Delhi District Court
2- Smt. Gian Wati Devi (Since Dead) vs Shri Dalip Kumar on 5 March, 2013
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT appeal No. 93/2011
Unique ID No. 0240IC0558992011
1- Shri Yogesh Chandra,
s/o late Shri Govind Dass and (his wife)
Smt. Gian Wati Devi (dead)
R/o 39, Gali Raja Kedar Nath,
Chawri Bazar, Delhi-110 006.
2- Smt. Gian Wati Devi (since dead)
W/o late Shri Govind Dass,
D/o late Shri Lakshmi Narain,
through her son and legal representative,
Shri Yogesh Chandra,
R/o 39, Gali Raja Kedar Nath,
Chawri Bazar, Delhi-110 006.
....Appellant/Petitioner
Versus
1- Shri Dalip Kumar
S/o late Shri Ram Prasad,
570, Gali No. 16A, Adarsh Mohalla,
Maujpur, Delhi - 110 031.
2- Smt. Madhu
Wd/o late Shri Mahesh Kumar,
daughter-in-law of Shri Ram Prasad (deceased)
R/o 707/35, Gali No.14,
Adarsh Mohalla, Maujpur,
Delhi - 110 031. ....Respondents.
Date of institution of appeal : 01.12.2011
Date when final arguments were heard: 21.02.2013
Date of pronouncement of judgment :05.03.2013.
JUDGEMENT :-
Appellate jurisdiction of this Tribunal has been invoked under Section 38 of Delhi Rent Control Act (hereinafter (RCT Appeal No.93/2011) (Page 1 of 15) referred to as "DRC Act"), feeling aggrieved by the order dated 21.10.2011 passed by learned Additional Rent Controller (Central), Delhi whereby the eviction petition filed by petitioner Smt. Gian Wati Devi/landlady against the respondents under Section 14(1)(a) of DRC Act in respect of the suit premises i.e. one shop on the ground floor in the property bearing No.4340 at 4, Ansari Road, Darya Ganj, New Delhi was dismissed.
2- Briefly stated the facts giving rise to the filing of the present appeal are that the appellant Yogesh Chandra is the legal heir/son of Smt. Gian Wati Devi. She claiming herself to be the owner/landlady of the suit premises had filed an eviction petition against respondent No.1 inter alia on the allegations that Shri Ram Prasad - father of respondent No.1 was original tenant in the abovesaid shop and after his death, none of his legal heirs excepting respondent No.1 came forward to attorn to the petitioner as landlady. Respondent No.1 paid monthly rent of Rs.2,200/- excluding all other charges since 01.10.1998 to the petitioner but the respondent has not paid rent since 01.04.1999 and therefore he was in arrears of rent since 01.04.1999 and has refused to pay or tendered the rent despite repeated requests and demands by the petitioner /landlady. The petitioner also claimed to have sent a legal notice dated 13.12.1999 which was duly served upon the respondent No.1 but he has not paid the arrears of rent within two months despite service of legal notice. It was averred that it has come to the knowledge of the petitioner that there are certain disputes (RCT Appeal No.93/2011) (Page 2 of 15) between the heirs of Shri Ram Prasad (since deceased) and matter is also sub-judice in the Hon'ble High Court of Delhi. Smt. Madhu claiming to be daughter in law (wife of predeceased son) of Ram Prasad had filed an application under Section 27 of DRC Act in the court of Addl. Rent Controller but she has no right, title or interest in the suit premises.
