Delhi High Court
Sh.Dhruv Kumar Gupta & Anr. vs Sh.Dwarka Nath @ Mast Ram Through ... on 6 May, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) Nos.1675-76/2006
% Date of Decision: 06.05.2011
Sh.Dhruv Kumar Gupta & Anr. .... Petitioners
Through Mr.Sheetesh Khanna Advocate.
Versus
Sh.Dwarka Nath @ Mast Ram .... Respondents
Through his LRs & Anr.
Through Mr. Anuj Gupta Advocate for
Respondent No.2.
Mr.Deepak Kumar, LR of respondent
No.1 in person.
Mr.Mahinder Nath, respondent No.2 in
person.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers YES
may be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioners Sh. Dhruv Kumar Gupta and Sh. Dushyant
Gupta, alleged unauthorized sub-tenants have challenged the order
of eviction passed in respect of suit premises No. 1271(Old No. 442),
Vakilpura, Bazaar Guliyan, Near Daribakalan, Delhi under Section
14(1)(b) of Delhi Rent Control Act in Eviction Petition bearing E-
121/2000 titled as „Sh. Dwarka Nath and Anr. Vs. Smt. Bimla Gupta
& Ors.,‟ under Section 14(1)(b) of the Delhi Rent Control Act and the
order dated 21st September, 2006 passed in RCA 480/2004 titled as
„Sh. Dhruv Kumar Gupta & Ors. Vs. Dwarka Nath & Ors.‟,
dismissing the appeal of the petitioners with a cost of Rs.10,000/-
holding that the petitioners were not inducted as lawful sub-tenants
and therefore, they cannot escape the order of eviction passed
against the tenant as well as against them.
2. Brief facts to comprehend the disputes are that late Sh.
Dwarka Nath and Sh. Mahinder Nath filed an eviction petition under
Section 14(1)(b) of Delhi Rent Control Act in respect of demised
premises comprising of 1 Dalan, two rooms, four stores, two kitchens
and one bathroom on the ground floor; four rooms, three stores,
three bathrooms, two kitchens and one pooja room on the first floor
and three rooms, one kitchen, one store and one verandah on the
second floor and the entire basement.
3. Regarding the basement, it was alleged that the basement was
previously in possession of the respondents and was taken over by
the deceased tenant‟s widow Smt. Angoori Devi and was illegally sub
let to the petitioners.
4. The respondents in the eviction petition alleged that Sh.
Kishan Dass, S/o Sh. Jyoti Prasad was a tenant and Smt. Bimla
Gupta, widow of late Sh. Sri Bhagwan Gupta; Smt. Veena Gupta,
W/o Sh. Raj Kumar, D/o Sh. Sri Kishan Dass; Master Amit Gupta,
S/o late Sh. Sri Bhagwan Gupta; Ms. Monica Gupta, D/o late Sh.
Ram Bhagwan Gupta; Smt. Daisy Gupta, W/o Sh. Umesh Gupta,
D/o late Sh. Sri Bhagwan Gupta; Smt. Usha Gupta, W/o Sh. Ajay
Gupta, D/o late Sh. Sri Bhagwan Gupta; Smt. Nisha Gupta, W/o
Shri Sudhir Gupta, D/o late Shri Sri Bhagwan Gupta; Smt. Niti
Gupta, W/o Sh. Sandeep Gupta, D/o Late Sh. Sri Bhagwan Gupta
were the heirs of late Sh. Sri Kishan Dass, who inherited the tenancy
rights from him. It was further alleged that the tenancy of Sh. Sri
Kishan Das had been terminated during his lifetime, however, a copy
of the notice, postal receipt, AD Card, etc., could not be traced and
therefore, the above legal heirs of late Sh. Kishan Dass were treated
and accepted as tenants. It was further alleged that Smt. Bimla
Gupta, Master Amit and Ms. Monica Gupta were residing in a portion
of property and the other portion of the demised premises is in the
unauthorized possession of Sh. Dhruv Kumar Gupta and Sh.
Dushyant Gupta, the petitioners, along with Smt. Vidyawati Jain,
Widow of late Sh. Nand Kishore Jain; Sh. Virender Kumar Jain, S/o
Sh. Nand Kishore Jain; Sh. Jagdish Narain, S/o late Sh. Firozi Lal;
Sh. Girish Mohan, S/o Late Shri Surender Nath; Smt. Nilima, W/o
Sh. Ramesh Chand Jain, D/o Late Sh. Surender Nath as
unauthorized sub tenants.
5. The rent of the premises was alleged to be Rs.202/- per month
including house tax and excluding all other charges. It was asserted
that earlier the rent was Rs.168 per month, which was increased
after giving notice w.e.f. 16th May, 1995 to Rs.184.80 and thereafter,
after giving another notice, the rent was increased w.e.f. 1st June,
1998 @ Rs.202/- per month.
6. Petitioners Dwarka Nath and Mahinder Nath disclosed in the
eviction petition that the premises were let out by Smt. Sona Devi,
their mother, to late Sh. Sri Kishan on a monthly rent of Rs.115/-
and a rent note dated 29th November, 1943 was executed, stipulating
that the premises was let out for residential purposes only.
7. The respondents pleaded that the tenant had sub-let, assigned
or otherwise parted with possession of different portions of the
tenanted premises to different sub tenants whose names are detailed
hereinabove without the permission in writing of the
owners/landlords after 9th June, 1952.
8. The respondents contended that Sh. Dhruv Kumar Gupta and
Sh. Dushyant Gupta (petitioners in the present petition) are illegal
and unauthorized sub-tenants and are in possession of the portion
of ground floor of the said property comprising of one room, three
stores, one dalan, one kitchen, one bathroom and they are using the
common latrine on the ground floor.
9. The respondents also detailed the respective portions with
regard to the other sub-tenants, the details of which are not detailed
in the present petition as the eviction order passed against the
tenants and sub-tenants are only challenged by the petitioners, who
were respondent Nos. 9 & 10 in the eviction petition. The
respondents also detailed the premises, which was in the tenancy of
the tenant on the first floor of the premises. It was asserted that the
illegal and unauthorized sub-tenants were also paying rent to the
tenants.
10. The respondents also disclosed that permission under Section
19 of the Slum Areas (Improvement and Clearance) Act 1956 was
granted by order dated 5th July, 1999 in Petition No. 8341/1994,
titled as „Dwarka Nath & Ors. Vs. Angoori & Ors.‟ It was averred that
Smt. Angoori, Widow of late Sh. Sri Kishan Dass, had died during the
pendency of the petition for permission under Slums Act and her
name was deleted as her legal heirs were already on record. The
respondents/landlords also disclosed that they have filed another
eviction petition under Section 14(1)(e) r/w Section 25-B of Delhi
Rent Control Act.
