Delhi District Court
Smt. Shanta Agnihotri vs Sh. Rajesh Kumar on 12 September, 2018
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Case No. E141/10 (Old), 79885/16 (New)
In the matter of:
1. Smt. Shanta Agnihotri,
W/o Late Sh. O.D. Agnihotri,
R/o H.No. 94, Pocket 9C,
SectorVII, Rohini,
New Delhi110084.
2. Solace Exports Pvt. Ltd.,
having its registered office at
1E/2, Jhandewalan Extension,
New Delhi110055. ....Petitioners
Versus
1. Sh. Rajesh Kumar,
R/o C571, Street No. 7,
Majlis Park,
Delhi.
2. Sh. T.R. Anand,
D74, Regal Building,
Connaught Place,
New Delhi110001.
3. M/s Aman Associates,
through its Director
having its registered office at
E79885/16 Page 1/18
D74, Regal Building,
Connaught Place,
New Delhi110001 ....Respondents
Date of Institution : 30.10.2010 Date of order when reserved : 10.09.2018 Date of order when announced : 12.09.2018 J U D G M E N T :
1. Vide this judgment, the undersigned shall decide the petition filed under Section 14 (1) (b) & (j) of the Delhi Rent Control Act, 1958 (hereinafter referred to as DRC), by the petitioners seeking eviction of the respondents from one small room under the staircase, ground floor, back side of the building bearing no. 1E/2, Jhandewalan Extension, New Delhi (hereinafter referred to as the 'tenanted premises'), as shown in red colour in the site plan attached to the petition.
2. Initially the present petition was filed by the petitioners namely Smt. Shanta Agnihotri and Smt. Roopi Agnihotri against the respondent no.1 Sh. Rajesh Kumar, respondent no.2 Sh. T.R. Anand and respondent no.3 M/s Aman Associates. The petition was filed through attorneys of the petitioners no.1 & 2 namely Sh. Deepak Agnihotri and Sh. Varun Mahajan.
3. The brief facts of the case as narrated in the petition are that E79885/16 Page 2/18 both the petitioners are coowners qua suit property which was initially let out to the respondent no.1 who has assigned and has parted with the possession of the tenanted portion in favour of respondents no.2 & 3. The monthly rent was Rs. 100/ per month, excluding electricity and water charges. The respondents have caused major structural changes in the tenanted premises by removing one of the wall without any prior approval, or consent, or knowledge of the petitioners. It is contended that the respondent no.1 has after 09.06.1952 assigned the tenanted premises in favour of the respondents no.2 & 3 and thereafter parted with the possession of the same without prior knowledge, or written consent and approval of the petitioners.
4. It is stated that the property was originally belonged to Late Smt. Sarla Devi Agnihotri. After her death, the property was devolved upon her husband Sh. Durga Dutt Agnihotri and other legal heirs, who had relinquished their shares in faovur of Sh. Durga Dutt Agnihotri whereby he became sole and absolute owner. After the death of Sh. Durga Dutt Agnihotri (D.D. Agnihotri) again his legal heirs became coowners in respect of the property in question. Late Sh. O.D. Agnihotri, husband of the petitioner no.1 was also a son of Sh. Durga Dutt Agnihotri and hence, entitled to 1/8th undivided share in the property. Infact, the tenanted premises was let out by Late Sh. O.D. Agnihotri as coowner on behalf of himself and other coowners to the E79885/16 Page 3/18 respondent no.1. However, after death of Sh. O.D. Agnihotri, the tenant/ respondent no.1 attorned to petitioner no.1 as his landlord and was paying rent to her. Late Sh. B.S. Agnihotri, husband of the petitioner no.2, Smt. Roopi Agnihotri was also a son of Late Sh. Durga Dutt Agnihotri and hence, entitled to 1/8th undivided share in the property and after his death, petitioner no.2, Smt. Roopi Agnihotri became entitled to his share. Thus, petitioner no.2, Smt. Roopi Agnihotri being a coowner is also entitled to file the present petition.
