JUDGMENT
Arun Madan, J.
(1) In this second appeal filed by the tenants the question in dispute falls in a very narrow compass but first brief narration of the facts for the disposal of this appeal is essential.
(2) The respondents/landlords filed the eviction petition against the appellants M/s. Chic International (P) Ltd. and others invoking Clause (b) of proviso of Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (in short the ‘Act’) for recovery of possession of premises comprising of eighth floor flat bearing No. 802, Eros Apartments, at the property No. 56 Nehru Place, New Delhi.
(3) It is alleged that the premises were let to respondent No. 1- M/s. Chic International (P) Ltd. with effect from 1st December, 1976 at a monthly rent of Rs. 2102.10 vide a written agreement. It is further alleged that during the subsistence of tenancy first appellant changed its nomenclature from M/s. Chic International (P) Ltd. to M/s. Chic Travels (P) Ltd. It is further alleged that the said appellants subsequently during the subsistence of tenancy have sublet, assigned or otherwise parted with the possession of the premises to appellant No. 3 M/s. Kesha Sales Pvt. Ltd. and to some other unknown person without obtaining consent in writing of the landlords.
(4) The eviction petition was contested by the appellants/tenants by filing the written statement before the Additional Rent Controller, Delhi wherein they controverter the stand taken by the landlords/respondents. In reply to para 18(a)(i), the tenants alleged as under:- “PARA18(a)(i) of the application is not admitted. As stated above the respondents have not sublet, assigned or otherwise parted with possession of the premises in suit or any part thereof to anyone else. It is submitted that the premises in suit were taken on rent by respondent No. 2 (present appellant No. 2). Subsequently the names of M/s. Chic International Pvt. Ltd. respondent No.1 was changed to M/s. Chic International Pvt. Ltd. respondent No. 2 and the Registrar of Companies duly issued fresh certificate of incorporation of the change of the name. Since then M/s. Chic Travels Pvt. Ltd. respondent No. 2 started paying rent to the petitioners and the petitioners have been accepting the said payments from M/s. Chic Travels Pvt Ltd. It is submitted that M/s. Kesha Sales (P) Ltd. respondent No. 3 is one of the sister concern of the tenants and they have been allowed to use a portion of the premises in suit for office purposes as a mere licensee and they have no right, title or interest in the tenancy premises. The premises have neither been sublet, assigned or parted with possession to the respondent No. 3.”
(5) As would be apparent from above, the contention of the appellants is that M /s. Kesha Sales (P) Ltd. (appellant No. 3) is one of the sister concern of the tenants and in that capacity they have been allowed to use a portion of the premises in suit for office purposes as a mere licensee in the tenanted premises. From the perusal of the written statement I find that the first two appellants nowhere placed before the Additional Rent Controller, Delhi as to in what capacity appellant No. 3 was inducted as licensee to use a portion of the premises in suit, particularly when no consent in writing had been obtained from the landlords. The mere fact that appellant No. 3 had been permitted to use a portion of the premises in suit for office purposes without obtaining the express consent in writing of the landlords which is contrary to the statutory provisions envisaged in Section 14(1)(b) of the Act clearly establishes the act of subletting on the part of appellants 1 and 2. After going through the pleadings of the parties, the Additional Rent Controller, Delhi while admitting the presence of appellant No. 3 in the suit premises did not discuss as to in what capacity the premises had been sub-let, assigned or parted with the possession by appellant Nos. 1 and 2 in favor of appellant No. 3. The learned Additional Rent Controller further recorded erroneous finding that there was no finding on the record to show any payment of rent or licensee fee by appellant No. 3 to appellant No. 2. In view of this the Additional Rent Controller held that the premises had neither been sub-let, assigned or otherwise parted with the possession of a portion of the premises to appellant No. 3.
(6) Against the aforesaid order, the respondents/landlords preferred an appeal before the Rent Control Tribunal, Delhi and the Rent Control Tribunal in the impugned judgment has observed that it is settled law that initial onus of proving that the demised portion or any part thereof is in possession of some person other than the tenant lies on the landlord. But once the landlord proves the presence of some third person in the demised portion or a part thereof, the burden shifts on the tenant to explain the presence of such third person. In my view appellant No. 3 is an independent legal entity being a company. It was for the tenant to explain as to in what circumstances the said portion of the premises had been assigned or parted with possession to third person viz. appellant No. 3. Both the appellant were not successful in proving the presence of appellant No. 3 in the suit premises to whom the premises had been sub-let in the guise of alleged license. In affirmation of the act of sub-letting, the appellant No. 3 had voluntarily tendered the rent to the landlords for the months of October and November, 1987 vide letter Ex. AW2/1. The said tender of rent was not accepted by the landlords who had promptly refused to accept the rent tendered through the letter dated 9th December, 1987.
(7) On the basis of the above evidence and the pleadings of the parties, the Rent Control Tribunal came to the conclusion that the presumption of sub-letting raised in favor of the landlords becomes stronger since there was no cogent evidence on the record to rebut this presumption by the tenants. In this view of the matter, the Rent Control Tribunal has observed that the ground of eviction contemplated under Clause (b) of proviso to Sub-section (1) of Section 14 of the Act is made out in this case and consequently reversed the findings of the Additional Rent Controller and instead passed an eviction order under Section 14(1)(b) of the Act against the respondent.
