Hari Chand v. Rajender Nath

judgment. CM No.64/2002

Interim orders are vacated.

Application stands disposed of.

MOOL CHAND GARG, J NOVEMBER 22, 2010

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* IN THE HIGH COURT OF DELHI AT NEW DELHI + RC.S.A.No.16/2002 % Reserved On: 11.11.2010 Decided On: 22.11.2010 HARI CHAND (DECEASED) THRU LRS …. Appellants Through: Mr.Ajay Veer Singh and Mr.Nitin Jain, Advocates Versus RAJENDER NATH & ORS …. Respondents Through: Mr.Arun Kumar Varma and Ms.Mansi Wadhera, Advocates CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? No. 2. To be referred to the reporter or not? No. 3. Whether the judgment should be reported in the Digest? Yes. : MOOL CHAND GARG, J. 1. This second appeal filed under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the DRC Act"), which provision now stands excluded from the Act after the amendment of the Act in 1988, hinges upon the plea that running of business by the deceased appellant in the tenanted shop on the ground floor of property bearing No.97, Main Bazar, Najafgarh, New Delhi (hereinafter referred to as "the suit property") through his son Surinder Kumar was not an act of subletting. It was pleaded that the suit property was let out to HUF of which the deceased appellant was the Karta and, therefore, the business being run by him along with his son Surinder Kumar would not constitute an act of parting with the possession. It was submitted that the deceased appellant never divested himself of the legal possession of the suit property. 2. Both the courts below i.e. the court of the Additional Rent Controller (for short "the ARC") as well as the first appellate court i.e. the Additional Rent Control Tribunal (for short "the ARCT") have returned a concurrent finding that the suit property was let out individually to the deceased appellant and in view of his own admission that the suit property being now used exclusively by his son Surinder Kumar, it was a case of subletting/parting with the possession without their being any consent obtained by the deceased appellant in writing from the landlord and thus, attracts the mischief of the provisions contained under Section 14(1)(b) of the DRC Act. Consequently, the eviction order passed by the learned ARC against the appellant was justified. The aforesaid finding was further confirmed by the learned ARCT. 3. According to the appellant, the order passed by the learned ARC and the judgment rendered by the ARCT are not sustainable in law for the following amongst other reasons:- (i) The landlord had given the address of the tenant/appellant in the eviction petition of the shop in dispute. (ii) The landlord had also issued notice dated 22.12.1984 of demand of rent and termination of tenancy to the appellant/tenant at the address of the shop in dispute. (iii) The notice was also served on the appellant at the shop in dispute. (iv) The appellant and his son Surinder Kumar have been residing in house No. 1478, Najafgarh, Delhi. (v) It was stated in para 5 of the Eviction Petition that the shop in question was being used for "general merchandise business", where two persons can work together. (vi) The shop in question was duly registered under the Delhi Shop and Registration Act in which the name of the establishment is given as "M/s Harichand Surinder Kumar and name of the occupier/employer is given as "Hari Chand son of Kanshi Ram" exhibited as RW-1. (vii) There is no evidence on record to show that besides Surinder Kumar any third person was working in the shop and in these circumstances, the courts below should have held that the only legal inference that can be drawn from the circumstances of the case is that the possession of the said shop was not parted with by the appellant to his son Surinder Kumar. 4. The appellant has relied upon the following judgments:- (i) Hazari Lal Vs. Gyani Ram & Ors., 1972 RCR 74; (ii) M/s Delhi Stationers Vs. Rajender Kumar, AIR 1990 SC 1208; (iii) Smt.Krishnawati Vs. Sh.Hans Raj, AIR 1974 SC 280; (iv) Chander Kishore Sharma & Anr. Vs. Kampawati, AIR 1984 Delhi 14; (v) Sumita Singh Vs. Nahar Si