Delhi District Court
Mohinder Singh Matharoo vs Sh. Yadav Chand Sharma (Deceased) on 7 January, 2013
1
IN THE COURT OF SH. S. K. SARVARIA, DISTRICT JUDGE &
ADDITIONAL RENT CONTROLLER/
ADDL. SESSIONS JUDGE / INCHARGE (NW),
DISTRICT COURTS ROHINI, DELHI
RCT no. 46/2007
Mohinder Singh Matharoo
S/o Sh. Fateh Singh
R/o E-3/6, Model Town,
Delhi-110009. .... Appellant
VERSUS
1. Sh. Yadav Chand Sharma (Deceased)
(D.O. Death: 09.11.2008)
S/o Late Ghisa Ram Johis
R/o B-4/8, Model Town,
Delhi-110009
Now represented by L.Rs
1(A) Sh. Umesh Chand Sharma, also listed
as respondent no.4 herein below
1(B) Smt. Meenu Sharma (Deceased)
(D.O. Death: 22.05.2009)
W/o Sh. Dinesh Sharma
D/o Late Sh. Yadav Chand Sharma
Now represented by L.Rs
1(B)(i) Sh. Dinesh Sharma (Husband)
(ii) Master Apoorv Bhardwaj (Son - Minor)
(iii)Ms. Apoorva Bhardwaj (Daughter - Minor)
{Minor L.Rs (ii) & (iii) to be served through their father L.R.(i)}
All Resident of:
852, Bagruwaloon Ka Rasta,
Chandpol Bazaar, Jaipur,
(Rajasthan)
1(C) Smt. Latesh Sharma
W/o Sh. Harsh Vats Sharma
Mohinder Singh Matharoo V. Yadav Chand Sharma and ors
2
D/o Late Sh. Yadav Chand Sharma
R/o 75-A, Vijay Bloc,
Vikas Marg, New Delhi.
2. Smt. Basanti Devi
W/o Sh. Hazari Lal
R/o H.No. 3, Ground Floor,
Gali No.2, Indra Vikas Colony,
Near Parmanand Colony,
Delhi-110009.
3. M/s Aspee Springs Ltd.
E-3/6, Model Town,
Delhi-110009.
4. Sh. Umesh Chand Sharma (Also as L.R. of deceased
S/o Late Sh. Yadav Chand Sharma Respondent no.1)
R/o B-4/8, Model Town,
Delhi-110009.
.... Respondents
Date of institution: 13.04.2007
Date when arguments were heard: 03.01.2013
Date of order: 07.01.2013
JUDGMENT
1. This appeal is directed against the order dated 17.03.2007 passed by Ld Additional Rent Controller (in short ARC) by which the application filed by respondent no.4 Umesh Chand Sharma u/O 22 R.10 CPC was allowed and the respondent no.4 Umesh Chand Sharma was allowed to substitute two of the petitioners/co-owners/landlords Sh. Ram Swaroop Joshi and Smt. Basanti Devi. The appeal is hotly contested by respondent no.4 Umesh Chand Sharma.
2. It is argued on behalf of appellants/tenants that respondent no.2 Smt. Basanti Devi allegedly sold her 1/3rd share in the property in question to respondent no.4 Umesh Chand Sharma but the sale document dated 21.10.2005 does not disclose that the right to evict the appellant in the Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 3 present eviction proceedings or right to arrears of rent was also assigned to respondent no.4 Umesh Chand Sharma so the impugned order of Ld ARC is illegal. Reliance is placed upon Madan Lal Vs Harkishan Lal 1966 PLR 14, Ranjit Singh Vs K.K. Sikan 1995 (2) RCR 531 P & H, Ram Tehal Modi Vs Rattan Lal AIR 1989 Patna 13 (DB) and Khatri Kasam Sidi Vs Dost Mohd. Chaus and others 1976 RCR Gujarat 713 (DB).
3. It is argued that cause of action of the eviction petition was joint and common so if the respondent no.4 Umesh Chand Sharma cannot substitute respondent no.2 Smt. Basanti Devi then eviction petition as a whole goes. Reliance is placed upon State of Punjab Vs Nathu Ram AIR 1962 SC 89, Babu Sukhram Singh Vs Ram Dular Singh AIR 1973 SC 204, Rajeshwari Amma Vs Joseph 1995 (2) SCC 159, Panna Vs State of Karnataka 1996 (1) SCC 291, Appa Rao Bahadur Vs Secretary of State AIR 1975 MAD 389, Rangaraju Vs The Chief Officer, Town Municipal Council Kalar 1998 AIHC 2037, Muddada Channa Vs G. Veer Bhadra Rao AIR 1979 AP 253 and Pasu Palati Vs Motor & General Traders AIR 1975 SC 1409.
