Delhi District Court
Sh.H.K.Oberoi(Since Deceased) vs )M/S Atma Ram Properties Pvt. Ltd on 28 February, 2020
IN THE COURT OF SHRI DINESH KUMAR SHARMA
DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL : NEW DELHI
In the matter of :
RCT No.162/2016
CNR No.DLND010007732014
Sh.H.K.Oberoi(since deceased)
Through Rajinder Kumar Oberoi
S/o Late Sh.H.K.Oberoi
R/o L2, Hauz Khas Enclave
New Delhi110016. .....Appellant
Versus
1.)M/s Atma Ram Properties Pvt. Ltd.
Off.No.8, First Floor,Atma Ram Mansion
Scindia House,New Delhi110001.
2.) L&DO, Nirman Bhawan
New Delhi. .....Respondents
Date of filing : 19.03.2014
Date of arguments : 18.02.2020
Date of judgment : 28.02.2020
JUDGMENT
1. Vide this judgment, I propose to dispose of the present appeal filed u/S 38 of The Delhi Rent Control Act,1958 ("DRC RCT No.162/16 Page No. 1 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. Act" in short) by the appellant challenging the impugned order dated 28.02.2014 whereby the eviction order was passed against the appellant in Eviction Petition No.79/09/94 u/S 14(1)(k) DRC Act.
2. The facts in brief are that the petitioner M/s Arya Dharma Sewa Sangh filed an eviction petition u/S 14(1)(k)&(i) DRC Act against the respondents i.e. Sh.H.K.Oberoi and L&DO in respect of the premises bearing shop no.H43, Connaught Circus, New Delhi. The premises in dispute was let out for non residential purposes on the monthly rent of Rs.136.13 paise excluding water charges. The petitioner submitted that the respondent no.1 carried out unauthorised construction measuring 326 sq.ft. and also in an area of 4'6'x7'6'. These additions and alteration were found by respondent no.2/L&DO on 31.03.1986 during these inspections. Respondent no.2/L&DO intimated petitioner about about certain unauthorized construction in the premises carried out by respondent no.1 vide communication dated 16.06.1993 and 11.11.1993 and demanded a sum of Rs.5,52,039/as damages for the period 31.01.86 to 31.03.94 for committing unauthorized construction. The unauthorized construction was raised by respondent no.1 without knowledge and consent of the petitioner. Respondent no.2 threatened for RCT No.162/16 Page No. 2 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. cancellation of the lease and reenter over the premises over and above the claim for damages and penalty. The petitioner also alleged that the tenant/respondent no.1 has misused the premises and dealt with the same in the manner contrary to the terms of Prepetual Lease granted in favour of the petitioner. Respondent no.1 did not remedy the breaches and continue to deal with the premises in a manner contrary to the condition imposed on petitioner by the Govt. of India inspite of the repeated requests of petitioner and service of notice dated 20.12.1993. The petitioner M/s Arya Dharma Sewa Sangh is stated to be a society duly registered under the Societies Registration Act and the petition was filed through Sh.S.K.Jain who was competent to sign and certify the petition on behalf of the petitioner society. Subsequent to filing of the petition, an application moved u/O 22 Rule 10 CPC by M/s Atma Ram Properties Pvt.Ltd. praying for its substitution in place of M/s Arya Dharma Sewa Sangh as they had purchased the property from M/s Arya Dharma Sewa Sangh vide sale deed dated 31.03.94. Ld. Trial court allowed the application u/O 22 Rule 10 CPC on 25.10.1994 and substituted M/s Atma Ram Properties Pvt.Ltd. in place of M/s Arya Dharma Sewa Sangh and took amended memo of parties on record.
RCT No.162/16 Page No. 3 of 29H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr.
3. Respondent no.1 in its written statement interalia stated that the petitioner M/s Arya Dharma Sewa Sangh have no locus standi to file the eviction petition as the property was originally leased out to Late Seth Laxmi Narain Birla. It was stated that since the original owner had not constituted the society and as such any transfer, if made, the title to property would not pass on the society in any manner and so also to the substituted owner M/s Atma Ram Properties Pvt.Ltd., as similarly, the property has not been legally transferred to M/s Atma Ram Properties Pvt.Ltd. Respondent no.1 stated that since property has not been mutated in the name of M/s Atma Ram Properties Pvt.Ltd., therefore, the eviction petition in the present form is not maintainable. Respondent no.1 stated that construction on the part of the respondent no.1 has been carried in accordance with the sanctioned plan of NDMC and the sanction was duly accorded to M/s Arya Dharma Sewa Sangh. Respondent no.1 stated that no unauthorized construction has been raised. It was stated that no clause of lease deed has been violated. The respondent no.1 admitted to have received the notice and stated that the same was duly replied. Respondent no.1 further stated that the para regarding authority and verification needs to be amended in view of the substitution of M/s Atma Ram Properties RCT No.162/16 Page No. 4 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. Pvt.Ltd.
