Delhi District Court
Sh. Akhil Jain vs . Sh. Shadi Lal on 31 March, 2012
Sh. Akhil Jain Vs. Sh. Shadi Lal
IN THE COURT OF SH. DEVENDRA KR. SHARMA
ADDL. RENT CONTROLLER, DISTRICT: NORTH: DELHI.
E No. 28/2009
Unique Case ID No: 02401C5116832004
SH. AKHIL JAIN
S/o. Sh. Suresh Chander Jain,
R/o. 81-D, Kamla Nagar,
Delhi-110007. ...Petitioner.
Versus
1. SH. SHADI LAL MINDA
S/o. Late Sh. Gajanan Minda
(Since Deceased)
Through Legal heirs
(I). SH. NIRMAL MINDA
(ii). SH. ASHOK MINDA
(iii). MS. REKHA
All at : 81-D, Kamla Nagar,
Delhi-110007.
2. M/S. MINDA SWITCH AUTO LTD.
81-D, Kamla Nagar,
Delhi-110007. ...Respondents.
Date of institution of the petition : 24/04/1997
Date on which order was reserved : 14/03/2012
Date of Decision : 31/03/2012
JUDGMENT
31/03/2012 E no. 28/2009 Page 1/18 Sh. Akhil Jain Vs. Sh. Shadi Lal Vide this judgment, I shall decide the petition filed on behalf of the petitioner U/Sec. 14 (1) (b) of the DRC Act, 1958 (herein after referred to as D.R.C. Act, 1958).
1. In sum and substance the case of the petitioner is that the petitioner is the landlord and respondent no. 1 is the tenant in respect of two shops, one godown, one WC and one bathroom on the ground floor in property bearing no. 81-D Kamla Nagar, Delhi as shown in the site plan attached with the petition (hereinafter referred to as 'suit property'). The suit property was let out for non residential purposes at monthly rent of Rs. 300/- w.e.f. 01/01/1994 till 31/01/1997 and Rs. 330/- w.e.f. 01/02/1997 onwards exclusive of other charges.
2. It is further alleged that initially one shop and one godown was let out to the respondent in 1959 and subsequently w.e.f. 01/12/1973 one W.C. and one bathroom was constructed in the suit premises, thereafter another shop adjacent to the suit shop was also let out to the respondent no. 1. The suit premises is a part of building bearing no. 81-D Kamla Nagar, Delhi which was owned by Smt. Chameli Devi, grandmother of the petitioner but unfortunately she expired on 17/05/1985 leaving behind the Will dated 26/07/1976 bequeathing the ground floor of the suit property in favour of petitioner and suit property is also situated on the ground floor. The said fact was duly intimated by Sh. Suresh Chander Jain to the respondent in a petition filed by the respondent herein for deposit of rent. As such the petitioner is the owner/landlord of the suit property.
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3. The respondent no. 1 has in violation of the terms of the tenancy sublet, assigned or otherwise parted with the possession of the premises to the respondent no. 2 namely M/s. Minda Switch Auto Ltd. which is now occupying the suit property and carrying on the business in the its name from the said premises. Respondent no. 1 who is tenant is now neither in legal nor in factual possession of the suit property and has moved out from the suit property and therefore, he is liable for eviction as the suit property was sublet without any consent in writing to the petitioner. Other grounds of that is there are arrears of rent and of substantial damage to the suit property have also been alleged.
4. Upon the service of summons W.S. was filed on behalf of respondent no. 1 raising the preliminary objections that there is no relationship of landlord and tenant between the parties and thus, petition is not maintainable and liable to be dismissed. However, he has admitted that he is tenant in property bearing no. 81-D, Kamla Nagar, Delhi. It is further alleged that property is in possession of respondent no. 1 and no firm is working in the name and style of M/s. Minda Switch Auto Ltd. in the suit premises and relief claimed by the plaintiff is barred under the Provisions of Order 2 Rule 2 C.P.C. as prior to this the petitioner, petitioner had filed another eviction petition and at that time, this ground was also available to the petitioner.
