Prem Prakash vs Santosh Kumar Jain

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 11106 OF 2017 (Arising out of Special Leave Petition (C) NO. 7149 OF 2015)

Prem Prakash .... Appellant(s)

Versus

Santosh Kumar Jain & Sons (HUF) and Another .... Respondent(s)

JUDGMENT

R.K. Agrawal, J.

1) Leave granted.

2) This appeal is directed against the final judgment and order

dated 07.11.2014 passed by the High Court of Delhi at New

Delhi in C.M. (M) No. 478 of 2014 whereby learned single

Judge of the High Court allowed the eviction petition filed by

the original owner-Respondent No. 1 herein while setting aside

Signature Not Verifiedthe judgments and orders dated 08.09.2011 and 24.03.2014 Digitally signed by SONALI SAUND Date: 2017.08.30

passed by the Court of Additional Rent Controller, North Delhi 16:48:29 IST Reason:

and the Rent Control Tribunal, Delhi, respectively.

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3) Brief facts:

(a) Shri Santosh Kumar Jain- Respondent No. 1 herein filed

an application for increase of standard rent and eviction of

tenant being Eviction Petition No. 956 of 2007 before the Rent

Controller, Delhi under Section 14(1)(a) and (b) of the Delhi

Rent Control Act, 1958 (in short ‘the DRC Act’) on the ground

that the premises in question, i.e., Shop No. 16 (Private No.

15), Gali Kunjas, Ward No. IV, Dariba Kalan, Delhi 110 006

has been sub-let, assigned and otherwise parted with

possession illegally by the original tenant-the appellant herein

to his sub-tenant-Respondent No. 2 herein, who is in the

unauthorized occupation of the same and is carrying on his

own independent business and also that the original

tenant-the appellant herein is in arrears of rent from

01.01.2002.

(b) Learned Additional Rent Controller, North Delhi, vide

judgment and order dated 08.09.2011 in E.No. 02/2009

dismissed the claim of eviction while directing the appellant

herein to deposit the rent as agreed for preceding 3 (three)

years from the date of filing of the eviction petition.

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(c) Being aggrieved by the order dated 08.09.2011,

Respondent No. 1 went in appeal before the Rent Control

Tribunal, Delhi. The Rent Control Tribunal, vide judgment

and order dated 24.03.2014 in RCT-203/2013/2011,

dismissed the appeal.

(d) The owner-Respondent No. 1 herein, aggrieved by the

judgments and orders dated 08.09.2011 and 24.03.2014, filed

a petition being C.M. (M) No. 478 of 2014 before the High

Court. Learned single Judge of the High Court, vide judgment

and order dated 07.11.2014, allowed the petition filed by the

owner-Respondent No. 1 herein.

(e) Aggrieved by the judgment and order dated 07.11.2014,

the appellant has preferred this appeal by way of special leave

before this Court.

4) Heard Mr. Braj K. Mishra, learned counsel for the

appellant-tenant and Ms. Bharati Tyagi, learned counsel for

Respondent No.2 and Mr. Satish Kumar Jain – the original

owner, Respondent No. 1 herein, argued in person.

3 Point for consideration:

5) The only point for consideration before this Court is

whether in the present facts and circumstances of the case the

order of eviction passed by the High Court was just and

proper?

Rival Submissions:

6) Learned counsel for the appellant-the tenant contended

before this Court that Respondent No. 2 herein was looking

after the entire small business affairs of the appellant herein

and is using and occupying the suit premises in the capacity

of an employee. Learned counsel further contended that the

appellant herein was paying commission by way of

cash/cheque or as per the convenience and outcome of the

business to Respondent No. 2 in lieu of his services. It is

further contended that Respondent No. 2 herein got the

business cards printed for the promotion of the business of

the appellant herein. The appellant herein is the lawful tenant

and has never parted with the possession or sublet the suit

property either to Respondent No. 2 or to any other person

and no notice of demand as alleged has been served upon him.

4

Learned counsel further contended that Respondent No. 2 is

only a friend of the appellant herein and for this reason only

he was employed and allowed to sit in the suit premises and

no business was being carried out in the name of M/s R.R.

Jewellers from the suit premises by Respondent No. 2 who is

alleged to have changed the firm’s name as “M/s Ashima

Jewellery” later on. It was further contended that even if the

original owner was having knowledge of sub-tenancy of the

suit premises in December, 2001, no action was initiated by

him to vacate the same from the sub-tenant and hence he

failed to prove that Respondent No. 2 is in exclusive

possession of the suit premises and the appellant herein has

divested himself from the physical and legal possession of the

same. Learned counsel for the appellant herein finally

contended that the present petition is not maintainable and

the High Court has committed a grave illegality in allowing the

eviction petition.

