Delhi District Court
Smt. Meenakshi Gupta vs Sh. Rakesh Sehgal on 4 March, 2022
IN THE COURT OF SH. DHIRENDRA RANA,
SCJ Cum RC (NORTH), ROHINI COURTS, DELHI.
In the matter of :
SMT. MEENAKSHI GUPTA
W/o Shri Adesh Gupta
R/o 1st Address:
D701, Jhulelal Apartment,
Pitampura, Delhi34.
Permanent Address:
A653, Shastri Nagar, Delhi52. .........Petitioner
Versus
SH. RAKESH SEHGAL
S/o Late Shri K. L. Sehgal
R/o Flat No. 9,
Apna Ghar Cooperative Group Housing Society,
Opposite Chanderlok Enclave, Rani Bagh, Delhi. .........Respondent
CNR No. DLTN03000001992
Case No. 310/2016
Under Section U/s14 (1) (h) of Delhi Rent Control Act
Date of Institution 25.04.1992
Date of Final Order 04.03.2022
Final Order U/s 14 (1) (h) DRC Act Dismissed
U/s 2 (l) (iii) DRC Act Allowed
JUDGMENT:
1. Brief facts of the petition are here as under:
This petition under section 14 (1) (e) of Delhi Rent Control Act was RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 1/38 filed against the tenant Late Sh. Kishori Lal Sehgal on 25.04.1992 by the petitioner. Notice of this petition was duly served upon the deceased tenant and he took a stand that he was not the tenant but his son Sh. Naresh Kumar Shegal was the tenant to whom the suit premises was let out on 15.04.1987 @ Rs. 1,000/ per month and the purpose of tenancy was residentialcumcommercial. Considering the plea taken by deceased Sh. Kishori Lal Sehgal, a civil suit bearing No. 564/95 was filed by the petitioner against Late Sh. K. L. Sehgal and Naresh Sehgal for recovery of arrears of rent. Proceedings of that civil suit went up to Hon'ble Supreme Court and ultimately, it was held that Late Sh. K. L. Sehgal was the tenant in the premises in question. By the time proceedings were going on in that civil suit, the present petition was also pursued by the parties. On 25.04.1997, tenant Sh. Kishori Lal Sehgal expired and all his LRs were impleaded as party to the present petition. The petition was amended on 08.08.2003 after impleadment of Sh. Naresh Kumar Sehgal as a necessary party to the present petition. On 03.08.2009, Smt. Swarna Sehgal w/o Late Sh. K. L. Sehgal also expired. After death of Late Smt. Swarna Sehgal, an application under section 2 (l) DRC Act was filed on behalf of petitioner on 21.11.2009 which was not decided as the issue was still pending whether Late Sh. K. L. Sehgal or Sh. Naresh Sehgal was the tenant in the premises in question. The application under section 2 (l) DRC Act is still pending and I propose to dispose off that application also by this order.
2. On 23.03.2015, petition was again amended after insertion of RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 2/38 another ground for eviction under section 14 (1) (h) DRC Act pursuant to order of Hon'ble High Court dated 09.09.2013. The amended petition was withdrawn by the petitioner and again another amended petition in terms of order of Hon'ble High Court was filed on 17.09.2015. On 04.11.2015, an application under Order 1 Rule 10 CPC was moved on behalf of petitioner on the ground that respondent No. 2 to 6 had left the suit property and it is respondent only Rakesh Sehgal, who is occupying the property in the capacity of tenant and other respondents had surrendered their tenancy rights. The application was allowed by the court as Ld. Counsel for respondent had no objection on the same. Resultantly, the petition was again amended on 03.03.2016, on 15.09.2016 and finally on 26.09.2016. The chronological order of the proceedings has been discussed just for the purpose of clarity as to how this petition has reached to the stage of final amended petition which is under consideration before this court filed on 26.09.2016 by the petitioner against respondent Rakesh Sehgal.
LAST AMENDED PETITION
3. As per para 18 (a) of the petition, it is stated that petitioner is the owner of the premises in question i.e., Flat No. 9, Second Floor, Apna Ghar Corporating Group Housing Society, Opposite Chander Lok Enclave, Rani Bagh, Delhi consisting of two bedrooms, drawing cum dining room, kitchen, toilets, store room, balcony, lobby and varandah (hereinafter referred as demised premises). It is stated that demised premises was let out to the father of respondent in August 1987 for residential purposes.
RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 3/38 The petitioner got married to Sh. Adesh Gupta in the year 1983 and at that time she was not an earning hand. Her husband was employed in Golden Textile at Tri Nagar and his monthly income was Rs. 1,500/ approximately. Since the petitioner and her husband had no sufficient income, the mother of the petitioner allowed her to reside in Janta Flat bearing No. C6/5(A), Lawrance Road, consisting of one room only. Petitioner had no sufficient funds for payment of installment of the loan taken for the purpose of construction of the said flat allotted to her and she let out the demised premises to the father of the respondent with an understanding that he would vacate the same within a period of two years. The father of the respondent did not vacate the said flat as promised. Thereafter, financial status of the petitioner and her husband got changed and she required the demised premises as a suitable residential accommodation for her family. It is stated that petitioner or her family members do not own any suitable property in Delhi for the purpose of residence.
4. Para 18 (a) (i) to (iii) are related to the bonafide requirement of the demised premises by the petitioner but since Ld. Counsel for the petitioner has already withdrawn this petition on the basis of bonafide requirement, contents of para 18 (a) (i) to (iii) are not relevant at this stage for the purpose of adjudication. Para 18 (a) (v) deals with allegations under section 14 (1) (h) against the respondent. It is stated that tenancy of Late Sh. K. L. Sehgal, was terminated by way of legal notice dated 18.04.1992 during his lifetime. It is stated that respondent Rakesh Sehgal has acquired RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 4/38 T353, Baljeet Nagar, Delhi measuring 70 sq. yards. This property was acquired by Sh. Gyan Chand Sehgal, as he purchased the same from one Sh. Surender Singh vide Sale Deed dated 26.09.1972. After death of Sh. Gyan Chand Sehgal, property of Baljeet Nagar came into the possession of Late Sh. Kishori Lal Sehgal in terms of family settlement dated 09.10.1995. Sh. Kishori Lal Sehgal expired on 25.04.1997 intestate and his wife Smt. Swarna Sehgal expired on 03.08.2009 leaving behind five sons and two daughters. Except Naresh Kumar Sehgal, all other LRs of Late Smt. Swarna Sehgal had executed a relinquishment deed of their undivided share in favour of Sh. Rakesh Sehgal with regard to Baljeet Nagar property, hence, Sh. Rakesh Sehgal became owner of 60 sq. yds. of property bearing No. T353, Baljeet Nagar, Delhi. Thereafter, respondent Rakesh Sehgal, sold 56 sq.yds. with terrace and roof rights by way of GPA and Agreement to Sell to one Sh. Shaadi Lal and Smt. Sunita Gupta on 14.05.2013. It is alleged that respondent Rakesh Sehgal had acquired property of Baljeet Nagar which he had sold during the pendency of the present petition and he is liable to be evicted under section 14 (1) (h) of DRC Act. It is also alleged that respondent is having a commercial property i.e., C40, Flated Factory Complex from where he is running a business under the name and style of Vedic Carpet. It is also alleged that respondent is depositing rent under section 27 DRC Act in the capacity of tenant but same was protested by the petitioner as he is an unauthorised occupant for the simple reason that tenancy of Sh. K. L. Sehgal was terminated on 18.04.1992 and he is an unauthorized occupant by virtue of section 2 (l) of DRC Act. As per provision of DRC Act, tenancy rights were RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 5/38 inherited by his wife Swarna Sehgal for her lifetime and after her death, tenancy rights cannot be inherited by her LRs. Therefore, respondent Rakesh Sehgal is an illegal occupant in the demised premises.
