Delhi District Court
Sh. Virender Bhasin vs Sh. Vinod Choudhary on 26 June, 2020
IN THE COURT OF MS NEENA BANSAL KRISHNA
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI
RCT No. 25/2017
Sh. Virender Bhasin
S/o Late Sh. Ram Narayan
R/o: 371/15, Subhash Market,
Kotla Mubarakpur,
New Delhi - 110003 Appellant/ Tenant
Versus
Sh. Vinod Choudhary
S/o Late Sh. Harkesh
R/o: 54, Subhash Market,
Kotla Mubarakpur,
New Delhi - 110003 Respondent/ Landlord
First date before this Court: 12.12.2017
Date of Order: 26.06.2020
ORDER:
1. An appeal under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter called The Act) has been filed against the Judgment dated 30.10.2017 vide which the Petition filed by the respondent/landlord under Section 14 (1) (h) (h) of DRC Act was allowed and eviction order has been passed against the appellant under Section 14 (1) (h) and Section 14 (1) (h) (h) of the Act.
2. The facts in brief are that late Sh. Ram Narayan, husband of RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 1 of 27 Pages Smt. Pushpa (deleted after her demise vide order dated 23.03.2015) and father of Sh. Virender Bhasin (appellant) was inducted as a tenant for residential purposes by the petitioner/ landlord on monthly rent of Rs. 50/ in respect of entire ground floor and first floor of the premises bearing No. 371/15, Subhash Market, Kotla Mubarakpur, New Delhi many years ago and during the lifetime of Sh. Ram Narayan, his tenancy was terminated vide Legal Notice dated 14.05.1996 and he became statutory tenant. After his demise (on 01.11.1996), his wife Smt. Pushpa, inherited the statutory tenancy in the suit premises. The petition was however, filed against Smt. Pushpa as well as the four sons as respondents. It was asserted that the respondent No. 5 Sh. Umesh was residing in the property in question. Respondent No. 1 Smt. Pushpa, Respondent No. 2 Sh. Virender Bhasin and respondent No. 3 Sh. Subhash were shown to be residing in Kangra, Himachal Pradesh in the case title.
3. It has been asserted that Smt. Pushpa inherited and built the premises bearing No. 414, Punjabi Bazar, Subhash Market, Kotla Mubarakpur, New Delhi and more than 10 years have elapsed till the date of filing the petition (on 31.01.2008). A Legal Notice dated 01.12.2006 had been sent to all the respondents asking them to vacate the suit premises, but they have failed to do so. Hence, the petition was filed for eviction under Section 14 (1) (h) (h) of the Act.
RCT No. 25/2017Virender Bhasin vs. Vinod Choudhary Page 2 of 27 Pages
4. Initially, the petition was titled under Section 14 (1) (h) of Act, but before service was effected on the respondents, an amendment was sought to be made to change the section to Section 14 (1) (h)
(h) of the Act which was allowed vide order dated 03.07.2008.
5. All the five Respondents/tenants filed a common written statement admitting that Sh. Ram Narayan was inducted as a tenant originally by Late Sh. Harkesh father of the petitioner in respect of ground floor as that was the only existing construction but with the oral consent of the Landlord, Sh. Ram Narayan constructed the first floor and the site plan does not show the rented premises correctly. It was claimed that after his death, petitioner/respondent started collecting rent from the respondent No.2 (appellant) in the capacity of landlord. It was further claimed that the tenancy was inherited by all the respondents and also four daughters of Late Sh. Ram Narayan who have not been impleaded as respondents and the petition is bad for nonjoinder of necessary party.