7) Shri Santosh Kumar Jain-the original owner, Respondent

No. 1 herein argued in-person and submitted that the

5 appellant herein had sub-let, assigned and parted with the

possession of the suit premises in favour of Respondent No. 2

herein, who is in illegal and unauthorized possession of the

same. Respondent No. 1 further submitted that though the

appellant herein has claimed that the Respondent No. 2 was

his employee and was being paid commission for the job

booked by him, no document has been produced on record to

show that Respondent No. 2 was being paid any salary or

commission by the appellant. Respondent No. 1 further

stressed upon the point that the sub-tenant has admitted to

have fixed a bill board under the name and style of “M/s R.R.

Jewellers” in the suit premises. Further, the sub-tenant of the

appellant herein got printed visiting cards in his name with

the address of the suit premises and the very same fact has

been admitted in the statement given by him. Respondent No.

1 further submitted that, undoubtedly, the onus of proving the

presence of other person in the suit premises is on the owner

and once it is proved, it shifts to the tenant to disapprove the

same. Respondent No. 1 finally submitted that High Court

was right in allowing the eviction petition while setting aside

6 the judgments and orders passed by the Court of Additional

Rent Controller and Rent Control Tribunal holding that the

suit premises was sub-let and the appellant herein had parted

with the possession and prayed that no interference is sought

for by this Court in the case.

Discussion:

8) It would be appropriate to reproduce Section 14 of the

DRC Act in order to arrive at a conclusion in the case which is

as under:-

“14. (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:-

(a) that the tenant has neither paid nor tendered the (whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882.

(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;…..” [

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9) Respondent No. 1 herein-the original owner, filed an

eviction petition on the ground that the property in question

has been sub-let by the original tenant-appellant herein to the

sub-tenant i.e., Respondent No. 2. The tenant denied the

assertion that the property has been assigned to the

sub-tenant stating that Respondent No. 2 is his friend and is

an employee who attends his customers in his absence. It was

further explained that Respondent No. 2 was working on

commission basis in order to send customers to the appellant

herein who was having a shop in an interior location from

where he does polishing and cleaning work of silver items and

for that purpose only he was allowed to sit in the suit

premises.

10) During examination, it has been admitted by the owner

that the first and only rent was received on 26.02.2002 for the

period 01.02.2001 to 31.12.2001 from the tenant. It is evident

from the record that a legal notice dated 10.05.2002 was

served upon the appellant herein that he is in arrears of rent

from 01.01.2002. Though the appellant herein-the original

8 tenant has admitted the relationship of landlord and tenant

between the parties but has denied any sub-letting to any

other person. The tenant has his small workshop nearby the

suit shop where he personally does the work in addition to

attending the customers in the premises in question. It is the

case of the appellant that Respondent No. 2 looks after the

customers of the appellant herein in his absence but the fact

of being paid by way of commission or salary has not been

proved as no evidence have been brought to substantiate this

claim. It is Respondent No. 2 whose duty is to open and close

the shop in his absence and to hand over the keys to the

appellant herein who was residing along with his family on the

first floor of the aforesaid property at the relevant time.

11) Respondent No. 1-the original owner has placed on

record two business cards which do not contain the name of

the appellant herein at all, showing the same address as that

of the property in question in order to prove that Respondent

No. 2 was doing independent business of diamond jewellery,

gold and stones. Out of two cards, one card is in the name of

9 Respondent No. 2 with the printing “Ashima Jewellery,

Diamond Jewellery, Gold & Stones”. Respondent No. 2 has

admitted by way of filing an affidavit that he was doing the

business of manufacturing of diamond jewellery, silver articles

and also silver fancy articles. He has also admitted the

printing of the cards placed on record for the purpose of

placing orders at the said address. He admitted to have doing

business in the name and style of M/s Ashima Jewellary but

denied the claim that earlier he was doing the business in the

name and style of M/s R.R. Jewellers. It was further admitted

that when he started to sit in the suit property, a bill board in

the name of M/s R.R. Jewellers was fixed in the suit property

in the year 1996.

12) A bare perusal of the visiting card of M/s Ashima

Jewellery having the name of Respondent No. 2 clearly proves

that the sub-tenant was neither an employee nor was looking

after the customers of the appellant herein in his absence but

he was carrying on his personal business under such name.

There is no point in denying the fact that why a

1 tenant will allow a person, who is working under him, to print

visiting cards in his (sub-tenant) name for the property in

question.

13) Further, the other visiting card is having the name of

“M/s R.R. Jewellers”. The alleged sub-tenant has denied the

claim in the affidavit filed before the courts below that earlier

he was doing the business in the name and style of M/s R.R.

Jewellers. The respondent-owner has brought on record the

list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.)