STAND OF THE RESPONDENT
5. A detailed reply has been filed on behalf of respondent to the last amended petition dated 26.09.2016. It is stated that leave to defend application was allowed by the court as Late Sh. K. L. Sehgal stated that he was not a tenant of the petitioner. Subsequently, Hon'ble Supreme Court decided that Sh. K. L. Sehgal was the tenant of the petitioner. A preliminary objection has been raised that ground of bonafide requirement has become meritless as petitioner has acquired Flat No. 701, DBlock, Jhule Lal, Sindhu Nagar CoOperative Group Housing Society Ltd. on 13.07.2007 vide registered Agreement to Sell. It is also stated that petitioner also owns Flat No. 31, Sukhdham Apartments, Sector9, Delhi 85 and this fact has been concealed by her in her petition. Petitioner has also acquired property No. A653, Shastri Nagar, New Delhi after death of her parents. It is alleged that petitioner has amended the petition several times but these properties have not been mentioned by her. It is stated that petition under section 14 (1) (h) is also not maintainable as it was filed against all LRs of Late Sh. K. L. Sehgal but subsequently, petitioner dropped the other LRs from the array of parties and resultantly, the ground under section 14 (1) (h) stands redundant qua all respondents. It is stated that Late Sh. K. L. Sehgal was a perpetual and contractual tenant till his RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 6/38 death and contractual tenancy devolved upon all his LRs. It is stated that premises was let out for residentialcumcommercial purpose and respondent has been running a business in the name of Sehgal Electricals. It is stated that rate of rent was Rs. 1,000/ per month besides other charges. It is stated that property was let out with effect from 15.04.1987 instead of August 1987 as claimed by the petitioner. It is denied that petitioner is owner of the property and in fact society is owner of the property. It is also denied that property is residential in nature and had always been used for residential purposes. It is denied that Late Sh. K. L. Sehgal had undertaken to vacate the premises after period of two years. It is denied that tenancy of Sh. K. L. Sehgal was terminated vide notice dated 18.04.1992 as alleged by the petitioner. It is stated that property bearing No. T353 Baljeet Nagar, measuring about 56 sq. yds. has been an ancestral property in unauthorized colony which devolved upon Late Sh. K. L. Sehgal and his brother after death of their father Sh. Gyan Chand Sehgal. This property remained unoccupied for number of years and hence, became not worth living by any standards and virtually it became a plot. Even otherwise, other LRs had also right in this property being ancestral one. In fact, this property was available even before start of tenancy and now the plot has been sold by all LRs of Late Sh. K. L. Sehgal. It is stated that running of business by respondent from Jhandewalan's property has no relevance to the present petition. It is submitted that petition is not maintainable on either of the grounds and entitled to be dismissed with cost.
RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 7/38 REJOINDER
6. A rejoinder has also been filed on behalf of petitioner to the reply filed by the respondent. The rejoinder is more or less reiteration of the contents of the petition. It is stated that property No. T353, Baljeet Nagar was occupied by the family of Late Sh. K. L. Sehgal and certified copy of the ration card has been placed on record. Attested copy of GPA, Agreement to Sell dated 16.05.2013 executed by respondent with regard to T353, Baljeet Nagar property in favour of Sh. Shaadi Lal and Smt. Sunita Gupta has also been filed alongwith rejoinder. Photocopy of relinquishment deed dated 27.12.2012 qua Baljeet Nagar's property executed in favour of respondent by other LRs of Late Sh. K. L. Sehgal except Naresh Sehgal has also been filed. It is stated that deletion of names of other LRs from the array of parties and that too with the consent of Ld. Counsel for the respondent, is not detrimental to the ground of eviction under section 14 (1) (h) as claimed by the respondent in his reply.
EVIDENCE LED BY PETITIONER
7. Petitioner has examined 12 witnesses.
(a) AW1 Sh. Laxmi Narayan, (shall be read as PW1), Assistant Law Officer from DLF Universal Ltd. This witness produced the salary slip and other details of the husband of the petitioner and his evidence has become irrelevant because ground of bonafide requirement stands withdrawn on behalf of petitioner.
RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 8/38
(b) AW2 Sh. Rajesh Popli, (shall be read as PW2), Assistant Ahlmad in the court of the then Ld. MM, PS Sarai Rohilla. He produced the record pertaining to FIR No. 50/91 titled as State Vs. Rakesh Kumar and Anr. He exhibited bail bonds of Sh. Navdeep Sehgal, Rakesh Sehgal and Swarna Sehgal as Ex. AW2/1 to Ex. AW2/3. This witness has not been cross examined by the respondent.
(c) AW3 is Sh. Tirath Ram, Office Secretary, Apna Ghar Group Housing Society Ltd. (shall be read as PW3). He deposed that Flat No. 9 in the society i.e., the deminsed premises was allotted to the petitioner and possession letter dated 14.07.1987 is Ex. AW3/1. In his cross examination he admitted that letter dated 17.10.1986 bears the signature of the petitioner. Photocopy of this letter is Ex. AW3/R1.