6. On merits, it was explained that the property bearing No. 414, Punjabi Bazar, Subhash Market, Kotla Mubarakpur, New Delhi, was acquired by Sh.Ram Narayan husband of respondent No. 1 on 23.01.1952, which was a commercial property. There was one shop on the ground floor which was being run by respondent No. 2 Sh. Virender Bhasin, while respondent No. 3 Sh. Subhash and respondent No. 5 Sh. Umesh were residing and earning their livelihood at Kangra, Himachal Pradesh. Aside from this shop on RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 3 of 27 Pages the ground floor, there were no other residential premises in possession of the answering respondents. Respondent No. 1 Smt. Pushpa, respondent No. 2 Sh. Virender Bhasin and respondent No. 4 Sh. Naresh had no other residential accommodation except the tenanted premises where they are residing and had no legal right to occupy the acquired property. It has been further explained that the respondent No. 4 Sh. Naresh had taken loan against the said commercial accommodation on the second floor from Syndicate Bank, NOIDA, Uttar Pradesh and was heavily indebted. It was thus, explained that property No. 414, Punjabi Bazar is purely a commercial property having a godown, and shops on two floors and second floor on which the Bank had the lien. It was further claimed that the petitioner had intentionally given wrong address of the respondents No. 1, 2 & 5 in order to manipulate the judicial proceedings. It is denied that the respondents have acquired or constructed alternate residential accommodation or that respondent No. 1 was residing at the said acquired property No. 414, Punjabi Bazar, Subhash Market, Kotla Mubarakpur, New Delhi. It was denied that the Legal notice was served at their address of acquired property at 414, Punjabi Bazaar, Kotla Mubarakpur, New Delhi. In response to Notice of termination of Tenancy, it was asserted that the alleged Legal Notice had no value as the petitioner during his lifetime and after the death of Lala Ram Narayan, had been accepting the rent and issuing receipts till 2006 to Respondent No. 2. Thereafter, RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 4 of 27 Pages respondent refused to accept the rent and hence, rent since April, 2006 till March, 2009 had been deposited in the Court under Section 27 of the DRC Act. It was thus, claimed that eviction petition was liable to be dismissed.
7. The respondent/landlord had reaffirmed the assertions as contained in the plaint by way of replication.
8. The petitioner Sh. Vinod Chaudhary appeared as PW1 in support of his case and tendered his evidence by way of affidavit as Ex. PW1/A.
9. Respondent No. 2 Sh. Virender Bhasin appeared as RW1 and tendered his evidence by way of affidavit as Ex. RW1/A.
10.Ld. Addl. Rent Controller concluded from the evidence led by both the parties that respondents had acquired the premises bearing No. 414, Punjabi Bazar, Subhash Market, Kotla Mubarakpur, New Delhi and construction was raised thereon about ten years prior to filing of present petition and thus, the ground for eviction under Section 14 (1) (h) as well as Section 14 (1) (h) (h) of The Act was established. The Eviction Order was accordingly passed vide judgment dated 30.10.2017. Aggrieved by the said judgment, the present appeal has been filed by Respondent No. 2 Virender Bhasin.
11.It has been submitted in the appeal that initially the petition was filed under Section 14 (1) (h) of DRC Act, but was subsequently amended to petition under Section 14 (1) (h) (h) of The Act.
RCT No. 25/2017Virender Bhasin vs. Vinod Choudhary Page 5 of 27 Pages Neither the notice of the amendment application nor the amended petition was served upon the respondents. They gave the written statement in response to the petition as originally filed under Section 14 (1) (h) of The Act which is quite evident from the contents of their written statement. No opportunity was given to the respondents to explain the acquisition and construction on the acquired premises bearing No. 414, Punjabi Bazar, Subhash Market, Kotla Mubarakpur, New Delhi. They have not been given any opportunity whatsoever to explain that no property has been acquired or constructed by the respondents.
12.Moreover, Late Sh. Ram Narayan, the original tenant had acquired the property in the year 1951 and had raised construction. The amended Section 14 (1) (h) (h) of DRC Act was introduced only w.e.f. 01.12.1988 and was applicable prospectively. The ground of eviction under Section 14 (1) (h) (h) of DRC Act was not available and no eviction order under this sub section could have been made.
13.It is also argued that the eviction petition under Section 14 (1) (h) of DRC Act had been withdrawn and eviction order could have only been made under Section 14 (1) (h) (h) of DRC Act. It is further stated that even if respondent No. 1 Smt. Pushpa was assumed to be the statutory tenant, she alone had acquired the commercial property by way of inheritance after the demise of her husband and it has been wrongly held that the residential property was available or constructed or acquired by all the respondents.
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14.Another plea has been raised that after the demise of Late Sh. Ram Narayan, fresh tenancy was created in favour of his son Sh. Virender Bhasin/Appellant who has been tendering rent in his independent capacity since April, 2004. He has also claimed that respondent No. 1 Smt. Pushpa died during the pendency of the present petition, but her legal heirs/four daughters had not been impleaded as party and thus, the eviction order is bad in law. It is thus, submitted that the present eviction order is liable to be set aside.
