Delhi District Court
Sushil Kumar Jain vs Smt. Raj Rani on 9 May, 2018
IN THE COURT OF MS. ASHA MENON : DISTRICT
& SESSIONS JUDGE : SOUTH DISTRICT : SAKET
NEW DELHI
CIS RCT - 182018
CNRDLST 010020752018
Sushil Kumar Jain
S/o Late Sh. Sultan Singh
II55/1315,
Sadar Bazar, Delhi Cantt.,
New Delhi110010. ..,Appellant
VERSUS
1 Smt. Raj Rani
W/o Late Sh. Sohan Lal,
2, Tibberton Close,
Solihull, West Midlands,
B91, 3ud. U.K.
Through SPA Sh. Sundender Malhotra
S/o Late Sh. Jia Lal Malhotra
C41A, Second Floor,
Kirti Nagar,
New Delhi110015
2 M/s Sultan Singh Vinod Kumar
Through its Proprietor Sh. Vinod Kumar
Shop No.2, Property No. R4,
Green Park,
New Delhi110016. ..Respondents
Instituted on: 26.03.2016
Judgment reserved on: 23.04.2018
Judgment pronounced on: 09.05.2018
CIS RCT - 182018 Page ...1 of 14
JUDGMENT
This judgment will dispose off the appeal filed by Sh. Sushil Kumar Jain against the impugned order dated 02.02.18 of the Ld. Senior Civil JudgecumRent Controller, South (herein after referred to as "Rent Controller") dismissing the application of the appellant seeking impleadment in the Eviction Petition. The respondent no.1, Smt. Raj Rani is the land lady and M/s Sultan Singh Vinod Kumar through its proprietor Vinod Kumar was impleaded as a tenant in the petition filed by Smt. Raj Rani seeking eviction U/s 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958 (herein after referred to as "DRC Act"). The appeal has been filed U/s 38 of the DRC Act.
The facts in brief are that Smt. Raj Rani filed this petition for eviction describing the tenant as M/s Sultan Singh Vinod Kumar through its proprietor Vinod Kumar in respect of shop No. R4/2, Green Park, New Delhi. It is submitted that the tenanted shop was let out for commercial purposes for carrying on the business of sweets but the respondent had illegally and unlawfully and without the consent and permission of the petitioner had been carrying on the business of selling helmets.
The written statement had been filed by the tenant questioning the bonafides of the eviction petition. It was not denied that the land lady of the premises was Smt. Raj Rani and that the tenant was M/s Sultan Singh Vinod Kumar through its proprietor Vinod Kumar. It was denied that the shop had been let out for the business of sweet / halwai and that it was claimed that CIS RCT - 182018 Page ...2 of 14 the tenanted shop was let out during the lifetime of her husband for commercial purposes in the name and style of the firm M/s Sultan Singh Vinod Kumar. It was also submitted that the tenant having no knowledge of preparing / cooking sweetmeats started the business of helmets as per the oral terms of the tenancy for commercial purposes.
The case reached the stage of respondent's evidence, at which stage, the present appellant moved an application for impleadment. In the said application, it was stated that the applicant had come to know of the pendency of the petition on 19.08.2017 through his family members. It was claimed that in the tenanted premises, the father of the applicant had been running a sweet shop in the name of Brijwasi Sweets where Sh. Sultan Singh, the father of the applicant was doing business along with his sons namely Vinod Kumar Jain and Sushil Kumar Jain i.e. the respondent no.2 and the present appellant. It was claimed that the tenancy was created in the name of M/s Sultan Singh Vinod Kumar for running the family business.
It was further stated that Sh. Sultan Singh had died on 23.08.1999 leaving behind his four sons and three daughters, out of whom, Sh. Vijay Kumar Jain had also expired. Thus, there were six legal heirs of Sh. Sultan Singh who had become the tenants in common in the tenanted premises. It is further stated that only Sh. Vinod Kumar was contesting the eviction petition and no notice of the eviction petition or copy of the eviction petition had been served on the applicant and other legal heirs of Sh. Sultan Singh CIS RCT - 182018 Page ...3 of 14 which was a deliberate and intentional act of the landlord. The collusion between the landlord and Vinod Kumar was also alleged. It was claimed that he had falsely been shown as proprietor. It is further stated that M/s Sultan Singh Vinod Kumar was a family business of late Sh. Sultan Singh and his sons including the applicant.
It is further stated that the brothers were not on good terms and therefore, being a tenant in common, he was not properly represented by Sh. Vinod Kumar. Therefore, in order to protect his own interest, the applicant having no faith on Vinod Kumar, he be impleaded as a necessary and proper party in the eviction petition as otherwise serious injustice and prejudice would be caused to the applicant.
