Delhi District Court
Mohd. Aslam vs Mohd. Ashfaq (Now Deceased) on 8 February, 2016
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE / RCT (WEST) : DELHI
RCT No. 76/2013
Unique ID No. 02401C0278622013
Mohd. Aslam
S/o Late Sh. Shamim Ahmed
R/o 5013, Gali Bagichi
Kucha Rehman, Chandni Chowk,
Delhi - 110 006. . . . . Appellant
versus
1. Mohd. Ashfaq (now deceased)
Through legal representatives
a) Waheeda Begum w/o late Mohd. Ashfaq
b) Mohd. Fahad s/o late Mohd. Ashfaq
c) Ms. Wazia Falak
d) Ms. Farheen Falak
Both daughters of late Mohd. Ashfaq
2. Mohd. Afaq (since deceased)
Through legal representatives
i) Ms. Sharmiloa Naaz w/o late Mohd. Afaq
ii) Mohd. Danish
iii) Mohd. Samad
Both sons of late Mohd. Afaq
(iv) Ms. Beenish Afaq d/o late Mohd. Afaq
All r/o at 5419, Rehman Street,
Chandni Chowk, Delhi110006. . . . . Respondents
Date of institution : 03.07.2013
Judgment Reserved on : 25.01.2016
Date of pronouncement : 08.02.2016
AND
RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page1of15
RCT No. 77/2013
Unique ID No. 02401C0319192013
Mohd. Aslam
S/o Late Sh. Shamim Ahmed
R/o H.No. 5013, Gali Bagichi
Kucha Rehman, Chandni Chowk,
Delhi - 110 006 . . . . Appellant
versus
1. Mohd. Ashfaq (now deceased)
Through legal representatives
i) Waheeda Begum w/o late Mohd. Ashfaq
ii) Mohd. Fahad s/o late Mohd. Ashfaq
iii) Ms. Farheen Falak
iv) Ms. Sazia Falak
Both daughters of late Mohd. Ashfaq
3. Mohd. Afaq (since deceased)
Through legal representatives
i) Ms. Shamimla Naaz w/o late Mohd. Afaq
ii) Mohd. Danish
iii) Mohd. Samad
Both s/o late Mohd. Afaq
(iv) Ms. Beenish Afaq d/o late Mohd. Afaq
All r/o at 5419, Rehman Street,
Chandni Chowk, Delhi110006. . . . . Respondents
Date of institution : 01.06.2013
Judgment Reserved on : 25.01.2016
Date of pronouncement : 08.02.2016
RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page2of15
JUDGMENT
1. This common judgment shall dispose two appeals i.e. RCT - 76/13 instituted on 03.07.2013 and RCT - 77/13 instituted on 01.06.2013 by the appellant Mohd. Aslam. In appeal bearing RCT No.76/13, the appellant has assailed the impugned order dated 02.05.2013 passed by Sh. Sidharth Mathur, Ld. ARC02 (Central) Delhi in Execution Petition bearing Ex.No.68/12 (filed by the respondents herein for execution of judgment dated 16.08.2005 in eviction petition bearing No. E268/02), whereby the application of the appellant for stay of execution petition and for withdrawal of warrants of possession qua premises bearing property No.5013, Gali Bagichi Wall, Chandni Chowk, Delhi110006 (in short 'tenanted premises') was dismissed.
In appeal bearing RCT No.77/13, the appellant has assailed the impugned order dated 30.05.2013 passed by Sh. Sidharth Mathur, Ld. ARC02 (Central) Delhi in Execution Petition bearing Ex.No.68/12, vide which Ld. ARC issued warrants of possession of the tenanted premises as shown in the red colour in the site plan Ex.PW1/2 and the bailiff was given liberty to break open the locks and seek police assistance to execute the warrants of possession.
2. On notice of the appeals, the respondents have appeared and contested the instant appeals.
RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page3of15
3. TCR of eviction petition bearing No. E268/02 and Execution Petition bearing Ex.No.68/12 were summoned, received and perused.
