IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : DELHI RENT CONTROL ACT. Date of Judgment: CM(M) 1549/2010. Mr.Girish Aggarwal, Adv.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : DELHI RENT CONTROL ACT Date of Judgment: CM(M) 1549/2010 VIJAY KUMAR GOEL versus Through... Petitioner Mr.Girish Aggarwal, Adv. SHIV CHARAN Through... Respondent Mr. Rohit Madan, Adv. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR INDERMEET KAUR, J. (Oral) 1 Order impugned before this Court is the order dated passed by the Additional Rent Control Tribunal (ARCT) which had reversed the finding of the Additional Rent Controller (ARC) dated Vide order dated , the eviction petition filed by the landlord Vijay Kumar Goel seeking eviction of his tenant Shiv Charan on the ground under Section 14 (1)(b) of the Delhi Rent Control Act (hereinafter referred to as the DRCA ) on the ground of sub-letting; contention being that the original tenant had parted with possession of the suit premises in favour of M/s Century Plastic had been decreed. The impugned judgment had reversed this finding; it had dismissed the eviction petition. 2 Record shows that the disputed premises comprise of first floor consisting of two big halls, glazed chajja abutting toward Gali Charkha Walan and a glazed verandah towards Chawri Bazar and a bath and WC

2 forming part of premises No , Ward No. VI, Chawri Bazar, Delhi as depicted in red colour in the site plan filed in the trial Court. Contention of the landlord was that the tenant Shiv Charan had parted with possession of the suit premises in favour of M/s Century Plastic. 3 Needless to state that in the written statement these contentions were refuted; the tenant had stated that he is only the sole selling agent of M/s Century Plastic; he denied that there was any subletting; contention being that he was carrying on commission business and was the selling agent of M/s Century Plastic. 4 Oral and documentary evidence had been led by the respective parties. Seven witnesses were examined on behalf of the landlord and on behalf of the tenant one witness had come into the witness box. From the evidence both oral and documentary, it was proved on record that Sheela Gupta was a sole proprietor of M/s Century Plastic. The ARC was of the view that M/s Century Plastic being the proprietorship concern of Sheela Gupta who was the wife of Shiv Charan yet the documentary evidence i.e. telephone connection and the electricity bills showing that the same were at the address of the suit premises which was in the name of M/s Century Plastic, the corollary drawn by the ARC was that Shiv Charan had parted with possession of the suit premises in favour of M/s Century Plastic; ground of subletting under Section 14 (1)(b) of the DRCA had been proved. The testimony of RW-1 had been rejected; the Court was of the view that although the oral testimony of RW-1 was to the effect that there was no subletting and he was merely doing the business of commission agent of M/s Century Plastic which was the business of his wife yet and although the factory of the wife was located at Wazir Pur but the fact that the wife was the sole proprietor of M/s Century Plastic and Century Plastic was functioning from the demised premises, a case of subletting was made out in favour of the landlord. Photographs Ex. AW-7/1 and Ex. AW-7/3 showing the board of M/s Century Plastic in the suit premises was also a relevant fact noted by the ARC; the income tax returns filed by the tenant had however been rejected. 5 The ARCT had reversed this finding. The ARCT was of the view that although admittedly M/s Century Plastic had its board affixed on the tenanted premises and the tenant Shiv Charan had also admitted that the plastic material and goods were being stored in the suit premises; further the telephone connection was also in the name of Century Plastic but these facts

3 in the instant scenario do not make out a case of subletting; it is not a case where the original tenant Shiv Charan has completely divested himself from the physical possession of the suit premises; the ARCT has noted that in the oral testimony of both AW-1 as also RW-1 it had come on record that the premises were being opened and closed by Shiv Charan; Shiv Charan was carrying out the business of commission agent; even presuming that M/s Century Plastic had stored its goods in the suit premises, it was only for the purpose of sale of the said goods by Shiv Charan who was acting as a commission agent of the business of his wife i.e. M/s Century Plastic. 6 It is an admitted fact that Shiv Charan and Sheela Gupta (proprietor of M/s Century Plastic) are husband and wife and they share cordial relations; it is not as if they are an estranged couple; it was in this background that the ARCT has rightly noted that merely because M/s Century Plastic is the sole proprietorship concern of the wife of the tenant but it does not mean that the physical and legal possession of the suit premises had been parted with in favour of Sheela Gupta; Shiv Charan continued to retain control over the suit premises; in fact he was carrying out his business of commission agent i.e. sale of goods of M/s Century Plastic from the suit premises. This was further substantiated and fortified by the documents placed on record by Shiv Charan which included the income tax returns for the assessment years Ex. RX and Ex. RX-1 which had evidenced that he had earned income by way of a commission from M/s Century Plastic; this evidence was illegally ignored by the trial Court and was rightly relied upon by the appellate Court. Shiv Charan was storing and selling the goods of his wife and was charging commission for the sale being carried out by him. 7 The Supreme Court in AIR 1974 SC 280 Smt. Krishnawati Vs. Shri Hans Raj while dealing with the case of subletting where the allegation was that the wife, the original tenant had sublet the premises to her husband Sohan Sinch who was carrying out the business of a chemist, had rejected the argument that it was a case of subletting. In an eviction petition which is founded on the ground of subletting, it is well settled that onus to prove subletting is on the landlord; if the landlord prima-facie shows that the occupant who was in exclusive possession of the premises had let out the premises for valuable consideration, it would then be for the tenant to rebut the evidence. In the present case, the evidence which has come on record clearly shows that although Sheela Gupta is the sole proprietor of M/s Century Plastic but the documentary evidence has clearly established that Shiv Charan continued to retain the physical possession of the suit premises;

4 he was opening and closing the shop; his income tax returns showed that he had earned commission agent income from the sale of the plastic goods of M/s Century Plastic; he was in control of the premises; question of his subletting or parting with possession in favour of a sub-tenant did not arise. 8 The ingredients necessary to be established by the landlord to make out a ground of sub-letting have been reiterated time and again. Section 14 (1) (b) is relevant; it reads as under:- 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:- (a) XXXXXXXXXXXXX (b) That the tenant has, on or after the 9th day of June, 1952, sub-let, 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; 9 It is well settled that to make out a case for sub-letting or parting with possession, it means giving of possession to persons other than those to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant; as long as the tenant retains the legal possession himself, there is no parting with possession in terms of Section 14 (1)(b) of the Act. The word sub-letting necessarily means transfer of an exclusive right to enjoy the property in favour of the third party. In (1988) 1 SCC 70 Shalimar Tar Products Ltd. Vs. H.C. Sharma, the Apex Court had noted that to constitute a sub-letting, there must be a parting of legal possession i.e. possession with the right to include and also right to exclude other and whether in a particular case, there was subletting or not was a question of fact. 10 Applying the said test to the facts of the instant case, it can safely be said that the impugned order suffers from no infirmity. It has noted in the correct perspective both factual and legal position. Petition is without any merit. Dismissed.

5 Sd./- INDERMEET KAUR, J FEBRUARY 09, 2012