GILL AND CO Vs. BIMLA KUMARI JOLLY

JUDGEMENT

(1.) The facts giving rise to this second appeal by the tenant M/s. Gill and Company Pvt. Ltd. appellant No 1, and Sohan Lal Ahuja, appellant No 2 succinctly are that the premises in question viz, a portion of property No. A-41. Kirti Nagar, New Delhi were let to appellant No. 1 (hereinafter referred to as "the tenant company") at the rate of Rs. 750.00 per month way back in 1966. Sohan Lal Ahuja, appellant No. 2 wa employed with appellant No. 1 as Manager at Delhi and he was put into occupation of the same for residence in his capacity as Manager. On 12th February 1975, the respondent landlady moved an application for eviction of the appellants on the grounds of (a) non-payment of rent ; mis-user , (c) bonafide requirement as residence for herself and members of her family ; and (d) Sub-letting, assignment or parting with possession of the demised premises by appellant No. I in favour of appellant No. 2. The eviction petition was contested hotly by the appellants on various grounds. Eventually, however, an order of eviction was made by an Additional Rent Controller, Delhi on 20th November 1979 only on the ground that appellant No. 1 had parted with possession of the premises in question in favour of appellant No. 2 without the consent of the respondent landlady. The eviction petition on grounds falling under Clauses (c) & (e) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as "the Act") was, however, dismissed. As regards the ground of non-payment of rent despite due service of notice of demand on appellant No. 1, the Additional Rent Controller found that there was a default on the part of appellant No. 1 in the payment of rent for the period with effect from 1st August 1974 onwards but the tenant was entitled to benefit of the provisions embodied in Section 14(2) of the Act as he had duly complied with an order made earlier by the Additional Controller under Section 15(1) of the Act. Feeling aggrieved by the said order, the appellants preferred an appeal but met with no success, the same having been dismissed by the Rent Control Tribunal vide his judgment dated 9th February 1983. Still not satisfied they have come up in second appeal to this Court.

(2.) The learned counsel for the appellants has not assailed the order of the Rent Control Tribunal and for that matter the order of the Additional Rent Controller as regards the ground of eviction under Clause (a) of the proviso to Section 14(1) of the Act. Obviously they felt content with the relief awarded to them under Section 14(2) of the Act, it being a case of first default. So, the only ground which survives for determination by this Court is with regard to the Sub-letting, assignment or parting with possession of the premises in question by appellant No. 1 in favour of appellant No. 2. It may be pertinent to state here that appellant No 2 bad been occupying the premises in question in his capacity as Manager of appellant No 1 and Delhi from the very inception of the tenancy Admittedly, the head office of appellant No. 1 is at Bombay and they care still carrying on their business from there. The cause of action for eviction on ground under clause (b) of the proviso to Section 14(1) allegedly arose because the service of appellant No. 2 was terminated on 31st March 1972 but he was allowed to continue in occupation of the premises in question unauthorisedly by appellant No 1 even thereafter. The stand of the appellants, however, is that even after the termination of service of appellant No. 2 as Manager of appellant No. 1, the former continued to act as their local representative at Delhi and negotiated many a business deal on behalf of appellant No. 1 with several parties and as such his occupation of the premises in question was permissive and the legal possession thereof vested in and remained with appellant No. 1 at all material times.

(3.) During the pendency of the first appeal, the appellants made an application dated 24th March 1981 under Order XLI Rule 27 read with Section 151, Code of Civil Procedure (hereinafter referred to as 'the Code') for permission to produce some additional evidence vlz documents and accounts books etc. It was stated that the trial Court had arrived at the finding that appellant No. 1 had Sub-let, assigned or otherwise parted with possession of the premises to appellant No. 2 primarily for the reason that the appellants did not produce the relevant records and documents despite their having been served with a notice dated 7th March 1978 purporting to be under Order XII Rule 8 of the Code read with Section 66 of the Evidence Act (copy marked XI) but such notice was never served on appellant No. 1 and as such the trial Court was in error in assuming that the records and documents mentioned in the notice marked 'XI' had been with-held deliberately, and, therefore, the presumption that if produced, the same would not have supported the case of the appellants, would be well warranted. Secondly, it was asserted that the office premises of appellant No. 1 at Bombay were raided by the Income-tax Department in August 1976 and the entire record pertaining to the employment, payment of salary and wages and books of account etc. pertaining to the years 1971, 1972 and 1973 onwards were seized and taken away by the said department and were still in their custody. They further averred that for the purpose of Delhi office, appellant No. 1 had maintained an account in the name of appellant No. 2 in the Central Bank of India, Kirti Nagar and the appellants had already produced evidence to the effect that all the moneys in the said account were received from appellant No. 1 and were disbursed by appellant No. 2. in whose name the account stood, according to the needs of the business. So, they sought to produce the pass books in respect of the said account and some statements of account of Delhi office of the years 1972, 1973 and 1974, the copies of which were found lying in some very old papers.