(8) Aggrieved by the aforesaid order of the Rent Control Tribunal, the appellants have preferred this second appeal. During the course of hearing, learned Counsel for the appellants strongly argued that from the evidence on record no case of sub-letting is made out against the appellants. In support of his contention, he had drawn my attention to the reply to para 18(a)(i) of the eviction petition filed before the Additional Rent Controller, Delhi wherein it is contended that respondent No. 3/ appellant No. 3 herein i.e. M/s.Kesha Sales (P) Ltd. is one of the sister concerns of the tenants/appellants I and 2 and it is the said appellants who had allowed appellant No. 3 to use a portion of the premises in suit for office purposes notwithstanding the fact that no permission had been obtained in writing from the landlords which is in gross violation of the statutory provisions of Section 14(1)(b) of the Act. As already stated above, the act of sub-letting is further confirmed from the letter dated 9th December, 1987 Ex. Aw 2/1 written by M/s. Kesha Sales Pvt. Ltd., appellant No. 3 to the landlord whereby the said company had tendered the rent of Rs. 4204.20 Ps. for the months of October and November, 1987 being a sister concern of M/s. Chic Travel. The said tendered of rent was admittedly not accepted by the landlords. In support of his argument, learned Counsel Shri Atul Sharma, Advocate for the appellants has placed reliance on the judgments of the Apex Court, in case of Smt. Rajbir Kaur and Another v. M/s. S. Chokosiri and. Co., , wherein it was held that when the findings of fact recorded by the Courts below are supportable on the evidence on record, the revisional Court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted an supported the one reached by the Courts below. It was further observed that the burden of establishing facts and contentions which support the party’s case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts accordingly as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that appellants having been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the Courts below to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found.”
(9) The aforesaid observations of the Supreme Court when applied to the facts of the present case, it becomes obvious clear that the apparent intention of appellant No. 1 of inducting appellant No. 3 was for monetary considerations by virtue of a private arrangement made inter-se between two parties. There is no resolution of the Board of Directors of the Company (appellants 1 &2) authorising appellant No. 3 to use the demised premises as a sister concern or a licensee. Hence, in the absence of the material evidence, the obvious inference which could have been drawn in the circumstances of the case is that appellant No. 3 is a sub-letter company of appellants 1 and 2.
(10) In reply Mr. R.L. Tandon, learned Counsel for the respondents have controverter the stand taken by the appellants by placing reliance on the judgment of this Court in the case of Abdul Aziz v. Mohd. Yaqub, 1971 All India Rent Control Journal 492, wherein it has been held as under:- “THAT once it was admitted that persons other than tenant had been in the house, the onus of explaining their presence was that on the tenant. A landlord is almost always a stranger to agreements of sub-letting between his tenant and sub-lessee and he has generally to rely on attending circumstances to establish sub-letting by necessary inference. It must be very rarely that direct evidence of sub-letting without the landlord’s consent, whether in the form of a lease deed or of testimony of witnesses in whose presence the sub-lease is created, can come to the hands of the landlord.”
(11) Reliance has also been placed by the learned Counsel for the respondents on the decision of the Apex Court in the case of Roop Chand v. Gopi Chand Thelia, , wherein it was observed that even if a tenant parts with possession of the whole or any part of the premises without assigning or sub-letting the premises, he would still be liable to be evicted from the premises under the Act.
(12) Reference is also made to the judgment of the Apex Court in the case of M/s. Bajaj Auto Limited v. Behari Lal Kohli, wherein it was held that “where the tenant had a separate legal entity and had nothing to do with the sub-lessee except that the latter was the dealer-distributor of some of it manufactured articles and sub-lessee was not a licensee and was not in possession of the premises on behalf of the tenant and the monetary benefit available to the dealer was confined to the commission it received on the sale of every vehicle and did not include the right of enjoyment of the premises and the dealer paid a fixed sum as rent to the tenant and the rent was not related or dependent on the sale of any vehicle such a dealer could not be called as tenant’s associate concern. Consequently where the unregistered deed of lease contained the clause that tenant would be liable to be evicted when he sublet the premises without the consent of landlord and parted with the possession within meaning of proviso to Section 14(1) to the said dealer.
(13) The ratio of the judgment cited by the learned Counsel for the appellants advances the case of the respondents rather than of the appellants. With regard to the query raised by the Court to appellants’ Counsel as to what is wrong with the findings of the Rent Control Tribunal when appellant No. 3 has a separate legal entity being a company ? Counsel for the appellants was unable to point out from the evidence on the record to show as to in what capacity, appellant No. 3 was functioning in the demised premises. On the contrary learned Counsel for the respondents has drawn the attention of the Court to the admission made by appellants’ in their written statement filed before the Additional Rent Controller wherein it is admitted in reply to para 18(a)(1) that appellant No. 3 is a sister concern of appellants 1 and 2 and they have been allowed to use a portion of the premises in suit for office purposes as a mere licensee.
(14) After going through the findings recorded by the Rent Control Tribunal, I am satisfied that the Tribunal was right in holding that the appellants had parted with possession of a portion of the demised premises in favor of M /s. Kesha Sales (P) Ltd. and such parting with or sub-letting would attract the operation of Section 14(1)(b) of the Act. I find no merit in the appeal and the same is dismissed accordingly. The appellants are, however, given two months time from today to vacate and deliver vacant and peaceful possession of the premises to the respondents subject to their filing an undertaking in the usual terms within a period of two weeks from today. There will be no order as to costs.