Delhi District Court
All R/O 16/19 vs M/S Solace Exports Pvt. Ltd. Page 1 Of 14 ... on 13 April, 2023
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCT APPEAL NO. 10/2022
CNR No. DLCT010023142022
M/s JUPITER ENGINEERS
MEZZANINE FLOOR, FRONT SIDE PORTION
1E/2, JHANDEWALAN EXTENSION
NEAR JHANDEWALAN METRO STATION
NEW DELHI 110055
THROUGH ITS SOLE PROPRIETOR
SHRI CHARANJIT SINGH
R/o 2/75, W.H.S., KIRTI NAGAR
NEW DELHI 110015
SINCE DECEASED THROUGH HIS LEGAL HEIRS
a. SMT. BACHAN KAUR
W/o LATE SHRI CHARANJIT SINGH
b. SHRI RAJVEER SINGH
S/o LATE SHRI CHARANJIT SINGH
c. SHRI VIKRAM SINGH
S/o LATE SHRI CHARANJIT SINGH
ALL R/o 16/19, 2nd FLOOR,
EAST PATEL NAGAR,
NEW DELHI 110008
AND ALSO AT
2/75, W.H.S. KIRTI NAGAR
NEW DELHI 110015
......APPELLANTS
RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 1 of 14 pages
Digitally signed
by GIRISH
KATHPALIA
GIRISH
KATHPALIA Date:
2023.04.13
15:08:42
+0530
VERSUS
M/s SOLACE EXPORTS PVT. LTD
THROUGH ITS DIRECTOR/AUTHORIZED REPRESENTATIVE
Mr. M.K. MAHAJAN
HAVING ITS REGISTERED OFFICE AT
1/E2, JHANDEWALAN EXTENSION
NEW DELHI 110055
......RESPONDENT
Date of filing : 03:02.2022
First date before this court : 05.02.2022
Arguments concluded on : 28.03.2023
Date of Decision : 13.04.2023
APPEARANCE : Shri Anil Kumar, counsel for appellant
Ms. Vibha Mahajan, counsel for respondent
JUDGMENT
1. By way of this appeal brought under Section 38 of the Delhi Rent Control Act, the appellant tenant has assailed order dated 24.12.2021 of the learned Additional Rent Controller whereby the eviction petition under Section 14(1)(a) of the Act was allowed. On service of notice of this appeal, respondent landlord entered appearance through counsel. I heard learned counsel for both sides and perused the trial court record.
2. Briefly stated, circumstances leading to the present appeal are as follows.
RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 2 of 14 pages Digitally signed by GIRISH KATHPALIA GIRISH KATHPALIA Date:
2023.04.13 15:08:53 +0530 2.1 The building bearing No. 1E/2, Jhandewalan Extension, New Delhi (hereinafter referred to as "the said building") belonged to Smt. Sarla Devi Agnihotri by way of registered perpetual lease deed dated 03.12.1956 executed by the Delhi Improvement Trust. On 04.06.1966, Smt. Sarla Devi died intestate leaving behind her husband and their five sons and three daughters. Sons and daughters of Smt. Sarla Devi executed registered Relinquishment Deeds in favour of their father Shri D.D. Agnihotri. On 13.01.1975, Shri D.D. Agnihotri passed away, leaving behind Will dated 21.04.1974, after which interse disputes between the legal heirs of Shri D.D. Agnihotri lead to multiple litigations. Finally, by way of Compromise Deed dated 25.03.1987, those disputes got settled and each of the legal heir of Shri D.D. Agnihotri got 1/8th undivided share in the said building.
Shri I.D. Agnihotri (son of Shri D.D. Agnihotri) and Smt. Roopi Agnihotri (widowed daughter in law of Shri D.D. Agnihotri) filed an eviction petition under Section 14(1)(a) against the present appellant, pleading that the appellant had been inducted as a tenant in the mezzanine floor of front side portion (hereinafter referred to as "the subject property") of the said building at a monthly rent of Rs. 1,300/ excluding electricity and water charges; that the appellant tenant neither paid nor tendered complete arrears of the legally recoverable rent within two months of 20.02.2008, which is the date when the Rent Demand Notice dated 17.02.2008 sent by registered post to the appellant tenant returned undelivered; and that in the earlier eviction proceedings filed on behalf of one M/s Aman Associates, the present appellant tenant had asserted that it is Shri RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 3 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2023.04.13 15:09:04 +0530 D.D. Agnihotri and his legal heirs who are actual landlords pertaining to the subject property. As such, the eviction petitioners Shri I.D. Agnihotri and Smt. Roopi Agnihotri claimed eviction of the appellant tenant from the subject property.
