Delhi High Court

Maharaj Krishan Khanna vs Surinder Kumar & Anr. on 7 January, 2009

Author: Vipin Sanghi

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                 Judgment Reserved on: 06.02.2008
+                Judgment Delivered on: 07.01.2009

%                       C.M. (M) No.2164/2006


      Maharaj Krishan Khanna                    ..... Petitioner
                       Through:     Mr. R.P. Bansal, Sr. Adv. with
                                    Mr. Rakesh Mahajan, Mr. Prabhat
                                    Ranjan & Mr. Sheetesh Khanna,
                                    Advocates

                    versus

      Surinder Kumar & Anr.                     ..... Respondents
                      Through:      Mr. S.C. Singhal, Advocate


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?                       No

3. Whether the judgment should be reported in the Digest? No


VIPIN SANGHI, J.

1. The present petition under Article 227 of the Constitution of

India is directed against the order dated 27.10.2006 passed by the

learned Additional District & Sessions Judge, Delhi Rent Control

Tribunal whereby he has allowed the appeal preferred by the

respondents against the eviction order passed by the learned

Additional Rent Controller in Eviction Petition No. E 55/02 dated

01.10.2005.

2. The Petitioner had filed an eviction petition under Section 14

(1) (b) of the Delhi Rent Control Act( hereinafter referred as Act),

against the respondents by subletting of the Suit premises in favour of

respondent no. 2 Ms. Alka, the wife of respondent no. 1 before the

Rent Controller, Delhi, in respect of two shops including the mezzanine

floor in one shop on the ground floor situated at S-27, Rajouri Garden,

New Delhi 110027

3. Admittedly, the shops had been originally let out to Smt.

Nirmala Mago, for commercial purpose on a monthly rental of Rs.

1000/- for both shops. The tenant Smt. Nirmala Mago, passed away

on 19.11.2000 and thereafter the tenancy right devolved upon her

legal heirs. Her son Surender Kumar (Respondent No. 1), is one of

her legal heirs and pursuant to the mutual understanding between all

the legal heirs, the landlord was informed that respondent no. 1 would

be the successor tenant in the said premises was alleged that the Suit

premises had been sublet to Smt. Alka Mago, i.e respondent no. 2, on

the basis that she had started carrying on her own independent

business from the said premises under the name and style of M/s

Konark Enterprises. She had also opened a bank account with Canara

Bank, Rajouri garden branch in the name of M/s Konark Enterprises,

wherein she was shown as the sole proprietor of the said concern. It

was alleged that the Petitioner had received a cheque dated 1.01.2002

bearing no. 376732 for a sum of Rs. 16940/-, purported to be rent for

the period 1.11.2000 to 31001.2002 from the above said account.

4. The eviction petition was resisted by the Respondents on the

ground that the respondent no.2, who was the daughter-in-law of the

late Smt. Nirmala Mago, was taken as a partner by her during her life

time on 1.11.2000 by executing a partnership deed and after the

demise of Smt. Nirmala Mago on 19.11.2000, the respondent no.2 has

been discharging the obligation of the firm. It was also pleaded that

the business was stopped w.e.f. 01.04.2001 and even the Sales Tax

Number had been surrendered to the authorities. Since 01.04.2001,

the Suit premises was lying locked. It was also argued that, in any

event, no question of subletting arises when respondent no. 2, who is

alleged to have carried on the business in the name of her proprietary

concern M/s. Konark Enterprises, is none other than the wife of

respondent no.1 and was the daughter-in-law of the deceased original

tenant Smt. Nirmala Mago.

5. The Rent Controller allowed the eviction petition in favour of

Petitioner, by disbelieving the partnership set up by the respondents

between Late Smt. Nirmala Mago and respondent no. 2, Ms. Alka and

by holding that Ms. Alka was carrying on her proprietary business from

the Suit premises wherein respondent no. 1 had no role to play. He

also rejected the argument that respondent no. 2 being the wife of

respondent no. 1, no subletting can be alleged in view of their

relationship.

