Delhi District Court
Ashok Kumar vs Hari Om on 14 October, 2024
IN THE COURT OF MS. TISTA SHAH, ARC-01, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
RC ARC NO. 78621/2016
Sh. Ashok Kumar
S/o Sh. Sri Ram,
R/o H. No. 4443, Gali No. 9,
Jai Mata Market, Tri Nagar,
Delhi. ..........Petitioner
Versus
Sh. Hari Om,
S/o Sh. Kishori Lal,
86, Sadar Apartment,
Mayur Vihar, Phase I,
Delhi
And
Flat No. 92, Sadar Apartment
Mayur Vihar, Phase I,
Delhi
And.
C/o 115, First Floor
Gali Krishna, Pahar Ganj,
New Delhi - 110055. .........Respondent
Date of institution of the case : 07.03.2012
Date of Judgment reserved : 04.10.2024
Date of Judgment pronounced : 14.10.2024
Decision : Petition U/s 14 (1) (d) of DRC
Act allowed and U/s 14 (1) (h) of
DRC Act dismissed.
JUDGMENT
1. This judgment shall decide the eviction petition under Section 14(1) (d) and (h) of the Delhi Rent Control Act filed by the RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 1 of 19 petitioner on the ground of the respondent and his family members not having resided in the tenanted premises for the last six months prior to filing of the eviction petition and the respondent having acquired or allotted vacant possession of a residential accommodation. The tenanted premises is stated to be two rooms and two verandah in front of the rooms situated on the first floor in property at 115, Gali Krishna, Pahar Ganj, New Delhi-55. The same is shown in red colour in the site plan which is annexed with the petition.
2. The facts of the present petition as stated by the petitioner are that neither the respondent nor any member of the family of the respondent is residing in the premises in dispute for the last more than six months and the premises in dispute is lying locked. Further, the respondent has built and acquired another accommodation at flat no. 92, Sadar Apartment, Mayur Vihar, Delhi. Thus, the petitioner prays that his petition may be allowed.
3. The respondent has filed a written statement to the petition wherein it is stated that the premises in question was earlier owned by Ms. Changamal Mange Lal and thereafter it came to be owned by Late Sh. Sriram, S/o Late Sh. Mange Lal. It is further stated that the respondent predecessor's interest i.e firm M/s Kishori Lal Suraj Bhan were inducted as tenant in the premises in suit, however, the demised premises were let out to M/s Kishore Lal Suraj RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 2 of 19 Bhan for composite purpose i.e. residential as well as commercial use. The respondent had taken a separate portion for the residence in the same building where he was residing and an eviction petition on the ground of bonafide requirement had also been filed by late Sh. Ram Kishan, son of Sh. Sriram against the respondent. That the petitioner is neither the landlord nor the owner of the demised premises, he is merely a rent collector who used to collect rent on behalf of the HUF family of late Sh. Sriram. The petitioner as Rent Controller while issuing rent receipt which is annexed with the petition has wrongly described it residential and it has also escaped the notice of the respondent because the premises had been let out to M/s Kishori Lal Suraj Bhan who was dealing in cloth business in the Main Bazar, Paharganj, Delhi and using the premises for residence as well as a godown for storing goods. It is further stated that the petitioner purchased premises in question whereas the fact is that after the death of Late Sh. Sriram the property had fallen to Joint Hindu Property in the hands of LRs of Late Sh. Sriram. It is stated that the tenanted premises is not lying locked and is still being used for commercial purposes for storage of goods. Further, the respondent has also an office in the same premises and since the respondent does not have any intention of shifting to any other accommodation, it is prayed that the present petition be dismissed.
