Delhi District Court
In Re vs Shri V. P. Yadav on 8 December, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 10/2020
CNR No. DLWT01-001365-2020
In re:
Rakesh Jain
S/o Late Shri N. K. Jain
R/o H. No. C-7, 2nd Floor
Shivaji Park, Punjabi Bagh
New Delhi-110026. . . . . . . Appellant
Versus
1. Shri V. P. Yadav
S/o Shri Asha Ram
R/o H. No. 252, Nav Shakti Apartment
Sector-19, Rohini, Delhi.
2. Shri Balesh Jain
S/o Late Shri N. K. Jain
R/o B-15, Nav Shakti Apartment
Sector-19, Rohini, Delhi.
3. Shri Umesh Jain
S/o Late Shri N. K. Jain
R/o H-17/62, Sector-7
Rohini, Delhi-110085.
4. Shri Hitesh Jain
S/o Late Shri N. K. Jain
R/o 29-D, A. P. Block
Pitampura, Delhi-110034.
5. Smt. Rita Jain
D/o Late Shri N. K. Jain
R/o 15/36, Nehru Nagar
Ghaziabad, U.P.
RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 1 of 14
6. Smt. Anjani Devi
W/o Late Shri N. K. Jain
R/o B-15, Shakti Apartment
Sector-9, Rohini, Delhi. . . . . Respondents
Date of filing of Eviction Petition : 24.08.2012
Date of impugned judgment : 12.12.2019
Date of filing of the appeal : 19.02.2020
Date of arguments advanced : 18.11.2021
Date of judgment : 08.12.2021
Appearances:
Mr. Sumit Kumar Khatri, Advocate for the appellant / tenant.
Mr. Mukesh Goel, Advocate for the respondent no.1 / landlord.
Respondents no. 2 to 6 are proforma respondents during the trial.
JUDGMENT
1. This judgment shall decide an appeal preferred under Section 38 of Delhi Rent Control Act, 1958 (in short, 'DRC Act') whereby the appellant/tenant has assailed the impugned judgment dated 12.12.2019 passed in the Eviction Petition bearing ARC No.26018/2016 titled 'V. P. Yadav vs. Rakesh Jain & Ors.' by the Court of Mr. Ajay Nagar, the then Ld. ARC (West), THC, Delhi (in short, 'Ld. ARC'), whereby Eviction petition under Section 14(1)(h) of the DRC Act was allowed and Eviction order was passed against the appellant/tenant qua the tenancy premises.
BRIEF FACTS PLEADINGS OF THE PETITIONER/LANDLORD
2. Briefly stated, the petitioner/landlord-Sh. V. P. Yadav son of RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 2 of 14 Late Sh. Asha Ram filed an Eviction petition under Section 14(1)(h) of the DRC Act claiming that he is the owner of the premises bearing No.C-7, Shivaji Park, Delhi, as shown in red in the site plan Ex. PW-1/4. It was stated that initially Sh. Ram Bhagat Yadav, son of Sh. Surat Singh was the owner/landlord of the tenancy premises, which was let out to Sh. N. K. Jain at a monthly rent of Rs. 100/- excluding other charges for residential purposes; and that Sh.Ram Bhagat Yadav sold and transferred the said property including the tenancy premises in favour of Sh. Tulsi Dass, HUF and Sh.Darvesh Kumar vide registered Sale Deed dated 25.09.1995, copy of which is Ex. PW-1/1 and the said owners thereafter sold the said property including the tenancy premises to Smt. Chandan Devi @ Chandna Devi, wife of Sh. Asha Ram vide registered Sale Deed dated 22.02.1996 Ex. PW-1/2, who expired on 08.11.2001 leaving behind the petitioner/her son and one daughter, namely Smt. Raj Kumari as her sole legal heirs while her husband Sh. Asha Ram had pre-deceased her. It is stated that Smt. Chandan Devi @ Chandna Devi executed a Will dated 28.07.2000 in favour of the petitioner thereby bequeathing all right, title and interest in the property in question including the tenancy premises in favour of the petitioner, which is Ex. PW-1/3.