(d) AW4 is Mrs. Meenakshi Gupta, is the petitioner herself (shall be read as PW4). Inadvertently, she has also been examined as PW13. She exhibited site plan as Ex. AW4/1 in her evidence recorded on 27.07.1994. She reexamined herself as AW4 on 10.03.2011 and exhibited her evidence affidavit as Ex. AW4/A. She exhibited certified copy of judgment of second appeal as Ex. AW4/1, certified copy of report of copy agency as Ex. AW4/2, copy of plaint of suit No. 564/95 as Ex. AW4/3 and copy of written statement in suit No. 564/95 as Ex. AW4/4. She deposed on the lines of her petition that how she got the possession RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 9/38 of the demised premises, how she rented out the same to Late Sh. K. L. Sehgal and other factual things which have already been discussed in the earlier portion. She stated that Naresh Sehgal was never inducted as a tenant and she did not receive any rent from him. While deposing as PW13 she tendered her evidence by way of affidavit which is Ex. PW13/A, certified copies of judgments of Ld. Civil Court, Ld. ADJ Court and Hon'ble Supreme Court were exhibited as Ex. PW13/1 to Ex. PW13/3. Copy of legal notice dated 18.04.1992 alongwith postal receipt, registered AD and UPC are Ex. PW13/4 (colly). Copy of civil suit filed by the petitioner is Ex. PW13/5, statement of petitioner in civil suit as PW1 is Ex. PW13/6, copy of legal notice dated 26.10.2017 alongwith tracking report, registered AD and receipt of legal notice are Ex. PW13/7 (colly).
Firstly, she was cross examined as AW4 on 11.01.1996. She stated that she cannot produce any document as to on which date premises was let out or rate of rent was Rs. 1,500/ per month. She also stated that she was not sure whether any government accommodation was allotted to the respondent or not. She denied the suggestion that property was let out to Naresh Sehgal at the rent of Rs. 1,000/ per month. She stated that she used to issue rent receipts to the respondent but did not keep the counter foil or the carbon copy of the receipts. She denied the suggestion that she is not the owner of the premises in question. She denied the suggestion that tenancy was for residentialcumcommercial purpose or that respondent is running a business of electrical appliances from the RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 10/38 property.
In her further cross examination done on 10.03.2011, she admitted that Ex. AW4/3 and Ex. AW4/4 are neither original copies nor certified copies of original pleadings. She denied the suggestions that suit No. 564/95 was not filed by her or Ex. AW4/3 and Ex. AW4/4 are not pleadings of the suit. She has been further cross examined on 05.12.2017 wherein she denied the suggestion that respondent took a telephone connection in the name of his firm at the premises. Four telephone bills which are Ex. PW13/R1 to Ex. PW13/R4 have been termed as fake by petitioner. She stated that legal notice was dispatched by the clerk of the counsel and she did not accompany the clerk at that time. She did not receive any reply of the notice. She was further cross examined on 06.12.2017 and exhibited GPA and Agreement to Sell dated 13.07.2007 pertaining to property No. D701, Jhule Lal Apartment bearing her husband's signature as Ex. PW1/R5 and Ex. PW1/R6. It seems that a typographical error has occurred in exhibition of these documents and they ought to have been exhibited as Ex. PW13/R5 and Ex. PW13/R6. In her examination conducted on 11.12.2017, she stated that tenant Late Sh. K. L. Sehgal expired on 25.04.1997 and she is not aware as to how many children were residing with him at the time of his death. She stated that she came to know about the existence of T353, Baljeet Nagar, only in April 2012. She could not tell the exact measurement of T353, Baljeet Nagar but stated that adjacent properties were of 70 sq. yds. and the same measurement of T353 was given by the property dealer. When she visited the property in April 2012, it was vacant. She denied the suggestion that T353, Baljeet RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 11/38 Nagar was not acquired by respondent Rakesh Sehgal or that it had become inhabitable or that not sufficient or appropriate for residential purposes.
(e) AW5 is Smt. Krishna Mehta, who happens to be the mother of the petitioner (shall be read as PW5). She stated that premises in question was let out to Late Sh. K. L. Sehgal @ Rs. 1,500/ per month and she was involved in inception of the tenancy. Her cross examination is irrelevant at this stage as it pertains to the ground of bonafide requirement which has already been dropped by the petitioner.
(f) PW6 is Vivek Yadav, LDC, SubRegistrar officeII, Basai Dara Pur. He proved registered relinquishment deed executed by Sh. Navdeep Sehgal, Sh. Madhurdeep, Sh. Jaideep Sehgal, Ms. Kirti Talwar and Ms. Manisha Bedi in favour of respondent as Ex. PW6/A. This witness has not been cross examined by the respondent.
(g) PW7 is Sumit Rana, JJA Record Room Civil, Tis Hazari Courts. He produced Goshwara register for the year 1996 wherein entry No. 99 was made in the month of January for suit No. 564/95 which was decided on 27.01.1996 by Late Sh. D. K. Malhotra, the then Civil Judge. Copy of said entry is Ex. PW7/A. The file was destroyed vide order dated 06.06.2008 and copy of order is Ex. PW7/B. This witness has also been not cross examined by the respondent.
RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 12/38
(h) PW8 is Surender Singh, R/o 51, Apna Ghar Housing Society. He is the President of the society and produced Lease Deed record executed by DDA in favour of the society as Ex. PW8/A. This witness has also been not cross examined by the respondent.
(i) PW9 is Anita Garg, JA, Record Room North West, Rohini Courts. She produced summoned record of DR petition No. 78/13 titled as Rakesh Sehgal Vs. Meenakshi Gupta vide which respondent had deposited the rent for the period of 01.05.2012 to 30.09.2013. The file is Ex. PW9/A (colly). This witness has also been not cross examined by the respondent.
(j) PW10 is Sh. Yashvir Singh, UDC Delhi Jal Board, ZRO West, Old Rajender Nagar. He produced the summoned record of water connection installed at property No. T353, Baljeet Nagar. He stated that Vineeta had applied for water connection as new owner of the property and submitted complete chain of ownership documents which are Ex. PW10/1 (colly). This witness has also been not cross examined by the respondent.
(k) PW11 is Sh. Dulare Singh, Assistant Personal Officer, BSES Patel Nagar. He exhibited the electricity connection record installed at T 353, Baljeet Nagar. He deposed that electricity connection was applied by Jeet Ram, Neeraj Maggo and Govind Wadhwa for their separate flats at the above mentioned property and they also submitted complete chain of RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 13/38 ownership documents alongwith the application. The computerised documents of Jeet Ram are Ex. PW11/1, documents of Neeraj maggo are Ex. PW11/2 and documents of Govind Wadhwa are Ex. PW11/3. This witness has also been not cross examined by the respondent.
(l) PW12 is Sanjay Aggarwal s/o Sh. Kalka Prashad. He stated that legal notice dated 18.04.1992 was issued by his father in his handwriting and bearing his signatures. In his cross examination he stated that registered AD card was received back to the office of his father as token of receipt of the notice. He could not tell whether notice was received by Late Sh. K. L. Sehgal himself or not and he could not identify the signature of the person, who had received the notice. He stated that no separate register is being maintained since 1992 in their office qua issuance of notice as well as receiving the ADs of the notice. He could not tell whether any reply to the legal notice was received or not. He stated that his father retained an office copy of the legal notice dated 18.04.1992 till the date of filing of civil suit. He denied the suggestion that legal notice was not issued by his father upon the instructions of the petitioner or same was not issued from the office of his father or no AD was ever received showing receipt of the said notice by Late Sh. K. L. Sehgal.