3- An application under Order I rule 10 CPC was filed by Smt.Madhu claiming herself to be tenant in the suit premises and that application was allowed by the Trial Court vide order dated 04.04.2002 as the petitioner had raised no objection and as such Smt. Madhu was impleaded as respondent No.2. Though respondent No.1 stopped appearing in the Trial Court and was proceeded ex parte, respondent No.2 contested the eviction petition by filing written statement, wherein she denied the allegations made in the petition. She took the preliminary objections that the petition has been filed in connivance with respondent No.1 just to defeat the valuable rights of respondent No.2 in the tenanted shop. It was further alleged that respondent No.1 was never a tenant under the petitioner and never came in possession of the tenanted shop. It was also alleged that late Shri Ram Prasad, her father in-law was tenant under Smt. Gyan Wati Devi at a monthly rent of Rs.100/-. Shri Ram Prasad alongwith his son Mahesh Kumar was running a barbar shop under the name and style of M/s M.K. Hair Dresser. Shri Ram Prasad had five sons and a daughter. Mahesh Kumar, husband of respondent No.2 was running (RCT Appeal No.93/2011) (Page 3 of 15) the shop alongwith Ram Prasad, since the date of attaining the age of majority and remaining four sons, including defendant Shri Dalip Kumar were living separately and therefore running business separately. Mahesh Kumar died on 22.01.1996 leaving behind respondent No.2 and one minor son and a daughter. Therefore, respondent No.2 started running business alongwith Ram Prasad and started paying monthly rent of tenanted shop to Smt. Gyan Wati. Shri Ram Prasad died on 15.10.1998 and after death of Shri Ram Prasad, the tenancy right was devolved upon respondent No.2 alone because other legal heirs of late Shri Ram Prasad including Dalip Kumar, were living separately and doing their business separately and independently. Respondent No.2 is continuously running the barbar shop exclusively. At the time of death of Shri Ram Prasad, the rent w.e.f. April, 1998 was due. Respondent No.2 tendered the rent of the tenanted shop to Shri Yogesh, son/Attorney of Gyan Wati. However, he refused to accept the rent every time. Ultimately, the rent was sent through money order w.e.f. 01.04.1998 to 31.12.98. The rent for the months of January, 1999 and February, 1999 was tendered to Shri Yogesh, who again refused to receive the same. Therefore, the rent w.e.f. 01.04.1998 to February, 1999 was sent through Money order to Shri Yogesh Chander, who intentionally did not accept the same. Ultimately, respondent No.2 filed a petition under Section 27 of the DRC Act. A false reply was sent by petitioner alleging that after the death of Ram Prasad, Shri Dalip Kumar, attorned (RCT Appeal No.93/2011) (Page 4 of 15) to her and issued a fresh receipt of Rs.2200/- instead of Rs.100/-. Shri Dalip Kumar, after the death of Shri Ram Prasad had tried to dispossess respondent No.2 from the tenanted shop and she was constrained to file a suit for permanent injunction against him and other legal heirs. A Local Commissioner was appointed to ascertain the actual possession in the tenanted shop who submitted a report that respondent No.2 is in exclusive and peaceful possession of the tenanted shop. The respondents were restrained in that suit from dispossessing her from the suit shop. A suit for partition was also filed. It was alleged that petitioner in connivance with respondent No.1 wanted to take possession of the suit premises. Petition is liable to be dismissed. 4- Petitioner examined AW1 Shri Yogesh Chandra, her attorney, whereas respondent No.2 examined herself as RW1. On the basis of evidence adduced on record, learned Addl. Rent Controller came to the conclusion that the petitioner has failed to prove her case, inasmuch as the legal notice (Ex.AW1/9) was not a valid notice as required under Section 14(1)(a) of DRC Act.
5- Feeling aggrieved by the findings of learned Addl. Rent Controller with respect to dismissal of eviction petition under Section 14(1)(a) of DRC Act, the appellant has preferred this appeal.
6- Notice of the appeal was given to the respondent. Trial court records has also been requisitioned. 7- I have heard Shri Deepak Gupta, Advocate for the Appellant, Shri Khushbir Singh, Counsel for respondent (RCT Appeal No.93/2011) (Page 5 of 15) No.1, Shri Rajesh Gupta, Counsel for respondent No.2 and have perused the record.
8- The basic submission of the learned Counsel for the appellant is that reliance was placed on various authorities before the learned Trial Court and although this was noted by the learned Trial Court, however, the authority has not been dealt with and as such, it is a fit case to remand the matter to the learned Trial Court.
9- On the other hand, it was submitted by the learned Counsel for respondent No.1 that respondent No.1 was proceeded exparte. He was paying rent but a dispute arose between the legal heirs of deceased Ram Prasad, hence litigations were pending. He never received any notice of demand and therefore, rent could not be paid. 10- It was submitted by learned Counsel for respondent No.2 that Shri Ram Prasad was the original tenant and after his death, all his legal heirs became joint tenants in the premises in the suit. Husband of respondent No.2 was working in the shop alongwith his father and after his death, respondent No.2 started working alongwith her father-in- law, Ram Prasad and after his death, the business is being run by her. However, in collusion with respondent No.1, the eviction petition was filed. As and when respondent No.2 came to know about filing of the eviction petition, she moved an application under Order I Rule 10 CPC which was allowed and thereafter, she contested the petition. It was further submitted that the rent was tendered by her time and again to the attorney of the landlady who refused to (RCT Appeal No.93/2011) (Page 6 of 15) receive the same. Thereafter, it was deposited under Section 27 of the DRC Act. A reasoned order has been passed by the learned Addl. Rent Controller which does not suffer from any infirmity. As such, the appeal is liable to be dismissed.