4. Respondent no.2/L&DO in its brief reply stated that there was breach in terms of unauthorized construction in the premises in question in violation of clause 2(5) of the perpetual lease deed. It was stated that the unauthorized construction can be regularized temporarily on the request of the lessee to postpone the right of reentry provided in the lease deed on payment of damages as fixed by the Govt. time to time and other usual charges. Respondent no.2 clarified that this regularization is for purely a temporary period and no condonation of permanent nature is feasible under the terms of lease deed. It is pertinent to mention here that respondent no.2 was proceeded exparte on 08.09.98.
5. The petitioner in support of its case examined AW1 Sh.Chhattar Singh,UDC from L&DO Office and he proved the letters dated 11.11.1993 & 16.06.1993 as Ex.AW1/1 & Ex.AW1/2. AW1 also proved the letter dated 11.05.1993 as Ex.AW1/3. All these three letters were issued by the department to trustee M/s Arya Dharma Sewa Sangh about the breaches and demand of the damages. In the cross examination, AW1 stated that he had worked under Sh.L.D.Ganotra, Engineer Officer who RCT No.162/16 Page No. 5 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. had signed the letter dated 11.11.1993 and had not worked with persons who had signed the other two letters. AW1 admitted that the originally the property was leased out on 30.03.48 in favour of Seth Laxmi Niwas Birla. AW2 Sh.Arjun Singh, Overseer, L&DO department had inspected the property on 05.02.1993 and noted the breaches. He also proved the letter Ex.AW1/1 & Ex.AW1/2. The inspection report dated 05.02.1993 was proved as Ex.AW2/1. During cross examination, it also came that the inspection was also carried out on 31.01.86 and the inspection report dated 31.01.86 was proved as Ex.AW2/2.AW3 Sh.Mohan Singh, Assistant Manager in petitioner company M/s Atma Ram Properties Pvt.Ltd.proved the original incorporation certificate of petitioner company as Ex.AW3/1. He stated that Sh.C.M.Chadha is the principal officer and director of petitioner company and authorized to prosecute the present petition. Certified copy of original minute book vide resolution dated 30.07.94 has been proved as Ex.AW3/2 vide which Sh.C.M.Chadha was authorized to prosecute the present case. AW3 stated that property in question was purchased from M/s Arya Dharma Sewa Sangh vide sale deed dated 31.03.94 and proved the certified copy of the same as Ex.AW3/3. The witness stated that respondent no.1 became their tenant by virtue of transfer of property and tenant RCT No.162/16 Page No. 6 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. committed breaches in the property and misused it as against the perpetual lease granted by the Govt. of India. The witness also identified the signature of Sh.C.M.Chadha. It is pertinent to mention here that when this witness was examined on 19.04.1999, respondent no.1 was exparte . It may be recorded that respondent no.1 was proceeded exparte on 08.09.98 and the said order was set aside on 29.05.2002 and therefore, this witness remained unexamined. The application for recalling this witness for cross examination was dismissed. Similarly, AW4 Sh.S.Dassan, Manager of petitioner company tendered his affidavit in evidence and proved the certificate of incorporation as Ex.AW3/1. He also proved the certified copy of resolution dated 30.07.94 as Ex.AW3/2, sale deed dated 31.03.1994 as Ex.AW3/3. PW4 stated that respondent no.1 has also attorned to the present petitioner. The original letter of the petitioner dated 31.03.1994 which was duly signed and accepted by respondent no.1 has been proved as Ex.AW4/1. The rent bill dated 01.04.1994 signed and acknowledged by respondent no.1 has been proved as Ex.AW4/2. The respondent no.1 was duly informed of the transfer of the title of the property vide letter proved as Ex.AW4/3. This witness also reiterated about unauthorized construction, violation and misuser of lease deed. AW5 Sh.B.L.Nirwan, LDC, L&DO RCT No.162/16 Page No. 7 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. Office proved the photocopy of the prepetual lease deed as Ex.AW5/1. AW6 Sh.S.K.Jain had signed and verified the plaint on behalf of M/s Arya Dharma Sewa Sangh. AW6 stated that perpetual lease deed was granted in favour of Seth L.N. Birla on 30.03.1948 by Govt. of India and subsequently, the property was transferred to M/s Arya Dharma Sewa Sangh and the tenant was inducted by them and subsequently, the property was transferred to M/s Atma Ram Properties Pvt.Ltd. Sh.S.K.Jain deposed on oath that L&DO on 16.06.1993 and 11.11.1993 intimated that certain unauthorized construction in the premises was carried out by