Ram Kumar Verma vs Rajiv Kumar Sharma & Ors.
2012 Latest Caselaw 6239 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

+            CM(M) 1158/2012, Cav. 1075/2012 & CM 18100/2012

                                             Date of Decision: 17.10.2012

RAM KUMAR VERMA                                       ..... Petitioner
               Through:                Mr.Vipin Kumar Saini, Adv.

                    Versus

RAJIV KUMAR SHARMA & ORS.                                 ..... Respondents
                          Through:     Mr.Sanjev Sachdeva, Sr.Adv. with
                                       Mr.Siddharth Aggarwal,
                                       Ms.Priyam Mehta, Advs.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution assails the order

dated 27.08.2012 of the District Judge-cum-ARCT, South District, Saket

Courts, whereby the appeal filed by the petitioner, being ARCT No.

05/2012 against the order dated 5.12.2011 of the Rent Controller (RC),

was dismissed.

2. The petitioner was a tenant in respect of a Shop bearing no. 72/1,

Main Market, Yusuf Sarai, Mehrauli Road, New Delhi forming part of

the property earlier bearing No. 71/1, Bazar Yusaf Sarai, New Delhi

under the tenancy of Net Ram Sharma, deceased father of the

respondents No. 1 and 2. A petition under Section 14(1) (b) of the Delhi

Rent Control Act (for short the 'Act') was filed against the petitioner as

also his brother Moti Lal (respondent No. 3 herein) by Net Ram Sharma,

the original landlord. During the pendency of the petition, Net Ram

Sharma expired and his sons, the respondents No. 1 & 2 herein were

impleaded in place of their father. It was alleged that the tenanted shop

was let out to the petitioner in 1953 against a rent note dated 6.12.1953.

It was further alleged that the petitioner has sublet, assigned or otherwise

parted with the possession of a part thereof to his brother respondent No.

3 Moti Lal, without the consent of the respondents No. 1 & 2 or their late

father Net Ram. It was alleged that the tenanted shop had been

partitioned and a part thereof (Mark ABCD in the site plan) had come in

the exclusive possession of the respondent No. 3, Moti Lal, who has put

his own lock thereupon and been running his independent business

therein of watch merchant/repairs. Thus, their eviction was sought from

the tenanted premises by the respondents No. 1 & 2 on the ground of

subletting, etc.

3. It is pertinent to mention herein that the respondent No. 3 Moti Lal

had also filed an appeal against the order of ARC dated 5.12.2011, being

ARCT No. 04/2012, against the petitioner and the respondents No. 1 & 2,

which also came to be dismissed vide the impugned order of ARCT

dated 27.08.2012. However, the present petition under Article 227 has

been preferred by the petitioner alone.

4. In his reply/written statement to the eviction petition, the petitioner

denied the case of the landlords/respondents No. 1 & 2 about the

tenanted premises being earlier part of property bearing 71/1, Bazar

Yusaf Sarai, New Delhi. It was averred that the initial letting out was

made by Sh.Chunni Lal, late grand-father of the respondents No. 1 & 2.

The petitioner claimed that the tenanted shop was taken on rent around

February, 1950 under oral tenancy, and thus, the petitioner disputed the

case of the respondents No. 1 & 2 about the tenancy having been created

through the rent note dated 6.12.1953, which according to him relates to

distinct property bearing No. 71/1, Bazar Yusaf Sarai, New Delhi.

Though the petitioner raised plea about the existence of relationship of

landlord-tenant between the parties, however, in his written statement, he

conceded that he had been paying rent to the respondents No. 1 & 2 after

the death of their father Net Ram and that, a part of the tenanted shop

was in possession of respondent No. 3 Moti Lal. It was his case that the

respondent No. 3 being his younger brother and having earlier worked

with him as his representative, had turned dishonest and illegally

occupied the said portion of the tenanted premises. It was also his plea

that the provision of separate shutter was made as per the order of the

Civil Court and was without his consent or permission. He averred that

the sub-letting if any, being prior to 9.6.1952, no consent or permission

of the landlord was required to be obtained and thus, the eviction petition

under Section 14 (1) (b) of the Act was not maintainable. It was further

his plea that a new tenancy had been created in his favour on account of

enhancement of rent w.e.f. April, 1997 and it had the effect of washing

away of the default if any, on the part of the petitioner, and thus, there

was no cause of action accruing in favour of the landlords/respondents

No. 1 & 2.

5. Respondent No. 3 Moti Lal also filed his written statement to the

eviction petition and denied of he being a sub-tenant in part of the

tenanted shop. He alleged that the tenanted shop had two portions for the

last many years, and a part of the shop had been in his exclusive

possession for more than 30 years. He claimed to be a tenant in the said

part in his own independent right, and that he had been paying rent @ Rs.

