Delhi High Court
Vijay Kumar vs Nafis Ul Arfin on 6 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 6th July, 2017
+ RC.REV. 451/2016
VIJAY KUMAR ..... Petitioner
Through: Mr. Nitin Bhatia and Mr. Rohit
Malik, Advs.
Versus
NAFIS UL ARFIN ..... Respondent
Through: Mr. T.S. Ahuja and Mr. Varun
Ahuja, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.19553/2017 (for restoration of petition dismissed in default
on 28th April, 2017)
1. For the reasons stated, the application is allowed and the petition
is restored to its original position.
2. The application is disposed of.
RC.REV. 451/2016 & CM No.23308/2017 (of petitioner u/S 151
CPC)
3. This Rent Control Revision Petition under Section 25-B(8) of the
Delhi Rent Control Act, 1958 filed by a tenant impugns the order dated
3rd June, 2016 of the Additional Rent Controller (ARC) of dismissal of
application filed by the petitioner/tenant for leave to leave to defend the
petition for eviction filed by the respondent/landlord for eviction of the
petitioner/tenant from one shop on the ground floor of property bearing
No.5385, New Market, Sadar Bazar, Delhi-110006.
4. The petition was entertained and vide ex-parte ad-interim order
dated 19th September, 2016 the execution of the order of eviction was
stayed.
RC. Rev. No.451/2016 Page 1 of 12
5. The respondent/landlord appeared through counsel and the matter
was adjourned from time to time. On 28th April, 2017, the petition was
dismissed in default of appearance of the petitioner/tenant. The
petitioner/tenant applied for restoration of the petition and which
application came up before this Court on 22nd May, 2017 when notice
thereof was ordered to be issued for 13th October, 2017.
6. The petitioner/tenant filed CM No.23308/2017 and which was got
listed on urgent mentioning yesterday and came up before this Bench at
the fag end of the Court hours. The counsel for the petitioner/tenant
contended that the respondent/landlord had applied for execution of the
order of eviction and warrants of possession were issued and the Bailiff
had reached the tenancy premises yesterday and all the goods of the
petitioner/tenant lying in the tenancy premises had been thrown on the
road. The petitioner/tenant thus sought early hearing of this petition and
also sought stay of further execution contending that though his goods
have been thrown out but possession had not been lost.
7. Notice of the said application was issued for today and observing
that without knowing whether the warrants have been completely
executed or not, stay as sought could not be granted. It was directed that
the respondent/landlord should not deal with the shop till further orders.
8. The counsel for the respondent/landlord has appeared today and
states that though the goods of the petitioner/tenant had been removed
but on a receipt of call from Mr. Nitin Bhatia, Advocate for the
petitioner/tenant stating that this Court had granted stay of execution and
in terms of the same, possession was not taken.
RC. Rev. No.451/2016 Page 2 of 12
9. Mr. Nitin Bhatia, Advocate controverts and state that he did not
state so and rather supplied copy of yesterday‟s order itself to the
respondent/landlord.
10. Yesterday‟s order, according to the counsel for the
petitioner/tenant also, was received by the petitioner/tenant only at about
1830 hours and could not have been supplied to the respondent/landlord
before that. It is quite obvious that Mr. Nitin Bhatia, Advocate
misconveyed the order of this Court to the counsel for the
respondent/landlord and owing whereto the respondent/landlord did not
take possession inspite of the goods of the petitioner/tenant having
already been removed from the premises.
11. Such conduct of the petitioner/tenant/his agent disentitles the
petitioner/tenant to any relief from this Court. Wrong communication of
order of the Court to the prejudice to the other party is a serious issue
and has to be condemned and must deprive the party from any hearing
before the Court.
12. Be that as it may, the counsel for the petitioner/tenant has been
asked to argue on the merits of the Revision Petition.
