Delhi District Court
Smt. Suman Verma vs Shri Balbir Singh Kohli on 15 May, 2014
IN THE COURT OF Ms. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE/ ARCT (WEST) : DELHI.
RCT 16/2013
Unique Case ID No. 02401C00F95F2013
Smt. Suman Verma,
Wife of Late Raj Kumar Verma,
Resident of B93, 1st Floor, Ganesh Nagar,
P.O. Tilak Nagar, New Delhi 110 018 ..... Appellant
Versus
Shri Balbir Singh Kohli,
Son of Late Shri Lakhmir Singh Kohli,
Resident of House No. 2596, 2nd Floor,
Guru Teg Bahadur Nagar, Hudson Lane, Kingsway Camp,
New Delhi 110 029 ..... Respondent
Date of Institution : 25.02.2013
Date of reserving the judgment : 21.10.2013
Date of pronouncement of : 25.04.2014
Judgment
JUDGMENT
This Judgment shall dispose off an appeal instituted on 25.02.2013 by the appellant Smt. Suman Verma against the landlord Shri Balbir Singh Kohli whereby the appellant has assailed the impugned order dated 24.01.2013 of the Ld. CCJ cum ARC (West) on an application under Section 151 of the CPC dated 23.07.2012 ARCT16/2013 Page No.1of25 whereby the eviction of the respondent to the eviction petition No. 11/09 was ordered in terms of Section 14(1)(b) of the Delhi Rent Control Act, 1958 as amended. The respondents to eviction petition No. 11/09 arrayed as respondent Smt. Rakesh wife of late Shri Thakur Dass, Suman Verma wife of Late Shri Raj Verma Chander Kanta wife of Late Krishan Lal, Jattan Kumar Chouhan S/o late Shri Iqbal Kumar Chouhan, Satish Kumar S/o not known and Chander Kala wife of late Shri Chander Bhan the tenanted premises in the instant case are shop No. 5 in premises No. 28/1, Double Stories, Ashok Nagar, Jail Road, New Delhi - 110 018. As per the averments in clause 4 of the eviction petition the premises were given for non residential purposes.
As per averments made in the eviction petition the premises were given to the single tenant Shri Krishan Lal who died in the year 1986 and after his death the tenancy was inherited by Smt. Rakesh the respondent No. 1.
It has however been stated in the eviction petition that after the death of Shri Krishan Lal S/o Late Shri Chander Bhan in the year 1986, Thakur Das inherited the tenancy and after his death Mrs. Rakesh wife of Late Shri Thakur Das is the tenant in the premises and she further sublet the premises to the sub tenants Suman Verma (respondent No. 2) Chander Kanta wife of Late Shri Krishan Lal ARCT16/2013 Page No.2of25 (respondent No. 3). Jatin kumar Chouhan and Chander Kala wife of Late Shri Chander Bhan without the consent of the petitioner. During the course of the proceedings before the Ld. CCJ cum ARC, the respondent Nos. 1, 5 and 6 i.e. Smt. Rakesh wife of Late Shri Thakur Das and Shri Satish Kumar and Smt. Chander Kala were proceeded exparte vide order dated 19.12.2006. Through the written statement that was filed by the respondent Nos. 2 and 3 i.e. Smt. Suman Verma wife of Late Shri Raj Verma and Smt. Chander Kanta wife of Late Shri Krishan Lal, it was submitted through para 3(b) thereof that "the premises was originally let out to Shri Krishan Lal and on his death the tenancy of the premises was changed in favour of his brother Shri Thakur Das that Shri Thakur Das died in 1996 and the tenancy of the premises devolved upon the legal heirs of the deceased Thakur Dass namely his widow Smt. Rakesh (respondent No. 1), his minor son and mother of the deceased Smt. Chander Kanta (respondent No. 3) that it was further submitted through the written statement paragraph 3(b) of respondent Nos. 2 and 3 that by virtue of the family arrangement Smt. Rakesh orally surrendered the tenancy rights on her behalf and on behalf of the minor son in the shop in favour of the mother of the deceased and this fact was brought to the notice of the landlady Smt. Prem Kaur on 17.01.1998 and also vide ARCT16/2013 Page No.3of25 reply dated 15.01.2001. It was further stated through the written statement of respondent Nos. 2 and 3 dated 13.04.2006 that Smt. Chander Kanta (respondent No. 3) was aged 75 years and was being assisted by her daughter Smt. Suman Verma (respondent No. 2), in running the business activity in the shop.