EVIDENCE LED BY RESPONDENT
8. Respondent has examined 09 witnesses.
(a) RW1 is respondent himself. His first examination in chief was RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 14/38 recorded on 10.02.2000. He deposed that demised premises was let out to his elder brother Naresh Sehgal on 15.04.1987 at a monthly rent of Rs. 1,000/ per month. He stated that tenancy was residentialcumcommercial in nature and he used to run a firm namely Sehgal Electronics from there. He also got a telephone connection in the firm's name. He exhibited two money order receipts as Ex. RW1/1 and Ex. RW1/2 bearing signatures of Naresh Sehgal. He proved copy of letter dated 29.10.1987 sent by Regional Manager, Dena Bank to Naresh Sehgal as Mark A and rent receipts as Mark B, C and D. Mark C was exhibited as Ex. RW1/P1 during the cross examination of RW1 later on.
In his cross examination, he has admitted that he has not filed any documentary proof regarding running of firm's business from the flat in question. Remaining cross examination done on 10.02.2000 is basically related to bonafide need of the petitioner but since petition has already been withdrawn qua this ground, this crossexamination has lost significance at this stage.
RW1 was again examined as RW2 inadvertently on 02.05.2007 and he tendered his affidavit as Ex. RW2/A. It is hereby clarified that evidence of respondent shall be read as RW1 and his deposition recorded on 02.05.2007 as RW2 shall be discussed and considered as RW1 only wherein same defense has been reiterated qua status of tenant, nature of tenancy, rate of tenancy and ownership of the premises in question. In cross examination, he admitted that the society is residential in nature wherein suit property is located. He expressed his ignorance to the RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 15/38 fact that legal notice dated 18.04.1992 was issued for arrears of rent w.e.f., 01.12.1989 to 30.11.1992. He admitted that prior to shifting to the premises in question, he used to reside at their ancestral house at Baljeet Nagar.
Later on RW1 was further examined on 04.01.2018 and he again tendered his affidavit which is Ex. RW1/A. He denied the suggestion that tenancy of his father was terminated vide notice dated 18.04.1992 or that notice was duly received by his family members or by his father. He expressed unawareness to the fact that legal notice dated 18.04.1992 was proved as Ex. PW1/A to Ex. PW1/B in civil suit No. 564/95. He admitted that all his brothers and sisters have left the premises in question and same is under his possession. He denied the suggestion qua execution of relinquishment deed in his favour by his siblings. He admitted that he had sold the property at Baljeet Nagar measuring 56 sq. Yds. to Sh. Shaadi Lal and Smt. Sunita Gupta. He denied the suggestion that T353, Baljeet Nagar was sold as a built up property. He admitted that legal notice dated 26.10.2017 was received by him. He stated that he can not produce the original documents dated 14.05.2013 qua sale of the property and relinquishment deed dated 29.12.2012 as they were not in his possession. He admitted his signatures as well as signatures of his brothers and sisters on relinquishment deed on each and every page. He also admitted that relinquishment deed bears photographs of his brothers and sisters and himself also. He admitted that T535, Baljeet Nagar was having water and electricity connection. He could not produce any document regarding disconnection of water and electricity connection of Baljeet Nagar's RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 16/38 property. He admitted that he had not sought any written permission from the petitioner to run the business of Sehgal Electronics from the premises in question. He also admitted that he has not filed any document such as employee's register, cash book, ledger etc. or any other document usually kept for running commercial activity like bills issued to the customer in the name of Sehgal Electronics. He further admitted that he is running a business from C40, Jhandewalan, under the name of Assam Carpet. He admitted that he has not filed any document of Sehgal Electronics except telephone bills. He admitted that T353, Baljeet Nagar was the residential property at the time when he had acquired and sold the same.
(b) Smt. Swarna Sehgal, who happens to be mother of respondent Rakesh has also been examined as RW1 inadvertently. Since, court is recognizing Rakesh Sehgal as RW1, Smt. Swarna Sehgal shall be considered as RW9 instead of RW1. She tendered her affidavit and exhibited the same as Ex. RW1/A (shall be read as Ex. RW9/A). The version of RW9 is same as of RW1 in her affidavit. She denied the suggestion that petitioner used to issue handwritten rent receipts in the name of her husband Sh. K. L. Sehgal. She admitted that surety bond filed by her husband before Ld. MM bears the address of the premises in question.
(c) RW2 is Sh. Devender Kumar, who tendered his affidavit and exhibited the same as Ex. RW2/A. He is a property dealer by profession and was instrumental in sale transaction of T353, Baljeet Nagar, property.
RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 17/38 He deposed that T353 was a plot but he was confronted with the contents of his affidavit wherein it is mentioned that roof rights were also sold. He admitted that Agreement to Sell and GPA dated 16.05.2013 were prepared and signed by him and property was purchased by Sh. Shaadi Lal and Smt. Sunita Gupta.
(d) RW3 is Jaideep Sehgal, who tendered his affidavit and exhibited the same as Ex. R3. He denied the suggestion that his parents were residing with him in the premises in question w.e.f. 01.08.1987. He could not admit or deny the aspect of service of notice dated 08.04.1992 on his father (it seems that a typographical error had occurred in date as it should have been 18.04.1992 instead of 08.04.1992).
(e) DW4 is Madhurdeep, who is brother of the respondent, who tendered his affidavit and exhibited the same as Ex. DW4. This witness shall be considered as RW4 instead of DW4 and his affidavit shall be read as RW4. He admitted in his cross examination that premises in question was rented out to his family for residential purpose. He denied the suggestion that premises in question was to be used for commercial purpose. He could not tell whether petitioner had asked for enhancement of rent from Rs. 1500/ to Rs. 5,500/.
(f) DW5 Balbir Singh, is a summoned witness and President of Sukhdham Apartment, Plot No. 1, Sector9, Rohini. He deposed that Flat RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 18/38 No. 31 was allotted to Sh. Shib Dayal vide original allotment letter which is Ex. DW5/1. This witness shall be considered as RW5 instead of DW5 and original allotment letter shall be read as RW5/1 instead of Ex. DW5/1.
(g) DW6 Kaushal Chand, is also a summoned witness with record of Dena Bank pertaining to Naresh Kumar Sehgal. He could not file any document due to transfer of office. This witness shall be considered as RW6 instead of DW6.
(h) DW7 Rajesh Kumar is also a summoned witness. He exhibited letter written by Executive Engineer DDivision CPWD as Ex. DW7/1. This witness shall be considered as RW7 instead of DW7 and letter shall be read as RW7/1 instead of Ex. DW7/1.
