Delhi District Court
Sh. Rajeshwar Dayal Tyagi vs Sh. Vir Pal Singh on 6 May, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL. RENT CONTROL TRIBUNAL,
KARKARDOOMA COURTS, DELHI
MCA No.09/2010
Unique Case ID No.02402C0050022010
MCA No.29/2010
Unique Case ID No.02402C0282252010
Sh. Rajeshwar Dayal Tyagi ... Appellant
S/o Sh. Sagwa Singh Tyagi
R/o Shop No. 3, property No. H13,
Main Bazar, Laxmi Nagar,
Delhi110092.
Versus
Sh. Vir Pal Singh ... Respondent
S/o Sh. Juggi Singh,
R/o G21, Laxmi Nagar,
Delhi110092.
Date of Institution : 22.02.2010 & 07.10.2010
Date of order reserved : 27.04.2011
Date of order : 06.05.2011
MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 1 of 9
O R D E R
By this common order, I propose to decide both the appeals bearing MCA No.09/2010 and MCA No.29/2010 as the same are between the same parties arise out of the same case. 2 In appeal in MCA No. 09/2010, challenge has been made to impugned order dated 16.12.2009 passed by Ld. ARC whereby application of the appellant under Order I Rule 10 CPC had been dismissed. In MCA No. 29/2010, a challenge has been made to impugned order dated 06.09.2010 whereby application of the appellant under Order VI Rule 17 CPC has been dismissed. 3 Trial court record has been called. I have heard learned counsels for the parties and have gone through the entire material available on the record.
4 The facts, in brief, are that the landlord/ respondent filed an eviction petition under section 14(1)(b) & (j) of the DRC Act against the appellant/ tenant on the ground of subletting and for causing substantial damage to the tenanted premises. During the pendency of the petition, appellant moved an application under Order 1 Rule 10 CPC on the ground to implead one Rakesh Kumar as necessary party in the proceedings. It was claimed that the MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 2 of 9 respondent/ landlord sold the premises in question to said Rakesh Kumar before filing the eviction petition.
5 The said application was dismissed by ld. ARC vide impugned order dated 16.12.2009. Being aggrieved with passing of the impugned order, appellant has preferred the present appeal on the grounds that Sh. Rakesh Kumar is a necessary party for fair adjudication of the eviction petition. At the time of filing reply to the eviction petition, it was not within knowledge of the appellant/tenant that the property was sold to Rakesh Kumar. This fact has been concealed by the landlord/respondent in the eviction petition. 6 The case of the appellant/tenant is that the respondent /landlord sold the tenanted property to one Rakesh Kumar on 21.05.2004 by virtue of GPA and SPA and on the date of filing of eviction petition, respondent was neither owner nor landlord of the tenanted premises.
7 From the perusal of the record, it is apparent that the appellant/tenant moved the application under Order I Rule 10 CPC in which he had mentioned that he collected certified copies of the registered documents with regard to sale of tenanted premises to one Rakesh Kumar and it was specifically mentioned that the said MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 3 of 9 documents were annexed with the application. But the fact remains that no such documents were annexed with the application to show that any such documents with regard to sale of property to Rakesh Kumar were ever executed. It is also important to note that no attornment has been made by the appellant/tenant in favour of said Rakesh Kumar with regard to his tenancy.
8 Moreover, it is admitted case of appellant/tenant himself that there is relationship of landlord and tenant between the respondent Virpal Singh and him. In the absence of anything on the record to show the attornment in favour of said Rakesh Kumar by the appellant, I am of the considered opinion that there is no necessity to implead Rakesh Kumar as necessary party in view of the fact that relationship of landlord and tenant between the parties is not in dispute. Therefore, I do not find any ground which calls for any interference in the impugned order dated 16.12.2009. Same is hereby upheld.
9 Now coming to second appeal i.e. MCA No. 29/2010, appellant has taken the ground that amendment in WS is necessary as respondent/landlord had already sold the tenanted premises to the Rakesh Kumar. After sale of property, respondent herein ceased to be MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 4 of 9 the owner of the same. The respondent herein had no authority to file the eviction petition.