Vide paragraph 16 of the written statement in response to averments made in para 16 of the eviction petition, respondent Nos. 2 and 3 subsequently denied that the premises had been sub let to the persons named in the eviction petition or to any other person and reiterated that Smt. Chander Kanta (respondent No. 3) was a landlady of about 75 years and was being assisted by her daughter Smt. Suman Verma in running the STD/PCO Booth in the same and that Smt. Chander Kanta had employed Shri Jattan Kumar and Shri Satish Kumar for attending the photography work being run by her in the shop in addition to the business of STD/PCO booth to supplement her income and no right had been created in their favour in the premises. It was submitted through the said paragraph 16 of the written statement to the eviction petition that the premises continued to remain under the legal possession of Smt. Chander Kanta (respondent No. 3).
Respondent No. 4 to the eviction petition Mr. Jatin Kumar Chouhan vide his written statement submitted specifically that the suit ARCT16/2013 Page No.4of25 premises were in occupation and possession of Smt. Chander Kanta and he was only employed with her for attending to the photography work being granted by her in the shop with the assistance of her daughter Smt. Suman Verma in addition to the business of STD/PCO booth to supplement her income along with another person and that there was another person Satish Kumar also attending to the work but that he had left at the end of the year 2005.
Vide the application under Section 151 of the CPC dated 27.03.2012 filed before the Ld. ACJ/ARC (West) the petitioner placed reliance on the averments of the respondent Nos. 2 and 3 in para 3(b) of their written statement, paragraph 4 thereof and also on paras 2 and 3 of the reply of respondent No. 2 dated 17.01.1998 i.e. the reply of Smt. Suman Verma dated 17.01.1998 to the legal notice issued on behalf of the landlady vide which it had been claimed that the tenant Mr. Thakur Dass expired on 22.03.1996 leaving behind his wife and a minor daughter and that the said wife of late Shri Thakur Das without the consent of the landlady had abandoned the tenancy and illegally and unauthorisedly handed over the possession of the said shop to Smt. Suman (respondent No. 2) and that thus the respondent No. 2 was in illegal possession of the tenanted premises as a tress passer.
Vide the said legal notice Smt. Suman was called upon by ARCT16/2013 Page No.5of25 the landlady to hand over peacefully possession of the tenanted shop to the landlady.
Vide Ex. PW 1/R2 dated 17.01.1998 the reply on behalf of Smt. Suman (respondent No. 2 to the eviction petition and who is the present appellant before this Court), it was submitted by respondent No. 2 to the eviction petition as follows: "2. That the contents of this para of your notice are not denied that the brother of my client late Sh. Thakur Dass was tenant in the above shop and he died at Delhi on 24.3.96 and thereafter Smt. Chander Kanta become tenant in respect of the tenanted premises according to law being legal heir of late Sh. Thakur Dass. Wife of late Sh. Thakur Dass has surrendered her joint tenancy right in favour of Smt. Chander Kanta, therefore, my client has nothing to do with the same.
3. That the contents of this para of your notice are wrong and denied. It is denied that Sh. Thakur Dass on 22.3.96. It is also denied that the wife of Late Shri Thakur Dass without the consent of your client Smt. Prem Kaur) abondoned her tenancy illegally and unauthorisedly handed over possession of the shop to my client Smt. Suman. My client is not having any possession of the shop in question and has never claimed any right or title therein. Smt. Chander Kanta ARCT16/2013 Page No.6of25 is a tenant in the above shop who is having physical and exclusive possession of the tenanted shop."