13. The counsel for the petitioner/tenant has argued (i) that the
respondent/landlord is not the owner of the premises in the tenancy of
the petitioner/tenant which is a Wakf property; (ii) that the
respondent/landlord before the ARC produced a document being a
settlement between the respondent/landlord and his brother whereunder
the shop in the tenancy of the petitioner/tenant had fallen to the share of
the respondent/landlord and on the basis whereof, the learned ARC has
held that there is no merit in the plea of the petitioner/tenant of the
RC. Rev. No.451/2016 Page 3 of 12
property being a Wakf property; however the petitioner/tenant has now
learnt that the sister of the respondent/landlord who was not a party to
the said deed of settlement is claiming rights to the property and owing
to such dispute as to the title of the property, the respondent/landlord
cannot be said to have ownership of the property; (iii) that according to
the respondent/landlord also 104 shops have fallen in his share and the
respondent/landlord, to satisfy his pleaded requirement of a shop, has
chosen the shop in the tenancy of the petitioner/tenant only because the
said shop is the largest of the said 104 shops; (iv) that the
respondent/landlord pleads that he intends to commence his own
business and needs the shop in the tenancy of the petitioner/tenant
therefor; the respondent/landlord is now 57 years of age and cannot be
expected to commence any business at this advanced age; (v) that
"admittedly" some of the said 104 shops are lying vacant (I may
however state that upon being asked to show the admission to the said
effect, the counsel is unable to show any); (vi) that since the
petitioner/tenant has raised all the aforesaid pleas disputing the claim of
the respondent/landlord, the ARC erred in refusing leave to defend;
reliance in this regard is placed on Vijay Kumar Ahluwalia Vs. Bishan
Chand Maheshwari (2017) 3 SCC 189.
14. I have considered the aforesaid contentions of the counsel for the
petitioner/tenant and gone through the paper book.
15. The learned ARC in a lucid and well reasoned order has held (a)
that the respondent/landlord has placed on record a certified copy of a
decree of the Court in a civil suit of the year 1976 pertaining to division
of properties of a Wakf Alal Aulad and under which decree the shop in
RC. Rev. No.451/2016 Page 4 of 12
the tenancy of the petitioner/tenant had come to the share of the
respondent/landlord; (b) that the respondent/landlord has also placed on
record counterfoils of the rent receipts by virtue of which rent was paid
by the petitioner/tenant to the respondent/landlord; (c) that the
petitioner/tenant had not disputed the issuance of those rent receipts
meaning thereby the petitioner/tenant had admitted the landlord-tenant
relationship; (d) that the petitioner/tenant is estopped under Section 116
of the Indian Evidence Act, 1872 from disputing the title of the
respondent/landlord of the tenancy premises; (e) that under the
provisions of the Delhi Rent Control Act, the landlord is required to
prove that his title is better than that of the tenant and absolute ownership
is not required to be proved; (f) that in the present case, the
respondent/landlord has successfully proved his title to be better than
that of the petitioner/tenant since the respondent/landlord is having a
decree of the Court of competent jurisdiction vesting the property in him
and has also been issuing rent receipts in favour of the petitioner/tenant;
(g) that the averment of the petitioner/tenant that he has been paying
house tax with respect to the tenanted premises is of no avail as the same
would not make the petitioner/tenant owner of the shop in his tenancy.
16. I may at this stage add that a Wakf Alal Aulad is different from a
Wakf for charitable purpose. Wakf Alal Aulad is made to vest the
property in the heirs and the heirs can always on conditions of the Wakf
Deed being satisfied divide the property amongst themselves. Reference
can be made to Tamil Nadu Wakf Board Vs. Larabsha Darga Panruti
(2007) 13 SCC 416, Sheikh Mumtaj Ahmed Vs. Rana Khursheed 2013
SCC OnLine Del 2702 and Nisar Ahmed Vs. Agyapal Singh 2015 SCC
RC. Rev. No.451/2016 Page 5 of 12
OnLine Del 7611. Thus, the entire argument of Wakf or of the brother of
the respondent/landlord being Mutawalli of the said Wakf is
misconceived and only to perpetuate the possession of the petitioner who
is stated to be a tenant in the shop since the year 1964 at a rent of
Rs.150/- per month. Such pleas taken ought to be dealt with in the
manner as have been dealt with by the ARC.