(i) DW8 Sh. S. P. Sharma, is the then President of Apna Ghar Housing Society. He identified his signatures on the possession letter which is Ex. AW3/1 vide which possession was handed over to the petitioner on 14.07.1987. In his crossexamination, he admitted that all the flats are residential in nature and Late Sh. K. L. Sehgal was residing in the premises in question since 1987 till his death. This witness shall be considered as RW8 instead of DW8.
9. Thereafter, RE was closed and matter was fixed for final arguments.
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10. I have heard Ms. Aruna Mehta and Sh. Sanjeev Mehta, ld. Counsels for petitioner and Sh. C. P. Vig, Ld. Counsel for respondent and carefully gone through the entire material on record including written arguments and case laws filed by the parties.
NATURE OF TENANCY
11. It is the case of the petitioner that premises in question was rented out to Late Sh. K. L. Sehgal for residential purposes only, however, on the other hand, it has been disputed on behalf of respondent since beginning that purpose of the tenancy was purely residential. It is argued on behalf of respondent that purpose of tenancy was to use the premises in question for residentialcumcommercial purposes. It is further argued on behalf of respondent that since the purpose was residentialcumcommercial and hence, petition for eviction of respondent under section 14 of DRC Act is not maintainable.
12. It is a matter of fact that Late Sh. K. L. Sehgal was the tenant of the petitioner. This fact was initially disputed by Late Sh. K. L. Sehgal on the ground that tenant was his son Sh. Naresh Sehgal but this controversy was set at rest by Hon'ble Supreme Court in the year 2013 and it was held that Late Sh. K. L. Sehgal was the tenant and not Naresh Sehgal. It is also a matter of fact that there is no rent agreement executed between the parties and the court has to look into the evidence adduced by them to find RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 20/38 out as to what was the purpose of tenancy whether it was residential only or commercial activities were also allowed to be done by the petitioner. It is admitted case of the parties that Apna Ghar Housing Society is consisting of many flats which are being used for residential purposes. PW8 Surender Singh, who happens to be the President of the Society, has proved the lease deed executed by DDA in favour of the society. In this lease deed the purpose of lease is for construction of residential flats in society. The deposition of this witness has gone unrebutted as he has not been cross examined on behalf of respondent. Petitioner and her mother Mrs. Krishna Mehta have also stepped into the witness box and stated on the same lines that property was rented out for residential purpose only but respondent has failed to bring out anything material in their cross examination on this issue.
13. In his cross examination, respondent Rakesh Kumar has admitted that he had not sought any written permission from the petitioner to use the premises for residential cum commercial purpose. He also admitted that he has not placed on record any document such as employees register, cash book, ledger etc. or any other document usually kept for running commercial activities in the name of Sehgal Electronics. The only document which is being exhibited by respondent is telephone bills issued by MTNL at the said address and name of the customer is M/s. Sehgal Electronics. Apart from these telephone bills there is nothing of record to suggest that respondent was carrying on commercial activities as claimed by him. If respondent was carrying on such commercial activities then it RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 21/38 was very easy for him to place on record proof of goods purchased and sold by him from that address. He could have disclosed the name of the firms or parties with whom he was dealing with while conducting the business of M/s. Sehgal Electronics. There is complete silence on behalf of respondent in this regard and authenticity of his version is doubtful in this regard.
In Balkishan Julka Vs. K. L. Verma AIR 1982 Delhi 19 it has been held that in absence of any documentary evidence that property was used for commercial purpose mere exhibition of telephone bills installed in the name of a firm would not suffice and it cannot be inferred that purpose of tenancy was residential cum commercial in nature.
In Har Bhagwan Dass Vs. Kharag Singh (1983) 24 DLT 191, the property in question was a flat and telephone bills in the name of firm were produced and a plea was taken that business activity was done from the rented flat. It was held that there was no satisfactory evidence that any business was carried out any time. Respondent had not produced any cash memo, bills, books of account, any order placed by the firm and/or on the firm. It was further held that telephone bills carries no value regarding use of property on commercial basis.
14. The facts of Kharag Singh's case (discussed supra) are identical to the present case as respondent has failed to place on record any document of commercial activity except telephone bills. In Satya Malhotra Vs. Mohinder Singh Arora 2000 (52) DRJ 146, it was held that letting RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 22/38 purpose like any other fact could be proved by documentary or oral evidence. In the absence of convincing evidence it has to be inferred from the physical nature of the premises, area where the premises is situated, actual user and other relevant surrounding circumstances.
15. In the present case also PW8 has stated that group housing society was constructed for residential purpose only. In fact RW4 Sh. Madhurdeep, who happens to be brother of respondent, has admitted in his cross examination that premises in question was given to his family members for residential purpose and he denied the suggestion that flat was used for commercial purposes also. Same is the version of RW8 Sh. S. P. Sharma, who signed the possession letter of the flat in question in favour of the petitioner as President of the Society, that all the flats are residential in nature. Testimonies of PW8, RW4 and RW8 have demolished the case of the respondent that tenancy was for residential cumcommercial purpose. Therefore, in the light of the above mentioned judgments and the evidence led by the parties, I am of the considered view that the tenancy was for residential purpose only and there is no substance in the plea of the respondent that it was residentialcumcommercial in nature.
STATUS OF TENANT: CONTRACTUAL OR STATUTORY
16. Initially, the petitioner had sought eviction of the respondent on the RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 23/38 ground of bonafide need but subsequently, another ground for eviction under section 14 (1)(h) has been added by the petitioner. Simultaneously, an application under section 2(l) (iii) was filed on behalf of petitioner after the death of Late Smt. Swarna Sehgal, widow of tenant late Sh. K. L. Sehgal. It was pleaded in the application that tenancy was terminated during the lifetime of Late Sh. K. L. Sehgal by serving a legal notice dated 18.04.1992 and status of Late Sh. K. L. Sehgal turned into a statutory tenant. It is argued on behalf of petitioner that as per definition of 'Tenant' given under section 2 (l) (iii) of DRC Act, the statutory tenancy devolved upon the wife of Late Sh. K. L. Sehgal after his death for her lifetime. After her death on 03.08.2009, the respondent has no right to stay in the property and he is an 'illegal occupant' of the same after his mother's death. Therefore, respondent either be evicted as a tenant under section 14 (i) (g) DRC Act or under section 2 (l) (iii) of DRC Act as an illegal occupant.
On the other hand, it is argued by Sh. C. P. Vig, Ld. Counsel for respondent that both pleas are self contradictory to each other. It is asserted that status of Late Sh. K. L. Sehgal was of a contractual tenant and no legal notice dated 18.04.1992 was ever served upon him during his lifetime, and therefore, the tenancy devolved upon his legal heirs as per Succession Act. Respondent has derived his rights from Late Sh. K. L. Sehgal and he is depositing rent under section 27 of DRC Act in the capacity of tenant only.
