Smt. Ishwari Devi vs Shri Madan Lal Chopra & Others
2011 Latest Caselaw 3702 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 03.08.2011

+             CM (M) No. 503/2004 & CM No.4833/2004

SMT. ISHWARI DEVI                                ........... Petitioner
                          Through:   Mr. K. Sunil, Advocate.

                     Versus

SHRI MADAN LAL CHOPRA & OTHERS        ..........Respondents
                  Through: Mr.K.R. Chawla, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

    2. To be referred to the Reporter or not?               Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 The order impugned before this Court is the order dated

24.01.2004 which had reversed the finding of the Additional Rent

Controller dated 01.03.2002. The Rent Controller vide his order

dated 01.03.2002 had passed an eviction order in favour of the

landlord; the Additional Rent Control Tribunal had reversed this

finding; petition of the landlord stood dismissed.

2 The present eviction petition has been filed by the

landlord under Section 14 (1)(b) of the Delhi Rent Control Act

(DRCA). His contention is that this premises comprising of One

room and a verandah bearing No. 28/8, Shakti Nagar, Delhi had

been let out in the year 1965 to Jai Kishan Dass, father of the

respondent; it was for the purpose of selling milk and ghee. In

1986, Jai Kishan Dass died leaving behind his legal heirs.

Contention is that the Madan Lal Chopra (son of Jai Kishan DAss)

had illegally and unauthorizedly sub-let and parted with the

possession of the premises to one Ram Lubhaya. This was in the

year 1988. In 1990 Ram Lubhaya had parted with the possession

of the premises to Gobind Singh Gharwal who was running the

business of 'Gol Gappe' and 'Tikkis'. Present petition for eviction

under Section 14 (1)(b) of the DRCA was accordingly filed.

3 Issues were framed and oral and documentary evidence

was led by the respective parties. Three witnesses were examined

on behalf of the petitioner. AW-2 was the son in law of the

petitioner; he had proved on record the photograph Ex. AW-2/1

depicting the presence of the alleged Gobind Singh Gharwal was

using these premises i.e. premises bearing No. 28/8; he was

selling 'Gol Gappe' and 'Tikkis' from the said shop. Learned

counsel for the landlord has pointed out that the order of ARCT

reversing the finding of the ARC is an illegality; contention being

that the petitioner/landlord has in a case of subletting only to

show that a stranger has been inducted into the premises by the

original tenant; thereupon the onus shifts upon the tenant to show

as to how and in what circumstances this stranger was found in

the premises; this onus was not discharged by the tenant; ARC

had correctly noted these facts; order of the RCT reversing the

finding of the ARC suffers from a patent illegality. For this

proposition, reliance has been placed upon a judgment of the Apex

Court 1990 RLR (SC) 13 Duli Chand (D) by LRs. Vs. Jagmender

Dass as also 1996 RLR Hari Ram Vs. Rukmani Devi and 1998 RLR

(SC) 592 Mohd. Kasam Vs. Bakar Ali to support this submission. It

is pointed out that under Section 14 (1)(b) of the DRCA where the

landlord has shown the presence of a person other than that of a

tenant; it is for the tenant to show the capacity of the alleged sub-

tenant.

4 Arguments have been countered. It is submitted that the

order of ARCT suffers from no infirmity. It is submitted that the

RCT had rightly noted that Ram Lubhaya is a fictitious person; his

parental address was not known to the petitioner; Gobind Singh

Gharwal is also a person who was not known to the respondent

and this has been his defence all along even in his written

statement. Subletting was not proved. Learned counsel for the

respondent has further submitted that it is not in dispute that the

respondent was served at the same address i.e. 28/8, Shakti

Nagar, Delhi and as such the contention of the landlord that he

has parted with the possession of the suit premises is negatived.

5 Record has been perused. Present eviction petition has

been filed under Section 14 (1)(b) of the DRCA. Initially in the

petition it had been averred that the premises had been let out to

the father of the respondent i.e. Jai Kishan Dass who was a tenant

and carrying on the work of Ghee on the said shop. Contention

was that he had sublet these premises in 1988 to Ram Lubhaya.

Thereafter the petition had been amended and in the amended

petition, it had been averred that in 1990 Ram Lubhaya had

thereafter sublet these premises to Gobind Singh Gharwal. In the

written statement, the defence of the tenant all along had been

that Ram Lubhaya has been set up as a stooge; he is a no person;

he has no identity; same was the defence qua Gobind Singh

Gharwal.

6 Record shows that the initial tenant i.e. Jai Kishan Dass

had expired in 1986. He was initially doing the business of selling

ghee but thereafter he had started a restaurant under the name of

J.K. Restaurant and was selling tea. Thereafter the contention of

the defendant was that since the legal heirs comprised of Madan

Lal Chopra, his brother and sisters and since he himself was in

Government service and his sisters were also carrying on their

own private work, nobody was running the shop and the shop

remained closed for about 2-3 months after the death of their

father. Thereafter his sister and brother in law started the work of

restaurant and they were selling tea. These facts are not in

dispute.

7 Learned counsel for the petitioner has placed

heavy reliance upon the photograph (Ex. AW-2/1) which

has been exhibited in the testimony of AW-2 Brij Mohan wherein

the premises i.e. shop No. 28/7, Shakti Nagar had been depicted

in the photograph. Name board shows the name of J.K.