15.No formal reply has been filed to the appeal.
16.Ld. Counsel for the respondent/landlord has argued that there was no fresh tenancy created in the name of Sh. Virender Bhasin, who had been tendering rent in the capacity of son of the deceased Sh. Ram Narayan, respondent No. 1, the original tenant. It has also been argued that the appellant Sh. Virender Bhasin in his evidence had wrongly claimed that the construction of the acquired property was carried out in the year 2000 as in ParaF of grounds of appeal appellant himself has stated that construction was carried out by Sh. Ram Narayan sometime in 1987. It is wrongly claimed by the appellant that the petition under Section 14 (1) (h) (h) of DRC Act was premature and could not have been allowed.
17.It is further argued on behalf of respondent that a part of acquired property has been sold by Smt. Pushpa vide registered Sale deeds in 2006 & 2008 as built up property. In the Sale Deed property is reflected as residential and the claim that it was commercial RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 7 of 27 Pages property is not tenable.
18.It has also been argued that copy of the amended petition had been duly served upon the respondents and their written statement was in response to the amended petition. It has been asserted that there is no ground for setting aside the eviction order and appeal is liable to be dismissed.
19.I have heard the arguments and perused the record and the evidence. My observations are as under:
20.An objection has been taken in the appeal that the eviction petition had been originally filed under Section 14 (1) (h) of The Act and by virtue of the amendment the petition was substituted to be under Section 14 (1) (h) (h) of DRC Act, which amounts to withdrawal of earlier petition under Section 14 (1) (h) of the Act. It implies that there existed no petition to which an amendment could be allowed. The amendment thus, allowed was illegal and liable to be setaside. It was also argued that once the eviction on the ground of Section 14 (1) (h) of DRC Act had been withdrawn, the Ld. Addl. Rent Controller fell in error in allowing eviction under Section 14 (1) (h) of DRC Act as well as Section 14 (1) (h)
(h) of DRC Act.
21.First and foremost, it may be noted that by way of amendment the relevant section for eviction was sought to be changed from Section 14 (1) (h) to Section 14 (1) (h) (h) of the Act while the entire content of the petition remained essentially the same. Mere changing of the section of a petition on the averments already RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 8 of 27 Pages made would not amount to withdrawal of the earlier petition. The amendment allowed was more of technical in nature; it cannot be said that there was implied withdrawal of petition under Section 14 (1) (h) DRC Act and no amendment could have been allowed to a withdrawn petition or that the amendment tantamount to filing a fresh petition under Section 14 (1) (h) (h) DRC Act. Even if it is accepted that the amendment led to filing of fresh petition under Section 14 (1) (h) (h) of DRC Act, then too it is only a technical objection and essentially does not make the petition non est.
22.An ancillary objection has been taken on behalf of the appellant that no notice of amendment of the petition was served upon the appellant and he was also not given the copy of the amended plaint. Therefore, appellant did not get any opportunity to explain in regard to the acquisition/ construction of the property in the Written Statement.
23.The Trial Court Record shows that initially the Petition was filed under Section 14 (1) (h) of The Act but before the service of the petition upon the respondents/appellant, an application under Order 6 Rule 17 CPC was moved for amendment of original eviction petition to be under Section 14 (1) (h) (h) of The Act. Since the respondents were yet to be served, the amendment application was allowed without notice to the respondents/tenant vide order dated 03.07.2008. The respondents were then directed to be served with amended petition. Essentially, the amendment was sought for substituting the section from 14 (1) (h) of the Act RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 9 of 27 Pages with Section 14 (1) (h) (h) of The Act and the corresponding amendments were made in the relevant paragraphs/ prayer of the petition. Appellant/tenant was thereafter served with the amendment petition, to which the written statement was filed. The notice of amendment application on respondents was not required as they were yet to be served with main petition and there is no merit in this argument.
24.A plea had been setup on behalf of the appellant/tenant that it was only an unamended petition that was served upon him and he did not get an opportunity to rebut the assertions made in the amended petition. However, perusal of the amended petition and the corresponding written statement shows that it has been filed in response to the amended petition and not to the original petition that has been filed initially by the respondent/landlord. For this reference may be had to various paragraphs.
