Delhi High Court
Santosh Kumar Jain & Sons (Huf) vs Sh. Prem Prakash & Anr. on 7 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) No. 478/2014
% 07th November, 2014
SANTOSH KUMAR JAIN & SONS (HUF) ..... Petitioner
Through Mr.V.K.Srivastava, Advocate.
versus
SH. PREM PRAKASH & ANR. ..... Respondents
Through Mr.Sanjay Sharma, Advocate for R-
1&2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The present petition under Article 227 of the Constitution of India is
filed by the petitioner/landlord impugning the concurrent judgments of the
courts below; the Additional Rent Controller dated 8.9.2011 and the Rent
Control Tribunal dated 24.3.2014 dismissing the eviction petition filed by
the petitioner/landlord under Section 14(1)(b) of the Delhi Rent Control Act,
1958 (hereinafter referred to as 'the Act'). Courts below have held that the
respondent no.1 herein/tenant has not illegally sublet the suit/tenanted
premises to respondent no.2.
2. The tenanted premises is a shop no.16 (private shop no.15), on the
ground floor, Gali Kunjas Ward no.IV, Dariba Kalan, Delhi-6. Admittedly,
the respondent no.1 is a tenant. The issue is whether the respondent no.1 has
sublet the premises to the sub-tenant/respondent no.2.
3. The law with respect to subletting, assigning or parting with
possession under Section 14(1)(b) of the Act is that once there is found a
stranger in the tenanted premises, then, onus is upon the tenant to show the
status and occupation of such a person of the tenanted premises. The tenant
therefore has to show by sufficient evidence that the person in
occupation/possession of the tenanted premises is not an illegal sub-tenant
and that the tenant continues to have actual physical possession of the
tenanted premises.
4. In the present case, the case which was set up by the respondent
no.1/tenant was that the respondent no.2 was his employee. The expression
'employee' was further explained that actually the respondent no.2 on a
commission basis sends clients to the respondent no.1/tenant who has a shop
in an interior location from where he does polishing and cleaning work of
silver, and therefore respondent no.2 is allowed to sit in the shop as an
'employee'. The respondent no.1/tenant claimed that he continued to be in
the actual physical possession of the premises and that there was no
subletting.
5. In my opinion, both the courts below have committed a serious and
fundamental error in overlooking the position of law that mere mantras or
self-serving statements uttered by a tenant of being in actual physical
possession of the tenanted premises by allegedly opening and closing the
same, and that the person in possession of the tenanted premises is only an
employee/commission agent, would not amount in law to discharge the onus
of proof upon the tenant once in the tenanted premises there is found to be a
person other than the tenant. Once the respondent no.1/tenant stated that the
respondent no.2 was only an employee or a 'commission agent', it was upon
the respondents to lead evidence to show any salary payment or commission
payment by respondent no.1 to the respondent no.2 as evidenced by
documents, but admittedly no proof whatsoever was filed that any salary or
commission payment, much less by cheques, was paid by the respondent
no.1 to the respondent no.2. Not only the aspect that respondents failed to
show the relationship of employer and employee between the respondent
no.1 and the respondent no.2, during the course of evidence it has come on
record that respondent no.2 is in fact doing a business of diamond jewellery,
gold and stones. It is therefore not believable that an employee would have
his own independent business in the tenanted premises and that too a
valuable business of diamond jewellery, gold and stones.
6. I may state that under Section 106 of the Evidence Act, all evidences
in the special knowledge of a person, have to be brought in the court by such
a person as onus is of such a person to lead evidence in his special
knowledge, and therefore evidence as to relationship of employer and
employee or of a commission agent had to be proved by the respondents
before the court by leading sufficient credible evidence, and oral evidence
uttering the requirements of law cannot be said to be such convincing
evidence for the respondents to discharge the proof that respondent no.2 was
not an illegal sub-tenant but was only an employee/commission agent of the
respondent no.1/tenant.
7. It may be noted that the petitioner/landlord had filed the list of
subscribers issued by Delhi Sanchar Sewa as Ex.PW1/6 to show the
telephone numbers of R.R. Jewellers existing in the subject premises. It is
relevant at this stage to state that the petitioner/landlord had filed on record
and proved the visiting cards exhibited as Ex.PW1/3 to Ex.PW1/4 which
showed that the respondent no.1 was in fact carrying on his business of
diamond jewellery and silver articles from the suit/tenanted premises in the
names of M/s Ashima Jewellery and R.R. Jewellers. These visiting cards
show the tenanted premises as the addresses of Aashima Jewellery and R.R.
Jewellers. Ex.PW1/3 to Ex.PW1/4 specifically shows the name of Rajesh
Sonik/respondent no.2 as the proprietor. The respondent no.2 in his cross-
examination also admitted that he was carrying on the business in the name
and style of M/s Ashima Jewellery doing the business of diamond jewellery,
silver articles etc. In view of this categorical admission of the respondent
no.2 in his cross-examination read with Ex.PW1/3 to Ex.PW1/4, it was clear
beyond doubt that the respondent no.1 had sublet the tenanted premises to
respondent no.2, who was carrying on the business of Ashima Jewellery/R.R
Jewellers from the tenanted premises, and it cannot be believed that the
respondent no.2 was only an employee or allegedly a commission agent of
the respondent no.1.
8. The first appellate court below has misdirected itself in stating that the
petitioner's deposition is not believable because he came to know of
existence of subletting only on account of general enquiry made from public,
inasmuch as, the illegal act of subletting is not done by means of properly
typed documents on a stamp paper and which are filed with public
authorities. Illegal subletting is an illegal act which is done behind curtains
and closed doors, and therefore the law with respect to eviction on the
ground of subletting is that once a person other than the tenant is found in
the tenanted premises, then subletting is to be taken as established unless the
tenant shows to the satisfaction of the court that the person in
occupation/possession or found in the tenanted premises is not an illegal
sub-tenant or a person having actual physical possession of the tenanted
premises.
9. As stated above, in the facts of this case, oral averments that
respondent no.1/tenant opened and closed the shop is not believable in the
facts of the present case to discharge the onus of proof which has shifted on
respondent no.1 to show that respondent no.2 was not a sub-tenant or a
person in actual physical possession of the tenanted premises.
10. It is also relevant to state that the roles of a servant and a commission
agent are in fact contradictory to each other because a commission agent is
an independent agent whereas the servant works under the direction and
guidance of his employer. The written statement which was therefore filed
by the respondents before the Additional Rent Controller lacked credibility
from the very outset.
11. The courts below have thus acted most perversely and illegally
causing grave injustice to the petitioner/landlord and hence the impugned
judgments are liable to be set aside.
12. In view of the above, the present petition is allowed. Impugned orders
are set aside and the eviction petition filed by the petitioner/landlord against
the respondents will stand decreed and the respondents herein are directed to
be evicted from the suit/tenanted premises being shop no.16 (private shop
no.15) on the ground floor of property no.235-240, Gali Kunjas, Dariba
Kalan, Delhi-6 (as shown in red colour in the site plan filed along with the
petition marked as Ex.PW1/1). Parties are left to bear their own costs.
VALMIKI J. MEHTA, J
NOVEMBER 07, 2014
KA
