Goverdhan Lal Soni vs Indian Sulphacid Industries Ltd. ...
2003 Latest Caselaw 1377 Del

JUDGMENT

R.C. Jain, J.

1. Through this petition under Article 227 of the Constitution of India, the petitioner Goverdhan Lal Soni (hereinafter to be referred to as the alleged `sub-tenant') seeks to challenge the order of the learned Additional Rent Control Tribunal, Delhi dated 20th November, 2002 thereby allowing an appeal filed by M/s.Indian Sulphacid Industries Ltd. (hereinafter to be referred to as the `landlord') against the order of the Additional Rent Controller, Delhi dated 16th September, 1999 dismissing an eviction petition filed by the landlord on the ground of sub-letting of the suit premises.

2. Briefly, the germane facts leading to the present petition are that the above named landlord had filed an eviction petition under Section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as the `Act') with the averments and allegations that the suit premises comprising of an industrial shed measuring 900 sq.ft. and one room measuring 250 sq.ft. situated within ISI compound, 458-466, Friends Colony, G.T.Road, Shahdara, Delhi as shown in red colour in the site plan was let out to M/s.Metachem Enterprises, a registered partnership firm of Sh.Girdhari Lal, respondent No.2 and Sh.Shiv Kumar, respondent No.3 (referred to as the `tenants') vide a lease agreement dated 1st April, 1986 and the last payable rent was Rs.3,061/- per month besides water and electricity charges. It is alleged that the above named tenants have sub-let or parted with or assigned the possession of the entire tenanted premises in favor of Goverdhan Lal Soni without the written consent of the landlord. Goverdhan Lal Soni had filed a suit bearing No.236/95 claiming himself as the proprietor of M/s.Metachem Enterprises and being in possession of the tenanted premises as lawful occupant thereof. The eviction petition was not contested by Girdhari Lal and Shiv Kumar, the partners of M/s.Metachem Enterprises but was contested by the alleged sub-tenant Goverdhan Lal Soni on his behalf as well as on behalf of M/s.Metachem Enterprises thereby denying the allegations about they being sub-lessee of the suit premises and came forth with a plea that M/s/Metachem Enterprises is his proprietorship concern and he was a direct tenant of the suit premises w.e.f. 2nd September, 1986 and had been continuously paying the rent to the landlord against the receipts issued by them and, therefore, there was no question of any sub-letting of the premises to him by the alleged partnership firm and its partners. Parties lead evidence in support of their respective pleas. The landlord did not produce the original lease agreement dated 1st April, 1986 which was an insufficiently stamped and unregistered document but its copy was brought on record. On a consideration of the evidence and material brought on record, the learned Additional Rent Controller held that the landlord has failed to establish the relationship of landlord and tenant between it and M/s.Metachem Enterprises, the partnership firm of Girdhari Lal and Shiv Kumar and consequently there was no question of sub-letting of the premises by it to Goverdhan Lal Soni and accordingly dismissed the eviction petition. Aggrieved by the said order, the landlord filed an appeal before the Tribunal and the Tribunal allowed the said appeal upsetting the findings reached by the Controller and passed an eviction order holding that on the basis of the evidence and material brought on record, even in absence of the production of original lease deed dated 1st April, 1986, the landlord has been able to establish that the premises were infact let out to partnership firm M/s.Metachem Enterprises and since Goverdhan Lal Soni admittedly claimed to be in exclusive possession of the suit premises, it was presumed that the premises was sub-let to him by the said firm and accordingly passed an eviction order against the tenants and the sub-tenant.

3. I have heard Mr.Girdhar Govind, learned counsel representing the petitioner and Mr.Gaurav Kejriwal, learned counsel representing respondent No.1-landlord and have given my thoughtful consideration to their respective submissions.

4. Learned counsel for the petitioner has vehemently argued that the impugned order passed by the Tribunal is based on a wholly improper appreciation of facts, circumstances and the material existing on record and the same is also bad in law. On the other hand, learned counsel for the landlord has justified the impugned order as a perfectly legal and valid order incapable of any interference by this Court in exercise of its powers under Article 227 of the Constitution of India. In other words, the contention is that the order of the Tribunal has attained finality, there being no provision in the Act either for a second appeal or revision or review of such an order and, therefore, this Court cannot upset or reverse the finding recorded by the Tribunal by re-appreciating the evidence as is permissible for an Appellate Court to do.

