Delhi District Court
Rajhans Realtors Pvt. Ltd vs Rajinder Goyal on 13 December, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No.37/2011
ID No.: 02406C0166292011
Rajhans Realtors Pvt. Ltd.
(A Company incorporated under
The Indian Companies Act, 1956)
Through its Director
Mr. Mohan Lal
having its Registered Office at:
M2, Greater KailashI Market,
Rear Side, New Delhi 110048 ... Appellant
Versus
1. Rajinder Goyal
2. Narinder Kumar Goyal
Both sons of Sh. Phool Chand
At M2, Ground Floor,
Greater KailashI Market,
New Delhi. ... Respondents
Instituted on: 06.07.2011
Judgment reserved on: 09.12.2011
Judgment pronounced on : 13.12.2011
ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 1 of 14
JUDGMENT:
1. This appeal under Section 38 of the Delhi Rent Control, 1958 (hereinafter referred to as "DRC Act") challenges the order dated 30.05.2011 passed by Sh. Sandeep Yadav, Rent Controller (South) in eviction petition bearing No. E 2/11/07. The eviction petition was brought before the Court of Rent Controller by the appellant seeking an order of eviction against the respondents on the ground under Section 14(1)(b) of DRC Act in respect of the property/shop bearing No. M2, Greater Kailash I, New Delhi 110065 (hereinafter referred to as "tenanted property)." Vide the impugned order, the learned Rent Controller dismissed the application of the appellant under Order XII Rule 6 of the Code of Civil Procedure, 1908.
2. Aggrieved with the order, through the appeal at hand the appellant assails the correctness, legality and propriety of the view taken by the learned Rent Controller.
3. At the outset, the Respondents have challenged the maintainability of appeal on the ground that the order of the Rent Controller under Order XII Rule 6 is not an appealable order and the instant appeal deserves dismissal. It is submitted that under CPC, an appeal could ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 2 of 14 lie only against those orders which were made expressly appealable under Section 104 and Order XLIII Rule 1 CPC. An order under Order XII Rule 6 is not made appealable therein. The appellant, on the other hand, contended that the instant appeal is under Section 38 of the DRC Act and an order under Order XII Rule 6 affects the rights and liabilities of the parties and is appealable thereof. Reliance has been placed on Umesh Kumar Gupta v.
Dr W.M. Sadoc [AIR 1984 Del 213] wherein it was held that the object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. I find force in the said contention of the Appellant and hold the instant appeal to be maintainable.
4. From the pleadings in the appeal, and also as noticed in the impugned order, based on the petition filed by the Appellant and the reply thereto filed by the Respondent before the Rent Controller, certain facts emerge as common ground which may be taken note of at the outset.
5. It is undisputed case of both sides that the Respondent No. 1 and his father Shri Phool Chand were the joint tenants in the tenanted property. The said tenancy was created by late Shri Jagan Nath, the then owner of the premises in October, 1967. The appellant having ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 3 of 14 purchased the same vide registered sale deed dated 9th October, 2002 became the owner of the property.
6. From the pleadings it is undisputed that the Respondent No. 1 Shri Rajender Goyal, Respondent No. 2 Shri Narender Kumar Goyal, Shri Mahender Kumar, Shri Mohan Lal and Shri Narender Kumar are the sons of Shri Phool Chand in whose favour joint tenancy was created alongwith respondent No. 1 Shri Rajender Goyal. Further, a partnership was entered into by and between the Respondent No. 1 Shri Rajender Goyal, Shri Phool Chand and Shri Mahender Kumar in the name of M/s Goyal Stores. It is further admitted fact on both sides that since July 1982 the late Shri Phool Chand suffered a paralytic stroke and was confined to bed and eventually died on 21/02/1992.
7. The appellant brought the eviction petition on the grounds under Section 14(1)(b) of the DRC Act in respect of the tenanted property on the strength of having purchased the same vide sale deed dated 9th October, 2002. It is averred in the petition that in 1986 during the lifetime of Shri Phool Chand, the possession of tenanted property was handed/assigned over to Shri Mahender Kumar, Shri Mohan Lal and Shri Narender Kumar. It is stated that the above three persons were in exclusive possession and control of the ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 4 of 14 tenanted property as well as the business of the partnership firm M/s Goyal Stores. Neither Shri Phool Chand who was confined to bed on account of a paralytic stroke nor Respondent No 1 was in possession and control of the tenanted property. It is further stated that these facts have been admitted by Respondent No. 1 in the petition under Section 20 of the Indian Arbitration Act, 1940 filed in the Hon'ble High Court of Delhi being Suit No. 1748 of 1990 titled as "Rajinder Kumar Goyal v. Phool Chand & Anr."
