Delhi District Court
Sri Ram Gupta vs Radhey Shyam on 14 October, 2022
IN THE COURT OF DR. HARDEEP KAUR, ADDITIONAL
DISTRICT JUDGE-04, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
RCA DJ 33/2020
CNR No.DLST01-004557-2020
Sri Ram Gupta
S/o. Late Sh. Puran Chand
R/o. 8, Mandir Wali Gali,
Yusuf Sarai, New Delhi-110016
..........Appellant
Versus
1. Radhey Shyam
S/o. Late Sh. Badri Prasad
R/o. 8/7, Mandir Wali Gali,
Yusuf Sarai, New Delhi-110016
2. Shyam Sunder,
S/o. Late Sh. Badri Prasad
R/o. 8 / 7, Mandir Wali Gali,
Yusuf Sarai, New Delhi-110016.
(Since deceased and now represented by:
Vipul Sharma S/o. Sh. Shyam Sunder,
R/o. 529/A, Ladu Sarai,
New Delhi-110030.
3. Bimla
W/o Late Sh. Ghanshyam Sharma
R/o. 529 / A, Ladu Sarai,
New Delhi-110030
(Since deceased and her name has been
Ordered to be deleted)
RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 1 of 9
4. Shobha@Lovely Sharma
W/o Late Sh. Navin Sharma
5. Master Yash Sharma minor
S/o Late Sh. Navin Sharma
(service upon respondent no.5 to be affected through his
mother and Guardian Smt. Shobha@ Lovely Sharma as she has been appointed his Guardian by the Lower court vide order dated 24-7-2018)
6. Master Kush Sharma S/o Late Sh. Navin Sharma (service upon respondent no.6 to be affected through his mother and Guardian Smt. Shobha@ Lovely Sharma as she has been appointed his Guardian by the Lower court vide order dated 24-7-2018) Respondents no.4 to 6 resident of :
1743, Udai Chand Marg, Kotla Mubarakpur, Near South Extn.-1, New Delhi-110003
7. Poonam Sharma W/o Sh. Anil Sharma R/o. WZ-350B, Gali No.2. Sri Nag:ma Rani Bagh, Delhi-110034 ..........Respondents Preferred on :28.09.2020 Arguments heard on :26.09.2022 Judgment pronounced on :14.10.2022 J U D G M E NT
1. This is a first appeal preferred by the appellant against the respondents under Section 96 read with Section 151 of the Code of RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 2 of 9 Civil Procedure, 1908 (in short 'CPC') against the judgment and decree dated 04.08.2020 passed by the Ld. JSCC-cum-ASCJ-cum-GJ, South District, Saket Courts, New Delhi in Civil Suit No. 448/2017 titled as 'Sri Ram Gupta Vs. Radhey Shyam And Ors.' wherein and whereby the plaint instituted by appellant/ plaintiff was rejected under Order VII Rule 11 CPC.
2. Brief Facts are as under:
The plaintiff has filed a suit for recovery of possession and mesne profits/ damages for use and occupation of suit property. It is the case of plaintiff that one Badri Prasad (father of defendant no.1 and 2) was a tenant under the plaintiff in respect of one room and one verandah at the property no. 8/7, ground floor, Mandir wali Gali, Yusuf Sarai, New Delhi on rent at the rate of Rs.100/- per month (hereinafter referred to as "Suit Property"). The suit property was let out to Badri Prasad for residential purposes and used by him till his death and now is being used by defendant no.1 and 2. During lifetime of Badri Prasad, plaintiff had served him a notice dated 18.06.2011 for termination of tenancy and demanding possession by 31.07.2011. The said notice was duly replied by Badri Prasad admitting tenancy vide reply dated 26.07.2011, wherein the alleged rate of rent to be Rs.14/- per month. Badri Prasad failed to vacate the suit property during his lifetime but was protected from eviction being tenant under Delhi Rent Control Act, 1958. Upon death of Badri Prasad, his sons i.e. defendant no.1 and 2 had no right to continue living in the suit property.
3. Grounds of Appeal are as under:
RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 3 of 9
i). Ld. Trial Court grossly erred in law to hold that the respondents were tenants in the premises because of Section 2(1)(iii) of the Delhi Rent Control Act. Ld. Trial Court should have held when tenancy of the tenant had been terminated during his life time then succession to the tenancy rights was governed by Explanation I and II of Section2(1)(iii) of the Delhi Rent Control Act. Further, suit of appellant/ plaintiff is not barred by Section 50 of Delhi Rent Control Act.
ii). Ld. Trial Court taking into account contents of para no.11 to 13 of the plaint wherein the appellant has stated that respondent no.1 & 2 were not financially dependent upon the deceased and as the other heirs of another son of Badri Prasad were not living in the tenanted premises so the respondents had got a limited right of residence in the suit premises for a period of one year from the date of death of Badri Prasad and the Ld. Trial Court by further taking into account that as per Explanation II of the Act when the heirs were not financially dependent upon the deceased then they got a limited right of residence of one year and thereafter the respondents did not have any right to live in the suit premises so it should have held that the suit filed by the appellant was maintainable and was not barred by 50 of the Delhi Rent Control Act.
iii). Ld. Trial Court has failed to take into account that tenanted premises was let out to Badri Prasad for residential purposes alone and as the contractual tenancy of Badri Prasad had been terminated by serving notice dated 18.06.2011 upon him during his life time and as wife of Badri Prasad had died during his life-time and as respondent no.1 & 2 were not financially dependent upon Badri Prasad.
RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 4 of 9 Respondent no.3 to 7 were not living in the suit premises at the time of death of Badri Prasad so after the expiry of one year from the death of Badri Prasad from 2/3.12.2013 the respondent no.1 & 2 were living in the suit premises without any right and did not acquire any right of tenancy in the suit premises.
iv). Ld. Trial Court should have taken into account that jurisdiction of Civil Court is barred only when a suit was filed against the tenant for his eviction and as in the present case the suit filed by the appellant for recovery of possession and damages etc., was not against the tenants so the suit as filed was maintainable.
4. No reply to the appeal has been filed on behalf of respondents.
5. Appellant has relied upon the judgments titled as "Rana Ghulam & Ors. Vs. Smt. Naushaba Begum & Ors, RSA 67/2020 & CM Appls. 27164/2020, 27165/2020" & "Krishna Prakash Vs. Dilip Harel Mitra Chenoy, RFA 181/1996".
6. Submissions heard. Record perused.
7. It is relevant to discuss here Section 2 (I)(iii) of the Delhi Rent Control Act, 1958- In the event of the death of person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and II to this clause, such of the aforesaid persons-
(a) spouse,
(b) son or daughter, or, where there are both son and daughter, both of them, RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 5 of 9
(c) parents,
(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include,- (A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso of section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976);
(B) any person to whom a license, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.
Explanation1.-The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:-
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
(c) thirdly, his parents, if there is no surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.
Explanation II.-If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 6 of 9 person on the date of his death, such successor shall acquire such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
8. Perusal of record shows that appellant/ plaintiff averred in his plaint that plaintiff during the lifetime of Late Sh. Badri Prasad had sent notice dated 18.06.2021 by registered AD to Badri Prasad for termination of his tenancy for the suit property and by the said notice Late Sh. Badri Prasad was called upon to vacate and hand over possession of portion of the property in his possession by 31st July, 2011 on the expiry of which date his contractual tenancy was stand terminated and said notice was duly served upon Late Sh. Badri Prasad. Late Sh. Badri Prasad after receipt of that notice dated 18.06.2011 sent his reply dated 26.07.2011 to the plaintiff. In the said reply it was admitted by Late Sh. Badri Prasad that he was tenant in respect of the suit property for a rent of Rs.14/- per month. It is further stated in the plaint that suit property was let out to Late Sh. Badri Prasad for residential purpose and after expiry of 31.07.2011 the contractual tenancy of Sh. Badri Prasad had come to an end. Late Sh. Badri Prasad died on 03.12.2012 leaving behind his sons Sh. Radhey Shyam and Sh. Shyam Sunder- defendant no.1 & 2. Defendant no.3 Smt. Bimla wife of his pre-deceased son Sh. Ganshyam, Sh. Naveen Sharma and defendant no.7 Smt. Poonam Sharma being the son and daughter of his pre-deceased son Late Sh. Ganshyam. Wife of Late Sh. Badri Prasad had died long before the death of Sh. Badri Prasad on RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 7 of 9 03.12.2012.
9. It is also stated in the plaint that when Sh. Badri Prasad had died on 03.12.2012 only defendant no.1 & 2 used to live in the suit property with Late Sh. Badri Prasad and at present only defendant no.1 & 2 are in occupation of the suit property and both were not financially dependent upon Late Sh. Badri Prasad at the time of his death. Hence, they had got a limited right of residence in the suit premises for a period of one year from the date of death of Late Sh. Badri Prasad. As such after the expiry on 2/3.12.2013 defendants are not tenants in the suit premises and have no right to occupy the suit property.
10. In present case as per Explanation I of the Section 2(I)(iii) of the Delhi Rent Control Act, 1958 after the death of the tenant Sh. Badri Prasad who was a statutory tenant at the time of his death, the tenancy would have devolved upon his wife, as his wife had died during the life time of Badri Prasad then the tenancy would have devolved upon respondent no.1 & 2 who were living with Badri Prasad in the tenanted premises but as per Explanation II as respondent no.1 and 2 were not financially dependent upon Badri Prasad at the time of the death of Badri Prasad so respondent no.1 and 2 have acquired a limited right of residence in the suit premises for a period of one year from the date of death of Badri Prasad. Appellant/ plaintiff has filed suit for recovery of possession and mesne profit/ damages against respondents/ defendants on 24.04.2017 after expiry of 4 years 4 months 21 days from the death of Badri Prasad. In view of the provisions of Section 2(I)(iii) & its Explanation I & II of Delhi RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 8 of 9 Rent Control Act, 1958 suit of appellant/ plaintiff is not barred under Section 50 of the Delhi Rent Control Act.
11. In view of the aforesaid discussion, this Court is of the opinion that Ld. Trial Court has wrongly rejected the plaint of appellant/ plaintiff under Order VII Rule 11 CPC. Hence, appeal is accepted, impugned judgment/ decree dated 04.08.2020 is set aside. Ld. Trial Court is directed to adjudicate the suit of plaintiff in accordance with law.
12. Ahlmad is directed to send a copy of this judgment to the Ld. Trial Court along with Trial Court Record.
File be consigned to record room, after due compliance.
Typed to the dictation directly, Digitally signed
corrected and pronounced in the DR by DR
HARDEEP
open Court on 14.10.2022. HARDEEP KAUR
Date:
KAUR 2022.10.15
14:51:03 +0530
(Dr. Hardeep Kaur)
Additional District Judge-04,
South District, Saket Courts, New Delhi
RCA DJ 33/20 Sri Ram Gupta Vs. Radhey Shyam & Ors. Page no. 9 of 9