2.2 During pendency of the eviction proceedings an application under Order XXII Rule 10 CPC was filed by the present respondent M/s Solace Exports Pvt. Ltd. claiming itself to have purchased 1/8th share of petitioner no. 2 Smt. Roopi Agnihotri and the said application was allowed by the learned Additional Rent Controller vide order dated 01.05.2014, thereby substituting Smt. Roopi Agnihotri with the present respondent. Thereafter, application dated 17.07.2014 was filed by the present respondent M/s Solace Exports Pvt. Ltd. under Order XXII Rule 10 CPC, claiming itself to have acquired ownership in respect of 1/8th undivided share of petitioner no. 1 Shri I.D. Agnihotri in the said building. The said application was allowed by the learned Additional Rent Controller vide order dated 22.03.2017, thereby substituting the petitioner no. 1 with the present respondent company.
2.3 In its written statement, the appellant tenant admitted its relationship as tenant under Shri I.D. Agnihotri only and denied any tenancy relationship with Smt. Roopi Agnihotri. The appellant tenant denied having been served with the alleged Rent Demand Notice dated 17.02.2008 and further pleaded that the actual rate of rent was Rs. 150/ per month exclusive of other charges; and that Shri I.D. RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 4 of 14 pages Digitally signed by GIRISH KATHPALIA GIRISH KATHPALIA Date:
2023.04.13 15:09:15 +0530 Agnihotri used to collect rent annually but without issuing any receipt and there was no default on its part in payment of rent. Therefore, according to the appellant tenant the eviction petition was liable to be dismissed.
2.4 The eviction petitioners filed replication to reaffirm the petition contents.
2.5 On the basis of above pleadings, trial was conducted before the learned Additional Rent Controller in which both sides examined one witness each. After hearing both sides, learned Additional Rent Controller allowed the eviction petition by way of the impugned order. Hence, the present appeal.
3. During final arguments, learned counsel for appellant tenant contended that the impugned eviction order is not sustainable on three grounds as follows. Firstly, the admitted position being that the said building is yet to be partitioned by metes and bounds, failure on the part of the eviction petitioners to implead the remaining co owners of the said building is fatal to the eviction petition. Secondly, there is no evidence of relationship of tenancy between the appellant and the present respondent M/s Solace Exports Pvt. Ltd. Thirdly, there is no evidence of service of Rent Demand Notice, so the eviction petition must fail.
RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 5 of 14 pages Digitally signed by GIRISH KATHPALIA GIRISH KATHPALIA Date:
2023.04.13 15:09:27 +0530
4. On the other hand, learned counsel for respondent supported the impugned order and contended that arguments advanced on behalf of the appellant are not sustainable in the eyes of law. Learned counsel for respondent also disclosed that subsequent to the impugned order, the learned Additional Rent Controller declined the benefit under Section 14(2) of the Act to the appellant vide order dated 16.07.2022 and passed eviction order but the same having not been challenged has attained finality.
5. To begin with, contention of the learned counsel for appellant tenant to be tested is as to whether failure of the respondent landlord to implead the remaining coowners of the said building would be fatal to the proceedings under Section 14(1)(a) of the Act. In that regard, it would be apposite to briefly traverse through the relevant judicial precedents.
