TaxTMI 
TaxTMI 
2022 (2) TMI 1438
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....leaded, being the firm-Young Friends & Co. and two individuals - Ashu Mohan Gupta and Shashi Gupta. They have been described as contesting respondents. On that count, however, no controversy has been raised before us. The appellant admittedly is the landlord of the subject-premises. This was rented out to the then proprietor (since deceased) of the first respondent in the year 1936. The appellant became the landlord thereof on having purchased the subject-premises from its erstwhile owner in the year 1958. The main ground on which eviction was asked for was sub-letting without consent of the landlord. 3. The respondents run a retail outlet from the subject-premises and at the material point of time, the respondents were operating from there a chemist shop. The substance of allegations of the landlord was that the respondents had sub-let certain portions of the premises to three medical practitioners, (including one dentist) and two other firms. They were included as respondent nos. 2, 3, 4, 5 and 6 in the eviction application. By an order passed on 5th June, 1997, the Additional Rent Controller, Delhi dismissed the petition holding that the appellant had failed to show that there ....
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....to the exclusion of the tenant. On the contrary, the evidence of the landlord, as indeed of the tenant, unmistakably show that the tenant has always been in full control and possession-physical and legal-of the tenanted premises. The presence of others was temporary, for a few hours of the day when the tenant would also be present, and clearly for permissive use, it having come to an end, such persons having left the premises on their own when called upon to do so by the tenant. 52. The view taken by the ARCT, clearly, was erroneous, it being based on conclusions which are contrary to the evidence that was adduced, and by drawing inferences which were not permissible in law, the appellate power having been improperly exercised for substituting one subjective satisfaction with another without there being a justifiable reason to do so. 53. Consequently, the petition is allowed. The impugned judgment dated 29.08.2007 of the Additional Rent Control Tribunal is set aside. The judgment dated 05.06.1997 of the Additional Rent Controller stands restored and revived. In the result, the eviction case of the respondent stands dismissed." 6. This judgment of the High Court is under app....
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....and, has cited the following authorities including the case of Flora Elias Nahoum (supra). These cases are:- (i) Dipak Banerjee v. Lilabati Chakraborty [(1987) 4 SCC 161] (ii) Jagan Nath v. Chander Bhan & Ors. [(1988) 3 SCC 57] (iii) Shalimar Tar Products Ltd. v. H. C. Sharma & Ors. [(1988) 1 SCC 70] (iv) Ram Murti Devi v. Pushpa Devi & Ors. [(2017) 15 SCC 230]. In our view, the guiding principles which emerge from these authorities on the question which we are addressing in this judgment can be adopted from the following three decisions:- (i) Ram Murti Devi (supra) (ii) Flora Elias Nahoum (supra) (iii) Bharat Sales Ltd. (supra) 8. In the case of Ram Murti Devi (supra), it has been held:- "21.1. In a suit by the landlord for eviction of the tenant on the ground of sub-letting the landlord has to prove by leading evidence that: (a) A third party was found to be in exclusive possession of the whole or part of rented property. (b) Parting of possession thereof was for monetary consideration. 21.2. The onus to prove sub-letting is on the landlord and if he has established parting of possession in favour of a third party either wholly or partly, the onu....
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.... paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let." 10. In the case before us, occupation of a portion of the subject-premises by the three doctors stands admitted. What has been argued by the learned counsel for the appellant is that once the Tribunal had arrived at a finding on fact based on the principles of law, which have been enunciated by this Court, and reflected in the aforesaid passages quoted from the three authorities, the interference by the High Court under Article 227 of the Constitution of India was unwarranted. To persuade us to sustain the High Court's order, learned counsel appearing for the respondents has emphasized that full control over the premises was never ceded to the medical practitioners and the entry and exit to the premises in question remained under exclusive control of the respondent(s)-tenant. This is the main defence of the tenant. We have c....
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....Bharat Sales Ltd. (supra) above, it transpires that it was also the respondents' obligation to demonstrate that there was no monetary consideration on the basis of which the medical practitioners were allowed to operate from the subject premises. Though, it was a chemist shop, evidence reveals that the portion of the premises of which the three medical practitioners were in occupation consisted of individual cabins and had separate telephone connections. These are the factors, on the basis of which, the Appellate Tribunal came to its conclusion against the respondents. The Appellate Forum found:- "26. I may observe that the job of a doctor is basically to provide consultancy. He is not to sell any goods. He is only to examine the patients and prescribe treatment and charge his fee. For doing so aforesaid, he only requires a place where he can sit, the client can come, the doctor may have privacy and is able to write a prescription to the client and, if required, to examine him either on a dental chair in the case of a Dentists or a bed in case of other patients and nothing else. All these facilities were being made available to the doctors who came to the suit premises and that a....
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....t explicit that that user of the suit premises that too of Mezzanine floor was exclusive for the time they were permitted to run their practice and must have been under a secret arrangement between the tenant and the doctors to which the landlord cannot have access and he can only infer that some kind of consideration must have passed by the sub-tenant in favour of the tenant which must be the only reason as to why the first Respondent permitted user of portion of suit property to Respondent nos. 2 to 4 on regular intervals and also permitted them to put their names outside the polyclinic including the timings of their coming. The tenant even allowed them to have their own telephones installed in the suit premises so as to facilitate the clients to have the consultancy at a time convenient to the doctor and the patient without any interference of the tenant in this regard. Such kind of arrangement cannot be termed as mere licence and must be treated as exclusive possession though for a short period and would certainly furnish a ground for eviction under Section 14(1)(b) of the Delhi Rent Control Act. Accordingly, the Trial Court has not appreciated this fine distinction of law and,....