17. The ARC has further with respect to the bona fide requirement of
the respondent/landlord for the premises and availability of alternative
accommodation to the respondent/landlord held (i) that it is the case of
the respondent/landlord that he was earning his livelihood from the
rental income of the shops which had fallen to his share under the decree
aforesaid and all the tenants being old the rent is meager; (ii) that the
respondent/landlord used to supplement his income by repairing of
television sets by visiting the customers‟ residences; (iii) however now
with the change of technology and coming of LCD, LED technology,
there is negligible demand for the respondent/landlord‟s services and the
respondent/landlord thus required the premises to settle himself for the
rest of his life by commencing his own business from the shop in the
tenancy of petitioner/tenant with respect to which the petition for
eviction was filed; (iii) that thus the bona fide requirement of the
respondent/landlord could not be doubted; reliance was placed on Sarla
Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC 100 laying
down that the Rent Controller shall not proceed on the presumption that
the requirement is not bona fide and that when the landlord shows a
prima facie case, it is open to the Rent Controller to draw a presumption
that the requirement of the landlord is bona fide; (iv) that the
RC. Rev. No.451/2016 Page 6 of 12
respondent/landlord had clearly stated his need for the premises; (v) that
it was not the case of the petitioner/tenant also that the
respondent/landlord was carrying on any other business or was in some
alternative employment; thus, the respondent/landlord could not be
denied right to earn his livelihood by establishing his independent
business even at the age of 54 years; (vi) that it is not as if the
respondent/landlord had concealed his other shops; in the petition for
eviction ifself, the respondent/landlord had pleaded that he was the
owner of properties No.5385, 5386, 5387, 5393 and 5394 in New
Market, Sadar Bazar, Delhi comprising of total 104 shops and all these
shops have been occupied by various tenants who were in occupation
since long; (vii) that the respondent/landlord had also annexed the list of
all the tenants who were occupying different portions of the properties
under the ownership of the respondent/landlord; (viii) that in the
aforesaid list none of the shops was shown to be lying vacant or unused;
(ix) that the respondent/landlord had also disclosed the amount of rent
received from the tenants in each of the shops; (x) that on the other hand,
the petitioner/tenant had merely made vague averments that some of the
shops were lying vacant or unused without giving the specific number or
the details of the shops which according to the petitioner/tenant were
lying vacant; (xi) that the petitioner/tenant had not even filed a site plan
to contradict the site plan of the properties filed by the
respondent/landlord; (xii) that such averments of the petitioner/tenant
remained mere bald averments without any substance and on the basis
thereof leave to defend could not be granted; (xiii) that the
petitioner/tenant had thus failed to prove the availability of alternative
RC. Rev. No.451/2016 Page 7 of 12
suitable accommodation for the bona fide requirement of the
respondent/landlord.
18. The dealing by the learned ARC of each of the pleas of the
petitioner/tenant in the application for leave to defend is based on cogent
reasons and material on record and the counsel for the petitioner/tenant
has also not contradicted any of the same. The inferences drawn from the
said reasoning are also in accordance with law. Once this Court, while
exercising jurisdiction under Section 25-B(8) of the Act finds so, in my
view, the powers under Section 25-B(8) cannot be converted into an
appeal. All that has to be seen is that the conclusions drawn by the ARC
are based on record, are supported by cogent reasons and are not such
which could not have been drawn at all in the facts of the case. Once it
is so, the order of the ARC would be according to law and would not be
interfered by this Court in exercise of powers under Section 25-B(8) of
the Act which are distinct from appellate powers and this Court cannot
substitute its own opinion. Reference in this regard can be made to the
judgment of the Constitution Bench of the Supreme Court in Hindustan
Petroleum Corporation Limited Vs. Dilbahar Singh (2014) 9 SCC 78
19. In view of the aforesaid, none of the arguments today raised by the
counsel for the petitioner/tenant has any merit or is such which defeats
the reasoning given by the ARC.
20. As far as the contention of the counsel for the petitioner/tenant,
that the sister of the respondent/landlord has since been claiming title in
the property and was not privy to the decree under which the
RC. Rev. No.451/2016 Page 8 of 12
respondent/landlord has become the owner of the shop in the tenancy of
the petitioner/tenant and that the petitioner/tenant is now in the process
of getting documents in this regard, is concerned, all that can be
observed is that such a claim raised by any of the siblings of the
respondent/landlord would not take away from the fact of the
respondent/landlord being owner of the property within the meaning of
Section 14(1)(e) of the Act. Qua the Delhi Rent Control Act, it has been
held that even a co-owner is entitled to maintain a petition for eviction of
the tenant. Reference can be made to Kanta Goel Vs. B.P. Pathak
(1977) 2 SCC 814, Pal Singh Vs. Sunder Singh (1989) 1 SCC 444, as
well as to Dhannalal Vs. Kalawatibai (2002) 6 SCC 16, Indian
Umbrella Manufacturing Co. Vs. Bhagabandei Agarwalla (2004) 3
SCC 178 and Mohinder Prasad Jain Vs. Manohar Lal Jain (2006) 2
SCC 724.