respondent no.1 and demanded Rs.5,52,039/ for the period 31.03.1986 to 31.01.1994 for committing unauthorized construction by respondent no.1. The unauthorized construction was carried out without the knowledge of the petitioner and L&DO. The tenant had also misused and had also dealt with the premises in the manner contrary to the terms of lease deed granted in favour of the petitioner and substantially damaged the premises by making a structure measuring 326 sq.ft. and by raising an area of 4'6' x 7'6'. Sh.S.K.Jain proved the notice dated 20.12.1993 Ex.AW6/1 served upon the respondent no.1 alongwith the original postal receipt and UPC dated 21.12.1993. The witness stated that respondent no.1 failed to remove the breaches and RCT No.162/16 Page No. 8 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. continued to deal with the premises in a manner contrary to the conditions imposed on the petitioner by the Govt. of India. AW6 proved his signature on the petition as attorney. The witness also proved the original Power of Attorney in his favour. He stated that M/s Arya Dharma Sewa Sangh is a society which is registered under The Societies Act and also named the members of the society.
6. On behalf of respondents, Sh.P.Sen Gupta, UDC in the Office of Land & Development Office appeared as RW1 and brought the original prepetual lease deed executed in favour of Seth Laxmi Niwas Birla. He stated that the property was mutated on 13.01.67 in the name of M/s Arya Dharma Sewa Sangh and yet not mutated in favour of M/s Atma Ram Properties Pvt.Ltd. RW2 Shri Pal Singh, an employee of Oboroi Opticians stated that the respondent Sh.H.K.Obroi constructed a mezanine floor in the said shop which is a wooden structure and M/s Arya Dharma Sewa Sangh had taken the permission from NDMC to construct the mezanine and the respondent did not increase the covered area beyond the sanction plan and whatever was done at the back of the shop has been removed. The witness further stated that the respondent was 92 years old and he could walk with difficulty and his eyesight are week. The witness identified his signature on RCT No.162/16 Page No. 9 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. the written statement. In the cross examination, RW2 deposed that he was not aware whether any notice was served upon respondent for removal of any breaches. However, he admitted that M/s Arya Dharma Sewa Sangh had served a notice on respondent that they had sold the property to the present petitioner. In the cross examination, the witness stated that he is not an attorney of the respondent and had no discussion with the respondent in respect of his statement to be recorded in this case. Specific suggestion was given to the witness that mezanine is not a wooden structure but a pucca structure to which he replied that earlier it was wooden structure. He stated that he had not seen it recently and therefore could not say whether it is a wooden or pucca structure. The witness further stated that he has not seen it for the last 57 years.
7. Ld.Trial Court after taking into account the pleadings, witnesses on record and submissions made by the parties, concluded that no ground for eviction u/S 14(1)(i) DRC Act was made out against respondent no.1. However, passed the eviction order u/S 14(1)(k) DRC Act against respondent no.1. Aggrieved by this, the respondent no.1/tenant filed the present appeal challenging the impugned order dated 28.02.2014. The appellant in his appeal challenged the impugned order on the ground that RCT No.162/16 Page No. 10 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. the order of Ld.Trial Court suffers from glaring infirmities, manifest errors, inconsistencies and nonapplication of mind. The appellant stated that the Ld.ARC ignored the material fact that there is no petition on record having been signed and verified by M/s Atma Ram Properties Pvt.Ltd. It was further stated that M/s Atma Ram Properties Pvt.Ltd. has yet not been accepted as lessee by the the Paramount Lessor i.e. UOIL&DO. The appellant further stated that the eviction petition was not signed and verified by the trustee of M/s Arya Dharma Sewa Sangh and the petition was liable to be rejected as having been signed and verified by an attorney having been appointed by one of the trustee. The appellant further stated that in view of clause 13 of prepetual lease deed the property could not have been transferred by the original lessee Seth Laxmi Narain Birla in favour of M/s Arya Dharma Sewa Sangh and further in favor of M/s Atma Ram Properties Pvt.Ltd. It was further stated that the petitioner failed to examine Sh.C.M.Chadha who was the director/principal officer to prosecute the present petition.
