Nirmal Kishore Jain vs Sunpack India
2012 Latest Caselaw 706 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 02.02.2012

+                    CM (M) No. 382/2008


NIRMAL KISHORE JAIN                                      ..... Petitioner
                                 Through     Mr. P.N. Bhardwaj, Adv.

                     versus


SUNPACK INDIA                                          ..... Respondent
                                 Through     Mr. Sudhir Nandrajog, Sr.
                                             Advocate with Mr. Fanish
                                             K. Jain, Adv

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the order dated 23.04.2007

passed by the Additional Rent Control Tribunal (ARCT) which has

endorsed the finding of the Additional Rent Controller (ARC) dated

28.03.2003 whereby the eviction petition filed by the landlord Mirmal

Kishore Jain seeking eviction of his tenant M/s Sunpack India on the

ground contained in Section 14 (1) (a)(b)(c) & (j) of the Delhi Rent

Control Act (DRCA) had been dismissed. These are two concurrent

findings of fact by the two courts below.

2 Record shows that the premises in dispute is a suit property

bearing No. 1063-64, Bazar Piawalan, Jama Masjid, Delhi which as per

the averments contained in the eviction petition is a property comprising

of two doors having an height of 16 feet rented out to the tenant at a

monthly rent of `300/-; this was vide a written lease deed dated

12.11.1986 (Ex.AW-1/1); the purpose of letting was for dealing in

paper, board and allied business only. The contention of the landlord is

that the tenant is a habitual defaulter in payment of rent; he was in

arrears of rent w.ef. 01.04.1989 which he had failed to tender inspite of

demand notice dated 14.03.1994 (Ex. AW-1/4). Further contention is

that the property has been sublet/assigned/parted with possession in

favour of M/s Ankit Trading Company and Hans Raj Goel without

obtained the permission in writing of the landlord; the sub-lessees are

carrying out their business in the suit premises for which the tenant is

charging a huge amount from them; they have also started

manufacturing activity in the unauthorized portion which is in their

possession; because of this activity, a lot of vibrations amounting to a

nuisance has occurred to the landlord and other residents of the area;

inspite of notice dated 14.03.1994 (Ex.AW-1/4) served upon the tenant

this activity has not stopped; grounds for eviction under Section 14

(1)(b)(c) & (j) were also prayed for.

3 Written statement was filed by the tenant disputing all the

aforenoted contentions. Contention was that the tenant has paid up to

date rent i.e. up to 30.09.2000 which the landlord had accepted without

any objection; thereafter also the tenant has been paying rent regularly;

ground under Section 14 (1)(a) is not made out. Qua the other grounds it

was contended that what has been let out to the tenant right from the

inception of the tenancy was one shop with two tands which are existing

from the inception of tenancy and the landlord is well aware of this;

there is no person by the name of Ankit Trading Company which is

carrying out any business there; further contention in the written

statement is that Hansraj Goel is the Managing Director of the tenant for

last several years and is looking after the business of the tenant; no

ground of subletting under Section 14 (1)(b) is made out. Contention

with regard to clause 'c' and 'j' of Section 14 (1) is that the premises

had in fact been let out for the purpose of paper, board and other allied

business; the tenant is using the premises for the same purpose only; the

allied business is conversion of paper into consumable sizes which is not

a manufacturing activity; no nuisance has been created by the activity of

the tenant; grounds under Section 14 (1)(c) & (j) are also not made out.

4 Oral and documentary evidence was led. On behalf of the

landlord beside the landlord (examined as AW-1) four other witnesses

were also examined. AW-2 was the witness from the Competent

Authority who had produced the summoned record from the Slum

Department. Relevant would it be at this stage to state that prior to the

filing of this eviction petition which was on 01.07.2000, since the suit

premises are located in a slum area, necessary permission under Section

19 of the Slum Areas (Improvement and Clearance) Act had to be

obtained for which proceedings under Section 19 of the said Act had

been initiated on 13.09.1994. Written statement was filed by the tenant

in those proceedings Ex. AW-1/14 dated 28.02.1995; affidavits by way

of evidence Ex. AW-1/15 & Ex. AW-1/16 were also filed by the tenant

and finally permission was granted by the Competent Authority on

28.04.2000. Contention of the petitioner/landlord before this Court is

that the stand of the tenant in those proceedings (Ex.AW-14 to Ex. AW-

1/16) is contrary to the written statement filed in the present eviction

petition. To cut short the controversy, the said documents have been

examined at this stage and this Court is of the view that there is no such

contradiction. In fact the written synopsis filed by learned counsel for

the petitioner detailing the aforenoted contradictions which as per him

are contrary to the stand taken up by the tenant in his earlier written

statement and his subsequent written statement as also his deposition on

oath in Court has been examined. Perusal of these documents (Ex.AW-

1/14 to Ex. AW-1/16) show that even before the Competent Authority,

the tenant had contended that the respondent firm had taken on rent a

shop having mezzanine floor with two doors in property No. 1063-64

Bazar Piawalan, Jama Masjid, Delhi at a monthly rent of `300/-; the

same stand adopted in his affidavit by way of evidence Ex.AW-1/15 and

Ex. AW-1/16. The reply sent by the tenant to the legal notice of the

landlord (Ex. AW-1/7) dated 12.04.1994 also shows that this was the

very same stand which was taken by the tenant; in this reply filed by the

tenant, he has stated that the shop which has been let out to him is

having two doors and a mezzanine; the word 'mezzanine' has been

explained as two tands which were inside the shop since the inception of

tenancy; this has been reiterated in the subsequent paras where he has

again used the word two tands in an interchangeable terminology;