17. Considering the submissions put forth by both counsels, the million RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 24/38 dollar question before this court is whether Late Sh. K. L. Sehgal was a contractual tenant or a statutory tenant at the time of his death.
18. When this petition was filed by the petitioner against Late Sh. K. L. Sehgal, it was pleaded on his behalf that his son Naresh Sehgal was the tenant of the petitioner instead of Late Sh. K. L. Sehgal. Resultantly, a civil suit was filed by the petitioner before the Ld. Civil Judge bearing No. 564/95, against Late Sh. K. L. Sehgal and Sh. Naresh Sehgal for recovery of rent. The suit was decreed by the then Ld. Civil Judge vide judgment dated 27.01.1996. Copy of judgment placed on record is not a certified copy but it is a "copy to copy" as the file was weeded out as per rules. There is no dispute raised on behalf of respondent that the copy of the judgment which is Ex. PW13/1 is fake or manipulated or was never passed in that suit. Same is the status of copy of plaint, statement of Meenakshi Gupta (PW1) recorded in that suit which is Ex. PW13/6, Krishna Mehta, Naresh Kumar Sehgal, Kishori Lal Sehgal and other documents pertaining to that suit which are Ex. PW13/5 (colly). A fact which is not disputed need not to be proved by the parties and law is settled in this regard. I have gone through the contents of the plaint, evidence recorded by the court and the judgment dated 27.01.1996. It was mentioned in the plaint that legal notice dated 18.04.1992 was served upon defendant No. 1 i.e, Kishori Lal Sehgal. This fact was again reiterated in the evidence of Meenakshi Gupta PW1 and copy of the notice was exhibited alongwith postal receipt, UPC and AD receipt. She was thoroughly cross examined on the aspect of service of legal notice. She stated that legal notice was RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 25/38 sent by her advocate. There is no suggestion given to her that legal notice was not issued by her counsel. Late Sh. Kishori Lal Sehgal deposed as DW2 and in his examination in chief not even a single word was uttered that legal notice dated 18.04.1992 was never served upon him or that signatures appearing on the AD card are forged.
19. While writing the judgment dated 27.01.1996, the then Ld. Civil Judge took note of the pleadings put forth by the parties. All objections raised by defendants were noted down and there is no objection raised in the written statement by the defendants qua non service of legal notice dated 18.04.1992. On the basis of pleadings, issues were framed and no issue qua authenticity/non service of legal notice was framed by the then Ld. Civil Judge. Non framing of issue reflects that no dispute was raised on behalf of defendants viz a viz legal notice dated 18.04.1992 in that suit. While granting relief to the petitioner, the court observed as under:
"since the plaintiff has stated on oath and sent a legal notice for recovery of the amount which was not replied to the plaintiff is entitled to rate of rent as prayed @ Rs. 1,000/ per month from 23.12.1989 to 31.12.1992".
20. By observing so, the Ld. Civil Judge believed the existence of legal notice dated 18.04.1992 and its service thereof. Although, Naresh Sehgal was adjudged as a tenant instead of Late Sh. Kishori Lal Sehgal. An appeal was filed on behalf of petitioner against the order of Ld. Civil Judge in RCA No. 20/2001/1996 titled as Smt. Meenakshi Gupta Vs. Sh. K. L. RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 26/38 Sehgal and Ors. The appeal was decided on 06.08.2001 in favour of the appellant and the suit was decreed and it was held that Late Sh. K. L. Sehgal was the tenant of Meenakshi Gupta at rent of Rs. 1,500/ per month. Ld. Appellate Court also gone through the joint written statement filed by Naresh Sehgal and Late Sh. K. L. Sehgal. There is no mention that any dispute was raised by defendants qua non service of legal notice in the entire judgment. This aspect again reflects that this issue was never raised by the tenant either before the Ld. Civil Judge or before Ld. Appellate Court. A second appeal was preferred by the LRs of Late Sh. K. L. Sehgal in the Hon'ble High Court bearing appeal No.195/2001 which was dismissed and same was challenged in Hon'ble Supreme Court which was also dismissed vide order dated 15.07.2013. Therefore, on the basis of pleadings in that civil suit and judgments passed by competent courts upto the level of Hon'ble Supreme Court, it can be safely said that it was never the case of Late Sh. K. L. Sehgal or his LRs that legal notice dated 18.04.1992 was never served upon him during this lifetime. Copy of the legal notice is Ex. PW13/4 wherein para 4 it is categorically stated that petitioner was no longer interested to keep Late Sh. K. L. Sehgal as a tenant and he was called upon to quit the demised premises and deliver its possession to the petitioner on or before 31.05.1992. The legal notice was sent at the address of the demised premises wherein tenant Late Sh. K. L. Sehgal was residing with his family. Statement of PW12 Sh. Sanjay Aggarwal, who happens to be the son of Late Sh. Kalka Prashad Aggarwal, Advocate. Late Sh. Kalka Prashad Aggarwal had sent the legal notice on behalf of petitioner on 18.04.1992. PW12 identified signatures of RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 27/38 his father on certified copy of the legal notice. He also asserted that notice was sent by his father through registered AD and UPC and his father was representing the petitioner in that civil suit. Therefore, considering the pleadings of the parties in civil suit No. 564/95, judgments passed by Hon'ble Courts upto the level of Hon'ble Supreme Court and statement of PW12 recorded in this petition, I am of the considered view that legal notice dated 18.04.1992 was duly served upon Late Sh. K. L. Sehgal during his lifetime.
In R. S. Shekhawat Vs. Delhi Race Club RFA No. 592/2017 decided on 11.10.2017, it has been held that despite receiving the legal notice, if the respondent did not give the reply then the adverse inference will be drawn against him.
21. Applying the ratio of R. S. Shekhawat's case to the present petition, legal notice was duly served upon the tenant Late Sh. K. L. Sehgal and he opted not to reply the same. Therefore, an adverse inference has to be drawn by the court against him and respondent also that to the effect that tenancy got terminated by service of legal notice dated 18.04.1992.
As per section 2 (l) (iii) a "tenant" means any person continuing in possession after the termination of its tenancy. 2 (l) (iii) says in the event of death of the person continuing in possession after termination of his tenancy, subject to the order of succession and condition specified in explanation (I) and explanation (II) to this clause, such of the aforesaid persons
(a) spouse, RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 28/38
(b) son or daughter, or, where there are both son and daughter, both of them,
(c) parents,
(d) daughterinlaw, being the widow of his predeceased son, as had been ordinarily living in the premises with such person as a member or members, of his family upto the date of his death.