30/- per month.

6. The learned Rent Controller vide his order dated 5.12.2011

observed that this was a case of subletting the premises by the petitioner

to the respondent No. 3 without consent in writing of landlord and thus,

he passed the eviction order against the petitioner as also respondent No.

3 Moti Lal. The petitioner Ram Kumar Verma and the respondent No. 3

Moti Lal carried the matter by two separate appeals being ARCT Nos.

04/2012 & 05/2012, both of which came to be dismissed by common

order of ARCT dated 27.08.2012. The same is under challenge in the

instant petition by Ram Kumar Verma, the petitioner herein.

7. I have heard learned counsel for the petitioner as also learned

senior counsel for the respondents and perused the entire material

available on record.

8. Before adverting to the respective submissions of learned counsel

for the parties, it is important to keep in mind that the power of this Court

under Article 227 of the Constitution is not in the nature of appellate

jurisdiction and so, the extent and scope of power with this Court is

limited and restrictive in nature, and in the normal circumstance, it is

exercised where there is want of jurisdiction, error of law or perverse

findings by the trial Court. Such power is to be exercised to keep the

subordinate court within limits of their jurisdiction and authority and it is

not to act as an Appellate Court for correcting the decisions of the

subordinate courts. This court would not substitute its opinion or

interfere with the findings of the facts of the trial Court, if there was no

infirmity or perversity. Thus, in the absence of there being any material

illegality or perversity, the order of the court below is not to be faulted

with or interfered with by this court in its supervisory power under

Article 227. Reference in this regard can be made to the decisions of the

Supreme Court in Waryam Singh and Anr. Vs. Amarnath and Anr.,

AIR 1954 SC 215 and Mohammed Yusuf Vs. Faij Mohammad and

Ors., I (2009) CLT 153 (SC).

9. The petitioner claimed that firstly, there is no landlord-tenant

relationship between him and the respondents as the initial letting out

was made by Sh. Chunni Lal, late grandfather of the respondents. He

claimed that the tenanted shop had been taken on rent around the time of

February 1950 under oral tenancy. He disputed the case of the

respondents that the tenancy was created through a rent note dated

06.12.1953. However, in the written statement of the petitioner, he

conceded to the fact that he has been paying rent to the respondents after

the death of the original landlord. Thus the relationship of landlord-

tenant has been established.

10. It was the case of the respondents that the shop in question as

shown in the site plan (Ex. PW 1/1) was let out as a whole to the

petitioner. It is their case that the tenant had partitioned the suit shop by

erecting the partition wall so as to carve out the separate space ABCD,

with each portion being covered by a separate shutter on the front. It is

also their case that the portion ABCD was in exclusive possession of

respondent Moti Lal who was doing his business therein and was putting

his lock. It was also the case of the respondents that the suit premises

earlier bearing No. 71/1 and was subsequently renumbered as 72/1 and

same is shown in the site plan (Ex. PW 1/1). The petitioner in the written

statement did not deny that the portion ABCD was in the exclusive use

and occupation of his brother Moti Lal. He has, however, attributed this

to Moti Lal having forcibly occupied the said portion and having retained

the same under the stay order of the Civil Court. On the other hand, Moti

Lal in his written statement took the stand that he had been inducted as a

tenant in the said portion and was paying Rs.30/- per month directly to

the landlord. He has claimed to be in possession of this portion in his

independent right for over 30 years.

11. The controversy as regard to the number of the suit premises being

71/1 and that the tenancy of the suit premises was oral, has been

unnecessarily raised by the petitioner. It has been noticed by

ARC/ARCT, that the tenancy was created by rent note dated 06.12.1953

in favour of petitioner. The plea regarding the number of the suit

premises has been dealt with by the ARC as also by the ARCT by

referring to the evidence brought on record. The petitioner had stated

regarding tenancy of two different shops viz-a-viz 71/1 and 72/1. The

petitioner had also deposed that his brother Moti Lal was working with

him in shop No. 72/1 since the inception of tenancy. He had

categorically deposed that the tenanted shop was bearing No. 72/1 from

the very beginning and it never bore number 71/1 at any point of time.

He also deposed that shop No. 71/1 is different shop and is presently

occupied by one Brij Lal. The learned ARC recorded, and rightly so, that

the failure to lead any evidence by the respondents to prove that the

tenanted shop earlier bore No. 71/1 and was subsequently re-numbered

as 72/1 will not make any difference, in view of the fact that petitioner in

his written statement has admitted that he is tenant in the shop No. 72/1

and Rajiv Kumar Sharma and Sanjeev Sharma are the legal heirs of

original landlord Chunni Lal. In view of this, the question whether the

tenanted shop, which admittedly is 72/1, was earlier numbered 71/1,

becomes irrelevant.

