Sunanda Bhandare, J. - (1.) This landlord's second appeal is directed against the Judgment and order of the Rent Control Tribunal (hereinafter referred to as the Tribunal) dated 14.91973. The brief facts of the case are as follows:
(2.) Three shops bearing no. 5, 6 and 7 Krishna Building, Paharganj, New Delhi were let out at a monthly rent of Rs. 102.00 to respondent no. 1 by late Smt. Kishen Devi, predecessor in interest of the appellants. A petition for eviction on the ground of sub-letting was filed by Smt. Kishen Devi on 1.2.1968 against the respondents alleging that respondent no. 1 bad parted with possession of the aforesaid shops in favour of respondent no. 2 without the consent in writing of Smt. Kishen Devi, The contractual tenancy was terminated by notice dated 18.11.1967 and the shops being in the walled city of Delhi, necessary permission was obtained from the Competent Authority under the Slum Areas (Improvement & Clearance) Act for filing the eviction petition. The respondents resisted the eviction petition and denied the allegations of sub-letting. The respondent no. 2 was an agent of respondent no. 1 under the terms of agreement, of agency dated ,20.5.1964 for selling the goods manufactured by respondent no.1 It was submitted by respondent no. 1 that the furniture and the goods lying in the demised; premises exclusively belong to respondent no 1, and respondent no. 2 was carrying on the business in the demised premises as an agent for and on behalf of respondent no. 1. It was averred that respondent no. 1 had. a right to remove respondent no. 2 from the premises in terms of the agency agreement and, therefore, the legal possession was the respondent no. 1 and there was no sub-letting, assignment or parling with possession of the demised premises in favour of respondent no2ai contemplated under Section 14(1) (b) of the Delhi Rent Control Act (hereinafter referred to as the Act). The Additional Rent Controller (hereinafter referred to as the Controller) by his order dated 23.4.1970 held that respondent no 2 was in exclusive possession of the demised premises and he was selling some goods on his own behalf from the demised premises and paying Rs.102.00 per month as rent to respondent no. 1 and, therefore, the appellant had proved sub-letting by respondent no. 1 and consequently allowed the eviction petition and ordered recovery of possession in favour of Smt. Kishen Devi. Feeling aggrieved by the said order of the Controller, respondent no. 1 herein filed an appeal before the Tribunal. During the pendency of the appeal Smt. Kishen Devi died and her legal heirs i e. the appellants herein were substituted in her place vide order of the Tribunal dated 20.7.1973. The Tribunal by the impugned order allowed the appeal filed by respondent no 1 herein and set aside the judgment fand order of the Controller dated 23.4.1970 The Tribunal held that the clauses of the agency agreement between respondent no 1 and respondent no. 2 clearly- indicated that respondent no. 1 had a right to re-enter the premises and it. could not be said that the tenant bad parted with the legal possession of the premises in favour of the agent. It is this order of the Tribunal which is. challenged by the appellant in the present second appeal.
(3.) It was contended by the learned counsel for the appellants that the agency agreement entered by respondent no. 1 with respondent no. 2 was only an eye-wash and respondent no. 2 was carrying on his business as well from the demised premises. Respondenno 2 had obtained a licence under the Delhi Shops and Establishments Act in his own name He paid electricity and other charges in respect of the shops The commission received by respondent no. 2 from respondent no. 1 is less than Rs.500/ per month and respondent no. 1 is deducting Rs. 102.00 per month towards rent of the shops from this commission All the staff in the shops is employed by respondent no. 2 is now in full possession of the shops and respondent no. 1 has nothing to do with the shops any more. Learned counsel submitted that the main business of respondent no. 2 is sale of silk cloth and other goods which are not manufactured by respondent no. 1 and the agency agreement is a camouflage and is in fact a lease deed permitting respondent no 2 to use the shops. Learned counsel referred to Smt. Rajbir Kaur & Anr. v. M/s. S. Chokosiri & Co, AIR .1988 SC 1845, Sh K Achuta Bhat v. Smt. Veeramaneni Manga Devi & Anr.. AIR 1989 SC 93 and M/s Permanand Gulabchand & Co. v. Mooligi Visanji, AIR 1990 Kerala 190 and submitted that the real test is to find out whose business is it, that is being run from the premises.;