Sohan Singh vs Bachan Singh (Deceased)
2004 Latest Caselaw 1201 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the judgment dated 4.7.2003 of the Rent Control Tribunal, Delhi in RCA No. 594/99 whereby the learned Tribunal has upheld the order of the Additional Rent Controller under Section 14(1)(b) of the Delhi Rent Control Act (hereinafter referred to as the Act) while over-ruling the Controller on grounds under Section 14(1)(a) of the Act. Being aggrieved of the dismissal of the appeal under Section 14(1)(b) of the Act, the tenant has come to this court by way of SAO 2/2003.Being aggrieved of the reversal of the Additional Rent Controller's orders under Section 14(1)(a) of the Act, the landlord has come up by way of a separate second appeal.

2. The facts of the case as have been noted by the Tribunal are as follows:-

"The respondent took the premises mentioned in para 8 of the petition on payment of rent of Rs. 1075/- per month besides water, electricity (power and light) charges as per the bill of local authority in June, 68. Respondent No. 1 applied for fixation of S.R. Under Act 9 of 1958, vide suit No. 63-A, decided on 17.5.76 and S.R.was fixed at Rs. 700/- p.m. w.e.f. 1.11.69 as per order S.A.O. No..... of 1979,, filed against the above order and order passed in appeal in High Court, Delhi. The appeal admitted and awaiting trial in High Court and not yet decided. Respondent No. 1 (tenant) unauthorized and without the written consent of the petitioner landlord sublet, assigned or parted with possession of the premises in question to Shri Udham Singh, respondent No. 2 about 2/3 years back. Respondent No. 2 is working and doing his business and work of Motor Mechanic in the premises in question and respondent No. 1 (tenant) contravened the provisions of section 14(1)(b) of the said Act, and thus liable to eviction on this ground also. Additionally in Annexure 'A' it was pleaded as follows:-

18(a) The grounds on which the eviction of the tenant is sought.

1. Respondent No. 1 (tenant) was in arrears of rent, besides electricity and water charges, regarding the premises in question w.e.f. [email protected] Rs. 1075/- per month. Respondent No. 1 failed to pay the rent to the petitioner/landlord and consequently petitionr instituted a case for eviction on the ground of non-payment of rent regarding the premises in question U/s 14(1) of the said Act (Act. 59 of 1958) after serving regd. A.D. Notice I.e. termination of the tenancy and of demand as required in law on 11.9. 1971 against the respondent No. 1 vide suit No. 743/E-71, (Old/E-6/11-2-1975 (by Transfer) in the court of Additional Rent Controller, Delhi.....on 23.2.1972, Shri Jaspal Singh Additional Rent Controller then passed an order U/s 15(1) of the said Act directing respondent /tenant to pay or deposit the rent w.e.f. Feb.1972 by 15th of March, 1972 and thereafter to continue to deposit the rent by 15th of every month @ Rs. 1075/- p.m. as per order.

...The respondent filed an appeal against the said order before Rent Control Tribunal and it was dismissed on 26.9.1972.

....Shri P.S.Sharma then Additional Rent Controller, Delhi vide order dated 26/27-11/1975 held the respondent guilty of non-compliance of the notice of demand as envisaged by Sec.14(1)(a) of the said Act. The learned Additional Rent Controller, held further however that the deposit of rent made by the tenant in the said case complied with the order U/s 15(1) of the said Act and declined to pass an order of eviction in the case and decided the case accordingly.

....Petitioner preferred an appeal against the above order dated 27.11.1975 before Rent Control Tribunal, Delhi vide RCA No. 66 of 1976 and the ld.Rent Control Tribunal, held respondent No. 1 guilty of committing first default as contemplated by provision of Sec.14(1)(a) and Sec.14(2) of the said Act.

...The ld.Tribunal also held that respondent/tenant be deemed to have enjoyed the benefit as provided vide section 14(2) of said Act.