4. I have heard the arguments addressed by Ld. counsel on behalf of the parties.
5. The impugned order dated 02.05.2013 passed in Ex. No.68/12 is assailed in RCT No.76/13 interalia on the grounds : • that the appellant is in settled lawful possession of the tenanted premises since 1999. It is stated that the appellant was not made a party in the eviction petition bearing No. E268/02, so he had no opportunity of being heard despite the fact that it was in the knowledge of the respondents that the appellant has been in settled lawful possession of the tenanted premises, therefore, the appellant is not legally bound by the eviction order dated 02.05.2013 and he cannot be dispossessed pursuant to issuance of warrants of possession;
• that his application before the executing Court should have been treated as an application u/o 21 rule 97 CPC and he should have been given an opportunity to prove his legal possession before issuance of warrants of possession;
• that Ld. ARC failed to apply his mind to the fact that the eviction order is not binding on the appellant who was not made a party RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page4of15 in the eviction petition and was not given an opportunity of being heard;
• that Ld. ARC failed to appreciate that it is the case of the appellant that Badrul Hasan was a tenant in respect of tenanted premises who surrendered possession of tenanted premises in favour of Mohd. Ashfaq (since deceased). Mohd. Ashfaq inducted the appellant as tenant in the tenanted premises at rental of Rs.200/ per month and the appellant also paid a Pagri amount of Rs.9 Lacs to him and there being cordial relations between the appellant and deceased Mohd. Ashfaq, appellant did not ask for any receipt of said payment. It is also his case that he had been paying rent to Mohd. Ashfaq but he did issue any rent receipt and the respondents obtained eviction order against Badrul Hasan who to their knowledge was not in possession of the tenanted premises.
6. The impugned order dated 30.05.2013 passed in Ex. No.68/12 is assailed in RCT No.77/13 interalia on the ground that once bailiff of the Court reported that warrants of possession have been executed, the Court became functusofficio and could not proceed with the case. It is further stated that Ld. ARC failed to appreciate that without hearing the appellant, it could not be presume against him that the appellant is guilty and had trespassed into the tenanted premises by taking law in his hands.
RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page5of15 It is further stated that Ld. ARC failed to appreciate that the appellant is a tenant in the tenanted premises. When bailiff came at the tenanted premises, people at large had intervened in the matter and the respondents gave in writing that possession had been taken whereas appellant remained in possession of the tenanted premises.
7. It is the case of the appellant that Badrul Hasan was in occupation of the tenanted premises as a tenant. He surrendered possession of the tenanted premises in favour of Mohd. Ashfaq who inducted the appellant as tenant in the tenanted premises at rental of Rs.200/ per month and the appellant also paid a Pagri amount of Rs.9 Lacs to him.
It was argued on his behalf that eviction petition bearing No. E268/02 was filed by Mohd. Ashfaq and Mohd. Afaq (both since deceased) against Badrul Hasan knowing fully well that he was not in possession of the tenanted premises. It is also stated that appellant was not impleaded as party in the said eviction petition, so, he was not given opportunity of being heard. It is submitted on behalf of the appellant that order dated 02.05.2013 was obtained fraudulently against the appellant although he was not a party therein despite the fact that he was in settled lawful possession of the tenanted premises and as such, the eviction order is not binding upon him.
8. Eviction petition bearing No. E268/02 was filed by the petitioners namely Mohd. Ashfaq and Mohd. Afaq u/s 14(1)(a), (b),
(c),(d), (h) & (j) of the Delhi Rent Contrl Act (in short 'the Act') RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page6of15 against respondent namely Badrul Hasan. There is no dispute about the fact that originally Badrul Hasan was a tenant in respect of the tenanted premises which is evident from the pleadings of the parties in the said eviction petition wherein the petitioners alleged that originally Smt. Hasina Begum, mother of the petitioners was one of the coowners/ landlords of the tenanted premises. Smt. Hasina Begum and other coowners executed relinquishment deed dated 15.05.1997 qua the tenanted premises in favour of the petitioners/ respondents herein and the petitioners became owners/ landlords of the tenanted premises.
It was further stated in the said eviction petition that initially Badrul Hasan was a tenant under Smt. Hasina Begum. However, Badrul Hasan sublet and parted with possession of the tenanted premises without the written consent of the landlady to one Mohd. Aslam, appellant herein.
9. In his Written Statement filed in response to aforesaid eviction petition, Badrul Hasan pleaded that he was a tenant under Smt. Hasina Begum, w/o Ishtiaq. He vacated the premises and handed over vacant possession to her. He also stated that after giving the possession in favour of Smt. Hasina Begum, he is not the tenant and has no concern with the tenanted premises. He denied that he has sublet or parted with possession of the tenanted premises in favour of Mohd. Aslam/ appellant herein. He also stated that he is not aware as to who inducted Mohd. Aslam/ appellant herein in the tenanted premises. He also stated that Mohd. Aslam is a tenant qua RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page7of15 the tenanted premises and the petitioners/ respondents herein have not impleaded his as respondent in the said eviction petition and as such, the petition is bad for nonjoinder of necessary party.
10. Vide judgment dated 16.08.2005, the eviction petition bearing No. E268/02 was allowed u/s 14(1)(a), (b) & (h) of the Act. It was observed by Ld. ARC that respondent - Badrul Hasan had sublet, assigned and parted with possession of the tenanted premises in favour of the appellant herein without consent of the petitioners/ respondents herein. The plea of Badrul Hasan that he surrendered vacant physical possession of the tenanted premises to the petitioners or to their mother was disbelieved by Ld. ARC holding that if he had surrendered possession of the tenanted premises, it was not understandable as to why he was contesting the eviction petition on merits tooth and nail.
