Dr. Mrs. Sushil Puri And Ors. vs Shri Jai Gopal And Ors.
2006 Latest Caselaw 2012 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CAV. No. 120/2006

1. Learned Counsel for the respondent has entered appearance. Caveat is discharged.

CM No. 15260/2006

2. Allowed subject to just exceptions.

CM (M) 1901-04/2006 & CM 15259/2006

3. The respondents filed an eviction petition against the petitioners under Section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) on grounds of sub-letting in respect of the tenanted premises consisting of one shop on the ground floor forming part of property No. 70-D, Kamla Nagar, Delhi, which is stated to be let out at a monthly rent of Rs. 95/- exclusive of other charges. Late Dr. Devender Puri was imp leaded as respondent No. 1 who was stated to be the tenant under the late grandfather of the respondents Shri Shiv Lal. Shri Shiv Lal passed away on 10.4.1984 and the respondents being the grandsons from a pre-deceased son inherited the property. Late Dr. Devender Puri was stated to be a physician by profession and was carrying on his medical profession from the tenanted premises.

4. It was alleged in the petition that about 4-5 years preceding the filing of the petition, late Shri Devender Puri had not been keeping well and also suffered a paralytic stroke and thus was confined to bed. It was alleged that the premises was sublet or parted with the possession to original respondents 2 & 3 being the son and daughter-in-law. The son was alleged to have obtained a Diploma in Eye-Testing and was running his business as an Optician from the tenanted premises and had fixed computers and other related machinery for the said purpose in the tenanted premises. Apart from this the son is also alleged to have share business. The daughter-in-law was alleged to have been an approved agent of CAN Bank Mutual Fund and was alleged to have been running her business from the tenanted premises. The son was also alleged to have been carrying on business of fire works during Diwali.

5. The eviction petition was contested by all the original respondents. The son and daughter-in-law were stated to be living with the tenant in the same house and were sharing a common mess. The son was stated to be an employee of the father serving as a Manager and drawing salary. It is the original tenant, who was stated to have expanded his business as a physician and included the optical division. Since the son qualified in optics, the optical division and the medical division were being carried on from the tenanted premises. The necessary equipment for the optical division were stated to be provided by the original tenant. The son was alleged to be selling and purchasing shares as part of his individual dealing and was using the tenanted premises for the purposes of convenience. The fire works business was alleged as only a seasonal venture and an attempt of the original tenant to increase his income. It was denied that the daughter-in-law was carrying on business from the tenanted premises though it was admitted that she was using the address for the sake of convenience for exchange of correspondence. On the demise of Dr. Devender Puri during the pendency of the petition his other son was also imp leaded as a respondent.

6. The parties led their evidence. The Additional Rent Controller found that the allegation of the original respondents having various businesses in the tenanted premises had almost been admitted including running of the optical division, selling of fire works during Diwali and the use of the address by the daughter-in-law for carrying on business as an agent of CAN Bank Mutual Fund. The presence of the son and daughter-in-law in the tenanted premises and their carrying on business was thus not denied but the plea taken was that what was done was being so done on behalf of the original tenant.

7. The trial court came to the conclusion that once the presence of persons other than the tenant, albeit the son and daughter-in-law, were found in the tenanted premises the burden shifts on the tenant to show in what capacity they are using the premises and that they are not sub-tenants. The son admitted during cross-examination that he has overdraft facilities from banks at a relevant time of purchase of machinery but failed to explain the purpose for the same. This became material as the original allegation was that the machinery for the optical division was financed by the original tenant. The Additional Rent Controller found that an adverse inference had to be drawn in this behalf against the tenants. The son also failed to disclose as to what was his salary in case he was doing a job for his father. No documents in this behalf were placed on record and even the documents sought to be relied upon were not proved in accordance with law. The attempt on the part of the tenants to lead secondary evidence also proved futile. The business of fire works, though seasonal in nature, was found not to be carried out in the name of the original tenant as the license was in the name of RW-8 (the son). It was admitted position that the original tenant had his leg amputated in the year 1994 and apparently he was not carrying on the medical profession thereafter. The trial court after appreciation of the evidence found that a case of subletting was made out even though the parties were closely related since the optical division was being carried on by the son, the business of seasonal fire works was in the name of the son and the daughter-in-law was carrying on business as a CAN Bank Mutual Funds agent showing the tenanted premises as her address. Thus the eviction order was passed on 3.6.2005.

8. The petitioner preferred an appeal against the same before the Additional Rent Control Tribunal, which dismissed the appeal on 26.8.2006. The Tribunal took note of the contradictions about the health of late Dr. Puri and his capacity to carry on business as set out in the written statement filed earlier and the one filed later by his son Dr. Arun Puri. The earlier stand was that though his leg has been amputated it was denied that he was unable to freely and properly move. In the subsequent written statement of Dr. Arun Puri it was stated that during the year 1994-95 and till the time of his demise Dr. Devender Puri was totally confined to bed and was unable to move. Another fact taken note of by the Tribunal was that the optical business was started only when the son Shri Sanjeev Puri completed his Degree/Diploma and not before that. No evidence was led to prove that Dr. Devender Puri had purchased the entire machinery or other equipment while simultaneously it was proved that Shri Sanjeev Puri had taken loan from Bank of America for having an overdraft facility. The purpose of the said facility was deliberately not explained. Dr. Devender Puri was found not to be in active practice during the period when subletting was made.