Restaurant; there is an advertisement of refreshing Cola and a

logo of 'Thums- Up' has been depicted. Admittedly the father of

the respondent was running a restaurant and thereafter his sister

was carrying on his tea business. Learned counsel for the

petitioner has pointed out that this photograph has also depicted a

'Gol Gappe' stall; two persons are shown in the

photograph of whom one is Gobind Singh Gharwal and this has

not been specifically denied by the tenant; contention being that

all that the tenant has to show in a petition under Section 14

(1)(b) of the DRCA is that a stranger i.e. a person other than the

tenant has entered into the premises and thereafter the onus

shifts upon the tenant to show and establish who that stranger is;

in this case the landlady petitioner has discharged this initial

onus.

8 The explanation tendered by the respondent on this count

was that the photograph shows that the shop is lying closed and it

has a verandah in which two persons sitting in front of 'Kadai'

have been depicted; contention being that the respondent was

working in a Government job; he used to visit the said shop

premises only on Sunday; it was in his absence that on one day

this photograph was clicked trying to build up a case that a

stranger is using premises.

9 Record shows that the contention of the petitioner that the

premises had been sub-let in 1988 to Ram Lubhaya and thereafter

2 years later in 1990 to Gobind Singh Gharwal without there

being any further detail of the aforenoted sub-tenants; either their

addresses or parentage etc. had led RCT to hold that this appears

to be a sham story set up by the landlord. The premises which are

the subject matter of dispute comprise of one shop and a

verandah in front of the shop. The photograph shows that the

shop is lying locked; it is the only the open verandah in which two

persons have been depicted. Admittedly the father of the

respondent was running a restaurant and thereafter his sister and

brother in law were carrying on their tea business for some time

i.e. 2-3 months whereafter it was closed. It is also not in dispute

that the respondent is a Government servant; he was not putting

this shop to any use except for this short span when his sister was

carrying on the business of tea stall for some time. Defence of the

tenant all along has been that there is no person by the name of

Ram Lubhaya or Gobind Singh Gharwal.

10 At this stage, it is also relevant to state that this eviction

petition had been filed in the year 1988. Immediately after the

service of notice of this petition, a suit for perpetual injunction

had been filed by the tenant against the defendant; he had sought

a prayer that the landlord should be restrained from forcibly

dispossessing him from the suit premises. In this suit also, he had

categorically denied that there was any person by the name of

Ram Lubhaya who was known to him. It is also relevant to state

that a Local Commissioner had been appointed in these court

proceedings who had visited the spot on 26.11.1992. The Local

Commissioner had gone unexpectedly; it was an ex-parte order

which had been passed on the application made by the landlord;

the Local Commissioner had found that Madan Lal Chopra was

present there; Madan Lal Chopra had the keys of the premises.

The Local Commissioner had opined that these premises are lying

closed and although entry into the premises had not been

permitted to him by the petitioner as his counsel was not there

but the Local Commissioner had noted that the ventilator at the

back of the shop is open and the premises were in a slab by

condition; badly eaten by the white-ants meaning thereby that the

premises were not in an unusable condition. This is also the stand

taken up by the respondent; stand being that the premises were

lying unused and were in his possession.

11 Three witnesses had been examined on behalf of the

landlady of whom AW-2 was the son in law of the landlady who

had produced this photograph depicting the persons of whom one

was Gobind Singh Gharwal in the photograph. In his cross-

examination, AW-2 had admitted that he knows both Ram Lubhaya

and Gobind Singh Gharwal yet inspite of that no further details

could be furnished by the landlady of the aforenoted premises;

this was especially incumbent in view of the categorical and

unequivocal stand taken by the tenant all along that both Ram

Lubhaya and Gobind Singh Gharwal are fictitious persons. AW-3 a

neighbor had also deposed in favour of the petitioner landlady; in

his cross-examination he had admitted that this fact had been told

to him by the petitioner. RW-1 was the tenant himself; he has

deposed that in the year 1989 relations between his father and

husband of the petitioner had become stained on the joint usage

of a Latrine on the back side of the premises. He had deposed that

for about 4-5 months his sister and brother-in-law were using the

shop for the purpose of running a tea stall but after that it was

closed and even since it has remained in his possession. It is also

not in dispute that initially the shop premises were being used by

the father of the respondent for selling ghee but after that his

father had started the business of tea and running of a restaurant.

The RCT had noted all these facts in the correct perspective and

held that the story of Ram Lubhaya and Gobind Singh Gharwal as

set up by the petitioner does not appear to be trust worthy. In

these circumstances the judgments relied upon by learned counsel

for the petitioner would not apply as the landlord himself as failed

to discharge the initial onus that a stranger apart from tenant was

in the use of the premises. Even in the photograph it is only the

open verandah which has been depicted; in the photograph the

shop has clearly been shown to be locked; the alleged 'golgappa'

stall is even otherwise outside the verandah. Moreover it has also

come on record and it is not in dispute that the summons of the

eviction petition had been served upon the respondent on this

very address which was in the year 1988; thereafter even when

the amended eviction petition had been filed summons had been

sent in the year 1990 also at the same address.

12 Section 39 of the DRCA has not been abrogated; Article

226 of the Constitution of India is not an substitute for an

appellate forum. Right of Second Appeal has now been taken away

from the Statute. There is no patent illegality or clear injustice

which has been suffered by the petitioner. Interference under

Article 227 of the Constitution of India is not warranted.

13      Dismissed.




                                          INDERMEET KAUR, J.
AUGUST 03, 2011
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