Delhi High Court
Sh. Parvinder Singh Bagga & Ors. vs Sh. Narender Dang & Anr. on 2 December, 2013
Author: Manmohan Singh
Bench: Manmohan Singh
.* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: December 02, 2013
+ CM(M) 1238/2013
SH PARVINDER SINGH BAGGA & ORS ..... Petitioners
Through Mr.Abhishek Gautam, Adv. with
Ms.Monika Singh, Adv.
versus
SH NARENDER DANG & ANR ..... Respondents
Through Mr.Rajat Aneja, Adv. with Ms.Swati
Gupta, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The petitioners have impugned the order dated 3 rd August, 2013 whereby their application under Order 1 Rule 10 CPC was dismissed. The facts of the case are that one Sh.Narender Dang, respondent No.1 herein, filed an eviction petition, being E-276/2013, against Amolak Singh. During the pendency of the eviction proceedings, an application under Order 1 Rule 10 CPC was filed by the petitioners.
2. It was stated in the application that in the said eviction petition, the petitioner in collusion with the respondent Sh. Amolak Singh has filed this eviction petition. One Sh. Amar Singh Bagga was the tenant in the suit property under M/s Sethani Indermani Jatia Charitable Trust Khurja, the owner of the suit property. Sh. Amar Singh Bagga died on 24.02.1881 leaving behind the following legal heirs:-
i) Sh. Amolak Raj Singh Bagga-son (respondent)
CM (M) No.1238/2013 Page 1 of 4
ii) Mrs. Iqbal Kaur-widow
iii) Smt. Manmohan Kaur- daughter
iv) Sh. Parvinder Singh Bagga-son
v) Mrs. Chanchal Kaur- daughter
vi) Smt. Kanwaljit Kaur-daughter
vii) Smt. Har Sharan Kaur-daughter
3. It was further submitted that after the demise of Sh. Amar Singh Bagga the suit property was purchased by the present petitioner. It was further submitted that after the demise of Sh. Amar Singh Bagga, the Legal Heirs as mentioned in the present application have inherited the suit property by inheritance of law and who are the necessary and proper party to the present petition. The petitioner has deliberately not impleaded and included the names of the legal heirs of the deceased Sh. Amar Singh Bagga except Amolak Singh.
4. The case of the respondent No.1 before the learned Trial Court was that Amolak Singh was carrying on the business from the suit property and as such, the other legal heirs had got nothing to do with the suit property. The contention of the learned counsel for the respondent No.1 is that the eviction petition filed by the respondent No.1 was very much maintainable before the learned Trial Court. His submission is that the application has been filed by the petitioners in order to delay the eviction proceedings pending before the learned Trial Court. He has relied upon various judgments in support of his submissions.
5. In the impugned order dated 3rd August, 2013 the learned ACJ observed that the perusal of the record revealed that the petition was filed on 18th August, 2010 and the application under Order 1 Rule 10 CPC was filed on 18th February, 2012, if the application were in the occupation of the CM (M) No.1238/2013 Page 2 of 4 tenanted premises they should have moved the application at the time when application for leave to defend was filed.
6. In the case of Kanji Manji Vs. Trustees of the Port of Bombay, AIR 1963 SC 468, it was observed by Hon'ble Supreme Court that where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the suit against one of the joint tenant not impleading rest of the joint tenants was good and the suit cannot be dismissed on this ground. The plea of the petitioner that the petitioner was separately required to be served personally is therefore not tenable. The petitioner was not a tenant in common. He had inherited a joint tenancy along with his brother and other legal heirs.
7. In the case of Rajender Kumar Sharma & Ors. Vs. Leelawati & Ors., 155 (2008) DLT 383, it was observed by this Court in Para No. 14 that it is well settled law that "when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are living in the property or not. It is sufficient for the landlord to implead only those persons who are living in the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those LRs who are in occupation of the property is sufficient for the purpose of filing Eviction Petition. An eviction petition against one of the joint tenants is an Eviction Petition against all the joint tenants and all joint tenants are bound by order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.
CM (M) No.1238/2013 Page 3 of 48. Having heard the learned counsel for the parties, it is not in dispute that the eviction petition was filed on 18th August, 2010. The application under Order 1 Rule 10 CPC was filed on 18th February, 2012. I agree with the learned Trial Court that in case the petitioners were in occupation of the suit property, they ought to have filed an application for leave to defend or even the present application under Order 1 Rule 10 CPC. It appears to the Court that in view of that the learned Trial Court under Order 1 Rule 10 CPC has rightly held that the application filed by the petitioner was not maintainable. Thus, the impugned order does not call for interference as it appears that said application has been filed in order to drag the hearing of the application for leave to defend which was fixed on 7 th September, 2013. Therefore, the present petition is without any merit. The same is dismissed.
(MANMOHAN SINGH) JUDGE DECEMBER 02, 2013 CM (M) No.1238/2013 Page 4 of 4