M/S Dhootapapeshwar Industries ... vs Sh. Atma Ram & Another
2012 Latest Caselaw 116 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 06.01.2012.

+ CM(M) No. 128/2007 & CM No.1091/2007 (for stay)

M/S DHOOTAPAPESHWAR INDUSTRIES LTD.
                                                   ...........Petitioner
                           Through:   Mr. Y.P. Ahuja, Advocate.

                      Versus

SH. ATMA RAM & ANOTHER
                                                  ..........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 dated

16.11.2006 passed by learned ARCT (Additional Rent Control

Tribunal) which had reversed the findings of the ARC (Additional

Rent Controller) dated 12.07.2001.

2. Record shows that the present eviction petition has been

filed by Atma Ram & others under Section 14 (1)(b) of the Delhi

Rent Control Act (hereinafter referred to as the „DRCA‟). The

premises in dispute is property No.6517, Chand Bhawan, Plot No.

34-D, Ward No. XII, Kamla Nagar, Subzi Mandi, Delhi; tenancy

was qua two rooms, one kitchen, one verandah, and balcony on

the second floor of the said property as depicted in red colour in

the site plan. Eviction petition had been preferred under Section

14 (1)(a)(b) and (j) of the DRCA but for the purposes of decision of

this petition, ground under Section 14 (1)(b) is only relevant.

3. The case of the landlord was that respondent No. 1 M/s

Dhootpapeshar Industries Ltd. (duly registered company) had

sublet these premises to Ghandsham Das Chabra and this being a

subletting/assignment/parting with possession of whole of the

premises without the consent in writing of the landlord amounts

to a valid ground for eviction under Section 14 (1)(b) of the DRCA.

4. Written statement has been filed by both the respondents

separately. Respondent No. 1 had filed an initial written statement

which was subsequently permitted to be amended. In this written

statement the plea of resignation of respondent No. 1 from the

company or that the premises have since been handed back by

respondent No. 1 to the company had not been set up. In the

amended written statement (relevant for the purposes of decision

of the present eviction petition) it has been stated that the

premises had been taken on rent by respondent No. 1 for the

residence of its employees and respondent No. 2 being only an

employee of respondent No. 1 had been permitted to occupy the

said premises; prior to respondent No. 2, other employees were

also occupying these premises. Respondent No. 2 has resigned

from the services of the company and handed over the vacant and

peaceful possession of the tenanted premises to respondent No. 1

who is in occupation of the said premises; contention being that

there has been no subletting or parting with possession of the said

premises. This amended written statement was filed on

04.05.2001.

5. Written statement filed by respondent No. 2 has also been

perused. This is dated 12.08.1994. His contention is that

respondent No. 2 being an employee of respondent No. 1 had

been allotted this residence; respondent No. 2 had resigned from

the services of respondent No. 1 on 08.06.1993 and he had

surrendered the premises back to respondent No. 1; further

contention being that his wife Santosh Chabra was also an

employee of respondent No. 1 and after the resignation of

respondent No. 2, it was mutually agreed that since the premises

had been taken on rent by the company for its employees and

since Santosh Chabara (wife of respondent No. 2) was also an

employee of respondent No. 1, she could continue to occupy these

premises in terms of the spirit of agreement dated 10.04.1967 and

as such no case of subletting is made out.

6. Oral and documentary evidence was led by the respective

parties. The landlord had produced one witness on his behalf

namely AW-1. He had on oath deposed that respondent No. 1 was

his tenant and rent receipts/counter foils had been proved on

record as Ex. AW-1/2 and Ex. AW-1/3. This witness had come into

the witness box on 20.02.1996. He had deposed that respondent

No. 1 had since the last 3-4 years (i.e. 1992-1993) sublet these

premises to respondent No. 2 who is in occupation of the same. In

his cross-examination, he has admitted that respondent No. 1 was

a tenant in the suit premises which had been let out in the year

1965-70 but he does not know the name of the person who was

occupying the premises during the period 1965-70 to 1992; he did

not know whether respondent No. 2 was an employee of the

company or not; he did not know the status of respondent No. 2 in

the respondent company; he has further admitted in his cross-

examination that as on date respondent No. 1 company is in

possession of the suit premises; he did not know the date, month

or year of subletting by respondent No. 2 to respondent No. 1 but

may be it was 5-10 years back.