In the impugned order, the Ld. Rent Controller, South noted that the Ld. Counsel for the landlord had not filed the reply but had opposed the application on the ground that no substantial documentary proof had been filed that the tenancy was common and the receipts were only of the year 199293 which also merely reflects that certain amount had been deposited with various authorities on behalf of Brijwasi Sweets, R4/2, Green Park, New Delhi. It was submitted that the suit shop had been given on rent to M/s Sultan Singh Vinod Kumar and after the death of Sh. Sultan Singh, Vinod Kumar had become proprietor and he was the actual person who was running the shop though he had changed the business in the shop.
It was also contended that in view of the admissions CIS RCT - 182018 Page ...4 of 14 made in the written statement of Vinod Kumar, it was clear that the tenancy was not tenancy in common but joint tenancy and after the death of Sh. Sultan Singh, the rights in the tenancy devolved upon Vinod Kumar being proprietor of M/s Sultan Singh Vinod Kumar and no third person had any tenancy rights in the shop.
The Ld. Rent Controller, South on a perusal of the documents submitted on behalf of the applicant observed that the documents pertained to the year 199293 and prior to the death of Sh. Sultan Singh, but there was no document to show that the applicant was also a partner in the business being run in the suit shop. It was also observed that in the crossexamination of RW.1 on 02.06.2013 he had deposed that there was no litigation between himself and Sushil Kumar Jain. It was also observed that they were residing at the same address and therefore, it was highly doubtful that the applicant would not have known of the pendency of the case since 2011 till date. Hence, it dismissed the application by holding that the applicant had not shown that he had been a partner in the business and was a joint tenant with Sh. Vinod Kumar in suit shop or that the tenancy was tenancyincommon in which the right to sue survived in his favour and in favour of other legal heirs.
In the appeal that has been filed, it is noted that all the facts pleaded in the application have been reiterated in the appeal. It is also submitted that the Ld. Rent Controller, South failed to appreciate that the word "M/S" before "Sultan Singh and Vinod Kumar" only denoted plurality of persons and therefore, Sultan CIS RCT - 182018 Page ...5 of 14 Singh and Vinod Kumar were tenantsincommon in the tenanted premises. It is also stated that the Ld. Rent Controller, South had failed to appreciate that no rent agreement was executed on the basis of which it could be inferred that tenancy was created in the name of any firm of which the respondent no.2 was a proprietor.
It is also submitted that the Ld. Rent Controller, South failed to appreciate that after the death of Sh. Sultan Singh, his legal heirs had become statutory tenants in his place along with contractual tenant Vinod Kumar and that the Ld. Rent Controller, South erred in concluding that it was a joint tenancy. It is further stated that the Ld. Rent Controller, South had failed to appreciate that the appellant in his application had raised some questions of law with regard to the definition of "tenantincommon" and joint tenant" and rights of legal heirs of a deceased tenant who was a tenantincommon. It was claimed that the Ld. Rent Controller, South failed to appreciate that the appellant had every right to protect and claim in the tenanted premises tenancy rights and that the respondent no.2 had adverse interest against the appellant as they were not on good terms and therefore, he ought to have been allowed to participate in the eviction proceedings.
It is further stated that the Ld. Rent Controller, South erred in concluding that the address of the appellant and the respondent no.2 was the same whereas the factual position was that the appellant lived on the first floor while the respondent no.2, his brother resided on the second floor and had separate entrances and were not on visiting or speaking terms for a long time. It is CIS RCT - 182018 Page ...6 of 14 submitted that there was no question of the respondent no.2 becoming proprietor after the death of Sh. Sultan Singh. It was also submitted that the Ld. Rent Controller, South had failed to decided the main issue raised in the application as to why the appellant being legal heir of Sh. Sultan Singh should not be allowed to contest the eviction petition in view of the allegations of negligence and collusion made in the application against the respondent no.2. Hence, it was prayed that the impugned order be set aside and the appellant be impleaded as respondent in the eviction petition.
Reply was not filed to the appeal but the appeal has been opposed by the Ld. Counsel for the respondent no.1. Arguments were advanced by Sh. Girish Chander and Sh. R.P. Tyagi, Ld. Counsel for the appellant and Sh. Dhruv Madan, Ld. Counsel for the respondent no.1 but despite opportunity no arguments were advanced on behalf of the respondent no.2.