5. It is further stated that the respondent no.2 on behalf of the respondent no.3 company had filed an eviction petition against the respondent no.1 on the false grounds that the petitioner no.1 has sold the property to the respondent no.3 company vide various agreement to sell, affidavits, General Power of Attorney etc. It is stated that in the said petition for eviction, the respondent no.1 initially taken the stand that the tenanted premises was let out to him by the petitioner no.1 and not by the respondent no.3. However, during pendency of that petition, the respondent no.1 had compromised the matter with the respondents no.2 & 3 and had received a sum of Rs. 5 lacs by way of cheque and have divested himself of all the rights that he has a tenant under the petitioners, illegally and without obtaining written consent of the petitioners. Thereafter, he parted off with the possession of the tenanted premises in favour of respondents no.3 vide compromise dated 26.03.2008. Hence, the petitioner has prayed for grant of an E79885/16 Page 4/18 eviction order under Section 14 (1) (b) & (j) of the D.R.C. Act against the respondents.
6. Notices of the petition have been served upon respondents. Written statements was filed on behalf of the respondents no.2 & 3. Thereafter, an application U/s 153 r/w Section 151 CPC moved on behalf of the petitioners on 18.05.2011 in order to mention the rate of rent at the rate of Rs. 100/ per month and also to file site plan on record which was allowed vide order dated 24.08.2011 with liberty to the respondents to file amended written statement. Thereafter, the written statement was filed on behalf of the respondent no.1 as well. However no amended written statement was filed on behalf of the respondents no.2 & 3.
7. In written statement filed by the respondent no.1, it has been contented that the petitioners are no more owners of the property in question as they have surrender their rights of ownership in favour of the respondent no.3, M/s Aman Associates. It is stated that the petitioners and other legal heirs of Sh. D.D. Agnihotri never claimed any right, or interest in respect of the property in question after entering into agreement in favour of the respondent no.3 for sale. Infact, the application preferred by Smt. Roopi Agnihotri Under Order 1 Rule 10 CPC in eviction petition filed by the respondent no.3 was dismissed by the Court. It is contended that the respondent no.1 is no E79885/16 Page 5/18 more a tenant in respect of the premises in question. He has already surrendered the rights and possession of tenancy in favour of the respondent no.3 on 26.03.2008 before the Court of Sh. Amit Gaur. It is admitted that earlier the rate of rent was Rs. 100/ per month. However, it is again stressed that presently no relationship of landlord and tenant exist between the petitioners and the respondent no.1. It is contended that Sh. Deepak Agnihotri and Sh. Varun Mahajan are not duly constituted attorneys of the petitioners.
8. Written statement also filed on behalf of the respondents no.2 & 3. It is contended in the same that the petitioners have sold their respective portions in the property bearing no. 1E/2, Jhandewalan Extension, New Delhi to the respondent no.3. It is contended that after execution of the sale documents and after receiving the sale consideration, the petitioners have handed over the vacant and peaceful possession of the said property to the respondent no.3, thus the respondent no.3 through its Director namely Sh. T.R. Anand (respondent no.2) became owner of the suit property. It is contended that all the coowners of the suit property have executed agreement to sell and other documents constituting ownership rights in favour of the respondent no.3. Infact, constructive, or proprietary possession of the tenanted premises under the agreement to sell was also transferred in favour of the respondent no.3 in the year, 1988 itself. It is stated that the rights of the respondents no.2 & 3 were protected U/s 53A of the E79885/16 Page 6/18 Transfer of Property Act. It is stated that the petitioners are not owners/ landlords qua property in question. It is further stated that the respondent no.3 has already filed a suit for specific performance against the petitioners which is pending disposal before the Court of Ld. Civil Judge.
9. Petitioner has filed replication to the written statement of the respondent no.1 denying all the contentions made by the respondent no.1 in the written statement and further, reiterated the averments made in the petition.
10. Due to nonappearance of the respondents, the respondents were proceeded exparte vide order dated 02.04.2013. Thereafter, an application Under Order 9 Rule 7 CPC was moved on behalf of the respondents no.2 & 3 which was dismissed vide order dated 24.05.2014. Thereafter, an application Under Order 22 Rule 10 CPC was moved on behalf of M/s Solace Exports (P.) Ltd. for its substitution in place of petitioner no.2, Smt. Roopi Agnihotri as she has sold her share in the suit property to M/s Solace Exports (P.) Ltd. The said application was allowed vide order dated 07.04.2015, thereby petitioner no.2, Smt. Roopi Agnihotri was replaced by M/s Solace Exports (P.) Ltd.
11. PW2 Sh. M.K. Mahajan on behalf of the petitioner no.2 E79885/16 Page 7/18 adduced evidence by way of affidavit on record. Opportunity of the petitioner no.1 to adduce evidence was closed vide order dated 24.05.2016.
