Delhi District Court
Sh. Bakhtawar Singh Decree Holder vs Sh. Subhash @ Pappu & Anr. Judgment ... on 14 May, 2011
IN THE COURT OF SH. VINOD KUMAR GAUTAM :
ADMINISTRATIVE CIVIL JUDGEcum ADDITIONAL RENT
CONTROLER : (NORTH) DELHI.
In Re : Ex. No. 24/10
Unique ID No. 02401C0284922010.
Sh. Bakhtawar Singh Decree Holder.
Versus
Sh. Subhash @ Pappu & Anr. Judgment Debtor
O R D E R
Vide this common order, I shall dispose of the Objections/ Application under Section 47 Order 21 rule 97 & 101 CPC and the application under section 151 CPC filed on behalf of the objectors, i.e., Sh. Ved Prakash Gupta and Sh. Rajinder Gupta.
It has been stated in the aforesaid application under Section 47 Order 21 rule 97 & 101 read with Section 151 CPC by the objectors that they came to know about the exparte judgment and decree dated 04.08.2004 from their mother Smt. Bhagwati Devi, it is further submitted that the Sh. Ram Chander died as a contractual tenant in respect of tenanted premises and after the Ex. No. 24/10 Page No. 1 of 7 death, all his legal heirs including the present applicants became the cotenants by operation of law and they are also in possession of the tenanted premises. It is further stated that the exparte judgment and decree was passed without jurisdiction and that Sh. Ram Chander expired on 12.02.1988 and his tenancy was allegedly terminated on 22.11.1988 vide notice. It is further submitted that the Decree Holder has not impleaded all the legal heirs of late Sh. Ram Chander inspite of having knowledge about the legal heirs and that the Decree Holder was not the owner of the suit property. It is stated that the Decree Holder failed to prove that late Sh. Ram Chander was financially dependent upon the Judgment Debtors at the time of his death and that the Decree Holder has obtained the decree by concealing/suppressing the material facts and it is prayed that the exparte judgment/order and decree dated 04.08.2004 be declared as not executable against the objectors.
In the application under Section 151 CPC, the objectors have submitted that the Decree Holder by misrepresentation got allowed his preponed application and got examined himself and the Bailiff without disclosing the fact that the objections of the objectors are pending for disposal. Even the Ex. No. 24/10 Page No. 2 of 7 Decree Holder has obtained an order for police aid whereas he was fully aware that the police aid can only be obtained with prior sanction of Ld. District Judge and it is further submitted that appeal against the impugned judgment and decree is pending before the Appellate Court and it is prayed that the execution petition be dismissed and warrants of possession be stayed till the disposal of the objections filed by the objectors.
I have carefully gone through the entire material on record and have heard the rival submissions as advanced by Ld. counsel for the parties.
Ld. Counsel for the DH has relied upon on the following authorities.
1. AIR 1996 Kerala 37 (Full Banch)
2. 2005 (1) RCR 1 (Supreme Court)
3. 2006 (2) RCR 258 (Delhi)
4. 158 (2009) DLT 442 (Delhi)
5. 1989 RCR (2) 72 (Rajasthan)
6. 2006 (1) RCR 93 (Uttaranchal) The objections of the objector that the eviction order was passed in his absence and he is a legal heir of original tenant Ex. No. 24/10 Page No. 3 of 7 Late Sh. Ram Chander are all frivolous objection. It was held in Inder Pal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD Delhi as follows:
"It is settled law that on death of tenant, tenancy devolves upon legal heirs as the joint tenancy. LRs are joint tenants and not tenants in common. Once tenancy a joint tenancy, notice to one of joint tenant is sufficient to terminate tenancy and suit cannot be held to be bad for non joinder of other joint tenants or all legal heirs of deceased tenant. Plea of petitioner that petitioner was separately required to be served personally is, therefore, not tenable. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises".
In the case titled as Rajender Kumar Sharma & Ors Vs. Leelawati & Ors. 155 (2008) DLT 383 it was held by the Hon'ble High Court of Delhi that where on the death of original tenant, legal Ex. No. 24/10 Page No. 4 of 7 heirs inherit tenancy as joint tenants then occupation of one of the tenants is occupation of all the joint tenants and it is not necessary for landlord to implead all legal heirs of deceased tenant whether they are living in property or not and that the joint tenancy is one tenancy and is not tenancy split into different legal heirs It was further held that an eviction petition against one of the joint tenant is an eviction petition against all the joint tenants and all joint tenants are bound by the order of the Rent Controller.
The other contention of the objectors that the the judgment and decree dated 08/04/2004 is without jurisdiction is also not tenable in the light of the case titled as K. P. Antony Vs. Thandiyode Plantations (Private) Ltd. (FB), AIR 1996 Kerala 37, wherein the Hon'ble High Court of Kerala has held that it will not be open to a party to challenge a judgment when it is sought to be enforced on the ground that the judgment is based on wrong conclusions or on erroneous findings or on wrong application of law. As the remedy of the aggrieved party in such cases is challenge the same in appeal or revision as the case may be and not to challenge it when it is sought to be enforced.
Ex. No. 24/10 Page No. 5 of 7
DH has also relied upon the case titled as K. L. Diwan & others Vs. Mohan Malhotra & another, 158 (2009) DLT 442 wherein it was held by the Hon'ble High Court of Delhi that the tenants often have the tendency to cling on to cling on to tenanted premises one way or the other despite existence of valid eviction decree and in the process to initiate successive proceedings either in their own name or in name of third parties. Similarly it was held in the case titled as Desh Raj Singh v. M/s. Triveni Engineering & Industries Ltd., CRP No.106 of 2006. D/d. 9.5.2006.
Objectors have relied upon on case titled as Indira Transport Vs. Ratan Lal and others 67 (1997) DLT 544 (DB), Shreenath v. Rajesh AIR 1998 Supreme Court 1827. The facts and circumstances of the above cited authorities are not applicable to the facts and circumstances of the case in the light of my above discussions.
Ld. Counsel for the DH has argued that the DH has been denied the possession of the suit property for a long time on moving of the frivolous objections by the objectors. However Ex. No. 24/10 Page No. 6 of 7 considering the fact that the objections filed by the objectors has no merits and as the the eviction against one of the tenants is an eviction order against all joint tenants and that the proceedings on the application is a proceedings carried out in the present case. Therefore there is no merits in the arguments of the Ld. Counsel for the objectors regarding the DH has concealed the facts on moving of an preponement application by him, hence both the applications filed by the objectors are hereby dismissed.
Announced in the open court on this 14 Day of May, 2011.
th (VINOD KUMAR GAUTAM) ADMINISTRATIVE CIVIL JUDGE cum ADDL RENT CONTROLER (NORTH) : DELHI Ex. No. 24/10 Page No. 7 of 7