Delhi District Court
Rukmani Devi vs . Dawar & Co. on 11 July, 2012
Rukmani Devi Vs. Dawar & Co.
IN THE COURT OF SH. DEVENDRA KR. SHARMA,
ADDL. RENT CONTROLLER, NORTH DISTT. DELHI.
E No. 100/2009
Unique Case ID No: 02401C0000411984
1. RUKMANI DEVI JAIPURIA CHARITABLE TRUST
By its Chairman Shri Mahabir Pershad Jaipura,
52, Janpath, New Delhi.
2. SH. MAHABIR PERSHAD JAIPURIA
S/o. Late Seth Beni Pershad Jaipuria,
52, Janpath, New Delhi.
3. SMT. PUSHPA DEVI JAIPURIA
W/o. Sh. Mahabir Pershad Jaipuria,
52, Janpath, New Delhi.
(Trustee of Petitioner no. 1.) ...Petitioners.
Versus
DAWAR & COMPANY
By its partner Sh. Nanak Chand Dawar
S/o Sh. Sona Mal Dawar
V/559-60, Katra Asharfi, Chandni Chowk,
Delhi.
...Respondent.
Date of institution of the petition : 29/11/1984
Date on which order was reserved : 02/06/2012
Date of Decision : 11/07/2012
E no. 100/2009 Page 1/33
Rukmani Devi Vs. Dawar & Co.
JUDGMENT
11.07.2012 Vide this judgment, I shall decide the petition filed on behalf of the petitioner filed U/sec. 14 (1) (a) (b) & 22 of the Delhi Rent Control Act, 1958 (herein after referred to as D.R.C. Act, 1958).
An application U/o VI R. 17 CPC was filed to amend the petition to add the grounds of eviction U/Sec. 14 (1)(b) D.R.C. Act of subletting by respondents no. 1 to 3 in favour of other respondents which was dismissed by this Court on 15/11/2002. The said order was challenged and Hon'ble High Court has set aside the said order and amendment was allowed to plead the grounds of eviction U/Sec. 14 (1)
(b) of the D.R.C. Act vide order dated 24/07/2006.
1. In sum and substance, the case of the petitioner is that the petitioner no. 1 is the owner/landlord and petitioners no. 2 & 3 are now the sole trustees and respondents no. 1, 2 & 3 are the tenants in respect of one room, bath and W.C. with attached accommodation on the second floor of the shop no. V/559-560, Katra Asharfi, Chandni Chowk, Delhi as shown in red colour in the site plan attached with the petition (hereinafter referred to as 'suit property'). Rate of rent is stated to be Rs. 21.30 exclusive of all other charges.
2. It is further stated that the respondents are defaulters and have neglected to pay the rent w.e.f. 01/04/1972 upto date. A sum of E no. 100/2009 Page 2/33 Rukmani Devi Vs. Dawar & Co.
Rs. 3216.30 became due and legally recoverable as arrears of rent upto 31/10/1984. Respondents sent Rs. 720/- by draft no. 621922/984/82 dt. 23/08/1984 issued by Oriental Bank of Commerce, Chandni Chowk, Delhi to the petitioner no. 2. The respondent/tenant neither paid nor tendered whole of the arrears of rent within two months of the written demand made by the petitioners. The respondents have been repeatedly called upon to pay rent due to the petitioner in the Slum proceedings, both before the Competent Authority as well as before the Financial Commissioner, Delhi. Permission under the Slum Area (Improvement and Clearance) Act, 1956 was granted to the petitioner as the respondent has failed and neglected to pay the rent before the Authorities under the Slum Act though written demands have been made by the petitioners by means of notice/applications demanding payment of rent from the respondents before the authorities under the Slum Act.
3. It is further stated that the tenant/respondent in or about October, 2002 have sublet, assigned or otherwise parted with the possession of the tenanted premises to Mr. Madan Lal, Mr. Shanker Singh, Mr. Ram Singh and Mr. Ram Chander without obtaining the consent in writing of the petitioner/landlords.
4. It is further stated that petitioner no. 1 is a recognized public Charitable Institution and is duly recognized by the Income Tax Authorities under the Indian Income Tax Act, 1961. The suit property is bonafidely required by the petitioner no. 1 for furtherance of its activities E no. 100/2009 Page 3/33 Rukmani Devi Vs. Dawar & Co.
and the same are required bonafidely for opening charitable dispensary and/ or library/ reading room. Hence the present petition.
5. Upon service of summons, written statement on behalf of the respondents no. 1 to 3 was filed raising preliminary objections that the petition is not maintainable as there is no cause of action disclosed in the petition. No notice as required under the provision of Delhi Rent Control Act has been given and, therefore, the petition U/Sec. 14 (1)(a) of the D.R.C. Act is not maintainable. The petition has not been signed or verified by the competent person. The petition U/Sec. 22 of the D.R.C. Act does not lie in view of the averments made in the petition. Petitioners have no locus standi to maintain the petition and, therefore, petition is liable to be dismissed.
6. On merits there is no denial of relationship, extent of tenancy and rate of rent. However, they have disputed the ownership of the premises with the petitioners, bonafide requirement and arrears of rent.