11. The Eviction Petition was contested by the tenants, inter-alia,
on the ground that the respondents were neither the owners nor the
landlords of the premises demised to them and there is no
relationship of landlords and tenants between the parties. Regarding
the sub-tenants, it was asserted that they are lawful sub-tenants as
the premises were demised to the sub-tenants before 1952 within the
knowledge of the landlords.
12. The tenants also asserted that the premises comprising of the
entire property was let out to Sh. Sri Kishan Dass Gupta as
Thekedar/tenant, for residential-cum-commercial purposes, and he
was also authorized to let out various portions of the premises. Sh.
Sri Kishan Dass Gupta expired on 11th September, 1976 and after
his death, his widow Smt. Angoori Devi and his other legal heirs
became the tenants.
13. Regarding the slum permission granted by the Competent
Authority, Slum, it was pleaded that Master Amit Gupta, S/o Sh.
Bhagwan Dass Gupta was a minor at the time the permission was
granted and the competent authority had not considered the status
of the other persons and that the slum permission is bad in law and
thus eviction petition is liable to be rejected.
14. All the sub-tenants including the present petitioners filed a
joint written statement dated 7th February, 2000 contending that
they are lawful sub-tenants in their respective portion of the
properties. It was reiterated that the whole property was let out by
Smt. Sona Devi to Sh. Sri Kishan Dass during the period 1944-1949,
who further sublet different portions to different sub-tenants
including the petitioners and therefore, they are lawful sub-tenants
in respect of their respective portions in the property. It was alleged
that the landlords have deliberately not mentioned the date, month
and year when the different portions of property were sub-let to the
sub-tenants prior to 9th June, 1952.
15. During the Trial on behalf of the landlords Sh. Dwarka Nath
appeared as AW-1. The landlords also examined Sh. A. Rahman, a
UDC from Registration Officer and on behalf of tenant and sub-
tenants Sh. D.K. Gupta appeared as RW-1. During the pendency of
the eviction petition, the LRs of deceased Sh. Sri Kishan Dass
surrendered their tenancy rights in respect of the premises demised
to the landlords and filed an application incorporating the terms of
compromise. Sub-tenant Sh. Jagdish Narain also compromised with
the respondents/landlords and handed over the possession of
portion of the property comprising of one kotha, one room, one small
room, one kitchen and one bathroom (near latrine) and one chhajja
in courtyard and one chhajja towards gali and the rights of common
latrine on the first floor and common room on the second floor to the
respondent/landlords. The sub-tenants Smt.Vidyawati Jain widow of
Sh.Nand Kishore Jain and Sh.Virender Kumar Jain who was in
possession of one room, one store room and one kitchen on the
ground floor of property No.1271(Old No.442), Vakilpura, Delhi also
settled with the respondents and handed over the peaceful vacant
possession of the property in their possession to the respondents/
landlords. An application dated 28th October, 2005 was filed by these
sub tenants regarding the handing over of possession and
compromising the matter with the respondents. Other sub-tenants
namely Sh.Girish Mohan and Smt.Nilima who were in possession of
second floor of the said property having one room, covered tin shed,
store behind combined bathroom, kotha, latrine behind kotha,
kitchen, front verandah on the second floor had also settled with the
respondents and the peaceful vacant possession of the premises in
their occupation was handed over to the respondents. An application
for compromise dated 26th May, 2006 was filed incorporating the
compromise and handing over the possession by the said sub-
tenants.
16. The Rent Controller after considering the pleas and
contentions of the parties and considering the depositions of Dwarka
Nath as AW1 and Sh.D.K.Gupta as RW1, Sh.Virender Kumar Jain as
RW2, held that Sh.Dhruv Kumar Gupta, Sh.Dushyant Gupta,
Smt.Vidyawati Jain, Sh.Virender Kumar Jain, Sh.Jagdish Narain,
Sh.Girish Mohan and Smt.Nilima were the sub tenants. The pleas of
the parties were that the above noted persons were unauthorized
sub-tenants whereas the sub-tenant‟s plea was that they are the
lawful sub-tenants as the original tenant Sh.Kishan Dass was having
power and authority to sub let the premises which were demised to
him.
17. Reliance was placed on the rent agreement which was
exhibited as AW1/1. The said rent note, however, did not stipulate
any term authorizing Sh.Kishan Dass to let out the suit premises or
any portion of the property to any other tenant. The statement of
Sh.Kishan Dass which was exhibited as RW1/1 made in suit
No.536/1968 filed by Sh. Radhey Shyam against Sh. Nand Kishore
Jain and the statement of deceased respondent No.1 Dwarka Nath
which was exhibited as RW1/2 were also referred to. In suit
No.536/1968 the then Additional Rent Controller by its order dated
28th March, 1964 had held that the premises was rented out before
2nd June, 1944. The Rent Controller also referred to the statement
exhibit RW1/1 of Late Sh.Kishan Dass where he had admitted that
the abovenoted persons were his sub-tenants.
18. Considering the statements made in the earlier petitions, the
Controller held that onus to prove that the premises were let out on
1st November, 1939 or before 2nd June, 1944 was on the tenant
Radhey Shyam but he miserably failed to prove the same. According
to the Controller the fact that the sub-tenants Radhey Shyam and
Nand Kishore Jain were inducted as sub-tenants in the property in
dispute, before 1944 also could not be established.
19. Considering the evidence on record and the precedents relied
on by the parties the Rent Controller held that the property in
dispute was let out to Sh.Kishan Dass only for residential purposes
as per rent note exhibit AW1/A and he was not authorized to let out
the portion of the property to any other person and that Radhey
Shyam was inducted as sub-tenant in the property in or about 1958
and that Sh.Nand Kishore Jain was inducted as sub-tenant in or
about 1954-55.
20. Since no arguments were advanced regarding slum permission
granted in favour of the respondents being bad ab initio it was held
that the objection of the sub-tenants and tenants in this regard was
not tenable. The Tribunal also concluded that no notice under
Section 17(2) of DRC Act was given by the sub-tenants to the
respondents nor the respondents received any letter from the sub-
tenants and, therefore, the sub-tenants did not become direct
tenants under the landlords. To be authorized sub-tenants,
according to the Rent Controller, written consent in writing was
required and as no written consent had been established nor it had
been established that the sub-tenants were inducted prior to 9th
June, 1952 nor the fact that respondents/landlords had received the
rent from the sub-tenants at any time, therefore, there was no
implied consent and thus by order dated 21st September, 2004 the
Additional Rent Controller had allowed the eviction petition of the
respondents under Section 14(1)(b) of Delhi Rent Control Act and
had passed an eviction order in respect of suit premises No.1271
(Old No.442), Vakilpura, Bazaar Guliyan Near Daribakalan, Delhi as
shown in yellow on the ground floor and basement and as shown in
green at the ground floor and as shown in pink colour on the second
floor in the site plan exhibit AW1/5.
