Delhi High Court
Satya Malhotra & Ors. vs Mohinder Singh Arora on 16 September, 1999
Equivalent citations: 1999VAD(DELHI)947, 81(1999)DLT627, 2000(52)DRJ146
ORDER Vijender Jain, J.
1. Aggrieved by the order of dismissal of the application for leave to defend, the petitioners (original respondent) have filed the present revision petition. The impugned order has passed by the Rent Controller on 6.1.1999.
2. Mr. Mukul Rohtai, learned Senior counsel for the petitioner has contended that the application for leave to defend was filed in 1991 whereas the reply to the said application was filed by the respondent (eviction petitioner) in the year 1998 which would demonstrate that the respondent's requirement was not bone fide. Mr. Rohtagi has argued that the respondent was not the owner of the premise in question as original owner Shri D.V.S. Gupta, who let out the premises through his father Shri Laxmi Narain to the petitioner in 1944 had sold the property in 1970 to one Dr. Diwan Singh and as Dr. Diwan Singh had not paid the total consideration, therefore, the title of Dr. Diwan Singh was defective and he could not have executed a sale-deed in favour of Smt. Harbans Kaur, the mother of the respondent (landlord/owner). He has further contended that Smt. Harbans Kaur, could not have made any Will in respect of the suit property in favour of the respondent. What has been argued before me by Mr. Rohatagi is that property continued to stand in the name of Shri D.V.S. Gupta.
3. Mr. Rohatagi, has further contended that the purpose of letting was also composite. Mr. Rohatagi has contended that the petitioners have placed on record the photo-copy of certain business documents to show that the petitioner were carrying on the business in the said premises from the beginning. The same are business letters allegedly written on the letter heads of different companies which have business with the petitioners' concern i.e. M/s. Malhotra Enterprises and that would demonstrate that the premises has been used right from the inception of the tenancy to the knowledge of the respondent for composite purpose and in his support has cited Smt. A.N. Kapoor Vs. Smt. Pushpa Talwar . Mr. Rohatagi has contended that the property has been used for commercial purposes for the last thirty years and the continuous and consistent use without any demur by the respondent ought to have been held by the Rent Controller that the property was out of the ambit of Section 14(1)(e) of the Delhi Rent Control Act. Mr. Rohatagi has argued that Hanuman Lane is now being used as a commercial area for non-residential purposes.
4. Arguing that the requirement of the respondent was not bone fide in the leave of defend application it was stated that the respondent was residing at A-1/292 Safdarjung Enclave, New Delhi on the First Floor. It was contended that respondent was not in fact residing in the said rented accommodation and was holding this accommodation only to make out a case for eviction of the petitioners. Mr. Rohatagi, contended before me that the respondent was living in a palatial house named as Arora Villa, at Gadhaipur, Mehrauli, New Delhi. Although, no argument was raised before me about the alleged alternative accommodation available at C-2, Malviya Nagar, New Delhi, and another house at A-296, Shivalik Enclave, New Delhi as grounds set out in the leave to defend application.
5. Mr. Rohatagi, laid great stress on the bill of the electricity department for the consumption of the electricity at the tenanted premises of the respondent at Safdarjung Enclave to show that respondent never lived at that premises.
6. The counsel for the respondent contended that house at Gadiapur belonged to the son of the respondent who is living with his family and the respondent has no legal right to stay in the said house.
7. Controverting the argument of the counsel for the petitioners regarding ownership it was contended that a sale-deed executed by Dr. Diwan Singh in favour of the mother of the respondent was filed on record. Once the sale-deed has been brought on record duly registered and executed, the petitioners cannot agitate about the correctness of the same.