7. Separate W.S. was filed on behalf of legal heirs of respondent no. 4 after their impleadment as respondents raising preliminary objections that the petition was filed against dead person Mr. Madan Lal who expired before filing of the present petition. It is further stated that the petition has not been validly instituted as it is not signed and filed by all the trustees of the Trust. They have denied any E no. 100/2009 Page 4/33 Rukmani Devi Vs. Dawar & Co.
kind of relationship of landlord and tenant between the parties. It is stated that the petition is bad for mis-joinder of the parties and cause of action. It is further stated that respondents no. 1 to 3 were not in possession of the suit property at the time of filing of the present petition. It is further stated that the deceased Mr. Madan Lal was in requirement of the some place for carrying on his business and found that a portion of second floor of property no. V/559-560 (supra) and 616-617 of Katra Asharfi, Chandni Chowk, Delhi was lying in ruinous condition and was unoccupied. The other portion of this second floor was in use and occupation of Mr. Ram Chander who had constructed a tin shed and had been living therein as owner thereof. In March 1985, Mr. Madan Lal renovated the portion of first floor consisting of one room, one store, latrine and bathroom at his own costs and occupied the same. He started living therein claiming himself to be the owner and even got his own facilities of water and electricity. He has been in exclusive use and occupation of this portion as owner and no one objected to his occupation and, thus, he perfected his title as owner by way of adverse possession. After his death, the contesting respondents/ legal heirs are in possession as owners and this court has no jurisdiction to try the present matter as the provisions of D.R.C. Act are not applicable to the facts of the present case.
8. On merits, they have again denied any relationship of landlord and tenant between the parties. It is stated that in the year 1985 M/s Dawar & Company had surrendered and vacated the suit E no. 100/2009 Page 5/33 Rukmani Devi Vs. Dawar & Co.
premises. They have further disputed any bonafide requirement or of subletting.
9. Written statement on behalf of respondent no. 5 was also filed through Mr. Sunder Singh after amendment of petition denying any concern with the suit property on the second floor stating that he is the tenant only in respect of ground floor portion of the trust building. It is further stated that the petitioner is trying to take advantage of the fact that the property no. 559/560 and 616-617 of ward no. V is one property and thereby creating confusion about independent room numbers. On merits, he has again denied any relationship or occupation of suit property or any portion thereof.
10. Written Statement on behalf of respondent no. 6 was also filed after amendment of petiton taking the similar objection as raised by other respondents. It is further stated that the respondent no. 6 have no concern with the tenanted premises or he has ever been in possession or occupation of any portion of the suit premises. He is in use and occupation of the independent portion comprising of tin shed which he had constructed in the year 1969-71 and has been in continues use and occupation of the said portion as its owner. He is having his own independent electricity connection and this fact is known to Late Smt. Rukmani Devi Jaipuria or her succession in interest. On merits, he has denied any relationship of landlord and tenant between the parties stating that it was Ms. Rukmani Devi Jaipuria who owned the property E no. 100/2009 Page 6/33 Rukmani Devi Vs. Dawar & Co.
no. V/559-60 (supra). He further stated that she has not been in possession of the suit property either by herself or by tenants ever since the year 1985 when M/s Dawar & Co. had surrendered and vacated the suit premises. The said portion was in occupation of Mr. Madan Lal in his own right till his death. Occupation of the respondent no. 6 was well within the knowledge of Ms. Rukmani Devi Jaipuria uninterrupted. Even petitioners have been well aware that he is in occupation of the said property continuously for last more than several years and, thus, he has become the owner by way of adverse possession.
11. Replications to the Written Statements of respondents were filed denying all the material allegations and reiterating moreover the same facts were alleged in the petition. It is further stated that on 30/04/2008 statement of L.R. of Sh. Madan Lal was made that Mr. Madan Lal has recently died and, therefore, an application on 07/05/2008 was made before this Court for impleading the legal heirs of deceased Mr. Madan Lal which was allowed and, thus, the plea raised that a dead person was impleaded has no merits.
12. It is further stated that on 19/03/1994 an order for deposit of rent U/Sec. 15 (4) of D.R.C. Act was passed directing the tenants to deposit the arrears of rent w.e.f. 01/04/1985 within one month of the passing of the order and continue to deposit future rent by 15th of each succeeding month and the tenant M/s Dawar & Company was contesting the eviction petition and, thus, there is no sanctity in plea of E no. 100/2009 Page 7/33 Rukmani Devi Vs. Dawar & Co.
adverse possession and same is abuse of the process of the Court. It is further stated that the suit premises has been illegally sublet. The tenants have never surrendered the possession of the suit premises to the petitioner/owner/landlord during the pendency of the eviction petition or at any earlier time.
13. Mr. Deepak Gupta, Advocate had been representing the tenant/respondent and had been contesting the eviction petition. On 21/09/2001, he made a statement before the court that he is not representing Dawar & Company, the respondent/tenant any more and, thus, it is clear that the respondents no. 3 to 6 were never in occupation of the suit property as tenants.
14. An order for consolidation of five petitions no. 492/1984, 493/1984, 494/1984, 495/1984 and 496/1984 (old numbers) titled as Rukmani Devi Charitable Trust Vs. Dawar & Co., Rukmani Devi Charitable Trust Vs. Jiwan Dass, Rukmani Devi Charitable Trust Vs. Babu Ram Prem Chand, Rukmani Devi Charitable Trust Vs. Anand Kumar and Rukmani Devi Charitable Trust Vs. Hansraj was passed on 08/04/1997 to record the evidence in all the five cases and the case bearing E no. 492/1984, titled as Ms. Rukmani Devi Vs. Dawar & Company was made a leading case for the purposes of evidence.