12. Thereafter, the matter was fixed for exparte final arguments and thereafter, for judgment. In the meantime, an application U/s 151 CPC and Under Order 9 Rule 7 CPC was moved on behalf of the respondents no.2 & 3 seeking permission to crossexamine PW2. The application was allowed vide order dated 09.06.2017 and an opportunity was granted to the respondents no.2 & 3 to crossexamine PW2. Accordingly, PW2 was crossexamined by the respondents no.2 & 3. Since the matter was already finally heard exparte and was fixed for exparte judgment, a single opportunity was granted to the respondents no.2 & 3 and therefore, P.E. was closed on 01.02.2018. Thereafter, final arguments were heard and the matter was fixed for judgment.
13. PW2 has deposed almost on the same lines as averred in the petition. It is further stated that Smt. Roopi Agnihotri entered into an agreement to sell dated 31.12.2007 with M/s Solace Exports (P.) Ltd. and also executed various other documents like receipts, Will, GPA etc. in its favour and handed over the proprietary possession of the suit property in favour of M/s Solace Exports (P.) Ltd. It is stated that subsequently on 21.08.2013, the sale deed was also executed in E79885/16 Page 8/18 respect of 1/8th undivided and undefined share fo Smt. Roopi Agnihotri. He proved Board of Resolution dated 26.08.2013 which is Ex. PW2/1; family settlement/ compromise deed dated 25.03.1987 as Ex. PW2/2, site plan of suit premises is Ex. PW2/3A and sale deed dated 21.08.2013 is Ex. PW2/3. In his crossexamination, the witness has shown his ignorance to the fact whether any suit titled as I.D. Agnihotri Vs. Rajesh Kumar & Ors. is pending in the Court of Ld. ADJ. He cannot even tell, if he has moved an application for impleading M/s Solace Exports (P.) Ltd. as party in that suit. It is stated by him that he is aware about an agreement to sell executed by Sh. B.S. Agnihotri during his lifetime in favour of M/s Aman Associates. It is voluntarily stated that it was not a correct agreement as the suit (on the basis of same) has been dismissed by the Court. He cannot tell, if the suit was dismissed in default, or on merits. It is stated that he is aware about Will dated 21.04.1974 of Late Sh. D.D. Agnihotri. It is stated that he has not taken any permission from the Court for purchasing the share of Smt. Roopi Agnihotri during pendency of the present petition. It is stated that he is aware about the case titled as I.D. Agnihotri Vs. Ravi Anand & Ors. It is also accepted that he is also a party in that suit. This witness has shown his ignorance to the fact that Late Sh. B.S. Agnihotri, husband of Smt. Roopi Agnihotri has taken 90% of total consideration from M/s Aman Associates as per their agreement to sell. It is stated that he is aware about pendency of case titled as M/s Aman Associates Vs. Shanta E79885/16 Page 9/18 Agnihotri. It is accepted that Smt. Roopi Agnihotri had executed an unregistered Power of Attorney in favour of Sh. Varun Mahajan (son of this witness). He has also filed on record the family settlement/ compromise deed dated 25.03.1987 (Ex. PW2/2).
14. No other witness has been examined on behalf of the petitioner no.2 and petitioner's evidence stands closed.
15. In rebuttal, no evidence could be adduced by the respondents as they were proceeded exparte.
16. The undersigned has heard the submissions of Ld. Counsel for the parties and perused the record.
17. The present petition has been filed by the petitioners under Section 14 (1) (b) of D.R.C. Act. To succeed on this ground, a petition must satisfy the following ingredients :
(i) That there is relationship of landlord and tenant between the parties;
(ii) That the tenant has sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
E79885/16 Page 10/1818. Now the undersigned shall deal with the evidence led by the parties to decide whether the aforesaid ingredients as required U/s 14 (1) (b) of DRC Act have been proved on the record or not.