21. Aggrieved by the order of eviction passed in respect of demised
premises by the Rent Controller in the eviction petition No.E-
121/2000, Sh.Dhruv Kumar Gupta, Sh.Dushyant Gupta,
Smt.Vidyawati Jain, Sh.Virender Kumar Jain, Sh.Girish Mohan,
Smt.Nilima filed an appeal before the Rent Control Tribunal against
the respondents. Before the Rent Control Tribunal only those
persons who were in occupation of the portion of the property, filed
the appeal and other sub-tenants and tenants who had vacated the
suit property were not impleaded as parties. Before the Tribunal the
contention of the sub-tenants was that Sh.Radhey Shyam was an
authorized sub-tenant and, therefore, against the legal
representatives of late Sh.Radhey Shyam, namely Sh.Dhruv Kumar
Gupta and Sh.Dushyant Gupta, eviction order could not be passed
on the ground that they are unauthorized sub-tenants. It was also
held that the eviction petition was filed by the respondents in
collusion with the tenants, legal representatives of late Sh.Kishan
Dass. The appellant also contended that the tenants had not
produced the intimation sent to the respondent/landlord about
induction of Sh.Radhey Shyam as sub-tenant in the suit property.
The emphasis was also made on the fact that the premises was sub-
let prior to 1944 and, therefore, there was no occasion for the
respondents to file the eviction petition under Section 14(1) (b) of
Delhi Rent Control Act, either against the tenants or against the sub-
tenants including the appellants before the Rent Controller. The
appellants before the Tribunal also pleaded that the document of
settlement arrived at between the legal heirs of the landlords
stipulating the presence of Sh.Radhey Shyam as tenant had not been
considered. Reliance was also placed on survey report prepared in
1947 where Radhey Shyam was shown as a tenant.
22. The Rent Control Tribunal by order dated 21st September,
2006 dismissed the first appeal holding that the appellants were
unable to show that late Sh.Radhey Shyam was inducted in the suit
property prior to 1944. It was also held that the appellant were
obliged to inform the respondents/landlords if the sub tenancy was
created prior to 9th June, 1952 to seek protection of the provisions of
Delhi Rent Control Act as a tenant under Section 18 of Delhi Rent
Control Act. The Tribunal also noted that the appellants and their
predecessors did not inform the landlords about induction of
Sh.Radhey Shyam as sub-tenant after the provisions of Delhi Rent
Control Act came into force, which was necessary under Section 17
of the Act, if they were inducted as sub-tenants prior to 9th June,
1952. The Tribunal also held that the sub-tenants inducted prior to
1944 were protected without there being any written consent of the
landlord, however, if the property was sub-let after 1944 but before
1952 then the intimation as required under Section 17 of Delhi Rent
Control Act had to be given on the coming into force of Delhi Rent
Control Act, 1958. It was contended that the protection of Sections
18 & 25 shall not be available to sub-tenant since the notice under
Section 17(2) of Delhi Rent Control Act, 1958 was not given by the
sub-tenants. Also since it had not been established that no
intimation was given by the sub-tenants either by themselves or
through the tenants to the landlord, about the creation of sub-
tenancy, it was held that they are not entitled to protection of Section
18. Reliance was placed by the Tribunal on AIR 1988 SC 145,
M/s.Shalimar Tar Products Ltd v. H.C.Sharma & Ors; 1995 (32)
DRJ, M/s.Curewell (India) Ltd v. Inderjit Singh & Ors and AIR 1989
SC 1806, M/s.Bajaj Auto Limited v. Behari Lal Kohli to hold that the
appellants could not escape the order of eviction passed against the
tenant on the ground of the premises being sub let illegally and
unauthorisedly under Section 14(1)(b) of Delhi Rent Control Act,
1958.
23. Aggrieved by the order of eviction dated 21st September, 2004
passed in eviction petition No.E-121/2000 titled as „Sh.Dwarka Nath
Gupta and Anr v. Smt.Bimla Gupta & Ors‟ and dismissal of their
appeal by the Rent Control Tribunal in appeal No.480/2004 titled as
„Sh.Dhruv Kumar & Ors v. Sh.Dwarka Nath & Ors‟ dated 21st
September, 2006, the present petitioners have filed the present
petition under Article 227 of the Constitution of India. The
petitioners categorically asserted that while filing the petition under
Article 227 of the Constitution of India, the legal heirs of the tenants
and other sub-tenants, except for the petitioners, who have already
vacated the portion of premises in question, have not been made the
parties.
24. The order of eviction passed by the Rent Controller and
affirmed by the Rent Control Tribunal is assailed on the ground that
Section 17 of the Rent Control Act is neither applicable in the case of
the petitioners nor is it otherwise mandatory. It has been contended
that the documents and the evidence adduced by the petitioners and
on their behalf were not considered or looked into by the Tribunal
while passing the impugned order and reliance was placed on the
certified copies of the judgments and orders passed in the case titled
as „Radhey Shyam v. Sri.Kishan Dass‟ Suit No. 536/1968, for fixing
the standard rent, where the Additional Rent Controller by his order
dated 28th March, 1964 had held that the demised premises were
rented out before the 2nd day of week in 1944. The testimonies of
respondent No.1 could not be relied on as he was 8 years of age
when the premises was demised and consequently the testimony of
late Sh.Dwarka Nath in respect of rent note exhibit AW1/1 could not
be relied on especially since he deposed that he could not read Urdu
and the rent note exhibit AW1/1 is in Urdu.
25. The petitioners have emphatically contended that the
documents which are the certified copies of the survey reports of the
Municipal Corporation of Delhi, were not considered which showed
unequivocally that the petitioners and other sub-tenants were
inducted prior to 1952. Municipal Corporation of Delhi, according to
petitioners is an agency, which carried out an independent survey
which was conducted 60 years ago and the name of the sub-tenants
appeared in the survey report which documents were produced
before the Tribunal, however, the Tribunal did not considered them
at all. The petitioners also pleaded that the respondents did not
cross-examine any of the witness of petitioners regarding the survey
reports of the Municipal Corporation of Delhi stipulating that the
petitioners and their predecessors and other sub-tenants were in
occupation prior to 1952. In the circumstances it is contended that
the petitioners are lawful sub-tenants and were inducted as tenants
in the premises vide separate tenancy, therefore, separate permission
was necessary to be obtained from the competent authority/slum
against the present petitioners.
26. The petitioners while relying on the copy of order dated 28th
March, 1964 titled as „Sh.Radhey Shyam v. Lala Sri Krishan‟
contended that the Additional Rent Controller had categorically held
that Sh.Radhey Shyam, the petitioner in that petition, for fixation of
standard rent, did not produce any convincing evidence to show
what was the provisional rent of the demised premises in the year
1939. It was also held that even Sh. Sri Krishan, the respondent in
the matter, had failed to produce any satisfactory evidence regarding
the rate of rent prevailing in the year 1939. Paragraphs 7 & 8 of the
order dated 28th March, 1964 are as under:-
"7. Quite obviously, therefore, the petitioner has not
been able to produce any convincing evidence on record
to show as to what was the prevailing rent of the
demised premises in the year 1939.