15. On 21/09/2001, previous counsel for respondent M/s Dawar & Company stated in the Court that he is appearing on behalf of all the E no. 100/2009 Page 8/33 Rukmani Devi Vs. Dawar & Co.
other four respondents except M/s Dawar & Company and thereafter the respondents no. 1 & 3 were proceeded ex-parted vide order dt. 20/12/2001.
16. During pending proceedings, the respondents No. 1 to 3 were earlier also proceeded ex-parte vide order dated 19/02/1997.
17. During pending proceedings, an application U/o. 6 Rule 5 C.P.C. was filed on behalf of respondent and in compliance thereof, petitioner has admitted that no separate legal demand notice demanding arrears of rent was sent to the respondents.
18. An application U/o. VII Rule 11 C.P.C. was filed on 23/08/1989 stating therein that petitioner no. 1 is not a Public Trust, therefore, petition is liable to be dismissed. Said application was disposed of vide order dated 20/02/1993 holding that without evidence at this stage, it can not be decided as to whether the petitioner's Trust is a Private Trust or Public Trust being mixed question of law and fact.
19. Another application on behalf of petitioner U/sec. 15 (1) of the D.R.C. Act was filed which was disposed of vide common order dated 19/03/1994 directing the respondents to deposit the rent U/sec. 15 (4) of D.R.C. Act.
20. During the pending proceedings, an application U/Sec. 15(7) E no. 100/2009 Page 9/33 Rukmani Devi Vs. Dawar & Co.
of the D.R.C. Act was also filed on behalf of the petitioner on 24/04/2000 and said application was disposed of vide common order dated 07/07/2001.
An application U/Sec. 40 r/w Sec. 151 & 152 CPC was moved on behalf of the petitioner and said application was kept pending by order dated 13/09/2002 by the Ld. Predecessor Court with the observation that the same shall be considered after the petitioner will conclude its evidence.
21. An application U/Sec. 15(7) of the D.R.C. Act is also pending disposal which was filed stating that respondents/tenants failed to comply the order passed U/Sec. 15(4) of the D.R.C. Act and, therefore, their defence is liable to be struck off.
22. Upon completion of the pleadings, petitioner no. 2 appeared as PW-1 and filed his affidavit in examination in chief and additional affidavit in examination in chief deposing moreover the same facts as alleged in the petition and was cross examined at length. Mr. Sunder Singh appeared as RW-2 and filed his affidavit in examination in chief deposing moreover the same facts as alleged in the W.S. and was cross examined Mr. Ram Chander filed his affidavit in examination in chief, but he never appeared for cross examination. Mr. Balbir Singh s/o Mr. Madan Lal appeared as RW-4 and filed his affidavit in examination in chief deposing moreover the same facts as alleged in the W.S. and was cross examined at length.
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23. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully.
24. Petitioner has placed reliance upon the judgments reported in 2005 RLR 44 (SC), 1971 RCR 207, 19 (1981) DLT 97, 169 (2010) DLT 90 & (2009) 7 SCC 658 for the purpose of disposal of the application U/Sec. 15(7) of the D.R.C. Act.
24.1 It has further placed reliance upon the judgments reported in AIR 2008 SC 673, 182 (2011) DLT 402 to substantiate its arguments that no notice is required demanding arrears of rent prior to filing of the petition U/Sec. 14 (1)(a) of the D.R.C. Act and filing of the proceedings before the Competent Authority (Slum) and present eviction petition itself is a notice of demand.
24.2 The petitioners have further placed reliance upon the judgments reported in AIR 1982 DELHI 453, 1970 RLR 742 to counter the defence taken by the respondents, that petitioner no. 1 is not a public Trust and, therefore, petition is not maintainable. Petitioners have further placed reliance upon the judgments reported in 1998 RLR 139, 1996 RLR 522 and 1985 RLR 438; to substantiate its arguments that the suit property was sublet by the respondents to the third person or otherwise possession of the same is parted with to third persons or the tenancy rights have been wills' away with possession without written E no. 100/2009 Page 11/33 Rukmani Devi Vs. Dawar & Co.
consent of the landlord. Petitioner has further placed reliance upon judgment reported in 157 (2009) DLT 690.
24.3 On the other hand, respondents have placed reliance upon the judgments reported in 1982 RLR 148 and 1987 (1) RCR 192; with the argument that since petitioner trust has not been conducting any charitable activities at the time of filing of the present eviction petition or thereafter, therefore, present petition is not maintainable. The respondents have further placed reliance upon the judgments reported in 1981 RLR 518; with the arguments that in case there is any delay in deposit of rent due to error, their defence is not liable to be struck off.
24.4 Respondents have further placed reliance upon the judgments reported in (1998) 3 SCC 1, 1999 (1) RCR 115, (1996) 1 SCC 25, (1999) 7 SCC 263, 1987 (2) RCJ 644, AIR 1988 SC 1362, 1983 (4) DRJ 324, 26 (1984) DLT 431, 1966 (2) DLT 28, 1975 RCJ 514, 1986 (1) RCR 601, (1986) 6 SCC 573, (1984) 2 SCC 590, 1976 RCJ 41, (1989) 3 SCC 56; with the arguments that the petitioner has failed to prove initial burden lying upon them that there is any third person in actual physical possession of the suit premises in exclusion of the tenants or that the tenants are not in physical as well as legal possession of the suit premises. Respondents have further placed reliance upon the judgments reported in 2012 (128) DRJ 334 to substantiate the defence that there is unreasonable delay in filing eviction petition on the ground of subletting, therefore, petition is barred E no. 100/2009 Page 12/33 Rukmani Devi Vs. Dawar & Co.
by limitation.
