Northern India Cooperative ... vs Smt. Motia Devi Kapoor And Ors.
2006 Latest Caselaw 2293 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Late Sh.Chela Ram, now represented by his legal representative as respondent No. 1, filed an eviction petition against the petitioner and respondents No. 2 to 4 herein on grounds of non payment of rent and sub letting under the provisions of Sections 14(1)(a) and (b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) in respect of the premises bearing No. 10594, Chowk Motia Khan, Pahar Ganj, New Delhi. Late Sh.Chela Ram claimed that the petitioner herein was a tenant in respect of two rooms and courtyard of the tenanted premises at a monthly rent of Rs 150. Arrears of rent had not been cleared despite a notice of demand. It was also stated that the petitioner was no more doing the business from the tenanted premises and had assigned the possession or sublet the property to M/s Northern India Cooperative Society Ltd. respondent No. 4 who were using the premises for their office and godown. Respondents No. 2 & 3 were stated to be members and shareholders of the petitioner herein who were realizing the rent from respondent No. 4.

2. The petition was resisted by the petitioner herein and respondents No. 2 to 4. The factum of late Sh. Chela Ram being the landlord and the rate of rent was not disputed. The other allegations were denied.

3. The Additional Rent Controller (hereinafter referred to as ARC) in terms of the judgment dated 29.08.1981 dismissed the petition on the ground under Section 14(1)(a) of the said Act, but allowed the petition on ground of subletting and thus passed the eviction order.

4. In this behalf, a perusal of the said order shows that the principal factor which weighed with the ARC was that the petitioner himself admitted that they were the agents of respondent No. 4 and doing booking in the name of respondent No. 4 in the premises in dispute but had not placed on record such agreement. Thus the onus was on the petitioner in terms of Section 14(4) of the said Act. The relevant provisions are as under:

14. Protection of tenant against eviction. -

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favor of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:

(a) ...

(b) That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise without obtaining the consent in writing of the landlord;

...

(4) For the purpose of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purpose of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to the person.

5. The petitioner aggrieved by the said Order filed an appeal before the Rent Control Tribunal and in terms of the order dated 05.12.1983, the appeal was dismissed. One of the issues discussed in both the impugned orders arose from the fact that Sh. Chela Ram was examined in chief and was partly cross examined. Further cross examination could not take place of late Sh. Chela Ram because learned Counsel for the petitioner had come late and the case was adjourned for further cross examination to 20.04.1977 when he was reported sick and left for Mumbai. Sh. Chela Ram passed away when his full cross examination was yet to be recorded. The question thus was whether testimony of Sh Chela Ram could not be relied upon in evidence. In this behalf, it has been held that Section 33 of the Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act) would come into play. The Tribunal found that it was not necessary to exclude the whole of the statement because it is only relevant to the extent that the property had been sublet to respondent No. 4. It was the admitted position that the goods receipts of respondent No. 4 were being issued by the petitioner herein and therefore it was for the petitioner to explain as to why and under what circumstances goods receipts were being utilized. To this extent, the testimony could be read.

6. A further plea which has been considered arises on account of the defense that the eviction proceedings were not maintainable in the absence of a notice as required under the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as the Cooperatives Act). The Tribunal found that the bar of Section 19 of the Act applies only in respect of a suit and a petition for eviction is not a suit and, therefore, the provisions of Section 19 would not be attracted. Apart from this, the testimony of the clerk from the Office of the Registrar, Cooperative Societies established the certified copy of the notice whereby the Registrar was informed about the nature of the case and that the property had been sublet to M/s Northern India Cooperative Society Ltd. The case of subletting was found to have been made out.

7. The present appeal is a second appeal under Section 39 of the said Act which provides for only a question of law to be taken into consideration in these proceedings. The appeal was admitted on 22.05.1984. The substantial question of law on the basis of which the appeal was admitted was whether the evidence of Chela Ram could not be taken into consideration while deciding the eviction petition. Learned senior counsel for the appellant submits that the aforesaid question was only one of academic interest and really does not arise in the present case as the testimony of Chela Ram has not really been relied upon to come to the conclusion and has been relied upon for a limited purpose. Learned Counsel, however, submits that there are other questions of law which arise which may not have been framed and the appellant should be heard on this questions of law.