4. The petitioner has filed a replication wherein it is stated that the firm M/s Kishori lal Suraj Bhan never existed. In fact, Shri RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 3 of 19 Kishori Lal and Sh. Suraj Bhan were tenants in the premises in dispute. It is further stated that in a partition between the members of HUF of Sh. Ram, the premises in dispute had fallen to the share of the petitioner and the respondent had started paying rent to the petitioner after passing of the said decree. It is further submitted that original tenancy was in the name of Sh. Kishori Lal and Sh. Suraj Bhan and after the demise of Sh. Kishori Lal and Sh. Suraj Bhan, the respondent was accepted as absolute tenant in the premises in dispute as tenancy of Sh. Kishori Lal devolved upon the respondent. That the premises in dispute was always let out for residential purpose. Further, in the replication, the averments of the written statement have been denied and the averments of the petition have been re- iterated by the petitioner.
5. In order to prove the case, petitioner examined himself as PW-1. He tendered his evidence by way of affidavit as Ex. PW- 1/A and relied upon following documents i.e
(i) Ex. P-1 i.e. the site plan
(ii) Ex. P-2 (OSR) i.e. photocopy of receipt dated 09.02.2010.
(iii) Mark A i.e. electricity bill in the name of the respondent.
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(iv) Mark B i.e. electricity bill in the name of the son of the respondent.
(v) Ex. P-5 i.e. certified copy of the judgment dated 19.01.2012 of Slum Court.
6. Despite grant of several opportunities, when the respondent did not lead evidence, the opportunity of the respondent to lead respondent evidence was closed on 19.08.2023 which order was also affirmed by the order of the Ld. RCT vide order dated 07.11.2023.
7. I have heard arguments and carefully gone through the record. For obtaining an order of eviction under section 14 (1) (d) of Delhi Rent Control Act, the petitioner has to establish the following:
-
(i) Existence of relationship of landlord and tenant between the parties
(ii) That the tenanted premises was let out for residential purposes
(iii) That neither the tenant nor any member of his family has been residing therein for the period of six months immediately before filing of eviction petition.
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8. The petitioner has claimed to be the owner and the landlord of the tenanted premises bearing no.115, Gali Krishna, Pahar Ganj, New Delhi - 55. A rent receipt dated 09.02.2010, present on record as Ex. P-2 has been filed on behalf of the petitioner wherein the name of the petitioner is mentioned. The name of the respondent Hari Om as son of late Sh. Kishori Lal is mentioned therein as the tenant of the tenanted premises. The said rent receipt, Ex. P2 has nowhere been denied by the respondent.
9. The respondent has stated that the tenanted premises was earlier owned by M/s Changamal Mange Lal and thereafter came to be owned by late Sh. Shriram, s/o late Sh. Mange Lal. The ownership and landlordship of the petitioner has been disputed stating that the petitioner was merely a rent collector who used to collect rent on behalf of the family of late Sh. Shriram.
10. In the written statement, the respondent has admitted himself to be a tenant in the tenanted premises. It is the title of the petitioner that has been challenged who has been described as a mere rent collector. In this regard, it is necessary to peruse the provision of Section 2 (e) of the RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 6 of 19 DRC Act which provides for the definition of a landlord which states as follows i.e. "landlord" means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant".
11. Thus, a person who for the time being is receiving or is entitled to receive the rent of the premises would also be covered within the parameters of the definition of the landlord. Considering the said provision, even if the defence of the respondent is considered, it is to be noted that the respondent by describing the petitioner as a rent collector, has himself admitted the petitioner to be the landlord, since a person entitled to collect rent of a premises is also a landlord within the purview of the DRC Act.
12. The present petition has been filed under Section 14 (1) (d) of the DRC Act, which entitles a landlord to file the eviction petition. The landlord need not necessarily be the owner of the tenanted premises which RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 7 of 19 is also clear from the definition of landlord, as mentioned above. The rent receipt Ex. P-2 has not been specifically denied by the respondent which reflects the name of the petitioner as the landlord and the respondent as the tenant. Thus, from the very said document as well as the contents of the written statement, landlord-tenant relationship existing between the parties is evident.