Ltd. wherein for R.R. Jewellers, the address mentioned is that

of the suit property and the phone number is exactly the same

as mentioned on the business card of M/s Aashima Jewellery”

i.e., ‘3901361’. Respondent No. 2 has admitted the fact of

doing business in the name of M/s Aashima Jewellery” which

is also evident from the business card used by him having the

address of the suit property and the telephone number

‘3901361’ whereas he denied to have worked under the name

and style of M/s R.R. Jewellers but the very fact is falsified by

the evidence in the form of subscribers list of Delhi Sanchaar

11 Sewa wherein the same telephone number, i.e., ‘3901361’ has

been given. Meaning thereby, Respondent No. 2 was doing

business in the suit premises independently of the appellant

herein.

14) Undoubtedly, the initial burden to prove that the

sub-tenant is in exclusive possession of the property is on the

owner, however, the onus to prove the exclusive possession of

the sub tenant is that of preponderance of probability only and

he has to prove the same prima facie only and if he succeeds

then the burden to rebut the same lies on the tenant.

15) In this regard, it is appropriate to quote a decision of this

Court in Associated Hotels of India Ltd., Delhi vs. S.B.

Sardar Ranjit Singh AIR 1968 SC 933 wherein it was held

that when eviction is sought on the ground of sub-letting, the

onus to prove sub-letting is on the landlord. If the landlord

prima-facie shows that the occupant who was in exclusive

possession of the premises let out for valuable consideration,

it would then be for the tenant to rebut the evidence. 1

16) Again, in Kala and Anr. vs. Madho Parshad Vaidya,

(1998) 6 SCC 573, this Court reiterated the very same

principle. It was observed that the burden of proof of

sub-letting is on the landlord but once he establishes parting

of possession by the tenant to third party, the onus would

shift on the tenant to explain his possession. If he is unable to

discharge that onus, it is permissible for the court to raise an

inference that such possession was for monetary

consideration.

17) In Vaishakhi Ram & Ors. vs. Sanjeev Kumar

Bhatiani (2008) 14 SCC 356, it was held as under:-

“21. It is well settled that the burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting. Reliance can be placed on the decision of this Court in Joginder Singh Sodhi v. Amar Kaur. Therefore, we are in full agreement with the High Court as well as the courts below that since Appellants 2 to 4 had been in exclusive possession of the suit shop and Appellant 1 could not prove that it was not a case of sub-letting, the suit shop had been sub-let by Appellant 1 in favour of Appellants 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of sub-letting.” 1

18) Sub-tenancy or sub-letting comes into existence when

the tenant gives up possession of the tenanted

accommodation, wholly or in part, and puts another person in

exclusive possession thereof. This arrangement comes about

obviously under a mutual agreement or understanding

between the tenant and the person to whom the possession is

so delivered. In this process, the landlord is kept out of the

scene. Rather, the scene is enacted behind the back of the

landlord, concealing the overt acts and transferring possession

clandestinely to a person who is an utter stranger to the

landlord, in the sense that the landlord had not let out the

premises to that person nor had he allowed or consented to

his entering into possession of that person, instead of the

tenant, which ultimately reveals to the landlord that the

tenant to whom the property was let out has put some other

person in possession of that property. In such a situation, it

would be difficult for the landlord to prove, by direct evidence,

the contract or agreement or understanding between the

tenant and the sub-tenant. It would also be difficult for the

landlord to prove, by direct evidence, that the person to whom

1 the property had been sub-let had paid monetary

consideration to the tenant. Payment of rent, undoubtedly, is

an essential element of lease or sub-lease. It may be paid in

cash or in kind or may have been paid or promised to be paid.

It may have been paid in lump sum in advance covering the

period for which the premises is let out or sub-let or it may

have been paid or promised to be paid periodically. Since

payment of rent or monetary consideration may have been

made secretly, the law does not require such payment to be

proved by affirmative evidence and the court is permitted to

draw its own inference upon the facts of the case.

19) In the present facts and circumstances of the case, we

are of the opinion that the original owner-respondent No. 1

herein has proved beyond doubt that the property is in

exclusive possession of the sub-tenant and the appellant

herein has not been able to deny the claim of sub-tenancy in

favour of Respondent No. 2. The absence of evidence and

failure to discharge the onus lay heavy on appellant and there

could be no presumption other than that the suit premises

1 had been sublet and parted with possession by the appellant

herein to the Respondent No. 2.

Conclusion:-

20) In view of the foregoing discussion, we are of the

considered opinion that the High Court was right in setting

aside the orders passed by the lower courts. We do not intend

to interfere in the order passed by the learned single Judge of

the High Court. There is no merit in this appeal and the

appeal is, therefore, dismissed with no order as to costs.

...…………….………………………J. (R.K. AGRAWAL)

…....…………………………………J. .

(ASHOK BHUSHAN)

NEW DELHI;

AUGUST 30, 2017.

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