Delhi District Court
Shri Aditya Gupta vs Smt. Maya on 21 November, 2022
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI
RCT No. 30340/2016
CNR No. DLCT010023672016
M/s HANDLOOM MANDAP
THROUGH ITS PROPRIETOR
SHRI SUDHIR GUPTA (DECEASED)
THROUGH HIS LEGAL HEIRS
1. SHRI ADITYA GUPTA
S/o LATE SUDHIR GUPTA
C/o 46UB, JAWAHAR NAGAR
DELHI 110007
ALSO AT : R/o 118, SECOND FLOOR
OLD GUPTA COLONY,
NEAR KALYAN VIHAR, DELHI 110009
2. SHRI VARUN GUPTA
S/o LATE SUDHIR GUPTA
C/o 46UB, JAWAHAR NAGAR
DELHI 110007
ALSO AT : R/o 118, SECOND FLOOR
OLD GUPTA COLONY,
NEAR KALYAN VIHAR, DELHI 110009
.....APPELLANT
VERSUS
1. SMT. MAYA
W/o SHRI ASHOK KUMAR
R/o 1D, MCD FLATS
BUNGALOW ROAD
DELHI 110007
RCT No. 30340/2016 M/s Handloom Mandap vs Maya
RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 1 of 31 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2022.11.21
15:35:11 +0530
2. M/s TAMANNA DEBOUTIQUE PVT. LTD.
AT J1/161A, MAIN MARKET
RAJOURI GARDEN, NEW DELHI 110027
....RESPONDENTS
Date of filing : 23.12.2015
First date before this court : 31.05.2019
Arguments concluded on : 04.11.2022
Date of Decision : 21.11.2022
Appearance : Shri Yashbir Thakur, counsel for appellant
Shri G.P. Thareja, counsel for respondent no. 1
Shri Ajay Kumar proxy counsel for applicant
RCT No. 30214/2016
CNR No. DLCT010006462016
HARIPAL SINGH TANDON
S/o LATE SHRI KARTAR SINGH TANDON
R/o 46UB, JAWAHAR NAGAR
SUBZI MANDI, DELHI 110007
.....APPELLANT
VERSUS
1. SMT. MAYA
W/o SHRI ASHOK KUMAR
R/o 1D, MCD FLATS
BUNGALOW ROAD
DELHI 110007
2. M/s HANDLOOM MANDAP
THOUGH ITS PROPRIETOR
LATE SHRI SUDHIR GUPTA
S/o LATE SHRI H.C. GUPTA
AT 46UB, JAWAHAR NAGAR
DELHI 110007
RESPONDENT NO. 2 THROUGH THEIR LEGAL HEIRS
RCT No. 30340/2016 M/s Handloom Mandap vs Maya
RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 2 of 31 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date: 2022.11.21
15:35:23 +0530
2A. Mr. ADITYA GUPTA
S/o LATE SHRI SUDHIR GUPTA
R/o 118, SECOND FLOOR, OLD GUPTA COLONY
NEAR KALYAN VIHAR, DELHI 110009
2B SHRI VARUN GUPTA
S/o LATE SHRI SUDHIR GUPTA
R/o 118, SECOND FLOOR, OLD GUPTA COLONY
NEAR KALYAN VIHAR, DELHI 110009
....RESPONDENTS
Date of filing : 30.05.2016
First date before this court : 31.05.2019
Arguments concluded on : 04.11.2022
Date of Decision : 21.11.2022
Appearance : Shri Ajay Kumar proxy counsel for appellant
Shri G.P. Thareja, counsel for respondent no. 1
Shri Yashbir Thakur, counsel for respondent no. 2
COMMON JUDGMENT
1. By way of appeal RCT No. 30340/2016, brought under Section 38 of the Delhi Rent Control Act, the appellant tenant M/s Handloom Mandap assailed order dated 24.11.2015 of learned Additional Rent Controller whereby petition filed by the present respondent no. 1 Smt. Maya under Section 14(1)(b) of the Act against the appellant tenant and the respondent no. 2 subtenant was allowed. Same eviction order dated 24.11.2015 of the learned Additional Rent Controller allowing the petition under Section 14(1)(b) of the Act was also challenged by Shri Haripal Singh Tandon, a stranger to the eviction proceedings, claiming himself to be the owner of the subject property. By way of order dated 13.03.2019 in RCT No. 30340/2016, my learned RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 3 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:35:39 +0530 predecessor disposed of the application of Shri Haripal Singh Tandon under Order I Rule 10 CPC, directing that both these appeals would proceed together. Under these circumstances, both these appeals were heard together and are being disposed of by way of this common judgment. For the sake of convenience, parties to these appeals shall be addressed by name.