Explanation (I) describes the order of succession in the event of the death of the person continuing in possession after the termination of his tenancy. Firstly, the tenancy would devolve upon his surviving spouse and thereafter, to his son and daughter or both, if there is no surviving spouse.
Explanation (II) states that if the person, who acquires by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
22. As per definition of tenant, the status of Late Sh. K. L. Sehgal turned into a statutory tenant from a contractual one after service of legal notice 18.04.1992 vide which he was asked to hand over the possession of the premises in question to the petitioner. He remained in possession after termination of the tenancy till his lifetime and as per sub clause (iii), the RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 29/38 right to continue in possession devolved upon his spouse Smt. Swarna Sehgal after his death. As per explanation (II) Smt. Swarna Sehgal was entitled to continue with the possession of the premises in question as she was residing with Late Sh. K. L. Sehgal at the time of his death and was financially dependent upon him. The right to remain in possession accrued to Smt. Swarna Sehgal was personal in nature as per explanation III (b) and such personal right can not devolve on any of her heirs. Therefore, after death of Late Smt. Swarna Sehgal, her personal rights to continue with possession got extinguished on 03.09.2008 and it could not be inherited by her legal heirs by virtue of explanation III (b).
23. Hence, the contractual tenancy came to an end by service of legal notice dated 18.04.1992 during the lifetime of Sh. K. L. Sehgal. Considering the above discussion and provisions of section 2 (I) (iii), the status of Late Sh. K. L. Sehgal was of a statutory tenant and similar status was enjoyed by her widow Smt. Swarna Sehgal after his death on 25.04.1997 till her death on 03.09.2008. The status of statutory tenant cannot be inherited by respondent Rakesh Sehgal by virtue of explanation III appended with section 2 (l) (iii) and status of respondent Rakesh Sehgal is of an "unauthorized occupant" instead of "tenant".
PETITION UNDER SECTION 14 (1) (H) OF DRC ACT
24. Section 14 of DRC Act enumerates various grounds of eviction of a tenant on filing of petition by the landlord/owner. As discussed above RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 30/38 status of respondent Rakesh Sehgal is of an 'unauthorized occupant' and not tenant, and therefore, ground of eviction under section 14 (1) (h) is not applicable to him. Therefore, the petition under section 14(1)(h) filed on behalf of petitioner is not maintainable against the unauthorized occupant Rakesh Sehgal and the same is hereby dismissed to a limited extent pertaining to this ground alone.
APPLICATION UNDER SECTION 2 (l) (iii) OF THE ACT
25. As concluded above respondent Rakesh Sehgal is covered into the category of an 'unauthorized occupant' instead of tenant. What would be the future course of action available to petitioner to get the property vacated from the respondent Rakesh Sehgal. Whether petitioner has to rush to a civil court to get a decree of possession or this court is competent enough to get the property evicted from the respondent in these proceedings only.
26. This application under section 2 (l) (iii) was filed on behalf of petitioner as an alternative ground for eviction after the death of Late Smt. Swarna Sehgal on 03.08.2009. At that time the application was kept pending by my Ld. Predecessor as proceedings were going on between the parties in the civil suit filed by the petitioner herein and it was not clear as to who was the tenant in the property. The status of tenant was cleared by Hon'ble Supreme Court vide order dated 15.07.2013 and it was held that Late Sh. K. L. Sehgal was the tenant of the petitioner.
RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 31/38
27. It is argued on behalf of respondent that section 2 (l) (iii) talks about definition of tenant and it is not a ground for eviction under the Act. Therefore, this application is not maintainable. Moreover, if petitioner was serious about this ground then this application ought to have been filed soon after the death of tenant Sh. K. L. Sehgal. It is stated that after his death on 25.04.1997, his wife was a statutory tenant till 25.04.1998 and this application should have been filed soon after 25.04.1998. It is also argued by Sh. C. P. Vig, Ld. Counsel for the respondent that tenancy was never terminated, and therefore, section 2 (l) is not attracted in this case. It is also pointed out that explanation (II) appended to section 2 (l) (iii) talks about the status of the person, who was residing with the statutory tenant at the time of his death and he/she is not financially dependent upon the statutory tenant, then the LRs of statutory tenant is entitled to remain in possession for one year. In the present case, wife of Late Sh. K. L. Sehgal was financially dependent upon him and she is not covered by explanation (II). It is further argued that the petition was lastly amended on 26.09.2016 but no averment was incorporated that respondent can be evicted under section 2 (l) (iii). Ld. Counsel for the respondent has relied upon following judgments: Raj Khanna Vs. Meera Chawla 2014 (2) RLR 336 decided by Hon'ble Delhi High Court on 28.05.2014, Rakesh Jain Vs. Suresh Kumar Kohli and Anr. 2014 (1) CLJ 124 Delhi and D. N. Singhal Vs. Krishan Kumar through his LRs & Ors. 2014 (3) CLJ 307 Delhi to fortify his arguments that the application under section 2 (l) (iii) is not maintainable and the petitioner has to file a civil suit to recover the possession of the demised premises from the respondent. The Rent RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 32/38 Controller cannot pass eviction order beyond the grounds enumerated under section 14 of the Act.
28. On the other hand, Ld. Counsels for the petitioner Sh. Sanjeev Mehta and Ms. Aruna Mehta have vehemently argued that the court of Rent Controller is not helpless, if no ground is proved by the petitioner for eviction against the tenant. It is argued that an eviction order can be passed against an unauthorized occupant and he can be evicted under section 2 (l) (iii) of the Act. Reliance has been placed on Kishori Lal Vs. Siri Kishan and Ors. 63 (1996) DLT 577 decided on 26.02.1996, Shri Vijay Kumar Khambate Vs. Sh. Vinay Kumar Aggarwal 130 (2006) DLT 474 decided on 02.06.2006 and Mr. P. Jayanti Lal Shah (deceased) Vs. Mr. Ramakant Sanoria 131 (2006) DLT 388 decided on 27.07.2006 to add fuel to their argument that respondent can be evicted by the court of Rent Controller also under section 2 (l) (iii) and there is no need to file a separate civil suit for possession.