8. Similarly, the respondent, also, I must say, has failed
to produce any satisfactory evidence regarding the rate
of rent prevailing in the year 1939. He examined the
Mukhtiar of Smt.Sona Devi namely Shri Hari Ram RW4
but he also did not make any attempt to call from him
any rent deed which may be in his possession with
respect to the demised premises pertaining to the year
1939. In short, it must be said that none of the parties
could lead any evidence on record to prove the prevailing
rent of the premises in the year 1939 and as a result,
therefore, it must be held that it is not possible to fix the
standard rent of the premises in dispute under Section 6
of the Delhi Rent Control Act."
27. On account of this it has been contended that the premises
were demised to Sh.Radhey Shyam in 1939 prior to 1944 as it was
for this purpose only, that the Additional Rent Controller in order to
decide the standard rent wanted to consider the evidence of the rent
prevailing in the year of 1939. If that be so, according to the
petitioners the inevitable inference is that the premises were demised
to Sh.Radhey Shyam in 1939 prior to 1944. An appeal against the
order of the Additional Rent Controller dated 28th March, 1964 in the
standard rent petition titled as „Sh.Radhey Shyam v. Lala Sri
Krishan‟ was also filed being Rent Control Appeal No.463/1964 titled
as „Radhey Shyam v. Lala Sri Krishan Dass‟ which was also disposed
of by order dated 14th August, 1964 by Sh.Pritam Singh, Rent
Control Tribunal. The Rent Control Tribunal had also noted that the
case of Sh.Radhey Shyam was that the premises were let out prior to
2nd June, 1944 and on 1st November, 1939 the rent of the premises
was Rs.8.25/- per month. The Rent Control Tribunal, however, had
fixed the standard rent of the premises at Rs.23/- per month with
effect from 1st February, 1961.
28. Along with the petition the petitioners also produced a
photocopy of the certified copy of the inspection report of the MCD
for house tax assessment in the year 1947, showing Sh. Radhey
Shyam as one of the occupants and his monthly rent being Rs.20/-.
Another photocopy of the certified copy of inspection report for the
year 1950, which was carried on 4th May, 1949 was also produced,
showing Sh. Radhey Shyam as an occupant paying monthly rent of
Rs.30/-. The petitioners also produced the photocopies of certified
copies of the inspection reports for the years 1956, 1958-59 and
1970-71 showing Sh. Radhey Shyam, their predecessor, as the
occupant paying monthly rent of Rs. 28.50/- and Rs.23.50/- in the
different years.
29. According to the petitioners an application dated 28th January,
2005 was filed on their behalf under Order 41 Rule 27 read with
Section 151 of the Code of Civil Procedure for taking on record the
additional evidence and additional documents. The petitioners had
also sought production of documents pertaining to the suit for
partition between the respondents which was decided by a
compromise decree. The grievance of the petitioners is that though
the documents produced by the petitioners were relevant and there
was sufficient cause for their non production prior to filing of the
application for additional evidence, the application for additional
evidence and additional documents under Order 41 Rule 27 of the
Code of Civil Procedure was not even considered by the Rent Control
Tribunal in the appeal. In fact the petitioners have contended that
that the Rent Control Tribunal had committed a grave error in not
deciding their application for additional evidence and additional
documents and dismissing their appeal mechanically by merely
noting various paras of the order passed by the Additional Rent
Controller and reproducing the major contents.
30. During the pendency of the present petition the petitioners
filed an application being CM No.255/2008 under Section 151 of the
Code of Civil Procedure for bringing on record the alleged subsequent
facts. The petitioners had contended that all the tenants and sub-
tenants have vacated the premises and have also handed over the
possession of the portions of the demised premises to the
respondents at different times. The petitioners contended that the
suit property was partitioned on 7th April, 1993, much before filing of
the eviction petition, as the partition deed dated 7th April, 1993 was
duly executed and registered. The respondents had not disclosed
these facts. The petitioners also referred to a will dated 15th
November, 2002 executed by Late Sh.Dwarka Nath, respondent No.1,
now represented through his legal representatives, bequeathing his
share in the property in favour of his younger son Sh.Rajneesh
Kumar. According to the petitioners these facts were concealed by
the respondents. The petitioners also asserted that the son of
deceased Sh. Dwarka Nath namely Sh.Deepak Kumar had also filed
a suit for partition against the other legal heirs alleging that the
property in dispute was an ancestral property of Sh.Dwarka Nath
and, therefore, he had a right in the suit property. According to the
petitioners since these facts were not disclosed which are material to
the present matter, the respondents are liable for concealing the
material information and therefore, the eviction petition on the
ground of unauthorized sub letting and parting with possession by
the tenant to the sub-tenants, is liable to be dismissed.
31. The petitioners along with the application for taking on record
the subsequent facts filed an additional affidavit dated 15th
September, 2007 by Sh.Dhruv Kumar Gupta. Along with the
affidavit, a copy of the partition deed dated 7th April, 1993 between
the respondents, deceased Sh.Dwarka Nath and Sh.Mahendra Nath
and a copy of order dated 5th July, 1999 passed by the competent
authority,(Slum) Tis Hazari Court in the case No.8341/1994 titled as
„Sh.Dwarka Nath and Anr v. Smt.Angoori Devi wife of Sh. Sri Kishan
Dass and Ors‟, along with a copy of the will dated 15th November,
2002 allegedly executed by Sh.Dwarka Nath was also filed. An
affidavit dated 5th March, 2011 of Sh.Mahendra Nath was filed along
with a copy of the site plan showing the portion which is in
possession of the petitioners in red as annexure R2/A.
32. Though the petitioners had sought time to file response to the
additional affidavit dated 5th March, 2011, however, no reply to the
affidavit was filed nor it was contended that the copy of the plan does
not show correctly the portion in possession of the petitioners.
33. This Court has heard the learned counsel for the parties in
detail on various dates and has perused the orders of the Additional
Rent Controller and the Rent Control Tribunal, as well as the
documents filed along with the petition. There is no doubt that the
subsequent events can be taken into consideration by this Court.
This fact has not been denied that during the pendency of the
eviction petition all the tenants and other sub-tenants except the
petitioners had vacated the respective portions in their occupation.
The respondents have filed a site plan marked as R2/A showing in
red, the premises which are in occupation of the petitioners. The
plan bears the signatures of Sh.Mahendra Nath and also bears the
signatures of B.B.Associates, Architects and Engineers who have
prepared the plan. Despite the ample opportunity given, the
petitioners did not rebut the additional affidavit dated 5th March,
2011 and the site plan, annexure R2/A. Therefore, in the facts and
circumstances the plan is exhibited as Exhibit X.
