Subhash Chand Saini & Ors vs Ved Prakash & Ors
2012 Latest Caselaw 1580 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 06.03.2012

+     CM(M) 1489/2007 and CM Nos. 15811-15813/2007 &
      5657/2009

      SUBHASH CHAND SAINI & ORS.         ..... Petitioners
                  Through   Mr. Manu Nayar, Mr. Amitabh
                            Kirshan and Mr. Amar, Ad.

                     versus

      VED PRAKASH & ORS.                    ..... Respondents
                   Through  Mr. R.K. Jain, Adv.
      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. The impugned order is dated 27.09.2007 passed by the Additional

Rent Control Tribunal (ARCT); by way of this order the matter had been

remanded back to the Additional Rent Controller (ARC) to decide afresh

the issue of sub-letting by giving an opportunity to the landlord to re-

examine AW1-Rakesh Kumar with right to the tenant to cross-examine

the witness and also to lead additional evidence. This order was passed

to entitle the tenant to rebut the case sought to be set up by the landlord

by way of amendment of the plaint; the amended plaint had been taken

on record by the ARCT.

2. Record shows that the present eviction petition has been filed by

the landlords (21 in number) against three respondents. The grounds

were raised under Section 14(1)(b) & (c) of the Delhi Rent Control Act

(hereinafter referred to as DRCA). The averments made in the eviction

petition are to the effect that the petitioners are the owners/landlords of

the shop bearing No. 1446, Ward IV, Dariba Kalan, Delhi. Respondents

are the tenants in respect of one shop (depicted in red colour in the site

plant filed in the Trial Court). The premises had been let out for running

a tailoring shop at a monthly rent of Rs. 18 which was subsequently

enhanced to Rs. 55/-; the original tenant was Roshal Lal; tenancy was

terminated during his life time by a legal notice dated 20.03.1973 served

by registered AD on him; tenancy was terminated with effect from

31.05.1973; after the death of Roshan Lal, the respondents have

inherited the tenancy rights of Roshal Lal as joint tenants. In August,

1990, the respondents without the consent of the landlord have parted

with possession/sub-let/assigned this shop in favour of one Mahipal who

has started a halwai shop/sweet house which is without the permission

of the petitioners; no licence for running a halwai shop has also been

obtained; in spite of legal notice dated 28.10.1990 having been served

upon the respondents, the mis-user has not stopped; eviction petition

was accordingly filed under the grounds as aforenoted.

3. Written statement was filed by the respondents denying these

averments. Contention was that earlier two eviction petitions filed by the

landlord had also been dismissed; neither the ground of sub-letting nor

the ground under Section 14(1)(c) of the DRCA was made out.

4. Oral and documentary evidence was led by the respective parties.

Rakesh Kumar appeared as AW1; his deposition was to the effect that

Mahipal was in possession of the shop and has been carrying on a

halwai business in the said shop. The landlord was examined as AW4.

The tenant had appeared in the witness box as RW1 and reiterated the

averments made on oath; contention being that the earlier eviction

petitions filed by the landlord had been dismissed; suit for possession

filed by him against the legal heirs of Roshal Lal had also been

dismissed on 25.02.1997. Two other witnesses i.e. RW2 and RW3 had

also come into the witness box.

5. On the basis of this oral and documentary evidence, the ARC had

decreed the eviction petition under Section 14(1)(b) as also 14(1)(c) of

the DRCA.

6. An appeal against the order of ARC had been filed under Section

38 of the DRCA before the ARCT. Impugned order had remanded the

matter back to the ARC for recording the testimony of AW1; the court

was of the view that the order of the ARC was largely based on the

statement made by Rakesh Kumar but notwithstanding the fact that

although permission had been granted to the plaintiff to amend the plaint

yet the amended plaint had not been taken on record. Court had also

noted that the amended written statement had been filed. In this scenario

amended plaint was taken on record by the first appellate court and the

matter was remanded back for reconsideration of the issue of sub-letting

after recording a fresh statement of AW1 (Rakesh Kumar) with right to

the respondents to cross-examine the witness as also to lead further

additional evidence, if any. The appeal of the tenant was disposed of in

the aforenoted terms.