12. It is settled law that the burden of proof of sub-letting is on the

landlord. But once the same is established, the burden shifts to the tenant.

Reference can be made to the case of "Joginder Singh Sodhi vs. Amar

Kaur, (2005) 1 SCC 31", wherein the Supreme Court has held as under:-

"It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to a third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration."

13. It is also not mandatory for the landlord to prove that there is some

monetary consideration being paid by the sub-tenant to the tenant. The

Supreme Court in the case of "Bharat Sales Ltd. vs. LIC of Indi, (1998)

3 SCC 1", explained this principle of law. The relevant portions of the

judgment are as under:-

"4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into

possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let."

14. It is the admitted case of the parties that the tenanted shop was let

out to the petitioner and a part thereof marked ABCD is in occupation

and user of respondent Moti Lal and further that he is doing his

independent business therein to the exclusion of the petitioner, and is also

putting his own lock thereon. The explanation of the petitioner in this

regard is that Moti Lal was initially working with him as his authorized

representative, but later on he turned dishonest and has retained the

possession of the portion ABCD illegally under the stay order of the civil

court. As is noted above, the case of respondent Moti Lal, on the other

hand, is that he is in possession of the aforesaid portion of the tenanted

premises to the exclusion of the petitioner for over 30 years and has been

paying rent directly to the landlords. Though this plea of Moti Lal that

he was paying rent to the respondents/landlords, could not be

substantiated by him by way of any evidence on record, but it is the

admitted case of the parties that he has been in exclusive possession of

the aforesaid portion of the tenanted premises. It was nowhere the case

of the petitioner that at any point of time he had parted with the

possession of the portion ABCD to Moti lal with the consent of the

respondents/landlord. The plea, which is set up by the petitioner is that

Moti Lal is in illegal possession of a portion of the suit premises and in

any case, the possession being with him prior to the enactment of Delhi

Rent Control Act in 1952, no consent of landlord was required. His

further plea was that in any case, the default on his part was condoned

with the creation of new tenancy with the enhancement of rent w.e.f.

April, 1997.

15. All these pleas, which are taken by the petitioner had been dealt

with by the RC and ARCT. It was admitted by the petitioner that there

was no written agreement for creation of the new tenancy as alleged by

him. He deposed that the rent receipt of Rs.175/- dated 3.5.1998 is the

only rent agreement to that effect. It has been rightly observed by

ARCT that this was not the creation of new tenancy or condonation of

the default on the part of the petitioner for parting with possession, but

only enhancement of rent of the tenanted premises.

16. The original landlord Net Ram Sharma (since deceased) examined

himself as PW 1. He had stated that at the time of inception of the

tenancy there was only one shop and that the same was let out to

respondent No.1. He further stated that Moti Lal was carrying on

independent business in the portion marked ABCD, which had a separate

shutter. This fact was also confirmed by Moti Lal during his cross-

examination. He also conceded that prior to the partition, there was only

one shutter on the front and that no permission was obtained from

respondents/landlords for creating separate portions for two shops. He

had also stated that partition was done as an arrangement based on

mutual consent between him and his brother, the petitioner. Both the

courts below have analyzed the evidence led by the parties and I do not

see any perversity in their appreciation of the evidence. From the

evidence led, it is established that it was a mutual understanding that not

only the partition of the shop was created, but the common shutter was

removed and two portions with separate shutters were carved out. The

portion ABCD came in the exclusive possession of Moti Lal and the rest

continued to be with the petitioner. Once it was established that Moti Lal

is in exclusive possession of a portion of the tenanted premises, the

burden lied on the petitioner to prove that his occupation was with the

consent of the respondents/landlords. The petitioner sought to justify that

this was under the orders of the Civil Court. On the other hand, my

attention has been drawn to the order dated 20.11.1995 of the Civil

Court. From this it is evident that no such permission was given by the

civil court to the petitioner or his brother Moti Lal to carve separate

portions or have separate doors on the tenanted shop.

17. From the above, it would be seen that there was no privity of

contract between the respondents/landlords and Moti Lal. It was the

entire shop, as shown in Ex. PW 1/1, including portion ABCD, which

was let out to the present petitioner and he had allowed his brother Moti

Lal to come in the tenanted premises, may be initially for assisting him in

the business, but later he created a separate portion ABCD and permitted

him to be in exclusive possession thereof some time in or around 1997.

There being no consent of the respondents/landlords for such purpose,

the parting with the possession of a part of the tenanted premises was

thus a mischief within the under provisions of Section 14 (1) (b) DRC

Act.

18. In view of my above discussion, I do not see any infirmity or

illegality in the impugned order of the ARCT. The petition is hereby

dismissed.

M.L. MEHTA, J.

OCTOBER 17, 2012 rmm/pkv