34. The learned counsel for the respondent has contended that the
petition against the order of eviction passed by the Rent Controller
and the dismissal of the appeal by the Rent Control Tribunal is not
maintainable under Article 227 of the Constitution of India as the
power under Article 227 is to be used sparingly only, in cases
occasioning grave injustice or failure of justice, such as, when the
Court or Tribunal has assumed jurisdiction which it does not have;
has failed to exercise jurisdiction which it does have and the
jurisdiction though available is being exercised in a manner which
tantamount to overstepping the limits of jurisdiction. According to
learned counsel for the respondents the petition is against the
concurrent findings of the Additional Rent Controller and the Rent
Control Tribunal, and in the circumstances the petitioner is not
entitled for reconsideration of all the pleas and contentions which
have already been considered in detail. According to him the
landlords were not under an obligation to implead the sub-tenants as
party to the eviction petition, however, they acted bonafide by
impleading them as a party in order to avoid any future
controversies. Since the sub-tenants have been given ample
opportunity to prove their defense and even though the petitioners
had sufficient time to bring the relevant documents on record and
prove the same in accordance with law, however the needful was not
done by them. Therefore, it cannot be held that the Courts below
failed to exercise the jurisdiction which vests with them, so as to
entail any interference by this Court in exercise of its jurisdiction
under Article 227 of the Constitution of India. Relying on
Mohd.Yunus v. Mohd.Mustaqim and Ors, (1983) 4 SCC 566 it was
contended that a mere wrong decision without anything more is not
enough to attract the jurisdiction of the High Court under Article 227
of the Constitution of India, as the supervisory jurisdiction conferred
on the High Court is limited to seeing that an inferior Court or
Tribunal functions within the limits of its authority, and not to
correct an error apparent on the face of the record, much less the
error of law. Reliance was also placed on Surya Dev Rai v. Ram
Chander Rai and Ors, (2003) 6 SCC 675. In Mohd Yunus (supra) the
Supreme Court had held that the petition under Article 227 before
the High Court was not maintainable as alternative remedies in the
shape of appeal and review were open to the petitioner. The Supreme
Court also held that in exercising supervisory power under Article
227 of the Constitution of India, the High Court does not act as an
Appellate Court or Tribunal. The case relied on by the respondents is
apparently distinguishable. In Surya Dev Rai (supra) the Supreme
Court had held that amendment to the Civil Procedure Code 1908,
section 115 by Act 46 of 1999 w.e.f 1.7.2002 does not in any manner
affect the jurisdiction of the High Court under Article 226 and 227 of
the Constitution of India. It was held that the said Articles being part
of the basic structure, cannot be tampered with, not even by a
Constitutional amendment, much less by an Act of the Legislature.
The powers of the High Court under Article 226 and 227 of the
Constitution, is always in addition to the revisional jurisdiction
conferred on it. On the basis of these precedents, it cannot be held
that the petition under Article 227 of the Constitution, of the
petitioners is ex-facie not maintainable.
35. Perusal of the record reveals that certified copies of the
inspection reports of the MCD for house tax assessment showing the
predecessors of the petitioners as the occupants prior to the year
1952 that is for the years 1947, 1950 and 1956 were produced
before the Rent Controller. The certified copies of the survey reports
are public documents. The said certified copies of survey reports
were also put to the landlord Mr.Dwarka Nath, deceased respondent
No.1 when he appeared as PW-1. This is also not disputed by the
parties that the Rent Controller by his order dated 25th February,
2004 had directed the petitioners to place on record the certified
copies. However, neither the said documents were exhibited, nor
were they even considered by the Rent Controller though they stood
proved in the facts and circumstances.
36. In (2003) 8 SCC 745, Narbada Devi Gupta v. Birendra Kumar
Jaiswal & Anr., the Supreme Court had held that mere production
and marking of a document as exhibit is not enough, as execution of
a document has to be proved by admissible evidence, however, where
documents produced are admitted by the signatories thereto and
thereafter they are marked as exhibits, no further burden to lead
additional evidence to prove the writing and its execution survives. In
this case, the plaintiff-landlord had averred that signed blank stamp
papers were given to the tenant to conduct pending litigation in his
absence, however, no evidence was led in proof thereof. The tenant,
however, had taken a specific plea of tenancy based on rent receipts
signed by the landlord. The landlord had not disputed his signatures
nor had he made any consequential amendment to the plaint nor
had he taken the plea of fraud and forgery and in such
circumstances it was held by the Apex court that no further burden
of proof was on defendant to lead evidence to prove the writing on the
rent receipts and their execution. In AIR 1971 SC 1865, Sait Tarajee
Khimchand & Others v. Yelamarti Satyam & Others while referring to
Order XIII Rule 4 of the Code of Civil Procedure, it was held that
mere marking of a document as an exhibit does not dispense with its
proof. A single Judge of this Court in (1995) Rajdhani Law Report
286, Sudhir Engineering Co. v. Nitco Roadways Ltd. had held in
reference to the Original Side Practice Direction 3/74 that when a
document is produced in evidence and is marked as an exhibit, then
it is only for identifying the documents and is not its proof, as proof
of the contents of the documents must be proved and established by
independent evidence. Therefore, for the same reasoning if there is
sufficient evidence about documents, mere non exhibition of
documents would not mean that the documents have not been
proved. The documents were put to the respondents in their cross
examination. The documents are certified copies of the public
records as contemplated under section 74 of the Evidence Act. The
documents are also more than 30 years old and hence, there is a
presumption about their genuineness under section 90 of the Indian
Evidence Act, 1872. In the circumstances, the Additional Rent
Controller and the Rent Control Tribunal ought to have considered
these documents.
37. Regarding the orders passed for fixing of standard rent in the
petition filed by Sh.Radhey Shyam against Sh.Sri Kishan which was
decided by the Additional Rent Controller by order dated 28th March,
1964 and by the Rent Control Tribunal by order dated 4th August,
1964, though the Additional Rent Controller in the present eviction
petition of E-121/00 has noted about them as the plea of the
petitioners, but it has not given any reasons as to why on the basis
of those orders it cannot be held that the premises in dispute was let
out prior to 1944 or prior to 1952. The Additional Rent Controller
has merely held on the basis of the rent note, Ex. AW1/A that Sh.
Radhey Shyam was inducted as sub-tenant in 1958. The findings of
the Additional Rent Controller in paragraph 38 of the order passed in
the Standard Rent Petition filed by Shri Radhey Shyam predecessor
of the petitioners is as under:-
"38. Accordingly, it is held that property in question was
let out to Sh.Kishan Dass only for residential purposes
as per rent note Ex.AW1/A. It is also held that he was
not authorized to let out the portions of property in
question further to any other person. It is also held that
late Sh.Radhey Sham was inducted as a sub-tenant in
the property in question in or about 1958 and Sh.Nand
Kishore Jain was inducted as a sub-tenant in the
portion of property in question in or about 1954-55."
