Sudershan Rani @ Pooja Mehra vs Nirmal Gupta
2013 Latest Caselaw 3441 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: August 05, 2013

+                          CM(M) No.782/2013

      SUDERSHAN RANI @ POOJA MEHRA                            ..... Petitioner
                  Through  Mr.Inderpal, Adv.

                           versus

      NIRMAL GUPTA                                           ..... Respondent
                           Through      None

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

C.M. No.11934/2013 The abovementioned application has been filed by the petitioner for condonation of delay of 82 days in re-filing the petition.

For the reasons stated in the application, the same is allowed and the delay in re-filing is condoned.

The application is disposed of.

CM(M) No.782/2013

1. The present petition under Article 227 of the Constitution of India has been filed by the petitioner assailing the orders dated 22nd September, 2011 and 13th February, 2013.

2. An eviction petition was filed by the respondent (petitioner therein) under Section 14 (1) (b) & (j) of the Delhi Rent Control Act against the petitioner and Ms. Vandana Rani (respondent no. 2 therein) in respect of one shop in premises No. 99- E, Kamla Nagar, Delhi- 110007.

3. It was the case of the respondent (petitioner therein) that the petitioner and Ms. Vandana Rani (respondents No. 1 & 2 therein) had sublet the property on favour of Ms. Pooja Mehra (respondent No.3 therein) without seeking any permission in writing from the respondent in January 2003.

4. It was contended that while the petitioner and Ms. Vandana Rani were earlier doing their business of a parlour in the name and style of M/s Delilah Beauty Parlour, after the premises were sublet, Ms. Pooja Mehra was carrying out the business of the beauty parlour in the name and style of M/s Sargam Beauty Parlour.

The respondent also contended that the petitioner had caused substantial damage to the suit premises in January 2003 (as explained in the petition and the impugned order).

5. Though the petitioner admitted the relationship of landlord-tenant between the parties, it was however contended that the suit premises were taken on rent from the previous owners in October, 1981 and it was only on the subsequent purchase that the respondent became the landlady. It was stated that though earlier the suit premises were taken on rent by the two sisters who happened to be respondents No. 1 & 2 in the eviction petition, it was only the petitioner who continued to be in the tenancy as such since her sister i.e. Ms. Vandana Rani (respondent No. 2 therein) had flown to New York after her marriage. In fact after petitioner's marriage, her name was changed to Pooja Mehra at the time of the previous owner itself who had been accepting rent in the name of Pooja Mehra. It was contended that the respondent was well aware of the said fact and in fact respondent Nos. 1 & 3 therein were one and the same person. It was also stated that the alleged changes as claimed by the respondent (petitioner therein) were carried out by the petitioner with the permission of the previous owner and the same

existed when the suit premises were purchased by the respondent. As regards the name and style of the business being carried out at the suit premises, it was contended that the same was changed from M/s Delilah Beauty Parlour to M/s Sargam Beauty Parlour, as the girl child born to her was named Sargam, who had now grown up and was helping her in the parlour.

6. In her replication, the respondent denied the contentions of the petitioner and stated that even after the notice of demand of arrears of rent, the cheques were issued in the name of Ms. Sudershan Rani and not in the name of Ms. Pooja Mehra.

7. During the course of the proceedings the petitioner's opportunity to cross examination was closed vide order dated 26th May, 2010. In fact since the petitioner had not been appearing, her opportunity to lead evidence was closed vide order dated 17th July, 2010 and they were proceeded ex-parte vide order dated 18th August, 2010. It was observed by learned trial court that though the petitioner contended that the property had not been sub let and Ms. Sudershan Rani and Ms. Pooja Mehra were one and the same person, no such evidence was led. Thus on preponderance of probability, the respondent had proved that the suit premises were sublet without her consent. It was also observed that the report of the Local Commissioner confirmed the changes as alleged by the respondent and since the Local Commissioner was not cross examined, his testimony remained uncontroverted. In view of the same, an eviction order against the petitioner was passed vide order dated 22nd September, 2011.