29. First of all, I find no strength in the argument of Ld. Counsel for the respondent that Late Smt. Swarna Sehgal was not covered under explanation (II) attached with section 2 (l) (iii). Explanation says if anyone who is residing with statutory tenant at the time of his death but he/she is not financially dependent upon him then he/she would be entitled to retain the possession for one year only. In case that person is financially dependent upon the statutory tenant then he/she would be entitled to retain the possession till his/her lifetime until and unless evicted by the RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 33/38 court. It is not the case of the respondent that Late Smt. Swarna Sehgal was not financially dependent upon her husband. Therefore, the cause of action to file this application accrued to the petitioner only after her death on 03.08.2009 and not prior to that. I am also not in agreement with respondent that section 2 (l) (iii) is not applicable in this case as no legal notice was served upon Late Sh. K. L. Sehgal. This issue has already been discussed in the above portion of this judgment that legal notice was duly served upon him and his tenancy got terminated by that notice, and therefore, section 2 (l) (iii) is directly connected with the facts and circumstances of this case. As far as non mentioning of ground of eviction under section 2 (l) (iii) in the last amended petition is concerned, ideally it could have been done by the petitioner but absence of such assertion in the petition is also not going to help the respondent. It is a matter of record that at the time of filing of last amended petition, application under section 2 (l)(iii) was already pending and petitioner was well within her right not to repeat that ground again in the amended petition as it was totally devoted to the allegations under section 14 (1) (h) of the Act.
30. It is correctly pointed out by Ld. Counsel for the petitioner that judgment of Rakesh Jain's case (discussed supra) relied upon by the respondent has been over ruled by Hon'ble supreme Court in the year 2018. In Raj Khanna Vs. Meera Chawla (discussed supra), the tenancy of Sh. B. N. Khanna was terminated on 13.02.1981 and he expired in the year 1992. He was survived by his wife and three daughters. After his death, his wife continued to occupy the suit property as statutory tenant but RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 34/38 she also passed away on 07.06.1997 and the statutory tenancy came to an end. After his death, suit for possession and damages was filed against the daughters of Late Sh. B. N. Khanna. In the present case, eviction petition was filed against Late Sh. K. L. Sehgal during his lifetime and he expired during pendency of this petition. His wife also expired during pendency of this petition. Therefore, judgment of Raj Khanna's case (discussed supra) is differentiated on the basis of facts and hence, not applicable to the present petition. D. N. Singhal's case (discussed supra) is also not applicable as in that case also civil suit was filed after death of tenant and his wife. Moreover, the tenancy was commercial in nature in that case whereas, in the present case, tenancy is residential in nature.
31. In Kishori Lal Vs. Siri Kishan and Ors. (discussed supra), the landlord filed an eviction petition against the tenant. The tenancy was terminated on 18.12.1977 by serving a legal notice upon the appellant/tenant. Ld. ARC directed the tenant to deposit the rent under section 14 (2). Both parties filed appeal before the Ld. Rent Tribunal and during the pendency of those appeals, Sh. Kishori Lal expired on 20.12.1979 leaving behind his widow, three sons and three daughters. The tribunal held that rights of tenancy could not be said to be heritable as his LRs were financially not dependent upon him. Since one year has already elapsed after Kishori Lal's death, his LRs were not found entitled to any protection and eviction order was passed against them. The matter went upto Hon'ble Delhi High Court, while dismissing the appeal, it was held as RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 35/38 under:
"the provision of section 2 (l) (iii) of the Act cannot, in any manner accordingly be held in conflict with the provision of section 14 (1)of the Act and an eviction order can always be passed in a case where there is no inheritance of tenancy in respect of residential premises except to the extent as provided in law. The plea based on the non obstante clause does not hold any ground the same is accordingly rejected."
32. The view expressed by Hon'ble Delhi High Court answers the objection raised by the respondent that the petitioner has to approach a civil court with a civil suit to get possession of the property from the respondent. While holding so, Hon'ble High Court has clarified that provision of section 2 (l) (iii) is not in conflict with the provision of 14 (1) of the DRC Act and an eviction order can be passed, if there is no inheritance of tenancy in respect of residential premises.
33. In Vijay Kumar Khambate Vs. Vijay Kumar Aggarwal's case (discussed supra) the eviction petition was filed against the tenant, who expired at the stage of petitioner's evidence on 26.03.2003. Tenant's LR was impleaded under Order 22 Rule 4 CPC by the Ld. ARC but an eviction order was also passed on the same day holding that LR of deceased tenant was not financially dependent upon him and the premises was let out for residential purposes. The petitioner had acquired the right of continuation for the limited period of one year and defenses available to RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 36/38 Late Sh. P. S. Khambate were not available to the petitioner. While dismissing the appeal, Hon'ble High Court held as under :
"12. The important distinction in the present case is that the eviction petition is not filed after the demise of the statutory tenant. The statutory tenant passed away during the pendency of the petition. The legal representative only represented the estate of the deceased tenant. Thus, the tribunal rightly held that it was not necessary for the landlord to file a regular suit to recover possession after the litigation had dragged on in the court of Rent Controller for a long period of time. If the legal representative of a deceasedtenant has no legal authority to continue in occupation of the suit property, the landlord can seek possession from such legal representative. The definition of tenant in section 2 (l) of the said Act includes an heir in possession as per the hierarchy".
34. The fact of Vijay Kumar Khambate's case (discussed supra) are identical to the present petition. Late Sh. K. L. Sehgal also expired during pendency of this petition and the status of statutory tenant was enjoyed by his wife during her lifetime. As concluded above, the tenancy cannot be said to be inherited by respondent Rakesh Sehgal by virtue of explanation (III) appended to section 2 (l) (iii) of the Act. Same is the ratio laid down by Hon'ble High Court in P. Jayanti Lal Shah's case. Therefore, the facts of Vijay Kumar Khambate and P. Jayanti Lal Shah's case are applicable to the present petition instead of Vijay Khanna's case.
RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 37/38
35. Considering the above discussion and law laid down by Hon'ble High Courts, application under section 2 (l) (iii) is maintainable and respondent Rakesh Sehgal can be evicted from the demised premises by virtue of Section 2 (l) (iii) and there is no need for the petitioner to file a separate suit for possession as already 30 long years have passed by when this petition was filed before this court. The petitioner cannot be further traumatized for no wrong on her part. The court is having sympathy with the petitioner as she never occupied the demised premises after its allotment in 1987 and it is almost 35 years that she is not able to enjoy her property.
RELIEF
36. Considering the above facts and circumstances, respondent Rakesh Sehgal is directed to hand over the peaceful and vacant possession to the petitioner of the premises in question i.e., Flat No. 9, Second Floor, Apna Ghar Corporating Group Housing Society, Opposite Chander Lok Enclave, Rani Bagh, Delhi consisting of two bedrooms, drawing cum dining room, kitchen, toilets, store room, balcony, lobby and varandah under section 2 (l) (iii) DRC Act within 30 days from today. No order to cost. File be consigned to record room after due compliance.
Digitally signed by DHIRENDRADHIRENDRA RANA Announced in the open court on 04.03.2022 RANA Date: 2022.03.07 12:56:28 +0530 (DHIRENDRA RANA) SCJcumRC (North) Rohini Courts, Delhi/04.03.2022 RC No. 310/2016 Meenakshi Gupta Vs. Kishori Lal Sehgal 38/38