5. On merits he again denied the relationship with the petitioner E no. 28/2009 Page 3/18 Sh. Akhil Jain Vs. Sh. Shadi Lal but admitted his status as tenant. He disputed the extent of tenanted premises stating that the eviction petition has been filed for the part of the tenanted premises. He further disputed the rate of rent. He further alleged that there is no rent agreement executed between the parties when another shop was let out. He again disputed that any part of the suit property was sublet to respondent no. 2. He has not disputed the ownership of Smt. Chameli Devi or factum of her death but he denied the execution of Will stating that no copy of the Will was ever shown or sent nor any letter of administration has been obtained by the petitioner in respect of the said Will. He has further denied that Sh. Suresh Chander Jain intimated to the respondent about the said Will.
6. He further denied that respondent no. 1 is not in legal or physical possession of the suit property or he has moved out of the suit property. He has claimed that he is in physical possession of the suit property. He has further denied receiving of any legal notice or arrears of rent or causing any substantial damages and has prayed for dismissal of the present petition with special costs of Rs. 5000/-.
7. Replication to the W.S. of respondent no. 1 was filed denying all the preliminary objections as well as allegations on merit and reiterating moreover the same facts as alleged in the petition. It is further alleged that petitioner came to know that respondent no. 1 has sublet the entire suit property to the respondent no. 2 sometime in the year 1991 but petitioner is not aware as to rent charged by the respondent no. 1 from respondent no. 2.
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8. Since, none appeared on behalf of the respondent no. 2 despite service through publication, therefore, respondent no. 2 was proceeded Ex-parte vide order dated 11/03/1999.
9. Upon completion of the pleadings petitioner examined Sh. P. P. Verma as PW-1 to prove the site plan Ex. PW-1/A and he was cross examined.
10. Petitioner himself appeared and was examined as PW-2. He deposed moreover the same facts as alleged in the petition and in support of his oral testimony he has placed reliance upon the documents of which death certificate of Smt. Chameli Devi as Ex. PW-2/A, photocopy of the Will as Ex. PW-2/B, copy of the judgment dated 16/10/1990 as Ex. PW-2/C. The certified copy of the objection filed in DR no. 104/1991 as Ex. PW-2/D, Rent deed executed in the year 1973 as Ex. PW-2/E, a letter showing the correspondence of Minda Switch Auto Ltd delivered in the letter box of the petitioner inadvertently as Ex. PW-2/F, Carbon Copy of the Legal Demand Notice dated 27/01/1997 as Ex. PW-2/G, Original postal receipt as Ex. PW-2/H, original UPC as Ex. PW-2/I, reply dated 31/03/1997 sent by respondent no. 1 as Ex. PW-2/J and was cross examined at length.
11. Mr. Tek Ram, SSO, MTNL, ISBT appeared as PW-3 alongwith summoned record who placed photocopy of the duplicate application form in respect of phone no. 7212803 as Ex. PW-3/1, photocopy of the E no. 28/2009 Page 5/18 Sh. Akhil Jain Vs. Sh. Shadi Lal application form made by Minda Switch Auto Ltd as Ex. PW-3/2. The copy of the order shifting the telephone as Ex. PW-3/3 and PW-3/4. The bill for the telephone date 15/04/2000 for the period from 01/05/2000 to 24/05/2000 as Ex. PW-3/5 and was cross examined at length.
12. Mr. Alok Kumar Saxena, UDC in ROC, Delhi appeared as PW-4 alongwith the summoned record which was exhibited as Ex. PW-4/1 to 4/2. No cross was conducted as the witness did not appear again.
13. Mr. Nawal Kishore, JTA, Office of Registar of Companies, CGO Complex, Delhi was again examined as PW-4 to prove documents already exhibited as Ex. PW-4/1 and PW-4/2 and was cross examined at length.
14. Respondent no. 1 appeared as RW-1 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.
15. Objection was taken on behalf of petitioner that contents of affidavit in examination in chief of RW-1 pertaining to para 9 and 10 are beyond the pleadings.
16. During the pending proceedings respondent died and his legal heirs were brought on record vide order dated 27/01/2011.
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17. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully.