Interalia, vide para 4 of the reply Ex. PW 1/R2 dated 17.01.1998 Smt. Suman claimed as follows: "4. That the contents of this para of your notices are wrong and denied. It is denied that my client is in illegal occupation of the shop and is a tress passer. It is denied that my client is running business therein. It is submitted that my client is not in possession of the shop in question in any manner and is not running any business therein. Smt. Chander Kanta is running STD business in the said shop and she is in physical and exclusive possession of the tenanted premises."
It is brought forth through the impugned order that Smt. Chander Kanta has already expired and had expired in the month of June/July 2012. During the course of submissions that were made before the Ld. CCJ cum ARC for consideration of the application under Section 151 of the CPC it is brought forth vide paragraph 2 of the said order that the respondent had opposed the submissions made on behalf of the landlady that after the death of Smt. Chander Kanta no other person could succeed the tenancy rights and that a eviction order be made in the case as Smt. Chander Kanta as per Ex. PW 1/R2 was ARCT16/2013 Page No.7of25 the sole tenant and that Smt. Chander Kanta was not a legal heir of the deceased tenant under Section 2(l) of the Delhi Rent Control Act, 1958, and that surrender of tenancy in favour of Smt. Chander Kanta amounted to subletting. A submission during the course of arguments before the Ld. CCJ cum ARC as brought forth through paragraph 2 of the impugned order indicates that it was submitted on behalf of the respondent that though Smt. Chander Kanta had expired, the other legal heirs had succeeded the tenancy in the capacity of tenants and no eviction order could be passed in the petition without trial.
Vide the impugned order the Ld. CCJ cum ARC has observe: "6. So far the eviction order under Section 14(1) (a) (c) (j) &
(k) of DRC Act are concerned, these grounds could not be proved. As such, the petitioner has proved the case under Section 14(1) (b) of DRC Act only. As such application of the petitioner under Section 151 CPC is allowed"
Vide paragraph 3 and 4 of the impugned order to the effect: "I have heard the arguments and perused the record. It is admitted case of the parties that the premises was let out to Sh. Kishan Lal by the mother of the petitioner on 25.06.1999, on the monthly rent of Rs.
ARCT16/2013 Page No.8of25 125/. After the demise of Sh. Kishan Lal, the premises was inherited by Sh. Thakur Dass and after his death by Smt. Rakesh and his minor son. As per the written statements of respondent no. 2 and 3, they have admitted all these facts and have alleged that Smt. Rakesh and her minor son surrendered the premises in favour of Smt. Chandra Kanta as per family settlement. It has not been explained by the respondents as to whether this surrender of tenancy was with the consent of the petitioner or not. In the absence of any such explanation, it may be considered that the premises was surrendered to Smt. Chandra Kanta without the written consent of the petitioner. As per Section 2 (l) of DRC Act, a tenancy may be succeeded by the spouse and dependent of the deceased tenant for a limited period and in case of surviving spouse, the tenancy may be succeeded only by the pouse and tenancy will be inherited by dependents only in the absence of surviving spouse of deceased tenant. Admittedly, Smt. Rakesh was the surviving spouse of deceased Shri Thakur Dass and she succeeded the tenancy. She surrendered the tenancy in view of Section 2 (l) of DRC Act. Smt. Chandra Kanta could have been considered as dependent of deceased tenant only in the of absence of Smt. Rakesh. In fact Smt. Chandra Kanta was not entitled to succeed tenancy of Sh. Thakur Dass, accordingly the surrender of premises by Smt. Rakesh ARCT16/2013 Page No.9of25 and her minor son to the respondent no. 3 amounts to subletting.
4. The other respondents have not contested this petition and respondent no. 3 in her written statement has already admitted that the other respondents have no concern with the tenanted premises. Respondent Smt. Suman is stated to be daughter of the respondent no. 3 and stated to be assisting the respondent no. 3 to maintain her shop of STD Booth and respondent No. 4 is stated to be the employee of the respondent No. 3. If they have no concern with the tenanted premises, then it is clear that after the death of respondent No. 3, the tenancy has been determined and no one can succeed the tenancy after the death of respondent no. 3. As such petitioner is entitled for an eviction order on this ground."
