Sanjay Kishan Kaul, J.
1. The appellant firm filed an eviction petition against the respondents in the year 1972 under Section 14(1)(a) and (b) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, ?the said Act?) in respect of shops No. H-18 and 19, Gobind Mansion, Connaught Circus, New Delhi. It was stated that the shops had been let out to S/Shri Kundan Lal, Hari Shanker and Gaya Pershad @ Rs.147.37 per month inclusive of house-tax but apart from water and electricity charges. It was alleged that the said tenants being respondents No. 1 to 3 in the original petition had neither paid nor tendered rent for the period 01.11.1970 to 31.08.1972 despite service of demand notice on them. The tenants were also alleged to have unlawfully sub-let, assigned or parted with possession of different portions of the tenanted premises to original respondents No. 4 and 5, Shri Bishamber Dayal and Shri Sada Nand after 1962 without obtaining the written consent of the landlord. This fact, however, came to the knowledge of the landlord in March, 1971. Original respondent No. 4 was alleged to be running a business of pan seller and respondent No. 5 of chat and eatables. The statutory notice determining the contractual tenancy dated 06.09.1972 was stated to be duly served upon the tenants to which there was no reply.
2. The tenanted premises were originally stated to be given on rent to Shri Ram Charan Dass, brother of Shri Kundan Lal and one Shri Chabil Ram for running a restaurant in the year 1938. In 1940, Shri Chabil Ram left the business and Shri Kundan Lal joined Shri Ram Charan Dass. Shri Ram Charan Dass is stated to have passed away in September, 1952 and after his demise, his widow Smt. Lilawati continued the business. Shri Hari Shanker and Shri Gaya Pershad being the sons of Shri Kundal Lal joined the business. On the demise of Smt. Lilawati, the original respondents No. 1 to 3 continued to run their restaurant business.
3. The eviction petition was contested wherein it was alleged that Shri Hari Shanker, respondent No. 2 was the sole tenant. The devolution of tenancy has been explained inasmuch as the premises were let out originally to Shri Ram Charan Dass and Shri Chabil Ram and on dissolution of the partnership, Shri Ram Charan Dass became the sole tenant and the sole proprietor of the business. Shri Kundan Lal is stated never to have been inducted as a partner. After the death of Shri Ram Charan Dass, Smt. Lilawati became the sole tenant and Shri Kundan Lal was not a partner. Shri Hari Shanker is stated to be the adopted son of Smt. Lilawati and on her death, the tenancy rights devolved on him.
4. The original respondents No. 1, 2, 4 and 5 filed a common written statement and even denied the receipt of any valid or legal notice of demand. The pan and chat shop was stated to be a part and parcel of the restaurant business run by original respondent No. 2 and original respondents No. 4 and 5 were stated to be the employees of respondent No. 2. The relationship of original respondents No. 1 and 3 to the tenanted premises was denied. The original respondent No. 3, Shri Gaya Pershad filed a separate written statement admitting that original respondents No. 1 to 3 are the tenants though the notice of demand for arrears of rent was denied. The original respondents No. 4 and 5 were alleged to be the employees of respondents No. 1 to 3.
5. The original respondent No. 3, Shri Gaya Pershad died during the pendency of the eviction proceedings and his legal representatives were brought on record. Respondent No. 1 also passed away but his legal heirs were not brought on record in view of the stand taken by respondent No. 1 in the written statement that he had nothing to do with the tenanted premises. His estate was further represented on record through his legal heir, i.e., original respondent No. 2.
6. An application was filed during the pendency of the eviction proceedings under Section 15(1) of the said Act and after recording of evidence, an order was passed on 10.08.1976 to the effect that only original respondent No. 2, Shri Hari Shanker was the tenant.
7. The eviction petition was allowed by the order of the Additional Rent Controller (for short, 'ARC') dated 18.01.1985. It was held that original respondent No. 2 alone was the tenant. The notice of demand dated 06.09.1972 was served on original respondent No. 2 for which even the A.D. card was available. The arrears of rent were admitted by the said original respondent No. 2, Shri Hari Shanker in his deposition. Thus, the ground under Section 14(1)(a) of the said Act for non-payment of rent was made out. The order further states that the tenant would be entitled to the benefit of Section 14(2) of the said Act on the issue of arrears of rent subject to the condition that there was compliance of the directions passed on the application under Section 15(1) of the said Act on 10.08.1976.
8. Insofar as the ground of sub-letting is concerned, the plea that original respondents No. 4 and 5 were only the employees of the tenant was examined. On appreciation of the testimony, it was found that the parting of possession to original respondents No. 4 and 5 was established. Once the presence of third parties was found in the premises, the ARC found that the onus was on the tenant to explain their presence and in what capacity such people were in occupation of the respective portions.
