Munshi Ram vs Bhoj Ram Thru L.Rs
2012 Latest Caselaw 227 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 10.01.2012
                               Judgment delivered on: 12.01.2012


+      CM (M) No.1612/2010 & CM No.8004/2005

MUNSHI RAM                                             ..... Petitioner
                           Through   Mr. Ajay Kohli, Adv.

                      versus


BHOJ RAM THRU L.R'S                              ..... Respondent
                   Through           Mr. Vijay Kishan & Mr. Vikram
                                     Jaitely, Advs.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1. This petition has impugned the order dated 21.03.2005

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

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

01.07.1994.

2. Record shows that the present eviction petition has been

filed by the landlord Bhoj Raj against his tenant Munshi Ram on

the ground available to him under Section 14 (1)(b) of the Delhi

Rent Control Act (DRCA); contention being that Munshi Ram had

sub-let the premises to respondents No. 2 & 3 Om Prakash & Sri

Niwas; premises in dispute is a shop bearing No. E-46/3, Hauz

Khas, New Delhi. Oral and documentary evidence had been led.

13 witnesses had been examined on behalf of the landlord and five

RWs had been recorded on behalf of the tenant. On the basis of

oral and documentary evidence adduced before the ARC, the ARC

vide his judgment and decree dated 01.07.1994 dismissed the

petition of the landlord.

3. The matter went up in appeal before the ARCT who had

endorsed this finding of the ARC vide judgment and decree dated

28.02.2002.

4. Before the High Court, a Bench of this Court vide its order

dated 20.07.2008 had remanded the matter back to the trial Court

as the contention of the learned counsel for the landlord that

certain important and relevant oral and documentary evidence

had not been considered by the first appellate Court had found

favour and accordingly the matter was remanded back to the

ARCT to consider the evidence afresh.

5. The ARCT vide impugned judgment and decree dated

21.03.2005 decreed the petition of the landlord under Section 14

(1)(b) of the DRCA which judgment is the subject matter of the

present petition.

6. At the outset, learned counsel for the respondent has

contended that this Court is sitting in its power of

superintendence and not being an appeal forum, it cannot

reappreciate the evidence; reliance has been placed upon JT 2003

(4) SC 605 State through Special Cell, New Delhi Vs. Navjot

Sandhu @ Afshan Guru and others as also another judgment

reported as JT 2001 (9) SC 517 Ouseph Mathai & Others Vs. M.

Abdul Khadir to support this submission. It is not in dispute that

the Court while sitting in its powers of superintendence under

Article 227 of the Constitution of India is not an appellate court

forum and this power has to be exercised sparingly and only in

those cases where there has been a patent illegality or injustice

committed by the court below bordering on the point of

perversity.

7. It is in this background that the contentions of the learned

counsel for the parties has to be appreciated.

8. Exhaustive evidence has been led in the court below. AW-1

was the attorney holder of the landlord; testimony of AW-6 is

relevant; this witness who appeared in support of the landlord has

deposed that Sri Niwas was mostly seen in the shop. AW-9, a

witness from the Oriental Bank of Commerce had produced

Ex.AW-9/1 which was a loan form dated 05.04.1977 wherein Om

Prakash has applied for a loan for the business of „Munshi Ram

Om Prakash‟ from the said Bank in his individual name; this

document Ex.AW-9/1 which is a document prior in time to the

filing of the eviction petition (eviction petition was filed on

13.02.1978) shows that Om Prakash had applied for loan from the

disputed premises for the business of „Munshi Ram Om Prakash‟

who as per the testimony of AW-12 was the proprietor of Om

Prakash. AW-12 was a Lower Division Clerk from the Income Tax

department; he had produced the assessment record for the years

1979-1980 (Ex.PW-12/1) which was in the name of Om Prakash

and as per PW-12 Om Prakash was the proprietor of „M/s Munshi

Ram Om Prakash‟; assessment orders for the later years i.e. 1980-

1983 had also been filed which were proved as Ex.AW-12/3 to

Ex. AW-12/15. RW-1 was the respondent Munshi Ram; in his

cross-examination he has admitted that he used to keep account

books and record of his business but admittedly no such record or

account books were produced by him. He has further in his cross-

examination admitted that he did not have any partnership with

Om Prakash; testimony of AW12 that „Munshi Ram Om Prakash‟

was the sole proprietorship firm of Om Prakash thus stood

confirmed. All this evidence had weighed in the mind of the first

appellate Court while returning a finding that the necessary

ingredients of Section 14 (1)(b) of the DRCA stood proved.

Section 14 (1)(b) of the DRCA reads as follows:- "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 and court or Controller in favour of the landlord against a tenet:

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) XXXXXXXXXXXXXXXXX

(b) That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise 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. 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.

10. To establish the aforenoted ingredients, the landlord must

establish that the original tenant who in this case is Munshi Ram

had completely divested himself from the suit premises and parted

with possession of the premises of the whole or part of the

premises i.e. property bearing No. E-46/3, Hauz Khas, New Delhi

to the sub-tenants Om Prakash and Sri Niwas. This has

substantiated by the evidence. The evidence as discussed supra

shows that Om Prakash was the proprietor of „M/s Munshi Ram

Om Prakash‟ and Om Prakash in his individual capacity had

applied for the loan for the business of this firm as has been

affirmed by AW-12 as also the assessment orders of the years

1979-1980 which also confirm this finding, further at all times Sri

Niwas was found sitting in the ration shop doing the work.

Relevant would it be to also state that a combined written

statement had been filed by the respondents namely Munshi Ram,

Om Prakash and Sri Niwas; their stand being that Om Prakash

had no concern with Munshi Ram who was running this ration

shop; evidence has however established to the contrary;

credibility and version set up by the tenant Munshi Ram was thus

falsified. It is also relevant to note that the respondent in his

capacity as RW-1 has admitted that he was maintaining his

account books and record of his business but no such record or

account books has been furnished which in this case would have

probably been the best evidence to establish his submission that

he was a tenant in his individual capacity in the suit premises; in

fact the assessment orders of „Munshi Ram Om Prakash‟ show

income tax returns had been filed by Om Prakash as proprietor of

the firm thus negativing this contention. The necessary corollary

that flows is that Munshi Ram had divested himself from the suit

premises and the suit premises were wholly in occupation and in

possession of Om Prakash and Sri Niwas. Ingredients of Section

14 (1)(b) of the DRCA stood established.

11. Reliance by learned counsel for the petitioner upon the

judgment reported as (1992) 1 SCC 143 Sri Chand Gupta Vs.

Gulzar Singh and Another is misplaced; this was a case where an

affidavit has been given by the sub-tenant wherein he had stated

that he was in exclusive possession of the suit premises was held

to be not binding under Section 18 of the Evidence Act qua the

tenant and the landlord and rightly so; the facts of this case had

disclosed that the stand of Gulzar Singh was that he was a tenant

but Avtar Singh has set up a stand that he was a tenant in his

individual capacity and as such the defence set up by the sub

tenant was not admissible as the Court had rightly noted that

Avtar Singh was not an agent of Gulzar Singh and his submission

was not binding upon Gulzar Singh. Ratio of the said case is

wholly inapplicable. Petition is without any merit.

12. Dismissed.

INDERMEET KAUR, J JANUARY 12, 2012 A