18. Respondent has placed reliance upon the judgments reported in CM (M) No. 128/2007 & CM No. 1091/2007 in Case titled as M/s. Dhootapapeshwar Industries Ltd. Vs. Sh. Atma Ram & Anr. passed by Hon'ble Ms. Justice Indermeet Kaur.
A. A legal objection has been taken that the present petition is not maintainable and is barred under U/o 2 Rule 2 CPC on the ground that petitioner has filed earlier other petitions for eviction when the cause of action was available with him. In this regard, it is well settled law that the petitioner can file the eviction petition separately U/Sec. 14 (1)(a)
(b) & (j) of D.R.C. Act or jointly according to his choice as cause of action in all the cases are different and, therefore, the said legal objection is misplaced.
B. The maintainability of the petition has been further challenged on the ground that the petition was filed for partial eviction. However, nothing has been proved on record that as to how the present petition was filed for the partial eviction and so far as the extent of tenancy is concerned, except the allegation regarding the removing of the wall there is no different site plan filed on behalf of the petitioner neither in the three cases thus, it appears that said ground has been taken for E no. 28/2009 Page 7/18 Sh. Akhil Jain Vs. Sh. Shadi Lal the sake of defence without having any substance.
C. Relationship of landlord and tenant :- (i). Respondent has denied any relationship of landlord and tenant
between the parties. In support of his claim as landlord/owner, petitioner has placed on record the Will Ex. PW-2/B, reply to the objections filed by the father of petitioner Mr. Suresh Chandra Jain in the petition filed on behalf of the respondent U/Sec. 27 of the D.R.C. Act as Ex. PW-2/D and the judgment granting the probate in favour of present petitioner as Ex. PW-2/C.
(ii). Perusal of the reply-cum-objection filed on behalf of Mr. Suresh Chandra Jain makes it clear that in para-2, it was clearly mentioned that a copy of the probate along with the Will is annexed as annexure- A and there is nothing on record to rebut that no such copy was annexed with the said objections. Thus, the onus was upon the respondent to prove that no copy of the Will and copy of probate was supplied to him at the time of filing of the objections as the respondent has not denied filing of the petition U/Sec. 27 of the D.R.C. Act and he has failed to lead any evidence that no such documents were filed or supplied to him in said proceedings.
(iii). So far as Will is concerned, now law is well settled that a tenant can not challenge the validity of the Will and otherwise also, the said Will has already been probated by the Ld. Court of Competent Jurisdiction. Thus, it stands proved that the petitioner became owner of E no. 28/2009 Page 8/18 Sh. Akhil Jain Vs. Sh. Shadi Lal the suit property by virtue of a Will in his favour and, thus, became the landlord by operation of law of the suit property.
D. The petitioner has alleged that respondent no. 1 in voilation of the terms of the tenancy, sublet, assigned or otherwise parted with the possession of the premises in dispute to respondent no. 2 namely M/s. Minda Switch Auto Ltd. which is now occupying the suit property and respondent no. 1 is neither in legal nor in physical possession of the suit property and has moved out from the suit property. However, respondent no. 1 has denied the same.
E. PW-2 in his examination in chief has deposed that the factum of subletting came to his knowledge as they are staying in the same building on the first and second floor and at times Postman inadvertently put correspondence of M/s. Minda Switch Auto Ltd. in the letter box of the petitioner and the said letter was exhibited as Ex. PW-2/F. F. In his cross examination PW-2 stated that he can not tell the date, month and year when the alleged subletting took place in favour of the respondent no. 2. He can not tell the name of the Managing Director of the said firm. He does not know the numbers of the employees in the said firm. He can not tell the name of any employee of the said firm. He further testified that he is not aware whether the said firm was having registered office at the time of filing of the present petition. He further testified that Sh. Shadi Lal Minda is carrying on E no. 28/2009 Page 9/18 Sh. Akhil Jain Vs. Sh. Shadi Lal business in the name of M/s. Minda Industries but he does not know whether the said firm Minda Industries is a partnership concerned or a proprietorship concerned. He further testified that he can not tell the number of employee in M/s. Minda Industries. He further testified that it is correct to suggest that he can not tell the number of persons working in the premises in dispute where the business of M/s. Minda Industries is being carried out or he can not tell the number of visits, whether it is 20-30 times but he visited many times. He further testified that Sh. Shadi Lal Minda must be of 65 years old. He never met to Shadi Lal Minda whenever he visited the premises in dispute. He further testified that he is not aware whether Minda Industries is paying Income Tax from address of suit property. He further testified that he talked to Mr. Shadi Lal Minda at his residence at telephone but do not remember the phone number or residential address but deposed that his residence is in Ashok Vihar. He further testified that he can not tell the month when he visited him but he visited the residence in the year 1988.
