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2014 DIGILAW 2892 (DEL)

Santosh Kumar Jain v. Prem Prakash

2014-11-07

VALMIKI J.MEHTA

body2014
Judgment 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. 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. 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. 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.