8. Notice of the appeal was issued to respondent no.1 & respondent no.2/L&DO.
9. Sh.H.L.Narula, Ld.Counsel for the appellant made a detailed submissions besides filing of the written submissions.
RCT No.162/16 Page No. 11 of 29H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. Ld.Counsel for the appellant submitted that M/s Arya Dharma Sewa Sangh was a trust and the petition was not maintainable in the eyes of law as no trustee has signed the petition and the petition was filed through attorney and thus, not maintainable in the law. The verification of the petition has also been done by the attorney which is also violation of provisions of CPC. Ld.Counsel submitted that after allowing the application u/O 22 Rule 10 CPC by Ld.Trial Court on 25.10.1994, M/s Atma Ram Properties Pvt.Ltd. only filed amended memo of parties and no amended petition was filed. It was submitted that pursuant to substitution of company in place of Trust, the company should have filed the amended petition. In fact the company should have been added and not substituted. Ld.Counsel submitted that though this issue was not raised earlier but it being a legal issue, the appellant is still within his right to raise it. He submitted that this court does not have the petition signed by company and therefore, a decree in favour of the person who has neither signed nor verified the petition, is a nullity. It was further submitted that the person who moved an application for substitution has never stepped into the witness box. Ld.Counsel further submitted that there is no resolution in favour of the person who filed the application for substitution. Ld.Counsel invited the attention of the court to RCT No.162/16 Page No. 12 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. Section 14(1)(k) DRC Act and emphasized the fact that only a lessee can file the eviction petition. It was submitted that the conjoint reading of Section 14(2)(c), 14(1)(k) & 14(11) DRC Act would make it clear that in the case of prepetual lease only a lessee is empowered to institute an eviction petition. It was further submitted that till date property has not been mutated in the name of M/s Atma Ram Properties Pvt.Ltd. L&DO has also issued a notice only to M/s Arya Dharma Sewa Sangh and therefore, M/s Atma Ram Properties Pvt.Ltd. has no locus to institute the present proceedings. Ld.Counsel for the appellant submitted that the damages sought in the present petition are for the period 31.03.86 to 31.3.94 whereas the present petition was filed on 24.01.94 and therefore, damages for more than three years could not have been demanded.
10. In support of his contention, Ld.Counsel for the appellant has relied upon Thomson Press(India) Ltd. Vs Nanak Builders & Investors P. Ltd., II(2013) SLT349 and State of Madhya Pradesh Vs Narmada Bachao Andolan And Another, (2011) 7 SCC 639. Ld.Counsel submitted that in Thomson Press(India) Ltd.'s case(Supra), Hon'ble Supreme Court was examining the proposition that whether a transferree pendente lite can in a suit for specific performance be added as a party RCT No.162/16 Page No. 13 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. defendant and if so in what terms. Ld.Counsel submitted that in Thomson Press(India) Ltd.'s case(Supra), Hon'ble Supreme Court after relying upon Amit Kumar Shaw Vs Farida Khatoon, III(2005) SLT 705 interalia held that transferor pendente lite may not even defend the title property as he has no interest in the same or collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored and therefore, to avoid such situations the transferee pendente lite can be added as a party defendant to the case provided his interest is substantial and not just peripheral. Ld.Counsel for the appellant further stated that in view of Thomson Press(India) Ltd.'s case(Supra) M/s Atma Ram Properties Pvt.Ltd. should have been added as a petitioner alongwith M/s Arya Dharma Sewa Sangh and the fact that they were substituted by the Ld.Trial Court is a gross irregularity. In State of Madhya Pradesh 's case(Supra), Hon'ble Supreme Court interalia held that one additional or different fact may make a world of difference between the conclusions in two cases. Ld.Counsel for the appellant submitted that the Ld.Trial Court has wrongly placed reliance upon the judgments cited by the respondent/landlord without going into the ratio of those cases. Ld.Counsel for the appellant has also cited Nand Kishore Lalbhai Mehta Vs New Era Fabrics Pvt. Ltd. & Ors., 2016(3) Rajdhani RCT No.162/16 Page No. 14 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. Law Reporter 43 to buttress his point that there was no cause of action in favour of M/s Atma Ram Properties Pvt.Ltd. In Nand Kishore Lalbhai Mehta 's case(Supra) Hon'ble Supreme Court interalia held that fresh pleadings and evidence which is in variation to the original pleadings cannot be taken unless the pleadings are incorporated by way of amendment of the pleadings. Ld.Counsel submitted that in the present case also M/s Atma Ram Properties Pvt.Ltd. was simply substituted in