G. He further testified that he visited him first time to deliver him Diwali gift. He talked to Mr. Shadi Lal Minda with respect of premises in dispute for the first time in 1989-90 regarding another firm in the premises in dispute. He denied the suggestion that he never met Mr. Shadi Lal Minda at his residence. He further testified that it is correct that his address, respondent's address and address of the other tenants is D-81 Kamla Nagar, Delhi and all correspondence can be received at the said address. He further testified that he can not tell the E no. 28/2009 Page 10/18 Sh. Akhil Jain Vs. Sh. Shadi Lal exact date, month and year when he has received the letter addressed to M/s. Minda Switch Auto Ltd. He admitted that the said letter bears the address as 81-D Kamla Nagar, Delhi. He further testified that he has never seen any board in the name of M/s. Minda Switch Auto Ltd. in any part of the building in dispute. He testified that he says that there is subletting in the suit premises on the basis of letter addressed to M/s. Minda Switch Auto Ltd. as well as conversation with Mr. Shadi Lal who had said that he will get the suit premises vacated from the sub tenant and he must have informed said fact to his counsel at the time of filing of the petition.
H. He further testified that it is correct that the portion shown in red colour in Ex. PW-1/A is in occupation of the respondent no. 1 and again said the said portion is not in his possession and he has sub let to M/s. Minda Switch Auto Ltd. who is in possession of the same. He further testified that he does not know the name of the Directors of firm. He denied the suggestion that entire portion shown in red colour was in possession of respondent at the time of filing of the petition and even today. He further testified that he can not give the exact date, month and year when respondent no. 2 took the possession of the suit property and he can not even say whether it was five years back or ten years back. He further testified that he can not tell the name of any employee of respondent no. 2. He further testified that he is not aware of the amount being paid by respondent no. 2 to respondent no. 1. He further testified that he has not verified from the Shops and Establishment Department regarding number of employee of the E no. 28/2009 Page 11/18 Sh. Akhil Jain Vs. Sh. Shadi Lal respondent no. 1 or his employees are working in the suit property. He denied the suggestion that he has mentioned in his examination in chief that his source of information regarding the subletting is the bill of telephone in the name of respondent no. 2. He further testified that he has alleged subletting by respondent no. 1 to respondent no. 2 on the basis of the letter addressing to respondent no. 2, his lawyers verification from Register of Companies and the general talk between the other tenants neighbourers etc. He further testified that he does not remember the registration number of respondent no. 2. He denied the suggestion that respondent no. 1 is charging any rent from respondent no. 2.
I. He further testified that he can not tell the rate of rent being charged by respondent no. 1 from respondent no. 2 or from which date. However, he denied the suggestion that he can not tell said fact as respondent no. 1 has not sublet the suit property to respondent no. 2. He can not tell the date on which the respondent no. 2 registered with the R.O.C. as he has not personally verified the document from Sale Tax Department or R.O.C. He further testified that he has not personally verified from the telephone department regarding the telephone in the name of respondent no. 2.
J. PW-3 in his chief has deposed that he has brought the summoned record. The phone no. 7212803 was opened on 24/02/1994 in the name of Minda Switch Auto Ld. in the register number/OT number 021111. Photocopy of the duplicate application E no. 28/2009 Page 12/18 Sh. Akhil Jain Vs. Sh. Shadi Lal form is Ex. PW-3/1. M/s. Minda Switch Auto Ltd., thereafter requested for shifting of the telephone no. at 81-D Kamla Nagar, Delhi vide application form, photocopy of which is Ex. PW-3/2. The said telephone was thereafter shifted to 81-D Kamla Nagar, Delhi vide OB number 260234944 dated 05/11/1996 having telephone no. 3967632 dated 15/04/2000. For the period 01/05/2000 to 24/05/2000, a bill was sent by us to M/s. Minda Switch Auto Ltd. and the said bill is Ex. PW-3/5.