8. Respondents, on the other hand, have contested the eviction petition through written statement filed on 18.04.2007 in which they, inter alia, pleaded that after the death of late Shri Phool Chand on 21.02.1992, the tenancy rights devolved on all the legal heirs of late Shri Phool Chand and Respondent No. 2 is one of the legal heirs of late Shri Phool Chand alongwith Respondent No. 1 who is a joint tenant in respect of the tenanted premises as well as legal heir of late Shri Phool Chand. The Respondent No. 2 cannot be called as subtenant when both the respondents are in undisturbed, continued possession since the death of Shri Phool Chand when Respondent No. 2 stepped into the shoes of Shri Phool Chand. Further, at no point of time there was subletting of the premises to Shri Mahender Kumar, Shri Mohan Lal and Shri ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 5 of 14 Narender Kumar as alleged as all of them are sons of late Shri Phool Chand and were looking after the business on account of illness of the late Shri Phool Chand. Thus, the prayer of eviction in the eviction petition, inter alia, on the ground of subletting, is false, frivolous and misconceived.
9. Against the aforesaid backdrop, the appellant moved an application under Order XII Rule 6 CPC. The Appellants contended that since third persons are in exclusive physical and legal possession of the tenanted property having been brought from the pleadings / application filed by the Respondent No. 1 under Section 20 of the Arbitration Act, 1940 in the High Court of Delhi, an eviction order under Order XII Rule 6 CPC on the ground of subletting under Section 14(1)(b) of the DRC Act deserves to be passed. It was also contended that it was admitted by the Respondent No. 1 that Shri Phool Chand being confined to bed was wholly unable to supervise, control and guide the affairs of the partnership firm and had no control over the premises. The Respondent No. 1 also admitted the management and control of business vested with Shri Mahender Kumar. It was further contended that respondent No. 1 have admitted parting with the possession of the tenanted property and that the control/possession of the same was with third persons ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 6 of 14 namely Shri Mahender Kumar, Shri Mohan Lal and Shri Narender Kumar by stating that Shri Mahender Kumar had refused to deliver possession to Shri Rajender Goyal, the Respondent No. 1.
10.Learned Rent Controller was not impressed with the aforesaid contentions. He dismissed the application under Order XII Rule 6 on the ground that there are no unequivocal or unambiguous admissions on the part of the Respondent No. 1 regarding parting of possession to some third party by respondent No. 1 and Shri Phool Chand. He observed that in the Arbitration proceedings, the respondent No. 1 demanded the possession of tenanted property from Shri Phool Chand and Shri Mahender Kumar. In other words, the possession of premises was never parted with by one of co tenant Shri Phool Chand. Further, Respondent no. 2 was not a party in the proceedings instituted under the Arbitration Act and therefore no decree can be passed against Respondent No. 2 on account of admissions on pleadings in the said proceedings by the Respondent No. 1. He also observed, inter alia, that the Appellant became owner of the tenanted property we.f 09.10.2002 and was not the owner when the alleged subtenancy took place. On this aspect, the Rent Controller observed that the question of waiver by the erstwhile owner cannot be decided at this stage and requires ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 7 of 14 evidence.
11.The appeal challenging the above order, has been resisted by the respondents through reply filed.
12.I have heard Shri Amitabh Narayan, advocate for the appellant and Shri S.P.Aggarwal, advocate for the Respondent. I have gone through the trial court record.
13.The Appellant has placed reliance on the following judicial pronouncements: (i) In Hira Lal v. M/s Padam Singh Jain & Co and Ors [1989 (1) RCJ 46 (Del)] the Delhi High Court laid down that if the unlawful subletting takes place before the transfer, the transferee who is the new owner/landlord can take advantage of the breach and ask for possession from the lessee; (ii) In M/s Parasram Harnand Rao v.
