Delhi District Court
Shri Om Prakash vs Smt. Kamla Devi on 25 August, 2022
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCT NO. 89/2018
1. Shri OM PRAKASH
S/o LATE Shri B.L. KUMAR
R/o 348, KATRA SHEIKH RANJHA
HAUZ QAZI
DELHI110 006
2. Shri SANJAY KUMAR
S/o LATE Shri B.L. KUMAR
R/o 348, KATRA SHEIKH RANJHA
HAUZ QAZI
DELHI110 006
....APPELLANTS
VERSUS
1. Smt. KAMLA DEVI
W/o LATE Shri BABLU
1445, FIRST FLOOR
BAZAR GULIYAN, NEAR JAMA MASJID
DARIBA KALAN, DELHI110 006
2. Smt. SARITA
W/o LATE SHRI HARSH KUMAR
R/o 348, KATRA SHEIKH RANJHA
HAUZ QAZI
DELHI110 006
3. Shri ANSHIT
S/o LATE Shri HARSH KUMAR
R/o 348, KATRA SHEIKH RANJHA
HAUZ QAZI
DELHI110 006
RCT No. 89/2018 Page 1 of 12 pages
Om Prakash vs Kamla Devi Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.08.25
14:54:02 +0530
4. Smt. MANSE
(MARRIED DAUGHTER OF LATE Shri HARSH KUMAR)
R/o 348, KATRA SHEIKH RANJHA
HAUZ QAZI
DELHI110 006
......RESPONDENTS
Date of filing : 26.07.2018
First date before this court : 04.06.2019
Arguments concluded on : 18.08.2022
Date of Decision : 25.08.2022
APPEARANCE : Shri Gaurav Shankar, counsel for appellants
Shri Rohit Kumar, counsel for respondent no. 1
JUDGMENT
1. By way of this appeal under Section 38 of the Delhi Rent Control Act, the appellants assailed order dated 07.06.2018 of the learned Additional Rent Controller whereby their impleadment application under Order I Rule 10 CPC was dismissed. Upon service of notice, the landlord respondent no. 1 appeared through counsel to oppose the appeal. But on behalf of proforma respondents, who are LRs of the now deceased eviction respondent, opted not to appear. During pendency of this appeal, the appellant no. 1 Shri Om Prakash passed away and application under Order XXII Rule 3 CPC to substitute the appellant no. 1 with his legal representatives was filed, but the same was subsequently withdrawn on 29.04.2022. Under these circumstances, I heard learned counsel for both sides and examined the trial court record.
RCT No. 89/2018 Page 2 of 12 pages
Om Prakash vs Kamla Devi Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.08.25
14:54:11 +0530
2. Briefly stated, the circumstances leading to the present appeal are as follows.
2.1 The present respondent no. 1 claiming herself to be the landlord of shop no. 1442, Ward IV, Bazar Gulian, Dariba Kalan, Delhi (hereinafter referred to as 'the subject property') filed eviction petition against tenant Shri Harsh Kumar, pleading that the subject property was purchased by her husband during his lifetime in the year 1993 and at that time the subject property was already occupied by the tenant Smt. Darshan Kumari; that after death of Smt. Darshan Kumari, the respondent Shri Harsh Kumar has been occupying the subject property and is in exclusive possession thereof, but is in arrears of rent; that her husband could not settle their three sons in any employment and now they are in the need of space to expand their business, so the tenant Shri Harsh Kumar is liable to vacate the subject property. Hence, the present eviction petition under Section 14(1)(e) of the Act.
2.2 During pendency of the eviction petition, the respondent Shri Harsh Kumar passed away and was substituted with his widow, one son and one daughter.
2.3 During pendency of the said eviction petition, an application under Order I Rule 10 CPC was filed by the now deceased appellant no. 1 Shri Om Prakash and the appellant no. 2 RCT No. 89/2018 Page 3 of 12 pages Om Prakash vs Kamla Devi Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.08.25 14:54:22 +0530 Shri Sanjay Kumar, pleading that the subject property was originally let out to their grandfather Shri Roop Chand and after his demise, the tenancy devolved upon his son Shri B.L. Kumar (father of the applicants) as well as Shri Harsh Kumar (brother of the applicants); that on death of Shri B.L. Kumar, the tenancy in respect of the subject property devolved upon his wife Smt. Darshan Kumari and sons namely Shri Harsh Kumar and the applicants; that on death of Smt. Darshan Kumari, her tenancy rights in the subject property devolved upon her three sons, namely Shri Harsh Kumar and the two applicants; that the applicants are in actual physical possession of the subject property as cotenants with Shri Harsh Kumar and they have been depositing rent under Section 27 of the Act; that on being informed about institution of the eviction proceedings, the applicants consulted their counsel and were advised to seek their impleadment as corespondents in the proceedings; that the applicants are necessary parties to the eviction proceedings.
