Kaushalaya Devi vs Devi Dayal and another

J.V. Gupta, J.—This is landlady''s revision petition whose ejectment application has been dismissed by both the authorities below.

The shop, in dispute, was let out to Devi Dayal on a monthly rent of Rs. 30/- for running a ration depot in the year 1966. Later on the rent was raised to Rs. 70/- per month. The landlady Kaushalya Devi sought the ejectment of her tenant from the shop, in dispute, inter alia on the ground that the tenant Devi Dayal had sublet the same to his son Chander Bhan who was in exclusive possession of the shop in dispute whereas Devi Dayal tenant was running his separate business in a shop owned by his wife. The second ground of ejectment was that the tenant had changed the user of the building. The same was let out for doing kiryana business whereas now the business of repairing radios was carried out therein. The stand taken by the tenant was that the premises had not been sublet, as alleged. Respondent No. 2, Chander Bhan, was his real son and he had joined hands with him in the business for the last more than 10 years. Both of them constituted a joint Hindu family. Therefore, the question of subletting did not arise. It was denied that there was any change of user, as alleged in the ejectment application The learned Rent Controller appointed a local commissioner vide order dated August 20, 1982, directing him to visit the spot and to report about the name of the occupant of the shop and also to report as to what business was being carried on in the demised premises. Accordingly, he filed his report dated August 23, 1982, wherein he stated:

That the subject matter of dispute is a shop where one Chander Bhan s/o Devi Dayal is running a Radio mechanic shop and he was found sitting and repairing a radio. This shop is being run under the style Chhabra Radios, Chhotta Bazar, Thaneshwar. There were shelves of wood on three sides, i e., on Eastern, Western and Northern walls in the shop and spare parts of Radio sets and a few new sets of transistors were found put in the shelves...

The learned Rent Controller took the view that no evidence had been adduced by the landlady to prove that the shop, in dispute, had been sublet by the tenant or Respondent No. 2. According to the learned Rent Controller, Chander Bhan, Respondent, was married in the year 1983 and prior to that, he was a bachelor and he used to reside with his parents. The presumption goes in favour of the Respondents that they were the members of the joint Hindu family. The plea of the change of user was also negatived. Consequently, the ejectment application was dismised vide order dated October 11, 1986. In appeal, the Appellate Authority affirmed the said findings of Rent Controller and, thus, maintained the order dismissing the ejectment application.

The learned Counsel for the landlady-Petitioner submitted that from the evidence on record, it was amply proved that the licence for repairing radios is in the exclusive name of Chander Bhan and it was he who was carrying on the business in the demised premises. Devi Dayal, Respondent, was running his own shop separately which is owned by his wife and that he was no more in occupation of the demised premises in any manner. The exclusive possession was that of Chander Bhan, Respondent. According to the learned Counsel, even if they were joint in residence and mess, there was no presumption that the business carried on by his son Chander Bhan was joint in any manner with his father Devi Dayal; particularly when evidence had been led that he was the sole proprietor of the business run in the name of Chhabra Radios. The plea taken by the tenant that in the rear portion of the shop goods belonging to the tenant Devi Dayal were lying was not substantiated, nor was it so found by the local commissioner in his report Thus, argued the learned Counsel, since the exclusive possession was that of Chander Bhan, it was clear case of subletting. In support of the contention, the learned Counsel relied upon Murthy M V. v. H. R. A. Controller 1985 (2) R. C. R. 536 (sic).; Sushma Malhotra v. Prem Nath 1986 (1) Rent C. R. 347; and Sunita Rani v. Subhash Chander (1986) 89 P. L. R. 172 .

On the other hand, the learned Counsel for the tenant submitted that since the father and the son formed a joint Hindu family, the question of subletting did not arise In support of the contention, the learned Counsel relied upon Jagan Nath v. Chander Bhan 1988 HAP 460 (ii) S. C., wherein it was observed that so long as the tenant retains the right to possession there is no parting with possession in terms of Clause (b) of Section 14(1) of the Delhi Rent Control Act According to the learned Counsel in the present case since the tenant had the right to retain the possession, there was no parting of the possession in terms of the statute and, therefore, the question of subletting did not arise The learned Counsel also referred to Mohinder Pal Singh v. Smt Bhupinder Kaur 1986 H. R. R. 67 and Gurbir Singh v. Ram Singh 1986 (1) Rent L. R. 280, to contend that where the father and the son form a joint Hindu family, the question of subletting did not arise.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on the record.