K. In his cross examination, he has admitted that he has never visited the property in question. He can not tell that as to who is the Managing Director of Minda Switch Auto Ltd. He can not tell as to who has signed the application form for shifting the telephone. There is no document attached with the application form for shifting of telephone. This job of verification of the fact is of the exchange concerned regarding the status of the person concerned. He does not know in which part of the building the aforesaid telephone was installed. This application was submitted for transfer on 18/09/2000 and the reason for shifting is mentioned as change of Chairman's office. He admitted the suggestion that the word 'our chairman' is rubbed and thereafter the word chairman is mentioned. He does not know about the room in property no. 81-D Kamla Nagar, Delhi or the number of offices in existence in the said building.
L. Witness PW-4 deposed in his examination in chief that he has brought the record of M/s. Minda Auto Switch Ltd. vide form no. 18 E no. 28/2009 Page 13/18 Sh. Akhil Jain Vs. Sh. Shadi Lal dated 06/04/1987 through which the registered office of M/s. Minda Switch Auto Ltd. was changed from D37, Wazirpur Industrial Area to D-81, Kamla Nagar, Delhi-07 w.e.f. 06/04/1987 and the copy of the said form no. 18 is Ex. PW-4/1. The form no. 18 dated Nil November 1988, shows that registered office of the company was changed from 37, Rajasthan Udyog Nagar, Delhi to 81-D, Kamla Nagar, Delhi w.e.f. 25/11/1988 and photocopy of the said form is Ex. PW-4/2. The said company was incorporated on 11/03/1985 as Minda Switch Auto Pvt. Ltd. and was thereafter changed to Minda Switch Auto Ltd. The said company is registered with Registrar of Companies.
M. Wintess Mr. Nawal Kishore , JTA, Office of Registrar of Companies, CGO Complex, Delhi also appeared as PW-4 and deposed the identical facts as deposed by PW-4 Sh. Alok Kumar Saxena and in his cross examination, he admitted that he has not visited the site personally where the company is functioning. He further testified that he does not know the status of occupation of the said company either as tenant or as landlord. He further testified that he can not tell which part or portion in building is in possession of the said company. He can not tell the name of the Directors of the said company. He further testified that at present the said company is at 41, Rajasthan, Udyog Nagar, Delhi which is registered office of the company. Previously they were having their registered office at premises in dispute. He can not give the name of any person who has visited the premises in dispute before issuance the certificate from our office.
E no. 28/2009 Page 14/18Sh. Akhil Jain Vs. Sh. Shadi Lal N. RW-1 in his examination in chief deposed that he is in possession of suit premises and at no stage, he has ever sublet or parted with the possession of any part of the premises. He or his employee opens and closes the office. There is no company by the name of Minda Switch Auto Ltd functioning from the suit property nor any part of the suit property is in possession of the said company and no details of the said company has been disclosed. He has further deposed that there was no subletting at the time of filing of the petitioner or prior to it and even thereafter. In his cross examination, he denied that he is not in possession of suit property or he has sublet premises to other person. He further denied the suggestion that he has not visited the suit property for the last several years. He further testified that upon Ex. PW-2/F the address is mentioned of the suit property. He further admitted that upon Ex. PW-3/5 the address mentioned is 81- D Kamla Nagar, Delhi.
O. Before appreciating evidence, it will be appropriate to appreciate that the Legal Demand Notice dated 27/01/1997 was sent to the respondent but there was no mention of any sub tenancy by the respondent no. 1 in favour of respondent no. 2.
P. In the cross examination PW-2 testified that talks for eviction of respondent no. 2 was there with the respondent no. 1 since the year 1989-90 but as per his testimony in examination in chief, the petitioner came to know regarding the sub tenancy through letter sent to E no. 28/2009 Page 15/18 Sh. Akhil Jain Vs. Sh. Shadi Lal respondent no. 2 Ex. PW-2/F and perusal of the said letter reveals that the same is bearing postal seal dated 05/01/1991 i.e. about after two years after alleged subletting.