Vide the appeal it has been submitted that no eviction order could have been passed against the dead person without bringing on record the legal heirs of the deceased and that said eviction order was thus illegally and liable to be set aside.
The appellant has further submitted that it was wrongly observed by the Ld. CCJ cum ARC that it was an admitted case of the parties that the premises was let out to Shri Krishan Lal by the mother of the respondent on 25.06.1999 and after demise of Shri Krishan Lal the premises was inherited by Shri Thakur Dass and after his death by ARCT16/2013 Page No.10of25 Smt. Rakesh (respondent No. 1) and his minor son without appreciating the averments made in the written statement that the premises were originally let out to Shri Krishan Lal by the mother of the respondent and on his death the tenancy of the premises was changed by her in favour of his brother Shri Thakur Dass and it did not devolve upon him and that Shri Thakur Dass died in 1996 and the tenancy of the premises devolved upon his legal heirs i.e. his widow Smt. Rakesh (respondent No. 1 to the eviction petition) his minor son and mother of the deceased Thakur Dass i.e. Smt. Chander Kanta respondent No. 3 to the eviction petition and by virtue of the family arrangements between them Smt. Rakesh orally surrendered the tenancy rights on her behalf and on behalf of the minor son in favour of the mother of the deceased Smt. Chander Kanta and the fact was brought to the notice of the landlady Smt. Prem Kaur on 17.01.1998 and also in reply dated 15.01.2001 and that Smt. Chander Kanta was aged 75 years and was being assisted by her daughter Smt. Suman Verma the appellant and that the eviction order thus suffered from material irregularities and illegalities and was liable to be set aside and reversed and that the case be remanded back for trial afresh after bringing on record the legal heirs of the deceased Smt. Chander Kanta including the appellant.
ARCT16/2013 Page No.11of25 Interlia it has been submitted by the appellant that the tenancy in the instant case was jointly inherited by Smt. Rakesh Kaur, her minor son and Smt. Chander Kanta mother of the deceased Thakur Dass after the death of Shri Thakur Dass and his widow Smt. Rakesh respondent No. 1 to the eviction petition who did not claim the tenancy rights and surrendered the same in favour of the mother and the deceased who was one of the legal heirs of clause 1 of the deceased Shri Thakur Dass.
It was further submitted on behalf of the appellant that the provisions of Section 2(l) of the Delhi Rent Control Act, 1958 have been misconstrued by the Ld. CCJ cum ARC without appreciating that the said provisions are applicable only to residential premises and that commercial tenancy is inheritable and devolves as per Hindu Law of succession and the restriction imposed by the regulator in Section 2(l) of the Delhi Rent Control Act, 1958 is applicable only to residential premises as held by the Hon'ble Supreme Court in the case Gyan Devi Anand Vs. Jeevan Kumar reported as 1985 RLR(SC) 347, and thus the impugned eviction order dated 24.01.2013 was liable to be set aside and that it had to be held that Smt. Chander Kanta succeeded to the tenancy rights alone after the death of her son Shri Thakur Dass on account of surrender of tenancy rights by his widow Smt. Rakesh and ARCT16/2013 Page No.12of25 that the dependency of the deceased was not relevant in the instant case and that Smt. Chander Kanta succeeded to the tenancy rights after the death of Shri Thakur Dass in accordance with the provisions of the Hindu Succession Act 1956.
It was thus submitted on behalf of the appellant that Smt. Chander Kanta was a legal heir specified in class 1 as per the provisions of the Hindu Succession Act 1956 and after her death her legal heirs succeeded to the tenancy rights and that the petition could not have been proceeded further without bringing on record the legal heirs of the deceased including the appellant.
It was thus submitted on behalf of the appellant that it had been wrongly held by the Ld. CCJ cum ARC that it had been established that the premises had been sublet to Smt. Chander Kanta as that was not the case of the respondent nor was Smt. Chander Kanta a subletee and she had succeeded to the tenancy rights in the shop after the death of her son Shri Thakur Dass being a class 1 legal heir of the deceased.