7. Record has been perused.

8. The RCT was hearing an appeal under Section 38 of the DRCA

which has to confine itself only on a substantial question of law. In this

context, a Bench of this Court in the judgment reported as 136 (2007)

DLT 219, Shyam sunder Dawa vs. J.D. Kapoor & Another, had noted

that where the reasoning of the ARC is based on the appreciation of

evidence and no question of law has been raised, the Tribunal should not

interfere with the finding of the Rent Controller.

9. It is in this background that the arguments addressed by the

learned counsel for the parties have been appreciated.

10. Record shows that the present eviction petition had been filed by

the landlord on the ground as contained in the provisions of Section

14(1)(b) and (c) of the DRCA. Four witnesses have been examined on

behalf of the landlord; AW4 was Subhash Chand/the landlord. AW1

was Rakesh Kumar; his testimony was clear and categorical which was

to the effect that his father (Sita Ram) used to sell vegetables from this

very shop; Mahipal is presently in occupation of the shop where he is

carrying on a halwai business. In his cross-examination, AW1 had

admitted that his father used to pay rent to Dev Vrat. The tenant had

examined himself as RW1. He had been subjected to a lengthy cross-

examination. He was Ved Prakash, the elder son of the original tenant

Roshal Lal; his elder brother was Dev Vrat; he has admitted that after

the death of their father his elder brother Dev Vrat, another brother Brij

Kumar and third brother had continued this tailoring business for six

years; thereafter the halwai business was started; there was no

partnership; accounts were not being maintained; halwai business was

being run under the name of 'Honey Sweets'.

11. Oral and documentary evidence was appreciated by the ARC to

return a fact finding that the ground of sub-letting under Section

14(1)(b) & (c) of the DRCA have been made out in favour of the

landlord; petition was decreed. These reasoned fact findings were

interfered by the RCT for no reason whatsoever; the RCT has remanded

the matter back to the Trial Court on the premise that the testimony of

AW 1(Rakesh Kumar) has to be re-appreciated. However, why this

contingency has arisen (when the testimony of AW1 was clear and

categorical on all aspects) is not clear. Impugned judgment clearly

suffers from an illegality as reasoned findings returned by the Trial

Court on the oral and documentary evidence adduced before it could not

have been interfered with without any cogent reason.

12. Relevant would it be at this stage to note that the plaint had in fact

been amended by the petitioner in the Trial Court vide order dated

05.05.2001. Relevant would it to be also to state that the averments

made in the amended plaint were about the other sub-lettings having

been made by the tenant between the period 1960-1984. Thereafter an

application had been filed by the tenant on 20.11.2001 seeking a recall

of AW4 Subhash Chand; he did not wish to recall AW1 Rakesh Kumar

for any purpose. AW4 has been cross-examined on all these counts.

13. RCT had noted that although the amendment of the plaint had

been allowed and amended written statement had also been filed, since

the amended plaint was not on record, this was a reason for the remand

of the matter to the ARC. This was only a technical inadvertence which

in no manner affected the merits of the controversy between the parties

as the submission of the tenant on 20.11.2001 (after the amendment was

allowed on 05.05.2001) sought a recall only of AW4; his grievance was

that after the amendment, he wished to examine AW4; it was not his

grievance that he wished to re-examine AW1 as well. Thus it was not as

if the petitioner was unaware of eh consequences of the amendment.

14. Thus on both counts, the order of the RCT suffers from an

infirmity.