Fundamentally, Ld. Counsel for the appellant has relied on the judgment of the Hon'ble High Court of Delhi in the case titled Rakesh Jain Vs. Suresh Kumar Kohli & Anr., 2014 1 AD (Delhi) 752, to contend that the appellant had inherited the tenancy rights under the Hindu Succession Act and was a tenant in common with the respondent no.2 herein, his brother and therefore, he had a right to protect his interest. He relied on the judgment of the Hon'ble Supreme Court in the case titled Surrayya Begum (Mst) Vs. Mohd. Usman and Others and Renu Sharma and CIS RCT - 182018 Page ...7 of 14 Another Vs. Raghbir Kaur Bhatia (Mrs.) and Others, (1991) 3 Supreme Court Cases 114, to submit that the respondent no.2 had wrongly stated before the Ld. Rent Controller, South during his crossexamination that there was no litigation between himself and the appellant whereas the appellant had placed on record the copy of the summons issued in the suit filed by Vinod Kumar Jain against Sushil Kumar Jain, the present appellant which was a suit for partition, permanent injunction and mesne profits and the present appellant Suresh Kumar Jain had instituted a suit for mandatory injunction on 03.11.2016 against the respondent no.2, thus showing the strained relations between the parties and on the principle of representation of interest of a person and in view of clash of interest between the two, following the decision of the Hon'ble Supreme Court in the case titled Surrayya Begum (Mst) (Supra), the application should be allowed.
Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case titled Shakuntla Vasant Pahadi and Another Vs. Purushottam Vasant Pethe and Others, (2007) 3 Supreme Court Cases 123, to submit that it is only in the absence of any allegation and proof against the participating legal heir showing collusion with the landlord or malafide interests of the coheirs that there would be no need to implead all the legal heirs of the original tenant and therefore, the appellant was a necessary party to the proceedings. It was also submitted, relying on the judgment of the Hon'ble Delhi High CIS RCT - 182018 Page ...8 of 14 Court in the case titled Nawab Bashiruddin Vs. Mirza Ahmed Beg (decided on 10.04.1985) that the law recognized the legal heirs of a tenant to be tenants in common and not joint tenants. Thus, it was submitted that the appellant was a necessary party to the proceedings.
On the other hand, Ld. Counsel for the respondent no.1 submitted that even the appellant had admitted that the tenant was M/s Sultan Singh Vinod Kumar and Vinod Kumar had claimed to be the proprietor of the said firm. Accordingly, the participation of Vinod Kumar, the proprietor, represented the interest of the tenant. It was also submitted that two other eviction petitions had been filed and only Vinod Kumar had represented the tenancy rights in the premises. It was submitted that the application was malafide in as much as it was moved only when the case had reached the stage of respondent's evidence without explaining the circumstances in which the applicant had come to know of the pendency of the eviction petition. Rather both the brothers were living in the same premises and knowledge of the ongoing eviction proceedings had to be attached to the appellant. It was also submitted that at no point of time had the appellant paid any rent to the original landlord. On the other hand, it was the respondent no.2 who had applied for the deposit of rent U/s 27 of the DRC Act. Neither was the appellant in possession of the premises and thus, even if the appellant was the legal heir of the original tenant, not impleading him was not fatal to the eviction petition nor was his participation essential for its disposal.
CIS RCT - 182018 Page ...9 of 14 In response, the Ld. Counsel for the appellant argued that the word "M/S" meant plural. Further, the business was "Brijwasi Sweets" and not "Sultan Singh and Vinod Kumar". It was also reiterated that since the presumption of law was that the legal heirs were not tenantsincommon and since in case of partnership, the death of one partner did not result in the other becoming proprietor, as the partnership would have dissolved seen from any angle, the appellant ought to be impleaded.
It may be noticed here that an appeal U/s 38 of the DRC Act can lie only when a question of law was involved. Moreover, the Hon'ble High Court of Delhi held in 'Ved Parkash Kapur vs Harish Chander Rastogi & Another', 3(1967) DLT 341, that an order refusing to implead a stranger as a party to the ultimate adjudication and disposal of the application U/o 1 Rule 10 CPC could not be regarded as an order which affects the rights and liabilities of the parties and, therefore, was not an order that was appellable U/s 38 of the DRC Act. On these two grounds, the present appeal does not appear maintainable.
In Shakuntla Vasant Pahadi and Another (supra), it was a case of a residential tenancy in favour of the husband / father and even if, the interpretation of the Hon'ble Delhi High Court in Nawab Bashiruddin Vs. Mirza Ahmed Beg (supra) was to be accepted that the presumption of law was that tenancy rights of the legal heirs were in the character of tenantsincommon and not joint tenants still the Hon'ble Supreme Court had held that in the absence of any allegation and proof against the mother, showing CIS RCT - 182018 Page ...10 of 14 collusion with the landlord or malafide neglect of the interest of her son and as there was no clash of interest between the person concerned and his assumed representative, it was not necessary to implead all the legal heirs in a suit for eviction.