38. Even the Rent Control Tribunal in its order dated 21st
September, 2006 dismissing the appeal of the petitioners, has merely
reproduced the order of the Rent Controller, however, has not given
any reasons as to why the relevant documents, the survey reports of
Municipal Corporation of Delhi of 1947 and 1950 showing the
occupation of late Sh.Radhey Shyam prior to 1952 could not be
considered or as to why no inference can be drawn on the basis of
the certified copies of the orders dated 4th August, 1964 and 28th
March, 1964 passed in the rent petition, with regard to the aspect of
"Whether late Sh.Radhey Shyam was inducted as a sub-tenant prior
to 1944 or not."
39. The learned counsel for the respondents has very vehemently
contended that this Court in exercise of its jurisdiction under Article
227 of the Constitution of India will not re-appreciate the evidence in
any circumstances. According to him while reversing the judgment of
the Additional Rent Controller the Appellate Court must consider and
be conscious of two principles, particularly on the finding of facts
which are based on conflicting evidence. The plea as raised by the
learned counsel for the respondents rather appears to be
incomprehensible. The plea raised on behalf of the learned counsel
for the respondents in written submission dated 12th April, 2010 is
as under:-
"22. It is also no more res integra that while reversing a
judgment or order of the trial Court, Appellate court
must remain conscious of two principles, particularly on
the finding of the facts which are based on conflicting
evidence. Firstly the findings of fact based on conflicting
evidence arrived at by the trial Court must weigh with
the appellate Court, more so when the findings are based
on oral evidence. In the instant case, the eviction
respondents had not filed the relevant documents with
the written statement. The petitioners before this Court
have not given any plausible reason as to what
prevented them from filing the documents before the
trial Court and proving the same as per law.
In the circumstances, it cannot be held that
finding of fact arrived at by the Controller needed to be
upset by the appellate Tribunal, as the fact of non
production of the municipal record is otherwise also of
no relevance in the present proceedings in view of the
law laid down by the Hon‟ble Supreme Court of India in
"Kapil Bhargava Vs. Subhash Chand Aggarwal, AIR 2001
SC 3334" wherein it has been held that eviction decree
passed against a tenant is also enforceable against the
sub-tenant who has not served a notice under Section
17(2) of DRC Act on the landlord. The Apex Court also
held that even if the landlord is aware about the sub-
tenant residing exclusively in the premises since before
1952 and was accepting the rent from him, that,
however, would not absolve the sub-tenant from giving
mandatory notice under Section 17(2) of DRC Act. The
Apex Court held that giving notice under Section 17(2)
DRC Act by the sub-tenant is not merely a formality.
In the instant case, it has been admitted by the
counsel for the petitioners herein that no notice under
Section 17(2) of Delhi Rent Control Act was served upon
the landlord by the petitioners or their father. Hence,
reliance on the municipal record pertaining to year 1947
does not help the petitioners as admittedly they had not
served the requisite notice upon the landlord. The
petitioners have also not been able to prove that they
paid rent to the landlords or were direct tenant under
the landlord. On the contrary, as per them, their father
Shri Radhey Shyam was inducted in the portion under
their possession by one Shri Sri Kishan. And it is
admitted case that Shri Sri Kishan Dass was tenant
without any authority to sub-let the suit premises.
Therefore, the finding of the appellate Tribunal cannot be
impugned on the ground as has been alleged by the
petitioner.
23. This is also no more res integra that to be
amenable to correction by the High Court, the error
committed by the Court or authority on whose judgment
the High Court was exercising jurisdiction, should be an
error which is self-evident. The error which needs to be
established by lengthy and complicated arguments or by
indulging into a long drawn process of reasoning cannot
possibly be an error available for correction by writ of
certiorari or Article 227 of the Constitution of India. If it
is reasonably possible to form two opinions on the same
material, the finding arrived at one way or other way
cannot be called a patent error. In Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675, it was held by the Apex
Court that the jurisdiction under Article 226 was not
available to be exercised for indulging into re-
appreciation or evaluation of finding or correcting errors
in drawing inference like a court of appeal."
40. The pleas raised by the learned counsel for the respondents
cannot be accepted. The question in the present circumstances is as
to why the certified copies of the survey reports which have a
relevant bearing on the fact „Whether late Sh.Radhey Shyam,
predecessors of the petitioners was in occupation prior to 9th June,
1952 or not‟ were not considered by the Additional Rent Controller
and the Rent Control Tribunal and if so on what ground this Court
will still be prevented in considering them in exercise of its
jurisdiction under Article 227 of the Constitution of India. Similarly,
if some findings have been arrived at by the Additional Rent
Controller and the Rent Control Tribunal in the standard rent
petition filed by the predecessors of the petitioners, late Sh.Radhey
Shyam, whether the same are not to be considered because this
Court is exercising its jurisdiction under Article 227 of the
Constitution of India.
41. If the relevant documents are not considered by the Additional
Rent Controller and the Rent Control Tribunal, then this Court
cannot be prevented nor can any embargo be placed upon its
jurisdiction to consider the same in exercise of its jurisdiction under
Article 227 of the Constitution of India, so that the justice is done
between the parties, on account of any of the pleas, as detailed
hereinabove, raised by the learned counsel for the petitioners.
42. From the perusal of the order dated 28th March, 1964 of the
Additional Rent Controller it is apparent that the question for
consideration was as to what was the rent of the demised premises
on 1st November, 1939 as per the schedule annexed to the Delhi Rent
Control Act, 1958. The common point raised by Sh.Radhey Shyam
and Sh.Sri Kishan in the said standard rent petition was that the
demised premises were rented out before 2nd day of June, 1944.
Paragraph 4 of the order dated 28th March, 1964 is as under:-
"4. This is common point of the parties that the
building of which the demised premises form apart is an
old construction. This also is undisputed that the
demised premises were rented out before the 2nd day of
June 1944. In other words, it is agreed between the
parties that the present case is covered by Sec.6(1) (A) of
the Act. This clearly means that in order to fix the
standard rent the only thing to be seen is as to what was
the rent of the demised premises on the 1st November,
1939, as per IInd Schedule annexed to Delhi Rent
Control Act, 1958."
43. The inevitable conclusion in the facts and circumstances is
that the premises were let out to the deceased tenant, Sh.Sri Kishan
prior to 1944 and the said deceased tenant also sub let the premises
to the predecessor of the petitioners, late Sh.Radhey Shyam prior to
1944 in 1939. This cannot be disputed that before the Delhi Rent
Control Act, 1958 came into force, a sub tenancy created prior to 9th
June, 1952 could be validly created with the oral consent of the
landlords and it was not necessary to obtain a written consent. While
enacting Section 16 of the Delhi Rent Control Act, 1958 it was
noticed that often it was very difficult to ascertain whether a sub
tenancy was lawfully created or not pursuant to oral consent and to
remove this difficulty in sub section (1) of Section 16 it was provided
that where any time before 9th June, 1952 a tenant had sub-let the
whole or any part of the premises and the sub-tenant was, at the
commencement of the Act in occupation of such premises, then, not
withstanding that the consent of the landlord was not obtained for
such sub-letting, the concerned premises would be deemed to have
been lawfully sub-let.
