Delhi District Court
Sh.Chand Rehan vs Sh.Janak Raj Kalia on 6 June, 2011
IN THE COURT OF SH. LALIT KUMAR, CCJCUMARC, CENTRAL,
DELHI.
Ex No.05/09/05
Sh.Chand Rehan
...... Petitioner/DH
Versus
Sh.Janak Raj Kalia
.......Respondent/JD
ORDER
06.06.2011
1. Vide this order, I shall dispose of the objections filed on behalf of Sh.Pawan Sareen @ Pawan Kumar Yogi, s/o. Sh.Krishan Lal under section 25 of the DRC Act r/w. order 21 rules 35 and 97 and Section 151 CPC.
2. Brief facts which are relevant for the disposal of present objection petition are that petitioner had filed the eviction petition under section 14(1) (b) of the Delhi Rent Control Act against the respondent on the grounds of subletting stated therein that respondent has sublet, assigned or otherwise parted with possession of the suit premises without obtaining prior consent from the landlord to the Sh.Pawan Sareen i.e. objector in this case. During course of proceedings of said Ex No.05/09/05 1/13 petition, an application u/o.12 rule 6 CPC had been moved by the petitioner which was ultimately allowed by the predecessor of this Court vide order dated 29.04.2005 and an eviction order has been passed u/s. 14(1) (b) of DRC Act in respect of suit premises. Thereafter, petitioner has filed the present execution petition and during pendency of this execution petition, objector has moved the present objection petition.
3. In the objection petition, it has been stated by the objector that he is a tenant in respect of suit premises no.52/43A, Gali no.4 K/17, Anand Parbat, New Delhi. He has started the business alongwith his father Sh.,Krishan Lal as partner earlier in these premises in the name and style of M/s. Kay Pee Industries. Sh.Rattan Chand Kalia, a retired SHO had a small office adjacent to the said firm and he was having electric power connection in the name of his brother Sh.Janak Raj Kalia. Sh.R.C. Kalia used to supply power to the objector and he used to collect protection from the objector in the garb of dummy partnership agreement with the firm M/s. Kay Pee Industries. As business of objector, flourished Sh.R.C. Kalia demanded more money from the objector under threat to which he did not agree. On 08.09.2000 electricity power and water supply to the suit premises was snapped and the firm was forcibly locked by Sh. R.C. Kalia. A notice dated 01.09.2000 for the dissolution of the firm was served upon objector. A suit no.124/2001 was filed by Sh.Janak Raj Kalia in the Court of Ms. Ex No.05/09/05 2/13 Nirja Bhatia, the then Civil Judge, Delhi which was ultimately dismissed by the said Court vide order 05.04.2003 and on 28.07.2003 Sh.Janak Raj Kalia removed his lock from the suit premises. Sh.R.C. Kalia had filed an eviction petition no.30/2003 later petition no.40/2004 on 04.08.2003 u/s.14(1) (a) & (b) of DRC Act. In said petition, Sh.Sanjeev Aggarwal, the then ARC vide order dated 31.03.2004 passed an order u/s.15 (1) of DRC Act. The objector had filed an appeal against said order and the Ld. Tribunal was pleased to modify the said order. The objector had filed complaint no.21/2004 u/s.45(3) of DRC Act and Ld. ARC, Delhi was pleased to order restoration of electricity and water to the suit premises. The Sh.Janak Raj Kalia had gone in appeal against said order and the Ld. Tribunal dismissed the said appeal, against which Sh.Janak Raj Kalia preferred CMM no.1267/2004 in the Hon'ble High Court but the same was dismissed and single phase electricity supply was restored on 30.09.2004 to the suit premises. In E40/2004 filed by JD, the Ld.ARC vide order dated 26.10.2005 was pleased to accept the relationship of landlord and tenant and dismissed the second ground of subtenancy. The objector had preferred an appeal bearing no.539/05 against the order dated 26.10.2005 and JD had also filed a cross appeal bearing no.557/2005 and both the appeal are under consideration. All through the proceedings in appeal and u/s.45(3) Sh.Janak Raj Kalia had not informed the Court about the pendency of eviction petition out of which present execution petition filed. The eviction petition filed by Ex No.05/09/05 3/13 petitioner against the respondent is a petition in collusion and connivance with sole purpose of dispossessing the objector from the suit premises. Sh.Chand Rehan is neither the owner nor the landlord of the property as he has no sale deed or any other document in his favour. The objector is the lawful tenant in the suit premises and even this has been held by the competent Courts i.e. firstly by Ms.Nirja Bhatia, the then Civil Judge and then by the Court of Sh.Sanjiv Aggarwal, the then ARC, Delhi. The entire execution proceedings were conducted in a fraudulent and deceitful manner as nobody came to the premises prior to 20.08.2006 which was a Sunday and no bailiff at any point of time had ever come to the premises to take possession of the premises.