25.Para5 of the Original Petition reads as under:
"Respondents No. 1 & 2 are residing in the tenanted premises".
26.Para5 of the Amended Petition reads as under:
"The respondent No. 5 is only residing in the tenanted premises".
27.In reply to above, Para5 of the Written Statement reads as under:
"That the contents of the Para No. 5 of the petition is wrong and denied. It is submitted that the RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 10 of 27 Pages respondents' No. 1 & 2 are residing in the tenanted premises and the respondent No. 5 is residing for earning his livelihood at Kangra, Himachal Pradesh".
28.Para9 of the Original Petition read as under:
"After the death of tenant named Sh. Ram Narayan now the defendants/respondents are joint tenant for the last about 10 years after the death of tenant Sh. Ram Narayan".
29.Para9 of the Amended Petition read as under:
"Occupied by the respondent No. 5 only".
30.In reply to above, Para9 of the Written Statement read as under:
"That the contents of the Para No. 9 of the petition is wrong and denied. It is submitted that the respondents No. 1 & 2 is residing in the tenanted premises and the respondent No. 5 is residing for his earning his livelihood at Kangra, Himachal Pradesh".
31.If the written statement was filed in response to the original plaint, then there was no question of denying Para5 & Para9 of the petition as it is the claim of appellant as well that Smt. Pushpa and appellant were residing in the suit premises. The reason for making a specific claim that the respondent No. 5 Sh. Umesh was not residing in the suit premises arose only because this fact was RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 11 of 27 Pages mentioned only in amended plaint.
32.Further, Para14 of the Original Petition reads as under:
"Old tenant no agreement executed however, after the death of the tenant Sh. Ram Narayan about 10 years back, the respondents got the tenancy right and they are the joint tenant".
33.Para14 of the Amended Petition read as under:
"Sh. Ram Narayan was old tenant, no agreement was executed, however after the termination of his tenancy during his lifetime, the respondent No. 1 inherited his statutory tenancy for her lifetime. Sh. Ram Narayan died about 10 years back."
34.In reply to above, Para14 of the Written Statement read as under:
"That the contents of Para14 of petition are wrong and denied. It is submitted that tenanted right were inherited by all the legal heirs of the deceased Lala Ram Narayan i.e. his widow house tax amount assessed for the entire 15 units of property No. 371/1 to 371/15, Subhash Market, Kotla Mubarakpur, New Delhi".
35.Again from the averments contained in Para14 of the written statement it is evident that it was in response to the Para14 of the amended petition in which it was claimed that Smt. Pushpa had RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 12 of 27 Pages inherited the statutory tenancy rights for her lifetime.
36.Para19 of the Original Petition reads as under:
"That the entire suit property belongs to father of the petitioner Sh. Harkesh Singh and after the death of Sh. Harkesh Singh, the petitioner and his brother got all the movable properties by registered Will and thereafter the petitioner and his brother Rakesh amicably divided their share and the suit property came into the hands of the petitioner. Sh. Ram Narayan, husband and father of the respondents respectively was the tenant of the suit premises under said Sh. Harkesh Singh, father of the petitioner and about 10 years back after the death of Sh. Ram Narayan the respondents got the tenancy right and since they are joint tenant".
37.Para19 of the Amended Petition read as under:
"That the respondent No. 1 has inherited the statutory tenancy of her husband, whose tenancy was terminated by the petitioner vide Legal Notice 14.05.1996. The tenancy of Respondent No.1 is for her lifetime only, as she was financially dependent upon him (her husband). That the entire suit property belongs to the father of the petitioner Sh. Harkesh Singh and RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 13 of 27 Pages after the death of Sh. Harkesh Singh, the petitioner and his brother got all the movable properties by registered Will and thereafter the petitioner and his brother Rakesh amicably divided their share and the suit property came to the share of the petitioner. Sh. Ram Narayan, husband of the respondent No. 1 was the tenant of the suit premises under Sh. Harkesh Singh, father of the petitioner and about 10 years back, the respondent No. 1 got the statutory tenancy under the petitioner".
38.In reply to above, Para19 of the Written Statement read as under:
"That the contents of Para19 of petition is wrong and denied. It is submitted that the alleged termination notice had no value as the petitioner thereafter even during the lifetime of Late Ram Narayan and after the death of Lala Ram Narayan had accepted the rent and had issued the rent receipt thereafter till March, 2006".