2.4 In reply to the application under Order I Rule 10 CPC, the present respondent no. 1 landlord pleaded that the applicants have no locus standi as they are not tenants in the subject property; that tenancy rights ultimately devolved upon only Shri Harsh Kumar since the remaining legal representatives of Shri B.L. Kumar had surrendered their rights and now more than 20 years after death of Shri B.L. Kumar, the applicants cannot claim themselves to have inherited the tenancy; that shop in the subject property was being run by Shri Harsh Kumar only and it is Shri Harsh Kumar only who had RCT No. 89/2018 Page 4 of 12 pages Om Prakash vs Kamla Devi Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.08.25 14:54:33 +0530 been paying rent; that the applicants have sought impleadment so belatedly only to delay the eviction proceedings; that after death of Shri Harsh Kumar, his son Anshit Arora had filed an application before the Chief Controller Explosives for transfer of explosives license in his name, which was rejected and even the appeal was dismissed, which clearly shows that the applicants had surrendered their tenancy rights in the subject property. Therefore, the application under Order I Rule 10 CPC is liable to be dismissed according to the present respondent no. 1.
2.5 After hearing both sides, the learned Additional Rent Controller passed the impugned order thereby dismissing the application under Order I Rule 10 CPC on the ground that it is the sole prerogative of petitioner as to against whom he wants a particular relief, so the court cannot compel him in that regard; that the applicants are neither necessary nor proper parties to the eviction petition; and that Section 25 of the Act clearly provides non applicability of eviction order against any person holding independent title to the premises.
3. Hence, the present appeal.
3.1 During final arguments, learned counsel for appellants reiterated the above mentioned factual matrix as set up by both sides and took me through documents on trial court record in support of his contention that it is not a case of surrender of tenancy by the RCT No. 89/2018 Page 5 of 12 pages Om Prakash vs Kamla Devi Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.08.25 14:54:44 +0530 appellants. It was also argued that the delay in seeking impleadment could always be compensated in terms of cost and even otherwise the delay was clearly explainable since it is only in December 2015 that the present respondent no. 1 landlord denied during proceedings under Section 27 of the Act, status of the appellants as joint tenants, which led the appellants to consider safeguarding their interest.
3.2 On the other hand, learned counsel for respondent no. 1 argued that implied surrender of tenancy is a matter of conduct of the parties and in the present case the signboard on the shop being run in the subject property is in the name of Shri Harsh Kumar and even the explosives license was only in the name of Shri Harsh Kumar for running the shop in the subject property. Learned counsel for respondent no. 1 also partly read the reply to eviction notice in which the tenant had taken a clear stand that tenancy had devolved upon Smt. Darshan Kumari and Shri Harsh Kumar, which clearly showed implied surrender of tenancy by the appellants. Learned counsel for respondent no. 1 placed reliance on the judgments in the cases of Parvinder Singh Bagga vs Narender Dang, 2013 SCC Online Del 4847; Kanji Manji vs Trustee of the Port of Bombay, AIR 1963 SC 468; Suresh Kumar Kohli vs Rakesh Jain, (2018) 6 SCC 708;
Rajinder Kumar Sharma vs Leelawati, 2008(106) DRJ 471; Prakashwati Bali vs Manish Dewan, 1996 (37) DRJ 556; and Pushpa Rani vs Bhagwanti Devi, 1994 Supp (3) SCC 76.
RCT No. 89/2018 Page 6 of 12 pages
Om Prakash vs Kamla Devi Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.08.25
14:54:56 +0530
3.3 In rebuttal arguments, learned counsel for appellants
argued that merely because one of the brothers applied for crackers license, does not mean that the remaining brothers have surrendered the business.
4. The legal proposition laid down in the judicial precedents cited on behalf of respondent no. 1 is undisputed that where the tenancy is a joint tenancy, notice to one of the joint tenants is sufficient and eviction proceedings against one of the joint tenants without impleading the remaining joint tenants are validly instituted proceedings. But that does not mean that the excluded joint tenants have no right to seek impleadment, especially where the joint tenancy is disputed by the landlord, as happened in the present case by way of stand taken by the present respondent no. 1 in proceedings under Section 27 of the Act (order dated 07.12.2015 passed by the learned Additional Rent Controller in DR No. 522/2015).
5. As regards the observations of the learned Additional Rent Controller in the impugned order that it is the sole prerogative of the petitioner to decide as to against whom he claims relief, the position needs to be elaborated. The doctrine that plaintiff is dominus litis operates only till the stage of institution of the proceedings. Once the proceedings are instituted, the test according to Order I Rule 10 CPC is to ascertain as to whether the stranger seeking impleadment is necessary and/or proper party to the suit.
RCT No. 89/2018 Page 7 of 12 pages
Om Prakash vs Kamla Devi Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.08.25
14:55:05 +0530
5.1 The general rule in regard to impleadment of parties is
that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party to the lis has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to an exception laid down under Order I Rule 10(2) CPC, whereby a Court may at any stage of the proceedings, either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party:
(a) any person who ought to have been joined as a plaintiff or defendant but not so added; or (b) any person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit. Thus, what is to be seen is as to whether the person sought to be added as a party is necessary and proper party for the particular suit.