21. Insofar as the judgment relied upon by the counsel for the
petitioner/tenant is concerned, the Supreme Court in the facts of that case
found the pleas contained in the application for leave to defend to be
such which required trial. However, as aforesaid, it is not so in the
present case. In the case before the Supreme Court, the tenant had not
even attorned to the person who had filed the petition for eviction and
there was no relationship of landlord and tenant. However, in the
present case, there is a decree of a Court of competent jurisdiction under
which the respondent/landlord is the absolute owner of the shop in the
tenancy of the petitioner/tenant and the petitioner/tenant has been paying
rent to the respondent/landlord and signing the counterfoils of the rent
RC. Rev. No.451/2016 Page 9 of 12
receipt. 22. I may in this regard also mention that the decree
under which the respondent/landlord has become owner is of 20th
January, 1977 and it is not as if the respondent/landlord immediately
after the said decree filed the petition for eviction of the
petitioner/tenant. The petition for eviction has been filed after 38 years
in the year 2015 which also establishes the bona fides of the
respondent/landlord.
23. There is thus no merit in the petition, which is dismissed.
24. Though ordinarily this Court while dismissing a petition by a
tenant under Section 25-B(8) would not issue a direction to the tenant to
vacate the premises and the respondent/landlord is to execute order of
eviction but the petitioner/tenant in the present case having been found to
have interdicted with the process of execution by misrepresenting to the
respondent/landlord that this Court had stayed the execution of the order
of eviction, the petitioner/tenant is directed to deliver vacant, peaceful,
physical possession.
25. The counsel for the petitioner/tenant at this stage again states that
he will file an affidavit that he did not inform that there was a stay of
execution.
26. Though I was not intending to institute further enquiry into the
same but if the counsel for the petitioner/tenant desires to file affidavit, a
separate file of contempt will have to be constituted and in which
affidavit can be filed. In fact, Mr. T.S. Ahuja, Advocate for the
respondent/landlord states that Mr. Rohit Malik, also the Advocate for
the petitioner/tenant and today present in the Court, was present at the
RC. Rev. No.451/2016 Page 10 of 12
site and threatened the Bailiff.
27. The conduct of all the persons concerned needs to be enquired
into.
28. At this stage, the petitioner/tenant Mr. Vijay Kumar as identified
by his Advocate states that he be given time till 31 st December, 2017 to
hand over vacant, peaceful, physical possession of the shop to the
respondent/landlord. He also states that he is willing to give an
undertaking to the Court to the said effect, after understanding the
consequences of breach of undertaking given to the Court. He further
states that though the respondent/landlord had filed the petition for
eviction against himself and his brother Mr. Varinder Kumar but he has
in this petition not impleaded his brother Mr. Varinder Kumar as a party
because Mr. Varinder Kumar does not claim any rights in the shop and
he himself is the exclusive tenant in possession and control of the shop.
He also states that there are no disputes between him and his brother Mr.
Varinder Kumar and he is authorised to make a statement on behalf of
his brother Mr. Varinder Kumar that his brother Mr. Varinder Kumar
does not claim any rights in the shop and will not institute any
proceeding claiming rights in the shop.
29. The counsel for the respondent/landlord has left it to this Court to
deal with the said request.
30. Since the counsel for the petitioner/tenant has shown remorse for
the actions, it is deemed appropriate to grant time as sought till 31 st
December, 2017 to vacate the shop.
31. The petitioner/tenant Mr. Vijay Kumar undertakes to this Court:
RC. Rev. No.451/2016 Page 11 of 12
(i) to hand over vacant peaceful physical possession of the
premises in his tenancy / possession to the respondent/landlord on
or before 31st December, 2017;
(ii) to, till the date of vacation of the premises, pay rent of
Rs.150/- per month to the respondent/landlord month by month in
advance for each month by the 10th day of each succeeding
English Calendar month;
(iii) to clear the electricity and water dues of the premises till the
date of occupation thereof, before leaving the premises; and,
(iv) to hereinafter not induct any other person into possession of
the premises and to not damage the premises.
32. The aforesaid undertakings of the petitioner/tenant are accepted
and he is ordered to be bound therewith and he has been explained the
consequences of breach of undertaking given to this Court.
33. Resultantly, need to initiate any fresh proceeding to enquire any
misrepresentation qua order is also not felt.
34. While dismissing the petition it is ordered that subject to the
petitioner/tenant complying with all his undertakings aforesaid, the
execution of order is deferred till 31st December, 2017. However, if the
petitioner/tenant is in breach of his undertaking, the respondent/landlord
despite taking action therefor shall also be entitled to execute the order
of eviction.
35. The date of 13th October, 2017 is cancelled.
RAJIV SAHAI ENDLAW, J.
JULY 06, 2017/„bs‟..
RC. Rev. No.451/2016 Page 12 of 12