39.The corresponding Para19 of the written statement shows that there was specific denial of service of notice of termination of tenancy during the lifetime of Sh. Ram Narayan. There was no mention of termination notice in the original petition. The rebuttal RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 14 of 27 Pages of service of termination notice as being of no value could only be in respect of the averment contained in the amended petition.
40.The perusal of the amended plaint as well as the written statement makes it evident that the written statement was in response to the amended plaint. The argument of the Ld. Counsel on behalf of the appellant/tenant that there was serious prejudice caused on account of nonservice of amended petition is completely demolished by the pleadings on record.
41.The third objection that has been taken on behalf of the appellant/tenant is that the original tenant deceased Sh. Ram Narayan was survived by his four sons and four daughters. However, the daughters were not impleaded as a party and therefore the petition was bad for nonjoinder of necessary parties. In this context, it is significant to refer to the affidavit of evidence of RW1 Sh. Virender Bhasin (Respondent No. 2), who himself has deposed that a notice of termination of tenancy had been served upon his father in the year 1971 and the copy of the notice was exhibited as Ex. RW1/H. However, at the time of tendering of affidavit of evidence it was found that the said Legal Notice was not on record and therefore it was deexhibited. Also, in the written statement there was no denial of service of notice of termination of tenancy on Sh. Ram Narayan but was claimed to be of no value. The evidence of RW1 Sh. Virender Bhasin/appellant thus, establishes that the tenancy of deceased Sh. Ram Narayan had been terminated during his lifetime and he died as a statutory RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 15 of 27 Pages tenant. Upon his demise the tenancy rights would devolve as per Section 2 (l) of the Act.
42.ExplanationI of Section 2 (l) of DRC Act provides that the order of succession in the event of death of the person continuing in possession after the termination of his tenancy shall be:
a. Upon the surviving spouse b. Secondly, son or daughter of both in case there is no surviving spouse c. .......
43.ExplanationII of Section 2 (l) of DRC Act provides that if a person is not financially dependent on the deceased person on the date of his death, then such successor shall acquire such right for a limited period of one year and after the expiry of such period right of such successor shall become extinguished.
44.ClauseB of ExplanationIII of Section 2 (l) of DRC Act further provides that right of every successor to continue in possession after the termination of the tenancy, shall be personal to him and shall not on the death of such successor, devolve on any of his heirs.
45.Once the appellant/tenant himself has admitted that Sh. Ram Narayan the original tenant, had died as statutory tenant then the succession of the tenancy rights shall be in terms of Section 2 (1) of the Act, according to which it was only Smt. Pushpa Rani, being the wife of the deceased Sh. Ram Narayan, who had the RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 16 of 27 Pages right to succeed to the tenancy rights. However, four sons of the deceased had also been impleaded as party, but they were merely proper party and right to inherit the statutory tenancy vested only with respondent No. 1 Smt. Pushpa Rani.
46.After the demise of Smt. Pushpa Rani on 07.12.2014 during the pendency of the eviction petition a substitution application was filed by her legal heirs to be substituted to represent her interest in the suit property but the same was withdrawn on 23.03.2015. Reliance has been placed on Rakesh Jain vs. Suresh Kumar Kohli & Another, Delhi High Court in C M (M) No. 880/2012 decided on 05.12.2013, wherein it was observed that on the demise of statutory tenant, legal heirs inherit the tenancy as joint tenants, service of notice or impleadment of one joint tenant is sufficient as there is unity of possession as well as unity of title. Even one joint tenant is sufficient to represent all other legal heirs. The four sons were already a party and impleadment of four daughters was thus, not necessary.
47.Further, in Pushpa Rani & Others vs. Bhagwanti Devi & Another, 1994 Supp. (3) SCC 76, it has been held that only those persons are tenants, who after the death of the original tenant continue to evince interest in the tenanted premises, continue to claim possession and also show interest towards continuing the tenancy including by payment of rent. It was also observed that other persons may be deemed to have impliedly surrendered their tenancy rights.