5.2 A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is RCT No. 89/2018 Page 8 of 12 pages Om Prakash vs Kamla Devi Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.08.25 14:55:15 +0530 not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. Merely the fact that a person is likely to secure a right/interest in the suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit.
5.3 The overall case set up by the appellants before the learned Additional Rent Controller being that they inherited the tenancy in respect of the subject property and are in occupation thereof, it cannot be said that they are not necessary party. The appellants, whatever be the worth of their rights, cannot be deprived of an opportunity to plead and establish their case, resisting the eviction proceedings.
6. As regards the contention of the respondent no. 1 that the appellants had impliedly surrendered tenancy in favour of their brother Shri Harsh Kumar, the trial court record shows the contrary.
6.1 In para 3 of quit notice dated 22.05.2012 addressed to Shri Harsh Kumar, it was stated that upon death of Smt. Darshan Kumari, he was occupying the shop premises claiming himself to be the sole legal heir of Smt. Darshan Kumari. In corresponding para of reply dated 06.06.2012, it was specifically stated on behalf of Shri Harsh Kumar that he had repeatedly told the present respondent no. 1 about Smt. Darshan Kumari having left behind three sons namely Shri Om Prakash, Shri Sanjay Kumar and Shri Harsh Kumar as well RCT No. 89/2018 Page 9 of 12 pages Om Prakash vs Kamla Devi Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.08.25 14:55:24 +0530 as one daughter Ms. Neelam; and that on demise of Smt. Darshan Kumari in 2005 as contractual tenant, the tenancy rights devolved upon her sons Shri Om Prakash, Shri Sanjay Kumar and Shri Harsh Kumar.
6.2 Despite having been specifically informed, as mentioned above, about the particulars of legal representatives of Smt. Darshan Kumari, the present respondent no. 1, for reasons known to her, filed the eviction petition against only Shri Harsh Kumar. In paras 37 of the written statement, the respondent Shri Harsh Kumar specifically pleaded that he is one of the joint tenants in the subject property as on death of his mother, her tenancy rights devolved upon her legal heirs including him.
6.3 Despite abovementioned specific and repeated stand that the appellants and Shri Harsh Kumar are joint tenants in the subject property, the present respondent no. 1 opted to take a plea in the rent deposit petition DR 522/2015 under Section 27 of the Act that the tenancy rights devolved solely upon Shri Harsh Kumar as the remaining legal heirs of Shri B.L. Kumar had surrendered their tenancy rights. It is under these circumstances that after order dated 07.12.2015 in DR 522/2015, the appellants realized the necessity to resist eviction by seeking their impleadment in the eviction proceedings.
RCT No. 89/2018 Page 10 of 12 pages
Om Prakash vs Kamla Devi Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.08.25
14:55:33 +0530
6.4 The appellants cannot be deprived of an opportunity to
rebut the claim of the present respondent no. 1 that signboard outside the subject property and business being run from there is in the name of Shri Harsh Kumar only and the explosives license on the subject property was issued only in the name of Shri Harsh Kumar.
6.5 Therefore, I am unable to find it a case of implied surrender of tenancy by the appellants.
7. So far as delay in filing the application under Order I Rule 10 CPC, it is trite that such applications cannot be trashed only on the ground of delay. It is the cardinal principle of justice that disputes should be decided on merits and not on defaults or delays, especially where the defaulting party can be burdened with cost. But in this case, as mentioned above it is on 07.12.2015 that in DR 522/2015 objections to the rent deposit petition were filed by the present respondent no. 1, pleading that the present appellants had surrendered their tenancy rights, due to which the appellants considered it necessary to move application under Order I Rule 10 CPC and they filed the same on 06.06.2016. As per trial court record, between 07.12.2015 (the date in DR 522/2015) and 06.06.2016 (the date in the eviction proceedings) there was only one date before the trial court, which was on 29.06.2016 and on that date the present respondent no. 1 took adjournment which was allowed subject to cost. Therefore, I am unable to find it even a case of delay in moving application under Order I Rule 10 CPC.
RCT No. 89/2018 Page 11 of 12 pages
Om Prakash vs Kamla Devi Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.08.25
14:55:43 +0530
8. In view of above discussion, I am unable to uphold the impugned order, so the same is set aside and the appeal is allowed, thereby directing impleadment of the surviving appellant no. 2 as a corespondent in the eviction proceedings.
9. Trial court record be sent back alongwith copy of this judgment and appeal file be consigned to records leaving the parties bear their own costs.Digitally signed by GIRISH KATHPALIA
GIRISH Date: Announced in the open court on KATHPALIA 2022.08.25 14:55:51 this 25th day of August, 2022 +0530 (GIRISH KATHPALIA) Principal District & Sessions Judge (HQs) Rent Control Tribunal (Central) Tis Hazari Courts, Delhi RCT No. 89/2018 Page 12 of 12 pages Om Prakash vs Kamla Devi