Delhi High Court
Subhash Khanna vs Chatar Lal on 11 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: February 11, 2010
Date of Order: 11th March, 2010
+ CM(M) 12/2010
% 11.03.2010
Subhash Khanna ...Petitioner
Through: Mr. Dhruv Kumar, Advocate
Versus
Chatar Lal ...Respondent
Through: nemo
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
1. By this petition under Article 227 of the Constitution of India, the petitioner
assailed an order dated 4th November 2009 passed by learned Additional Rent Control
Tribunal (ARCT), Delhi dismissing an appeal of petitioner against order dated 3rd
March, 2008 of the learned Additional Rent Controller (ARC).
2. Brief facts relevant for the purpose of deciding this petition are that the
respondent (landlord) filed an eviction petition against the petitioner/tenant under
Section 14(1)(a) and (b) of Delhi Rent Control Act (DRC) on account of non-payment
of rent and subletting. Non-payment of rent was established and an order under
Section 15(1) was passed by learned ARC directing respondent to pay arrears of rent.
There is no challenge to the order passed by learned ARCT in appeal concerning
Section 14(1) (a) and Section 15(1) of the DRC Act. The eviction of the petitioner was
upheld by learned ARCT on the ground of subletting of the premises to one Shri Hari.
The challenge by this petition is to order of eviction on the ground of subletting.
3. The premises in question is a shop which was let out to the petitioner herein.
The contention of the respondent was that the petitioner has sublet this shop to Hari
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(respondent no.2 before the trial court) who was carrying his business of golgappas,
alloo chat, bhallas etc in the shop. This subletting was done without the consent of
the respondent (landlord). The petitioner took the stand that Shri Hari was an
employee of the petitioner and it was not a case of subletting.
4. It is not in dispute that the petitioner himself was not carrying business of
golgappas, alloo chat, bhallas etc and was carrying a business of 'speakers' etc at the
premises bearing number A-719, Shastri Nagar, Delhi-110052, a premises just behind
the shop in question. The evidence about subletting led before learned ARC by the
parties was analyzed by the learned ARC. It was proved by the landlord that the shop
was opened and closed by Shri Hari and MCD had visited the shop and challaned
owner of shop. The name of owner mentioned in the challan of MCD was that of
respondent no.2 Shri Hari @ Harish Chand Gupta. It was brought on record that the
entire material etc required for running the shop used to be purchased by Mr. Hari
himself.
5. The petitioner who examined himself to substantiate his contention that Hari
was his employee stated that he was paying a salary of Rs.4,500/- per month while
Mr. Hari in his testimony stated that he was an employee of the petitioner at a salary
of Rs.4,000/- per month. In his testimony the petitioner stated that he himself used to
visit the shop during day time to supervise the business while Mr. Hari on the other
hand stated that it was petitioner's mother who used to visit the shop for supervision.
The petitioner before the trial court had taken a stand that he was maintaining
accounts of the business of shop. However, he failed to produce account books
before the trial court to show payment of salary to Hari or other accounts being
maintained or what was being purchased by Hari or what was the source of his
purchase, how much money was being spent on purchasing goods, how much was
the profit.
6. After re-appreciating the entire evidence led by the parties, the learned ARCT
came to conclusion that the landlord had discharged his onus that Hari was in
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exclusive possession of the shop and the tenant had failed to discharge his onus that
Hari was an employee. The learned ARCT upheld that it was a case of subletting.
7. By way of present petition, the petitioner has assailed the order on the ground
that mere presence of Shri Hari in the shop would not mean that it was a case of sub-
tenancy. He submitted that the sub-tenancy cannot to be presumed but is to be
proved and mere user by other person does not amount to parting with possession of
the premises so long as the tenant retains the legal possession himself.
8. In case of a sub-tenancy there is an agreement between the subtenant and
the tenant which is entered into without the knowledge of landlord and in secrecy.
Thus the landlord cannot be expected to prove the sub-tenancy by proving an
agreement between the subtenant and the tenant. The onus of landlord is to prove
that the shop was in exclusive possession of someone, other than the tenant. Once
the landlord proves this, the onus shifts on the tenant to show that the person in
occupation of shop was not a subtenant. The trial court in this case had considered
the evidence produced by the tenant. The tenant had taken the plea that respondent
no.2 Mr. Hari was an employee and accounts were being maintained but he failed to
produce the account books nor proved attendance register or salary register in the
Court. There were contradictions on the quantum of salary in statements of
witnesses. There were contradictions about supervision of shop/ business in the
statements of two witnesses. In view of the testimony led before the trial court and
the fact that the tenant did not lead any cogent evidence to show that the
respondent no.2 Hari was his employee, both the courts below come to a concurrent
finding that Mr. Hari was a subtenant.
9. I consider that this Court in a petition under Article 227 of the Constitution of
India cannot disturb the concurrent findings of fact given by the two courts below.
The petition has no force and is hereby dismissed. No orders as to costs.
March 11, 2010 SHIV NARAYAN DHINGRA J.
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