Shri Nand Kishore vs Sushil Kumar Bhatia And Ors.
2006 Latest Caselaw 1860 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CAV No. 104/2006

Since learned Counsel for respondent No. 1 has entered appearance, Caveat stands discharged.

CM No. 14290/2006

Allowed subject to just exceptions.

CM (M) No. 1671/2006 and CM No. 14289/2006

1. Respondent No. 1 filed an eviction petition under Section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) against the petitioner/tenant alleging sub-letting, assignment or otherwise parting with possession of the shop forming part of the tenanted premises situated in property No. 4419/56, Regharpura, Karol Bagh, New Delhi. The shop was alleged to have been sublet to respondent No. 2 herein.

2. It was the case of respondent No. 1 that respondent No. 2 was in exclusive possession of the shop where he was running his business in the name of M/s. Darjeeling Tea Emporium while the petitioner was running his own business in Palika Bazaar, New Delhi and charging Rs. 2,000/- per month from respondent No. 2 as rent for the alleged sub-letting.

3. The petitioner took objection that respondent No. 1 had even earlier filed a similar petition alleging sub-letting in favor of third parties, which was dismissed. The sub-letting was denied. The petitioner claimed that he was running the business of M/s. Darjeeling Tea Emporium from the suit shop. Both the parties led evidence and by an order dated 15.9.2005 the Additional Rent Controller came to the conclusion that the ground of sub-letting had been made out.

4. A material aspect considered was that on 24.1.2003, a raid was conducted in the shop by Prevention of Food Adulteration Department when samples were lifted. It is respondent No. 2, who was found present in the shop and it is respondent No. 2 who was challaned and a complaint was filed in the Court of Metropolitan Magistrate, so respondent No. 2 was facing trial. The Food Inspector was examined as a witness who verified the factum of the raid being conducted and respondent No. 2 being present in the shop. The trial court noticed that even during the course of trial the question arose whether the petitioner was the proprietor of M/s. Darjeeling Tea Emporium and had a bank account in that name but no document to support the same was placed on record. The factum of the raid by the Food Adulteration Department was not disputed. The petitioner on entering the witness box could not even depose as to with which department the business is registered and failed to produce the income tax returns to show that he is the proprietor of the business. There were no cheques placed on record showing payments made by the petitioner in the name of M/s. Darjeeling Tea Emporium. In fact, the petitioner showed ignorance regarding raid conducted at the shop and deposed that he had come to know of the fact later on.

5. It is relevant to note that respondent No. 2 admitted in his cross-examination that he was present in the shop when the raid was conducted and that the notice was served by respondent No. 1 on him. Even summons issued were received by respondent No. 2 at the suit shop.

6. In the conspectus of the aforesaid facts, I am of the considered view, it cannot be said that the Additional Rent Controller came to an erroneous conclusion that a case of sub-letting was made out. It is trite to say that when the presence of a stranger in a tenanted shop is obvious the onus shifts on the tenant to show that he had not sub-let the same. This would equally apply to a relation of a tenant. The trial court relied upon the judgment in LIC of India v. Bharat Sales Ltd. . This is so since in what capacity an outsider is present in the shop is to the exclusive knowledge of the tenant and it is his duty to bring out the same.

7. The order challenged before the Rent Control Tribunal also failed and the appeal has been dismissed on 11.9.2006. It may be noted that the appeal is maintainable on a question of law. The Tribunal also relied upon the documents by the Food Inspector and the Food Adulteration Department. The petitioner certainly did not take any steps during these proceedings to claim proprietorship of the business.

8. Learned senior counsel for the petitioner seeks to urge that such proceedings of the Food Department would be meaningless in view of the judgment of the Apex Court in Sri Chand Gupta v. Gulzar Singh and Anr. . In the said case the brother of the tenant had made a statement before the Income Tax Authority that he was a sole tenant but in the absence of any pecuniary or joint interest of both brothers in demised premises the statement of brother was held not to bind a tenant.

9. In my considered view, the aforesaid judgment would not apply to the facts of the present case as it is not a mere statement by respondent No. 2 before the Authorities. The Food Adulteration Department inspected the premises and on physical inspection respondent No. 2 was found in the premises. Respondent No. 2 did not claim that it is the petitioner who is the proprietor of the business nor the petitioner ever claimed the proprietorship rights of the business. In view of the presence of respondent No. 2 it was for the petitioner to establish in what capacity the petitioner was sitting in the premises especially when the allegation by the landlord is that petitioner is running a separate business in Palika Bazaar. The cross-examination of the petitioner is considered by the trial court below as recorded above to show that he was even ignorant about the business being run or the inspection, which had taken place.

10. 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. The aforesaid judgments have been discussed in recent judgments of this Court in R.C.S.A No. 390 of 1980 titled 'Sh. Kishan Chand v. Sh. Sri Chand' decided on 18.07.2006 and in CM (M) No. 329 of 2004 titled 'Smt. Shakuntla Gupta v. Sh. Mahendra Kumar and Ors.' decided on 25.08.2006.

11. In view of the aforesaid, it cannot be said that the impugned order suffers from a patent or jurisdictional error, which is the scope of scrutiny of this Court under Article 227 of the Constitution of India.

12. Dismissed.