13. Ld. Counsel for the respondent has also during oral arguments pointed out to certain contradictions in the testimony of the petitioner as PW-1 where it is stated that in the petition in para no. 12 (a) and (b), it is averred that the petitioner had purchased the constructed property. However, in his cross examination, the petitioner as PW-1 has specifically stated that it is correct that the suit property was not purchased by me. The said contradiction can be stated to a minor contradiction, considering the defence of the respondent where the father of the petitioner has been admitted to be the owner of the premises by the respondent himself in his pleadings. Further on, in the cross examination of PW-1, it has been stated voluntarily by him that he had inherited the suit property and the suit property had fallen to the share of his father, late Sh. Sriram in the decree of the partition. The copy of the decree of partition has also been filed on record as Ex. P-6 in which the petitioner RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 8 of 19 has been impleaded as defendant no. 6 and the father of the petitioner Sh. Sriram has been impleaded as defendant no.1. A perusal of the said judgment of partition dated 09.09.1983, Ex. P-6 does reveal a portion Mark 'C' as also having been allotted to the present petitioner yet no further details has been filed to ascertain which portion is Mark 'C'. Further there is no schedule or map filed alongwith Ex. P-6 to ascertain what share was allotted to each of the plaintiff and the defendants therein. Thus, Ex. P-6 cannot be stated to be document showing the title of the petitioner.
14. Even if Ex. P-6 is disregarded, it remains as a fact that the petitioner is the son of late Sh. Sriram who has been admitted by the respondent to be the owner of the tenanted premises. It has not further been specified by the respondent that the tenanted premises was allotted to any other legal heir of Sh. Sriram or was transferred to any other person. The petitioner has in his cross examination also stated that he alongwith the other legal heirs of Sh. Sriram was the co-owner of the tenanted premises. In para no. 3 (a) of the written statement, the respondent has also stated that "the property was earlier owned by late Sh. Sriram who has left many legal heirs and the property has jointly devolved upon the legal heirs of late Sh. Sriram". The petitioner has stated himself to be the RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 9 of 19 son and the legal heir of late Sh. Sriram and the said fact has nowhere been controverted by the respondent in his written statement. Considering the version of the respondent stated in the written statement, the petitioner can be stated to be one of the co-owner of the tenanted premises.
15. It is a well settled that in proceedings under the DRC Act, it is not necessary for all the co-owners to be impleaded and an eviction petition can be maintained by even one of the co-owner. In this regard, the judgment of the Hon'ble Supreme Court of India in M/s India Umbrella Manufacturing Company Vs. Bhaja Bandei Aggarwalla, 2004 (3) SCC 178 is pertinent to be noted where it was held that even a co-owner can file an eviction petition against the tenant and all the co-owners are not required to be joined as a party.
16. Further, the respondent has nowhere stated as to who according to him was the owner of the tenanted premises. If the respondent had any doubt regarding who was the owner, he could have filed an interpleader suit, however, no such suit has been filed by the respondent.
RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 10 of 19 At this juncture, reliance is placed upon the case of Bharat Bhushan Vij vs. Arti Techchandani, 2008 (153) DLT 247 where it was held as under :-
If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner."
17. Thus, considering the assertions of the respondent in the written statement, the same themselves go on to show that the petitioner was the co-owner and the landlord of the tenanted premises and the respondent was a tenant in the same. Accordingly, it can be stated that there is a landlord-tenant relationship existing between the parties, for the purposes of DRC Act.
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18. The second aspect that is required to be seen in a petition u/s 14 (1) (d) is whether the tenanted premises was let out for residential purpose and neither the tenant nor any member of his family had been residing therein for a period of six months immediately before filing of the present eviction petition.
19. The petitioner has all along contended that the tenanted premises in dispute had been let out for residential purpose and had been lying locked for the past six months since neither the respondent nor any member of his family were residing in the said premises.