contention of the tenant being that from the very beginning his stand

was that what has been let out to him is a shop with two tands which in

different terminology may be referred to either as a 'mezzanine' or a

'tand'; contention being this is only a difference in the language. In this

context the testimony of RW-2 is also relevant; he was an employee of

M/s UP Paper Corporation Ltd. who was the tenant prior in time to M/s

Sunpack India. Record shows that M/s UP Paper Corporation Ltd. was

earlier the tenant up to 11.11.1986 and thereafter w.e.f. 12.11.1986 M/s

Sunpack India had become the tenant. In this context RW-2 an

employee of M/s UP Paper Corporation has categorically on record

deposed that the premises which had been let out to M/s UP Paper

Corporation Ltd consisted of a ground floor with two doors and a shutter

and also two pakka tands, one on the front side and other on the back

side of the godown, joined with an iron jal and a pakka staircase leading

to the tand. This witness was an independent witness; there was no

reason why he would depose falsely. Testimonies of RW-3, RW-4 &

RW-5 are also corroborative on this point. Thus this submission of the

tenant that what has been let out to him was a shop

with two tands which in other words may be referred to as a mezzanine

and this is also clear from Ex.AW-1/7 when the word mezzanine has

been explained as two tands has force. This is also the stand adopted by

him which is a continuous stand right from the inception when he has

used the mezzanine interchangeable with the word 'tand'. The definition

of 'tand' and mezzanine floor placed on record by the learned counsel

for the petitioner (under the Building Bye-laws of Delhi, 1998) also does

not advance his case any further; a 'tand' has been described as a 'self-

like' projection not wider than 0.9 meter and at a minimum height of 2.2

meter from the floor level whereas a 'mezzanine floor' has been

described as an intermediate floor between two floors level. Even if this

definition is accepted, one can inter-change the other; a tand is a

projection having a minimum projection and a minimum height; beside

the fact that these Bye-laws are of the year 1998 which were much later

in time than the stand taken by the tenant (Ex.AW-1/7 is the reply dated

12.04.1994) even otherwise a layman dealing with an other layman is

not supposed to be conversant with the measurements legislated in

statutory Bye-laws. Thus the submission of the petitioner that there are

shifting and contrary stands adopted by the tenant about the description

of the suit premises which has been let out to him carries no weight.

Both the concurrent fact finding Courts have in fact dealt with this

aspect in detail and have returned a finding that what has been let out by

the landlord to the tenant was a shop which contained two tands i.e.

mezzanine floor which could be accessed through a staircase inside the

premises itself. This has also been answered by in photographs which

were taken on record by the first appellate Court i.e. by the Court of

Rent Control Tribunal.

5 Testimony of AW-1 is also relevant in this context. In his cross-

examination, he has admitted that the tenanted premises is beneath the

premises where he is residing; although his contention is that this

mezzanine floor has been constructed by the tenant by making a pucca

staircase therein containing iron girders and stone slaps but in his cross-

examination it has bee elicited that he did not know about the

construction or when it was made; this admission was also noted in the

correct perspective by the two courts below to return a finding that the

landlord living in the same premise which is above the tenanted portion

and knowing about the heavy iron girders and stone slabs being a part of

the alleged construction activity being carried out by the tenant; thus this

submission of the landlord was rightly noted to be false. In a further part

of cross-examination, AW-1 has admitted that the manufacturing means

the cutting of heavy bundles of paper sheets and packaging; he has not

categorically denied that Hansraj Goel is not the Manager of the

respondent; his answer is that he is not sure about the status of Hansraj

Goel. On this count although vehement submission of the learned

counsel for the petitioner initially was that Hansraj Goel was introduced

as an employee of the respondent firm only in the examination-in-chief

of RW-1 yet as rightly pointed out by learned counsel for the respondent

(from the record) this is not substantiated. Record shows that even in the

written statement filed by the tenant before the Competent Authority

under the Slum Act (Ex.AW-1/14) his consistent stand was that Hansraj

Goel and Promod Goel were the employees of the respondent firm. In

this regard the testimony of AW-4 is also relevant; he has deposed that

the telephone connection was in the name of Hansraj Goel; however he

being an employee of the respondent does not in any manner advance

the case of the petitioner that Hansraj Goel was the sub-lessee. This

vehement submission of learned counsel for the petitioner is thus

without any force.