3. It was further stated by the petitioner that the original tenant-Sh. N. K. Jain attorned in favour of the successive buyers / owners of the property, who also died sometimes in the year 2007 survived by his legal heirs but the tenancy premises remained in the exclusive control and possession of his son Sh. Rakesh Jain. The RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 3 of 14 grievance of the petitioner was that Late Sh. N. K. Jain during the currency of the tenancy had acquired vacant possession or had been allotted a residence bearing Flat No. B-15, Nav Shakti CGHS Apartments, Sector-9, Rohini, Delhi, which after the death of Sh. N. K. Jain, was in the possession of other legal heirs. It was further claimed that even the respondent no.1 had also acquired vacant possession of or has been allotted a residence bearing Flat No. 215, Starlite Apartments, Sector-14 Extension, Rohini, Delhi, and therefore, the legal heirs of Sh.N.K.Jain are liable to be evicted under Section 14(1)
(h) of the DRC Act.
PLEADINGS-WRITTEN STATEMENT
4. The Eviction petition was hotly contested by the respondent-Sh. Rakesh Jain, son of the deceased tenant-Sh. N. K. Jain, who in the written statement, inter alia took preliminary objection to the effect that there was no relationship of landlord and tenant between the parties and claimed that it belong to Sh. Ram Bhagat Yadav, son of Sh. Surat Singh, who was always been their landlord; and that they were never informed that the property had been sold to any other persons during the continuance of tenancy.
5. On merits, it was submitted that the respondent's wife, namely Smt. Asha Jain has been occupying the Flat No. 215, Starlite Apartments, Sector-14 Extension, Rohini, Delhi, which solely belongs to her; and although admitting that the tenancy premises had been let out for residential purposes and being used as such, it was stated that RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 4 of 14 so far as Flat No. B-15, Nav Shakti CGHS Apartments, Sector-9, Rohini, Delhi is concerned, it has never been in possession of Late Sh.N. K. Jain and rather one of the legal heirs, namely Sh. Balesh Jain is residing in the said other premises alongwith his family. It was also stated that Late Sh N. K. Jain has been residing in the tenancy premises alongwith his mother during his lifetime but after his sudden demise, his mother is now residing with him; and it was denied that the respondent had acquired vacant possession or has been allotted a residential Flat No. 215, Starlite Apartments, Sector-14 Extension, Rohini, Delhi.
TRIAL-WITNESSES EXAMINED
6. During the course of trial, the petitioner-Sh.V.P.Yadav examined himself as PW-1 who tendered his detailed affidavit in evidence Ex. PW-1/A dated 09.08.2019 and he also examined another witness PW-2 Sh. Sajid, who produced the original record in respect of Flat No. B-15, Nav Shakti CGHS Apartments, Sector-9, Rohini, Delhi. On the other hand, the respondent-Rakesh Jain came in the witness box and he was examined as RW-1. The witnesses were duly cross- examined by the respective counsels for the parties.
7. It is also pertinent mention here that during the trial, an application under Order 1 Rule 10 CPC was moved by the petitioner to implead Sh. Balesh Jain purportedly since it was also the case of the respondent that Sh. Balesh Jain had been occupying the other property bearing No. 215, Starlite Apartments, Sector-14 Extension, Rohini, RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 5 of 14 Delhi but the said application under Order 1 Rule 10 CPC was dismissed vide order dated 17.02.2014. It appears that the said order was challenged in ARC No. 12/2014 and the Ld. Appellate Court vide order dated 07.11.2014 directed to implead all other legal heirs of the deceased N. K. Jain and the impugned order dated 17.02.2014 was modified with the direction that the remaining legal heirs be also served with the summons of this case. In so far as respondent no.5-Smt. Rita Jain is concerned, a statement was made by the ld. Counsel-Sh. Sumit Kumar Khatri on 02.07.2019 that she adopted the same written statement as was written statement of respondent no.1-Sh. Rakesh Jain. So far as other legal heirs of deceased N. K. Jain, none contested the matter except for respondents no. 2 and 3. Thereafter, apart from RW-1 Rakesh Jain, three more witnesses were examined viz. RW-2 Smt. Anjana Devi and RW-3 Smt. Rita Singhal, who was duly cross-examined by the ld. Counsel for the petitioner.