In view of above, it has been prayed by the objector that his objection may kindly be allowed and eviction order passed in favour of petitioner be set aside and further the possession of the suit premises be also ordered to be restored to him.
4. In reply, petitioner has submitted that objector being sub tenant has no locus standi to file the present objections. The eviction order passed by this Court has attained the finality u/s.43 of the DRC Act and therefore, cannot be challanged in execution proceedings. It is submitted that petitioner has not suppressed any material facts during eviction proceedings against the respondent wherein it was mentioned Ex No.05/09/05 4/13 that Sh.Janak Raj Kalia is a tenant under him who had entered into a sham partnership deed with objector and due to dispute between them a civil suit for dissolution of partnership and rendition of accounts was filed which was decided by the Court of Ms. Nirja Bhatia vide order dated 05.04.2003 wherein it was held that Sh.Pawan Sareen is a tenant under Sh.Janak Raj Kalia and suit was dismissed. Thereafter, Sh.Janak Raj Kalia filed an eviction petition u/s.14(1) (a&b) of DRC Act vide eviction petition no.40/04 which was decided on 26.10.2005. In said case at page no.12 para no.2 wherein Sh.Janak Raj Kalia through his attorney Sh.R.C. Kalia has stated that he is tenant in the premises in question under Sh.Chand Rehan and Sh.Pawan Sareen is a tenant under him. Therefore, it is clearly established that Sh.Pawan Sareen is a sub tenant of Sh.Chand Rehan and as such, a subtenant has no right even to file an appeal against the eviction order passed against the tenant. Hence, it is prayed that present objection petition be dismissed with costs.
5. I have already heard the arguments on behalf petitioner, however, the opportunity of objector to advance the oral arguments has been closed vide order dated 27.05.2011. Both the parties have filed the written arguments on record.
6. I have carefully gone through the material available on record and feel that present objection petition filed by objector Ex No.05/09/05 5/13 Sh.Pawan Sareen deserved to be dismissed on the following grounds: firstly, it has come on record as well as admitted by objector Sh.Pawan Sareen that he was dispossessed from the tenanted premises in execution of order for eviction on 20.08.2006. As per Article 128 of The Limitation Act, 1963 an application for possession by one dispossessed of immovable property and disputing the right of the decree holder or purchaser or sold in execution of a decree, must be filed within 30 days from the date of the dispossession. The present objection petition has been filed on 20.10.2006 i.e. after 60 days from the date of dispossession from the tenanted premises. Hence, the present objection petition is barred by limitation.
Secondly, even otherwise, the objector has to prove his independent title over the tenanted premises.
Perusal of file shows that the JD had filed a civil suit for declaration, dissolution and rendition of accounts against the objector stating therein that JD is a tenant under the tenanted property and he has entered into a partnership business with the objector and according to partnership deed, the objector was making payment of fixed amount every month to him and that objector had stopped making said payment therefore he had filed the said suit. The said suit was contested by the objector wherein he stated that he had never entered into a partnership Ex No.05/09/05 6/13 business with JD and he was inducted as tenant by objector. The said suit was dismissed by the Court of Ms.Nirja Bhatia, the then Ld. Civil Judge, Delhi vide judgment/decree dated 05.04.2003. It was clearly held in said judgment that partnership deed is really a rent agreement, therefore, it was held that objector herein i.e. defendant in that suit is tenant and not a partner. It has come on record that no appeal against said judgment was filed by the JD and hence, the judgment dated 05.04.2003 whereby objector had been held as tenant under the JD, had already attained the finality.