It was also observed that there was no evidence qua surrender of possession of the tenanted premises by Badrul Hasan in favour of the petitioners or their mother. Badrul Hasan's alternate plea that petitioners might have let out the tenanted premises to Mohd. Aslam/ appellant herein was also disbelieved by Ld. ARC.
11. Perusal of Written Statement of Badrul Hasan filed in the aforesaid eviction petition shows that he himself was not clear as to whom he surrendered vacant physical possession of the tenanted premises in the year 1998. In the very first para of preliminary objections of his WS at page1, he stated : RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page8of15 "That the present petition is liable to be dismissed as there is no relation of landlord and tenant between the parties. The respondent herein has already vacated the tenanted premises in December, 1998 and handed over the peaceful vacant possession to the petitioners. The respondent was tenant under Smt. Hasina Begum wife of Late Mohd. Ishtiaq uptil the respondent vacated the tenanted premises and handed over the vacant possession to her."
So, Badrul Hasan did not make it clear as to whom he surrendered physical possession of the tenanted premises, whether it was surrendered to the petitioners/ respondents herein or to their mother - Smt. Hasina Begum. If Badrul Hasan surrendered physical possession of the tenanted premises in favour of Smt. Hasina Begum as claimed by him, there was no occasion for Mohd. Aslam/ appellant herein to take possession of the tenanted premises from Mohd. Ashfaq his claimed predecessorininterest.
12. The appellant Mohd. Aslam has taken a lame and vague plea that he was inducted in the tenanted premises as a tenant by Mohd. Ashfaq. No date or month or year is stated as to when he was inducted in the tenanted premises by Mohd. Ashfaq. Further it is stated that he paid Pagri amount of Rs. 9 Lacs to Mohd. Ashfaq and since he had cordial relations with him, he did not ask for any receipt. It is also stated that he had been paying rent of Rs.200/ per month to Mohd. Ashfaq but he did not demand any receipt keeping in view his cordial relations with Mohd. Ashfaq. Everything stated by the appellant is oral totally unsupported by any requisite document.
RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page9of15 He allegedly paid Pagri amount of Rs.9 lacs to Mohd. Ashfaq which is a huge amount but there is no document acknowledging payment of said amount of Rs. 9 lacs. He allegedly had been paying rent of Rs. 200/ per month to Mohd. Ashfaq but there is no rent receipt. It is strange that no written acknowledgment of payment of huge amount of Rs. 9 lacs was ever demanded by the appellant from Mohd. Ashfaq.
13. It was argued on behalf of the appellant that the appellant was not impleaded as a necessary party in the eviction petition bearing E 268/02, hence, the same was bad for his nonjoinder being a necessary party.
Ld. ARC in its order dated 02.05.2013 observed that the applicant/ appellant herein was never required to be impleaded as a party since illegal subtenant is not a necessary party in the petition u/s 14(1)(b) of the Act.
14. The said objection of the appellant has no legs to stand in view of the law laid down in various judgments.
In Mangaldas Girdhardas vs. Govindlal Ishwarlal (1945) 47 BOMLR 118, Hon'ble Bombay High Court observed as under : "When there is landlord and a tenant and the premises are sublet, there is neither privity of contract nor estate between the landlord and the sub tenant."
RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page10of15 It was further observed that : "under the ordinary law of landlord and tenant the petitioner, who is a subtenant, is not a necessary party to this suit by the superior landlord for the eviction of his tenant. The superior landlord is entitled to eject his tenant and the subtenant deriving his title under the tenant is also liable to be ejected in execution of the decree."
In Rup Chand Gupta vs. Raghuvanshi Private Limited & Anr. 1964 AIR 1889, respondent no.2 was lessee of respondent no.1 and appellant was the sublessee. Respondent no.1 filed a suit against respondent no.2 for eviction in which the appellant was not impleaded as a party. On omission to implead the appellant as a party, Hon'ble Apex Court has observed as under : "that the law does not require that the sublessee need be made a party. It has been rightly pointed out by the High Court that in all cases possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sublessee as a party to the suit, the object, of the landlord is to eject the sublessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the suble ssee. This may act harshly on the sublessee; but this is a position well understood by him when he took the subleases the law allows this and so the omission cannot be said to be an improper act."
15. Further grievance of the appellant is that he was not given an opportunity of being heard to prove his lawful possession of the tenanted premises. Here, it is relevant to refer to the observations RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page11of15 made by Ld. ARC in para 3 of the impugned order dated 02.05.2013 : "Moreover the Court has asked the applicant to show proof of his tenancy under the DH, which he is unable to produce. The only document placed on record by the applicant are the Aadhar Cards, telephone bill and electricity bill qua his possession at the tenanted premises. The possession of the applicant at the tenanted premises is otherwise not in dispute, particularly, when in the eviction order itself, the Ld. Predecessor had observed the applicant to be an illegal sub tenant in possession."