8. Counsel for the respondent also invited the attention of this Court that in an eviction petition (registered as Suit No. E-43/72) instituted by the previous owner Dr. Diwan Singh on the ground of non-payment of rent, the learned Addl. Rent Controller in his order dated 16.2.1974 although dismissed the petition, however, held that the respondent was the owner of the property in question. The same is reproduced below:
"The petitioner has filed the original sale-deed executed by Shri Dharam Vir Singh and others in favour of the petitioner in respect of the disputed premises. It is abundantly clear from the said sale-deed that the petitioner is the owner of the disputed premises. The respondent has admitted in his averment on oath that previously Shri Dharam Vir Singh was his landlord. Thus, the petitioner becomes the landlord and owner of the disputed premises after having purchased the same from Shri Dharam Vir Singh and others."
9. These documents have been filed by the respondent during the hearing of the petitioner. I take them into consideration as they have material bearing in adjudicating the dispute between the parties.
10. Learned counsel for the respondent further argued that a suit for possession was filed against the petitioner by the mother of the respondent in 1983 which was registered as Suit No. 109/83. However, that suit was withdrawn in 1988.
11. Counsel for the respondent has also contended that the tenant cannot deny the ownership in view of the sale-deed placed on record.
12. Controverting the arguments of the counsel for the petitioners that the premises have been used for commercial purposes, counsel for the respondent has contended that putting up sign board in the name of the firm or receiving correspondence by showing it as an office address would not mean that letting was for residential-cum-commercial purpose. In support of his contention, counsel for the respondent has cited Salekh Chand Vs. Vinesh Ch. Sheth 1986 RLR 17.
13. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. Let me first deal with the plea of ownership which has been disputed by the petitioner. The challenge of the petitioner to the sale-deed executed on 10.9.1981 by Dr. Diwan Singh in favour of the mother of the respondent - Smt. Harbans Kaur is not open to challenge. The said sale-deed was a duly registered document. The rent court is not a court to decide title of the parties. The petitioner admittedly was induced by previous owner who executed a sale-deed in favour of Dr. Diwan Singh and Dr. Diwan Singh in turn executed the sale-deed in favour of the Smt. Harbans Kaur, mother of the respondent. There was no force in the argument of the learned counsel for the petitioners that as part of the payment of sale consideration was not paid by Dr. Diwan Singh to D.V.S. Gupta, Dr. Diwan Singh did not have any titled to transfer the property. It is well settled principle of law that a tenant cannot challenge the title of the subsequent purchaser. If at all the title was to be challenged, the same could be challenged by Dr. Diwan Singh or by D.V.S. Gupta. Nothing was brought on record before the Rent Controller that either D.V.S. Gupta or Dr. Diwan Singh has challenged the titled of the mother of the respondent. The respondent has claimed his right to the said property though his mother who has purchased the same from Dr. Diwan Singh. In view of the sale-deed which was ultimately executed before the Registrar Office by D.V.S. Gupta in favour of Diwan Singh, the letter received by the petitioners dated 3.5.1971 written by D.V.S. Gupta to the petitioner also losses its significance. It is strange that property at Hanuman Lane, at a prime location at a monthly rent of Rs. 47/-, petitioners have neither paid the rent to the respondent nor to Diwan Singh since the last rent was paid to D.V.S. Gupta. In the leave to defend application it has not been stated as to who was the owner of the property if not respondent, though Mr. Rohtagi has argued before me that D.V.S. Gupta, was owner of the property. Said argument of the learned counsel for the petitioner is beyond his pleadings. It cannot be taken into consideration as same is after though. It was also brought before the Rent Controller that on the basis of the Will executed by the mother of the respondent, name of the respondent was mutated in the record of the L & D O. Therefore, I do not find any infirmity with the order of the Rent Controller vis-a-vis the ownership of the respondent. The Rent Controller in paragraph 12 has discussed in detail and arrived at a reasoned finding regarding ownership.
14. I do not find any force in the argument of the counsel for the petitioners that from the inception of the tenancy, they have been using the premises for composite purpose. The petitioners have contended that property was let out to the husband of petitioner No. 1 somewhere in 1944-45. the documents which have been brought on record relate to the period from 1977 onwards. Which would show that if any business correspondence was done by the petitioners that was only after 30 years after they have taken the premises on rent. In Salekh Chand Jain's (supra) it was held:
"Letting purpose, like any other fact, could be proved by the documentary and/or oral evidence. In the absence of convicting evidence to prove the letting purpose it has to be inferred from the physical nature of the premises, area where the premises are situated, actual user and other relevant surrounding circumstances. These circumstances however, could be of no help if there is cogent satisfactory and sufficient documentary and/or oral evidence to prove the agreed term regarding the use."
