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2006 DIGILAW 1291 (DEL)

MANBHARI DEVI v. JAIMAT RAI ASHWANI KUMAR

2006-08-03

SANJAY KISHAN KAUL

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SANJAY KISHAN KAUL, J. ( 1 ) ADMIT. ( 2 ) AT joint request of learned Counsel for the parties, the petition is taken up for final disposal. ( 3 ) THE petitioner had filed an eviction petition against the respondents on grounds of non-payment of rent and subletting under Sections 14 (l) (a) and 14 (1) (b) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as 'the said Act') in respect of shop on the first floor of property No. 1102 having private no. 8, Laxmi Market, Kucha Natwa, Chandni Chowk, Delhi-110 006 (hereinafter to be referred to as 'the premises')- The Additional Rent Controller (hereinafter to be referred to as 'arc') vide order dated 18. 8. 2004 found that respondent No. 1 tenant had defaulted in payment of rent, but the benefit of Section 14 (2) of the said act was given and respondentno. 1 was granted time of 30 days to clear the arrears of rent, failing which, eviction order would follow. The ARC also found in favour of the petitioner insofar as the ground of subletting is concerned as respondent No. 1 was found to have sublet or parted with possession of the premises to respondent no. 2 and, thus, passed an eviction order under Section 14 (l) (b) of the said Act directing the respondents to hand over possession within two months. ( 4 ) THE respondent aggrieved by the said order dated 18. 8. 2004 filed an appeal before the Additional Rent Control Tribunal (hereinafter to be referred to as 'the tribunal' ). The Tribunal in terms of the order dated 5. 5. 2005 rejected the appeal insofar as the ground of non-payment is concerned, but set aside the eviction order passed under Section 14 (l) (b) of the said Act on the ground of subletting. The petitioner landlord aggrieved by the same has filed the present petition under article 27 of the Constitution of India. ( 5 ) THE premises had been let out by the petitioner to respondent No. 1 on 1. 4. 1985 for commercial purposes. Respondent No. 1 was wanting to use the premises for selling dhotis, suiting and shirting business since it was already carrying on the said business in the adjoining shop No. 1100/1, Laxmi Market, kucha Natwa, Chandni Chowk, Delhi-110 006. The allegation was that respondent no. 4. 1985 for commercial purposes. Respondent No. 1 was wanting to use the premises for selling dhotis, suiting and shirting business since it was already carrying on the said business in the adjoining shop No. 1100/1, Laxmi Market, kucha Natwa, Chandni Chowk, Delhi-110 006. The allegation was that respondent no. 1 had sublet/assigned or parted with possession of the premises to respondent no. 2 in the month of July, 1987 without the written consent or permission of the petitioner, but the petitioner, who is an aged lady of more than 90 years, had come to know of the same only in December, 1993 when respondent No. 2 had issued a cheque on account of respondent No. 1 for clearance of arrears of rent in respect of the premises in question. It was alleged that respondent No. 2 was in possession and control of the premises and were operating the business of Seema Blouse and falls of Sarees. The premises were being opened and closed by the employees of respondent No. 2. Respondent No. 2 was also running the same business from another shop No. 1100/5, Laxmi Market, Kucha Natwa, Chandni Chowk, Delhi- 110 006 and was controlling the business by installing T. V. camera in both the premises. Some of the rent receipts were also stated to be counter-signed by respondent No. 2. ( 6 ) RESPONDENT No. 1 disputed the claim of the petitioner alleging that they were using the premises as a godown with which respondent No. 2 had no concern. The partner of respondent No. 1 was stated to be the maternal uncle of respondent no. 2. It is in view thereof respondent No. 2 is stated to have issued cheques, but the same were alleged to be on behalf of respondent No. 1. It was not disputed that respondent No. 2 had paid the rent some time in cash or by cheque, but on behalf of respondent No. 1. ( 7 ) IN order to appreciate the findings of the ARC, the relevant provisions of section 14 (1) (b) are reproduced hereunder: "14. Protection of tenant against eviction. It was not disputed that respondent No. 2 had paid the rent some time in cash or by cheque, but on behalf of respondent No. 1. ( 7 ) IN order to appreciate the findings of the ARC, the relevant provisions of section 14 (1) (b) are reproduced hereunder: "14. Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant: provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely (b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. " (Emphasis supplied) ( 8 ) A reading of the order of the ARC shows that the legal principles dealing with subletting were succinctly set out. The judgment of the Hon'ble Supreme court in Bharat Sales Limited v. L.. C. of India, III (1998) SLT 19=72 (1998) dlt 50=1998 RLR (SC) 192, was considered where observations had been made that in case a tenant, who parts with possession of premises to another without the consent of the landlord and the landlord is kept in dark, then the landlord is not expected to prove the terms of sub-tenancy including payment of rent by subtenant, which may have been paid secretly. In fact, in Chic International v. Naintara, 53 (1994) DLT 590= 1994 RLR 178 , it has been held that the mere fact of permitting another person to use the portion of premises without written consent of the landlord itself establishes subletting. The burden is on the tenant to show it is otherwise. ( 9 ) THE Trial Court found that the deposition of the respondents was like a rolling stone and the contradictions in the deposition were pointed out. Such contradictions included the plea of payment of rent by respondent No. 2 in the absence of respondent No. 1 while simultaneously the respondents denied respondent no. 2 had paid arrears of rent. ( 9 ) THE Trial Court found that the deposition of the respondents was like a rolling stone and the contradictions in the deposition were pointed out. Such contradictions included the plea of payment of rent by respondent No. 2 in the absence of respondent No. 1 while simultaneously the respondents denied respondent no. 2 had paid arrears of rent. A new story was sought to be set up during the evidence that there was termite attack in the shop of respondent No. 2 for some time and respondentno. 