10 The case of the appellant/tenant is that the fact of selling of property to Rakesh Kumar came to his knowledge after filing of written statement. It is submitted that after selling of property, respondent Vir Pal Singh is no more owner or landlord, so the appellant wants to amend his written statement in this regard. 11 The contention of the appellant is that after selling of tenanted premises, respondent herein can not be said to be owner or landlord of the same. It may be true that premises had been sold to Rakesh Kumar, but it does not in any way affect the case of respondent/landlord for eviction of the appellant/tenant as it has not been shown that any attornment in favour of Rakesh Kumar in respect of tenanted premises has been made by the appellant. While deciding the application under Order I Rule 10 CPC, it has already been by me that in the absence of any attornment in favour of Rakesh Kumar, he is not a necessary party. Even selling of tenanted property does not in any way change the status of the landlord in the absence of any specific attornment in favour of the vendee.
12 It is pertinent to mention that the appellant/tenant MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 5 of 9 moved an application under Order 18 Rule 17A CPC for placing on record the documents like GPA and SPA in favour of Rakesh Kumar executed by respondent/landlord. The said application was dismissed by the Ld. ARC vide order dated 10.7.2009. The appellant/tenant preferred an appeal against the said order which was dismissed by this Court vide order dated 20.8.2009. Thereafter, appellant/tenant filed a petition under Article 227 of the Constitution before the Hon'ble High Court. Vide order dated 30.11.2009, the Hon'ble High Court dismissed the petition of the appellant while observing as under: "The counsel states that no prejudice would be caused if the said documents are permitted to be placed on record of the eviction petition especially when the respondent in his reply has not denied the execution of the said document. The document can be permitted to be placed or proved only if it is found to be relevant for the adjudication of the matter in controversy. Since neither the respondent nor any other person has asked the petitioner to pay the rent to any other person as the landlord, the respondent continues to be a landlord of the premises and filing of the said documents is not found relevant for adjudication of the matter under controversy by the Addl. Rent Controller."
MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 6 of 9 13 In view of the finding of the Hon'ble High Court, it is admitted case of the appellant/tenant himself that he is still paying the rent to the respondent Virpal Singh even after the alleged sale of property to Rakesh Kumar. He has not even attorned him to be his landlord inasmuch as he continue to pay rent of the premises to respondent/original landlord Virpal Singh.
14 Ld. counsel for the appellant has relied upon authorities reported as Sushil Kumar Jain vs Manoj Kumar & Anr. [2009] INSC 905; Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors. AIR 2006 SC 1647 and Jai Jai Ram Manohar Lal vs National Building Material Supply, Gurgaon AIR 1969 SC 1267 wherein it has been held that applications for amendment are required to be considered liberally and that amendment of written statement deserves more liberal consideration than an application for amendment of plaint.
15 There is no dispute so far as legal proposition propounded in aforesaid authorities is concerned but fact remains that application of the appellant under Order I Rule 10 CPC seeking impleadment of new owner of the premises, namely, Rakesh Kumar MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 7 of 9 has already been dismissed. Secondly, appellant has nowhere averred attornment in favour of Rakesh Kumar. Moreover, for adjudication of eviction petition under section 14(1)(b) & (j) of the DRC Act, ownership of the premises is not material but relationship of landlord tenant is important and crucial. Therefore, even if it is presumed that respondent was not the owner of the suit premises on the date of filing of eviction petition, it does not in any way affect the case of the appellant.
16 When it is admitted case of the appellant/tenant himself that there still exists relationship of landlord and tenant between the parties and he so admitted in his written statement, he cannot be allowed to amend the same as it is a settled law that the amendment cannot change the nature of suit or petition. Therefore, no fault can be found with impugned orders whereby application of the appellant under Order VI Rule 17 CPC has been dismissed. 17 Consequently, I do not find any illegality, irregularity and impropriety in the impugned orders dated 06.09.2010 and 16.12.2009. Accordingly, both the orders are upheld. Appellant has failed to make out any ground in support of the appeals. Both the MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 8 of 9 appeals are dismissed.
18 A copy of the order along with trial court record be sent back to the concerned Court. A copy of the order passed in MCA No.9/2010 be placed in the file of MCA No.29/2010.
Appeal file be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 06.05.2011 District Judge (East)
Addl. Rent Control Tribunal
Karkardooma Courts : Delhi
MCA No.09/10 & 29/10 Rajeshwar Dayal Tyagi vs.Vir Pal Singh Page 9 of 9