The appellant has thus submitted that the impugned order be reversed and the eviction petition be dismissed and in the alternative the case be remanded to the Ld. ARC for trial afresh after bringing on record the legal heirs of the deceased Smt. Chander Kanta ARCT16/2013 Page No.13of25 and after grant of reasonable and adequate opportunity to them to defend the case and to lead evidence.
No reply to the appeal was filed on behalf of the respondent.
Written submissions have been submitted further on behalf of either side by Ld. cl Shri B.L. Chawla for the appellant and Ld. cl Shri Virag Kumar Aggarwal for the respondent.
It has been submitted on behalf of the appellant that the impugned order is liable to be reversed on the simple ground that the tenancy of the premises is commercial and thus inheritable as per the general law of succession and that the restriction of inheritance is applicable to residential premises only as provided in Section 2(l) of the Delhi Rent Control Act, 1958 as laid down by the Hon'ble Supreme Court in the Gyan Devi Anand Vs. Jeevan Kumar reported as 1985 RLR(SC) 347, and as followed by the Hon'ble High Court of Delhi in Kailash Dass and another Vs. Prem Dass and another AIR 1996 Delhi
47. It has been reiterated by the appellant in the written submission that Smt. Chander Kanta being a class 1 legal heir of the deceased Thakur Dass, surrender of premises by Smt. Rakesh and her minor son in favour of Smt. Chander Kanta cannot amount to subletting and it was in fact inheritance by her on the death of Shri Thakur Dass.
ARCT16/2013 Page No.14of25 Through the written submissions submitted by the respondent, reliance has once again been based on the pleadings of the written statement wherein the vide para 3(b) of the written statement of the respondent to the eviction petition including the present appellant it had been stated "by virtue of family arrangement Smt. Rakesh orally surrendered tenancy rights on her behalf and on behalf of her minor son in the shop in favour of the mother of the deceased"
and on the reply Ex. PW 1/R2 of the appellant dated 17.01.1998 i.e. the reply to the legal notice of the mother of the respondent" wife of Late Shri Thakur Dass has surrendered her joint tenancy rights in favour of Smt. Chander Kanta, therefore minor client has nothing to do with the same. My client is not having any possession of the shop in question and never claimed any right or title therein Smt. Chander Kanta is tenant in the above shop who is having physical and exclusively possession of the tenant shop".
Interlia it has been submitted on behalf of the respondent that after the death of Smt. Chander Kanta, the tenancy of the shop in question no more survived or devolved upon non the legal heirs of the deceased Smt. Chander Kanta as after the death of Shri Thakur Dass Smt. Chander Kanta became a statutory tenant and the right to continue in possession of the shop so after termination of the tenancy ARCT16/2013 Page No.15of25 was personal to her.
Interalia reliance has been placed on behalf of the respondent on the verdicts of the Hon'ble Supreme Court in the case Satya Wati Sharma Vs. Union of India (2008) 5SCC 287 to contend that in the rent control legislation made applicable to delay from time to time, residential and non residential premises were treated on a par for all purposes and that the scheme of 1958 and does not make any substantial distinction between the residential and non residential premises and even in the grounds of eviction set out in proviso to Section 14(1) so far no such distinction has been made except clause
(d) and (e). Reliance was also placed on behalf of the respondent on the verdict of the Hon'ble Supreme Court in the case Anand Niwas Pvt. Ltd. Vs. Anandji Kalyanji Pedhi 1965 AIR Supreme Court 414 (l) to content that a person remaining in occupation of the premises let out to him after the determination of or expiry of the period of tenancy i.e. who is called a statutory tenant is not a tenant at all and has no statute or interest in the premises occupied by him and has merely the protection of the statute in that he cannot be turned out so long as he continues to pay to standard rent and permitted increases if any and performs the other conditions of the tenancy and that his right to remain in possession after the determination of the contractual ARCT16/2013 Page No.16of25 tenancy is personal and is not capable of being transferred or assigned and devolves on his death only in the manner provided by the statute.