5. The ambit and scope of the jurisdiction and power of the High Court under Article 227 of the Constitution of India, has been defined through a catena of Supreme Court judgments. In the case of Chandavarkar Sita Ratna Rao vs. Asha Lata S. Guram , it was held that in exercise of its jurisdiction under Article 227 of the Constitution of India, the High Court should not go into the question of facts which depend upon appreciation of evidence. It was also held that the very fact that the learned trial Judge came to one conclusion and the Appellate Court came to another conclusion, is an indication of the position that two views are possible and the High Court accepting one view over the other would essentially have to appreciate the evidence which would amount to transgressing its limit under Article 227 of the Constitution. This proposition has stood the test of time and has been re-affirmed by the Hon'ble Supreme Court of India from time to time. In a recent case, i.e. Koyilerian Janaki & Ors. vs. Rent Controller (Munsif) Cannore and Ors., , in para No.4 of the judgment, the Court ruled as under:-

"4. Further we are in agreement with the argument of learned counsel for the appellant that it was not appropriate for the High Court to have interfered with the order passed by the District Judge in exercise of its power under Article 227 of the Constitution. The proceedings in the present case arose under a special Act governing the landlord and tenant relationship and disputes. The Act does not provide any second appeal or revision to the High Court. The purpose behind for not providing such remedy is to give finality to the order passed under the Act. The power under Article 227 is exercisable where it is found by the High Court that due to a certain grave error an injustice has been caused to a party. For this reason also, the judgment of the High Court deserves to be set aside."

6. The above view was re-affirmed by the Supreme Court in a latter judgment Ouseph Mathai vs. M.Abdul Khadir, . The legal proposition which flows from the above decisions is that in a petition under Article 227 of the Constitution, the High Court has primarily to see whether the learned Tribunal had the jurisdiction to deal with the matter and if so whether the impugned order is vitiated by any material irregularity. In other words, the Court is not concerned with the correctness of the decision but its concern should be limited to the correctness of the decision making process.

7. It is not the case of the petitioner that the Tribunal had no jurisdiction to entertain the appeal or there was any irregularity in the decision making process. His only contention is that the finding reached by the Controller was fully justified and the Tribunal had erroneously upset the said finding by re-appreciating the entire evidence on an untenable premises. In other words, it is urged that the findings reached by the Tribunal are perverse and are liable to be set aside by this Court in exercise of its supervisory control over the Tribunal under Article 227 of the Constitution of India. Therefore strictly speaking, the petitioner cannot be allowed to assail the impugned order in the present proceedings. Assuming for the sake of arguments that this Court can examine the correctness of the findings reached by the Tribunal in exercise of its jurisdiction under Article 227 of the Constitution, we may now proceed to examine the different contentions raised on behalf of the petitioner in order to challenge the said findings of the Tribunal.

8. The foremost contention put forth on behalf of the petitioner is that the landlord has utterly failed to establish that the suit premises was infact let out to M/s.Metachem Enterprises, a partnership firm of Girdhari Lal and Shiv Kumar on 1st April, 1986 by means of a lease deed of the even date as the said lease agreement was never filed and proved on record and, therefore, there was no question of the said firm and the partners having sub-let the suit premises to the present petitioner Goverdhan Lal Soni. To appreciate this contention, we may recapitulate here that the present petitioner (alleged sub-tenant) has not only denied the factum of any tenancy having been created in favor of M/s.Metachem Enterprises, a partnership firm by means of a lease agreement dated 1st April, 1986 but he came up with a positive and definite plea that the landlord created a tenancy in the name of M/s.Metachem Enterprises which is his own proprietorship concern w.e.f. 2nd September, 1986 and, therefore, he is a direct tenant of the suit premises and he had been regularly paying the rent to the landlord through rent receipts. Mr.Girdhar Govind, in support of his contention has referred to and heavily relied upon the rent receipts Ex.RW-1/1 to RW-1/40. The said rent receipts are issued by the landlord and are in the name of M/s.Metachem Enterprises. They relate to the period from September, 1986 to March, 1995. However, in these receipts, there is no mention as to whether the receipts were issued to M/s.Metachem Enterprises, a partnership firm of Girdhari Lal and Shiv Kumar or the proprietorship concern of the present petitioner Goverdhan Lal Soni. Therefore, the important question is as to whether M/s.Metachem Enterprises who is admitted to be a tenant both by the landlord as well as by the alleged sub-tenant, was a partnership firm of Girdhari Lal and Shiv Kumar as on 1st April, 1986 or it was a proprietorship concern of Goverdhan Lal Soni or has there been any change in its constitution at any point of time after 1st April, 1986. The landlord through cogent and reliable evidence of bank official Deepak Raj Ahuja has been able to establish that account No.CA-791 in the name of M/s.Metachem Enterprises was that of a partnership firm and copies of the partnership deed of M/s.Metachem Enterprises, Ex.PW-1/1 to PW-1/3 having been proved on record and in the bank account the said firm was shown to be existing at the same address as that of the suit premises. Not only this, a number of cheques issued by Girdhari Lal as partner of M/s.Metachem Enterprises in favor of the landlord were also proved on record showing that rent for certain periods during July, 1992 to November, 1992 was paid to the landlord for and on behalf of the partnership firm M/s.Metachem Enterprises through cheques of Canara Bank. On the other hand, the present petitioner who claims to be the sole proprietor of M/s.Metachem Enterprises has not been able to produce any cogent and reliable evidence to show that he was infact running the said concern as its sole proprietor. Assuming for the sake of arguments that the present petitioner started operating in the name of M/s.Metachem Enterprises, he cannot be allowed to take advantage of this fact only by adopting and using a similar name as that of M/s.Metachem Enterprises, a partnership firm. Therefore, the learned Tribunal has rightly found that M/s.Metachem Enterprises was a partnership firm of Girdhari Lal and Shiv Kumar as on 1st April, 1986 and not a proprietorship concern of the present petitioner.