place of M/s Arya Dharma Sewa Sangh but no pleadings in this effect were made in the petition. Ld.Counsel further submitted that the petitioner lead the evidence which was totally contrary to the pleadings. Ld.Counsel relied upon Nand Kishore Lalbhai Mehta 's case(Supra) to show that unless a plaint was amended and specific plea was taken, the case of the petitioner cannot be taken into account. Ld.Counsel further submitted that Ex.AW1/1 to Ex.AW1/3 were not properly proved and in support of this contention also, Ld.Counsel relied upon Nand Kishore Lalbhai Mehta 's case(Supra) wherein Apex Court held that merely because the document have been exhibited and also because in some of the documents one of the witnesses had identified the signature of the person who is alleged to have signed the documents does not establish that the contents of the documents RCT No.162/16 Page No. 15 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. have been proved. It was further interalia held that merely identifying the signature of the person alleged to have signed the same does not prove the contents of the documents. Ld.Counsel submitted that since the property has yet not been mutated, therefore, the transfer title is not yet complete and therefore, M/s Atma Ram Properties Pvt.Ltd. has no locus standi.
11. Per contra, Sh.Amit Sethi, Ld.Counsel for respondent no.1 advanced detailed arguments and also filed the written submissions. Ld.Counsel for respondent no.1 submitted that application for substitution of M/s Atma Ram Properties Pvt.Ltd. in place of M/s Arya Dharma Sewa Sangh was duly allowed by Ld.Trial Court vide order dated 25.10.94 and this order has not been challenged by the appellant/tenant at any forum and thus, has attained finality. Therefore, at this stage it would not be plausible for this court to reopen this issue. It was further submitted that the written statement was filed by the respondent no.1 /tenant after the substitution of M/s Atma Ram Properties Pvt.Ltd. and in the written statement, the relationship of landlord and tenant was admitted. Ld.Counsel submitted that in the written statement, the appellant/tenant never took the plea that M/s Arya Dharma Sewa Sangh is a trust and not a society. It was further stated that AW6 Sh.S.K.Jain in the cross examination has RCT No.162/16 Page No. 16 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. specifically stated that M/s Arya Dharma Sewa Sangh is a registered society. Ld.Counsel submitted that a registered society being a legal entity is capable to sue and being sued in its name and reliance has been placed upon Kanta Kochhar & Anr. Vs Sir Ganga Ram Trust Society 2010(114) DRJ 123. Ld.Counsel for respondent no.1 submitted that M/s Atma Ram Properties Pvt.Ltd. Purchased the property from M/s Arya Dharma Sewa Sangh and even at that time unauthorised construction in utter violation of the prepetual lease deed subsisted and therefore, cause of action accrued in favour of M/s Atma Ram Properties Pvt.Ltd. and reliance has been placed upon Mulam Abubakar Vs State of Goa, W.P.No.99 of 1995 dated 06.01.1998: 1998(2)RCT 260. In regard to the plea that there is no need to file the amended petition, Ld.Counsel relied upon Dhurandhar Prasad Singh Vs Jai Prakash University & Others, AIR 2001 SC 2552 wherein the Apex Court interalia distinguished the manner and scope of devolution of interest as envisaged u/O 22 Rule 3,4 and Order 22 Rule 10 CPC. Ld.Counsel submitted that to institute an eviction petition u/S 14(1)(k) DRC Act the requirement is of landlord and not lessee. In this regard reliance has been placed on Faqir Chand Vs Ram Rattan Bhanot, AIR 1973 SC 921. Ld.Counsel submitted that the appellant/tenant has duly admitted M/s Atma Ram Properties RCT No.162/16 Page No. 17 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. Pvt.Ltd. as their landlord and therefore, this plea cannot be raised at this stage. Ld.Counsel submitted that the appellant is persisting that M/s Atma Ram Properties Pvt.Ltd. should have been added and not substituted and the judgment of Thomson Press(India) Ltd.'s case(Supra), is distinguishable on the ground of distinct factual matrix. Thomson Press(India) Ltd.'s case(Supra), was an appeal against the order of rejection of application u/O 1 Rule 10 of CPC for impleadment as defendants in a suit for specific performance. Ld.Counsel submitted that after M/s Atma Ram Properties Pvt.Ltd. have been substituted, there was no need to amend the petition and reliance was placed on Sharadamma Vs Mohammed Pyarejan(D) through LRs & Anr., Civil Appeal No.7889 of 2015. In this case, Hon'ble Supreme Court has inter alia held that the person in whose favour interest has devolved can continue the suit and suit in the hand of said person is not a new suit. Ld.Counsel submitted that incorporation certificate of M/s Atma Ram Properties Pvt.Ltd. and resolution dated 30.07.94 has duly been proved as Ex.AW3/1 & Ex.AW3/2 without any objection. Ld.Counsel for the respondent relied upon in this regard Bhagwati Prasad Vs Chandramaul, AIR 1966 SC 735 