Q. Even in the cross examination PW-2 has testified that respondent no. 1 is carrying on the business in the name of M/s. Minda Industries. Further in his cross examination he testified that he can not tell the date, month and year of alleged subletting. He further testified that he can not tell the name of the employees of any of respondent though he has claimed to have visited the suit property on daily basis and ordinarily a person visiting should have knowledge about the person working. Even in his cross examination at one stage he has admitted the possession of respondent no. 1 over the suit property but in the same breath he denied that said portion is in possession of respondent no. 1 and deposed that the same has been sublet to respondent no. 2. There is no allegation in the petition or in the chief of PW-2 that any amount is being paid by respondent no. 2 to respondent no. 1 on account of subletting. He admitted that he never seen any board in the name of respondent upon the suit property. Thus, it can be safely held that testimony of PW-2 can not be relied upon and same is contradictory to the pleadings.
R. PW-3 in his cross examination has admitted that the job of verifying the fact at the time of shifting of the telephone is of the exchange concerned regarding the status of the person applying for shifting and he can not tell in which part of the building the telephone E no. 28/2009 Page 16/18 Sh. Akhil Jain Vs. Sh. Shadi Lal was installed and as per the record, of the telephone was shifted on 18/09/2000 and thus, the date becomes relevant as the present petition was filed in the year 1997 and the application for telephone was shifted in the year 2000 and no ordinary prudent man will take such step. Thus, on the basis of said application for shifting of the telephone, it can not be said that there was any cause of action available with the petitioner to file the present eviction petition on the ground of subletting. Even, if it is assumed that, the said application was moved, however there is nothing on record to prove that the said application was moved with the consent of respondent no. 1 and there is even no suggestion to the respondent no. 1 that he has conceded the shifting of the telephone to the suit premises or the said applications Ex. PW-3/1 and PW-3/2 was either signed by the respondent no. 1 or on his behalf. Otherwise also the evidence of PW-3 is beyond pleadings.
S. So far as testimony of PW-4/1 is concerned, vide form no. 18 Ex. PW-4/1, intimation was given to the office of Registrar of Co. of shifting of address of respondent no. 2 to the suit address and another form no. 18 Ex. PW-4/2, again the intimation was sent of the shifting of the address of the respondent no. 2 to the suit property address and in both the documents the date of shifting has been shown as 06/04/1987 and 25/11/1988 but there is nothing to suggest that any such shifting of the address was done with the consent of respondent no. 1 as no document has been attached alongwith these applications to show that any consent was obtained by the respondent no. 1 and even, if it is E no. 28/2009 Page 17/18 Sh. Akhil Jain Vs. Sh. Shadi Lal assumed that, the address of the respondent no. 2 was shifted at suit property address but in absence of any corroborative material that said respondent no. 2 has actually occupied the suit property in exclusion of respondent no. 1, it can not be said that the respondent no. 2 came for actual physical possession of the suit property in exclusion of respondent no. 2. Even in the cross examination, PW-4 has admitted that he has not visited the suit property nor he can tell the name of the person who has visited to the suit property before the issuance of the certificate from the office. Moreover, there was no such averments in the pleadings.
19. Thus, in the facts and circumstances as discussed hereinabove, this Court is of the opinion that petitioner has failed to prove his case U/Sec. 14 (1)(b) of the D.R.C. Act. Hence, the petition filed U/Sec. 14 (1)(b) of the D.R.C. Act is dismissed. No order as to costs. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Announced in open court on 31st March, 2012. Devendra Kr. Sharma A.R.C.(North)/Delhi.
(1+2 separate copies are attached).
E no. 28/2009 Page 18/18 Sh. Akhil Jain Vs. Sh. Shadi Lal E no. 28/2009 AKHIL JAIN VS. SHADI LAL 31/03/2012 Present: None.
Vide separate judgment of even date, it is held that petition U/Sec. 14 (1)(b) of the D.R.C. Act is dismissed. No order as to costs in the circumstances mentiioned in the judgment. 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. 31.03.2012.
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