6. The respondents assailed the judgment of the Ld. ARC before

the Ld. ADJ/RCT, inter alia, on the ground that after the death of late

Smt. Nirmala Mago, who was admittedly the tenant in the demised

premises, the first respondent being her legal heir succeeded to the

tenancy rights. The business of M/s Konark Enterprises was being

carried on from the suit premises by the mother who inducted the

second respondent as her partner because of her not keeping good

health. After her death, the second respondent was never in actual

possession of the suit property. She opened a Bank account as the

proprietor of M/s Konark Enterprises to wind up the pending affairs of

the firm, in which she was inducted as a partner during the life time of

Smt. Nirmala Mago. In any event, even if Smt. Alka Mago was allowed

to continue to run her business in the name and style of M/s Konark

enterprises in the Suit premises, it would not amount to creating a

sub-lease. She being the wife of the first respondent, daughter-in-law

of the deceased tenant and a member of the family, she cannot be

considered to be in the position of Subletee.

7. The Learned ADJ/RCT has, vide his impugned order has set

aside the eviction order passed by the Ld. Rent Controller by placing

reliance on various judgments cited by the respondents on the issue

that, for a case of subletting to be made out, the sub-letee has to be

placed in exclusive possession of the tenanted premises, and the

wife/family member of a tenant, who is running a business, cannot be

said to be a sub-letee.

8. Learned counsel for the Petitioner argues that the impugned

order has been passed without appreciating the correct factual position

and documents filed on record. It is argued that the partnership deed

was a camouflage and had been created with a view to cover up the

subletting in favour of respondent no. 2. It is argued that the

Petitioner had placed documents on record and produced witnesses to

show that respondent no.2 was in possession of the suit premises as a

sub- tenant. It is stated that Ld. RCT wrongly opined that the

petitioner/landlord has failed to prove subletting / parting of

possession of the premises, as a sub tenant to respondent no. 2. The

Petitioner submits that the fact that there was no partnership, as

alleged, is proven beyond any doubt by the fact that respondent no. 2

had opened an account with Canara Bank, Rajouri Garden, New Delhi

in her capacity of sole Proprietor of M/s Konark Enterprises. The

Petitioner impugns the observation of the RCT that "after the death,

bank account was opened in the name of M/s Konark Enterprises

showing Smt. Alka as partner" as patently wrong and contrary to the

record. He also, similarly assails the observation of the Ld. RCT to the

effect that the Petitioner "has admitted that Nirmala Devi died in

November 2000 and her shop is in possession of her son Shri Surender

Kumar who is running the business under the name and style of

M/s Konark Enterprises along with his wife who is a partner in

the firm" as being patently erroneous and contrary to the record.

9. Before proceeding further, 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 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 Aricle 227 of the Constitution of India is not to

review or reweigh the evidence upon which the determination of the

inferior Court or Tirbunal purports to be based. The Supreme Court in

Mohd. Yunus V Mohd. Mustaquim AIR 1984 SC 38 has 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 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 the said jurisdiction is not to

correct an error apparent on the face of the record, much less an error

of law. In Hari Ram v. Rukmani Devi & Ors; 64 (1996) DLT 662 it

has been observed that unless it is shown that the findings of facts

were preserve or based on no evidence at all, the same would not to

be interfered in second appeal. On the plea of the tenant that the onus

was on the landlord to prove subletting it was observed that the

relationship of sublessee 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 or assigning

the premises or any part thereof. In Rohni Prasad v. Kasturchand,

(2000) 3 SCC 668 the Supreme Court while dealing with the scope of

the jurisdiction of the the High Court in Second Appeal, to interfere

with the order passed in First Appeal, the Supreme Court has held that

where the misreading of evidence by appellate Court would lead to

miscarriage of justice or its finding is based on no evidence and thus

perverse, the High Court can upset the finding of the first appellate. It

was held that the High Court interferes in second appeal not because

the appreciation of evidence by the first appellate Court was not

correct, but on account of the fact that the first appellate Court

misread the evidence.

10. In the light of aforesaid discussion I will proceed to analyze

whether the findings of the RCT are perverse and warrant the

interference of this Court. A perusal of the account opening form

placed on record clearly shows that the respondent no. 2 had opened

the bank account in Canara Bank, Rajouri Garden, New Delhi as the

sole proprietor of the firm M/s Konark Enterprises and it also shows

Surender Kumar as her introducer in the Bank. Similarly, a perusal of

compromise note dated 19.12.2001 cannot be interpreted to mean any

admission by the Petitioner of the fact that respondent no. 2 was a

partner of M/s Konark Enterprise. In fact, that is not even the defence

set up by the respondents. It seems the aforesaid observations made

by RCT are erroneous and contrary to the facts and material placed on

record.