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48.Appellant/ tenant themselves had stated in the written statement that respondent No. 3 Sh. Subhash and respondent No. 4 Sh. Naresh were residents of Kangra, Himachal Pradesh and respondent No. 5 Sh. Umesh had also not been residing in the suit property and that it was only appellant/respondent No. 2 Sh. Virender Bhasin, who has been residing with respondent No. 1 Smt. Pushpa Rani and had been paying rent to Sh. Ram Narayan. The four daughters were never in possession nor did they ever claim tenancy rights. Therefore, they were not necessary party to the present proceedings and their nonimpleadment would not impact the maintainability of the petition.
49.The appellant had setup a plea that a fresh tenancy was created in his name after the demise of his father. It is deposed by him that after the demise of his father Late Sh. Ram Narayan in the year 1996 he had been tendering the rent in the name of his father and since April, 2004 he has been depositing the rent in his own name, under Section 27 of The Act. It has been argued that since fresh tenancy was created in his name and no property has been built by him in his name, the petition under Section 14 (1) (h) (h) of DRC Act was liable to be dismissed.
50.The appellant himself has admitted in his testimony and it is also mentioned in the Rent Receipts Ex. RW1/E (Colly) & Ex. RW 1/F (Colly) issued upto 01.03.2006 that they were in the name of his father Late Sh. Ram Narayan(who had died in 1996) even though the rent was being tendered by the appellant. Clearly, there RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 18 of 27 Pages was no intention ever to create a fresh tenancy in the name of the appellant or else there was no impediment to issue the rent receipts in the name of the appellant after the demise of Sh. Ram Narayan in 1996. Mere payment of rent by the appellant would not create a fresh tenancy in his favour when there is clear evidence that there was no intention whatsoever on the part of the respondent/ landlord to create a fresh tenancy in his name. Payment of rent is no doubt one of the essential ingredient to establish tenancy, but simplicitor payment of rent in the absence of requisite animus cannot create a fresh tenancy. The argument on behalf of the appellant that there was a fresh tenancy created in his favour is not tenable.
51.This brings up the moot question whether Smt. Pushpa, the statutory tenant (mother of the appellant) had acquired/built residential accommodation, which was available for residence thereby making her liable for eviction.
52.Initially, Section 14 (1) (h) of the Act provided for ground of eviction if a tenant built or acquired vacant possession or was allotted a residential accommodation whether before or after the commencement of the Act. However, by way of Amendment Act 57 of 1988 w.e.f. 01.12.1988 the word "built" was deleted from Sub Section (h) and another Sub Section (h) (h) was introduced in respect of residential property that was built by the tenant. The protection given was that residence must be built after commencement of the Amendment Act, 1988 i.e. after 01.05.1988 RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 19 of 27 Pages and 10 years have elapsed thereafter. The reason of course is not far to see as the tenant may have taken loan or incurred other liability for building his property and therefore a period of 10 years was provided to enable a tenant to discharge his liability, which he may have incurred in the construction of the property and also to enjoy the fruits of his investment. Section 14 (1) (h) DRC Act as it stood before amendment covered all the three aspects viz. acquisition, allotment as well as building of property. But after the amendment w.e.f. 01.12.1988 the tenant was provided protection of 10 years in cases where he built his own residential property. Thus, now their exist different subsections in regard to acquisition/allotment of residential property and built property, the only difference being a moratorium of 10 years in the case of latter.
53.The appellant/respondent Sh. Virender Bhasin in his testimony as RW1 admitted that his father Sh. Ram Narayan had purchased the property bearing No. 414, Punjabi Bazar, Kotla Mubarakpur, New Delhi vide Sale Deed dated 15.12.1951. It is also not disputed that Sh. Ram Narayan died in the year 1996 and thereafter his LRs namely his wife Smt. Pushpa Rani, his four sons, who were impleaded as respondents No. 2 to 5 and four daughters inherited the property in question. It is further admitted by the appellant in his crossexamination that four daughters as well as four sons had relinquished their shares in the suit property in favour of respondent No. 1 Smt. Pushpa Rani vide Relinquishment Deed RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 20 of 27 Pages dated 26.03.1998 Ex. RW1/D1.
