Vijay Kumar Goel vs Shiv Charan
2012 Latest Caselaw 904 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 09.02.2012.

+            CM(M) 1549/2010


VIJAY KUMAR GOEL                                      ..... Petitioner
                                Through    Mr.Girish Aggarwal, Adv.

                       versus


SHIV CHARAN                                           ..... Respondent
                                Through    Mr. Rohit Madan, Adv.



      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the order dated 09.09.1998

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

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

05.03.1991. Vide order dated 05.03.1991, the eviction petition filed by

the landlord Vijay Kumar Goel seeking eviction of his tenant Shiv

Charan on the ground under Section 14 (1)(b) of the Delhi Rent Control

Act (hereinafter referred to as the 'DRCA') on the ground of sub-letting;

contention being that the original tenant had parted with possession of

the suit premises in favour of M/s Century Plastic had been decreed. The

impugned judgment had reversed this finding; it had dismissed the

eviction petition.

2 Record shows that the disputed premises comprise of first floor

consisting of two big halls, glazed chajja abutting toward Gali Charkha

Walan and a glazed verandah towards Chawri Bazar and a bath and WC

forming part of premises No. 4027-28, Ward No. VI, Chawri Bazar,

Delhi as depicted in red colour in the site plan filed in the trial Court.

Contention of the landlord was that the tenant Shiv Charan had parted

with possession of the suit premises in favour of M/s Century Plastic.

3 Needless to state that in the written statement these contentions

were refuted; the tenant had stated that he is only the sole selling agent

of M/s Century Plastic; he denied that there was any subletting;

contention being that he was carrying on commission business and was

the selling agent of M/s Century Plastic.

4 Oral and documentary evidence had been led by the respective

parties. Seven witnesses were examined on behalf of the landlord and on

behalf of the tenant one witness had come into the witness box. From

the evidence both oral and documentary, it was proved on record that

Sheela Gupta was a sole proprietor of M/s Century Plastic. The ARC

was of the view that M/s Century Plastic being the proprietorship

concern of Sheela Gupta who was the wife of Shiv Charan yet the

documentary evidence i.e. telephone connection and the electricity bills

showing that the same were at the address of the suit premises which

was in the name of M/s Century Plastic, the corollary drawn by the ARC

was that Shiv Charan had parted with possession of the suit premises in

favour of M/s Century Plastic; ground of subletting under Section 14

(1)(b) of the DRCA had been proved. The testimony of RW-1 had been

rejected; the Court was of the view that although the oral testimony of

RW-1 was to the effect that there was no subletting and he was merely

doing the business of commission agent of M/s Century Plastic which

was the business of his wife yet and although the factory of the wife was

located at Wazir Pur but the fact that the wife was the sole proprietor of

M/s Century Plastic and Century Plastic was functioning from the

demised premises, a case of subletting was made out in favour of the

landlord. Photographs Ex. AW-7/1 and Ex. AW-7/3 showing the board

of M/s Century Plastic in the suit premises was also a relevant fact noted

by the ARC; the income tax returns filed by the tenant had however

been rejected.

5 The ARCT had reversed this finding. The ARCT was of the view

that although admittedly M/s Century Plastic had its board affixed on

the tenanted premises and the tenant Shiv Charan had also admitted that

the plastic material and goods were being stored in the suit premises;

further the telephone connection was also in the name of Century Plastic

but these facts in the instant scenario do not make out a case of

subletting; it is not a case where the original tenant Shiv Charan has

completely divested himself from the physical possession of the suit

premises; the ARCT has noted that in the oral testimony of both AW-1

as also RW-1 it had come on record that the premises were being

opened and closed by Shiv Charan; Shiv Charan was carrying out the

business of commission agent; even presuming that M/s Century Plastic

had stored its goods in the suit premises, it was only for the purpose of

sale of the said goods by Shiv Charan who was acting as a commission

agent of the business of his wife i.e. M/s Century Plastic.

6 It is an admitted fact that Shiv Charan and Sheela Gupta

(proprietor of M/s Century Plastic) are husband and wife and they share

cordial relations; it is not as if they are an estranged couple; it was in

this background that the ARCT has rightly noted that merely because

M/s Century Plastic is the sole proprietorship concern of the wife of the

tenant but it does not mean that the physical and legal possession of the

suit premises had been parted with in favour of Sheela Gupta; Shiv

Charan continued to retain control over the suit premises; in fact he was

carrying out his business of commission agent i.e. sale of goods of M/s

Century Plastic from the suit premises. This was further substantiated

and fortified by the documents placed on record by Shiv Charan which

included the income tax returns for the assessment years 1976-77 Ex.

RX and 1977-78 Ex. RX-1 which had evidenced that he had earned

income by way of a commission from M/s Century Plastic; this evidence

was illegally ignored by the trial Court and was rightly relied upon by

the appellate Court. Shiv Charan was storing and selling the goods of his

wife and was charging commission for the sale being carried out by him.

7 The Supreme Court in AIR 1974 SC 280 Smt. Krishnawati Vs.

Shri Hans Raj while dealing with the case of subletting where the

allegation was that the wife, the original tenant had sublet the premises

to her husband Sohan Sinch who was carrying out the business of a

chemist, had rejected the argument that it was a case of subletting. In an

eviction petition which is founded on the ground of subletting, it is well

settled that onus to prove subletting is on the landlord; if the landlord

prima-facie shows that the occupant who was in exclusive possession of

the premises had let out the premises for valuable consideration, it

would then be for the tenant to rebut the evidence. In the present case,

the evidence which has come on record clearly shows that although

Sheela Gupta is the sole proprietor of M/s Century Plastic but the

documentary evidence has clearly established that Shiv Charan

continued to retain the physical possession of the suit premises; he was

opening and closing the shop; his income tax returns showed that he had

earned commission agent income from the sale of the plastic goods of

M/s Century Plastic; he was in control of the premises; question of his

subletting or parting with possession in favour of a sub-tenant did not

arise.

8 The ingredients necessary to be established by the landlord to

make out a ground of sub-letting have been reiterated time and again.

Section 14 (1) (b) is relevant; it reads as under:-

14. Protection of tenant against eviction.

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

(a)    XXXXXXXXXXXXX
(b)    That the tenant has, on or after the 9th day of 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;

9 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 fact.

10 Applying the said test to the facts of the instant case, it can safely

be said that the impugned order suffers from no infirmity. It has noted in

the correct perspective both factual and legal position. Petition is

without any merit. Dismissed.

INDERMEET KAUR, J

FEBRUARY 09, 2012 a