11- I have given my considerable thoughts to the respective submissions of learned Counsel for the parties and have perused the record.
12- The record reveals that eviction petition under Section 14(1)(a) of the DRC Act was filed by Smt. Gyanwati Devi against Dalip Kumar inter alia on the allegations that one shop on ground floor in the building bearing property No. 4340 at 4, Ansari Road, Daryaganj, New Delhi was let out to Shri Ram Prashad. After the death of Shri Ram Prasad, none of his legal heirs, except respondent No.1, came forward to attorn to the petitioner as landlady. The respondent is a tenant under the petitioner at the monthly rent of Rs.2200/- excluding all other charges since 01.10.1998. The respondent paid the rent in respect of the premises in suit upto 31.03.1999. He is in arrears of rent since 01.04.1999. A legal notice of demand dated 13.12.1999 was duly served upon the respondent who orally acknowledge the receipt thereof but failed to tender or pay the rent. Hence the eviction petition was filed. 13- Record reveals that respondent appeared and thereafter, he failed to appear. As such, he was proceeded ex parte. An application under Order I Rule 10 CPC was moved by Smt. Madhu for impleading herself as a party on (RCT Appeal No.93/2011) (Page 7 of 15) the ground that Shri Ram Prasad was the tenant and after his death, she became tenant and not Shri Dalip Kumar, who is her brother in-law. The application was not opposed by the petitioner. As such, the application was allowed. The petition was contested by Smt. Madhu only who took the preliminary objections alleging that the petition has been filed in connivance with respondent No.1 just to defeat the valuable rights of respondent No.2 in the tenanted shop. It was further alleged that respondent No.1 was never a tenant under the petitioner and never came in possession of the tenanted shop. It was also alleged that late Shri Ram Prasad, her father in-law was tenant under Smt. Gyan Wati Devi at a monthly rent of Rs.100/-. Shri Ram Prasad alongwith his son were running barbar shop under the name and style of M/s M.K. Hair Dresser. Shri Ram Prasad had five sons and a daughter. Mahesh Kumar, husband of respondent No.2 was running the shop alongwith Ram Prasad, since the date of attaining the age of majority and remaining four sons, including defendant Shri Dalip Kumar were living and running business separately. Mahesh Kumar died on 22.01.1996 leaving behind respondent No.2 and one minor son and a daughter. Therefore, respondent No.2 started running business alongwith Ram Prasad and started paying monthly rent of tenanted shop to Smt. Gyan Wati. Shri Ram Prasad died on 15.10.1998 and after death of Shri Ram Prasad, the tenancy right was devolved upon respondent No.2 alone because other legal heirs of late Shri Ram Prasad including Dalip Kumar, were living separately and doing (RCT Appeal No.93/2011) (Page 8 of 15) their business separately and independently. Respondent No.2 is continuously running the barbar shop exclusively. At the time of death of Shri Ram Prasad, the rent w.e.f. April, 1998 was due. Respondent No.2 tendered the rent of the tenanted shop to Shri Yogesh, son/Attorney of Gyan Wati. However, he refused to accept the rent every time. Ultimately, the rent was sent through money order w.e.f. 01.04.1998 to 31.12.98. The rent for the months of January, 1999 and February, 1999 was tendered to Shri Yogesh, who again refused to receive the same. Therefore, the rent w.e.f. 01.04.1998 to February, 1999 was sent through Money order to Shri Yogesh Chander, who intentionally did not accept the same. Ultimately, respondent No.2 filed a petition under Section 27 of the DRC Act. A false reply was sent by petitioner alleging that after the death of Ram Prasad, Shri Dalip Kumar, attorned to her and issued a fresh receipt of Rs.2200/- instead of Rs.100/-. Shri Dalip Kumar, after the death of Shri Ram Prasad had tried to dispossess respondent No.2 from the tenanted shop and she was constrained to file a suit for permanent injunction against him and other legal heirs. A Local Commissioner was appointed to ascertain the actual possession in the tenanted shop who submitted a report that respondent No.2 is in exclusive and peaceful possession of the tenanted shop. The respondents were restrained in that suit from dispossessing her from the suit shop. A suit for partition was also filed. It was alleged that petitioner in connivance with respondent No.1 wanted to take possession of the suit premises.