7. Two witnesses had been produced on behalf of the

respondents. RW-1 was the Manager of the respondent company;

he had deposed that the respondent company is still in possession

of the suit premises and there has been no subletting; respondent

No. 2 was the Manager in the company but he has since resigned.

This witness had come into the witness box on 31.10.2000. In his

cross-examination he has stated that the company might be

maintaining the employment register of its employees but he has

not seen the employment letter of respondent No. 2 and nor has

he seen any appointment letter of wife of respondent No. 2 with

respondent No. 1 company; he cannot say whether wife of

respondent No. 2 ever remained in the service of respondent No.

1. He has admitted that there was a dispute between respondent

No. 2 and the company but he cannot say for how long this

dispute continued.

8. RW-2 was the Chief Executive Officer of respondent No. 1;

he had brought the appointment letter of respondent No. 2; he

had admitted that respondent No. 2 had resigned from the service

on 08.06.1993; he had deposed that a suit had been filed by

respondent No. 1 against respondent No. 2 restraining respondent

No. 2 from parting with the possession of the suit premises which

suit was compromised and after the settlement arrived at between

the parties in 1997, the suit premises had been handed back to

the company. He had deposed that the premises had been taken

for the employees of respondent No. 1; the company has not

parted with or sublet these premises to any person; he had proved

on record Ex. RW-2/1 and Ex. RW-2/2 which were the two

settlements arrived at between respondent No. 1 and respondent

No. 2 dated 02.12.1994 and 17.10.1997 in interse suits preferred

between the parties showing that there was a dispute between the

parties i.e. respondent No. 1 company and his employee/Ex-

employee (respondent No. 2) and vide settlement dated

17.10.1997, the premises in dispute had been handed back by

respondent No. 2 to respondent No. 1. In his cross-examination,

RW-2 had stated that respondent No. 2 was occupying the suit

premises from 1992 to 1997 as an Ex-employee pending a

settlement but he did not vacate the suit premises after his

resignation inspite of requests; he had stated that he would do so

once the matter is fully and finally settled between respondent No.

2 and respondent No. 1; this witness has further admitted that the

request of respondent No. 2 in his resignation letter for extension

of time for a period of six months to vacate the suit premises was

in fact being considered; he has further admitted that Santosh

Chabra (wife of respondent No. 2) was an employee of respondent

No. 1.

9. This was the sum total evidence both oral and documentary

which was adduced before the ARC. The ARC had returned a

finding that the factual context does not make out a case of

subletting and the eviction petition filed by the landlord had been

dismissed.

10. In appeal, the judgment of the ARC was reversed; the RCT

was of the view that he continued retention of the premises by

respondent No. 2 even after his resignation amounted to a

subletting; eviction petition of the landlord stood decreed.

11. On behalf of the petitioner, vehement arguments had been

addressed. It is submitted that the order of the RCT suffers from a

manifest illegality and the RCT delving into the facts when it can

only hear an appeal under Section 38 of the DRCA on a

substantial question of law has committed a grave fallacy and by

upsetting the findings of the ARC which were reasoned findings,

he has committed an illegality which is liable to be set aside. To

support his submission, learned counsel for the petitioner has

placed reliance upon a judgment of the Apex Court reported as

AIR 1987 SC 2055 Dipak Banerjee Vs. Smt. Lilabati Chakraborty

as also another judgment of this Court reported as AIR 1995 SC

380 United Bank of India Vs. Cooks and Kelvey Properties (P) Ltd.

Submission is that to attract the ingredients of subletting/parting

with possession/assignment under Section 14 (1)(b) of the DRCA;

it must be shown that the landlord has divested himself

completely from the suit premises which is not so in the instant

case.

12. Arguments have been countered. Learned counsel for the

respondents per contra has submitted that the impugned

judgment in no manner suffers from any infirmity. The impugned

judgment had correctly noted that the two suits which had been

compromised vide orders of compromise dated 02.12.1994 and

17.10.1997 Ex. RW-2/1 and Ex. RW-2/2 were filed during the

pendency of the eviction petition and these were only to create

and build up an evidence in their favour; impugned finding in no

manner calls for any interference. Learned counsel for the

respondents has placed reliance upon a judgment of this Court

reported as 1986 RLR 370 Gill & Co. Vs. Bimla Kumari as also

another judgment of this Court reported as 1997 (2) RCR K.K.

