Elofic Sales India vs Punjab National Bank
2010 Latest Caselaw 1839 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of Reserve: 17th February, 2010
                                                          Date of Order: 8th April, 2010
CM(M) No. 2130/2006
%                                                                      08.04.2010

ELOFIC SALES INDIA                                                       ... Petitioner
                                            Through: Mr. Chetan Sharma, Sr. Advocate
                                            with Mr. Mahipal Singh, Advocate

                Versus


PUNJAB NATIONAL BANK                                                 ... Respondents
                                            Through: Mr. Rajesh Katyal, Advocate


JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

By this petition, the petitioner has assailed the order of learned

Additional Rent Control Tribunal (ARCT), Delhi, dismissing the appeal of the

petitioner against the order of learned Additional Rent Controller (ARC), Delhi.

2. Brief facts, relevant for the purpose of deciding this petition, are that

the petitioner filed an eviction petition against the respondent/tenant on the

ground that the respondent had sublet the premises to Dr. T.N. Bhan

(deceased) without written consent of the petitioner (landlord).

3. Learned ARC after recording the evidence of both the parties and

considering the statement made by the witness, Mr. M.S. Kanwal, of the

petitioner, in an earlier eviction petition No. E-361/89, decided on 23.05.2000,

came to conclusion that front portion of the shop in question was sub-let by

the respondent with the consent of the previous landlord. After the death of

sub tenant Dr. T.N Bhan, his legal heirs were in possession of the suit

premises. The learned ARC dismissed the eviction petition filed by petitioner

holding that it was not a case of illegal sub-letting since sub-letting was with

the consent of the landlord. Learned ARCT, again re-appreciated the

evidence and came to the same conclusion and dismissed the appeal.

4. the only issue raised before this Court is that the subletting, even if it

was with the consent of the previous landlord, was a good ground for eviction

as written consent required under Section 16(2) of the Delhi Rent Control

(DRC) Act, has not been proved nor pleaded by the tenant. It was also

argued that oral consent or acquiescence by the landlord, would not disentitle

the landlord from getting the premises vacated on the ground of sub-letting

since it was mandatory that the consent should be in writing.

5. It is undisputed that the petitioner is subsequent purchaser of the

property and when the petitioner purchased the property Dr. T.N. Bhan was

already a sub tenant in the premises. The respondent in its defence has

taken the stand that Dr. Bhan was sub-tenant in the premises for more than

40 years of the filing of the eviction petition. The present eviction petition was

filed by the petitioner in October, 1999. The petitioner in his eviction petition

had not stated the date of creation of sub tenancy. The petitioner had

purchased this property in 1973 along with tenant and sub tenant. The

petitioner did not place on record the documents of purchase to show if the

previous landlord had made any recital in the transfer documents in respect of

the sub-tenant and when the sub-tenant was inducted and if the sub tenant

was inducted with consent or without his consent in writing.

6. The statutory position in respect of sub-tenant inducted prior to 9th

June, 1952 and after 9th June, 1952 is different. In case of a sub-tenant

inducted prior to 9.6.1952, a written consent was not necessary and in case of

a sub-tenant inducted after 9.6.52, when the DRC Act came into force, a

written consent under Section 16(2) of the Act was made necessary. It was

for the petitioner to prove the date of induction of sub-tenant and to prove that

the sub-tenant was inducted without consent of the previous landlord. The

previous landlord in this case was not examined to give testimony whether he

had given written consent or not. It was within the specific knowledge of the

previous landlord if he had given consent in writing or not. Giving of consent

for inducting sub tenant was admitted by petitioner's own witness in the

previous eviction petition.

7. In the previous eviction petition No. E-361/1989 Mr. M.S. Kanwal

appeared as a witness of the petitioner and testified as PW-1 and in his

examination he had categorically stated that front portion of the shop was

sub-let by Punjab National Bank/respondent to Dr. T.N. Bhan with the consent

of the previous landlord. The learned ARC had no reason to believe that this

consent was oral because under law the sub-tenancy could be created only

with the written consent. Once the witness of the petitioner had testified in the

court that the tenancy was created with the consent of the previous landlord,

an eviction petition on the ground of sub-letting could only be filed if later on it

was discovered that this consent was not in writing and was only oral and the

sub-tenancy was created after 9th June, 1952.

8. Thus onus of proving these two facts were on the petitioner. A perusal

of the record would show that the petitioner did not discharge the onus of

proving either of the two facts. It was not proved when Mr. T.N. Bhan was

inducted as sub-tenant. Neither the previous landlord was examined to testify

that he had not given written consent and had given only oral consent.

Another factor which goes against the petitioner is that Mr. T.N. Bhan was a

sub-tenant for around more than 40 years prior to filing of eviction petition.

The long sub tenancy of Mr. T.N Bhan, which admittedly was created with the

consent of the previous landlord, would go to show that this consent was in

accordance with law and not contrary to law and I, therefore, consider that the

ARC and learned ARCT, Delhi, rightly came to the conclusion that it was not a

case of unlawful sub-letting.

9. The petitioner has relied on various judgments about the sub-letting. I

consider that none of these judgments are helpful to the petitioner as the

petitioner had failed to discharge the basic onus of proving the date of

creation of sub-tenancy and the fact that the consent as deposed by the

witness of the petitioner in earlier petition meant only oral consent and not

written consent given by the previous landlord.

10. I, therefore, find no merit in the petition. The petition is therefore

hereby dismissed.

April 8, 2010                             SHIV NARAYAN DHINGRA, J.
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