X. The first legal objection has been raised and maintainability of the present petition has been challenged on the ground that the present petition has not been filed and same is not signed and verified by all the trustees therefore, eviction petition is liable to be dismissed. Respondents have pointed out Clause-8 of the Trust Deed executed in favour of petitioner no. 1 and it is submitted that in the sub-clause-(a) there is provision that the board of trustees shall comprise not less than three members but at the time of filing of the present petition there were only two trustees and, therefore, the present petition is not maintainable. On this aspect, law is settled.
Section 48 of Indian Trusts Act, 1982 provides as under:-
48. Co-trustees can not act singly- When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.
However, exception is provided U/Sec. 44 which runs as under:-
44. Power to several trustees of whom one disclaims or dies- When an authority to deal with the trust-property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing E no. 100/2009 Page 13/33 Rukmani Devi Vs. Dawar & Co.
trustees, unless from the terms of the instrument of trust, it is apparent that the authority is to be exercised by a number in excess of the number of the remaining trustees.
The sub-clause - (g) of Clause-8 of the Trust Deed in favour of petitioner no. 1 provides as under:-
(g). There shall be a quorum when two Trustees are present at any meeting. Pending any vacancy the Trustees for the time being not less in number than a quorum may act for all purposes in the administration of the Trust and may exercise all or any of the authorities, powers and discretions vested in the Board of Trustees by these presents.
Thus, it is clear from the Trust Deed itself where it has been provided that the pending vacancy, the remaining trustees can act upon on behalf of petitioner no. 1 subject to their number should not be minimum to the quorum which was fixed under Trust Deed. The quorum has been fixed as minimum of two trustees. There is no denial of the fact that the other trustees i.e. Smt. Rukmani Devi Jaipuria was died at the time of filing of the present eviction petition. The present petition has been filed under the signature of petitioners no. 2 & 3 that is E no. 100/2009 Page 14/33 Rukmani Devi Vs. Dawar & Co.
the remaining two trustees. Thus, it can be safely held that the legal objection so raised has no merit.
Y. Maintainability of the present petition has been challenged on the ground that the petitioner no. 1 is not a public institution and, thus, petition is not maintainable U/Sec. 22 of the D.R.C. Act.
A1. So far as question of petitioner no. 1 being public trust or private trust is concerned, an application U/o VII Rule 11 CPC was earlier filed which was disposed of holding that it is a mixed question of law and fact therefore, the said issue will be decided at the time of final disposal. Moreover, the petitioner has proved the Trust Deed Ex. PW-1/26 which is a registered Trust Deed. The object of the petitioner trust has been mentioned in Clause 6 & 7 of the Trust Deed and it has been made clear that the entire assets and income of the petitioner trust will be utilised only for the purpose of public charitable purpose i.e. for the relief of poor, spread of eduction, medical relief and running of school, colleges and dispensaries etc. A2. In his cross examination PW-1 has admitted that another property bearing no. 1877, Gali Ghante Wali, Chandni Chowk, Delhi belonging to the trust was sold about 7-8 years back and he is not aware as to how the funds received from the sale/ purchase were utilised by the petitioner trust. However, he has voluntarily examined that the said funds formed part of the corpus of the petitioner Trust.
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Similarly, in his cross examination, PW-1 has admitted that the jewellery articles donated by the petitioner trust by his mother were sold and U.T.I. Bonds were purchased from the sale proceeds. However, not a single suggestion has been given that the said proceeds were utilized by the petitioners no. 2 & 3 for their own purpose. Thus, from the evidence on record, it is proved that the petitioner no. 1 is not a private trust but is a public trust.
Now question arises, as to whether, petitioner trust is a public institution or not. The settled law is that is is not public trust but it is public institution who is entitled to maintain petition U/Sec. 22 of D.R.C. Act.
A3. Further, principle of law is that when a person, if endows, certain properties for certain purposes and names it as a Trust, the very name it as a trust will not make it an institution. Pursuant to the creation of Trust, an institution will have to come into existence and it is that institution which will be comprehended by the Sec. 22 of D.R.C. Act and not the Trust as such.
A4. Furthermore the term ''for the furtherance of its activities'' means activities which is wider than the meaning of objects. Since the word "furtherance" is qualified with the word ''for'' before it, it has wider expression. There is distinction between trust and an institution which appears to be that a Public Trust may come into existence when property is transferred for charitable purposes. However, a public E no. 100/2009 Page 16/33 Rukmani Devi Vs. Dawar & Co.
institution can not be said to be in existence unless organised activities are undertaken to be carried out for such public purposes.
A5. In this background, now evidence on record regarding the requirement of the petitioner U/Sec. 22 of D.R.C. Act will be appreciated.
A6. So far as pleading is concerned, nothing has been mentioned as to whether any activities were being carried out by the petitioner no. 1 Trust prior to filing of the present petition or at the time of filing of petition.