(RCT Appeal No.93/2011) (Page 9 of 15) 14- In order to substantiate her case, petitioner examined AW1 Shri Yogesh Chandra, her power of attorney; whereas respondent No.2 examined herself as RW1. After weighing the evidence led by the parties, learned Trial Court came to the conclusion that there is collusion between petitioner and respondent No.1 which is clear from the fact that the rate of rent was Rs.100/- per month till 31.03.1998 as per rent receipts Ex.AW1/3 and Ex.AW1/4. The same was not increased till September, 1998. Tenant Shri Ram Prasad expired in October, 1998. Till his death, there was no increase in the rate of rent of the suit premises. It was alleged that after the death of Shri Ram Prasad, respondent No.1 approached the petitioner and increased the rent at the rate of Rs.2200/- per month. It was observed that it is beyond the scope of preponderance of probability that respondent No.1 would start paying rent @ Rs.2200/- per month for the same shop for which his father was paying rent @ Rs.100/- only. Moreover, he paid rent for a period of only six months and thereafter stopped paying rent. When the eviction petition was filed, he appeared only once and thereafter did not appear. Therefore, he was proceeded ex parte. Later on, although he started appearing in the court, but never got the ex parte order set-aside nor participated in the proceedings. It was observed that although as per settled law, after death of original tenant, all his legal heirs became joint tenants and petition filed against one of the joint-tenants amounts to petition against other tenants also. However, the interest of joint tenant cannot be (RCT Appeal No.93/2011) (Page 10 of 15) put in peril by other joint tenants. The evidence led by respondent No.2 clearly reflects that attempt was made by her to pay rent to the petitioner, but she refused to receive this rent. As such, it was sent by money order and ultimately the same was deposited in the court under Section 27 of the DRC Act. Not only that respondent No.2 had also filed suit for permanent injunction for restraining respondent No.1 from interfering in the business and restraining the petitioner from taking forcible possession of the shop in question. Learned Trial Court, on the basis of all the evidence, came to the conclusion that respondent No.2 was in possession of the suit premises and never surrendered her joint tenancy rights in favour of respondent No.1 or the other joint tenants.
15- Learned Counsel for the appellant relied upon various authorities, viz.:
- (1995) 1 SCC 537 - Harish Tandon v. Addl.
District Magistrate, Allahabad, UP & Ors.;
- 2000 RLR 74 - Mohd. Yunus v. Nawabudin;
- 1986(2) RCR 428 - Smt. Raj Rani v. Sh.
Gian Chand;
- 1989 RLR 61 - Sushil Kumar, Pushpa Rani
v. Bhagwanti Devi;
- 2008(VIII) Apex Decisions (Delhi) 328 -
Inder Pal Khanna (Sh.) v. Commander
Bhupinder Singh Rekhi (Retd.)
- 1996(III) AD (Delhi) 457 - Prakash Wati
Bali & Another v. Manish Dewan;
(RCT Appeal No.93/2011) (Page 11 of 15)
- 2001 (5) SCC 01 - Ashok Chintaman Juker
& Ors. v. Kishore Pandurang Mantri & Ors.
- 182 (2011) DLT 402 - Jeevan Diesels &
Electricals Ltd. v. M/s. Jasbir Singh Chadha (HUF) & Anr;
- 2010 (170) DLT 07 - Raghbir Singh v.
Sheela Wanti & Anr.;
- AIR 1994 SC 774 - Pushpa Rani & Ors. v.
Bhagwanti Devi & Anr.
