioner to cross examine him on the said statement. RW 1 during his cross examination has categorically admitted that they are not paying any monthly salary to Mr. Sajid and Mr. Chandan. He further admitted that he has no proof that Mr. Sajid and Mr. Chandan are their employees in the tenanted premises. On the contrary, petitioner in addition to his testimony has examined PW 2 and PW 3 who have categorically deposed that respondent no. 2 and 3 are running the saloon in the tenanted premises and have seen them paying Rs. 18,000/ per month as rent to respondent no. 1 on various occasions. There are no averments in the entire written statement or in the affidavit of RW 1 that the legal possession is still retained with her. Petitioner has proved certain circumstance from which an inference has to be drawn that the respondent no. 1 has sublet and parted with possession of the tenanted premises with respondent no. 2 and 3. Petitioner has discharged the onus laid upon him. It is the respondents who have failed to establish any positive aspect about the capacity in which respondent no. 2 and 3 are occupying the premises.
22 From the above discussion, material on record,
Narayan Shamnani Vs Mrs. Chani & Ors. Page 20 of 21
E No. 27/12 21 28.01.2016
testimony of the witnesses and the relevant provisions of law , this court is of the opinion that the petitioner has proved that the tenanted premises have been sublet and parted with possession by the respondent no. 1 with respondent no. 2 and 3 without obtaining consent in writing of petitioner. The petitioner has proved the ground of eviction under clause (b) of subsection (1) of section 14 of Act 59 of 1958 against the respondents. In these circumstances the petition for eviction is allowed. Petitioner is entitled to recover the possession of the tenanted premises i.e shop no. 1/5 , Bhagat Singh Marg, Gole Market, New Delhi as shown red in the site plan attached with the petition. Present petition is disposed of accordingly. No order as to costs.
File be consigned to record room.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 28.01.2016 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
Narayan Shamnani Vs Mrs. Chani & Ors. Page 21 of 21