A7. PW-1 in his cross examination testified that they are running two dispensaries. One at Delhi and other at Jaipur but as on date those dispensaries are not in operation. It is further testified that dispensary at Delhi was in operation at Bhagirath Palace for about 7-8 years back in a rented property belonging to his brother Sh. Chunni Lal and Trust was a tenant of the portion where the dispensary was being run. He further testified that he can not say when it was inaugurated. It is further testified that so far as he remember, Trust was paying rent of Rs. 50/- approximately. Said dispensary was being run for abut 15 years after the filing of the present petition. He has further testified that said dispensary was closed because property belongs to his brother who wanted the petitioner to vacate the said property before its sale. He has further testified that no resolution was required for any such closure. He E no. 100/2009 Page 17/33 Rukmani Devi Vs. Dawar & Co.
has further testified that he surrendered the possession at the instance of his brother Lala Chunni Lal. He has further testified that he and his wife were trustees of the petitioner's Trust at that time. He has further testified that there was no question to relocate the said dispensary because Trustees had started a big hospital in the medical field at Jaipur. He has further testified that a Homeopathic dispensary at Janpath was also running in a small portion of his personal property but said dispensary was closed as the portion was required for the business of one of his Companies. He further testified that the said dispensary was operational during the year 1999-2000. He has further testified that one Dr. Mrs. Sharma was the Doctor Incharge of the said dispensary and he placed on record two bills of payment of Dr. Renu Sharma exhibited as Ex. PW-1/R-1 (Colly). He has further testified that no charge from the patients were being taken and the patients were being attended only in the morning hours and their record must have been maintained. He further testified that said premises are now lying vacant and is in possession of him. He has further testified that he has never thought of opening the dispensary from the said premises again.
A8. He has further testified that there is no document of surrender of tenancy right in respect of property at Maha Lakshmi Market where the dispensary was earlier running nor the documents have been preserved of the said dispensary. He has further testified that the hospital at Jaipur was constructed out of the proceeds of the sale of immovable property. He has further testified that the said hospital was E no. 100/2009 Page 18/33 Rukmani Devi Vs. Dawar & Co.
constructed through the Government of Rajasthan and the record is maintained by the Government. However, he has admitted that there is no withdrawal of any amount for construction of the said hospital or for additional construction from the amount of petitioner trust. He denied the suggestion that the entire expenses of running, maintaining and preserving the hospital at Jaipur is being done by the Govt. of Rajasthan and voluntarily examined that mostly expenses born by the Govt. of Rajasthan and sometimes he supplements it. On query as to how much amount petitioner's trust spent during the last five years in "supplementing" the expenditure at the hospital at Jaipur, he answered that he can not say verbally.
A9. He has further testified that the petitioner trust also maintains books of accounts and there must be entry of those amount spent for supplementing of the expenditure of the hospital in the Jaipur in the books of account. He further testified that in the last five years, on a reasonable estimate the petitioner trust must have spent approximately 2.5 crore in supplementing the expenses. On specific query whether the record was available with him when the last affidavit in examination in chief was filed, he replied that he can not say. He has further testified that he can not say without going through the records in what manner the money of Rs. 2.5 crore has been spent by the petitioner trust and voluntarily examined that it has been spent on capital expenditure i.e. construction of the building. He has further testified that it was constructed by him personally. On specific query E no. 100/2009 Page 19/33 Rukmani Devi Vs. Dawar & Co.
whether this money was not spent by the trust, he replied that it means, the same thing whether the Trust spent from its own account or got it spent from the Trustees because the Trustees have even otherwise donated to the petitioner Trust crores of rupees during the last five years.
A10. He has further testified that he placed on record the relevant record that the petitioner trust is actually participated in running and maintenance of the hospital at Jaipur and those documents are Ex. PW-1/30 i.e. Invitation Card for inauguration of hospital at Jaipur. Ex. PW-1/37 i.e. photocopy of letter dated 18/06/1991 and another photocopy of a letter dt. 10/01/1995 and document Mark-B i.e. an agreement entered into amongst petitioner trust, Government of Rajasthan and PW-1 as Director of Capstan Meters (India) Ltd. Jaipur and Jai Drinks Private Limited, Jaipur.
A11. He has further testified that he can show the other documents for participation of petitioner trust after 1990 and has placed on record the letter written by Mr. D.S. Malik, CMO, Rajasthan as Ex. PW-1/R-2 and a photocopy of letter written by Dr. S.P. Yadav addressed to Dr. D.S. Malik dt. 06/07/2006 as Mark X-1.
A12. He has further testified that he was not able to locate the sale deed or copy of sale deed pertaining to House no. 1877, Haveli Jugal Kishore known as Gali Ghante Wali, Chandni Chowk, Delhi. He E no. 100/2009 Page 20/33 Rukmani Devi Vs. Dawar & Co.
has further testified that he can not tell the date of the sale deed or mode of payment of the said amount. He has further testified that he has never testified that petitioner trust is running a school at Rajpur Roads but it is the trustees i.e. PW-1 and Smt. Pushpa Devi who are running the school at Rajpur Road. He has further testified that petitioner Trust has not constructed any Reading room/Library in the entire India for last 26 years out of its own fund since 1984. He has further testified that he has set up four reading rooms/libraries from his own personal funds at Jawahar Lal Nehru Marg, Jaipur. He has further testified that the Homeopathic Dispensary existed for two years and the records of that period have not been preserved. He has further testified that he can not state the amount spent by the Trust to the various institutions as no book of accounts is being maintained beyond the period of five years. He has further testified that the institutions have acknowledged the donations given to them by issuing appropriate receipts but same are not available as they have been weeded out with the passage of time. He has further testified that petitioner trust has made charity and donation amounting to Rs. 1,23,138/- besides Rs. 37,893/- being expenses for the hospital at Jaipur as mentioned in Ex. PW-1/62 i.e. form 10-B which is audit report of the petitioner trust. He has further testified that there was no necessity to file receipts and bank statement supporting Ex. PW-1/62. He has further testified that no receipt, details and cheque and bank statement pertaining to amount mentioned in PW-1/62 has been filed on record. He has further testified that the petitioner trust received donation of Rs. 5-6 crores from the third party E no. 100/2009 Page 21/33 Rukmani Devi Vs. Dawar & Co.
for last five three years approximately.