In the judgment in Surrayya Begum (Mst) Vs. Mohd. Usman and Others and Renu Sharma and Another Vs. Raghbir Kaur Bhatia (Mrs.) and Others (supra), the Hon'ble Supreme held that as far as Section 19 of the Hindu Succession Act was concerned, it directed that heirs of a Hindu dying intestate shall take his property as tenantsincommon and this was in respect of rights of the heirs inter se amongst them and not with their relationship with a stranger having a superior or distinctly separate right therein. It also held in the particular case relating to Renu Sharma, that the appellants therein were young girls in the family who were being looked after by the elders and the rent had been paid to the landlord by their mother and brothers and never by them and therefore, their interests had been effectively represented by them.
In other words, nonimpleadment of all the legal heirs was not fatal to the petition. It may also be noted that the Hon'ble Court also referred to the case of H.C. Pandey Vs. G.C. Paul, (1989) 3 SCC 77, where it was held that heirs succeeded to the tenancy as joint tenants but did not choose to overrule these conclusions. Thus, it may be seen that the opinion in these cited judgments do not help the appellant in establishing that he was a CIS RCT - 182018 Page ...11 of 14 necessary and proper party to the eviction petition filed by the respondent no.1 against the respondent no.2.
Relying on the judgment in the case Rakesh Jain Vs. Suresh Kumar Kohli & Anr (supra), the Ld. Counsel for the appellant had argued that the facts of that case were similar to the present case in as much as in Rakesh Jain's case also, father and one brother had taken a shop on rent. Thereafter, the father had died but the landlord had not impleaded the appellant Rakesh Jain in an eviction suit and the Hon'ble High Court had held the appellant to be a necessary party to the eviction petition.
Relying on the judgment of the Hon'ble Delhi High Court in the case Rakesh Jain Vs. Suresh Kumar Kohli & Anr. (supra), it was submitted that tenancy was inherited as tenantin common and therefore, the present appellant was a necessary party to the eviction proceedings. However, an appeal was preferred by Suresh Kumar Kohli against this judgment of the Hon'ble Delhi High Court which has been allowed by the Hon'ble Supreme Court in the Civil Appeal No.3996 of 2018 arising out of Special Leave Petition(C) No. 5489 of 2014 decided on 19.04.2018. The Hon'ble Supreme Court while allowing that appeal and setting aside the judgment of the Hon'ble Delhi High Court in Rakesh Jain Vs. Suresh Kumar Kohli & Another observed as follows :
"That in the light of H.C. Pandey's case (supra), the situation is very clear that when the original tenant dies the legal heirs inherit the tenancy as joint tenants and occupation of one CIS RCT - 182018 Page ...12 of 14 tenant is occupation of joint tenants. It is not necessary for the landlord to implead legal heirs of the deceased tenant whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property as party..".
Further, "an eviction petition against one of the joint tenants is sufficient against all the joint tenants and all joint tenants are bound by the 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.".
It was also observed in the facts of that case that intervention at the belated stage of execution proceedings seemed to be a deliberate attempt to nullify the decree passed in favour of the appellants.
In the light of these observations, it is clear that even if it was to be held that the appellant had also become a tenant upon demise of his father, it is clear that his right is only that of a joint tenant and not tenantincommon. In any case, it is clear even from the very documents of the appellant filed before this Court, as part of the appeal filed, that in the memo of parties in the suit for mandatory injunction filed by Sushil Kumar Jain against Vinod Kumar Jain, the additional address of Vinod Kumar Jain has been mentioned R4/2, Green Park Main, near MCD office, which would indicate that the tenanted premises is in possession of the respondent no.2 and not in possession of the appellant. Therefore, the impleadment of one joint tenant is sufficient.
CIS RCT - 182018 Page ...13 of 14 Though it was claimed that filing of the civil suit by the brothers inter se disclosed animosity and that there would not be a proper representation of the interest of the appellant, no such inference can be drawn, in as much as the documents relied upon by the appellant relate to the time, as rightly pointed out by the Ld. Rent Controller, South when the father of the parties was alive and no recent document relating to a more recent period to show that the appellant had any interest in the premises, have been filed. In these circumstances, the application itself appears to be an attempt to delay the disposal of the matter without there being any substantial case to present.
In the light of the discussion herein above, the appeal is, therefore, dismissed.
The records of the Ld. Rent Controller, South be returned along with a copy of this judgment.
The appeal file be consigned to the Record Room.
Announced in open Court (ASHA MENON )
today on 09.05.2018 District & Sessions Judge (South)
Saket/New Delhi.
Digitally
signed by
ASHA ASHA MENON
Date:
MENON 2018.05.22
12:30:55
+0530
CIS RCT - 182018 Page ...14 of 14