20. For proving that the tenanted premises was let out for the purpose of residence, the petitioner has placed reliance upon Ex. P-2 which is the rent receipt mentioning the details of the tenanted premises. It is seen that therein it is specifically mentioned two rooms "rihaayashee" which denotes residential. The respondent in the written statement has not denied the said rent receipt but has merely stated that the petitioner while issuing the rent receipt has wrongly described as residential and the same had escaped the notice of the respondent since the premises had been let out to M/s Kishori Lal Suraj Bhan who was dealing with cloth business and had been using the tenanted premises for the residence of his family RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 12 of 19 members as well as as a godown for storing goods. It is stated that the tenanted premises is dispute was let out for composite purpose and the tenanted premises was not lying locked but was still being used for commercial purpose. At the outset, the said assertion is not maintainable since the rent receipt Ex. P-2 nowhere bears the name of any firm of M/s Kishori Lal Suraj Bhan, rather the same bears the specific name of the respondent as the tenant.
Besides, in the reply to the written statement, it has been averred by the petitioner that the tenanted premises was never let out to any such firm as M/s Kishori Lal Suraj Mal and initally Sh. Suraj Bhan was the tenant alongwith Sh. Kishori Lal. It has further been categorically denied in the reply that the tenanted premises was ever used for commercial purpose and it has been stated that the tenanted premises was always let out and used as for residential purposes. The petitioner has further reiterated in the reply as regards the tenanted premises being locked for the period of six months prior to filing of the eviction petition.
21. It is not out of place to mention here that the matter was fixed for respondent evidence since 01.04.2013. The respondent despite being granted a number of opportunities, for a period of more than ten years, did not lead any evidence on his behalf and hence, the opportunity RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 13 of 19 of the respondent to lead RE was closed on 19.08.2023, by way of the order of the Ld. Predecessor of this Court. The said order was reaffirmed in the appellate proceedings availed by the respondent, where by way of the order dated 07.11.2023 of the ld. RCT, the appeal of the respondent was dismissed.
Thus, no evidence at all was filed on behalf of the respondent for rebutting the averment of the petitioner that the tenanted premises was not locked and was currently in use. The respondent could have filed photographs or any other material to negate the contention of the petitioner, however, he failed to do so.
22. It has been pointed out by ld. Counsel for the respondent during oral arguments that in para no. 1 of the evidence affidavit of the petitioner, Ex. PW-1/A, a contradiction is apparent where it is mentioned that the premises in dispute was always used for residential purpose till date and hence, it is stated that petitioner has himself admitted that the premises was being used as a residence by the respondent in his evidence affidavit. In this regard, it is important to bear in mind that the entire evidence affidavit of the petitioner has to be read as a whole and picking and reading sentences in isolation from the evidence affidavit to state that the same reveals a contradiction is an erroneous reading and interpretation RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 14 of 19 of the same. In the evidence affidavit of the petitioner, Ex. PW-1/A the stance of the petitioner that the tenanted premises was let out for residential purpose and was never given for a commercial purpose has been maintained. It is stated in the said paragraph of the evidence affidavit that the "the premises in dispute was let to the respondent for the residential purpose and the same was used for residential purpose since the inception of tenancy till date. No commercial activities have been carried out from the premises in dispute". In paragraph no. 2 of Ex. PW- 1/A, it has further been stated that neither of the respondent nor any of the family members of the respondent is residing in the premises in dispute for the last more than one year and the premises in dispute is lying locked without any use. Thus, what can be gathered from the composite reading of the evidence affidavit is that the purpose for which the tenanted premises was let out, was for residential purpose, since the very beginning of the tenancy till date and was not being used by the family members of the respondent or the respondent for the past one year. Thus, it cannot be stated that there is any apparent contradiction as has been stated by ld. Counsel for the respondent in the evidence affidavit of the petitioner. Moreover, no contradictions have been disclosed in the cross examination of the petitioner.
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23. A perusal of the report of the process server dated 29.03.2012, as regards the summon addressed to the respondent at the tenanted premises also shows that in the report of the process server, it is mentioned that when the process server had reached the address of the tenanted premises, a person in the upper floor of the tenanted premises by the name of one Rekha had stated that the tenanted premises has been lying locked since a number of months. Thus, the said report of the process server also lends credence to the version of the petitioner.