...The tenant again defaulted and failed to make the payment of rent of the premises in question to the petitioner/landlord wi.e.f.1.12.1975 and thus in arrears of rent since then. Regd.notice of demand dated 16.11.79 was served on respondent No. 1 and he was called upon to pay or arrange to pay the arrears of rent for period 1.12.1975 to 31.10.79 within prescribed period of two months on the receipt of notice, failing which petitioner shall be compelled to file the case for eviction on this ground and ake other legal steps and action as required in the matter regarding the premises in question. The said respondent No. 1 did not comply with the notice and pay or deposit and/or tender the arrears of rent due as required in law to the petitioner. Respondent defaulted to pay the rent for more than three consecutive months as required by said provisions of law. Respondent was given the benefit of Sec.14(2) of the said Act, as submitted above and not entitled to any benefit as contemplated in law and liable to eviction on this ground i.e. second default.

...It is submitted in this connection that the second appeal against the fixation of standard rent are pending in the High Court and awaiting trial. The matter is subjudice. The amount of rent due @ Rs. 1075/- consequently per month for period 1.12.1975 to 28.2.1981 comes to Rs. 67,725.

2. Respondent No. 1 unauthorized and without the consent in writing of the petitioner-landlord sublet, assigned, or otherwise parted with the possession of the premises in question to Shri Udham Singh, respondent No. 2 who is doing the work of a Motor M chanic there.

....Respondent No. 1 has contravened the provision of Section 14(1)(b) of the said Act and thus liable to eviction on this Ground. It is also submitted in this connection that respondent No. 1 is/was statutory tenant and not having any right or interest to give the premises to anybody else in law and guilty of the same. 18(b) - Respondent No. 1 contractual tenancy ws terminated through regd.A.D. And earlier suit filed by the petitioner vide suit No. 743-E/71 (Old), E-6/1/11-2-75 Regd. Notice of demand dated 16.11.79 was served on the respondent No. 1 as required vide section 21.11.79 and 26.11.79 and 22.11.79 at three addresses. Copy of the notice and postal receipt and A.D. Receipt are attached herewith."

The petition was contested by the respondents. Respondents filed the joint written statement. In the written statement respondents in answer to paragraph 18(a) and (b) of the petition pleaded as follows:-

Para 18(a) of the eviction application with its sub-clauses, as stated, is absolutely false, incorrect and wrong and is categorically denied. It is denied that respondent No. 1 is in arrears of rent. The rent is payable at Rs. 700/- p.m. I.e. the standard rent fixed by the court against which the petitioner has filed an appeal before the Rent Control Tribunal and the appeal was dismissed. There is no stay order from the High Court with regards to the said appeal filed by the petitioner against the order of the Rent Control Tribunal. The petitioner was only entitled to have rent at Rs. 700/- p.m. w.e.f. 1.11.69. The ground of non-payment of rent is not otherwise available to the petitioner as no notice of payment has been served as required U/s 14(1), proviso (a). Therefore, the application of the said provision for non payment of the rent is not maintainable. The ld.Additional Rent Controller has already held that the deposit of rent made by respondent No. 1 in compliance to under Section 15(1) had been sufficiently complied with and declined to pass an order of eviction of respondent No. 1 and dismissed the eviction petition of the petitioner vide his order dated 27.11.75. The appeal filed by the petitioner against the said order dated 27.11.75 wa also dismissed.

...It is absolutely wrong and incorrect that there was any default on the part of the respondent. There was huge arrears of House-Tax due from the petitioner and the respondent No. 1 received a notice of attachment from the MCD asking the respondent to ay the rent to them. Respondent No. 1 has been regularly paying the Installments of taxes to the MCD against proper receipts. The arrears of rent as demanded by the petitioner are absolutely false, wrong and incorrect. The petitioner is very well aware of the payment of arrears of taxes which were due from the petitioners, by respondent No. 1 on account of the notice issued by the MCD. It is absolutely wrong and incorrect to say that the respondent is in arrears of rent. Respondent No. 1 never received any notice for payment dated 16.11.80 for making any payment of the arrears of rent. As no such notice of demand was received, the question of its compliance never arose. The respondent No. 1 has otherwise never been in arrears for payment of rent. The e is no such order from the High Court. The petitioner is only entitled to Rs. 700/- p.m. I.e. the standard rent fixed by the Additional Rent Controller, Delhi. It is absolutely false, wrong and incorrect that up to 29.2.81, the arrears of rent of Rs. 67725/- are due from the respondent No. 1. No rent is due from the respondent No. 1. The respondent has been regularly tendering the rent every month and has no refusal f the petitioner to accept the same, has been sending the rent for those months by month orders from time to time. The petitioner without any cogent reasons refused to accept the same. The petitioner is not entitled to any relief on account of alleged non-payment of rent or 2nd default, which are absolutely groundless and baseless and are not available to the petitioner, as the petitioner cannot take advantage of his own wrong and default. The respondent is fully entitled to adjustment of all the payments made to MCD on account of House Tax dues of the petitioner which he was made to pa under threat of warrants of attachment and dispossession.