44. From the documents as detailed hereinabove which were
neither considered by the Additional Rent Controller nor by the Rent
Control Tribunal it is apparent that the sub-tenant, predecessor of
petitioners namely, Sh.Radhey Shyam was in occupation since 1939
and in any case since 1947 as the Municipal inspection report
categorically details that he is an occupant in the premises. Since
late Sh.Sri Kishan has also been shown as an occupant during the
same period and it is not the case of the parties that late Sh.Radhey
Shyam was an independent tenant, this is established that he was in
occupation of the premises concerned and not a trespasser, and
therefore a sub-tenant of late Sh.Sri Kishan in 1947. If that be so
even if the rent note executed by the landlords of the premises in
favour of late Sh.Sri Kishan does not specifically grant written
consent to sub-let the premises, under Section 16(1) of Delhi Rent
Control Act, 1958 the sub-tenancy of the premises by the deceased
tenant Sh.Sri Kishan to deceased sub-tenant Sh.Radhey Shyam shall
be deemed to be lawful.
45. The learned counsel for the respondents has also contended
that presumption of genuineness of a document which is 30 years
old is not applicable to the certified copy of a 30 year old document
unless the same is proved by secondary evidence under Section 63 of
the Indian Evidence Act,1872 by proof of loss by destruction of the
original or production of the original from the proper custody.
Reliance was placed on Shri Lakhi Baruah & Ors v. Sri Padma Kanta
Kalita & Ors, AIR 1996 SC 1253. Reliance was also placed on
Gangamma v. Shivalingaiah, 2005 (9) SCC 359. The learned counsel
also contended that these documents were produced at a belated
stage and have not been proved in accordance with law and,
therefore, the presumption under Section 90 of the Indian Evidence
Act, 1872 is not attracted. The plea of the respondents‟ counsel has
to be rejected for the reason that the certified copy of the inspection
report by the Municipal Corporation of Delhi is a public document
and under the provisions of the Municipal Corporation Act, the
original survey report is not to be produced unless so directed by the
Court for the proof of the certified copy. The certified copies have
come from the proper custody of the original record with the
Municipal Corporation of Delhi. The copies of the inspection report
are public documents and are admissible as proof of original under
Section 65(e) of the Indian Evidence Act, 1872. The joint reading of
Sections 74 & 75 would show that Section 74 is an exception to the
provision requiring proof under the Evidence Act. Therefore, the plea
of the learned counsel for the respondents, that these documents
have not been proved, cannot be accepted and on consideration the
inevitable conclusion is that late Sh.Radhey Shyam, predecessor of
the petitioners was not an unlawful sub-tenant. If late Sh.Radhey
Shyam was not an unlawful sub-tenant, even the ground as
contemplated under Section 14(1) (b) of Delhi Rent Control Act, 1958
that late Sh.Sri Kishan had on or after 9th June, 1952 sub-let,
assigned or otherwise parted with the possession of the whole or any
part of the premises without obtaining the consent in writing of the
landlord is not made out.
46. In the present facts and circumstances, the Additional Rent
Controller and Rent Control Tribunal have failed to exercise the
jurisdiction which vests with them and non consideration of
inspections reports of the MCD has resulted in the failure of justice
and, therefore, this Court would be justified in interfering with the
orders of the Additional Rent Controller and the Rent Control
Tribunal under Article 227 of the Constitution of India and the plea
of the respondents that there are no grounds to interfere with the
orders of the Additional Rent Controller and the Rent Control
Tribunal cannot be accepted and this plea is repelled.
47. The learned counsel for the petitioners have also contended
that no eviction decree has been passed against the tenant late
Sh.Sri Kishan and his legal representatives and eviction decree was
passed only against the sub-tenants. This plea of the petitioners
cannot be accepted as the eviction petition was filed against all the
legal representatives of the deceased tenant and the sub-tenants.
During the pendency of the petition on the ground of sub-letting the
premises in occupation of the tenant was handed over to the
respondents/landlords and eviction orders were passed on the
ground of unauthorized sub-letting against those sub-tenants who
continued in occupation of their respective portions of the demised
premises. In such circumstances, it cannot be held that the eviction
order was passed only against the sub-tenants and not against the
tenants. The eviction order against the sub-tenants could be passed
only if it had been established that the tenant had illegally and
unauthorisedly sublet, assigned or parted with the possession of the
premises. In the circumstances, this plea of the petitioners counsel
cannot be accepted. However, in view of the finding by this Court
that the premises were not illegally and unauthorisedly sublet by late
Sh.Sri Kishan to the predecessor of the petitioners, late Sh.Radhey
Shyam this plea becomes infructuous.
48. The learned counsel for the petitioners had also contended
that the eviction petition was filed in respect of a part of the tenancy
premises and thus the decree for eviction could not be passed for a
portion of the premises in the property which was not let out to late
Sh.Sri Kishan tenant. According to the learned counsel for the
petitioners, the basement was not a part of the tenancy premises.
The plea of the learned counsel for the petitioners, however, in the
facts and circumstances has to be rejected as it was categorically
stipulated in the written statements filed by the tenant and the sub-
tenants that the basement was part of the tenancy premises.
Consequently, now the petitioners cannot raise the plea that the
eviction petition was in respect of a part of the tenancy premises and
therefore could not be passed against the petitioners. In any case on
account of subsequent events, as except for the petitioners, everyone
i.e. the legal representatives of deceased tenant Sh.Sri Kishan and
the other sub-tenants had been evicted from the premises pursuant
to their compromise with the respondents, and a plan showing the
premises in possession of the petitioners was filed along with an
affidavit showing the premises under their occupation, which
specifies the basement and the dalan portion of the premises which
has been exhibited as Exhibit X. Despite the ample opportunity given
to the petitioners, reply to the additional affidavit was not filed nor
was the correctness of the plan showing the demised premises under
the occupation of the petitioners denied. The plan showing the
premises under the tenancy of the petitioners was exhibited as
exhibit X. In the circumstances it cannot be held that the eviction
petition was filed in respect of a part of the demised premises and
hence was not maintainable. In 150 (2008) DLT 339, Suman Sodhi &
Ors v. Yogender Sharma, it was held that merely because a
tenant/sub-tenant or unauthorized occupant without express
consent or authority of landlord/owner raises construction in a
portion of the tenanted premises, he cannot object to delivery of
possession on the ground that such portion did not form part of the
eviction order. It was further held that if such an argument is
accepted it would be putting premium on the illegality of tenant/sub-
tenant and they cannot be allowed to take advantage of their own
wrong. Consequently, the plea of the petitioner that the eviction
petition was in respect of the part of the tenancy premises and the
portion of the premises in occupation of the petitioners did not form
part of the tenancy premises cannot be accepted. This plea has to be
rejected as it is not the case of the petitioners that the portion in
their possession except the basement was given on sub-tenancy by
Sh.Sri Kishan to their predecessor, Sh.Radhey Shyam and
Sh.Radhey Shyam later on illegally and unauthorisedly occupied the
basement. The property in fact was let out to Sh.Sri Kishan who had
inducted the sub-tenant including late Sh.Radhey Shyam. Therefore,
in the totality of facts and circumstances this plea has to be rejected.