From the report of the local commissioner as well as from the other evidence on the record, it is amply proved that the tenant Devi Dayal is carrying on a separate business of kiryana in the name of Devi Dayal Chander Bhan. That shop is owned by the wife of Devi Dayal it appears that after taking the shop, in dispute, on rent in the year 1966, Devi Dayal has been carrying on his business therein, but later on in the year 1976, he shifted to his own shop owned by his wife and in the shop, In dispute, his son Chander Bhan started his own business of repairing radios. It could not be disputed that the licence for repairing radios is exclusively in the name of Chander Bhan. Rather it is in evidence that the tenant Devi Dayal does not know and do the work of radios repairs. Chander Bhan, Respondent, is the sole proprietor of that business run by the name Chhabra Radios. Though the stand taken by the tenant was that in the rear of the Shop, in dispute, his goods were lying and thus, he was in occupation of the demised premises, yet there is no cogent evidence to that effect on the record, nor any such report has been made by the local commissioner From the evidence, it is quite evident that the tenant Devi Dayal was not in occupation of the demised premises in any manner and it was only Chander Bhan, Respondent, who was in exclusive possession of the demised premises. The mere fact that the tenant''s son and he (the tenant) constituted a joint Hindu family and that they were joint in mess and residence, it did not mean that the business run by Chander Bhan, Respondent, was also a joint business. Since the tenant Devi Dayal is running his own shop separately and is no more in occupation of the shop, in dispute, where the business is being carried on by Chander Bhan, exclusively, it is a clear case of subletting by the tenant. The Supreme Court judgment in Jagan Nath''s case (supra), relied upon by the learned Counsel for the tenant has no applicability to the facts of the present case. In the said case, the father was running business with his son and the family was joint Hindu family. Therefore, it was held that it was difficult to presume that the father had parted with the possession to attract the provisions of Section 14(1) (b) of the above-mentioned Act. Moreover, therein, the premises, in question, were residential-cum-commercial and, therefore, it was observed in paragraph 7 of the judgment therein as follows:

After all, it has to be borne in mind that this is a residential-cum-commercial premises Jagan Nath was carrying on business in part of the building with his two sons. Jagan Nath had died, therefore, it will be just and proper to presume that they were carrying on business, though perhaps the stand of Jagan Nath was not always fair.

So, it was on the facts and circumstances of that case that the Supreme Court found that there was no question of subletting. As a matter of fact, the touch stone to find whether the premises had been sublet or not is the exclusive possession of the person to whom the premises are said to have been sublet In the present case, as observed earlier, Chander Bhan is in exclusive possession of shop, in dispute His father, Devi Dayal, has nothing to do with the same. He is running his own shop in kiryana which is owned by his wife. As a matter of fact, the father having his own shop, in order to occupy the shop, in dispute, has got the business of his son started in the name of Chhabra Radios In these circumstances, on the facts and circumstances of this case, the subletting is amply proved on the record by the oral as well as by the documentary evidence on the record. The view taken by the authorities below in this behalf was wholly wrong, illegal and misconceived. The mere fact that the father and his son were joint in residence and mess does not raise any presumption that the business in the name of Chhabra Radios was a joint Hindu family business; particularly when the evidence was to the contrary.

Consequently, this revision petition succeeds and is allowed with costs. The orders of the two authorities below are set aside. However, the Respondents are allowed three, months'' time to vacate the premise; provided all the arrears of rent, if any, are deposited with the Rent Controller within a month along with an undertaking, in writing, that after the expiry of the said period of three months, vacant possession of the premises would be handed over to the landlady and the rent for the said period will be paid every month regularly.