15. Putting up of sign board on the premises or receiving business correspondence at the address would not make the purpose of letting composite. The documents filed on record does not show that there was any organized business activity i.e. sale, purchase or manufacturing of goods being carried from the said premises. The Rent Controller has, as a matter of fact, discussed from letter dated 6.12.1977 reference Ed. 2/217 on the letter head of the petitioners that the machinery was required at Government owned factory. This showed that the factory or the manufacturing activities of the firm of the petitioners was at some other place. Hanuman Lane is admittedly in a residential area.It has been the case of the petitioners themselves that they have been residing in the premises in question.
16. I do not find any infirmity with the order of the Rent Controller about the purpose of letting that the same was for residential purpose. Although, in the leave to defend application, property No. C-2, Malviya Nagar, New Delhi and Property No. A-296, Shvalik Enclave, New Delhi were mentioned as the two properties available in the hands of the respondent, property at A-296, Shivalik Enclave was a property which belonged to the sister of the respondent. A letter was placed on record from the Rehabilitation Ministration Employees Coop. House Building Society Limited notifying that the plot bearing No. A-296, Shivalik Enclave has been allotted to Smt. Manju Saluja. Property bearing No. C-2, Malviya Nagar, New Delhi was under the occupation of the tenant and hardly any accommodation was available in the said property. As there was only one room available to the respondent.
17. There is not force in the argument of the learned counsel for the petitioners that the tenanted premises in which petitioner were living was lying locked. In any event of the matter, the tenanted premises would not be an alternative accommodation in the hands of the landlord, although, the petitioner did not contend before me about the aforesaid two properties at Malviya Enclave and Shavlik Enclave. With regard to Arora Villa at Gadhipur, copy of the sale-deed was filed in this court. Hitesh Arora, son of the respondent is the owner of the said property. The sale-deed dated 20.7.1992 is duly executed and registered. Therefore, the respondent has no legal right in the said property also. The landlord cannot be compelled to stay in the house of his married son when he has got this own property. In Smt. Prativa Devi Vs. T.V. Krishnan DRJ 1987 (12) 259 (SC). Supreme Court held that the landlord is the best judge of his residential requirement. Similarly, when more than one premises are available to the landlord, it is for the landlord to select as to which one is suitable to him. Neither the tenant nor the court would be justified in imposing on the landlord to shift in a particular accommodation so long as his selection is not unreasonable and mala fide. What is the conduct of the petitioners? They are enjoying the property without paying rent for almost three decades. They have not paid rent to Diwan Singh to whom property was sold by D.V.S. Gupta. They have not paid rent to the mother of the respondent since 1981 till date and that too, the meagre rent of Rs. 47/- per month.
18. Let me deal with the last submission of the learned counsel for the petitioners that it was respondent who delayed the decision on leave to defend application filed by the petitioner. The leave to defend application was filed on 14.8.1991. On 22.9.1992 it was recorded that there is a move for compromise. Matter was adjourned thereafter. Again on 27.10.1993 it was recorded by the Rent Controller that on request of the parties, who were negotiating compromise, the matter was adjourned. On 6.4.1994, the Court recorded that the compromise could not be materlialised and the matter was again adjourned to 13.7.1994. On 13.7.1994 again it was stated that parties are negotiating for compromise. Matter was adjourned for different dates thereafter for filing of the reply. Again on 13.3.1996 adjournment was sought on the ground that talks of compromise were going on between the parties. Similarly, in 1997 dates were taken for compromise. Therefore, I do not see that it was on account of respondent that the matter was adjourned.
19. In view of the discussion above, I do not find any infirmity with the reasoned order of the Rent Controller.
20. No ground to interfere.
21. Dismissed.