2 had requested respondent No. 1 to keep the articles in the shop of respondent No. 1. There was absence of any such description or the necessary facts being set out in the written statement. The Trial Court, in fact, found that the respondents had deposed contrary to the own affidavit and the written statement. The version of respondent No. 2 was disbelieved that he was being reimbursed by respondent No. 1 for rent paid by way of cheque to the petitioner. ( 10 ) THE Trial Court has assigned cogent reasons for the aforesaid. Respondent no. 2 had been showing payment of rent to the petitioner as expenditure in its books of accounts and getting the same assessed for income-tax purposes, while respondent No. 1 was not reflecting the payment of rent being made/reimbursed to respondent No. 2 in the books of accounts of respondent No. 1 or in individual assessments, even though they were income-tax assessees. The only explanation given on behalf of respondent No. 1 was that since the rent amount of the premises was very small, it was not shown in the returns. ( 11 ) IN my considered view, this was the correct appreciation of evidence on record. The ARC rightly noted the aforesaid fact and, to my mind, this is one of the major reasons why the story of the respondents cannot be believed. It cannot be that the amount is too small for respondent No. 1 to reflect in its books of accounts while respondentno. 2 is reflecting the same in its books of accounts. The inter se transfer between respondent No. 1 and respondent No. 2 was also not reflected in the accounts. ( 12 ) THE Tribunal, in my considered view, had no ground to interfere with the findings of the ARC. 2 is reflecting the same in its books of accounts. The inter se transfer between respondent No. 1 and respondent No. 2 was also not reflected in the accounts. ( 12 ) THE Tribunal, in my considered view, had no ground to interfere with the findings of the ARC. It has to be first appreciated that the scope of the first appeal before the Tribunal is limited as it can only be on a question of law. The relevant section reads as under: "38. Appeal to the Tribunal. (1) An appeal shall lie from every order of the Controller made under this Act only on question of law to the Rent control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette: provided that no appeal shall lie from an order of the Controller made under Section 21. . . . . . . . . . . . . . . . " (Emphasis supplied) ( 13 ) IN para 8 of the judgment, the Tribunal states that the question of law involved in appeal is as to whether the findings of fact returned by the Trial Court in relation to the two grounds of eviction are against the weight of evidence. In my considered view, the Tribunal really acted as a first Court of appeal both on law and on facts, which was not permissible. ( 14 ) IF the reasoning of the Tribunal is taken into consideration, it does not stand scrutiny. It cannot be said that the payment of rent by respondent No. 2 to the petitioner was on behalf of respondent No. 1 in view of the close relationship between the two with the sole object of not putting the landlady to any inconvenience of having to come again for collection of rent. It must be kept in mind that the petition was filed also for eviction on grounds of non-payment of rent and that ground was upheld by the Tribunal. If the tenant was so considerate and acting for the benefit of the petitioner landlady, who is an aged person, it could hardly be expected that there would be arrears of rent outstanding despite notice having been served. If the tenant was so considerate and acting for the benefit of the petitioner landlady, who is an aged person, it could hardly be expected that there would be arrears of rent outstanding despite notice having been served. ( 15 ) THE Tribunal again merely mentions that adverse inference should not be drawn as a consequence of the lack of entry in the account of respondent No. 1 and there being entry in the account of respondent No. 2. Such an important aspect cannot be brushed aside. The fact that respondent No. 2 was treating it as a business expense itself seals the matter. Respondent No. 1 did not have any corresponding entry and, thus, the plea of there being some arrangement whereby respondent No. 2 was paying the rent on behalf of respondent No. 1 is only stated to be rejected. ( 16 ) THE Tribunal once again brushed aside the story of storage of goods by respondent No. 2 with respondent No. 1 as a helpful gesture. Some credence could have been given to this fact if such a plea has been set out in the written statement. This was not so. The plea was an afterthought once the real facts had been found out. ( 17 ) IN view of the aforesaid, I am of the considered view that the order of the tribunal suffers from patent error and erroneous exercise of jurisdiction and cannot be sustained. The order of the Tribunal dated 5. 5. 2005 is accordingly set aside and the order of the ARC dated 18. 8. 2004 is restored passing an eviction order against the respondents under Section 14 (l) (b) of the said Act in respect of the tenanted premises. The respondents are granted one month's time to vacate the tenanted premises. ( 18 ) THE petition is allowed leaving the parties to bear their own costs. Petition allowed.