4. It is argued that one of the petitioners Smt. Basanti Devi had previously (prior to sale) filed an application before Ld ARC in May 2002 alleging fraud, misrepresentation against co-petitioner Sh. Yadav Chand Sharma and stating that she was not consenting party to filing of eviction petition. She had prayed in the application before Ld ARC for dismissal of eviction petition qua her rights against tenant. Ld ARC in the impugned order has not discussed or decided this issue at all. Therefore, impugned order is bad in law. Reliance is placed upon AIR 1983 SC 2554 .
5. It is argued that when one of the co-owners/co-landlords is not a consenting party, the whole eviction petition cannot be continued and maintained by the remaining co-owners/co-landlords. Reliance is placed upon Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 4 Vagha Jesing Vs Mani Lal Bhogi, Kavita Goel Vs B.P Pathak AIR 1977 SC 1599, AIR 1998 SC 569 and Suchitra Pradhan Vs U.P Twiga Fibre Glass Ltd AIR 2002 Delhi page 1.
6. It is argued that in terms of definition of landlord given in Section 2(e) of the Act, Sh. Umesh Chand Sharma cannot be treated/deemed to be landlord qua the appellant/tenant when the cause of action allegedly arose in the period 1992-1996 or when the eviction petition was filed in November 1996 as he was nowhere in the picture and he does not come within the definition of "landlord".
7. The next argument on behalf of appellant is that sale deed executed by Smt. Basanti Devi in favour of respondent no.4 Umesh Chand Sharma is a sham, malafide and collusive document and proper stamp duty is not paid so this document is liable to be impounded. Reliance is placed upon Devi Dass Vs Mohan Lal AIR 1982 SC 1213.
8. It is also argued that approach of Ld ARC was in violation of Section 37 of the Act. It is further argued that Ld ARC did not follow the basic principle of natural justice and notice of the application u/O 22 R.10 CPC was not issued to Smt. Basanti Devi before allowing the application of respondent no.4 Umesh Chand Sharma by impugned order.
9. It is argued that the probate or letter of administration had not been granted or obtained by respondent no.4/applicant Sh. Umesh Chand Sharma in his favour with regard to alleged bequest of 1/3rd share of the suit property of late Sh. Ram Swaroop Joshi by way of will. Ld ARC did not apply the mind to this aspect while passing impugned order. Reliance is placed upon Pasu Palati Vs Motor & General Traders AIR 1975 SC 1409.
10. It is argued that the authorities relied upon on behalf of Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 5 respondent no.4 Umesh Chand Sharma are not applicable so the appeal should be allowed and the impugned order should be set aside by dismissing the eviction petition.
11. On behalf of respondent no.4 Umesh Chand Sharma, it is argued that during the pendency of the appeal one of the co-owners of property in question Sh. Yadav Chand Sharma unfortunately expired on 09.11.2008. The respondent Umesh Chand Sharma is the class I legal heir of Mr. Yadav Chand Sharma. The appellant has moved an application u/O 22 R. 4 CPC for bringing on record legal heirs of Mr. Yadav Chand Sharma, which application was allowed by this Tribunal and the respondent Umesh Chand Sharma is substituted in place of Sh. Yadav Chand Sharma. The appeal is liable to be dismissed on this ground alone.
12. It is argued that the appellant being tenant is not entitled to impugn the title of respondent no.4 Umesh Chand Sharma and/or other co- owners of the premises in question. Even otherwise, only prima facie view of the matter is to be taken while dealing with application u/O 22 R.10 CPC in the light of Satyawati Sharma Vs Indian Overseas Bank 2006 (130) DLT
128.
13. It is argued that right of recovery of possession can be exercised by successor in interest either by operation of law or by act of the parties. In the present case, the transfers have been made in favour of respondent no.4 Umesh Chand Sharma by family members who are real uncle and aunt of respondent no.4 Umesh Chand Sharma. Therefore, these are not even transfers in the real sense of the term and the tenant under no circumstances can be allowed to impugn the same. Reliance is placed upon Ishwar Dass Rajput v. Chaman Parkash Puri 1991 (44) DLT 639; Kamal Tanan (deceased) by LRs v. M.L. Vashisht (deceased) by LRs 2001 (9) SCC 263 and Prahalad Singh Rekhi v. Bhawani Devi 2004 (113) DLT 137.
Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 6 It is also argued that vide judgment dated 25.03.2010, the District Judge, Rohini, Delhi had been pleased to allow Probate Petition filed by respondent no.4 Umesh Chand Sharma in respect of Will dated 11.02.1998 and the judgment of Probate Court is judgment in rem. Therefore, appeal is liable to be dismissed.
14. It is also argued that the subsequent event shall be taken note of in a case where transfer of interest of landlord takes place pendente lite. The argument is that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during its pendency but such a suit may be continued with the leave of the court by or against the person upon whom such interest has devolved. Reliance is placed upon Hukum Chand Vs. Om Chand and Ors (2001)10 SCC 715; Dhurandhar Prasad Singh Vs. Jai Parkash University and Ors (2001)6 SCC 534. Therefore, it is argued that the appeal is liable to be dismissed.
15. I have heard the ld counsel for the appellant and Ld counsel for the contesting respondent no.4 and have gone through the written arguments filed on their behalf and relevant provisions of law.
The application was filed by respondent no.4 Umesh Chand Sharma u/O 22 R.10 CPC alleging that one of the co-owners of premises in question Smt. Basanti Devi has transferred her share in the property in his favour and another co-owner Sh. Ram Swaroop Joshi (his real uncle) has bequeathed his share in the property by Will dated 11.02.1998 in his favour. Therefore, he should be substituted in their place and this application was allowed by Ld ARC vide impugned order dated 17.03.2007. It is not disputed that late Sh. Ram Swaroop Joshi who executed will with regard to his 1/3rd share in the premises by will dated 11.02.1998 has expired. The question is raised on behalf of appellant that the probate or letter of administration of the will was not taken by the appellant at the time of filing the application so he Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 7 cannot substitute late Sh. Ram Swaroop Joshi but this plea of the appellant has no force since it is already clarified by our Hon'ble High Court in Santosh Kakkar and ors Vs. Ram Prasad and Ors 71 (1998) DLT 147 that for will executed in Delhi no probate is required. The executor or legatee can establish his right without seeking probate. Therefore, the impugned order so far as the substitution of Sh. Umesh Chand Sharma in place of Sh. Ram Swaroop Joshi is concerned it cannot be impugned by the appellant/tenant and the finding of Ld ARC in the impugned order in this regard needs to be confirmed.
16. The real controversy is with regard to substitution of the appellant in place of Smt. Basanti Devi, the co-petitioner in the eviction proceedings. It is to be noted that the eviction petition was filed on or about 21.11.1996 by three co-owners/co-landlords/co-petitioners Sh. Ram Swaroop Joshi, Sh. Yadav Chand Sharma and Smt. Basanti Devi seeking eviction of the appellant/tenant on the grounds envisaged u/S 14(1)(a) and (b) of the Act. The appellant is arrayed in the eviction petition as Respondent no.1 and M/s ASPEE Springs Ltd being sub tenant/subletee as Respondent no.2. The tenanted premises comprises of two shops and a veranda in front in property bearing no. B 4/8 Model Town, Delhi (in short tenancy premises) which is admittedly let out for non residential purposes. The ground of eviction for non payment of rent pertains to the period 01.04.1992 to 31.03.1996 and the alleged sub letting of premises is stated to be done in or about 1994 i.e about 2 years prior to filing of the eviction petition. One of the co-petitioners Smt. Basanti Devi is stated to have transferred her right of co-ownership in the premises in question in favour of the respondent Umesh Chand Sharma by executing the registered sale deed dated 21.10.2005 copy of which is filed in the trial ARC's eviction proceedings.
17. In Madan Lal's case (Supra) relied upon on behalf of appellant, the Division Bench of Punjab and Haryana High Court (Circuit Bench at Delhi) Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 8 took the view that that landlord having sold the property in question cannot continue the proceedings as a landlord nor the Tribunal can pass eviction order in his favour. But Madan Lal's case (Supra) came to be appreciated by our Hon'ble High Court latter in Roshan Lal Devi Dass and ors Vs Manmohan Chopra AIR 1971 Delhi 201 relied on behalf of respondent Umesh Chand Sharma and it was observed that in Madan Lal's case (Supra) no application was made by transferor landlord to implead the transferee or by the transferee landlord to be impleaded as a party in those proceedings. In the absence of such an application, his Lordship's held in Madan Lal's case that eviction proceedings could not be continued. The Madan Lal's case was found distinguishable by our High Court in Roshan Lal Devi Dass's case (Supra) as in the later application was filed with specific request that transferee of the original landlord may be impleaded as party in the petition. Similar is the position of the case in hand in which respondent no.4 Umesh Chand Sharma has filed application for impleading him in place of the transferor landlady Smt. Basanti Devi. In the light of this interpretation in Roshan Lal Devi Dass's case (Supra) the Madan Lal's case (Supra) does not help the appellant nor the authorities from other High Court i.e Ranjeet Singh's case (supra), Ram Tehal Modi's case's (supra) and Khatri Kasam Sidi's case (Supra) relied upon by appellant would help the appellant in the face of Roshan Lal Devi Dass's case (Supra).
