Delhi District Court
Smt. Pushpa Devi vs Sh. Jagdeep Singh on 18 May, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No.21/09
ID No.: 02403C133672009
1. Smt. Pushpa Devi
Wd/o Late Sh. Ishwar Dass Malhotra
2. Sh. Ravi Malhotra
3. Sh. Satish Chand Malhotra
4. Sh. Chander Mohan Malhotra
5. Sh. Shakti Malhotra
6. Sh. Sanjay Kumar Malhotra
All sons of Late Sh. Ishwar Dass Malhotra
Shop in premises no. C9, Malviya Nagar
New Delhi
7. M/s. Malhotra Tailors
C9, Malviya Nagar, New Delhi17 ................... Appellants
Versus
1. Sh. Jagdeep Singh
S/o Sh. Devinder Singh
R/o C152, Sarvodaya Enclave
ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 1 of 10
New Delhi.
2. Smt. Guddo
D/o Sh. Ishwar Dass Malhotra
R/o Nehru Vihar, Timarpur
Delhi ............... Respondents
Instituted on: 20.05.2009
Judgment reserved on: 18.05.2011
Judgment pronounced on :18.05.2011
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as "the DRC Act") is directed against the judgment dated 30.03.2009 passed by Sh. Sandeep Yadav, Rent Controller, South in Eviction Petition no. E891/08 (1989) filed by the respondent seeking an order of eviction against the appellants on ground under section 14 (1) (k) of DRC.
2. Vide the impugned judgment, the Ld. Rent Controller upheld the contentions of the respondent and concluded that there was a breach of the terms of perpetual lease respecting the land beneath the suit property on account of user of the tenanted premises for commercial purposes and, thus, directed the appellants to comply with the conditions imposed by the ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 2 of 10 superior lessor within the period specified and for such purposes, further directed an inquiry to be undertaken.
3. The original petition was filed by the respondent on 20.03.1989 alleging, inter alia, that the tenanted premises described as one room as shown in the plan attached, forming part of property no. C9, Malviya Nagar, New Delhi had been let out for residential purposes by the original land lady Smt. Jamuna Devi in favour of Ishwar Dass Malhotra, the predecessorininterest of the appellants. It was alleged that the property had been purchased from the original landlady Jamuna Devi by the respondent and thereafter the tenant had atorned in his favour. It was stated that the original tenant Ishwar Dass Malhotra had died on 24.11.1983 whereafter the appellant no. 1 had inherited the tenancy rights. Nonetheless, the respondent impleaded the other legal heirs of Ishwar Dass Malhotra as well, showing them as respondents no. 2 to 7 in the array of parties.
4. The pleadings in the petition alleged that the tenanted premises was being misused for commercial purposes in the name and style of M/s. Malhotra Traders. It appears that the said description M/s. Malhotra Traders as indicated in Part 18(a) of the petition was inadvertent clerical error in that M/s. Malhotra Tailors was impleaded as respondent no. 8. It has been the case ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 3 of 10 of both sides throughout that the premises are used for business in the name and style of M/s. Malhotra Tailors and not M/s. Malhotra Traders.
5. The eviction petition referred to notices received from the superior lessor, that is the Land & Development office of the Government of India, taking exception to the breach of the terms and conditions of the perpetual lease. The petition further alleged that, despite notice dated 10.01.1989, the respondents had not stopped the misuser of the premises contrary to the terms of the lease deed, and in this view, a cause of action was claimed and the petition sought an order of eviction under section 14 (1) (k) DRC Act.
6. The eviction petition was resisted by respondents no. 1 to 6 and 8 filing a joint written statement dated 15.10.1990. It appears that the respondent no. 7 did not contest the proceedings.
7. In the written statement filed by the contesting respondents, it was, inter alia, claimed that the premises in question was actually a shop which had been let out by the original landlady for commercial purposes only. The relationship of landlord and tenant between the parties, however, was admitted. The contesting respondents questioned the description of the tenanted premises claiming that the same included one covered ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 4 of 10 veranda with a wooden door opening at the main road, one main shop beyond the open veranda having a shutter in between and tin shed in the back portion.
8. The contesting respondents denied having been served with any notice dated 10.01.1989 as claimed by the respondent. They denied that there was any question of any objections being raised to the premises being used for commercial purposes for the reason, the purpose of letting was not residential but commercial. They also denied that the user of the premises was in violation of the terms and conditions of the lease deed and thus contested the claim of the respondent that the use of the premises for commercial purposes amounted to misuser requiring to be stopped or, in default, eviction order to be suffered on that account.
9. The eviction petition was tried by the Rent Controller. In the course of the trial, the respondent examined an official from the office of L&DO who appeared as AW1. He also examined Devender Singh (father of the petitioner) to prove his case. On the other hand, appellant no. 5 S.K. Malhotra was examined as RW1.