In any case this plea has also become irrelevant as this Court has
already held that the ground of eviction under Section 14(1)(b) of
Delhi Rent Control Act, 1958 on the ground that the tenant had
illegally and unauthorisedly sub-let, assigned or parted with
possession of the premises has not been made out.
49. The learned counsel for the petitioners has also sought
rejection of the petition on the ground that the facts pertaining to the
partition of property between Sh.Mahender Nath and Sh.Dwarka
Nath, the landlords had not been disclosed by the respondents,
though the partition was effected prior to the institution of the
eviction petition. This is true that the fact that there had been a
partition between Sh.Mahender Nath and Sh.Dwarka Nath had not
been disclosed, but had been admitted to by the respondents only
when they were confronted with the photocopy of the partition deed
produced by the petitioners. Rather the plea raised by the
respondents was that though there was a partition by virtue of a
registered partition deed, however, it was not acted upon.
Considering the facts and circumstances, however, the eviction
petition cannot be dismissed on the ground of suppression of
partition between Sh.Mahender Nath and Sh.Dwarka Nath, because
of the fact that even after partition portions of the premises demised
to late Sh.Sri Kishan continued under both the landlords as this
cannot be disputed in law that tenancy of Late Sh. Sri Kishan could
not be divided pursuant to partition between the co-owners. A copy
of the plan along with the partition deed was filed, which shows that
a portion of the tenanted premises remained in the ownership of late
Sh.Dwarka Nath whereas another portion had fallen into the share of
Sh.Mahender Nath. Therefore, on the ground that there had been
partition between Sh.Mahender Nath and Sh.Dwarka Nath the
eviction petition cannot be dismissed. In any case since this Court
has held that the ground for eviction under Section 14(1) (b) of the
Delhi Rent Control Act, 1958 for illegally and unauthorisedly sub-
letting, assigning or parting with the possession of the tenancy
premises by late Sh.Sri Kishan to the predecessor of the petitioners,
late Sh.Radhey Shyam has not been made out, therefore, this plea
has also become infructuous.
50. The learned counsel for the respondents has very emphatically
contended that since the petitioners and their predecessor had not
been given a notice under Section 17(2) of the DRC Act within 6
months from the commencement of Delhi Rent Control Act, 1958,
therefore, the petitioners are liable for eviction. In support of this
submission the learned counsel for the respondents has relied on
Mrs.Kapil Bhargava & Ors v. Subhash Chand Aggarwal & Ors, 6
(2001) SLT 1; Chanderwati v. Gianwati, 2004 (6) AD (Delhi) 88 and
M/s.Girdhari Lal & Sons v. Balbir Nath Mathur and Ors., AIR 1986
SC 1499. The plea of the learned counsel for the respondents cannot
be accepted as it is without any legal basis. Rather in Mrs.Kapil
Bhargava (Supra) the Supreme Court had held that service of notice
under Section 17(2) saves a sub-tenant from eviction even if a decree
is passed against a tenant under Section 14 and further confers on
such sub-tenant an independent right as that of tenant. It confers a
substantive right on the sub-tenant as unless notice under sub
section (2) of Section 17 is served by the sub-tenant on the landlord
he cannot take the benefit of Section 18 and any decree passed
under Section 14 of Delhi Rent Control Act, 1958 against the tenant
is executable against a sub-tenant. The Supreme Court in the said
judgment in para 17 had held as under:-
"Para 17: The next and the last submission is that the
landlord was not only aware of the fact that it is not the
tenant but the sub-tenant is residing exclusively in
whole of the premises, since before 9th June 1952 and
landlord was accepting the rent from this sub-tenant,
hence compliance of Section 17(2) could at best be said
to be a mere formality. This submission has also no
merit. Neither there is any such finding by any courts
nor any evidence pointed out that after the tenant left,
the rent was paid by the sub-tenant on his own behalf
and not on behalf of the tenant. A person in possession
may continue to live and continue to pay rent which
would be payment on behalf of the tenant, unless
specific evidence led that the incumbent in possession
started paying rent as sub-tenant, receipt issued as sub-
tenant or there exist any document of this nature. We
have not been shown any such plea, evidence or any
finding by any of the courts below in this regard"
51. However, in the present facts and circumstances it has been
held that the ground of eviction under Section 14 (1)(b) of Delhi Rent
Control Act, 1958 is not made out as the sub-letting was prior to 9th
June, 1952 and, therefore, under Section 16(1) of Delhi Rent Control
Act, 1958 the premises shall be deemed to have been lawfully sub-
let. If the eviction decree is not passed against the tenant, the sub-
tenant also cannot be evicted. However, if an eviction order is passed
against the tenant on any other ground, as another eviction petition
between the parties on the ground of Section 14(1)(e) of Delhi Rent
Control Act is also pending and as it is an admitted case of the
respondents that no notice under Section 17(2) of Delhi Rent Control
Act was given, then the same shall be binding on the petitioners and
they would also be liable to be evicted and they will not be able to get
the benefit under Section 18 of Delhi Rent Control Act. However, in
the present petition an eviction order under Section 14(1)(b) of Delhi
Rent Control Act is not passed. Merely on the ground that a notice
under Section 17(2) of Delhi Rent Control Act has not been given, the
petitioners shall not be liable for eviction from the portion which is in
their possession as they are lawful sub-tenant. This plea of the
respondents counsel is, therefore, also rejected in the facts and
circumstances.
52. No other ground has been raised by the counsel for the parties
before this Court except those which have been considered
hereinbefore. Therefore, in the totality of facts and circumstances the
ground of eviction under Section 14(1)(b) of Delhi Rent Control Act in
the present petition has not been made out and the eviction petition
on the said ground is dismissed. Therefore, the petition filed by the
petitioners under Article 227 of the Constitution of India, is allowed
and eviction petition filed by the respondents being E-121/2000
titled as „Sh. Dwarka Nath and Anr. Vs. Smt. Bimla Gupta & Ors‟ is
dismissed and the order of eviction dated 21st September, 2004
under Section 14(1)(b) of Delhi Rent Control Act passed by the Rent
Controller and order dated 21st September, 2006 passed by the Rent
Control Tribunal affirming the order of Rent Controller are set aside.
The present petition is disposed of with these observations and
directions. The parties are, however, left to bear their own cost.
ANIL KUMAR, J.
MAY 6th, 2011
„k‟