8. The plea of the learned senior counsel for the appellant is that there is no case of subletting made out as the landlord is required to prove exclusive right of possession and such right must be in lieu of compensation/rent. The tenant should divest himself of physical possession but that is not enough if the tenant has the right to possession. In this behalf, learned Counsel relied upon the judgment of the Apex Court in Jagan Nath (Deceased) through LRs v. Chander Bhan and Ors. where it was held that parting of possession must be by the tenant and must give possession to a person other than to whom possession has been given by the lease. Mere user by the other person was not enough to establish parting with possession so long as the tenant retains the legal possession himself. There should be divesting of the right to possession to establish the same plea over which really there is no legal dispute. Learned Counsel also referred to the judgment in Gopal Saran v. Satyanarayana .

9. Learned Counsel contended that this is a question which can be gone into a second appeal even if there are concurrent findings of fact by both the Courts below. Learned Counsel relied upon the judgment of the Apex Court in Smt. Krishnawati v. Sh. Hans Raj . The Supreme Court while considering the scope of the scrutiny by the High Court under Section 39 of the said Act held that in a second appeal, only a question of law can be gone into. It is not, however, doubted that as a principle, no appeal would lie even if it was possible for a lower court to take a different view of the evidence and at least on a question of fact, the High Court was not competent to re-assess the evidence under Section 39 of the said Act but was bound by the findings of fact arrived at by the Tribunal. In support of this legal position, learned Counsel for respondent No. 1 had referred to the judgments of this Court in Sarmukh Singh v. Hazari Lal Marwah and Anr 1979 (1) RCR 78 and of the Apex Court in Vinod Kumar v. Ajit Singh Ahluwalia and Ors. 1969 RCR 181.

10. In my considered view, learned Counsel for the appellant has not been able to establish as to why on this pure finding of fact on the basis of appraisal of evidence, where subletting has been found, should this Court interfere in a second appeal. It is not a case of no evidence as urged by learned Counsel for the appellant but of appreciation of evidence. The second aspect urged by learned Counsel for the appellant is arising from Section 41 of the Cooperative Act dealt with by the Tribunal in the impugned order in para 30-32. This plea arises on the issue of how copies of the balance sheet which according to the petitioner ought to have been read in evidence were ignored. Section 41 of the Cooperatives Act stipulates that a copy of any entry in the book of a Cooperative Society regularly kept in the course of its business and duly certified would be a prima facie evidence of the existence of such entry.

11. The submission of the learned Counsel for the petitioner is that since there is a presumption of correctness of entries the onus shifted upon the landlord to question the correctness of those entries, but there was no challenge by the landlord in this behalf. The Tribunal has held that these entries would be prima facie evidence but still would be required to be proved in accordance with law and mere filing of accounts would not imply that the requirement of Section 34 of the Evidence Act is not to be complied with. I see no reason to differ with this view nor is any question of law raised in this behalf.

12. The last aspect urged by learned Counsel for the appellant is the plea that the Tribunal misread the clauses of the agency agreement in para 44 of the impugned order. The Tribunal found that the principles of corporate veil being lifted must apply to this purported agency agreement the terms of which showed clearly that the workers of Patiala Carriers were to work in the property in question and all arrangements were being made by it for loading and unloading the goods that were booked. This showed the effective control of a third party.

13. Once again this is a matter of reading of the clauses of the agreement and even does not raise any question of law. Even otherwise the reading of the clauses cannot be said to be one which was illegal.

14. I am unable to accept the plea of the learned Counsel for the appellant that the nature of business in transport is such that there may be eventualities where a party may be carrying on booking and delivery of goods business as in the present case. This contention cannot be accepted since what has been found is that there is total control of a third party to whom subletting had taken place and this finding is based on appraisal of evidence.

15. In the end, it may be noted that the arguments were concluded on 18.12.2006, but learned Counsel for the appellant sought deferment of the recording of reasons for dismissal of the appeal since he wanted to obtain instructions whether the appellant would like to invite an order or would like to take some time to vacate the tenanted premises. Learned Counsel for the petitioner today informed the Court that the appellant would like to take further recourse to legal remedy and thus the reasons have been recorded today.

16. Dismissed.

CM No. 14746/2005

1. This is an application filed by respondent No. 1 seeking damages from the appellant for use and occupation of the tenanted premises after the eviction order had been passed. The plea is that after the eviction order the appellant has enjoyed the benefit of the said order over the last more than two decades without paying the market rate/damages for the same. This application was directed to be heard along with the appeal.

2. On a perusal of the application, I am of the considered view that there is no sufficient material to determine such damages and thus an enquiry is necessary to be conducted as to the prevalent rate of rent over this period of time after the eviction order was passed and as to what would be reasonable compensation in the form of damages to respondent No. 1 based on the market rates. It is directed that the Registrar General should conduct such an enquiry and on completion of enquiry place the matter before this Court for further orders/directions.

List before the Registrar General on 16.01.2007.