10.The impugned judgment has been challenged through the appeal at hand. The appeal was filed on 20.05.2009 and had ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 5 of 10 reached the stage of arguments on 15.10.2009 in terms of order dated 24.24.07.2009 of my Ld. Predecessor. Thereafter, it remained pending, being adjourned for one reason or the other. On 06.04.2011, adjournment was requested on behalf of the appellant on the ground that the counsel was not readily available. The matter was adjourned for today with clear directions that this was the last and final opportunity given for the purpose. Today again, the counsel for the appellants has not appeared. The request for adjournment on the ground of pre occupation of the counsel has been declined.
11.I have heard arguments. I have gone through the record.
12.The relationship of landlord and tenant between the parties is not disputed. It was admitted even in the pleadings and if there was any doubt left, an admission in this regard came during the statement of RW1.
13.A lot of argument came to be generated during the hearing of the matter before the Rent Controller about the tenancy rights having devolved on the legal heirs of Ishwar Dass Malhotra, other than appellant no. 1. In my view, the argument does not lead the appellants anywhere for the simple reason that the other legal heirs have been impleaded by the respondent in the eviction proceedings. Even otherwise, the original tenant ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 6 of 10 Ishwar Dass Malhotra having died, the tenancy rights devolved, if they did, on the appellants collectively. They would, therefore, take the status of tenantsincommon. Service of notice on one of them is sufficient compliance for the purposes of prosecuting the eviction proceedings under DRC Act.
14.The appellants had contested the case through the written statement, inter alia, on the ground of the tenancy portion having not been correctly shown. The respondent would, however, insist that the site plan Ex. AW2/1 filed with the petition correctly depicted the tenancy premises. The site plan was proved during the statement of AW2. Except for bald suggestions that the plan was not correct, nothing further was brought out during his crossexamination. If the site plan did not duly delineate the tenancy premises correctly, the appellants had ample opportunity to come with their own site plan to show the tenancy premises correctly. They never cared to take any such steps. Even during the statement of RW1, there was no effort made to bring on record any proof so as to show that the eviction petition had been filed in respect of premises not correctly described or for partial tenancy as has been the objection taken in the pleadings. The argument, therefore, does not help the appellants in any manner.
ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 7 of 10
15.The appellants contested the case mainly with the objective of bringing on record the fact that the tenancy created by the original landlady was for commercial purposes. Evidence was led by both sides on the purpose of letting. This actually was not necessary in proceedings arising out of a petition under section 14 (1) (k) of DRC Act.
16.The evidence based on lease deed Ex. AW1/X1, duly proved during the evidence of AW1, an official from the office of L&DO, unmistakeably shows that the premises in question cannot be used for any purposes other than residential. Even if it were to be assumed that the original landlady had let out the premises to the predecessorininterest of the appellants for commercial purposes, the same cannot come in the way of the respondents in prosecuting the petition for, and seeking, an eviction order under section 14 (1) (k) of DRC Act.
17.In cases of this nature there cannot be a plea of estoppal. This was the law laid down by Hon'ble High Court of Delhi in Ram Rattan Bhanot Vs. Faquir Chand ILR (1972) 1 Delhi 408. It was held in that case that the landlord was not estopped from evicting the tenant, even if he had agreed with the tenant, contrary to section 14 (1) (k), that the latter may use the premises in breach of the conditions of the lease of the land ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 8 of 10 granted to the landlord by the public authority. This view was confirmed by Hon'ble Supreme Court of India in Faquir Chand Vs. Ram Rattan Bhanot (1973) 1 SCC 572. Similar view has been taken in Munshi Ram Vs. Union of India (2000) 7 SCC 22.
18.The evidence of AW1 and AW2 collectively shows that the perpetual lease in respect of the land beneath the superstructure obliges the occupants to use it only for residential purposes. The user of the tenanted premises for nonresidential purposes, even if permitted by the landlord, is in breach of the terms and conditions of the said perpetual lease and, therefore, the appellants cannot harp on the purpose of tenancy as originally created.
19.During the course of hearing, it was suggested that under the new master plan, the landlord can seek modification of the lease deed so as to allow change of user. There may be a possibility of such change of user being applied for and obtained. But then, the landlord is under no legal obligation to take any such steps, particularly when he has been receiving notices objecting to the breach and in terms of said notices, he faces the prospect of suffering misuse charges or even the cancellation of the perpetual lease deed. In taking this view, reliance may be ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 9 of 10 placed on Prem Saroop Chopra Vs. Som Nath Bhatia and Another [27 (1985) DLT 380].
20.In above facts and circumstances, the appeal is found devoid of merits and is dismissed.
21.The parties shall appear before the Ld. Rent Controller for further proceedings under section 14 (11) of DRC Act, as already taken out by the said forum in terms of the operative part of the impugned judgment.
22. The trial court record be returned with copy of this judgment.
23.Appeal file be consigned to the Record Room. Announced in open Court today on this 18th day of May, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
ARCT No. 21/09 Pushpa Devi & ors. Vs. Jagdeep Singh & anr. 10 of 10