Interalia reliance was placed on behalf of the respondent on the verdict of the Hon'ble Supreme Court in the Case Delta International Limited Vs. Shyam Sunder Soreniwale (1998) 4 SCC 545 to the effect that a tenant protected under the statutory provisions with regard to occupation of the premises having no right to sublet or transfer the premises, cannot confer any better title.
Interalia reliance was placed on behalf of the respondent on Explanation III (b) to Section 2(l) of the Delhi Rent Control Act, 1958 to the effect "the right of every successor referred to in Explanation 1 to continue in possession after determination of the tenancy, shall be personal to him and shall not on the death of her successor, devolve of any of his heirs.
Interlia it has been submitted on behalf of the respondent that even if for the sake of arguments it was considered that inheritance of non residential tenancy is to be governed by the ordinary law of succession, still the appellant could not claim to have inherited the tenancy in question from Smt. Chander Kanta, a statutory tenant. It has further been submitted by the appellant that on the death of a tenant of a commercial premises, the tenancy inherited by his ARCT16/2013 Page No.17of25 legal heirs and by no one else and that the legal heirs succeed to the tenancy rights as joint tenants and not as co tenants and they are only statutory tenants and that in the matter of succession of tenancy rights there can be only one cycle and not repeated cycles of succession. It has thus been submitted by the respondent that once the legal heirs of the deceased tenant (succeed to his tenancy rights, then there may be no further succession in the event of death of one or more of his legal heirs i.e. statutory tenants and that any interpretation to the contrary would lead to unjust and wholly irrational results as in that event the succession to the tenancy rights shall devolve in perpetuity and infinity without their being any end in sight. It has thus been submitted by the respondent that the mother of the appellant Late Smt. Chander Kanta who herself was brought on record as one of the legal heirs of the deceased tenant had as many as 8 children some of whom had pre deceased her, leaving behind a large number of legal heirs in turn and they all were her legal heirs and that if the legal heirs of the deceased tenant have also to be granted protection against eviction than it would amount to virtually surrender of ownership rights of a landlord in favour of the legal heirs of a tenant and it has thus been submitted on behalf of the respondent that the tenancy rights in respect of commercial premises are heritable as per ordinary personal law of ARCT16/2013 Page No.18of25 succession or the legal heirs of the deceased tenant only once and not thereafter.
It has further been submitted on behalf respondent that in terms of order 22 Rule 4 of the CPC, the legal heirs of Smt. Chander Kanta could be brought on record only if the right to be issued against survived to them and not otherwise and that in the instant case Smt. Chander Kanta being a statutory tenant she had no right title or interest which could further devolve upon her legal heirs and her tenancy in the shop having been finally determined with her death, there was no infirmity in the impugned order of the Ld. ARC directing the eviction of the respondent to the eviction petition from the shop in question.
ANALYSIS On a consideration of the rival submissions and the rulings relied upon it is essential to observe that in view of the verdict of the Hon'ble Supreme Court in the case Gyan Devi Anand Vs. Jeevan Kumar reported as 1985 RLR(SC) 347, it has been categorically laid down that the provisions regulating the right to inherit the tenancy in respect of residential premises contained in Section 2(l) (3) of the Delhi Rent Control Act, 1958 as amended, had not applied to the heritability of commercial premises and that there is no provision ARCT16/2013 Page No.19of25 regulating the rights of the heirs to inherit the tenancy rights of the tenanted in respect of the tenanted premises which is commercial premises and thus the tenancy rights which are inheritable devolve on the heirs under the ordinary law of succession i.e. on all heirs of the deceased statutory tenant.
It is essential in relation to this aspect to advert to paragraphs 39 and 40 of the verdict of the Hon'ble Supreme Court in Gyan Devi Anand Vs. Jeevan Kumar reported as 1985 RLR(SC) 347, "39. Accordingly, we hold that if the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection ARCT16/2013 Page No.20of25 afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of he condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such ARCT16/2013 Page No.21of25 provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to he devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law in succession.