9. An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law and second appeal to this Court has been abolished. In view thereof the scrutiny by this Court under Article 227 of the Constitution of India is not to review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based. The Apex Court in Mohd. Yunus v. Mohd. Mustaqim and Ors. had in fact observed that a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227 of the Constitution of India as the supervisory jurisdiction conferred on the High Courts is limited to seeing that an inferior court or tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record much less an error of law. The legal position has been once again expounded in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) SC 465.

10. It is also to be noticed that the Tribunal has considered the various judgments cited at the Bar and the inability of the petitioners to substantiate that any of them would come to the aid of the petitioners.

11. It may be stated that in Kailash Kumar and Ors. v. Dr. R.P. Kapur it has been held that the question of subletting or parting with possession would depend on the peculiar facts of each case and the basic principle enunciated even by the Supreme Court is that once it is proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts on the tenant to show in what capacity the stranger is in exclusive possession of that portion and on the failure of the tenant to explain presence of such person in exclusive possession of that said portion of the demised premises, presumption would arise that the portion was sublet or parted with possession in favor of the stranger by the tenant. The observations in Hari Ram v. Rukmani Devi and Ors. are also relevant. On the plea of the tenant that the onus was on the landlord to prove subletting, it was observed that the relationship of sub-lessees and lessee is a matter of knowledge, which is confined to the parties alone and thus all that the landlord can do in such circumstances is to prove the circumstances which would reasonably lead to an inference of subletting or parting with possession or assigning the premises or any part thereof. These judgments have been cited in recent judgments of this Court in R.C.SA. No. 390/1980 titled Shri Krishan Chand v. Sri Chand decided on 18.7.2006 and CM (M) No. 329/2004 titled Shrimati Shakuntla Gupta v. Shri Mahendra Kumar and Ors. decided on 25.8.2006.

12. Learned Counsel for the petitioner once again sought to urge the same aspects as urged before the Tribunal below arising from the plea that Shri Sanjeev Puri was only an employee with his father. In my considered view, it is not permissible for the petitioner to urge such a plea after concurrent findings of the Courts below and it is not the function of this Court to reappraise evidence. Learned Counsel also sought to emphasise that the application filed by the petitioner for secondary evidence under Section 65 of the Evidence Act was wrongly rejected by the order dated 22.2.2000. I find no such infirmity since the witnesses from the Income Tax Department were not able to trace out the records of Dr. Devender Puri and it was held that secondary evidence could be led with regard to the returns but secondary evidence could not be permitted of balance sheets, profit & loss account and trading account since the originals would be with the assessed being the original tenant. Nothing has been brought on record to show proof of loss of such accounts and balance sheets.

13. Learned Counsel for the petitioner sought to rely upon the judgment of the Division Bench of this Court in Hazari Lal and Ram Babu v. Shri Gian Ram and Ors. 1972 RCR 74 to advance the plea that where legal possession is retained of a tenant there is no parting with possession and mere user by other person is not such a parting with possession. Learned Counsel also referred to the judgment of the Apex Court in M/s. Madras Bangalore Transport Company (West) v. Inder Singh and Ors. . The issue relating to subletting between a firm and a limited company was considered and it was found that where the firm established a limited company with its partners as Directors, it could not be said that subletting was made out even though both of them were separate legal entities.

14. Learned Counsel lastly referred to the judgment of the Apex Court in Jagan Nath (Deceased) through LRs v. Chander Bhan and Ors. to contend that a user by other person is not parting with possession so long as the tenant retains the legal possession himself or in other words 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.

15. Insofar as the legal principles are concerned there is no dispute. However, as observed aforesaid whether in a particular case subletting or parting with possession has been made out would depend on the facts of each case. The mere fact that the allegation of subletting is in favor of the son and daughter-in-law of the tenant will not make a difference since they are separate individual persons. The material aspect in the present case is that the tenant was incapacitated and the son Shri Sanjeev Puri started running his own business dealing with opticals from the premises. Not only this the wife of Shri Sanjeev Puri and the daughter-in-law of the original tenant was showing the address of the premises for her business as an agent of CAN Bank Mutual Fund. The business of sale of fire works was also found to be in the name of Shri Sanjeev Puri, as the license was taken in his name. Thus the petitioners had been wrongly denying all these aspects which came out in the evidence.

16. In view of the aforesaid facts and circumstances it cannot be said that the Additional Rent Controller and the Rent Control Tribunal have committed a patent or jurisdictional error so as to call for interference by this Court under Article 227 of the Constitution of India.

17. Dismissed.