19. It is a peculiar case wherein the petitioner no.1 did not adduce any evidence. The petitioner no.2, Smt. Roopi Agnihotri during trial has sold her share in favour of M/s Solace Exports (P.) Ltd. Further, PW2 is the witness on behalf of M/s Solace Exports (P.) Ltd. Since the respondents were proceeded exparte, hence no evidence has been adduced on behalf of the respondents. Infact, after they declared ex parte, the respondent no.1 never appeared before the Court. Apparently, there was an agreement to sell executed in favour of the respondent no.3 by legal heirs of Late Sh. D.D. Agnihotri including the petitioners and their predecessorininterest. However, no such agreement to sell has been exhibited and proved on record. A person cannot became owner and landlord of the property only on the basis of an agreement to sell. It is a matter of record that the suit for specific performance filed by the respondent no.3 on the basis of said agreement to sell has been dismissed. Hence, till date no specific performance for agreement to sell has been granted in favour of the the respondent no.3.
20. In Ravi Dutt Vs. Vinita, RC. Rev. 219/2015, decided on E79885/16 Page 11/18 31.07.2017 it was held by Hon'ble High Court of Delhi that : In the light of the judgment in Jiwan Dass Rawal Vs. Narain Dass, AIR 1981 Del 291 holding that an agreement purchaser has no right in the property agreed to be purchased, not only till when a decree for specific performance of the said agreement is passed but also till the conveyance deed in pursuance thereto is executed and which judgment has been consistently followed in Cement Corporation of India Ltd. Vs. Life Insurance Corporation of India Ltd., (2014) 145 DRJ 148 (DB), Deewan Arora Vs. Tara Devi Sen, (2009) 163 DLT 520, Sunil Kapoor Vs. Himmat Singh, (2010) 167 DLT 806, ASV Industry Vs. Surinder Mohan, (2013) 137 DRJ 429 and for the reason of this Court in Sanjiv Pathak Vs. Som Nath, (2013) 204 DLT 667, further holding that post the amendment in the year 2001 of the Registration Act, 1908 and the insertion of Section 17(1A) therein interalia providing that there can be no delivery of possession in part performance under Section 53A of the Transfer of Property Act, 1882, without a registered Agreement to Sell, the petitioner, even if has agreed to purchase the premises in his tenancy, is not entitled to save his possession of the E79885/16 Page 12/18 premises as a tenant and if has incurred a ground of eviction under the Rent Act and is liable to be evicted from the premises. The petitioner, if succeeds in the suit for specific performance, can, after conveyance deed is executed in his favour, recover possession also of the premises. Similarly the petitioner can apply to the suit Court to restrain the respondent from, after evicting the petitioner, dealing with the premises so as to defeat the rights of the petitioner, if were to succeed in the suit. Not only so, Section 14(1) of the Rent Act also is "Notwithstanding anything to the contrary contained in any other law or contract.......". While Section 14(1) on the one hand prohibits any order or decree for recovery of possession in favour of landlord against a tenant being passed, it on the other hand empowers the Controller constituted under the Act to, if satisfied of a ground of eviction prescribed therein to have accrued to a landlord, to pass an order of eviction. Thus, once a ground of eviction prescribed under the Rent Act has accrued to the landlord and the Rent Controller is satisfied in this respect, the tenant would be liable to be evicted, notwithstanding any other law or contract. Moreover, the suit for specific performance is still in the first Court and there are likely to be multiple appeals E79885/16 Page 13/18 therefrom and the respondent/ landlord, if entitled to evict the petitioner/ tenant, cannot be deprived of his property even before, in the suit for specific performance, he is found to be liable to convey the same to petitioner/ tenant.
21. Similarly, in the present case, though there would have been an agreement to sell qua property in question in favour of the respondents no.2 & 3, however prior to succeeding in the suit for specific performance and getting a conveyance deed in his favour cannot claim himself to be the owner of the property/ premises in question. Thus, till the time succeeding in suit for specific performance and getting a conveyance deed qua premises in question, the respondents no.2 & 3 will remain strangers to the property. Hence, handing over of possession of the property to them by the original tenant will amount to subletting.
22. It is proved that the respondent no.1 in eviction petition filed by the respondent no.3 through its Director i.e. respondent no.2 had compromised the matter and handed over the vacant possession of the property to the respondent no.3 against receipt of a sum of Rs. 5 lacs. It is to be noted that till that date, the respondent no.3 has not become owner/ landlord of the property in question, thus original tenant (respondent no.1) parted with the possession of the property in favour E79885/16 Page 14/18 of the respondent no.3 would amount to subletting as he parted with the possession of the property in favour of a third person against money. Therefore, this Court is of the considered opinion that the petitioners have proved all the necessary ingredients of Section 14 (1)
(b) of Delhi Rent Control Act, 1958.