54.It is thus, established from the documents of the respondents and the testimony of RW1 Sh. Virender Bhasin that Smt. Pushpa Rani as well as all the sons and daughters of Late Ram Narayan had acquired the property bearing No. 414, Punjabi Bazar, Subhash Market, Kotla Mubarakpur, New Delhi from late Sh. Ram Narayan by way of inheritance and they all became owner of the property in 1996. In Vardesh Chander Chanana vs. Prem Nath & Others, (supra) Hon'ble Delhi High Court noted that the acquisition of residential property can also be by way of inheritance. First essential requirement of S. 14(1) (h) is thus, established.
55.The eviction was sought by the respondent under Section 14(1) (h)
(h) of the Act for which it needs to be examined whether Smt. Pushpa built a residential property after 1.12.1988.
56.What is the distinction between "built" and "acquired" was explained in N. K. Rustagi vs. K. Gupta & Others, 49 (1993) DLT 548 (Delhi High Court) that the acquisition of a flat on allotment in Self Financing Scheme of the Government under Section 14 (1) (h) DRC Act and tenant cannot avail the benefit of 10 years by claiming that it was building a property as defined under Section 14 (1) (h) (h) DRC Act. It was held that term "build" means construct a house by putting parts of material altogether. It thus, does not mention that the tenant must construct RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 21 of 27 Pages a residence himself.
57.The respondent/landlord as well as appellant/tenant was non specific about the extent of property built and the year of construction. The evidence has also been equally vague. PW1 Sh. Vinod Choudhary/ landlord deposed in his affidavit of evidence Ex PW1/A that Smt Pushpa after the demise of her husband acquired/built a House No.414 Kotla Mubarakpur, New Delhi. There is no cross examination of the witness on this aspect by the appellant. RW1 Sh. Virender Bhasin (appellant) deposed in his testimony that the construction of the property was carried out sometime in the year 2000.From the close reading of the evidence of RW1 it can be made out that the acquired property had four floors; a basement which the appellant claimed to have been sold; a ground floor, mezzanine, first and second floor. It is established that this property was purchased in1952 and had some construction. The best evidence to show the extent of construction was the sale deed itself but the appellant has failed to produce the same. RW1 was confronted with the gift deed Ex. RW1/P1 vide which Smt. Pushpa gifted the half portion of second floor to Smt. Sareshta wife of Sh.Naresh Bhasin(son of Smt. Pushpa). In this gift deed the year of construction is given as 1989. The respondent has also proved a sale deed dated 27.10.2008 Ex.PW1/4 executed by Smt. Pushpa Rani in favour of Mohd. Moffis in respect of sale of one room on mezzanine floor wherein year of construction is shown as 198283. Thus, from his RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 22 of 27 Pages testimony coupled with the documents/Sale Deeds it can be inferred that some part of the property was constructed subsequently as he deposed that construction was carried out in 2000. This clearly establishes that the property which may have been inherited from her husband in 1996 have been further constructed subsequently in the year 1989 i.e. after December 1988 which establishes that the amended Section 14(1)(h)(h) was attracted, if it is also proved that it was residential in nature.
58.The other ingredients to be established is that property acquired/ built was residential in nature and the tenant got the vacant possession. Word "residence" has been understood to indicate premises let for residential purposes or residential premises as distinguished from premises let out for commercial or any other purpose. It was noted that Clause (h) manifests intention of the legislature to forfeit statutory protection in respect of premises let for use as residence if the tenant has built, acquired vacant possession or been allotted another property of the same kind. The object of the clause is to restrict statutory protection to the tenancy of only one residential premises.
59.The meaning of term residence was discussed by the Hon'ble High Court of Delhi in Indian Cable Company Limited vs. Prem Chandra Sharma, 1989 RLR 495, wherein it was observed that the term dwelling requires an essential domestic quality.
60.The appellants had asserted that the property No.414 that was RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 23 of 27 Pages acquired was commercial in nature as their existed shops on the ground and other floors and the Bank had a lien on the second floor. However, the appellant was confronted with certified copies of Gift Deed Mark Ex. RW1/P1 a gift deed in respect of ground, mezzanine and second floor, and sale deeds Mark EX. RW1/ P2 & 3 in respect of second half of second floor and terrace respectively executed by Smt. Pushpa Rani wherein it was mentioned that property was residential and in her possession. Also in the sale deed Ex. RW1/P2 the property described on second floor (northern side) comprised of three bedrooms, one drawing cumdining, one kitchen, two bathroom along with proportionate undivided, indivisible, impartible ownership rights.