wherein it was interalia held that if a plea is not specifically made and yet it is covered by an issue by implication and the RCT No.162/16 Page No. 18 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. Ld.Counsel submitted that the judgment cited by the appellant Nand Kishore Lalbhai Mehta 's case(Supra) is also distinguishable on the facts of the case as the appellant was aware of the issue that respondent no.1 has purchased the demised premises. Ld.Counsel submitted that the challenge of the appellant to mutation of respondent no.1 is not envisaged in the scope of petition u/S 14(1)(k) DRC Act. In this regard reliance has been placed on Rashida Begum Vs General Sales Ltd.,(2002) 6 SCC 60. Ld.Counsel submitted that even otherwise now the property has duly been mutated in favour of M/s Atma Ram Properties Pvt.Ltd.
12. I have heard the Ld.Counsel for the parties and perused the record carefully.
13. Section 14(1(k) DRC Act interalia lays down as under:
"14. Protection of tenant against eviction. - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favor of the landlord against a tenant:
(k) That the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on RCT No.162/16 Page No. 19 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr.
the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;"
The necessary ingredients for maintaining a petition u/S 14(1)(k) DRC Act are (i) the tenanted premises must be regulated by terms of any perpetual lease or agreement of lease,(ii)there has to be a notice in writing by the landlord to tenant informing the latter of the violations/breaches of the conditions imposed on the landlord by Govt. vide perpetual lease of the premises and (iii)the tenant despite service of notice fails to rectify or remove the violation or breach.
14. The DRC Act is a piece of welfare legislature and has been enacted for the protection of landlord and tenant. The intention of the act is to balance the rights of the landlord and the obligation of the both towards each other. The object of the legislature while enacting the act was to curb the tendency of greedy landlord to throw out the tenant paying lower rent in the name of personal occupation and rent out the premises at the market rate and relied M/s Rahabar Production Pvt. Ltd. Vs Rajender Kumar Tondon, AIR 1998 SC 1639. Section 37 DRC Act provides the procedure to be followed by Controller . Section 37(2) DRC Act provides that subject to any rules that may be made under this act, the Controller shall while holding an enquiry RCT No.162/16 Page No. 20 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. in any proceedings before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence. Rule 23 DRC Act provides that in deciding any question relating to procedure not specifically provided by the act and these rules the Controller and the Rent Control Tribunal shall ,as far as possible, be guided by the provisions contained in the CPC, 1908. Conjoint reading of Section 37 CPC and Rule 23 DRC Act would make it clear that except for the procedure specifically provided, the court of Rent Controller would be guided by the provisions contained in CPC and the court of Rent Contoller would follow the practice and procedure of a Court of Small Causes. First and foremost objection taken by the appellant is that M/s Arya Dharma Sewa Sangh is a trust and therefore, the plaint should have been signed by all the trustee and could not have been signed by an attorney of one of the trustee and secondly, M/s Atma Ram Properties Pvt.Ltd. could not have been substituted but have been added. Another limb of this argument is that in absence of any specific pleading to the effect that M/s Atma Ram Properties Pvt.Ltd. has purchased the property and has thus, become the landlord/owner, the petition itself is not maintainable. I consider that all these arguments deserves to be rejected outrightly for many reasons including the RCT No.162/16 Page No. 21 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. paramount that objection as to the signing and verification of the plaint was not taken by the respondent/tenant in their written statement nor in the cross examination of the witnesses. Furthermore, the substitution was duly allowed by Ld.ARC vide order dated 25.10.94, this order was not challenged by the respondent at any forum and thus, the same has attained finality. Thus, I consider that it does not lie in the mouth of the appellant to raise all these objections. It is also pertinent to mention here that Order 22 Rule 10 CPC deals with a situation where the interest has devolved during the pendency of the suit. Order 22 Rule 10 CPC provides for cases of assignment, creation or devolution of any interest during the pendency of a suit and based on the principle that the trial of a suit cannot be brought to an end merely because the interest of the party in a subject matter of suit is devolved upon another during its pendency. But such a suit may be continued with the leave of the court or against the person upon who such an interest has devolved.
