Elofic Sales India v. Punjab National Bank

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

By this petition, the petitioner has assailed the order of learned Additional Rent Control Tribunal (ARCT), Delhi, dismissing the appeal of the petitioner against the order of learned Additional Rent Controller (ARC), Delhi.

2. Brief facts, relevant for the purpose of deciding this petition, are that the petitioner filed an eviction petition against the respondent/tenant on the ground that the respondent had sublet the premises to Dr. T.N. Bhan (deceased) without written consent of the petitioner (landlord).

3. Learned ARC after recording the evidence of both the parties and considering the statement made by the witness, Mr. M.S. Kanwal, of the petitioner, in an earlier eviction petition No. E-361/89, decided on 23.05.2000, came to conclusion that front portion of the shop in question was sub-let by 2010:DHC:1937 the respondent with the consent of the previous landlord. After the death of sub tenant Dr. T.N Bhan, his legal heirs were in possession of the suit premises. The learned ARC dismissed the eviction petition filed by petitioner holding that it was not a case of illegal sub-letting since sub-letting was with the consent of the landlord. Learned ARCT, again re-appreciated the evidence and came to the same conclusion and dismissed the appeal.

4. the only issue raised before this Court is that the subletting, even if it was with the consent of the previous landlord, was a good ground for eviction as written consent required under Section 16(2) of the Delhi Rent Control (DRC) Act, has not been proved nor pleaded by the tenant. It was also argued that oral consent or acquiescence by the landlord, would not disentitle the landlord from getting the premises vacated on the ground of sub-letting since it was mandatory that the consent should be in writing.

5. It is undisputed that the petitioner is subsequent purchaser of the property and when the petitioner purchased the property Dr. T.N. Bhan was already a sub tenant in the premises. The respondent in its defence has taken the stand that Dr. Bhan was sub-tenant in the premises for more than 40 years of the filing of the eviction petition. The present eviction petition was filed by the petitioner in October, 1999. The petitioner in his eviction petition had not stated the date of creation of sub tenancy. The petitioner had purchased this property in 1973 along with tenant and sub tenant. The petitioner did not place on record the documents of purchase to show if the previous landlord had made any recital in the transfer documents in respect of the sub-tenant and when the sub-tenant was inducted and if the sub tenant was inducted with consent or without his consent in writing.

6. The statutory position in respect of sub-tenant inducted prior to 9th June, 1952 and after 9th June, 1952 is different. In case of a sub-tenant inducted prior to 9.6.1952, a written consent was not necessary and in case of a sub-tenant inducted after 9.6.52, when the DRC Act came into force, a written consent under Section 16(2) of the Act was made necessary. It was for the petitioner to prove the date of induction of sub-tenant and to prove that the sub-tenant was inducted without consent of the previous landlord. The previous landlord in this case was not examined to give testimony whether he had given written consent or not. It was within the specific knowledge of the previous landlord if he had given consent in writing or not. Giving of consent for inducting sub tenant was admitted by petitioner’s own witness in the previous eviction petition.

7. In the previous eviction petition No. E-361/1989 Mr. M.S. Kanwal appeared as a witness of the petitioner and testified as PW-1 and in his examination he had categorically stated that front portion of the shop was sub-let by Punjab National Bank/respondent to Dr. T.N. Bhan with the consent of the previous landlord. The learned ARC had no reason to believe that this consent was oral because under law the sub-tenancy could be created only with the written consent. Once the witness of the petitioner had testified in the court that the tenancy was created with the consent of the previous landlord, an eviction petition on the ground of sub-letting could only be filed if later on it was discovered that this consent was not in writing and was only oral and the sub-tenancy was created after 9th June, 1952.

8. Thus onus of proving these two facts were on the petitioner. A perusal of the record would show that the petitioner did not discharge the onus of proving either of the two facts. It was not proved when Mr. T.N. Bhan was inducted as sub-tenant. Neither the previous landlord was examined to testify that he had not given written consent and had given only oral consent. Another factor which goes against the petitioner is that Mr. T.N. Bhan was a sub-tenant for around more than 40 years prior to filing of eviction petition. The long sub tenancy of Mr. T.N Bhan, which admittedly was created with the consent of the previous landlord, would go to show that this consent was in accordance with law and not contrary to law and I, therefore, consider that the ARC and learned ARCT, Delhi, rightly came to the conclusion that it was not a case of unlawful sub-letting.

9. The petitioner has relied on various judgments about the sub-letting. I consider that none of these judgments are helpful to the petitioner as the petitioner had failed to discharge the basic onus of proving the date of creation of sub-tenancy and the fact that the consent as deposed by the witness of the petitioner in earlier petition meant only oral consent and not written consent given by the previous landlord.

10. I, therefore, find no merit in the petition. The petition is therefore hereby dismissed. April 8, 2010 SHIV NARAYAN DHINGRA, J. acm