It has also come on record that subsequently, JD filed an eviction petition u/s.14(1) (a) & (b) of DRC Act against the objector. Ultimately, petition u/s.14(1) (a) was allowed and petition u/s.14(1) (b) was dismissed by the Court of Sh. Sanjeev Aggarwal, the then Ld. ARC vide judgment dated 26.10.2005. It was held that there is relationship of landlord and tenant between the JD and objector qua the tenancy premises though as tenant and sub tenant. Against the said judgment, the appeal and cross appeal were filed by the JD as well as the objector. The JD withdrew the appeal filed by him as the DH under whom he was claiming to be a tenant in the tenanted premises, has taken the possession of the tenanted premises and hence, the appeal filed by him was dismissed as withdrawn vide order dated 26.09.2006. The objector had also withdraw the appeal filed by him after arriving at a compromise/settlement with JD and the appeal filed by objector was Ex No.05/09/05 7/13 disposed off in terms of compromise vide order dated 01.02.2007.
It has also come on record that objector had also filed a petition u/s.45 of the DRC Act against the JD claiming therein that objector is a tenant under the JD and the JD had withheld the supply of electricity. In said petition an interim dated 13.09.2004 was passed by Sh.Sanjay Sharma, Ld. ARC whereby JD was directed to supply electricity to the objection. An appeal was preferred by the JD which was dismissed and thereafter, the JD preferred a Civil Misc. Main petition before the Hon'ble High Court wherein the order earlier passed by the Ld. ARC was modified.
It may be seen that in above mentioned proceedings/ litigations it is clear that JD has admitted that he was tenant under the DH and relationship of landlord and tenant between JD and the objector has been established and admitted by both the parties. However, in the present execution petition, the objector has taken a contradictory stand by stating that he is tenant in the suit property and payments were extorted from him by Sh.R.C. Kalia through his brother i.e. JD. It may be seen that objector has claimed himself to be an independent tenant but he has not stated that who is the landlord. The objector is estopped from claiming anyone else as his landlord except the JD as in all above mentioned litigations, relationship of landlord and tenant between JD and the objector has been established and admitted by both the parties.
In view of above, it is clear that objector has no Ex No.05/09/05 8/13 independent title in the tenanted premises and he was tenant under JD or subtenant under the DH.
Thirdly, the petition had filed the eviction petition u/s.14(1)
(b) of the DRC Act against the JD before Ld. Predecessor of this Court on the ground that JD has sublet the tenanted premises to objector. The JD filed the WS in said petition. The DH had moved an application u/o.12 rule 6 CPC. The Ld. Predecessor of this Court Sh.Gulshan Kumar, the then ARC, Delhi vide judgment dated 29.04.2005 had allowed the application of DH and passed an eviction order in favour of DH and against the JD. In said judgment, it has been clearly held that a ground of subletting has been made out and that no evidence was required to be adduced to prove this ground since the factum of sub tenancy could be sufficiently elicited from the judgments already passed in the ligations between the JD and the objector. In execution of said order, the DH has recovered the possession of the tenanted premises. It has also come on record that JD has not filed any appeal against the said eviction order dated 29.04.2005.
Fourthly, the DH in his eviction petition against the JD has submitted that JD had been inducted as tenant by the previous landlord Smt. Veena Kumari and DH had purchased the suit property from said Smt.Veen Kumari through agreement to sell, receipt, GPA, attornment Ex No.05/09/05 9/13 letter, SPA, Will all dated 11.08.2004 and after purchase of suit property, the JD had become the tenant under him by operation of law.
So far as title of the DH concerned, the JD in suit filed in the Court of Ms.Nirja Bhatia, the then Civil Judge, Delhi has admitted that he was a tenant in the suit property. It is well established that under section 116 of Indian Evidence Act a tenant has no right whatsoever to challenge the documents of purchase by the landlord. Hence when this right is not available to the JD, the objector being a subtenant obviously cannot make any challenge to these documents. Moreover, these documents have never been challenged till date either by Smt.Veena Kumari or JD. Thus, the DH being owner and landlord of the suit property was within his right to claim eviction of the JD u/s.14(1) (b) of DRC Act.