6 Learned counsel for the petitioner in this context has also placed

reliance upon the greeting cards marked 'A', 'B' and 'C' which RW-4

has admitted in his cross-examination are of M/s Sunpack India;

vehement contention of the petitioner being that these documents clearly

show that M/s Ankit Trading Company was functioning from the

respondent firm. The documents marked 'A', 'B' and 'C' have been

perused. Beside the fact that these documents have not been proved;

they have merely been marked but even otherwise a perusal of these

documents show that M/s Sunpack India and M/s Ankit Trading

Company both have been mentioned in the aforenoted greeting cards;

even presuming that name of M/s Ankit Trading Company appears in

these greeting cards and these documents are genuine documents, it may

at best show that M/s Sunpack India and M/s Ankit Trading Company

are working together; it does not make a case of subletting/assigning/

parting with possession for which the law is very clear that the landlord

must show that the original tenant (M/s Sunpack India) had divested

himself completely from the suit premises which even as per marked

'A', 'B' and 'C' is not made out. That apart RW-1 has vehemently

denied the existence of these cards.

7 This Court is sitting in its powers of superintendence under

Article 227 of the Constitution of India; unless and until there is a grave

injustice or manifest perversity which has occurred because of a

jurisdictional error or there has been gross abuse of the process of the

Court, interference by this Court in its powers of superintendence is not

called for. In the instant case, both the two fact finding courts have

examined the evidence in deep depth and detail and have returned a

concurrent finding that the grounds under Section 14 (1)(b) of the

DRCA are not made out.

8 It is well settled that to make out a case for sub-letting or parting

with possession, it means giving of possession to persons other than

those to whom the possession had been given by the original lessor and

that parted with possession must have been made by the tenant; as long

as the tenant retains the legal possession himself, there is no parting with

possession in terms of Section 14 (1)(b) of the Act. The word 'sub-

letting' necessarily means transfer of an exclusive right to enjoy the

property in favour of the third party. In (1988) 1 SCC 70 Shalimar Tar

Products Ltd. Vs. H.C. Sharma, the Apex Court had noted that to

constitute a sub-letting, there must be a parting of legal possession i.e.

possession with the right to include and also right to exclude other and

whether in a particular case, there was sub-letting or not was a question

of act. To establish this ground, the landlord must show that the tenant

has completely divested himself from the suit premises and has lost

control over it; this is not borne out from any angle. Ground under

Section 14 (1)(b) is clearly not established.

9 The ARC had noted that prior to filing of the eviction petition, the

entire arrears of rent which were due in terms of the legal notice

(Ex.AW-1/4) had been paid by the tenant to the landlord; there is no

dispute that the landlord has also accepted the said amounts without any

demur or protest; the ARC had returned a finding that there is a doubt

about the maintainability of the said petition; at the same time, he had

gone to return a finding that the landlord had in fact waived of his right

to claim enhanced rent; to that effect, the RCT had modified the order of

the ARC on the ground under Section 14 (1)(a) of the DRCA. Both the

courts below had rightly noted that since the payment of arrears of rent

had been made at the time when the eviction petition was filed by the

tenant, ground under Section 14 (1)(a) of the DRCA is not made out.

10 There are concurrent finding even on the ground under Section 14

(1)(c) & (j) which relate to 'misuser' and 'substantial damage' to the

premises. On both these counts, the evidence has been examined in

detail. Apart from the testimony of AW-1 and RW-1, testimony of RW-

2, an employee of earlier tenant M/s UP Paper Corporation Ltd was also

considered; RW-2 had stated that the original tenancy comprised of one

shop and two tands with pucca staircase running from inside whereas in

the mezzanine the same had been used. However, this witness not being

aware about the constructions of the suit premises, his testimony was

held not credible; in this context AW-1 had also stated that he was no

aware when the mezzanine was constructed; he had stated that cracks

had occurred in the staircase but he did not know about the cracks or

where he made any effort to get them repaired; it is also an admitted

case that the landlord himself was living in the same premises which is

over the tenanted premises and he not knowing about the construction

activity in the tenanted portion which as per his version consisted of

cement slabs and iron girders was an unimaginable miserable situation

leading to none but one conclusion that the testimony of the landlord

was a falsity; no substantial damage had also been caused. There were

findings of fact returned by the first finding court which was the ARC

and thereafter affirmed by the RCT which even otherwise has to

examine an appeal under its jurisdiction under Section 38 of the DRCA

only on a question of law.

11 As noted supra, this Court in its powers of superintendence will

interfere only if there is a perversity noted in the impugned judgment.

No such perversity has been pointed out. The allied business which the

tenant was carrying out in the premises was cutting of big papers into a

consumable size for the purpose of sale; this was in fact the purpose for

which the premises had been let out to him. The petitioner has failed to

establish his case on any of the four grounds for which the eviction

petition has been filed under Section 14 (1)(a)(b)(c) & (j). On no count,

the impugned judgment calls for any interference. Petition is without

any merit. Dismissed.

INDERMEET KAUR, J FEBRUARY 02, 2012 A