2. Sub-Clause (2), as stated is absolutely false, wrong and incorrect and is categorically denied. Respondent No. 1 has never sublet, assigned or parted with premises in question. Shri Udham Singh respondent No. 2 is only an employee in the employment of Capital Motors of which respondent No. 1 is the sole proprietor. The income tax assessment of respondent No. 1 as the sole proprietor of Capital Motors since 1955 is there and he is registered with the Shop Establishment since 1955 in the name of Capital motors as the Sole Proprietor. All electric and water bills are received and paid by respondent No. 1. The respondent No. 1 has his own account in the name of Capital Motors in the Bank. Sh.Udham Singh respondent No. 2 is residing at 3352, Ranjit Nagar, New Delhi. There is regular agreement of employment executed and letter of employment issued by respondent No. 1 to respondent No. 2. The respondent No. 2 is only working as Manager and has nothing to do with the business of Capital Motors which respondent o.1 is carrying as the sole proprietor. The respondent No. 1, in 1979 added an Electric Welding Plant and also installed Compressor there. It is absolutely false that respondent No. 1 has let out the premises to respondent No. 1 has let out the premises of respondent No. 2 or to any other person. It is further denied that respondent No. 1 is a statutory tenant.

18(b) Para 18(b) as stated is wrong, incorrect and is denied. There was no proper or legal notice of demand served on respondent No. 1 in 1979. The said notices of demand are absolutely illegal, improper and of no consequence. No proper notice of demand has been served on the respondent No. 1. Therefore, the ground of eviction on account of non-payment or alleged sub letting or parting with possession is not available to the petitioner. The respondent No. 1 has not committed any fault even otherwise. The ground of subletting etc. is also not available with the petitioner and the same is absolutely false and concocted.''

3. The Tribunal in the judgment under challenge noted that for the purposes of appreciating the question under Section 14(1)(b) of the Act, what was necessary was to see the status of Udham Singh, who the tenant claims was his employee and that the premises in question was in possession of Udham Singh by virtue of his employment. The Tribunal while appreciating the deposition of Udham Singh chose not to place reliance on the same since it was not corroborated by Salary Register maintained by the tenant, if at all, as also the income tax return, balance- sheet etc. The Tribunal, therefore, concurring with the Additional Rent Controller held that the premises in question were at the relevant time not in legal possession of the appellant herein and, there ore, dismissed the appeal.

4.Counsel for the appellant submits that in view of the categoric statement of Udham Singh that he was working as an employee, coupled with Exhibit RW-1/1, as also RW-1/2, there can be little doubt that there was no parting with possession and that the courts below have misread this evidence, which is a question of law that ought to be adjudicated upon by this court. Although on a question of fact two courts have arrived at concurrent findings, yet in order to satisfy myself, I have gone through the statement of Udham Singh. It appears to me that RW-1 and RW-2 are documents which have been executed subsequent to induction of Udham Singh into the premises in question and are an afterthought. Even otherwise in the deposition of the appellant, he categ or cally states that he did not mention in his returns that Udham Singh was his employee nor had he given any instructions to any Bank or Government Authority that Udham Singh was his manager. The question, as to how evidence ought to have been appreciated by the courts below, is not the function of this court in second appeal. Whether the tenant has parted with possession of the premises, is a question of fact arrived at on a reasonable appreciation of evidence by two courts below and cannot be upset in second appeal. Reference may be had to judgment of the Supreme Court in Bhagwan Das and Anr. Vs. S.Rajdev Singh and Anr., 1971 RLR 63 (S.C.),

5. In this view of the matter, I see no ground to interfere in SAO 2/2003. The same is dismissed. CM 49/2003 is also dismissed.