M/S T.P. Pall vs S. Harisimran Singh & Another
2011 Latest Caselaw 5866 Del

I-10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 01.12.2011


+             CM (M) No. 1381/2007 & CM No. 13908/2007

M/S T.P. PALL
                                                    ........... Petitioner
                            Through:   Mr.Sanjiv Bahl, Advocate.

                       Versus


S. HARISIMRAN SINGH & ANOTHER
                                                   ..........Respondents
                            Through:   Mr. Riju Raj Jamwal, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR



INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the order dated

20.08.2007 vide which the learned Additional Rent Control

Tribunal (ARCT) had directed that the eviction petition filed by the

landlord under Section 14 (1)(b) read with Section 14 (1)(j) of the

Delhi Rent Control Act (DRCA) be remanded back to the

Additional Rent Controller (ARC) with a direction to the ARC to

record evidence of the respondent/tenant to establish that as to

whether he is still in physical possession and control of the suit

property with liberty to the landlord to lead evidence in rebuttal.

This order remanding the case back to the trial court is the

subject matter of challenge in the present petition.

2 Record shows that an eviction petition had been filed under

Section 14 (1)(b) read with Section 14 (1)(j) of the DRCA. The case

set up by the landlord was that the premises in dispute comprise

of two portions i.e. half of which had been let out to Roop Chand

Jewellers and second half in the tenancy of T.P. Pall; contention

being that T.P. Pall had sub-let his portion of the premises to Roop

Chand Jewellers and Roop Chand Jewellers is alone in occupation

of the suit property and T.P. Pall had divested himself from the

suit property; a case of sub-letting is made out.

3 Evidence had been led before the ARC. AW-1 was the

landlord; in his cross-examination he has made certain categorical

admissions which have been correctly appreciated by the ARC;

they were to the effect that T.P. Pall is continuing to pay rent of

his portion till date through cheque; the cheque in respect of

other portion let out to Kriplani (Roop Chand Jewellers) is issued

by them; the respondent (T.P. Pall) is carrying on the business in

his name and style in his own portion; electricity connection in

this portion and bills of electricity are also being issued in the

name of T.P. Pall.

4 In this background, the learned ARC had recorded the fact

finding that no case of sub-letting which has been made out; he

had accordingly dismissed the eviction petition under Section 14

(1)(b) of the DRCA; no ground had been made out under Section

14 (1)(j) also which is even otherwise not the controversy before

any Court.

5 The RCT in an appeal under Section 38 of the DRCA which

appeal has be to heard only on a question of law had gone into the

evidence recorded before the ARC and had remanded the matter

back to the ARC holding that it was for the tenant to prove as to

whether he was in possession of the premises or not.

6 The law of sub-letting as contained under Section 14 (1)(b)

of the DRCA places only an initial burden upon the landlord to

make out a case of the exclusive possession of the suit premises

with the sub-tenant; onus then shifts upon the tenant to prove that

it is not a case of sub-letting. In the present case, the findings of

fact have correctly been recorded by the ARC and there was no

reason as to why the order of remand had been passed by the

RCT; even before this Court AW-1 is not wriggling out of his

aforenoted admitted admissions made in his cross-examination.

7 In 134 (2006) DLT 369 Manbhari Devi Vs. Jaimat Rai

Ashwani Kumar & Another where the RCT had upset the finding

of fact recorded by the ARC which hearing before the ARCT was

to be on a question of law under Section 38 of the DRCA, the said

finding was set aside. The Tribunal under Section 38 of the DRCA

is not a court of appeal on facts when there is no patent illegality

in the said fact finding.

8 In (1999) 1 SCC 298 Thatchara Brothers and Another Vs.

M.K. Marymol and Others where the matter had been remanded

back by the High Court to the trial Court for recording further

evidence, the Apex Court had noted that if further evidence was

not required, the order of remand was liable to be set aside.

9 In the instant case, in view of clear and categorical evidence

which has come on record and specifically the cross-examination

of AW-1 wherein he has himself admitted that the tenant i.e. T.P.

Pall continues to be in occupation of the suit premises; he

continuing to pay rent of his portion of the premises; electricity

bills continue to be issued in his name and he is still retaining

possession of the suit premises, the question of sub-letting does

not arise.

10 In these circumstances, the order of the ARC dismissing the

eviction petition is up-held and the order of remand passed by the

RCT for recording fresh evidence is set aside. Petition disposed

of.

INDERMEET KAUR, J DECEMBER 01, 2011 A