Fifthly, the objector has also raised the objection that he has deliberately not been made party in the eviction petition filed by DH.
It has been clear from the perusal of file and the previous litigation between JD and objector that it is not the case of JD and the objector that subtenancy was created with prior written consent of the then landlord i.e. DH or previous owner of tenanted premises. In the absence of same, it is clear that status of objector is that of an unauthorized subtenant. It has been held by the Hon'ble Delhi High Court in judgment G.L. Kapoor vs. Ramesh Chander Nijhawan and Ex No.05/09/05 10/13 others cited as 1972 AIRCJ 887 that "a subtenant has no right to file an appeal at all against the order of eviction unless he claimed to have become a tenant under his own right. As there is no privity of contract between the landlord and the subtenant, the appeal filed by subtenant is not maintainable. The subtenant derives his title through the tenant and he goes out of possession of the tenant." It has also been held by the Hon'ble Supreme Court in judgment Biswantah Poddar vs. Archana Poddar and another cited as 2001 S.C. 2849 that "the requirement of previous consent of the landlord as also intimation in writing in the manner prescribed under the Act by the tenant as well as the subtenant within the time stipulated there under being a mandatory requirement, the creation of subtenancy without fulfilling these requirements becomes opposed to Section 14 of the Act. If it is a subtenancy created contrary to the provisions of the Act then as could be seen from Sec.13(2) of the Act, it become unnecessary for the landlord to implead the subtenant when he seeks to evict the original tenant on the ground of unlawful tenancy." In the present case since the privity of contract existed only between DH and the JD, therefore, petition against the JD alone was maintainable. Hence, the objector/subtenant cannot seek to set side the eviction order nor the possession of the suit property.
Sixthly, the objector has also raised the objection that Ex No.05/09/05 11/13 execution proceedings were conducted in a fraudulent and deceitful manner as nobody came to the premises prior to 20.08.2006 and no bailiff at any point of time had ever come to the premises to take possession of the premises and order regarding grant of police was also obtained in a fraudulent manner.
I have seen the report of bailiff dated 20.08.2006 on record and the warrants of possession. The bailiff was appointed by the then Ld. Administrative Civil Judge on 10.08.2006. Accordingly, he visited the suit property on 20.08.2006 and handed over the possession of the same to the DH. It has been mentioned in the report that objector as well as his son of objector were also present at the site. Hence, the objection raised by the objector that execution proceedings were conducted in a fraudulent and deceitful manner as nobody came to the premises prior to 20.08.2006 and no bailiff at any point of time had ever come to the premises to take possession of the premises, is wrong.
I have also seen the report of bailiff dated 05.11.2005 and the warrants of possession. The bailiff was appointed by the then Ld. Administrative Civil Judge, Delhi with the direction to execute the warrants on 05.11.2005. Accordingly, he visited the suit property on 05.11.2005 and since there was apprehension of break of peace, he could not execute the warrants. Hence, counsel for DH moved an application for grant of police aid. Vide order dated 05.05.2006, the said application was allowed and necessary instructions were sought from Ex No.05/09/05 12/13 Ld. District Judge. The then Ld.District Judge vide order dated 10.07.2006 was pleased to grant the police aid. Hence, the objection raised by the objector that order regarding grant of police was also obtained in a fraudulent manner, is wrong.
7. In view of reasoning, there is no reason to set aside the eviction order dated 29.04.2005 and to restore the possession of the suit premises to the objector. Therefore, the objection petition filed by the objector Sh.Pawan Sareen under section 25 of the DRC Act r/w. order 21 rules 35 and 97 and Section 151 CPC is dismissed as barred by limitation as well as on merits. No costs.
8. Since, the possession of suit property had already been taken by the DH on 20.08.2006, therefore, the execution petition stands satisfied and disposed off as such. File be consigned to record room.
Announced in open court LALIT KUMAR
th
on 6 June, 2011 CCJcumARC(Central)
THC: DELHI
Ex No.05/09/05 13/13