15. These findings of the ARC were as follows:-

"27. After hearing arguments and on perusal of the material placed on record following proved facts emerged:

a) initially demise shop was let out to Sh. Roshan Lal and he during his life time continued to run a tailoring shop. The factum of relationship of landlord and tenant is not denied. The rate of rent @ Rs. 18/- per month is admitted. The factum of termination of tenancy within the life time of Roshal Lal vide notice dated 20.03.1973 is also proved.

b) AW1 Sh. Rakesh Kumar clearly stated that his father used to sell vegetables in the tenanted shop. One Mahipal was also in possession of the shop and has been carrying on Halwai business and during his cros examination he has specifically stated that his father used to pay rent to Sh. Devvert for his occupation over the tenanted shop.

c) The photographs which were produced before the respondent, on seeing the photographs respondent clearly stated that photographs belong to the tenanted shop and he also submitted that adjacent to the tenanted shop there is another sweet shop in the name of Khurchan Bhandar and he also admitted that there is sign board showing Shrinagar Compnay i.e. clearly visible on the gate of the shop but the respondent failed to explain how the board was came into existence and who was the proprietor of the Shrinagar Company. The respondent also failed to place any evidence in rebuttal that the tenanted shop was not partly occupied by Sh. Sita Ram who used to sell vegetables and also used to pay rent to one Sh. Devvert. Notice was required under Section 14(5) of DRC Act was also served upon Sh. Vinod Kumar, Ved Prakash and Sh. Brij Kumar requesting thereby to stop the misuser of the property which is Ex. As PW4/9 postal receipt is Ex. PW4/10 to 14 and the AD cards are Ex. PW4/15 to Ex. PW4/20 also placed on record. The complaints filed by the petitioner to police and also to the MCD are Ex. PW4/21 is also placed on record and the complaint was duly served by the competent authorities. The site plan is not disputed hence proved.

29.In view of the proved fact came out as discussed above and on perusal

of the observation made by our lordships on the aforesaid decided case, I am of the considered view that sufficient gronds of parting with the possession of the tenant shop has been placed on record by the petitioners but the respondent failed to rebut the evidence adduced by the petitioners. Respondent also failed to lead any evidence in rebuttal that Sh. Sita Ram was not inducted in the portion of the shop as sub tenant and they were never received any rent from him. However, in view of the observations made in the aforesaid decided case and on perusal of the provisions of Section 102 to 105 of the Indian Evidence Act the onus lies upon the respondent to prove that the tenanted premises was not parted with the possession and was not sublet to any other person except the legal heirs of original tenant and is of the considered view that the petitioners succeeded in proving their case to get the benefit of Section 14(1)(b) of the DRC Act.

30. It is the admitted fact that initially the tenanted premises was beign used for tailoring business and thereafter it was let out for selling vegetables as proved by Sh. Rakesh Kumar (AW1). The board of Shrinagar Company admitted displayed on the shop but the respondent failed to explain who was the proprietor of the Shrinagar Company and how that board came into existence. It is also admitted that the respondents started doing Halwai Business in the said shop. The notice under Section 14(5) of DRC Act duly served and despite the service of notice they have not stopped misuing the tenanted shop. The notice issued by the MCD with regard to stoppage of misuser and the reply filed by the petitioners again goes to shop that the tenanted premises was being misused by the respondent. In view of the observations made by our lordship in Ram Swaroop vs. Janaki Dass 1976 RCR 576 wherein it is clearly established that the distinction between commercial purpose and industrial purpose has been clearly interpreted and manufacturing

sweets in the shop cannot be terms as equal as to the tailoring business/another kriyanan shop etc. therefore in view of the facts and circumstances of this case as well as observations given by their lordships as discussed above and on perusal of the material placed on record. I am of the considered view that petitioners also succeeded in proving their case under Section 14(1)(c) of the DRC Act also.

31. I accordingly, pass an order of eviction of the tenanted shop under both the clauses i.e. 14(1)(b) and (C) of the DRC Act in favour of the petitioners and against the respondents."

16. These findings were based on cogent and coherent evidence

adduced before it had come to a reasoned finding that the grounds under

Section 14(1)(b) & (c) of the DRCA had been made out; eviction

petition decreed by the ARC did not in any manner call for any

interference. The order of the RCT having reversed this finding being an

illegality is accordingly set aside. Order of the ARC is revived. Eviction

petition stands decreed under Sections 14(1)(b) and (c) of the DRCA.

17. Petition disposed of in above terms.

INDERMEET KAUR, J MARCH 06, 2012 rb