Vijay Swarup Singhal vs Prem Gupta & Ors
2012 Latest Caselaw 2942 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment:03.05.2012.

+     CM(M) 107/2008


      VIJAY SWARUP SINGHAL             ..... Petitioner
                   Through Mr.Shiv Charan Garg, Adv.

                      versus


      PREM GUPTA & ORS                            ..... Respondent
                   Through              Mr.Arun Kumar Verma, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The impugned judgment is dated 28.09.2007. This was an order

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

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

01.03.2007. The ARC had decreed the eviction petition of the landlord

Vijay Swarup Singhal filed by him under Section 14 (1)(b) of the Delhi

Rent Control Act (DRCA) i.e. on the ground of sub-letting. The

impugned judgment i.e. order of the ARCT had reversed this finding.

2 Record shows that the landlord has filed this present petition

under Section 14 (1)(b) of the DRCA. Premises have been described as

one room plus kitchen on the ground floor of property bearing municipal

No. 6719 (now known as E-23, Kamla Nagar, Delhi-110007); the

original tenant was one Dr. Jage Ram;, premises have now been sublet

to one Tota Ram who was earlier working as his compounder; Jage Ram

has since died but his legal representatives (respondents No. 1 to 6) are

not in possession of the suit premises; possession is with the sub-tenant

namely Tota Ram; ground of sub-letting was accordingly made out in

favour of the landlord. Further averment in the eviction petition

discloses that Jage Ram was running his clinic till February, 1999 when

he expired; during his lifetime, Tota Ram was working as his

compounder; after his death his legal heirs have given an exclusive

possession of the premises; Tota Ram has now given prescriptions to the

persons who now visit the clinic; eviction petition had accordingly been

filed.

3 Written statement had been filed. It was denied that any ground of

sub-letting was made out.

4 Attention has been drawn to para 5 wherein it was denied that

Tota Ram ever worked as a compounder in the clinic or that he was

authorized to issue any prescription; this submission is false. Learned

counsel for the petitioner has drawn attention of this Court to the legal

notice which had been issued by the landlord to the tenant on

01.08.2001 wherein the contention was that the premises have been

sublet to Tota Ram by the legal representatives of Jage Ram from where

Tota Ram is running his business. Attention has been drawn to the reply

of the aforenoted legal notice wherein the tenant has denied the ground

of sub-letting; in this reply, it has been contended that Tota Ram was

working as a compounder for Dr. Jage Ram during his lifetime;

vehement contention of the learned counsel for the petitioner is that this

reply filed by the tenant to the legal notice is clearly contrary to the

averments made by him in his written statement; whereas in the reply to

the legal notice he has admitted that Tota Ram was working as

compounder of Jage Ram yet in the written statement he has denied this

factum. Submission of the petitioner/landlord being that ground of sub-

letting has clearly been made out and the ARC had returned a correct

fact finding which could not have been interfered with by the ARCT

who has committed a fallibility.

5 The respondent has disputed these submissions. The evidence on

record supports the case of the tenant; the case of sub-letting is clearly

not made out. Three witnesses had been examined on behalf of the

plaintiff of whom the landlord was examined as PW-1. PW-1 was Vijay

Swarup Singhal; he had reiterated the averments made by him in the

eviction petition; certain extracts of his cross-examination are relevant

and they have been highlighted in the order of the ARCT. PW-1 in his

cross-examination has stated that he had visited the clinic i.e. premises

in dispute about 3-4 years ago; this witness had come into the witness

box in May, 2004 meaning thereby that he had visited the premises

sometime in the year 2001. Eviction petition has been filed in the year

2003. Further cross-examination of PW-1 reveals that PW-1 has

admitted that he had seen respondent No. 1 (son of deceased Dr. Jage

Ram) practicing as Doctor in the suit premises and a sign board of his

clinic was also fixed outside. This admission of PW-1 in his cross-

examination is by itself sufficient to hold that no case of subletting is

made out. Even as per the case of the landlord the son of deceased Jage

Ram was running his doctor clinic in the suit premises and his name

board was also affixed there. This admission of PW-1 was noted in the

correct perspective by the ARCT who had noted that a perversity had

been committed by the ARC constraining the ARCT to reverse the

finding of the ARC. The impugned order of the ARCT had appreciated

the evidence in the correct perspective. Merely because the photograph

Ex. RW-1/X has depicted Tota Ram sitting inside the shop does not by

itself mean that Tota Ram is in exclusive possession of the suit premises

and the original tenant has divested himself of complete control over the

suit premises which is the settled position of law to make out a case of

sub-letting in favour of the landlord.

6 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.

7 Impugned judgment in no manner suffers from any infirmity.

Petition is without any merit. Dismissed.

                                             INDERMEET KAUR, J
MAY        03, 2012
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