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2014 DIGILAW 1302 (PNJ)

Kamlesh Rani v. Sumitra Devi

2014-09-16

RAKESH KUMAR JAIN

body2014
Rakesh Kumar Jain, J. 1. The tenant is in revision against the orders of both the Courts below by which she has been asked to vacate the demised premises. In short, the landlady-respondent No. 1 filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 against the petitioner seeking her ejectment from the shop in dispute alleging that it was let out to her by the husband of respondent No. 1 vide rent note dated 07.12.1983 @ `600/- per month besides house tax and the rate of rent at the time of filing of the petition was ` 1,370/- per month + ` 172.50/- house tax, in all `1542.50/-. The eviction was sought on the grounds that the petitioner is in arrears of rent w.e.f. 01.02.2004 till date @ ` 1,370/- per month + `172.50/- house tax and had sublet the demised premises to respondents No. 2 and 3 who are in independent control of their business being run under the name and style of M/s Fashion Print. 2. In reply, it was admitted by the petitioner that the demised premises was given on rent, vide rent note dated 07.12.1983, but denied the allegation of subletting as she had never parted with possession and works in the demised premises with her two sons, who also helps her in her business. She tendered the entire arrears of rent on the first date of hearing, therefore, the first ground of eviction became redundant. It is alleged that the petitioner had taken the shop in dispute from Ram Lal Sehgal in the year 1983 for her husband Satpal Taneja who had been in Germany for about five years and when he came back and was in search of a job, the shop in dispute was taken on rent for running the business of cloth merchant @ ` 600/- per month after executing the rent note on 07.12.1983. Satpal Taneja died on 15.02.2002. 3. On the pleadings of the parties, the following issues were framed:- "1. Whether the respondent is liable to be ejected from the demised premises, on the grounds, as alleged? OPP. 2. Whether the petitioner has not come to the court with clean hands? OPR. 3. Whether the petition is not maintain-able? OPR. 4. Relief." 4. 3. On the pleadings of the parties, the following issues were framed:- "1. Whether the respondent is liable to be ejected from the demised premises, on the grounds, as alleged? OPP. 2. Whether the petitioner has not come to the court with clean hands? OPR. 3. Whether the petition is not maintain-able? OPR. 4. Relief." 4. It is argued by learned counsel for the petitioner that respondent No. 1-landlady had accepted the rent from the petitioner vide receipts Ex.R17 to Ex.R21 which itself shows that she had accepted the petitioner as her tenant. The other evidence on record was not appreciated, that the petitioner is the sole proprietor of M/s Fashion Print and is in full control of the business being run by her sons, i.e. respondents No. 2 and 3 arrayed in this revision petition. He also argued that there is no evidence of complete parting with the possession by the petitioner. 5. On the other hand, learned counsel for respondent No. 1 has submitted that the evidence has been led to the effect that earlier, husband of the petitioner was in exclusive control of the business of M/s Fashion Print and after his death, respondent No. 2 is in control/possession of the same. 6. I have heard both the learned counsel for the parties and examined the record. 7. Before I advert to the arguments raised by learned counsel for the parties, it would be worthwhile to mention here that on 02.04.2014, at the time of issuance of notice of motion, it was recorded by this Court that the petitioner, besides arguing the case on merits, is willing to pay the market rent to the respondent-landlady. On 01.08.2014, counsel for the respondent-landlady had informed the Court that the petitioner is also having a shop on rent adjoining to the shop in dispute and has shifted her business. Counsel for the petitioner took time to seek instructions. The petitioner got the case adjourned twice in order to make the statement and, ultimately, requested that the case be heard on merits as the allegation made by the respondent-landlady about shifting of the business from the demised premises by the petitioner was denied. 8. Counsel for the petitioner took time to seek instructions. The petitioner got the case adjourned twice in order to make the statement and, ultimately, requested that the case be heard on merits as the allegation made by the respondent-landlady about shifting of the business from the demised premises by the petitioner was denied. 8. Counsel for the petitioner has submitted that though it is denied that the demised premises has been sublet, yet if it is presumed for the sake of arguments, respondent No. 1 had been receiving the rent and thus estopped from raising this issue. 9. This argument has no legs to stand in view of the judgment of this Court in the case of Ram Kishan v. Moti Ram and another, 2006(1) R.C.R. (Rent) 395 in which it has been held that if the subletting is without written consent of the landlord who had knowledge of it, but did not file suit for eviction of tenant for 10 years together, it does not amount to waiver or estoppel on the part of the landlord. 10. Both the Courts below have concurrently found that income tax return for the year 2000-2001 (Ex.R1), receipt of income tax return (Ex.R2/A) and the balance sheet (Ex.R4) clearly shows that Satpal was in full control over the business of M/s Fashion Print and nothing has been brought on record that Kamlesh Rani had ever assisted him in the business. After the death of Satpal, his son Anil Pal is in exclusive possession of the demised premises and the occasional visits by Kamlesh Rani would not prove that she is in exclusive possession and is in full control over the business of M/s Fashion Print. 11. In this view of the matter, the Courts below had relied upon the judgments of the Supreme Court in the case of Kala and another v. Madho Parshad Vaidya, 1998(2) R.C.R. (Rent) 279 : 1998 HRR 592 (SC), Bharat Sales Limited v. Life Insurance Corporation of India, 1998(1) R.C.R. (Rent) 272 : 1998(3) SCC 1 and Vishwanath v. Sumitra Devi, 2003(2) R.C.R. (Rent) 358 : 2003 HRR 702 wherein it has been held that if the son forms a firm and starts business in the shop to the exclusion of his father i.e. tenant, then he is liable to be evicted on the ground of subletting. It has been found by both the Courts below that the petitioner has failed to prove her exclusive possession and control over the business of M/s Fashion Print, whereas in the case of subletting, the basic ingredients is parting with possession of the rented property, by the tenant to the third party. In view of the aforesaid discussion, I have no hesitation to hold that the property in dispute has been sublet by the petitioner without the consent of the landlady and was thus rightly ordered to be vacated by the Courts below. Consequently, the present revision petition is hereby dismissed being denuded of any merit.