M/S T.P. Pall vs S. Harisimran Singh and Another

Indermeet Kaur, J.—Order impugned before this Court is the order dated 20.08.2007 vide which the learned Additional Rent Control

Tribunal (ARCT) had directed that the eviction petition filed by the landlord u/s 14(1)(b) read with Section 14(1)(j) of the Delhi Rent Control Act

(DRCA) be remanded back to the Additional Rent Controller (ARC) with a direction to the ARC to record evidence of the respondent/tenant to

establish that as to whether he is still in physical possession and control of the suit property with liberty to the landlord to lead evidence in rebuttal.

This order remanding the case back to the trial court is the subject matter of challenge in the present petition.

Record shows that an eviction petition had been filed u/s 14(1)(b) read with Section 14(1)(j) of the DRCA. The case set up by the landlord was

that the premises in dispute comprise of two portions i.e. half of which had been let out to Roop Chand Jewellers and second half in the tenancy of

T.P. Pall; contention being that T.P. Pall had sub-let his portion of the premises to Roop Chand Jewellers and Roop Chand Jewellers is alone in

occupation of the suit property and T.P. Pall had divested himself from the suit property; a case of sub-letting is made out.

Evidence had been led before the ARC. AW-1 was the landlord; in his cross-examination he has made certain categorical admissions which

have been correctly appreciated by the ARC; they were to the effect that T.P. Pall is continuing to pay rent of his portion till date through cheque;

the cheque in respect of other portion let out to Kriplani (Roop Chand Jewellers) is issued by them; the respondent (T.P. Pall) is carrying on the

business in his name and style in his own portion; electricity connection in this portion and bills of electricity are also being issued in the name of

T.P. Pall.

In this background, the learned ARC had recorded the fact finding that no case of sub-letting which has been made out; he had accordingly

dismissed the eviction petition u/s 14(1)(b) of the DRCA; no ground had been made out u/s 14(1)(j) also which is even otherwise not the

controversy before any Court.

The RCT in an appeal u/s 38 of the DRCA which appeal has be to heard only on a question of law had gone into the evidence recorded before

the ARC and had remanded the matter back to the ARC holding that it was for the tenant to prove as to whether he was in possession of the

premises or not.

6 The law of sub-letting as contained u/s 14(1)(b) of the DRCA places only an initial burden upon the landlord to make out a case of the exclusive

possession of the suit premises with the sub-tenant; onus then shifts upon the tenant to prove that it is not a case of sub-letting. In the present case,

the findings of fact have correctly been recorded by the ARC and there was no reason as to why the order of remand had been passed by the

RCT; even before this Court AW-1 is not wriggling out of his aforenoted admitted admissions made in his cross-examination.

In 134 (2006) DLT 369 Manbhari Devi v. Jaimat Rai Ashwani Kumar & Another where the RCT had upset the finding of fact recorded by the

ARC which hearing before the ARCT was to be on a question of law u/s 38 of the DRCA, the said finding was set aside. The Tribunal u/s 38 of

the DRCA is not a court of appeal on facts when there is no patent illegality in the said fact finding.

In (1999) 1 SCC 298 Thatchara Brothers and Another v. M.K. Marymol and Others where the matter had been remanded back by the High

Court to the trial Court for recording further evidence, the Apex Court had noted that if further evidence was not required, the order of remand

was liable to be set aside.

9 In the instant case, in view of clear and categorical evidence which has come on record and specifically the cross-examination of AW-1 wherein

he has himself admitted that the tenant i.e. T.P. Pall continues to be in occupation of the suit premises; he continuing to pay rent of his portion of the

premises; electricity bills continue to be issued in his name and he is still retaining possession of the suit premises, the question of sub-letting does

not arise.

10 In these circumstances, the order of the ARC dismissing the eviction petition is up-held and the order of remand passed by the RCT for

recording fresh evidence is set aside. Petition disposed of.