IMPUGNED JUDGMENT
8. The Ld. ARC vide impugned judgment dated 12.12.2019 held that the petitioner has been able to prove that his mother Smt. Chandan Devi @ Chandna Devi was the owner substantiated by the Sale Deed dated 22.02.1996 Ex. PW-1/2 and became landlord of the premises qua the tenant. It was found that the respondents in the written statement themselves admitted that since the erstwhile owner / landlord had refused to accept the rent, they had deposited the rent under Section 27 of the DRC Act, which exemplified that the respondents were aware of the change in the ownership but they RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 6 of 14 deliberately refused to accept the petitioner as the owner or landlord of the premises, which cannot be justified. Thus, holding that relationship of landlord and tenant existed between the parties, it was found that the premises admittedly been let out for "residential" purposes. Further, the Ld. ARC found that the RW-1 in his cross-examination admitted that his father Sh. N. K. Jain had obtained the possession of the Flat No. B-15, Nav Shakti Apartments, Sector-9, Rohini, Delhi on 30.11.1990 and possession of the same had been delivered to him on 30.03.1991. It was further found that the other premises bearing No. 215, Starlite Apartments, Sector-14 Extension, Rohini, Delhi belong to Smt. Asha Jain, who has been in peaceful enjoyment and occupation thereof. It was observed that even RW-3 Smt. Rita Singhal conceded that Flat No. B-15, Nav Shakti Apartments, Sector-9, Rohini, Delhi had been allotted to her father. Accordingly, the Eviction petition under Section 14(1)(h) of the DRC Act allowed and the Eviction order was passed in favour of the petitioner/landlord and against the respondent/tenant.
GROUNDS OF APPEAL
9. The appellant has filed the present appeal impleading the petitioner / respondent Sh. V. P. Yadav and the other legal heirs of deceased N. K. Jain as proforma respondents. The impugned judgment dated 12.12.2019 passed by the Ld. ARC has been assailed in the present appeal inter alia on the grounds that the Ld. ARC did not appreciate the fact that the respondents no. 2 to 6 were the legal heirs of Late Sh. K. N. Jain; and that Ld. ARC wrongly appreciated that there was any acknowledgment by the appellant or his mother or his sister or RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 7 of 14 for that matter by other legal heirs of Late Sh. N. K. Jain; and that the Ld. ARC did not appreciate the fact that petitioner / landlord had failed to prove that the deceased N. K. Jain had acquired vacant possession or been allotted any property for residence, and therefore, the appellant has prayed that the impugned order be set aside.
DECISION
10. Arguments were advanced by the ld. Counsel for the respondent no.1. Ld. Counsel for the appellant were given sufficient opportunities to address arguments but he did not come forward. Though, ld. Counsel for the appellant was allowed to file written submissions in not more than two pages in bullet forms with relevant case law but the same has not been done. I have perused the documents filed alongwith the present appeal and I have also meticulously perused the oral and documentary evidence recorded by the Ld. Trial Court.
11. In order to decide the present appeal, it would be expedient to refer to provisions of Section 14 (1)(h) of the DRC Act which provides as under:-
"Section 14 : Protection of tenant against eviction - (1) Not withstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant.
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more grounds only.RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 8 of 14
Section 14 (1) (h) : that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted, a residence."