M/s Shanti Prasad Narinder Kumar Jain & Anr [AIR 1980 SC 1655] the Apex Court included involuntary sale (sale by the Official Liquidator) in the wide amplitude of Section 14(1)(b) and held that the language of Section 14(1)(b) is wide enough not only to include any sublease but even an assignment or any other mode by which possession of the tenanted premises is parted; (iii) In Singer India Ltd v.
Chander Mohan Chadha & Ors [AIR 2004 SC 4368] the Apex Court held that the applicability of the Section 14(1) ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 8 of 14
(b) depends upon occurrence of a factual situation, namely, sub letting or assignment or otherwise parting with possession of the whole or any part of the premises by the tenant. Whether it is a voluntary act of the tenant or otherwise and also the reasons for doing so are wholly irrelevant and can have no bearing. The aforesaid pronouncements are of no relevance in the facts and circumstances of the instant case and has no bearing on the instant appeal against an order dismissing an application under Order XII Rule 6 CPC.
14.I do not find any substance in the submission of the Appellant as to the admission being clear and unambiguous in the Application under Section 20 of the Arbitration Act, 1940 on the parting of possession by the respondent No. 1 or Shri Phool Chand to the third persons. Since Respondent No. 1 Rajender Goyal, Respondent No. 2 Narender Kr Goyal, Mahender Kumar and Mohan Kumar are all sons/ legal heirs of late Shri Phool Chand and it is stated by the Respondent in his defence that upon the death of late Shri Phool Chand on 21/02/1992, the tenancy rights devolved on all his aforesaid legal heirs, the same requires evidence and cannot be decided at this stage.
15.It is settled law on admissions that the admission has to be clear ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 9 of 14 from the record and cannot be left to the interpretative determination of the Court. And when a defence is set up and it requires evidence for the determination of the issues then the provisions of Order XII Rule 6 are not applicable and a judgment cannot be passed on the plaintiff's asking. In State Bank of India v. Midland Industries [AIR 1988 Del 153] the Court held that where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favour of the plaintiff. The purpose of Order XII Rule 6 is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous, and unconditional admission of the defendant in respect of the claim of the defendant. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment he should be able to obtain it at once to the extent of admission. But the rule is not intended to apply where there are serious questions of law are to be asked and determined. Likewise where specific issues have been raised inspite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 10 of 14 same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provision of Order XII Rule 6 CPC without proving those issues.
v.
16.In Raj Kumar Chawla Lucas Indian Services [129 (2006) DLT 755] Hon'ble High Court stated that there cannot be an inferential admission - it has to be unambiguous. In other words, the Court should not deduce an admission, as the result of an interpretive exercise. The Court's approach while considering whether any averment or omission to traverse any material allegation amounts to an admission cannot be subjective or one side. It has to necessarily, take into consideration the implications which may arise from a party urging one contention or another, on the basis of what is on record.
17.Where questions of fact have been raised which can be decided only at the time of trial, a Judgment under Order XII Rule 6 cannot be pronounced on the basis of alleged admissions in the pleadings.
v.
In the case of Express Towers P. Ltd & Anr Mohan Singh [97 (2007) DRJ 687 (DB)] it was held that it may not be safe and correct to pass a judgment under Order XII Rule 6 of the Code when a case involves disputed questions of fact and law which require adjudication and decision. Even when a party has made an ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 11 of 14 admission, the Court need not dismiss or allow the suit. Judgment on the basis of admissions is not a matter of right but a matter of discretion for the Court.
18.I also find no merit in the submission of the Appellant that on account of illness of Shri Phool Chand he had no control over the tenanted premises. By no stretch of imagination, subtenancy or parting of possession can be inferred from the same. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. v.
Chander Bhan And Ors.
[(1988) 3 SCC 57] held:
"The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 12 of 14 been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession"
19.Thus, in my opinion, eviction order on the basis of "admissions" under Order XII Rule 6 cannot be passed on the basis of an inferential admission and where there is no clear admission as such. There being no clear or unambiguous admission on the part of the Respondents, there is no case made out for an order of eviction under Order XII Rule 6 CPC.
20.For the foregoing reasons, the appeal does not deserve to be allowed and is dismissed.
ARCT No. 37/11 Rajhans Realtors Pvt. Ltd. Vs. Rajinder Goyal & anr. 13 of 14
21.The Trial Court record be returned with copy of this judgment.
22. Appeal file be consigned to record room.
Announced in open Court today on this 13th day of December, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
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