15. In Dhurandhar Prasad Singh's case(Supra) Apex Court held that even if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted RCT No.162/16 Page No. 22 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. In Dhurandhar Prasad Singh's case(Supra), it was further held that in cases covered by Rule 10, the Legislature has not prescribed any such procedure in the event of failure to apply for leave of the court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the Legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record. Thus, the petition in the hand of M/s Atma Ram Properties is not a new petition, and therefore, there was no need to amend the petition. Similarly, in respect of the petition having been signed by AW6, I do not find any infirmity as in the cross examination AW6 stated that it is a society not a trust and he has duly been authorised to sign the plaint. The witness has also produced Power of Attorney. In Kanta Kochhar & Anr.'s RCT No.162/16 Page No. 23 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. case(Supra), Hon'ble High Court interalia held that to read Section 6 of The Societies Registration Act, 1860 as requiring the suit to be instituted by all the members thereof would also defeat the very purpose of Section 6. In the present case, the appellant has not denied carrying out of the construction. Plea of the appellant/tenant is that infact these constructions were carried out as per sanctioned plan and with the permission of M/s Arya Dharma Sewa Sangh. It is pertinent to mention here that AW6 Sh.S.K.Jain has appeared and specifically stated that there was no permission of M/s Arya Dharma Sewa Sangh. The appellant/tenant did not produce any credible evidence to prove that there was any sanction for carrying out these constructions. At this stage, it is necessary to refer to the scope of Section 14(1)
(k) DRC Act as discussed in Faqir Chand's case(Supra) which reads as under:
"The provision of Clause (k) of the proviso to sub section (1) of Section 14 is something which has to be given effect to whatever the original contract between the landlord and the tenant. The leases were granted in 1940, and the buildings might have been put up even before the Delhi and Ajmer Rent Control Act 1952 came into force. It was that Act that for the first time provided the kind of remedy which is found in clause (k). The relevant provision in that Act enabled the landlord to get possession where the tenant whether before or after the commencement of the Act used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situate RCT No.162/16 Page No. 24 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr.
notwithstanding previous notice. The anxiety of the legislature is to prevent unauthorized user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant know that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose. He cannot, after the Development Authority takes over the building use it for a commercial purpose. We thus reach the conclusion that the leased in its inception was not void nor is the landlord estopped from claiming possession because he himself was a party to the breach of the conditions under which the land was leased to him. Neither the clear words of the section, as in Waman Shriniwas Kini v. Rati Lal Bhagwandas,AIR 1959 SC 689 nor a consideration of the policy of the Act lead us to the conclusion that the lease was void in its inception if it was for an unauthorised user."
16. In Munshi Ram and Another Vs Union of India and Others, AIR 2000 SC 2623, Hon'ble Supreme Court interalia held that :
"In Dr. K.Madan Vs Krishnawati (Smt.), (1996) 6 SCC 707:1997 AIR SCW 129:(AIR 1997 SC 579), this Court has held that where the premises are used in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi, then the landlord will be entitled to recovery of possession under Section 14(1)(k) of the Act and that subsection (11) of Section 14 of the Act enables the Controller to give another opportunity to the tenant to avoid an order of eviction. The first opportunity to the tenant is given when the notice is served on him by the landlord and the second opportunity is given when a conditional order under Section 14(11) of the Act is passed directing the tenant to pay the amount by way of compensation for regularisation of user up to the date of stopping the misuser and further directing stoppage of unauthorised user. The continued unauthorised user would give the paramount RCT No.162/16 Page No. 25 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr.
lessor the right to re enter after the cancellation of the lease deed. As already noticed, the DDA is insisting on stoppage of misuser. The misuser is contrary to the terms of lease. The DDA cannot be directed to permit continued misuser contrary to the terms of the lease on the ground that zonal development plan of the area has not been framed."