2. Briefly stated, circumstances leading to these appeals, as culled out of rival pleadings are as follows.
2.1 Smt. Maya, claiming herself to be coowner/landlord to the extent of 2/3rd share in the premises bearing No. 46UB, Jawahar Nagar, New Delhi filed eviction petition under Section 14(1)(b) of the Act against M/s Handloom Mandap and M/s Tamanna De Boutique, pleading that she had purchased the subject property from its erstwhile owners by way of registered Sale Deed dated 19.07.2007; that in one shop (hereinafter referred to as "the tenanted premises") measuring 9 feet 3 inches x 19 feet situated on ground floor of the said larger premises No. 46UB, Jawahar Nagar, New Delhi, Shri Harish Chander Gupta on behalf of M/s Handloom Mandap was inducted as tenant by its erstwhile owners; that Shri Harish Chander Gupta passed away leaving behind his widow and two sons, whereafter the widow also passed away, so sons namely Shri Sukesh Kumar Gupta and Shri Sudhir Gupta completely closed down the business of M/s Handloom RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 4 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:35:51 +0530 Mandap; that thereafter, Shri Sudhir Gupta sublet, assigned or otherwise parted with possession of the tenanted premises in favour of M/s Tamanna De Boutique without written permission from Smt. Maya; that now, M/s Tamanna De Boutique is in exclusive use and occupation of the tenanted premises and for running its business, it has been paying Rs. 80,000/ per month to M/s Handloom Mandap; and that Smt. Maya also issued notice dated 05.01.2013 but received a vague reply.
2.2 In its written statement, M/s Handloom Mandap pleaded that Smt. Maya is neither owner nor landlady of the tenanted premises; that earlier, the entire larger premises bearing No. 46UB, Jawahar Nagar, Delhi was jointly owned by Shri Rajinder Singh Tandon, Shri Haripal Singh Tandon and Shri Harjeet Singh Tandon; that in early 2000 the said larger premises was partitioned and thereby the tenanted premises fell under the exclusive share of Shri Haripal Singh Tandon, who continues to reside on the floor above the tenanted premises; that M/s Tamanna De Boutique has no concern with the tenanted premises, which are in exclusive occupation of M/s Handloom Mandap through its proprietor Shri Sudhir Gupta, selling ladies garments manufactured by M/s Tamanna De Boutique.
2.3 In its written statement, M/s Tamanna De Boutique pleaded that it has no concern with the tenanted premises and that RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 5 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:36:17 +0530 M/s Handloom Mandap is one of its agents working on commission basis for sale of ladies garments and that the tenanted premises are in exclusive use and occupation of M/s Handloom Mandap.
2.4 Smt. Maya filed separate replications in reply to both written statements and reaffirmed the petition contents. In replication, Smt. Maya pleaded that after death of Shri Kartar Singh Tandon, his sons Rajinder Singh Tandon and Shri Harjeet Singh Tandon sold their shares to the extent of 2/3rd of the entire estate left behind by Shri Kartar Singh to Shri Adarsh Oberoi and Shri Om Prakash, who further sold away the same to Smt. Maya; that Shri Haripal Singh Tandon is owner of 1/3rd share of the entire estate and neither Shri Harish Chander Gupta proprietor of M/s Handlook Mandap nor any of his legal heirs paid any rent to Shri Haripal Singh Tandon.