9. Mr.Girdhar Govind has then strenuously urged that the landlord had failed to file the original lease deed dated 1st April, 1986 through which tenancy is stated to have been created in favor of M/s.Metachem Enterprises and, therefore, an adverse presumption should be drawn against the landlord and the case of the present petitioner that a tenancy was created in his favor on 2nd September, 1986 as the sole proprietor of sole proprietorship concern M/s.Metachem Enterprises should be believed. It is true that the landlord has not brought on record the original lease deed dated 1st April, 1986 but it has explained the reasons for its non-production and the reason being that it was an insufficiently stamped and unregistered document and, therefore, could not be looked into for the purpose of ascertaining the terms and conditions of the lease. It is well settled legal position that an unregistered lease deed for creating tenancy for a period exceeding one year, is required to be compulsarily registered and its terms and conditions cannot be looked into and it can only be referred for a collateral purpose for ascertaining the nature of possession of the occupant of the premises. The learned Tribunal has dealt with this aspect and held that since the lease deed talked of in the petition was unregistered, it was inadmissible in evidence and its non-production in the evidence was not fatal to the case of the landlord particularly when Goverdhan Lal Soni had not come out with any defense that he, as proprietor of M/s.Metachem Enterprises was inducted as tenant in the demised premises under a written lease agreement. He also observed that even if the appellant had produced the lease deed, it would not have supported the case of the present petitioner as he did not set up any lease deed either dated 1st April, 1986 or 2nd September, 1986. This inference seems to be quite logical. The matter can be looked into from another perspective. The present petitioner is claiming himself to be the direct tenant under M/s.Indian Sulphacid Industries Ltd. and, therefore, onus shifts upon him to establish the said tenancy. Except his bald statement and the rent receipts Ex.RW-1/1 to RW-1/40 which are in the name of M/s.Metachem Enterprises, he has not been able to produce any document that he is a direct tenant. The receipts are in the name of M/s.Metachem Enterprises and not in the name of the present petitioner and, therefore, the payment would be deemed to have been made for and on behalf of M/s.Metachem Enterprises, a partnership concern rather than by the present petitioner. In any case, the receipts were not proved in accordance with law as neither the petitioner is the author nor the writer of the said receipts nor he identified the writing and signature of the author and mere production of such receipts by him on record would not ipso facto prove that he was the direct tenant.

10. Mr.Girdhar Govind, learned counsel for the petitioner has then referred to one unexhibited letter dated 21st June, 1993 (at page 61 of the trial court record) to show that the payment of rent was being made by the petitioner and this was to the knowledge of the landlord-company. This copy of the letter no doubt shows that the petitioner herein had remitted one draft of Rs.5,566/- drawn on State Bank of India towards the rent for June and July, 1993 which was duly received by some official on behalf of the landlord-company. This document having not been proved and exhibited on record, cannot be looked into. Assuming, by means of this letter, the petitioner infact replaced a bounced cheque issued by the partnership firm M/s.Metachem Enterprises from the account maintained by the said firm with Canara Bank, such a payment would always be deemed on behalf of the partnership firm rather than by the petitioner himself in the capacity of a direct tenant. Therefore, the learned Tribunal was justified in holding that the present petitioner has failed to prove the existence of any proprietorship firm under the name and style of M/s.Metachem Enterprises or the said concern being the direct tenant of the suit premises under the landlord. As the landlord successfully proved on record that the premises was let out to M/s.Metachem Enterprises, a partnership firm of Girdhar Lal and Shiv Kumar, and the rent was always paid on behalf of the said firm and the present petitioner claims to be in exclusive possession of the suit premises, an irresistible inference arise that the said tenants had sub-let the premises or assigned or parted with the possession of the same to the present petitioner without the consent of the landlord. The fact that the said partners were related to the Director of the landlord-company which has weighed heavily with the Controller in raising certain adverse inference, has been rightly discarded by the learned Tribunal.

11. In the opinion of this Court, the findings reached by the learned Tribunal in the impugned order cannot be faultered on any ground and are not liable to be interfered by this Court in exercise of its powers under Article 227 of the Constitution of India. This petition is accordingly dismissed as devoid of any merits.