Dhawan Vs. Dr. Promila Suri; submission being that in the latter

case where the premises had been taken on rent by a company for

the residence of its employees and the employee had left the

services but did not vacate the premises even on the asking of the

company, it amounted to a case of subletting by the company and

the employee was liable for ejectment under Section 14 (1)(b) of

the DRCA; the said section being fully applicable in the instant

case.

13. Record has been perused. Even as per the case of the

petitioner the respondent No. 2 had resigned from the service of

respondent No. 1 on 08.06.1993; eviction petition was filed on

01.07.1993. It is an admitted case of the parties that the premises

had been let out by the petitioner/landlord to respondent No. 1

who is a Company which premises were to be used by the

employees of the Company. AW-1 was the landlord; in his cross-

examination, he has admitted that he does not know if the person

in occupation of the premises is an employee of the Company or

not; he had admitted that as on date the Company i.e. respondent

No., 1 ("original tenant") is in occupation of the suit premises.

RW1 the Regional Manager of the respondent No. 1/Company has

admitted that the Company is in possession of the suit premises;

on the date of the deposition which was on 31.10.2000, there was

no dispute about this factum. RW2 the Chief Executive Officer of

the respondent No. 1/Company has stated that respondent No. 2

did not vacate the suit premises as his contention was that his

dues are yet to be cleared and his request in his resignation letter

for the grant of six months time to vacate the suit premises was

under consideration; RW2 has further admitted that the Company

was confident that respondent No. 2 would hand over the

possession of the suit premises as soon as the matter was settled

with him. He has further admitted that Smt. Santosh Chhabra the

wife of the respondent No. 2 was also an employee of their

Company. In view of the aforeneotd evidence which has come on

record, the ARC had correctly noted that the ground of sub-letting

qua the suit property has not been made out by the landlord; sub-

letting necessarily meaning that the owner has completely

divested himself of the suit property and is in no manner

connected with the same; this evidence as discussed supra was

clearly to the contrary. The evidence adduced has in fact

established that there was an inter se dispute between respondent

No. 1(Company) and respondent No. 2 who was the employee of

respondent No. 1 and since this dispute related to the dues of the

respondent No. 2 which he had to take from the Company; he had

asked for clearance of his dues as also extension of time up to six

months for vacating the suit premises; his request was being

actively considered by the Company which request was contained

in his resignation letter.

14. 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;"

15. This is clearly not a case where respondent No. 1 had lost

control over the tenanted premises; Santosh Chhabra the wife of

the respondent No. 2 was also admittedly an employee of the

respondent No. 1. Tenanted premises were for the use of

residence of the employees of respondent No. 1.

16. Even assuming that the respondent No. 2 had resigned from

the services, the fact that his dues not having been paid to him he

had not vacated the premises which dispute was pending before

respondent No. 1; moreover his wife was also an employee of

respondent No.1. It is not as if the respondent No. 2 was claiming

any independent title or claim qua the suit property. The mischief

of Section 14(1)(b) of the DRCA was not clearly attracted. The

ARCT reversing these fact findings which were based on a cogent

reasoning given by the Trial Court suffers from an infirmity. It is

liable to be set aside.

17. The Apex Court in the case of AIR 1987 Supreme Court

2055 titled as Dipak Banerjee vs. Lilabati Chgakraborty had inter

alia noted as under:

"But in order to prove tenancy or sub-tenancy two

ingredients had to be established, firstly the tenant must have

exclusive right of possession or interest in the premises or part of

the premises in question and secondly that right must be in lieu of

payment of some compensation or rent."

18. This is clearly not so in the instant case. Evidence is to the

contrary.

19. In this scenario reliance placed by the learned counsel for

the respondent upon the judgment reported in 1986 RLR 370

titled as GiLL & Co. Vs. Bimla Kumari is misplaced. This was a

case where the court had noted that where an ex employee even

after his termination retained the premises which have been given

to him by his employer, the landlord may set up his claim under

Section 14(1)(b) of the DRCA which then has to be proved as per

evidence. As noted supra, the evidence adduced in this case

clearly shows that the mischief of Section 14(1)(b) of the DRCA

was not attracted. The impugned order is accordingly set aside.

Petition filed by the landlord under Section 14(1)(b) of the DRCA

is dismissed.

                                        INDERMEET KAUR, J

JANUARY      06, 2012
A/rb