2.5 On the basis of above rival pleadings, trial was conducted before the learned Additional Rent Controller in which Smt. Maya and M/s Handloom Mandap examined one witness each. After hearing both sides, the learned Additional Rent Controller passed the impugned order thereby allowing the eviction petition under Section 14(1)(b) of the Act.
RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 6 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:36:28 +0530 2.5A In the impugned eviction order, the learned
Additional Rent Controller rejected the plea of M/s Handloom Mandap challenging ownership/landlordship of Smt. Maya for the reasons that RW1 (the proprietor of M/s Handloom Mandap) had failed to produce any document to show that Shri Haripal Singh Tandon, after sale of 2/3rd share which included the tenanted premises ever raised any objection to such sale or ever asserted any right of ownership/landlordship over the tenanted premises; that RW1 admitted that except once he never tendered rent to Shri Haripal Singh Tandon and even regarding that one time payment, he did not have any rent receipt; that M/s Handloom Mandap also failed to summon Shri Haripal Singh Tandon as a witness.
2.5B In the impugned eviction order, the learned Additional Rent Controller accepted the allegation of subletting for the reasons that the alleged agency agreement dated 19.07.2012 between M/s Handloom Mandap and M/s Tamanna De Boutique is an unregistered document and not proved in accordance with law by examining the authors or witnesses thereof; that despite service of notice under Order XII Rule 8 CPC, M/s Handloom Mandap and M/s Tamanna De Boutique did not produce records of the sale of goods of M/s Tamanna De Boutique and the consequent monthly commission paid to M/s Handloom Mandap; that there were number of anomalies in the Income Tax Records Ex. RW1/P1 of M/s Handloom Mandap, RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 7 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.11.21 15:36:39 +0530 which anomalies were enlisted in the impugned order itself; and that the alleged agency agreement was sham and created to cover up the actual act of subletting.
3. Hence, the present appeal RCT No. 30340/2016.
3.1 As mentioned above, despite being stranger to the original eviction proceedings, Shri Haripal Singh Tandon also filed an appeal assailing the eviction order dated 24.11.2015, pleading that he is coowner and in exclusive possession of the entire larger premises No. 46UB, Jawahar Nagar, Delhi; that Smt. Maya had instituted eviction proceedings against M/s Handloom Mandap without informing and impleading him in the same; that he came to know about the eviction order passed in those proceedings in favour of Smt. Maya, which had led to filing of appeal RCT No. 30340/2016; that he had filed a civil suit challenging the legality and validity of the registered sale deed executed in favour of Smt. Maya, but that suit got dismissed, so he filed appeal RFA No. 668/2010 before the Hon'ble Delhi High Court; that RFA No. 668/2010 was finally disposed of vide order dated 17.11.2014 and after observing that no oral partition had taken place, the Hon'ble Delhi High Court with consent of parties set aside the findings of the trial court related to the oral partition and kept the question open to be decided in the partition suit, if so filed by Shri Haripal Singh Tandon; that Smt. Maya also filed a RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 8 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:36:50 +0530 suit against Shri Haripal Singh alleging that she had received symbolic possession of the tenanted premises and actual physical possession of the portion possessed by the erstwhile owners and since the interim injunction application was dismissed holding that she had failed to show her possession over the suit property, she filed an appeal but later withdrew the appeal as well as her suit; that it is Shri Haripal Singh Tandon who was receiving rent and managing affairs of the tenanted premises but Smt. Maya colluded with the tenant M/s Handloom Mandap and obtained the eviction order in her favour; that Shri Haripal Singh Tandon was completely unaware about the impugned eviction order till 05.05.2016 when Smt. Maya met him and told that she was going to occupy the tenanted premises, after which on getting no satisfactory response from the occupant, he requested his counsel to inquire about any proceedings and after that inquiry, he came to know about the impugned eviction order; that with the help and aid of the impugned eviction order, Smt. Maya is trying to take possession of the tenanted premises despite the fact that it is Shri Haripal Singh Tandon who being coowner of the larger premises was receiving rent from the tenant M/s Handloom Mandap and till date the larger premises have not been partitioned by metes and bounds; that in terms of the impugned eviction order, the tenant M/s Handloom Mandap may be directed to vacate the tenanted premises but cannot be directed to handover possession thereof to a person who was never in possession thereof; and that in view of RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 9 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.11.21 15:37:00 +0530 various judicial precedents (quoted in the memo of appeal) Shri Haripal Singh Tandon deserved leave of the court to maintain the present appeal.