5.1 In the case of M/s India Umbrella Manufacturing Co.
vs Bhagabandei Aggarwala, AIR 2004 SC 1321, the Hon'ble Supreme Court of India held thus :
"6. .... It is well settled that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the coowners (see. Sri Ram Pasricha vs Jagannath & Ors.(1976) 4 SCC 184; Dhannalal vs Kalawatibai & Ors. (2002) 6 SCC 16) This principle is based on the doctrine of agency. One coowner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 6 of 14 pages Digitally signed by GIRISH KATHPALIA GIRISH KATHPALIA Date:
2023.04.13 15:09:40 +0530 agreeable to eject the tenant and the suit was filed inspite of their disagreement....." (emphasis supplied) 5.2 Subsequently, in the case of Mohinder Prasad Jain vs Manohar Lal Jain, (2006) 2 SCC 724, the Hon'ble Supreme Court of India had the occasion to deal with circumstances similar to the present case in the sense that the original landlord died, leaving behind five children who became coowners of the demised premises and one of them filed eviction petition, which was dismissed on the ground that the eviction petitioner had not been able to show consent of his sisters in his favour for institution of the eviction petition. The Hon'ble Supreme Court of India referred to the judgment in the case of M/s India Umbrella Manufacturing Co.(supra), and held thus :
"11. A suit filed by a coowner is thus maintainable in law. It is not necessary for the coowner to show before initiating the eviction proceedings before the Rent Controller that he had taken option or consent of the other coowners. However, in the event a coowner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the coowners of the respondent had objected to eviction proceedings initiated by the respondent herein...."(emphasis supplied) 5.3 In the case of Sriram Pasricha vs Jagannath & Ors., 1976 AIR 2335 also the Hon'ble Supreme Court of India elucidated the concept of coownership thus :
"........... Mr. V.S. Desai reads to us from Salmond on Jurisprudence (13th edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254: "As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 7 of 14 pages Digitally signed by GIRISH KATHPALIA GIRISH Date: KATHPALIA 2023.04.13 15:09:51 +0530 possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of coownership. Partners, for example, are coowners of the chattels which constitute their stockin trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by coowners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person ...... The several ownership of a part is a different thing from the coownership of the whole. So soon as each of two coowners begins to own a part of the thing instead of the whole of it, the coownership has been dissolved into sole ownership by the process known as partition. Co ownership involves the undivided integrity of what is owned". Jurisprudentially it is not correct to say that a co owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a partowner or a fractional owner of the property. The position will, change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and coowner of the premises is not the owner of the premises within the meaning of section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a coowner of the property being at the same time the acknowledged landlord of the defendants."
5.4 In the case of Subhendu Prosad vs Kamla Bala Roy Choudhary, AIR 1978 SC 835, the Hon'ble Supreme Court of India reiterated that even assuming the quit notice was not given on behalf of one of the coowner landlords, the decision in the case of Sriram Pasricha (supra) would show that yet the notice was good and valid.
RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 8 of 14 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2023.04.13
15:10:03 +0530
5.5 In the case of Kanta Goel vs B.P. Pathak & Ors., 1977
AIR 1599, the Hon'ble Supreme Court of India held thus :
"This Court, in Sri Ram Pasricha clarified that a coowner is as much an owner of the entire property as any sole owner of the property is: "Jurisprudentially, it is not correct to say that a coowner of property is not its owner. He owns very part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property. It is therefore, not possible to accept the submission that the plaintiff, who is admittedly the landlord and coowner of the premises, is not the owner of the premises within the meaning of section 13(1) (f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13 (1) (f) as long as he is a coowner of the property, being at the same time acknowledged landlord of the defendants." That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other coowner on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the coowners wanted the tenant to continue contrary to the relief claimed by the evicting coowner". (emphasis supplied) 5.6 Similarly, in various judicial precedents, consistent view of the Hon'ble Supreme Court of India and the Hon'ble Delhi High Court has been that a coowner is as much an owner of the entire property as any sole owner of the entire property and therefore an action for eviction of the tenant brought by one of the coowners is legally maintainable. What is to be seen is not as to whether the co owner who did not join the issuance of quit notice or institution of eviction petition had consented for the issuance of notice or institution of eviction petition. What is to be seen is as to whether the RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 9 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2023.04.13 15:10:19 +0530 coowner who did not join the issuance of quit notice or institution of eviction petition had objected to the issuance of notice or institution of eviction petition. It is in the latter case that the quit notice or the institution of the eviction petition would be bad in law.
5.7 Falling back to the present case, it is not in dispute that the original eviction petitioners Shri I.D. Agnihotri and Smt. Roopi Agnihotri were coowners of the said building and consequently of the subject property to the extent of 1/8th share each. It is also not in dispute that the said building has not been partitioned by metes and bounds till date. But also it is equally significant to note that none of the remaining coowners of the said building have even whispered any objection to the institution of the eviction petition. As described above, it is not the consent of the remaining coowners for filing the eviction petition which is required to be seen. What is required to be seen is as to whether the remaining coowners objected to evicting the appellant tenant from the subject property. Therefore, the first ground of challenge to the impugned order must fail.
6. Coming to the second ground of challenge to the impugned order, I have examined the trial court record to ascertain if any evidence was led as regards relationship of landlord and tenant between the present respondent and the present appellant. As mentioned above, the appellant tenant categorically admitted in its pleadings that the petitioner no. 1 Shri I.D. Agnihotri was landlord.
