Anil Kumar Kalra vs Shri Sat Narain Gupta & Others
2011 Latest Caselaw 3975 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment delivered on : 16.08.2011


+ CM(M) No. 486/2003 & CM Nos.14983/2011 & 997/2003

ANIL KUMAR KALRA
                                                 ........... Petitioner
                          Through:   Mr.J.C.Mahindro, Advocate.

                     Versus

SHRI SAT NARAIN GUPTA & OTHERS
                                                 ..........Respondents
                          Through:   Dr. Naipal Singh, 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 is the order dated 03.07.2003 which

order was passed by the Additional Rent Control Tribunal (ARCT)

dismissing the review petition filed by the tenant against the order

dated 23.05.2003. Vide judgment and decree dated 23.05.2003

the ARCT had dismissed the appeal of the tenant upholding the

order of the Additional Rent Controller (ARC) dated 08.05.2003

whereby an eviction order had been passed in favour of the

landlord namely Sat Narain Gupta and against the tenant Anil

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

(DRCA).

2 Record shows that the landlord had filed the present

eviction petition under Section 14 (1)(b) of the DRCA; tenanted

shop is premises bearing No. ER-20, Inderpuri, New Delhi; it had

been let out to respondent No. 1 (Anil Kumar Kalra) vide rent

deed dated 20.03.1985. This tenancy had been created by Bidhi

Singh in favour of respondent No. 1; Bidhi Singh was the

erstwhile owner of this property; thereafter this property had

been purchased by the present petitioners Sat Narain Gupta and

Anil Kumar Goel. Eviction petition had been filed on the ground of

sub-letting; contention was that respondent No. 1 had sublet these

premises to Pradeep Kalra (respondent No. 2), it is not in dispute

that respondent No. 2 is the brother of respondent No. 1;

contention of the petitioners was that respondent No. 2 was in

exclusive and complete possession and control of the premises

and he was running a business of tents and decorators under the

name and style of „Payal Tent and Decorators‟; this subletting

being without the consent of the landlord, petition under Section

14 (1)(b) had been preferred. Further contention was that

respondent No. 1 is now running his business either at the Patel

Nagar or Narayana Ring Road for the last few years; i.e. he has an

independent business.

3 In the written statement these contentions had been denied.

The stand of respondent No. 1 was that respondent No. 2 is his

younger brother; he was working as helping hand in the joint

family business and the shop is in fact being run by respondent

No. 1 under the name and style of „Payal Tent and Decorators‟

with the help and assistance of his brother respondent No. 2.

4 Issues were framed; oral and documentary evidence was

led. The landlord had examined three witnesses. Petitioner No. 1

had come into the witnesses as PW-1; he had reiterated the

averments made in his eviction petition; he had reiterated that

respondent No. 1 is now not sitting in this shop and the shop is

being managed by respondent No. 2 who is carrying on the

business under the name and style of „Payal Tent and Decorators‟.

In his cross-examination he had admitted that he has seen

respondent No. 2 and he can identify him; he had further stated

that man present in Court is Anil Kumar Kalra; however on

verification, it was found that the said man was respondent No. 2

Pradeep Kalra. This variance in the cross-examination of PW-1 has

been vehemently highlighted by learned counsel for the petitioner

to substantiate his submission that the landlord could not even

recognize his sub-tenant and as such this whole story is concocted

and fictitious. Petitioner No. 2 was examined as PW-2. He had also

reiterated that respondent No. 2 is exclusively sitting in the shop

and is managing business of the tent and decorators being run

from the said shop. PW-3 was the son of the erstwhile owner of

shop i.e. Bidhi Singh; he had produced the rent receipt Ex.PW-1/4-

A to Ex. PW-1/4-C evidencing the fact that the earlier rent receipts

used to be issued by respondent No. 1 but thereafter Pradeep

Kalra i.e. respondent No. 2 had started signing the counter-foils of

the said receipts; he had deposed that earlier the business was

being run by respondent No. 1 under the name and style of „Payal

Tent House‟ but thereafter respondent No. 2 had affixed the board

of „Payal Tent and Decorators‟.

