Delhi High Court
Gursharan Kaur vs Harbans Singh on 4 April, 2018
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 4th April, 2018
+ CM (M) 349/2016
GURSHARAN KAUR ..... Petitioner
Through: Mr. T.S. Ahuja & Mr. Varun
Ahuja, Advs.
versus
HARBANS SINGH ..... Respondent
Through: Mr.Tarun Kr. Malhotra, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner is concededly the landlord vis-à-vis the
respondent, the tenant, in respect of premises described as shop
situated in property no. 663/12, Mehta Market, Pandit Park,
Patparganj Road, Delhi- 110051 as specifically shown in colour red in
the site plan filed with the petition for eviction submitted on
04.02.2012 which was registered by the Rent Controller as eviction
case no. 10/2012. The case for eviction was instituted on the ground
provided under Section 14 (1) (b) of Delhi Rent Control Act, 1958 on
the allegations that the respondent (the tenant) had sublet the demised
premises to two persons Amrik Singh and Satnam Singh who were in
its use and enjoyment to his exclusion. It may be mentioned here that
it came out during the trial that Satnam Singh is real brother of the
tenant while Amrik Singh is his nephew. The case was contested by
the tenant with explanation that he was running his business in the
name and style of Amole Electricals and that Amrik Singh and Satnam
Singh were his employees. Evidence was led by both sides wherein
Guriqbal Singh (PW-1), the husband of the petitioner appeared on her
behalf, she also examining two neighbours (PW-2 and PW-3)
primarily to bring on record that it is Amrik Singh who was in
occupation and use of the premises. The respondent examined himself
(as RW-1) and also relied on the evidence of Amrik Singh (RW-2) and
Satnam Singh (RW-3). The Rent Controller dismissed the petition by
judgment dated 14.01.2015 holding that the petitioner had failed to
prove the allegation of subletting. Her appeal (RCA 09/2015) was
dismissed by the Rent Control Tribunal by its judgment dated
08.01.2016.
2. The petition at hand has been filed seeking to assail the above-
mentioned consistent judgments of the two forums as mentioned
above.
3. Having heard the learned counsel on both sides and having gone
through the record with their assistance, this Court finds no substance
or merit in the petition. In the considered view of this Court, the
Rent Controller and the Rent Control Tribunal have appreciated the
evidence adduced by both sides in proper light and have reached the
correct conclusions on facts.
4. It must be mentioned at this stage that though allegations of
subletting in favour of two persons were made, the petition at hand is
pressed only with regard to the presence of Amrik Singh (RW-2) in
the demised premises, the petitioner through counsel making it clear
that she gives up her case with regard to the presence of Satnam Singh
(RW-3).
5. It does appear that both RW-1 and RW-2 have admitted that the
latter (RW-2) has been opening the shop and also closing it at the end
of the day he being in possession of a key handed over to him by RW-
1. But then, RW-1 has affirmed on oath that he continues to be the
tenant having retained another key to the premises, thus being in
actual control, RW-2 and also RW-3 being his employees only.
6. It was sought to be pointed out by the counsel for the petitioner
that in the evidence, the respondent has claimed that RW-2 and RW-3
had been engaged "on job work basis" which is at variance from the
averments in the written statement. This Court does not find anything
turning on use of such expression in the evidence. The fact remains
that the stand of the respondent has been consistent that RW-2 and
RW-3 are employees engaged by him for purposes of his business in
the name and style of Amole Electricals.
7. The photographs (Ex.PW-1/4 to Ex. PW-1/7) of the premises do
show presence of RW-2. But then, mere presence of such person by
itself is no proof of subletting or parting with possession for bringing
home the case for eviction. The petitioner was required to prove that
the premises is in the control of a stranger to the exclusion of the
tenant inducted by her. The word of the tenant (RW-1) here is
corroborated by the person (RW-2) stated to be in use, the latter also
affirming his status to be only of an employee under the former.
There is no proof of any consideration flowing from RW-2 to RW-1
for use of the premises. On the contrary, RW-2 is on record to state
that he receives remuneration from RW-1.
8. The tenant admittedly does not have any documents in the
nature of registration of his establishment under the Shops and
Establishment Act nor has any payment been made for tax or duty to
the authorities relating to income-tax or VAT against his income
therefrom. The tenant does not maintain any formal books of accounts
or employees' register. The absence of such records or any proof of
income actually flowing to the tenant does not necessarily mean that
he or his firm are not in use of the premises. The possibility, as is
claimed and argued, that the business is not very lucrative cannot be
ruled out.
9. The respondent had relied on licence issued by Govt. of NCT of
Delhi (Ex.DW-1/1) and the reports submitted (Ex.DW-1/2 and 3)
about the employees of Amole Electricals. It does appear that the
respondent is shown also an employee. Merely because he is also
shown as an employee, will not cut any ice for the petitioner for the
reason the licence (Ex.DW-1/1) also reflects him to be the contractor
in whose name the licence was issued. The licence in name of Amole
Electricals, the document confirming the respondent to be the
contractor, was issued on 01.10.1977 and consistently kept validated
till 30.09.2014. This licence with reference to the firm Amole
Electricals only reinforce the defences of the respondent.
10. In the above facts and circumstances, reliance on M/s Nath Oil
Company & Ors. vs. Smt. Kailash Rani Kapoor & Ors. 82 (1999)
Delhi Law Times 936 and Subhash Khanna vs. Chatar Lal, CM (M)
12/2010 decided on 11th March, 2010, does not help the petitioner.
11. The petition is dismissed.
R.K.GAUBA, J.
APRIL 04, 2018
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