A13. He has further testified that petitioner maintains the account books and he can produce the account book for last five years. He further testified that so far as he remember, in 1977 before taking legal action against all the six tenants a resolution was passed by the petitioner trust and when he was asked as to whether he can produce the said resolution, he produced a copy of resolution dated 30/11/1977 which was marked as X/R-1. He further testified that he can not tell the exact date of preparation of copy of resolution or whether it is prepared about two years, five years, ten years or thirty years back. He has further testified that at the time of preparation of the copy marked X/R-1 the original was available. He has further testified that he can not admit or deny that 08 digit landline number was there in the year 2003-2004. He further testified that he does not remember whether in the year 1976-1977 there were 06 digit landline number in Delhi. He further testified that he can not admit or deny that there was 07-08 digit number in the year 1999 as shown upon Ex. PW-1/R-1 and R-2 receipts placed by him on record. He denied the suggestion that document Mark- X/R-1 was prepared in the year 2010.
A14. He further testified that he does not remember when the old resolution books were weeded out and on specific query as to when the resolution was lastly passed by the petitioner trust authorizing the trustees to weed out the original resolution books, he replied that there E no. 100/2009 Page 22/33 Rukmani Devi Vs. Dawar & Co.
is no such requirement for passing a resolution. He has further testified that subscriber of the telephone numbers mentioned in Mark X/R-1 is his company. He has denied the suggestion that he has produced only selected record which suits him. He has further denied the suggestion that no record more than five years old pertaining to petitioner trust has ever been weeded out. He has further denied that he is not producing the record particularly old account and the account books of the petitioner trust as they do not reflect any charitable activities undertaken by the petitioner trust during the last 26 years. He has further testified that he was not aware that the accounts books of the petitioner trust will be required for this case. He has further testified that record pertaining to any kind of resolution for investment in UTI Certificate in terms of any resolution is not available as on date.
A15. He has further testified that without going through the record he can not tell that what contribution was made by the petitioner trust in the year 1989-90 to the hospital at Jaipur and there is no record available except filed on record. He has admitted that from the year 1986 to 1991, the petitioner trust never spent any money in the construction of hospital at Jaipur. On specific query that what amount did the petitioner trust contributed or paid to the Govt. of Rajasthan in compliance of the document Ex. PW-1/38, he replied that whatever requirement of funds was there for the construction of the hospital building was provided from the funds generated from the sale of the assets handed over to the Govt. of Rajasthan for this purpose. He has E no. 100/2009 Page 23/33 Rukmani Devi Vs. Dawar & Co.
further testified that no money was given in cash or through cheque or pay order after receipt of Ex. PW-1/38 by the petitioner trust.
A16. This is the evidence available on record to prove the charitable activities being carried out by the petitioner.
A17. Thus, from evidence available on record, firstly, so far as running of Homeopathic dispensary at Janpath is concerned, it is clear that no such dispensary was being run by the petitioner trust. Petitioner no. 2 in his cross examination has testified that said dispensary was being run in the morning hours. However, documents relied upon by him i.e. Ex. PW-1/R-1 shows that professional charges were paid to the concerned Doctor for running the dispensary in the evening hour. Thus, there is material contradiction regarding running the dispensary by even petitioner no. 2. Otherwise also no document regarding maintainance of register etc. has been produced on record to show that any such dispensary was being run.
A18. So far as running of dispensary at Maha Laxmi Market is concerned, in his cross examination, PW-1 himself has admitted that the said Ayurvedic dispensary was closed to facilitate his brother and at his request without making any alternative arrangement. Though, it is pertinent to note that the said accommodation was under the tenancy of petitioner trust. Moreover, no document has been placed on record of running any dispensary at the said place nor it has been the case of the E no. 100/2009 Page 24/33 Rukmani Devi Vs. Dawar & Co.
petitioner in the pleadings or in examination in chief and there is nothing material on record to prove that any such dispensary was being run except bald statement in the cross examination so as to improve the case of the petitioner. Furthermore, even if it is assumed that there was any such dispensary being run by the petitioner trust, there is no plausible explanation to close the said dispensary. Thus, it can be safely held that no such activities were being carried out so as to prove the petitioner trust to be a public institution within the meaning of Sec. 22 of the D.R.C. Act.