4.1 Alongwith its appeal RCT No. 30340/2016, M/s Handloom Mandap also filed an application under Order XLI Rule 27 CPC, pleading that Smt. Maya had deliberately concealed truth from court; that in Civil Suit No. 619060/2016 titled Maya vs M/s Handloom Mandap, Smt. Maya got the service of summons effected on M/s Handloom Mandap at the tenanted premises for appearance in the court of Additional District Judge, Central, Tis Hazari Courts, Delhi and in the said suit, Smt. Maya placed on record a copy of Sale Deed dated 19.07.2007, copy whereof was supplied to M/s Handloom Mandap subsequent to passing of the impugned eviction order; that Smt. Maya had deliberately concealed the said Sale Deed dated 19.07.2007 from the learned Additional Rent Controller, as according to the same, the tenanted premises did not fall to her share in the oral partition and rather the tenanted premises fell to the share of Shri Haripal Singh Tandon; that since earlier a copy of the said Sale Deed was not in possession of M/s Handloom Mandap, additional evidence be allowed to be adduced.
4.2 Smt. Maya opposed the application under Order XLI Rule 27 CPC by way of detailed reply, pleading that the said RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 10 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:37:09 +0530 registered Sale Deed was well within the knowledge of M/s Handloom Mandap before the trial court as would be evident from notice dated 05.01.2013 Ex. PW1/9 issued by Smt. Maya to M/s Handloom Mandap before filing the eviction petition, but M/s Handloom Mandap opted not to prefer remedies by way of production/discovery of the said registered Sale Deed and also did not try to obtain certified copy thereof from the office of Sub Registrar concerned; that admittedly, a partition suit is presently pending in the court of learned Additional District Judge in respect of entire larger premises including the tenanted premises, as such the said Sale Deed does not help M/s Handloom Mandap, especially because Shri Haripal Singh Tandon admittedly has only 1/3rd undivided share in the tenanted premises while Smt. Maya has 2/3rd undivided share in the tenanted premises.
Therefore, according to Smt. Maya it is not a fit case to permit additional evidence.
5. In the backdrop of above pleadings and evidence, arguments were advanced on behalf of M/s Handloom Mandap, Smt. Maya and Shri Haripal Singh Tandon on the appeal as well as application under Order XLI Rule 27 CPC.
5.1 Learned counsel for M/s Handloom Mandap argued that Smt. Maya played fraud on the court of Additional Rent Controller by concealing the registered Sale Deed dated RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 11 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:37:18 +0530 19.07.2007, whereby the tenanted premises fell to the share of Shri Haripal Singh Tandon, insofar as had she not concealed the same, her eviction petition would have been dismissed; that there is no allegation in pleadings or evidence to the effect that M/s Tamanna De Boutique is in exclusive possession of the tenanted premises; that according to the said Sale Deed dated 19.07.2007 the tenanted shop had gone to the share of Shri Haripal Singh Tandon by way of oral partition between three sons of Shri Kartar Singh, so Smt. Maya did not become owner thereof and in the alternate, if the oral partition is rejected, Shri Haripal Singh Tandon being atleast coowner of the tenanted premises ought to have been impleaded as he is objecting to the eviction of M/s Handloom Mandap by way of his separately filed appeal; that in view of order dated 17.11.2014 of the Hon'ble Delhi High Court in RFA 668/2010, Sale Deed dated 19.07.2007 in favour of Smt. Maya fails and therefore the impugned eviction order is bad in law; that Smt. Maya further played fraud by selling away a shop adjoining the tenanted premises to one Shekhar Bajaj by way of Sale Deed dated 25.07.2016, claiming again herself to be the sole and absolute owner on the basis of oral partition, despite herself having filed a partition suit against Shri Haripal Singh Tandon in May 2016. Learned counsel for M/s Handloom Mandap argued that it would be necessary to bring complete truth before the court by setting aside the impugned eviction order and permitting M/s Handloom Mandap to lead additional evidence.