40. In the Delhi Act, the Legislature has throught it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in S. 2(l) (iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating heritability of commercial premises, have also been made whereas in some Rent acts no such provision either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death."
ARCT16/2013 Page No.22of25 Furthermore it is essential to observe that there cannot be any estoppel against law nor can there be rights that can be claimed merely on the basis of pleadings of the parties. In the instant case on the demise of Shri Thakur Dass the tenant in the commercial premises, of legal heirs of Shri Thakur Dass including Smt. Chander Kanta his mother in terms of the verdict of the Hon'ble Supreme Court in Gyan Devi Anand Vs. Jeevan Kumar reported as 1985 RLR(SC) 347, became entitled to inherit the tenancy of of Mr. Thakur Dass her deceased son also apart from Smt. Rakesh widow of the deceased Shri Thakur Dass. Smt. Chander Kanta the mother of the deceased falls in Class 1 of the legal heirs of the deceased Shri Thakur Dass in terms of schedule 2 Section 8 of the Hindu Succession Act 1956, thus could prima facie not be held to be a sublessee without consent of the landlord without trial, despite pleadings to the effect that Smt. Rakesh orally surrendered the tenancy rights on her behalf and on behalf of her minor son in favour of the mother of the deceased i.e. in favour of Smt. Chander Kanta.
In these circumstances, the impugned order dated 24.01.2013 of the Ld. CCJ cum ARC (West) in eviction petition No. 11/09 is set aside and the eviction petition 11/09 is remanded back to the proceedings of 11/09 are remanded back to the Ld. ARC for trial ARCT16/2013 Page No.23of25 after bringing on record legal heirs of the deceased Smt. Chander Kanta and after giving an opportunity to them to defend the case. Though there has been no plea raised on behalf of the respondent to observations of the Ld. CCJ cum ARC (West) in paragraph 6 of the impugned order which is to the effect : "6. So far the eviction order under Section 14(1) (a) (c) (j) &
(k) of DRC Act are concerned, these grounds could not be proved. As such, the petitioner has proved the case under Section 14(1) (b) of DRC Act only. As such application of the petitioner under Section 151 CPC is allowed", taking into account the factum that in the instant case there is nothing to indicate that the evidence of the landlord had been concluded in as much as proceedings vide order dated 26.04.2012 of the Ld. ARC/CCJ (West) were listed for petitioner's evidence on 15.05.2012 and continued to be so fixed till 23.07.2012 and thereafter the matter on the application dated 23.07.2012 qua which the impugned order of the Ld. CCJ cum ARC (West) dated 24.01.2013 has hereinabove been set aside, that the respondent were not even allowed to lead any evidence in relation to the the observations of the Ld. CCJ cum ARC (West) in paragraph 6 also holding that the claim of the petitioner under Sections 14(1)(a) (c)(j) & (k) could not be proved, is ARCT16/2013 Page No.24of25 also set aside as there is nothing to indicate that any opportunity was granted to the landlord to urge submissions in relation thereto. The Ld. CCJ cum ARC (West) would thus proceed in accordance with law qua the relevance claimed under Section 14(1)(a) with J and K of the Delhi Rent Control Act, 1958 also as well as qua the relief claimed under Section 14(1)(b) of the Delhi Rent Control Act, 1958 as amended.
The appeal No. ARCT 16/2013 is allowed as directed herein above. The records of ARCT 16/2013 be consigned to the Record Room. The records of CCJ cum ARC (West) are directed to be returned to the Ld. ARC (West) CCJ cum ARC (West) and be placed before the said Ld. CCJ / ARC (West) on the date 27.05.2014 at 02:00 PM by the Ahlmad, where the parties are directed to appear.
Announced in the Open Court (Anu Malhotra) today this the 15th day of District & Sessions Judge/ May, 2014 ARCT(West)/Delhi ARCT16/2013 Page No.25of25