8. Aggrieved by the same, an appeal was filed by the petitioner wherein the learned Appellate Court on hearing the parties and perusal of record also observed that to substantiate her contentions the petitioner had not led any

evidence. In fact despite a number of opportunities granted to her by the learned trial court, she did not avail any opportunity to lead evidence either of her marriage or her girl child namely Sargam being born and the name of the beauty parlour being changed as alleged. It was observed that failure to adduce evidence to substantiate any of such pleas, had the consequential effect of concluding that the petitioner on her part miserably failed to prove the pleas so raised by her. In view of the same, finding no illegality in the eviction order so passed, the appeal was dismissed vide order dated 13th February, 2013.

9. The two orders dated 22nd September, 2011 and 13th February, 2013, are assailed by the petitioner by way of the present petition whereby she seeks to set aside the eviction order passed against her.

10. Admitted position is that only after recording of evidence, the learned Additional Rent Controller by judgment dated 22nd September, 2011 passed the eviction order under Section 14 (1) (b) of Delhi Rent Control Act as the respondent was able to prove her case successfully and even by accepting the report of Local Commissioner who in his report held that there is chizlling of walls and floor level of the suit shop is below "9" from the floor of adjoining shop which proves the excavation of floor is done and witness was not cross-examined and his testimony remains uncontroverted.

11. The petitioner Smt. Sudarshan Rani @ Pooja Mehra filed the appeal against the judgment which was also dismissed by detailed order on 13th February, 2013 by observing as under after having gone through the entire gamut of the matter:-

"There is no denial of the fact that the business of beauty parlour being carried out from 'the subject premises' was earlier being carried out in the name of M/s Delilah beauty parlour and that, it as later being carried out in

the name and style of M/s Sargam beauty Parlour. As regards the name and style of the business being carried out from 'the subject premises', the appellant took the plea that the name of the business of beauty parlour being carried out frm the subject premises was changed from M/s Delhi Beauty Parlour to M/s Sargam beauty Parlour, as the child born to her from her marriage was named Sargam and that, she was now grown up girl and was helping and joining her. To substantiate so, the appellant on her part has not led even an iota of evidence. No evidence has come to be led even as regards the appellant and Ms. Pooja Mehra (respondent no.3 in the eviction petition) being one and the same person. Though, the appellant in the written statement took the plea that the appellant had married one Ajit mehra and after her marriage with him, her name was changed to Pooja mehra not even an iota of evidence has come to be led even to that effect. Suffice to say, appellant on her part inspite of the repeated opportunities granted by the ld. ARC did not avail any opportunity to lead any evidence either of her marriage with any Ajit Mehra or a girl child namely Sargam having been born from their such wedlock and name of the beauty Parlour having been so changed from Delilah beauty parlour to M/s Sargam beauty parlour. Even no prayer has come to be made for the purpose, during the hearing of the appeal. Failure to adduce any evidence to substantiate any of such pleas, of course, has the consequential effect of concluding that the appellant on her part miserably failed to prove any of the pleas raised by her. It happened in the face of the categorical deposition of PW 1 that the respondent no.3 had started the business of beauty parlour under the name and style of M/s Sargam beauty parlour and was in exclusive possession of the tenancy premises and opened and closed the locks of the premises, which, though cross- examined, I find has gone unshaken and unrebutted. In his deposition, PW 1 also categorically deposed for the extent of 'the subject premises' at the existing structure after flooring of the floor and the construction of Parchhati

besides reducing the thickn ess of the walls, which deposition."

12. Nothing contrary has been argued by the petitioner before this court. Admitted facts have also not been denied. Possession of the suit property has been taken by due process of law.

13. Considering the entire facts and circumstances of the matter and the material placed on record, this Court is not inclined to interfere with the judgment passed by the two courts under the scheme of Article of 227 of the Constitution of India as it is not permissible in law.

14. The present petition is accordingly dismissed.

15. No Costs.

C.M. No.11932/2013 (for stay) & C.M. No.11933/2013 (for restoration of possession)

Since the main petition has already been dismissed, these applications have become infructuous and the same are disposed of as such.

(MANMOHAN SINGH) JUDGE AUGUST 05, 2013