18. The other argument on behalf of appellant is that the cause of action of eviction petition was joint and common, so Umesh Chand Sharma cannot substitute respondent no.2 Smt. Basanti Devi, therefore, than eviction petition as a whole goes. This argument of the appellant is contrary to the pleas taken by the appellant before Ld. Additional Rent Controller in the reply to the application u/O 22 R.10 CPC. In the said reply, the case of the appellant/tenant objecting the application was on one of the important grounds that Sh. Yadav Chand Sharma was/is the sole landlord qua the appellant/tenant. Sh. Ram Swaroop Joshi and Smt. Basanti Devi were neither Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 9 the owners nor landlords. It was also stated in the reply to the application that no right to sue/evict was available to Sh. Ram Swaroop Joshi/or Basanti Devi who accordingly could not transfer any such purported rights in favour of Sh. Umesh Chand Sharma. This plea of the appellant in the reply to the application u/O 22 R.10 read with Section 151 CPC before Ld ARC is contrary to the plea taken here that the cause of action of the eviction petition was composite and since Sh. Umesh Chand Sharma cannot succeed right to sue from Smt. Basanti Devi, the eviction petition as a whole goes. The appellant/tenant cannot take this plea for the first time in the present appeal. Further, the copy of the registered sale deed dated 21.10.2005 executed by Smt. Basanti Devi in favour of respondent Umesh Chand Sharma is present in eviction proceedings pending before Ld ARC. The clause 6 of this sale deed is so worded that a liberal interpretation of it may prima facie entitle the respondent no.4 Umesh Chand Sharma the right to claim arrears of rent and other rights arising out of the sale transaction between Basanti Devi and Sh. Umesh Chand Sharma with regard to suit premises notwithstanding the fact that there is no specific paragraph in this sale deed with regard to transfer of claim in the eviction proceedings and the claim as to arrears of rent. In any case, the question whether the cause of action of filing eviction petition by the three co-owners was composite or only Sh. Yadav Chand Sharma was the landlord of the tenancy premises as per rival contentions of the parties is yet to be decided in the eviction proceedings on merit after appreciation of evidence of parties by Ld ARC. At the stage of disposal of application u/O 22 R.10 CPC only prima facie view is required to be taken (vide Satyawati Sharma's case (Supra)). The question of fact emerging from rival pleadings of parties in eviction petition as to cause of action is composite for three landlords petitioners or arisen in favour of Sh. Yadav Chand Sharma one of the three petitioners is yet to be decided at the time of final disposal of eviction petition on merits. Therefore, the Ld ARC in the impugned order has, in my view, rightly observed that the parties were not in concurrence about the person to whom rent was tendered by the appellant/tenant. As per the Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 10 appellant/tenant it was being paid to Sh. Yadav Chand Sharma whereas as per the petitioners it was being paid to Sh. Ram Swaroop Joshi. Therefore, Ld ARC observed that in the eviction petition u/S 14(1)(a) and (b) of the Act where the question to be determined between the parties is the existence of relationship of landlord and tenant, in her opinion, no prejudice will be caused if the applicant Umesh Chand Sharma is impleaded in place of Sh. Ram Swaroop Joshi and Smt. Basanti Devi in as much as question of ownership of property is not to be decided in the eviction proceedings. Therefore, there is no need for me to go into the authorities relied upon by appellant with regard to continuation or non continuance of the eviction proceedings on the ground as to the cause of action being composite or not, the question would finally be decided on merit by Ld ARC after respective evidence of parties, while passing judgment on eviction petition.
