Shyam Sunder Dania And Anr. vs J.D. Kapoor And Anr.
2006 Latest Caselaw 2285 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Late Smt. Motia Devi/original respondent No. 2 filed an eviction petition against the petitioners on the ground of subletting under Section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) in respect of shop No. R-16(D-4/495-A) Aruna Park, Shakarpur Extension, Delhi-92. Petitioner No. 1 was stated to have been inducted as a tenant by a written rent agreement dated 08.06.1973 and was alleged to have sublet assigned or otherwise parted with the whole of the tenancy shop in favor of petitioner No. 2, his son, without the written consent of the landlord about a year prior to the filing of the petition. It was alleged that petitioner No. 1 had shifted to another premises at Vikas Marg where he was running separate business under the name and style of M/s Dania Photo while petitioner No. 2 came into exclusive possession of the tenanted premises and was doing the business under the name and style of M/s Dania Photo Service.

2. The petition was contested by the petitioners and after recording of evidence in terms of the order dated 01.09.1995 the petition was dismissed. The order of the Additional Rent Controller (hereinafter referred to as ARC) records that late Smt. Motia Devi and her son appeared in the witness box. It was alleged that petitioner No. 2 opens and closes the shop and that petitioner No. 2 himself told the witness that he was paying Rs 400 to Rs 500 per month to his father, petitioner No. 1. The summons of the petition was also alleged to be served on petitioner No. 1 at the new shop address. Both the petitioners also appeared in the witness box as RW1 and RW2 and deposed that the shop at F-14, Vikas Marg had been taken on rent by petitioner No. 2 and was in his possession since 1975. Petitioner No. 2 was stated to have a license to run the business since 1991 in that premises. The ARC found that respondent No. 2 had failed to establish that the petitioner No. 1 ever divested himself of the legal possession.

3. The original petitioner/respondent No. 2 herein aggrieved by the order filed an appeal before the Rent Control Tribunal and the Additional Rent Control Tribunal (hereinafter referred to as the ARCT) in terms of the order dated 30.09.1998 allowed the appeal. It is this order which is sought to be challenged by the petitioners under Article 227 of the Constitution of India.

4. The ARCT derived an adverse inference against the petitioner No. 2 on account of the fact that he had failed to produce any written rent agreement in respect of shop No. F-14 Vikas Marg, which was stated to have been taken on rent by him from Sh.Ram Kishan in the year 1975. The landlord of that premises was also not produced as a witness and only a license issued by the MCD in his name dated 15.07.1991 was produced. This is also the date of filing of the written statement and thus a conclusion was reached that the license in the name of petitioner No. 2 is not a proof that he himself was running the shop as an independent tenant. It has further been held that if the premises were taken on rent in the year 1975 there was no reason to obtain the license in the year 1991. Another factor taken into consideration by the ARCT is that petitioner No. 1 was served at F-14, Vikas Marg while petitioner No. 2 was served at suit premises. A finding was thus reached that not only had the original tenant/petitioner No. 1 had taken another premises on rent where he had started running his business but he also allowed his son petitioner No. 2 to occupy the tenanted premises in question exclusively for running his independent business. Thus petitioner No. 1 divested himself not only of physical possession but also of the legal right of possession. If it was otherwise, the premises bearing No. F-14, Vikas Marg would have been taken on rent in the name of petitioner No. 2.

5. The matter came up for hearing on 01.12.2006 when none appeared for the respondent. The hearing was deferred for 06.12.2006. On 06.12.2006 again none appeared for the respondent and thus only learned Counsel for the petitioner was heard.

6. Learned Counsel for the petitioner has pointed out by reference to the testimony of AW1 son of the respondent that the said witness had deposed that petitioner No. 2 himself had informed him that he had taken the premises from his father/petitioner No. 1 by paying rent of Rs 400 to Rs 500 per month. The said witness in cross examination admitted that litigation between the parties was pending for more than 4-5 years and thus it would be inconceivable that such a statement could ever be made by petitioner No. 2 to the son of respondent No. 2 when the parties are already litigating. In fact there are police complaints between the parties. Learned Counsel also drew the attention of this Court to Annexure P-1 which is a registration certificate issued under the Delhi Shops and Establishment Act, 1954 dated 07.07.1983 in respect of F-14, Vikas Marg and the same has been issued in the name of petitioner No. 2. Learned Counsel thus submits that the whole premise of the order of the ARCT that the license obtained in 1991 was only to seek a defense to the petition at that stage cannot be accepted.

7. Learned Counsel referred to the judgment of the Supreme Court in Smt. Krishnawati v. Sh Hans Raj to advance the plea that subletting like letting is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and if one of them who owns the house allows the other to carry on business in a part of it, it will be, in the absence of any other evidence, a rash inference to draw that subletting was made out.

8. Learned Counsel also emphasized that while dealing with the provisions of Section 39 of the said Act which provided for a Second Appeal, it was held that only in case of a substantial question of law, could this Court interfere with the findings of the Rent Control Tribunal. This provision has been deleted from the Statute from 1988 and the First Appeal under Section 38 of the said Act now lies to the Rent Control Tribunal only on a question of law. Thus the said parameters would apply and there was no reason for the ARCT to interfere with the Order of the ARC.

9. Learned Counsel also referred to the judgment of the Apex Court in Jagan Nath (Deceased) through LRs v. Chander Bhan and Ors. where it has been observed that parting with possession meant giving possession to persons other than to whom the 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. Thus 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. In Vishwa Nath and Anr v. Chaman Lal Khanna and Ors. 1975 RCJ 514 it was held that parting with possession was an implicit requirement and is not just a physical concept.

10. On consideration of the submissions of the learned Counsel for the petitioner, I am of the view that the impugned order of the ARCT cannot be sustained. Firstly, the reasoning of the ARC was based on appreciation of evidence which did not raise any question of law in the First Appeal and thus ought not to have been interfered with. Secondly, even if the evidence is seen, it is an admitted position that there was litigation between the parties in respect of the shop much prior to the present proceedings. The testimony of the son of the original respondent herein that he was himself informed by petitioner No. 2 about creation of sub tenancy can thus hardly be accepted as it would be against the grain of any prudent communication. The ARCT appears to have been influenced by the fact that the license produced by petitioner No. 2 was of the year 1991 and if he had taken the alternative premises on rent since 1975, then such a license should have been available from an earlier date. This reasoning cannot be accepted. The petitioners have further filed annexure P-1, certificate of registration under the Delhi Shop and Establishment Act, 1954 of the year 1983 in the name of petitioner No. 2 with regard to the premises at F-14, Vikas Marg.

11. The petitioners are father and son. The mere presence of the son in the shop only shows that a third party exists, albeit the son. This presence can however be explained and the explanation is the separate shop taken on rent by petitioner No. 2. This is more so since the nature of business is similar.

12. Learned Counsel for the petitioner also submits that it was not petitioner No. 1 who was served at the other tenanted shop but the service was through other members of the family and no adverse inference ought to have been drawn in such a situation.

13. The prior litigation between the landlord and the tenant including a petition under Section 45 of the said Act filed by petitioner No. 1 against respondent No. 2/landlady in the year 1987. Thus again it could hardly be accepted that the premises would be sublet by petitioner No. 1 to petitioner No. 2 during the pendency of such proceedings.

14. I am of the view that the impugned order suffers from a patent and jurisdictional error and thus the same is set aside and the order of the ARC dated 01.09.1995 is restored.

15. The petition is allowed leaving the parties to bear their own costs.