9. The material aspect considered by the ARC is that original respondent No. 2 in his testimony had categorically stated that after the demise of Smt. Lilawati, he had taken complete charge of the business and used to maintain attendance- cum-salary register of his employees. However, neither the employees register nor the account books to substantiate this version were produced before the ARC and, thus, a presumption arose against the tenant. These were stated to be the best evidence to establish the status of original respondents No. 4 and 5 as employees which evidence had been withheld. Though original respondent No. 4, who was alleged to be a panwala, had filed a common written statement he did not appear in the witness box. Respondent No. 5 appeared in the witness box as RW - 6 stating that he was an employee till 1974, but the identity of the said person itself came into doubt. He stated that the summons was never received by him in the case nor did he file any written statement while there is a written statement on record purportedly signed by one Shri Sada Nand.
10. Shri Hari Shanker, original respondent No. 2 (respondent No.1 herein) filed an appeal before the Rent Control Tribunal (for short, ?the Tribunal?).
11. The Tribunal in terms of the Order dated 22.07.1987 allowed the appeal insofar as the eviction on the ground of sub-letting was concerned. In para 8 of the order, it has been recorded that the only point urged in appeal was this aspect and the other findings were not challenged.
12. The Tribunal noted the legal concept of sub-letting as being one where there must be transfer of legal possession. The only question to be considered was whether the pan shop and the chat shop were part of the business of the tenant or whether there was sub-letting of the two portions of the tenanted premises for carrying on those two businesses to respondents No. 4 and 5. The Tribunal came to the conclusion that an adverse inference ought not to have been drawn against the tenant on account of non production of salary-cum-attendance register. It may be noticed that the testimony did show that the two portions in question were unlocked and locked by original respondents No. 4 and 5, but the Tribunal held that this alone could not prove a sub-tenancy or parting with possession as the locking and unlocking could be on behalf of the tenant. It is again a finding arrived at that there was no evidence that there was realization of rent from original respondents No. 4 and 5 by the tenant. Original respondent No. 4, Shri Bishamber Dayal was also stated to have left the premises. The business was stated to be ancillary and connected with the main restaurant business and a finding was reached that there was a reason for separate entrance to the betel shop as it worked for longer hours.
13. The Tribunal considered the aspect of change of persons running the business of betel selling and chat as the most material aspect since if the premises were actually sub-let, it would not have been easy to drive away the original persons.
14. An aspect, which has been considered by the Tribunal in para 19, is the submission arising from the stand of the tenant in a proceeding initiated under the Food Adulteration Act where the statement was made disowning the restaurant business. It was, however, held that the said statement was self serving in order to save the skin of the tenant and no advantage could be taken in the eviction proceedings.
15. The present second appeal has been filed assailing the aforesaid judgment of the Tribunal dated 22.07.1987.
16. Learned counsel for the parties were heard at length and canvassed their respective causes with support from the judgments cited at the Bar.
17. Learned senior counsel for the appellant referred to the judgment of learned Single Judge of this Court in Kailash Kumar and Ors. v. Dr. R.P. Kapur, 54 (1994) DLT 342 on the question as to what amounted to sub-letting. The facts were similar as the tenant was running a restaurant business and a small portion was carved out by wooden portion in which a person was running a pan shop and sale of cigarettes. This was held to be sub-letting. The plea there again was that the sub-tenant was an employee of the tenant, but no account books were produced and, thus, the plea was rejected. It was held that mere display of the name of the restaurant on the pan shop would not make any difference. Learned senior counsel also drew the attention of this Court to para 43 of the judgment where it has been held that the basic principles enunciated by the Supreme Court are that once it is proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts on the tenant to show in what capacity the stranger is in exclusive possession of that portion and on the failure of the tenant to explain the presence of such person in exclusive possession of the portion of the demised premises, there would be presumption that the portion had been sub-let or parted with possession in favour of the stranger by the tenant. This view has been followed by this Court in Kishan Chand v. Sri Chand, 2006 (2) RCR 488.
18. Learned senior counsel for the appellant referred to another judgment of learned Single Judge of this Court in M/s. Nath Oil Company v. Kailash Rani Kapoor, 2000 (1) RCR 59 where it has been held that in a case of alleged sub- letting when a person other than the tenant is occupying a shop and the plea is that the occupant is an employee of the tenant, the income-tax records and other records that he is an employee are extremely material and non-production of the said records would definitely lead to the conclusion that the records have not been produced as they would go against the appellant.
19. Learned senior counsel for the appellant also emphasized that the sub-tenants had filed a joint written statement while one of them did not step into the witness box. In case of other, there is an issue of even identity as he denied signing a written statement. The undisputed factual position was that accounts had been maintained, but records were not produced.
20. Learned senior counsel for the appellant lastly referred to the judgment of the Supreme Court in G.K. Bhatnagar (Dead) By LRs v. Abdul Alim, (2002) 9 SCC 516 to advance the proposition that in such a second appeal where there is a reappraisal of the original findings of the ARC by the Tribunal, if the findings of the Tribunal are based on surmises and conjectures, while taking a contrary view, the High Court was justified in restoring the findings of the Rent Controller. It was held that where a first appellate court reversed the well-considered and well-reasoned findings of the Rent Controller, a substantial question of law arose calling for High Court?s interference in second appeal.