24. Even if the version of the respondent is to be considered, the respondent has stated in his written statement that the tenanted premises was being used for storage of commercial nature and commercial merchandise and the respondent has also an office in the same premises. There is nothing present on record or filed by the respondent to show that the tenanted premises was let out either for a composite purpose or for a commercial purpose. Ex. P-2, which is the rent receipt clearly mentions the tenanted premises as being let out for residential purpose. There is nothing filed on record to rebut the said receipt Ex. P-2 filed by the petitioner. Moreover, the petitioner was not questioned upon the contents of the said receipt Ex. P-2, even during his cross examination. Considering the same, it can be stated that the tenanted premises was let out for RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 16 of 19 residential purpose. However, as per the version of the respondent himself it was being used for a commercial purpose. The provision of Section 14
(d) provides a ground for eviction, in case the tenant or any member of his family had not been residing at the tenanted premises for a period of six months immediately prior to the filing of the present eviction petition. The respondent has nowhere stated that the tenanted premises was being used by the respondent or his family members for a residential purpose anytime during the six months prior to filing of the eviction petition. Thus, even if it is assumed that the tenanted premises was not locked and as stated by the respondent was being used for a commercial purpose only, still the same would not qualify the premises being used for the purposes of residence by the respondent or his family members. Consequently, it can be stated that the petitioner has been able to establish the grounds required to be proved for establishing his case under Section 14 (1) (d) of DRC Act.
25. The petitioner has also filed the present eviction petition on the ground of Section 14 (1) (h) of the DRC Act, which provides a ground of eviction to the landlord in case the respondent /tenant had acquired another property for residence.
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26. It has been stated by the petitioner that the respondent has built and acquired a residence at flat no. 92, Sadar Appartment, Mayur Vihar, Delhi 91. Although Ld. Counsel for the petitioner has averred during oral arguments that the said averment of the petitioner in the petition has not been specifically denied in the written statement and hence, the same stands proved, a perusal of written statement shows that the contents of said paragraph of the petition wherein the petitioner has averred the ground of Section 14 (1) (h) of DRC Act, have been stated to be wrong and denied. Thus, although it does appear that there is no specific denial in the written statement, yet in the cross examination of the petitioner, a suggestion has been given to the petitioner/PW1 to the effect that "it is wrong to suggest that the respondent has not acquired any other residential premises". Thus, it is important to see here whether the petitioner has independently been able to prove the said assertion.
27. The petitioner has filed an electricity bill bearing the name of the respondent with the address of the flat at Mayur Vihar, however, the said document is merely a photocopy present on record as Mark A and hence cannot be relied upon at this stage. Further, an electricity bill cannot be stated to be a title document. Besides the said document, nothing has been filed by the petitioner in support of his averment to show that the RC ARC No. 78621/2016 Ashok Kumar Vs. Hari Om Page no. 18 of 19 respondent had build and acquired a residence at flat no. 92, Sadar Appartment, Mayur Vihar, Delhi -91. Thus, the petitioner has failed to establish the case U/s 14 (1) (h) of DRC Act.
28. In view of the above discussion, it can be concluded that the petitioner has succeeded in establishing his case under Section 14(1)(d) of the Delhi Rent Control Act. Accordingly, an eviction order is passed in favour of the petitioner and against the respondent directing the respondent to vacate the tenanted premises i.e. 115, Gali Krishna, Pahar Ganj, New Delhi - 110055, more specifically shown in red color in the site plan filed by the petitioner Ex. P-1, in terms of Section 14 (1) (d) of the Delhi Rent Control Act. As far as the petition under the ground of Section 14 (1) (h) of DRC Act is concerned, the petitioner has failed in establishing the ground under Section 14 (1) (h) of DRC Act against the respondent and hence, the petition on only the said ground is dismissed.
Parties are left to bear their own cost. File be consigned to Digitally signed by Record Room after due compliance. TISTA TISTA SHAH Date:
SHAH 2024.10.14
16:37:46
+0530
(Tista Shah)
ARC-01, Central District,
Tis Hazari Courts, Delhi
14.10.2024
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