16- I have gone through the authorities relied upon by the learned Counsel for the appellant. In Harish Tandon (supra), the general legal preposition has been laid down that heirs of deceased tenant held the building as joint tenants and not as tenants in common. Inder Pal Khanna (Supra), instead of helping the appellant, rather goes in favour of respondents inasmuch as although, it was held that on the death of tenant, tenancy devolves upon legal heirs as joint tenants and notice to one of the joint tenants is sufficient to terminate tenancy and suit cannot be held to be bad for non-joinder of other joint tenants or the legal heirs of the tenants. At the same time, it was held that where out of many, only one or two legal heirs of deceased tenant were in occupation of premises, eviction petition by landlord against those, who are in occupation of premises is a valid petition. It is not necessary for the landlord to implead all the legal heirs of deceased tenant who are not in occupation and possession of the premises. In the instant case, it is the case of respondent No.2 that even during life (RCT Appeal No.93/2011) (Page 12 of 15) time of Ram Prasad, her deceased husband was working with him on the suit shop and after death of her husband, she continued to work with Shri Ram Prasad and after death of Ram Prasad, she was alone in possession of the suit premises. The respondent No.2 has placed on record certified copy of the order dated 20.02.1999 passed by Shri Laxmi Kant Gaur, the then Civil Judge who while disposing of an application under Order XXXIX Rules 1 & 2 CPC in a suit for permanent injunction filed by respondent No.2 against other legal heirs of Shri Ram Prasad, observed that although the other legal heirs of Shri Ram Prasad may have right in the property, but the plaintiff ( i.e. respondent No.2 herein) is in dominant possession of the suit premises. Respondent No.1 herein was restrained from interfering in the business run by plaintiff (respondent No.2 herein). This suit was filed by respondent No.2 in the year, 1999 i.e. much prior to the filing of the eviction petition. That being so, since it was observed that respondent No.2 was in occupation of the premises, as such this authority does not help the appellant. Similarly, Prakash Wati Bali (Supra) does hot help the appellant, inasmuch as in that case, the son, after the death of original tenant, started paying rent and the other legal heirs never objected. Eviction petition was filed only against the son. It was held that since the other legal heirs never asserted their tenancy rights, there was implied surrender of tenancy by the other heirs of deceased-tenant in favour of landlord who alone became the tenant in the disputed premises. Things are entirely (RCT Appeal No.93/2011) (Page 13 of 15) different. In the instant case, the eviction petition was filed in the year, 2001, however, much prior thereto, litigations started between the legal heirs of deceased Ram Prasad. In the year 1999, civil suit for injunction was filed by Madhu against other legal heirs of deceased Ram Prasad claiming herself to be in possession of disputed shop. Thereafter, a suit for partition was filed in the same year by Dalip Kumar against other legal heirs. Smt. Madhu tendered rent to the petitioner which was refused and thereafter, it was sent by money order which was again refused. Thereafter petition under Section 27 of the DRC Act was filed on 09.04.1999. All these go to show at least Smt. Madhu was asserting her tenancy right in the suit premises and, therefore, her impleadment was necessary for deciding the controversy between the parties. It was rightly observed by the learned Addl. Rent Controller that conduct of respondent No.1 reflects his collusion with the petitioner inasmuch as in the petition there was no mention that originally the rate of rent was Rs.100/- per month only. It does not appeal to reason that Shri Ram Prasad would pay rent @ Rs.100/- per month and immediately after his death, his son would increase the rent to Rs.2200/- per month without any additional facilities. Moreover, after paying rent for a period of six months only, he stopped paying rent and when the eviction petition is filed, he appeared only once and then absented himself resulting in ex parte proceedings against him. Thereafter, although, he appeared in the court but never tried to participate in the proceedings by getting the ex parte (RCT Appeal No.93/2011) (Page 14 of 15) order set-aside or filing of written statement or contesting the eviction petition. In fact, the eviction petition has only been contested by Madhu. Under the circumstances, this authority does not help the appellant. Similarly, Ashok Chintaman Juker (Supra) does not help Appellant inasmuch in that case also, it was held that notice to any one of the joint tenants is a valid notice and a suit impleading one of them as defendant is maintainable. It was observed that where after the death of original tenant, there was no partition and the members of his family were paying rent "through one of them" then the tenancy was joint. For the reasons discussed above, the facts of the case in hand are entirely different. After the death of Ram Prasad, the members of his family were not paying rent through respondent No.1; rather, respondent No.2 herself tried to tender the rent which on refusal was deposited in the Court. For the same reasons, the other authorities, relied upon by the learned Counsel for the appellant do not help him. 17- The result of the aforesaid discussion is that the impugned order does not suffer from any infirmity which calls for interference. Under the circumstances, there is no merit in the appeal. Same is dismissed.
Copy of the order be sent to the trial Court alongwith record. Appeal file be consigned to record room.
Announced in open (SUNITA GUPTA) court on 05.03.2013 Rent Control Tribunal: Delhi (RCT Appeal No.93/2011) (Page 15 of 15)