21. Learned counsel for respondent No. 1, on the other hand, referred to the judgment of the Supreme Court in Ms. Labanya Neogi (through L.R.s) v. M/s. W.B. Engineering Co., AIR 1999 SC 3331 to oppose any such scrutiny in a second appeal. It was held that where in an eviction suit, the question whether the landlord requires premises for personal use and occupation is decided by recording a finding of the first appellate court on consideration of the entire evidence on record, the same is a question of fact not liable to be interfered with in a second appeal. Similarly, in Navaneethammal v. Arjuna Chetty, AIR 1996 SC 3521, it has been held that where the views taken by the first appellant court are based on material and another view is possible on re-appreciation of evidence, the High Court should not re-appreciate the evidence to take another view.
22. Learned counsel for respondent No. 1 also drew the attention of this Court to the impugned judgment where in para 21, there is a discussion about the plea of the tenant to produce the additional evidence in respect of the account books and salary register, which was declined as the same was not material. Learned counsel submitted that the account books were not produced as they were not asked for. Learned counsel referred to Ramrati Kuer v. Dwarka Prasad Singh and Ors., AIR 1967 SC 1134 where it was held that if a party fails to produce the accounts, but only gives oral evidence and no attempt is made by the opposite party to call for accounts, even if the accounts would be the best evidence, at most, oral evidence may not be acceptable, but no adverse inference can be drawn from the non-production of accounts. Similarly in Smt. Indira Kaur and Ors. v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074 while dealing with the suit for specific performance and the readiness and willingness of the plaintiff, it was held that the plaintiff had deposed that the amount towards the sale consideration was available in the bank of the plaintiff and the defendant neither enquired about the name of the bank nor the court asked him to produce the passbook and, thus, no adverse inference on account of non-production of pass book could be drawn against the plaintiff.
23. On consideration of the submissions advanced by learned counsel for the parties, I am of the view that the impugned order of the Tribunal cannot be sustained. The presence of strangers being original respondents No. 4 and 5 is not in dispute. That respondents No. 4 and 5 were closing their portions separately is also not in dispute. The defence of the tenant was that the said original respondents No. 4 and 5 were employees. In such a case, it was for the tenant to lead the evidence to show that such respondents No. 4 and 5 were not sub-tenants but employees.
24. In Kailash Kumar?s case (supra), it is the aforesaid aspect, which has been emphasized as discussed above. In fact, the factual matrix is almost identical the tenanted shop being used for restaurant, small portion carved out being used for pan shop and sale of cigarettes, allegation of sub letting, defence of the sub-tenant being an employee and no account books being produced. I am, thus, of the considered view that the principles laid down in Kailash Kumar?s case (supra) are liable to be followed and are absolutely apposite in the facts of the present case to hold that the tenant had failed to discharge the onus of explaining the presence of the alleged sub-tenants.
25. In M/s. Nath Oil Company?s case (supra) also, it has been emphasized that where the stand of the tenant is that the occupant is an employee, the best evidence in his possession should be produced, which would include the income- tax records or other records showing that he is an employee.
26. I am unable to accept the plea of learned counsel for respondent No. 1 / tenant that no adverse inference can be drawn in the circumstances in view of the aforesaid judgments of the Apex Court. Those were matters where the issue was of proving the accounts and no adverse inference being drawn on account of non-production of the accounts. Oral testimony had been led. These judgments have no application to the facts of the present case. The dispute in the present case relates to the issue whether there is sub-tenancy or not or parting with possession or not. There is presence of third parties. It was for the tenant to explain the presence of such third parties and to produce any material in support thereof. No material whatsoever was produced in that behalf. A reference to the account books and the salary register in the order of the ARC arose on account of the testimony of the tenant that such regi
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sters/accounts were being maintained. Despite this, the same were not produced. It was for the tenant to have produced the best material in support of the plea that original respondents No. 4 and 5 were employees and respondent No.1 failed to discharge this onus and, thus, adverse inference must be drawn against respondent No. 1. 27. In my considered view, this is a matter, which can be gone into in the present appeal on a question of law since there was no reason whatsoever to reverse the well-considered and well reasoned findings of the ARC. In this, I am guided by the principles laid down by the Apex Court in G.K. Bhatnagar (Dead) By LRs?s case (supra). The Tribunal appears to have proceeded on surmises and conjectures in ignoring almost all the material aspects and finding justifications to hold that the tenant continues to be in control of the premises. The matter related to parting with possession of certain portions of the tenanted premises. The testimony of the tenant and the prosecutions under the Food Adulteration Act were also ignored in this behalf. The Tribunal appears to have given exaggerated importance to change in the sub-tenancies to come to a conclusion that if there were genuine sub tenancies, then change would have been difficult. The nature of sub-tenancy is of a pan shop and a chat shop in the restaurant business and it cannot be said that such changes would be unusual. In any case, the onus lay on the tenant in this behalf. 28. In view of the aforesaid, the impugned order of the Tribunal dated 22.07.1987 is set aside and the eviction order dated 18.01.1985 passed by the ARC is restored. 29. The petition is allowed leaving the parties to bear their own costs. 30. Respondent No. 1 is granted one month?s time to vacate the tenanted premises. 31. The record of the trial court be sent back immediately.