A19. So far as running of hospital at Jaipur is concerned, in the affidavit PW-1 has claimed that an agreement was executed with the Govt. of Rajasthan with the petitioner no. 2 on 05/09/1985 and said agreement was signed by the petitioner no. 2 on behalf of the trust. However, perusal of the said agreement makes it clear that the claim of the petitioner trust that the said hospital was constructed by the petitioner trust is clearly false as property was donated by the Capston Meter India Ltd. (Jaipur) through its Director and Chairman Mr. M.P. Jaipuriya who otherwise happens to be the trustee of the petitioner trust and in the entire agreement there is no mention that the said hospital is being constructed in view of the objects mentioned in the trust deed executed in favour of the petitioner trust. There is only mention that petitioner trust will be having 1/4th share only on the Board of Committee to manage the affairs of the said hospital and will be running a drug store in the hospital for the convenience of the public on 'No profit- No E no. 100/2009 Page 25/33 Rukmani Devi Vs. Dawar & Co.
loss' basis. It would be pertinent to note here that even such drug store was to be run on the basis of no profit- no loss and nor for the charitable purposes. Moreover, the said hospital was to be constructed upon the property of Capston Meter India Ltd. or through the sale proceeds of the land not belonging to petitioner trust but of said company and not by the contribution made by the petitioner trust.
There is no disclosure of details of address or contribution made to run any public library at Jaipur.
A20. Furthermore, nothing has been placed on record that a single penny was spent by any of the petitioners out of their own funds or from the funds of the trust. It would be further pertinent to note here that the petitioners have produced on record the documents in original/photocopies of the year 1991 onwards but failed to produce the relevant record regarding the running of any charitable activities by the petitioner trust as claimed or maintenance of account books to show that any charitable donations have been made by the petitioner trust before or at the time or even after filing of the present petition and, thus, it can be safely held that the petitioner trust was having no activities which can be said to be charitable at the time of filing of the present petition or thereafter.
In view of the aforesaid discussion, it can be safely held that the petitioner trust can not be said to be public institution but at the best it can be said that it is the trust which never became a public institution and, thus, petition filed U/Sec. 22 of the D.R.C. Act is not E no. 100/2009 Page 26/33 Rukmani Devi Vs. Dawar & Co.
maintainable.
A21. So far as Resolution for filing of the present petition is concerned, admittedly the present petition has been signed by all the surviving trustees and even amended petition has been signed by all the surviving trustees, thus on the said ground it can not be said that the petition is not maintainable and thus, said legal objection is having no merits.
In a petition U/s. 14 (1) (a) of the DRC Act, petitioner is required to prove that he is the landlord and respondent is the tenant, that respondent is in arrears of rent, that a legal notice of demand was sent and served and despite service of legal notice, respondent has failed to pay the arrears of rent within the stipulated period of two months.
(i). So far as petition U/Sec. 14 (1)(a) is concerned, admittedly no legal demand notice was sent and served upon the respondent and, therefore, case laws relied upon by the petitioner have no application to the facts and circumstances of the present case as in a petition U/Sec. 14 (1)(a) of D.R.C. Act, service of legal notice is sine qua non and mere filing of the petition before the Competent Authority or filing of eviction petition can not be said to be a valid legal demand. Moreover, the authorities relied upon by the petitioner, with due respect, are having application to the civil suits and not to the proceedings U/Sec. 14 (1)(a) E no. 100/2009 Page 27/33 Rukmani Devi Vs. Dawar & Co.
of the D.R.C. Act. In view of the same, grounds of eviction U/Sec. 14 (1)(a) of D.R.C. Act is held not to be maintainable.
* In a petition U/s. 14 (1) (b) of the DRC Act petitioner is required to prove that there is relationship of landlord and tenant, that the tenant has sublet, otherwise parted with or assigned the possession of suit property to any third person without knowledge and written consent of the petitioner for consideration.
RELATIONSHIP OF LANDLORD AND TENANT:-
(i). So far as relationship of landlord and tenant between the petitioner and respondents no. 1, 2 & 3 is concerned, there is no denial.
As a matter of fact, no evidence has been led on their behalf and they are already ex-parte and they have not led any evidence. Otherwise also, petitioner no. 1 has proved on record the trust deed as Ex. PW-1/26. Even, petitioner no. 2 is admittedly the legal heir of Late Smt. Rukmani Devi Jaipuria thus, being legal heir, he is entitled to maintain the present petition as owner/landlord.
SUBLETTING/PARTING WITH POSSESSION:-
(i). Legal heirs of respondent no. 4 has taken the legal objection that the present petition is not maintainable as the petition was filed against a dead person. They have further taken stand that the respondents no. 1, 2 & 3 were not in possession of the suit property E no. 100/2009 Page 28/33 Rukmani Devi Vs. Dawar & Co.
and, therefore, predecessor in interest finding the suit property unoccupied in March, 1985 Mr. Madan Lal renovated the portion of first floor consisting of one room, one store, latrine and bathroom at his own costs and occupied the same. With the passage of time he became owner of the suit property by adverse possession and this court has no jurisdiction to pass eviction order against them.
(ii). The present petition was filed in the year 1984 and the respondents no. 1, 2 & 3 had contested the present case initially upto about February, 1997. Thus, onus to prove that the respondents no. 1, 2 & 3 had surrendered their possession in the year 1985 was upon respondent no. 4. Admittedly, the legal heirs of respondent no. 4 or the respondent no. 4 was never a tenant in the suit property and thus, petitioners have discharged their onus to prove the possession of third person by admission of legal heirs of respondent no. 4 that they are in possession of the suit property being third person.