12. It is a settled proposition of law that the object of this provision is not to protect a tenant, if he has legally acquired another residence as a matter of right. The entire setting of Clause (h) sub- Section (1) of 14 of the DRC Act is that if after commencement of the tenancy, the tenant builds, acquires a vacant possession or been allotted a residence, he cannot justify continuance as a tenant in the premises. It is further well settled that it does not lie in the mouth of the tenant that the other premises is not suitable for his residence and/or his family members. Further, whether the tenant actually uses or mis- uses or does not use the other premises as a residence is also not to be reckoned in deciding an Eviction petition under Section 14(1)(h) of the DRC Act. The aforesaid proposition of law is reflected in the case laws cited by the Ld. Trial Court viz. Vardesh Chander Chanana vs. Prem Nath & Ors., ILR 1981 Delhi 164; Avinash Kaur vs. Beli Ram, ILR 1970 Delhi 651; Indian Cable Company Limited vs. Prem Chandra Sharma, 1989 RLR 495; Hari Shanker Gupta vs. Musaddi Lal, 1970 RCR 783; and Ganpat Ram Sharma & Ors. vs. Smt. Gayatri Devi, 1987 SCR (3) 539. Another proposition of law which should be borne in mind while deciding the present appeal is that once a default is committed by a tenant i.e. one builds, acquires or allotted a residence, he ceases to enjoy the protection of law permanently and at no point of time and under no circumstance, the protection of law is revived, for which, reference can be had to decision in Hem Chand RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 9 of 14 Baid vs. Premwati Parekh, 1979 (2) RCR 328, which proposition of law was upheld in the cited case relied upon by the Ld. ARC titled Ganpat Ram Sharma & Ors. vs. Smt. Gayatri Devi (supra).
FINAL ORDER
13. In the light of the said proposition of law, reverting to the instant case, in so far as relationship of landlord and tenant is concerned, the finding recorded by the Ld. ARC cannot be displaced. Admittedly, Sh.Ram Bhagat Yadav was the original owner of the premises in question including the tenancy portion, who had let out the same to Late N. K. Jain sometimes in the year 1981 initially on rent @ Rs. 100/- per month excluding other charges which lastly stood revised to Rs.550/- per month and it is the own case of the respondent that mother of Sh. Ram Bhagat Yadav was claiming rent from him and issuing rent receipts which are placed on the record and Mark 'A'. It is further proved by PW-1 by producing the originals of Sale Deed dated 25.09.1995 that Sh. Ram Bhagat Yadav sold the entire properly to Sh.Tulsi Dass, HUF and Sh. Darvesh Kumar vide registered Sale Deed dated 25.09.1995 Ex. PW-1/1 and the premises was then sold to Smt. Chandan Devi @ Chandna Devi vide registered Sale Deed dated 22.02.1996 Ex. PW-1/2. It is also uncontroverted testimony of PW-1 that his mother Smt. Chandan Devi @ Chandna Devi expired on 08.11.2001 leaving behind a Will dated 28.07.2000 Ex. PW-1/3 whereby right, title or interest in the premises in question was bequeathed to him.
RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 10 of 1414. Now, the appellant is caught on a wrong foot when it is seen that he has placed on the record treasury challans evidencing deposit of rent under Section 27 of the DRC Act @ Rs. 550/- per month for the month of November, 1996, which is Mark 'B'; for the six months viz. November, 1996 to April, 1997 totalling Rs.3300/- vide Mark 'C' and placing on record Mark 'D' with regard to deposit of rent for four months; and then further Mark 'E', 'F' and 'G' upto September, 1997. He placed on record the format of the application under Section 27 of the DRC Act and vide para (8) stating that the landlord refused to accept notice and it appears that on 07.12.1997, Sh. R. K. Gupta, Advocate appeared for the respondent i.e. Sh. V. P. Yadav and filed his Vakalatnama and the rent was allowed to be withdrawn without prejudice. That would demonstrate that the erstwhile tenant Sh. N. K. Jain had came to know that the property had changed hands and a claim was being made that Smt. Chandan Devi @ Chandna Devi had become owner thereof. Merely because the tenant failed to attorn or acknowledge the buyer of the property as the owner or the landlord would not take away the legal right of Smt. Chandan Devi @ Chandna Devi to claim to demand rent from him during her life time and thereafter by her legal heirs / assignees.
15. That being the case, I have no hesitation in holding that the appellant has come out with a false defence that his father was never a owner or allotted Flat No. B-15, Nav Shakti Apartments, Sector-9, Rohini, Delhi. RW-1 Rakesh Jain in his cross-examination was evasive when he was asked about the documents regarding the aforesaid flat.
RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 11 of 14He claimed ignorance so much so that he evaded questions with regard to whether the said flat was in the name of Sh. Tarun Jain or Sh.N.K.Jain prior to the purchase. He denied any knowledge if his father was owner of Flat No. B-15, Nav Shakti Apartments, Sector-9, Rohini, Delhi after 1991. He even failed to give any evidence as to who among the legal heirs of Sh. N. K. Jain has been in actual physical possessing of such flat since its allotment but at another place in the cross-examination, he played a somersault that it was Sh. Balesh Jain who was in occupation of the said premises. The Ld. ARC has rightly observed that PW-2 Sajid, who brought the summoned record from the Shakti Apartments CGHS Society concerned and his testimony brought out that Sh. N. K. Jain was the original shareholder / member in the society which certificate is dated 02.04.1984 Ex. PW-2/1. It was further proven on record that there was a Conveyance Deed in favour of Sh. Tarun Jain mutator on behalf of Sh.N.K.Jain dated 30.11.1990 and possession appears to have been delivered to Sh.N. K. Jain on 30.03.1991 vide certificate Mark 'C'. The said evidence was further corroborated by RW-3 Smt. Rita Singhal that Flat No. B-15, Nav Shakti Apartments, Sector-9, Rohini, Delhi was allotted to her father except that she was unable to spell out as to when was the possession taken over by her father as she was married and living in her matrimonial home.
16. In view of the above said discussion, I find no illegality, perversity or incorrect approach adopted by the Ld. ARC in reaching the conclusion that the tenant Sh. N. K. Jain after the commencement RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 12 of 14 of the tenancy in the year 1981 or so had acquired or been allotted a residential flat on 30.11.1990, the possession of which was obtained or delivered to him on 30.03.1991. It is further brought on the record that the mother of the appellant viz. Smt. Anjana Devi was also the original allottee of another flat viz. 215, Starlite Apartments, Sector-14 Extension, Rohini, Delhi that was allotted to her on 19.03.2008. The only feeble argument that was advanced by the petitioner is that there was delay in filing the petition. I am afraid that in the cross-examination of PW-1, no question was put to him as to when he acquired knowledge of the deceased Sh. N. K. Jain acquiring or been allotted another residential accommodation. It appears that consequent to RTI regime getting established, requisite information was obtained by the petitioner/landlord and the aforesaid facts came to light. At the cost of repetition, the relevant documents with regard to the aforesaid two flats were never filed by the appellant/tenant. It is unfortunate case where the petitioner / landlord has been denied his legal right to enjoy and possess his own property due to false and motivated defence put forth by the appellant / tenant and therefore, this is a fit case where he should be visited with exemplary costs. It goes without saying that the appellant-Rakesh Jain, who has only contested the Eviction petition tooth and nail was joined by respondents no. 3 and 5, who adopted the written statement filed by the respondent no.1. Respondents no. 2, 4 and 6 were proceeded exparte. The sum result is that respondents no.1, 3 and 5 joined hands with one another and have misused and abused the process of law and they should be held for accountable to pay damages to the rightful owner.
RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 13 of 1417. In view of foregoing discussion, the present appeal assailing the impugned judgment dated 12.12.2019 is hereby dismissed. The Eviction order passed in favour of the respondent no.1/petitioner/landlord and against the appellant/respondent/tenant and others with regard to the property in question as shown in red in the site plan Ex. PW-1/4 is sustained. In the facts and circumstances of the case, the appellant-Sh.Rakesh Jain, respondent no.3-Sh. Umesh Jain and 5 and respondent no.5-Smt.Rita Jain shall be liable to pay exemplary costs, which is quantified to be Rs. 1,10,000/- which by any means is a token amount of compensation, to be paid within a month from this order, who shall be liable to pay the same jointly or severely, failing which they shall be liable to pay interest @ 18% per annum from the date of filing of the Eviction petition i.e. 24.08.2012 till realization. The Trial Court record along-with copy of Judgment be sent back to the Court of Ld. ARC. The appeal file be consigned to Record Room.
Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2021.12.09 17:26:17 +0530 Announced in the open Court (DHARMESH SHARMA) on 8th December, 2021 Principal District & Sessions Judge / RCT (West) Tis Hazari Courts: Delhi RCT No.10/2020 Rakesh Jain vs. V. P. Yadav & Ors. Page 14 of 14