11. The next issue that arises is whether these erroneousfindings

of the Ld. RCT has any bearing or effect on the decision of the Ld. RCT

on the merits of this case. Undisputedly, upon the demise of the

original tenant, the tenancy rights devolved upon respondent no. 1

and he was entitled to use and occupy the suit premise. The Ld. RCT

has not considered it necessary to go into the aspect, whether the

finding of the Ld. ARC that the partnership deed between the original

tenant Smt. Nirmala Devi and respondent no. 2 was a camouflage or

not. He merely proceeds on the premise that respondent no. 2 being

a family member of the original tenant, as well as of respondent no. 1

could use and carry on her sole proprietary business without being

labeled as a subtenant. Since the aforesaid observations of the Ld.

RCT which are factually incorrect do not in any way impinge on the

reasoning adopted by him, in my view, the said errors are not material

and merely on account of the said errors, the impugned order cannot

be set aside.

12. In M/s Mahendra Saree Emporium v. G.V. Sirinivasa

Murthy JT 2004 (7) SC 20 the Supreme Court has held that the term

sub let is not defined in the Act -new or old but the definition of lease

can be adopted mutates mutandis for defining sub lease. In view of

section 105 of Transfer of Property Act, 1882, a sub lease would imply

parting with by the tenant of a right to enjoy such property in favour

of his sub tenant. Similarly in Helper Girdharibhai v. Saiyed

Mirasaheb Kadri & Ors. (1987) 3 SCC 538, it was held that there

cannot be a subletting unless the lessee parted with the legal

possession. The mere fact that some other person is allowed to use

the premises while the lessee retains the legal possession is not

enough to create a sub lease. In Hazari Lal And Ram Babu v. Shri

Gian Ram 1972 RCR 74 also it was held that where legal possession

is retained by a tenant, there is no parting with possession and mere

user by another person is not such parting with possession. The

expression "otherwise parted with the possession" was commented

upon in Para 9 of the judgment which reads as under:

"9. Clause (b) to the proviso to Sub-section (1) of Section 14 of the Rent Act uses three expressions, namely, "sub-let", "assigned and otherwise parted with the possession" of the whole or any part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with three different concepts and apply to different circumstances. In subletting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sublet. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression "parted with the possession'' undoubtedly postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, the lease has given parting with possession means giving possession to persons other than those whom possession and "the parting with possession" must have been by the tenant. The mere user by the other persons 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. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration, it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not

amount to parting with the possession so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof. A more privilege or licence to use the whole or a part of the demised premises which privilege or licence can be terminated at the sweet Will and pleasure of the tenant at any time would not amount to "parting with possession." The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession."

13. In Jagan Nath v. Chander Bhan (1988) 3 SCC 57, Supreme

Court while dealing with expression "parting with possession" in the

context of a tenant living with other family members, who has

allowed the tenanted premise to be used by other family members,

has held as under:

"6. The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed, as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom 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, 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. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be

in possession. If the father has a right to displace the possession of the occupants, i.e. his sons, it cannot be said that the tenant had parted with possession. This Court in Smt Krishnawati v. Hans Raj AIR 1974 SC 280 had occasion to discuss the same aspect of the matter. There two persons lived in a house as husband and wife and one of them who rented the premises, allowed the other to carry on business in a part of it. The question was whether it amounted to subletting and attracted the provisions of sub-section (4) of Section 14 of the Delhi Rent Control Act. This Court held that if two persons live together in a house as husband and wife and 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 the owner has let out that part of the premises. In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of Section 14(1)(b) of the Act."

14. Thus, the enquiry in such cases has to be as to who is in legal

possession of the premises. In the case in hand, there is no dispute to

the fact that the respondent no. 1 has acquired the tenanted premise

through inheritance and thus is in legal possession of the said

premises. Even if his wife i.e respondent no.2 is taken to be a separate

legal entity, mere allowing her to continue her business in the said

premises, without anything more, cannot at any stretch of imagination

be said to parting away with the legal possession of the premises. In

my considered view, the Ld. RCT has rightly held that the possession

of the second respondent was in her capacity of a member of the

family of Late Smt. Nirmala Mago and the first respondent, who has

succeeded to the tenancy rights of his mother and, as such, there was