(iii). RW-4 i.e. one of the legal heir of respondent no. 4 in his cross stated that he has no knowledge whether the possession of suit property was parted with to his father by M/s Dawar & Co. and again testified that there was no parting with possession of any of the portion by the respondent no. 1. He has further testified that he has no knowledge how his father has occupied the suit property. He further testified that he has no personal knowledge whether his father mentioned himself as tenant or unauthorized occupant while applying E no. 100/2009 Page 29/33 Rukmani Devi Vs. Dawar & Co.
for electricity connection. He has further testified that no document in writing to show his possession since 1985 in the suit property is available with him. He has further testified that he has no knowledge that M/s Dawar & Company ever vacated the suit property and ever delivered the possession to the petitioner. He has further testified that neither he nor his father stated in any department about themselves as owner of the property. He has further testified that he has no knowledge about his status in the suit property. He further testified that he has no knowledge whether portion in their occupation was constructed after getting the plan sanctioned or the said portion was in existence prior to occupation by them.
(iv). Thus, from the evidence available on record it stands proved that the respondent no. 4 and his successor in interest came into possession of the property without written consent of the petitioner as they have failed to prove that there was any surrender of possession/tenancy rights by the erstwhile tenant to the landlord.
(v). So far as respondent no. 5 is concerned, the defence has been taken that they have no concern with any portion in respect of the suit property. PW-1 in his own cross examination has admitted that the portion alleged to be in possession of respondent no. 5 is presently in possession of legal heirs of respondent no. 4. He has further testified that he has never personally seen Sobha Singh and his legal heirs putting locks on bath and W.C. on the second floor nor he has E no. 100/2009 Page 30/33 Rukmani Devi Vs. Dawar & Co.
personally seen them using the said portion.
(vi). Respondent no. 6 has taken the defence that he is in occupation of independent portion comprising of tin shed which he has constructed in the year 1969-71 and he is using it as its owner. However, no evidence has been led on his behalf to prove his defence. Moreover, it is admitted case that he has never been a tenant in the suit property with the written permission of the petitioner. Though, he has claimed that the Dawar & Co. has surrendered vacant possession of the suit property in the yea 1985 but since he failed to appear in the witness box, therefore, he has failed to prove his defence.
(vii). So far as maintainability of the present petition against dead person Mr. Madan Lal is concerned, admittedly no notice was ever given by Mr. Madan Lal or on his behalf that he is in occupation of the suit property to either petitioner and, thus, it can not be said that the petitioner was having knowledge of his death or of his occupation of the suit property and the application U/o 22 Rule 4 CPC was allowed and said order was never challenged, therefore, it can be safely held that the petition is maintainable.
25. Thus, from the above discussion, it can be safely held that the petitioners have been able to prove the possession of legal heirs of respondent no. 4 and respondent no. 6 in the suit property without written consent of the petitioners in view of their admission of E no. 100/2009 Page 31/33 Rukmani Devi Vs. Dawar & Co.
possession in the suit property and respondents aforesaid have failed to prove their claim as owner by adverse possession or surrender of tenancy by the original tenant in the year 1985. Thus, it stands proved on record that the original tenant respondents no. 1, 2 & 3 have divested themselves from legal as well as actual physical possession of the suit property. Thus, petitioners have been able to prove the ground of eviction U/Sec. 14 (1)(b) of the D.R.C.
26. So far as application U/Sec. 40 of the D.R.C. Act r/w Sec. 151 & 152 CPC is concerned, since petitioner has not pressed the said application even after conclusion of petitioner's evidence and otherwise also in view of the aforesaid discussion, the said application has become infructuous and, therefore, same is disposed of accordingly.
27. In view of the aforesaid discussion, the application filed on behalf of the petitioner U/Sec. 15(7) of D.R.C. Act has become infructuous.
28. In view of the aforesaid discussion, this Court is of the opinion that the petitioner has not been able to prove the grounds of eviction U/Sec. 14 (1)(a) & Sec. 22 of the D.R.C. Act. However, he has been able to prove the grounds of eviction U/Sec. 14 (1)(b) of the D.R.C. Act. Hence, eviction order U/Sec. 14 (1)(b) of the D.R.C. Act is passed in favour of the petitioners and against the respondents in respect of one room, bath and W.C. with attached accommodation E no. 100/2009 Page 32/33 Rukmani Devi Vs. Dawar & Co.
on the second floor of the shop no. V/559-560, Katra Asharfi, Chandni Chowk, Delhi as shown in red colour in the site plan attached with the petition. Petition is disposed of accordingly. No order as to costs in the circumstances mentioned hereinabove. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Announced in open court on 11th July, 2012. Devendra Kr. Sharma A.R.C.(North)/Delhi.
(1+2 separate copies are attached).
E no. 100/2009 Page 33/33Rukmani Devi Vs. Dawar & Co.
E no. 100/2009RUKMANI DEVI JAIPURIA CHARITABLE TRUST VS. DAWAR & CO.
11/07/2012.
Present: None.
Vide separate judgment of even date, petition filed on behalf of the petitioner is partly dismissed for the ground of eviction U/Sec. 14 (1)(a) as well as 22 of D.R.C. Act and the petition is partly allowed for the ground of eviction U/Sec. 14 (1)(b) of the D.R.C. Act against the respondents. An eviction order is passed U/Sec. 14 (1)(b) of the D.R.C. Act in favour of the petitioners and against the respondents in respect of one room, bath and W.C. with attached accommodation on the second floor of the shop no. V/559-560, Katra Asharfi, Chandni Chowk, Delhi as shown in red colour in the site plan attached with the petition. No order as to costs. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Devendra Kr. Sharma A.R.C. (North)/Delhi. 11/07/2012.
E no. 100/2009 Page 34/33