Sh.C.R.Yadav @ Chottey Lal Yadav vs Sh.Prem Singh & Anr.
2011 Latest Caselaw 3972 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 16.08.2011

+             CM (M) No. 290/2005


SH. C.R. YADAV @ CHOTTEY LAL YADAV
                                                   ...........Petitioner
                           Through:   Mr. Harish Kumar Mehtra,
                                      Advocate.


                      Versus

SH. PREM SINGH & ANR.
                                                 ..........Respondents
                           Through:   Mohd. Yameen, Advocate for
                                      respondent No. 1.


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 is the order dated 18.12.2004 passed

by the Additional Rent Controller Tribunal (hereinafter referred to

as 'the ARCT') which had set aside the order dated 08.03.2004.

Vide judgment and decree dated 08.03.2004, the eviction petition

filed by the landlord under Section 14(1) (b) of the Delhi Rent

Control Act (hereinafter referred to as the DRCA) had been

dismissed. The ARCT had upset this finding; eviction petition had

been decreed in favour of the landlord. This order is the subject

matter of the present petition. Record shows that the

landlord/Prem Singh had filed an eviction petition under Section

14(1) (b) of the DRCA. In the grounds for eviction, it had been

contended that sometime in the first week of April 2001 the tenant

(C.R. Yadav) had sub-let the premises to Brijpal @ Toni

(respondent No. 2); this was after the landlord had served legal

notice dated 27.03.2001 to the tenant. Further contention was

that respondent No. 2 was paying Rs.60 to respondent No. 1

through the son of respondent No. 1 namely Ashok Kumar;

amount was being collected by Ashok Kumar on a daily basis; the

shop was under the exclusive possession and occupation of the

respondent No. 2 who was the sub-tenant; although respondent

No. 1 had been depositing rent under Section 27 of the DRCA but

the said deposit was illegal.

2. In the written statement these contentions were denied; it

was specifically denied that there was any person by the name of

Toni; in para 18 (a) of the written statement it was stated that this

is a manipulated story and respondent No. 2 is a creation of the

petitioner.

3. After issues were framed, oral and documentary evidence

was lead by the respective witnesses. Two witnesses were

examined on behalf of the petitioner/landlord and three were

examined by the respondent No. 1/tenant. The landlord had come

into the witness box as PW-1; his contention was that he had let

out the premises to the respondent No. 1 who was his tenant but

presently the property is in occupation of respondent No. 2 since

the last about one year that is since about April 2001; this version

of PW1 on oath had corroborated his averments made in the

eviction petition; in his cross-examination he had admitted that

Toni i.e. respondent No. 2 is now using the shop and respondent

No. 1 is no longer in occupation of the same. This had also been

reiterated by the second witness i.e. PW-2 who was a neighbor;

version of PW-2 was also to the effect that Toni had himself told

him that he has been paying a rent of Rs. 60 per day to the

respondent No. 1 as charges for carrying on his business of

repairing of scooters in the shop and the said amount was being

paid by him to respondent No. 1.

4. Three witnesses had been examined by the respondent No.

1/tenant. The respondent No. 1 had come into the witness box as

RW3; his contention was that his son Ashok Kumar was carrying

on the business of scooter repairs in the shop; he had reiterated in

his affidavit that a fictitious and fabricated person by the name of

Brijpal @ Toni has been created; he is a bogus person. The other

two witnesses examined on behalf of the respondent No. 1/tenant,

however, let the cat out of the bag and the true picture had been

revealed in their cross-examination; they were the neighbours and

working in the same vicinity as the tenant/RW3. RW1 in his cross-

examination had admitted that the shop was being operated by

Ashok Kumar (son of the tenant) with the assistance of a helper;

RW1 has admitted that he knew Toni who is a scooter mechanic;

RW1 knew him personally; he has further admitted that Ashok

Kumar was being assisted by a helper who was working in this

shop during the period April, 2001. This cross-examination of RW1

was totally contrary to the stand set up by the RW 3; RW-3 had

denied from the very existence of any person by the name Toni;

whereas according to RW1 Toni was personally known to him and

definitely not a fictitious man. RW2 in his cross-examination had

also admitted that in April, 2001 the shop was being operated by

one Pappu who was working alone in the said shop; he had further

stated that only Pappu is in occupation of the shop since April

2001; specific query appears to have been put to this witness

(RW2), whether the Pappu is the same person as Toni or not; he

could not give a positive answer on that count. From this cross-

examination of RW-2 it has been established that since April 2001

the shop was in the exclusive possession and occupation of one

person by the name of Pappu; this could be Toni as RW1 did not

know whether Pappu and Toni are one and the same person; RW1

had also admitted that Toni was in existence; and he was working

in a shop as a scooter mechanic in the same gali in which the suit

property is located. This was the entire gamut of evidence.

Tribunal had correctly observed that in a case of the present

nature the onus to prove that a person by the name of Brijpal @

Toni exists or not was upon respondent No. 1/Prem Singh. The law

under Section 14(1) (b) of the DRCA is clear; once the landlord

has specifically pleaded that a person apart from the tenant is

occupying the suit premises, the onus under Section 106 of the

Evidence Act shifts upon the tenant to disprove this fact. As noted

supra, the stand of the tenant has been shifting and conflicting;

his earlier contention was that there was no person by the name

of Toni; his own witnesses RW1 and RW2 had negated this

contention; they had deposed that Toni was a scooter mechanic

working in the said shop and Toni could also be Pappu; said

person was in exclusive possession of this suit shop since April,

2001 to the exclusion of the original tenant.

5 This court is sitting in jurisdiction under Article 227 of the

Constitution of India; unless and until, there is a patent illegality

this court exercising supervisory jurisdiction and not being an

appellate forum is constrained not to interfere in fact findings.

The ARCT had appreciated the evidence of the parties in the

correct perspective; it had noted the specific averment of the

landlord that user charges were being paid by the sub-tenant to

the original tenant through Ashok Kumar who was the son of the

tenant; there was no cogent explanation as to why Ashok Kumar

(son of the tenant) had not been produced into the witness box;

adverse inference was rightly drawn.

6. In (2000) 7 SCC 522 Shama prashant Raje Vs. Ganpatrao

and Ors., the Apex Court had noted that in a proceeding under

Articles 226 and 227 of the constitution of India, the High Court is

not sitting in appeal over the competent Tribunal; jurisdiction of

the High Court is supervisory; it cannot convert itself into a court

of appeal and examine for itself the correctness of the decision

and decide what is the proper view or the order to be made;

unless and until there is a manifest error by the misconstruction

of documents or the material on record, the High Court will not

be justified in interfering with the findings of the Tribunal below.

Applying the aforenoted parameters to the facts of the instant

case, it is clear that no interference is warranted in the orders of

the ARCT.

7 Petition is without merit; it is dismissed accordingly.

INDERMEET KAUR, J.

AUGUST 16, 2011 rb