23. The petitioners have also claimed eviction on the ground as mentioned 14 (1) (j) of the Act. The petitioner is required to prove that the respondents have caused or permitted to be caused substantial damage to the premises.
24. To succeed on this ground, the petitioners have to prove on record that the respondents have caused substantial damage and not mere damage. Moreover, addition or alternation in the tenancy premises which do not change the nature or structure of the premises let would not be covered by this clause. It is settled law that the substantial damage in the property is to be seen from the point of view of the landlord and not from the point of view of the tenant. Every construction or alternation does not impair the value and utility of the building and the construction must be of material nature which should substantially diminish the value of building either from commercial and monetary point of view or from utilisation aspect of building as held in the judgment titled as Suraj Prakash Chopra Raj Kumar Vs. E79885/16 Page 15/18 Baij Nath & Ors. 103 (2003) DLT 645.
25. In the backdrop of the position of the law as stated hereinabove, it is to be seen whether the petitioners have proved their case Under Section 14 (1) (j) of the Act or not. As discussed earlier, the onus to prove the fact that the respondents have caused or permitted to be caused substantial damage to the premises always lies on the petitioners. Having gone through the evidence led by the petitioner no.2 on the record, I am of the opinion that the petitioners have failed to prove his case U/s. 14 (1) (j) of the Act, for the following reasons :_
(a) Firstly, the petitioners have not examined any expert witness or no expert evidence has been led to prove that the respondents have caused any substantial damage to the premises. Any alternation or addition shall not fall in the definition of substantial damage. In the absence of any expert evidence in this regard, the petitioners have failed to prove the substantial damage to the premises.
(b) Secondly, the petitioners have simply stated in the petition that the respondents have caused major structural changes in the tenanted premises by removing one of the wall. The petitioners have not filed any document on record which shows specifically as to what was let to the respondents at the time of the creation of the tenancy. The E79885/16 Page 16/18 petitioners have not examined any other witness to clear on the record as to what was let to the respondents.
(c) Thirdly, no independent witness has been examined to depose the exact accommodation let out to the respondents. In absence of the same, it has not been proved on record that the respondents have caused substantial damage to the property.
(d) Fourthly, the petitioners have not led any evidence in this regard to show that there was substantial damage to the property which has been done by the respondent.
(e) Fifthly, no documentary evidence regarding the actual accommodation available at any point of time available with the respondents have been filed by the petitioners. In absence of the same, nothing has come on the record about the original accommodation with the respondents and the substantial damage, if at all, has been done by the respondents.
26. In view of the aforesaid discussions, the undersigned is of the opinion that the petitioners have failed to prove the essential requirements of U/s 14 (1) (j) of the Act. Hence, the present petition stands dismissed visavis Section 14 (1) (j) of the Act.
E79885/16 Page 17/1827. The petitioners have successfully proved their case U/s 14 (1)
(b) of the Act and the petition stands allowed visavis section 14(1)
(b) of the Act. It is to be noted that the present petition has decided the rights of the respondent no.1 as well as the respondents no.3 through its Director i.e. respondent no.2 who has received possession from the respondent no.1, as sublettee. This Court has not decided the rights of the respondents no.2 & 3, if any U/s 53A of the Transfer of Property Act on the basis of the alleged agreement to sell and other documents.
28. Accordingly, an eviction order is passed U/s 14 (1) (b) of DRC Act in favour of the petitioners and against the respondents in respect of one small room under the staircase, ground floor, back side of the building bearing no. 1E/2, Jhandewalan Extension, New Delhi, as shown in red colour in the site plan filed by the petitioners. Parties to bear their own costs.
File be consigned to Record Room.
Digitally signed GAJENDER by GAJENDER
SINGH SINGH NAGAR
Date: 2018.09.12
NAGAR 11:50:43 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 12.09.2018 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi
(This judgment contains 18 pages in total)
E79885/16 Page 18/18
E79885/16
12.09.2018
Present : None.
Vide separate judgment, the present petition stands dismissed visavis Section 14 (1) (j) of the Act. An eviction order is passed U/s 14 (1) (b) of DRC Act in favour of the petitioners and against the respondents in respect of one small room under the staircase, ground floor, back side of the building bearing no. 1E/2, Jhandewalan Extension, New Delhi, as shown in red colour in the site plan filed by the petitioners. Parties to bear their own costs.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central), Delhi/12.09.2018 E79885/16 Page 19/18