Nath Oil Compay & Others. vs Smt. Kailash Rani Kapoor & Others.
1999 Latest Caselaw 968 Del

ORDER

Vijender Jain, J.

1. Learned counsel for the appellants has contended that respondent Nos . 2 and 3 were already served by the appellants. Respondent No. 2 was served on 11th December, 1998 and respondent No. 3 was served on 12th December, 1998. The affidavit in support of service was filed on 19th December, 1998 and inadvertently the Court issued notice as this fact was not brought to the notice of the Court that the affidavit of service was filed by the appellants.

2. I have perused the affidavit dated 19th December, 1998. Respondent Nos. 2 and 3 have been served. On the fresh report of service on respondent No. 4, the service report is that he has refused to accept the notice of service. Respondent No. 4 is deemed to have been served and proceeded exparte. Nobody is present on behalf of respondents 2 and 3. Respondents 2 and 3 are proceeded ex-parte.

3. Eviction petition was filed by the respondent on the ground mentioned under Section 14(1)(b) of the Delhi Rent Control Act. The Additional Rent Controller passed an eviction Order on 13th November, 1985. The tenant preferred an appeal before the Rent Control Tribunal and the Rent Control Tribunal vide its order dated 26.8.1986 remanded the case back to the Additional Rent Controller. The Additional Rent Controller again passed an eviction order against the tenant under Section 14(1)(b) of the Delhi Rent Control Act. Aggrieved by the said order, the appellants-tenant preferred an appeal before the Rent Control Tribunal which was dismissed. Against the said dismissal the appellants preferred the Second Appeal in the High Court which was also dismissed. Appellants-tenant filed a Special Leave Petition in the Supreme Court and the Supreme Court while allowing the Special Leave Petition set aside the order of eviction and remanded the case back to the Additional Rent Controller to record a finding after recording additional evidence. The Additional Rent Controller after taking into consideration the evidence on record dismissed the eviction petition on 9th November 1989. Aggrieved by the said order, the landlord-respondent filed an appeal before the Rent Control Tribunal. That order of the Tribunal is impugned in this Second appeal by the appellants/tenant before me.

4. Mr. Kalra learned counsel for the appellants has contended that mere possession of Sat Prakash Gupta would not bring the case of respondent into mischief mentioned under Section 14 of the Delhi Rent Control Act. He has further contended that the impugned order suffers from an infirmity as the Rent Control Tribunal , without taking into consideration that there was no material on record, has returned a finding that there was a parting with legal possession by the appellants-tenant in favour of said Sat Prakash Gupta.

5. Another contention of learned counsel for the appellants was that the fact that Sat Prakash Gupta has not appeared for the last fifteen years in all the proceedings would demonstrate that he was not interested in the premises and it was only the appellants who were in possession of the premises in question.

6. Lastly, Learned counsel for the appellants has contended that the Rent Control Tribunal fell in grave error by not allowing the applications of the appellants-tenant under Order 41, Rule 27 of the CPC seeking permission to file certain documents in support of the theory that Sat Prakash Gupta was an employee of the appellants. In support of his contention Mr. Kalra has cited Jagdish Prasad Vs. Smt. Angoori Devi 1984 (1) RCJ 485, Mohd. Kasam Vs. Baker Ali, 1998 RLR (SC) 592.

7. On the other hand; learned counsel for respondent No.1 has contended that the respondent was only to point out that some stranger was at the demised premises and it was for the appellants to rebut that presumption that they were in an exclusive legal possession of the premises in question. In support of his contention, Mr. Rishi Kesh has cited Roop Chand Vs. Gopi Chand Thelia, , M/s. Shalimar Tar Product Ltd. Vs. H.C. Sharma and others AIR 1998 SC 145 L.I.C. of India Vs. Bharat (Sales) Ltd. . I have given my careful considerations to the arguments advanced by learned counsel for the parties.

8. The Rent Control Tribunal came to the conclusion that Sat Prakash Gupta was in an exclusive possession of the premises in question on three counts. Firstly, it was stated by the appellants that Sat Prakash Gupta was employed by them on monthly salary. No appointment letter of Sat Prakash Gupta was brought on record. Secondly, it was the case of the appellants that they were paying income tax regularly. However, no statement with regard to the salary paid to Sat Prakash Gupta, whether claimed or not, was brought before the Court. Neither assessment orders nor the income tax returns of the appellants to show that the salary of Sat Prakash Gupta was being claimed or not claimed was brought on record. Mr. Kalra took pains in arguing that if a shop was registered under the Shops and Establishments Act, the presumption that the relevant record as required to be maintained under the Shops and Establishments Act not being produced therefore adverse inference was to be drawn against appellants was not correct. This argument of learned counsel for the appellant has no force. In view of the cross examination of Sat Prakash Gupta who himself has admitted in cross examination that all the records under the Shop and Establishment Act was maintained. If that was so the non-production of the said records would definitely lead to the conclusion that had that record been produced it would have gone against the appellants. Even Sat Prakash Gupta who appeared in the Witness Box took contradictory stand. He could not remember the date or the month of the year 1983 since when he was employed by the appellants. He took the stand that his salary in 1983 was Rs. 500/- per month and when he was examined again on 16th May, 1988 he gave the statement that his salary was Rs. 650/- since 1986. At other place, he stated that he was employed by the appellants before 1982.

9. There is no force in the arguments of the learned counsel for the appellants that as Sat Prakash Gupta has not appeared before this Court, therefore, it cannot be said that premises were sub let.

10. The Rent Control Tribunal rightly dismissed the applications of the appellants under Order 41 Rule 27 of the CPC as the same were to bring documents on record which were irrelevant.

11. Relying upon a decision of this Court in Mange Ram (deceased) through LRs and others Vs. Chhutan Lal (deceased) through LRs. SAO 10/97 decided on 25th August, 1999, I do not see any infirmity with the Order of the Rent Control Tribunal.

12. The appeal is dismissed.