61.In this context, one may refer to the Electricity Bills as well as Delhi Jal Board Bills wherein the category has been defined as domestic (residential). Also, in Sale Deeds, mentioned above, the property has been described as residential in nature. It may also be mentioned that portion of the property sold were on mazanine, ground and second floors. It was for the appellant to have shown that these were commercial in nature but his own documents defeat this claim. The sale deeds/ gift deed which are not disputed by appellant, and the other documents prove that the property acquired/built was residential in nature and that Smt.Pushpa Rani had vacant possession at the time of Sale/ gift.
62.Further, once the vacant possession of residential property has RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 24 of 27 Pages been acquired by the tenant, then the tenant ceases to be entitled for protection even if he sells or disposes of or surrenders vacant possession even before filing of the eviction petition. This view was taken for the first time by the Division Bench of Delhi High Court in Hem Chand Baid vs. Smt. Prem Wati Parekh, AIR 1980 Delhi 1, wherein it was observed that subsequent disposal of their residence would not efface the fact it had been once acquired and thus gave cause of action to the landlord for filing eviction petition. It cannot be open to the wrongful doer to himself put the aggrieved party out of Court by subsequently changing the situation unilaterally.
63.The Apex Court in Mohini Badhwar vs. Raghunandan Saran Ashok Saran (1989) 3 SCC 72 has observed that it would not be material for the applicability of the petition under Section 14 (1)
(h) DRC Act even if possession of the alternative property is lost by the tenant and he is not in a position to shift or take back possession of the same on the date of filing of eviction petition.
64.Similar are the observations of the Apex Court in Ganpat Ram Sharma & Others vs. Gayatri Devi, (Supra) and in Shyam Sunder vs. Khanchand (1966) 2 DLT 223(Delhi High Court).
65.Smt. Pushpa Rani may have sold the acquired/built property but at one point of time she got the vacant residential property All sons and daughters also inherited the presidential property though they lost their right in property only in 1998 when they relinquished RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 25 of 27 Pages their respective shares in favour of Smt. Pushpa their mother. Having once acquired vacant possession of residential property all became liable for eviction irrespective of having lost the right in property subsequently and therefore, ground for eviction under Section 14 (1) (h) and Section 14 (1) (h) (h) are clearly made out.
66.An objection had been taken that the eviction under Section 14 (1)
(h) of the Act could not have been made as this ground was specifically withdrawn by way of amendment. In this regard, it has been observed by the Hon'ble High Court of Delhi in Ranjit Kumar Chopra vs. Virinder Khosla 155 (2008) DLT 658 that mere nonmentioning of the provisions of law is not a fatal defect and the correct provision of law can be taken note of by the Court and relief granted accordingly. Even if Section 14 (1) (h) DRC Act was not specifically mentioned then too if all the ingredients of the said clause are made out, then the landlord is entitled to eviction under Section 14 (1) (h) DRC Act. In the said case, eviction petition was filed under Section 14 (1) (e) of the Act, but there was specific averment made in regard to Section 14 (1) (h) DRC Act. It was held that even if eviction under Section 14 (1) (e) DRC Act was not made out, but the facts as established on record proved that the tenant had acquired vacant possession/ residence had been allotted to the tenant whereby making him liable for eviction under Section 14 (1) (h) DRC Act. Thus, the objection RCT No. 25/2017 Virender Bhasin vs. Vinod Choudhary Page 26 of 27 Pages that eviction under Section 14(1) (h) is bad in law is not tenable. Ld. Rent Controller was empowered to make an order of eviction under S.14 (1) (h) once it was established from the proven facts.
67.In view of above, Ld. Rent Controller has rightly concluded that all the essential ingredients of Section 14 (1) (h) & Section 14 (1)
(h) (h) of The Act have been proved entitling the respondent to eviction order. There is no illegality in the impugned Judgment dated 30.10.2017 and hence the present appeal is hereby dismissed.
68.Trial Court Record be sent back along with a copy of this order.
69.Appeal file be consigned to Record Room.
Announced in the open Court (NEENA BANSAL KRISHNA)
on 26th June, 2020 District & Sessions Judge,
(KSR) South East, Saket Courts,
New Delhi
RCT No. 25/2017
Virender Bhasin vs. Vinod Choudhary Page 27 of 27 Pages