RCT No. 30340/2016 M/s Handloom Mandap vs Maya
RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 12 of 31 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date: 2022.11.21
15:37:31 +0530
5.2 On the other hand, learned counsel for Smt. Maya
strongly opposed the application under Order XLI Rule 27 CPC contending that it was the duty of M/s Handloom Mandap to act with due diligence and ascertain if Smt. Maya was owner or not; that no fraud was pleaded in the written statement filed by M/s Handloom Mandap; that even despite rejection of the oral partition, Smt. Maya continues to be the owner of 2/3rd of the entire larger premises including the tenanted premises, so the court has to examine only the issue of subletting; that in her eviction petition itself, Smt. Maya had clarified her status as co owner, so it is not a case of fraud. Therefore, according to learned counsel for Smt. Maya it is not a fit case to direct recording of additional evidence.
5.3 Learned counsel for Shri Haripal Singh Tandon supported the submissions of learned counsel for M/s Handloom Mandap, contending that had Smt. Maya not concealed the Sale Deed dated 19.07.2007 from the learned Additional Rent Controller, the eviction petition would have been dismissed since it is Shri Haripal Singh Tandon who is owner of the tenanted premises, therefore, it is a fit case to set aside the impugned eviction order and direct recording of additional evidence.
RCT No. 30340/2016 M/s Handloom Mandap vs Maya
RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 13 of 31 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date: 2022.11.21
15:37:41 +0530
5.4 In rebuttal arguments, learned counsel for M/s
Handloom Mandap submitted that since the fraud by way of concealment of Sale Deed dated 19.07.2007 was revealed only subsequent to the impugned eviction order, it was not possible for M/s Handloom Mandap to plead about the same in the written statement; that in both Sale Deeds dated 19.07.2007 and 25.07.2016, Smt. Maya claimed herself to be the sole owner and not a coowner of the portion other than the tenanted premises; that since in the notice Ex. PW1/9 Smt. Maya falsely stated having purchased the property from Shri Rajinder Singh Tandon and Shri Harjeet Singh Tandon, whereas she had purchased the same from Shri Adarsh Oberoi and Shri Om Prakash, now she cannot claim lack of due diligence on the part of M/s Handloom Mandap, more so, because details of the registration of the Sale Deed dated 19.07.2007 were not disclosed in notice Ex. PW1/9.
5.5 Learned counsel for Smt. Maya also assailed the survival of this appeal, contending that in view of Section 2(l) of the Act, after death of Shri Sudhir Gupta, against whom the impugned eviction order was passed, his legal representatives have no right to carry on with this appeal further. On this aspect, learned counsel for M/s Handloom Mandap argued that the provision under Section 2(l) of the Act applies only to residential and not to commercial tenancies; that besides, application under Order XXII Rule 3 CPC seeking to substitute Shri Sudhir Gupta RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 14 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:37:49 +0530 with his legal representatives was allowed vide order dated 16.12.2020 with consent of the counsel for Smt. Maya, so now she cannot oppose the same.
6. To begin with, I am unable to agree with the contention of learned counsel for Smt. Maya that since Shri Sudhir Gupta as well as his wife have passed away, in view of the definition of "tenant" under Section 2(l) of the Act, the present appeal ceases to survive. For, it is trite that the scope of the word "tenant" as defined under Section 2(l) pertains only to the residential tenancies while in the present case, purpose of the tenancy was commercial. The legal position in that regard stands clearly settled by way of various judicial precedents, including the cases of Naresh Chadha vs Dharmaveer Singh, RSA No. 19/2004 decided on 03.03.2014 by the Hon'ble Single Judge of the Delhi High Court; Kashev Das vs Prem Nath, AIR 1996 Delhi 47; and Suresh Kumar Kohli vs Rakesh Jain, AIR 2018 SC 2708.
