Sh. Ramesh Kumar Seth vs Sh. Makhan Lal Halwai & Others
2011 Latest Caselaw 5951 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 07.12.2011.


+             CM (M) No. 184/2007


SH. RAMESH KUMAR SETH                    ........... Petitioner
                 Through:           Mr.Anand      Prakash     and
                                    Ms.Babita Seth, Advocate.


                      Versus

SH. MAKHAN LAL HALWAI & OTHERS ..........Respondents
                  Through: Mr.Satya  Prakash  Gupta,
                           Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Order impugned before this Court is the order passed by the

Additional Rent Control Tribunal (ARCT) dated 11.09.2006 which

has endorsed the findings of the trial Judge dated 16.04.2005

wherein the eviction petition filed by the landlord Ramesh Kumar

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

had been dismissed. These are two concurrent findings of fact

against the petitioner.

2. This petition has been filed under Article 227 of the

Constitution of India and at the outset the submission of learned

counsel for the respondent that this Court cannot go into the nitty-

gritties of the case and unless and until a manifest error or a

grave injustice which has accrued to the applicant party,

interference is not called for, is an argument having force.

3. The eviction petition had been filed by the landlord under

Section 14 (1)(b) of the DRCA. His contention was that his father

Dina Nath Seth had let out the demised premises i.e. one room

measuring 12'X10' on the ground floor of house No. 3/42, Roop

Nagar, Delhi-110007 to Makhan Lal Halwai on 05.07.1956 who

had been running a halwai shop under the name and style of M/s

Ram Swarup Makhan Lal. Rate of rent was Rs.66.55/- per month

excluding water and electricity charges. After the death of Shri

Dina Nath Seth, his wife Smt. Vidya Wati Seth had become the

owner/landlord; she had been collecting rent from Makhan Lal as

her tenant. She died on 22.08.1984 and by virtue of a Will the

petitioner Ramesh Kumar Seth had become the owner/landlord of

the said premises and Ram Swarup Makhan Lal has been paying

rent to the petitioner after the death of Vidya Wati Seth. Further

contention of the petitioner being that the respondent has sublet,

assigned/ parted with possession of the suit premises in favour of

legal representatives of Ram Swarup without either the written

consent or oral permission of the landlord as is required under

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

4 Oral and documentary evidence was led which included

7 PWs examined on behalf of the landlord and 2 witnesses have

come into the witness box on behalf of the respondent of whom

RW-2 was Ashok Kumar, attorney holder of Makhan Lal and son of

deceased Ram Swarup.

5. The fact findings by the courts below was on the basis of the

appreciation of the evidence adduced before it to arrive at a

conclusion that no case under Section 14 (1)(b) of the DRCA is

made out. Admittedly a petition under Section 14 (C) read with

Section 25-B of the DRCA had been filed by the landlord which

had been proved in the trial Court as Ex. PW-1/R41; this was qua

the same property. Para 14 clearly states that the premises had

been let out by Dina Nath Seth to M/s Ram Swarup Makhan Lal

and Makhan Lal was paying the rent for the said premises; no rent

note or lease deed had been executed; after the death of Ram

Swarup by rule of survivorship the tenancy devolved solely upon

Makhan Lal; legal heirs of Ram Swarup had been impleaded only

by way of abundant precaution. This portion of the eviction

petition (Ex. PW-1/R41) had clearly recited that Makhan Lal Ram

Swarup were both the co-tenants in the suit property; after the

death of Ram Swarup, by the rule of survivorship Makhan Lal had

alone become the tenant; this clear admission cannot be lost sight

of. Today before this Court also it has been urged that under a

mistaken legal advice this petition had been drafted; contention

before this Court being that all along the stand of the petitioner is

that Makhan Lal had been carrying on the business of halwai

under the name and style of M/s Ram Swarup Makhan Lal and he

also is the tenant. Learned counsel for the petitioner has

vehemently argued that the documentary evidence which included

the rent receipts Ex. PW-1/4 and Ex. PW-1/5 show that these rent

receipts have been signed by Makhan Lal alone. These documents

have been appreciated by the court below. The aforenoted two

documents i.e. Ex.PW-1/4 and Ex. PW-1/5 show that the receipts

have been issued in the name of 'Ram Swarup Makhan Lal' who

has been described as the tenant although both these documents

have been signed by Makhan Lal alone. Ex. PW-1/4 is in fact dated

08.07.1965; it is also not in dispute that Ram Swarup had died on

15.06.1965; obviously in this factual scenario, Ex.PW-1/4 which is

after the date of 15.06.1965 could not have been signed by Ram

Swarup. PW-1 the petitioner in his cross-examination has clearly

and categorically admitted that the rent receipts are in the name

of Ram Swaropp and Makhan Lal. PW-1 has also admitted that

Ex.PW-1/R-41 is the certified copy of the petition filed by him

which bears his signatures; this document as noted supra has

clearly described both Makhan Lal and Ram Swarup as co-tenants

in the said property and as such the submission of the petitioner

that Makhan Lal had sub-let these premises to Ram Swarup is

clearly an averment without any merit and in this factual scenario

findings of both the two courts below holding that no case of sub-

letting has been made out under Section 14 (1)(b) of the DRCA in

favour of the landlord suffers from no infirmity.

6. Contention of the petitioner that the testimony of RW-2

should further not to be read as he was a hear-say witness and

was rightly noted by the ARC is also an argument without any

merit. RW-2 was the general attorney of Makhan Lal and son of

Ram Swarup. The general power of attorney executed in his

favour by Makhan Lal is Ex. RW-1/8. In his examination in chief he

has deposed that he has personal knowledge of the controversy in

dispute; Makhan Lal has become very old and is of weak health;

this witness had deposed on 27.08.2002; his father Ram Swarup

was not alive at that time. In his cross-examination, it has been

revealed that the tenancy was created prior to his birth and his

one line statement in the cross-examination that he has no

personal knowledge about the case is not sufficient to return a

finding that his version has to be discarded as whole. The

testimony of a witness has to be read in its entirety and no one

single line can be extracted from the rest of the whole to read it in

a manner which suits one party or the other. In this part of the

cross-examination, he has deposed that his knowledge of the

details of the tenancy had been derived from his father and also

being the general power of attorney of Makhan Lal. The

submission of the petitioner that his testimony should be rejected

is thus of no merit. This contention was however not dealt with by

the RCT obviously for the reason that this was not even taken as a

ground of appeal before the RCT. These fact findings by the two

courts below call for no interference. Since the landlord himself

has admitted that both Makhan Lal and Ram Swarup were his

tenants (Ex.PW-1/R41) and an admission being the best form of

evidence which even till today remains unassailed, the courts

below affirming the fact that Makhan Lal and Ram Swarup both

being the co-tenants of the landlord, the ground set up by the

landlord that Makhan Lal had sublet these premises/assigned

them in favour of Ram Swarup suffers from no infirmity. After the

death of Ram Swarup in 1965, his legal heirs had become the co-

tenants with Makhan Lal and their possession being joint, the

question of sub-letting did not arise.

7. Impugned judgment calls for no interference; petition is

without any merit. Dismissed.

INDERMEET KAUR,J DECEMBER 07, 2011 A