As further mentioned above, during pendency of the eviction RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 10 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2023.04.13 15:10:33 +0530 proceedings, both eviction petitioners Shri I.D. Agnihotri and Smt. Roopi Agnihotri transferred their respective undivided shares in the said building in favour of the present respondent M/s Solace Exports Pvt. Ltd. and thereafter vide orders dated 01.05.2014 followed by 22.03.2017, the original eviction petitioners were substituted with the present respondent M/s Solace Exports Pvt. Ltd. The said orders dated 01.05.2014 and 22.03.2017 having not been challenged, have attained finality. Besides that, the present respondent in the course of trial proved on record the sale deeds as Ex. PW1/4 and Ex. PW1/5.
Therefore, relationship of tenancy between the appellant and the respondent stands proved and consequently second ground of challenge to the impugned order also must fail.
7. The third and last ground of challenge to the impugned order is that the Rent Demand Notice requisite under Section 14(1)(a) of the Act was not served on the appellant tenant, so the petition is liable to be dismissed. In this regard, the documents Ex PW1/12 to Ex. PW1/14 are relevant. Ex. PW1/12 is the office copy of Rent Demand Notice sent to the appellant tenant under postal receipt Ex. PW1/13 but returned undelivered in envelop Ex. PW1/14. The contention of learned counsel for appellant is that since admittedly the Rent Demand Notice returned undelivered, it cannot be said that the notice was duly served. In this regard, the legal position is as follows.
RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 11 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2023.04.13 15:10:45 +0530 7.1 Rule 22 of the Delhi Rent Control Rules 1959 stipulates as under :
"22. Service of notice, etc - Unless otherwise provided by the Act any notice or intimation required or authorized by the Act to be served on any person shall be served,
(a) by delivering it to the person; or
(b) by forwarding it to the person by registered post with acknowledgment due".
7.2 In the case of Kanwal Raj Sadana vs D.D. Saigal, 59(1995) DLT 443, the Hon'ble Delhi High Court dealt with a situation where notice was sent through registered post to admittedly correct addresses of the tenant, but the envelops containing notices sent through registered AD post returned undelivered. The Hon'ble Delhi High Court held it to be a valid service of notice in following words :
"When the landlord has taken care to send notice through registered post to all available addresses of the tenant and has also adopted other mode of service, i.e. under postal certificate, again sending the same to all available addresses of the tenant, I am unable to see what else the landlord could do and in such a situation I am also unable to persuade myself to doubt the service of notice under postal certificate. I am fully in agreement with the findings of the authorities below that the notice of demand was duly served on the appellant in this case".
7.3 In the case M/s Madan & Co. vs Wazir Jaiveer Chand, AIR 1989 SC 630, a Bench of three Hon'ble Judges of the Supreme Court dealt with circumstances similar to the present case in the sense that there also the notice sent by registered post was received back undelivered. The Hon'ble Supreme Court of India held it to be a fit RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 12 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2023.04.13 15:10:58 +0530 case to presume under Section 27 General Clauses Act service of notice, holding that all a landlord can do to comply with the provision for service of notice is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and once he does this and the letter is delivered to the post office he has no control over it and it is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act; that to interpret the provision as requiring that the letter must have been actually delivered to the addressee would be virtually rendering it a dead letter; that if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct insofar as if he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities; and the more reasonable, effective, equitable and practical interpretation would be to read the words "served" as "sent by post"
correctly and properly addressed to the tenant and the word "receipt"
as the tender of the letter by the postal peon at the address mentioned in the letter.
7.4 In the present case also, admittedly the notice Ex. PW1/12 was dispatched to the correct address of the appellant tenant. Merely because PW1 in his cross examination stated that he knew about Kirti Nagar address of the appellant but did not send the notice at that address, does not invalidate the notice, which was sent at the RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 13 of 14 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2023.04.13 15:11:13 +0530 tenanted property. Therefore, I am unable to accept it to be a case of failure of service of requisite notice under Section 14(1)(a) of the Act.
8. In view of above discussion, I am unable to find any infirmity in the impugned order, so the same is upheld and the appeal is dismissed.
9. Trial court record alongwith copy of this judgment be sent back and appeal file be consigned to records leaving the parties bear their own costs.
Digitally
signed by
GIRISH
GIRISH KATHPALIA
Announced in the open court KATHPALIA Date:
2023.04.13
on this 13th day of April, 2023 15:11:28
+0530
(GIRISH KATHPALIA)
Principal District & Sessions Judge (HQs) Rent Control Tribunal (Central) Tis Hazari Courts, Delhi RCT No. 10/2022 M/s Jupiter Engineers vs M/s Solace Exports Pvt. Ltd. Page 14 of 14 pages