5 The tenant had examined three witnesses to support his

case. The tenant had himself come into the witness box as RW-1;

he had stated that the rent receipts Ex. PW-1/4-A to Ex. PW-/4-C

although admittedly signed by his brother Pradeep Kalra but were

signed in his capacity as his General Manager; he had admitted

that he has a shop at Narayana which was earlier under the

tenancy of his father but now under his tenancy; RW-1 had

admitted that whatever profits are earned from the tent house

business are kept by Pradeep Kalra only; he had admitted that he

was an income tax assesseee; he had further admitted that he had

a bank account for his Narayana shop and the name of the

business of Narayana Shop is „Payal Tent House‟; he had stated

that there is a joint account of both the shops i.e. shop at

Narayana and shop at Inderpuri as the business is the same; he

had also admitted that he was maintaining the balance-sheets of

the firm. In his cross-examination, he had admitted that he had

not brought the balance-sheet for the years 1995 to 1998 as the

same had not been prepared because of low business; balance-

sheets for the year 1999-2000 had admittedly been filed; this

balance-sheet admittedly pertains to the period after the filing of

the eviction petition; this has been noted while drawing a

conclusion that the tenant had deliberately chosen neither to file

his balance-sheets and nor the income tax returns for the period

from 1995 to 1998 which was the period when he had allegedly

sublet these premises exclusively to his brother Pradeep Kalra; in

these circumstances, the concurrent findings of RCT as also of

ARCT had noted that adverse inference on this count has to be

drawn against the tenant. RW-2 had produced the record of the

Income Tax Department; admittedly income tax returns for the

years 1993 to 1999 were not on record as the same had not been

filed; RW-3 a witness from the MCD Department had admitted

that he had not brought the file of the tenant as he was not asked

to do so; the license last renewed from the Department was in the

name of „Payal Tent and Decorators‟ and not „Payal Tent House‟

which was the original name of the business which was being

carried out by respondent No. 1; „Payal Tent and Decorators‟ was

the business allegedly being carried out by respondent No. 2.

6 Both the courts below i.e. ARC as also the RCT had given

concurrent findings of fact against the tenant; the Courts below

had noted that a case under Section 14 (1)(b) of DRCA has been

established by the landlord; this was after a correct appreciation

of the evidence discussed supra. The stand of respondent No. 1 all

along was that respondent No. 2 was his brother and was helping

him in the joint family business; he had however failed to produce

any books of account of this joint family business; the income tax

returns for the alleged period when he had sublet these premises

to his brother had also not been filed i.e. for the period from 1993

to 1999; Ex.RW-2/3 which was the returns filed for the years 1999

to 2003 was admittedly after the date of filing of this petition;

both the Courts below had correctly noted that this evidence has

been created by the tenant.

7 ARCT had endorsed the finding of the ARC vide his

judgment and decree dated 23.05.2003. Thereafter a review

petition had been filed seeking a review of the judgment and

decree dated 23.05.2003. Vide order dated 03.07.2003, the review

petition had been dismissed. The Court had noted that there is no

pleading in the written statement qua the alleged partnership

deed which is sought to be now pleaded; the court had also noted

that there is a variance in the written statement wherein the

tenant had stated that his brother Pradeep Kalra was helping him

in the joint family business; question of a partnership deed

between them was a total variance with this initial defence; taking

note of all these contentions, the review petition had been

dismissed. The Court had also noted that if in fact there was a

partnership deed in existence between respondent No. 1 and

respondent No. 2, there was no explanation as to why this

document did not see the light of the day earlier; this fact was

well within the knowledge of the appellant at that time, there

being no "due diligence" on the part of the petitioner; if there was

such a partnership deed, why it was not filed earlier was not

explained; review petition had accordingly been dismissed. The

concurrent findings of fact by the two courts below do not warrant

any interference by this Court.

8 This Court is sitting under Article 227 of the Constitution of

India in a supervisory jurisdiction; until and unless, any patent

illegality or manifest error is found on the record, no interference

is warranted. This is not one such case. The Court had rightly and

correctly appreciated the oral and documentary evidence and

arrived at the finding that the landlord is entitled to a decree of

eviction under Section 14 (1)(b) of the DRCA.

9 An application under Order 41 Rule 27 of the Code seeking

production of additional evidence (which is a partnership deed

dated 01.04.1993 purportedly executed between respondent No. 1

and respondent No. 2) has also been sought to be placed on

record. Apart from the fact that averments in this application

were the subject matter of the review petition which had been

dismissed vide order dated 03.07.2003, even otherwise an

application under Order 41 Rule 27 of the Code is not

maintainable in proceedings under Article 227 of the Constitution

which is not an appellate forum. The judgments relied upon by

learned counsel for the petitioner reported in AIR 1963 Supreme

Court 1526 K. Venkataramiah Vs. A. Seethrama Reddy and others

and JT 2000 (Suppl.3) SC 90 State of Rajasthan Vs. T.N. Sahani &

others thus do not come to the aid of the petitioner. Petition is

without merit.

10    Dismissed.




                     INDERMEET KAUR, J.
AUGUST 16, 2011
a