16. The appellant claims to have paid a huge amount of Rs.9 Lacs to Mohd. Ashfaq at the time of creation of tenancy in his favour but he has no document to prove payment of the same. He claims to have paid rent @ Rs.200/ per month regularly to Mohd. Ashfaq but there is no rent receipt. So, the appellant has not made it clear as to how he claims to be in lawful possession of the tenanted premises.
17. Assailing the impugned order dated 30.05.2013 passed in Ex. No.68/12, Ld. Counsel for the appellant contended that Ld. ARC having ensured that possession of the tenanted premises was delivered to decree holder pursuant to execution of warrants of possession, became functusofficio thereafter and could not order issuance of fresh warrants of possession for recovery of the tenanted premises from the appellant holding his possession as that of a trespasser therein after execution of earlier warrants of possession.
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18. Vide impugned order dated 30.05.2013, Ld. ARC observed as under : "The DH were delivered the possession of the tenanted premises on 02.05.2013 by the Bailiff under the W/P issued by this Court. It is worthwhile to mention that the aforesaid illegal sub tenant on the very same day i.e. 02.05.2013 had also filed an application before this Court prior to the execution of the W/P for the stay of the present execution. Via order dated 02.05.2013, the said application of aforesaid illegal sub tenant was dismissed in limine and thereafter the W/P were executed during the course of the day. Now after the execution of the W/P, the aforesaid illegal sub tenant in collusion with his accomplices first trespassed into the tenanted premises on the intervening night of 02.05.2013 03.05.2013 and then illegally dispossessed the DH from there. In the given circumstances, FIR No.78/13 PS Kotwali was lodged against the aforesaid illegal sub tenant and his accomplices U/s 448/506/34 IPC. The counsel for the DH states that aforesaid illegal sub tenant immediately thereafter had also filed a civil suit for declaration and injunction against the DH to legitimize his possession, which is pending in the Court of Ms. Snigdha Sarvaria, Ld. Civil Judge, Delhi for 02.07.2013. The plaint dated 04.05.2013 of the said suit has come on record wherein the aforesaid illegal sub tenant alleges that he is in possession of the tenanted premises.
The plaint dated 04.05.2013 of the civil suit filed by the aforesaid illegal sub tenant shows that he claims to be in possession of the tenanted premises on 04.05.2013, which he should not have been pursuant to the execution of W/P. The aforesaid facts clearly shows that the aforesaid illegal sub tenant has illegally trespassed into the tenanted premises pursuant to the execution of W/P on dated 02.05.2013, though he had no right to either stay or re enter therein.
RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page13of15 Hence even though the W/P were executed on 02.05.2013, but, the subsequent illegal actions of aforesaid illegal sub tenant whereby he had illegally dispossessed the DH from the tenanted premises, the present execution cannot be deemed to have been satisfied. Thus, I hereby invoke the inherent power of Court U/s 151 CPC (via Rule 23, DRCA Rules) so as to repair the damage done by the illegal actions of aforesaid illegal sub tenant and to restore the possession back to DH as was earlier delivered to him via W/P."
19. Ld. Counsel for the appellant has submitted that once bailiff of the Court reported that warrants of possession were executed, the Court became functusofficio and could not proceed with the matter further. It was further argued that Ld. ARC could not presume that the appellant had trespassed into the tenanted premises by taking law in his hands.
20. In this context, para 11 of appeal bearing RCT No. 77/13 is relevant and is reproduced as under : "That the learned court below ought to have kept in mind the facts that appellant is tenant in property in question. Bailiff came at site and the people at large intervened in the matter, respondent have given in writing that possession has been taken; though the appellant remained in possession. In such circumstances the court became funtus officio."
21. If we leave aside the report of the bailiff qua execution of warrants of possession or observations made by Ld. ARC that warrants of possession were executed on 02.05.2013 but the appellant had trespassed into the tenanted premises by unlawfully RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page14of15 dispossessing the decree holder on the intervening night of 02/03.05.2013 and take the version of the appellant that he continued in possession of the tenanted premises as gospel truth, I fail to understand as to how Ld. ARC became functusofficio because as per the case of the appellant, warrants of possession were not executed and he has remained in possession of the tenanted premises.
22. In view of the aforesaid, the appeals are without any substance. Hence, both the appeals are accordingly dismissed. Copy of this judgment be placed in both files.
Trial Court Records be sent back with a copy of the judgment. Appeal files be consigned to Record Room.
Announced in Open Court ( Rekha Rani ) today this the 8th day of District & Sessions Judge/RCT
February, 2016. (West) Tis Hazari Courts/Delhi RCT No. 76/13 & 77/13 Mohd. Aslam vs. Mohd. Ashfaq (through LRs) Page15of15