19. The question is raised with regard to sale deed executed by Smt. Basanti Devi in favour of respondent no.4 Umesh Chand Sharma on the question that it was a sham sale deed and was under valued and proper stamp duty was not paid. These questions cannot be dealt with while deciding application u/O 22 R.10 CPC as only prima facie view of the matter is required to be taken, as already stated. These questions, therefore, cannot be raised in the present appeal against the impugned order.
20. The question of violation of Section 37 of the Act is also raised by the appellant on the ground that Notice of the application u/O 22 R.10 CPC is not issued to Smt. Basanti Devi. The trial ARC's record shows that after the execution of registered sale deed in favour of respondent no.4 Umesh Chand Sharma on 21.10.2005 Smt. Basanti Devi has not actively participated in the proceedings. She was already one of the petitioners before Ld ARC when the application u/O 22 R.10 CPC was filed by respondent no.4 Umesh Chand Sharma on 26.05.2006 before Ld ARC, she could have raised objection to it during the period of about one year this application remained pending before Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 11 Ld ARC but she despite being co-petitioner in the eviction proceedings pending before Ld ARC has not raised any objection. This also prima facie confirms the fact that she having sold her share in the property in question to respondent no.4 Umesh Chand Sharma was not interested in this eviction proceedings any more nor has any objections to the application u/O 22 R.10 CPC. Further, the requirement of issuance of notice as envisaged under Sub Section (1) of Section 37 of the Act is only in those cases where the person concerned is likely to be prejudicially affected. Smt. Basanti Devi having sold her share in the property in question to respondent no.4 Umesh Chand Sharma cannot be said to be prejudicially affected by his substitution in the eviction proceedings in place of Smt. Basanti Devi. Therefore, in my view, there is no violation of Section 37(1) of the Act on this count.
20. In Pasu Palati's case (Supra) during the pendency of proceedings under A.P. Buildings (Lease) Rent and Eviction (Control) Act 1960, the landlord recovered another accommodation which had material bearing on the right to evict so it was held by Hon'ble Supreme Court that this subsequent event affecting the right of the landlord to evict the tenant should be taken note of by the Hon'ble High Court in the revision proceedings. The facts are different and the question regarding substitution of the petitioners/landlords under Order 22 R.10 CPC in the eviction proceedings was not in issue in that case, therefore, Pasu Palati's case (Supra) is distinguishable on facts. In the light of Hukum Chand's case (Supra) and Dhrundhar Prasad Singh's case (Supra) relied upon on behalf of Respondent no.4 Umesh Chand Sharma the trial of the suit cannot be brought to an end merely because the interest of a party in the subject matter of the lis has devolved upon another during its pendency and the proceedings should be continued for disposal of proceedings on merit by way of adjudication of dispute between the parties.
21. As regards application of Smt.Basanti Devi filed before Ld. ARC, Mohinder Singh Matharoo V. Yadav Chand Sharma and ors 12 prior to sale of her share in the property to Respondent no.4 Sh.Umesh Chand Sharma, stating she was not a consenting party to filing of eviction petition, this application remained undecided by Ld. ARC. Subsequently, she sold her share to Sh.Umesh Chand Sharma as already stated, therefore, either the said application filed by her has become infructuous or it is for her successor-in-initerest Sh.Umesh Chand Sharma, who is substituted by impugned order in her place, to decide whether to press or withdraw this application. In any case, the application under Order 22 Rule 10 read with Section 151 CPC cannot be dismissed on account of filing of said application by Smt.Basanti Devi who has not pressed it or got it decided before selling her interest in property in question to Respondent No.4 Sh.Umesh Chand Sharma who seems keen to continue with eviction proceedings. The original eviction petition was signed by all the three petitioners so it cannot be said that Smt.Basanti Devi was not a consenting party to the joint eviction petition. Therefore, Vagha Jesing's case (supra), Kavita Goel's case (supra) and Suchitra Pradhan's case (supra) also do not help the appellant/tenant.
22. In view of the above discussion, the appeal is dismissed. Parties are directed to appear before Ld. ARC's court on 14.01.2013 at 10.00 a.m. Ld. ARC shall proceed further in the matter in accordance with law. Trial ARC's record be returned along with copy of this judgment in appeal. Judgment be sent to server (www.delhidistrictcourts.nic.in). File of appeal be consigned to record room.
Announced in the open court on 07.01.2013 (S.K. SARVARIA) DISTRICT JUDGE/ADDL. RENT CONTROLLER /ADDL. SESSIONS JUDGEI/C (NW), ROHINI DISTRICT COURTS, DELHI Mohinder Singh Matharoo V. Yadav Chand Sharma and ors