In Sharadamma 's case(Supra), the judgment of Dhurandhar Prasad Singh's case(Supra) was relied upon. It is pertinent to mention here that in Dhurandhar Prasad Singh's case(Supra) it was interalia held that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit and it is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings. Similarly in Jaskirat Datwani Vs Vidhyawati & Ors., Civil Appeal No.32813282 of 2002, Hon'ble Supreme Court relied upon Dhurandhar Prasad Singh's case(Supra) and interalia held that if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree. Thus, the appellant would continue to be bound by the decree or order which has been passed in the suit, particularly when such party had knowledge of the proceedings.
17. The appellant has also taken the plea that M/s Atma Ram Properties Pvt.Ltd. had no locus to continue with the suit as RCT No.162/16 Page No. 26 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. the property has yet not been mutated in its name. Ld.Counsel for the respondent no.1 has taken a plea that though the property has been mutated yet even if it was not so, nothing debars M/s Atma Ram Properties Pvt.Ltd. from prosecuting the suit. In Rashida Begum's case(Supra), it was interalia held as under:
"On a plain reading of clause (k) of the proviso to Section 14(1) of the Delhi Rent Control Act,1985 it is clear that the stress is laid on the conduct of the tenant, who has misused or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government while giving him the lease of the land on which the premises are situate. In the proviso to Section 14(1) are enumerated the grounds on which a landlord can seek recovery of possession of the premises from a tenant. The provision in clause (k) is intended to protect the interest of the landlord who may face termination of the lease and lose the property for breach of conditions imposed by the superior lessor on him while granting the lease of the land. Faced with such situation the landlord is given the right to move the Controller for eviction of the tenant and for recovery of possession of the premises so that he may be saved of the consequences of misuser of the premises and breach of conditions of lease. An opportunity is provided to the tenant to protect himself against threatened eviction from the premises if he complies with the condition imposed on the landlord by any of the authorities referred to in clause (k) of the proviso to Section 14 (1) and pays to that authority such amount by way of compensation as the Controller may direct. Provision for the purpose is made in subsection (11) of Section 14 of the Act. Neither of the aforementioned two statutory provisions mentions execution of a document of lease in any particular form. The stress is on compliance with the conditions subject to which lease of the property was given to the lessee who is the landlord of the tenant in occupation of the premises.
In the case on hand the application filed by the appellant for lease of a plot of land was granted by the officer acting on behalf of the President of India. A registered agreement was RCT No.162/16 Page No. 27 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr.
entered into between the superior lessor and his lessee in which were incorporated the conditions of lease. It was stated in the document that till such time as a formal document of lease is executed and in absence of such a document the terms and conditions set out therein shall be binding on the lessee and can be enforced in the same manner as if a formal document of lease has been executed between the parties. It follows that between the superior lessor and the appellant there was an agreement for lease of the land with certain conditions which were binding on the lessee with the consequence of termination of the agreement in case of default in compliance with the terms, and for resumption/reentry upon the property on termination. Indeed the superior lessor had issued a notice to the appellant terminating the lease on the ground of misuser of the property and conveying the decision of the President of India to reenter upon the premises. In the circumstances, the appellant was entitled to file an application for eviction of the tenant in terms of clause (k) of the proviso to Section 14 (1) of the Act. The technical plea that since no formal deed of lease had been executed between the President of India and the appellant, was not available to the respondent tenant to raise in the proceeding for eviction in view of the undisputed factual position."
18. It is also settled proposition that in the eviction proceedings, the tenant is estopped from challenging the title of the suit. In Shobha MehtaVs Arjun Lal, 1999(81) DLT 489 also it was held that it is necessary for the property to be mutated in the name of landlord to maintain petition under ground of 14(1)(k) DRC Act if the property is purchased by an instrument registered as a sale deed. I consider that the appellant has taken all hyper technical pleas. I do not find any illegality or infirmity in the impugned order passed by Ld.Trial Court. The appellant has no where denied to have carried out any construction. His plea was RCT No.162/16 Page No. 28 of 29 H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr. that the construction was carried out with the permission of M/s Arya Dharma Sewa Sangh. However, he failed to prove any credible evidence in this regard. Procedure is the handmaid of justice and the purpose of law cannot be defeated by resorting to such hyper technical view. There is no substance in the appeal. The appeal is dismissed accordingly.
19. TCR be sent back alongwith copy of this judgment.
20. Appeal file be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2020.02.28
SHARMA 16:42:23 +0530
Announced in open Court (DINESH KUMAR SHARMA)
on 28.02.2020. District & Sessions Judge/
Rent Control Tribunal
New Delhi
RCT No.162/16 Page No. 29 of 29
H.K.Oberoi vs M/s Atma Ram Properties Pvt. Ltd. & Anr.