6.1. In the case of Naresh Chadha (supra) the Hon'ble Single Judge of the Delhi High Court observed thus :
"4. It is trite that under the Delhi Rent Control Act, a tenant as is defined under Section 2(l) of the Delhi Rent Control Act 1958, as a person who inherits rights of a statutory tenant qua residential premises. So far as commercial premises are concerned, it is now settled law in Delhi by virtue of judgment of Gian Devi Anand vs RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 15 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:37:57 +0530 Jeevan Kumar, 1995(2) SCC 683 that rights of a commercial tenant are inherited by all the legal heirs under the Hindu Succession Act and not by the limited legal heirs as specified under Section 2(l) of the Delhi Rent Control Act with respect to residential premises."
6.2 In the case of Suresh Kumar Kohli (supra) the Hon'ble Supreme Court of India traversed through various judicial pronouncements on the issue of heritability of tenancy and reiterated the legal position thus :
"13) In Gian Devi (AIR 1985 SC 796), this Court has held as under:
34. ...... The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The Legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant, only because the tenant died after the contractual tenancy had been terminated.
It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded no protection under the Act. We are of the opinion that in case of commercial premises governed by the Delhi Act, the Legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 16 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:38:05 +0530 inheritance with regard to succession. It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole. It might have been open to the Legislature to limit or restrict the right of inheritance with regard to the tenancy as the Legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the Legislature to alter under the Rent Act, the law of succession regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act. ......
35. ...... These decisions correctly lay down that the termination of the contractual tenancy by the landlord does not bring about a change in the status of the tenant who continues to remain in possession after the termination of the tenancy by virtue of the provisions of the Rent Act. A proper interpretation of the definition of tenant in the light of the provisions made in the Rent Acts makes it clear that the tenant continues to enjoy an estate or interest in the tenanted premises despite the termination of the contractual tenancy."
6.3 Therefore, the argument of learned counsel for Smt. Maya based on Section 2(l) of the Act has to be rejected.
7. Coming to the argument of M/s Handloom Mandap that Smt. Maya played fraud on the court of learned Additional RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 17 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:38:13 +0530 Rent Controller on the issue of ownership of the tenanted premises and consequently qua relationship of tenancy between Smt. Maya and M/s Handloom Mandap, it would be apposite to briefly traverse through the legal position.
7.1 "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. For, ex turpi causa non oritur actio and ex dolo malo non oritur actio. No polluted hand shall touch the pure fountain of justice and no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. Litigation is quest for truth, not a game of chess, so one who approaches the court on forged document or conceals vital document in order to ensure success of their false case must be shown door.
7.2 In the case of Swarn Singh vs Surinder Kumar, CS (OS) 166/1997 decided on 22.12.2010 the Hon'ble Single Judge of the Delhi High Court, while dismissing the suit on account of fraud played on court by the plaintiff, held thus :
"29. I do not agree with the contention of the learned counsel for plaintiff that for moving an application under Section 151 CPC for dismissal of suit there has to be a particular stage or merely because issues have been framed, therefore, the case must be necessarily put to trial. If that is the interpretation to be given to Section 151 of the Code of Civil RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 18 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:38:30 +0530 Procedure, it will not only limit but also prohibit the court in passing effective orders, scuttling the efforts of unscrupulous litigant in dragging the defendant to face a tortuous trial which ultimately must fail on the ground that the case of the plaintiff is not based on truth or the "satya". The Supreme Court in case titled Abdul Gafur & Anr. vs State of Uttarakhand and Ors. (2008) 10 SCC 97 has laid down that the application under Order 7 Rule 11 for rejection of the plaint can be filed at any stage and even in a case where parties have adduced evidence, if the court feels that the plaint is liable to be rejected on any of the grounds mentioned under the said section, it can do so. The purpose of this interpretation is only to highlight that the court should not be found to be powerless in cutting short the journey of a trial by rejecting the plaint in a given case if the court feels so. On the basis of same analogy Section 151 can be used by the court at any stage of the trial, as it is repository of inherent powers of the court to pass such orders in the interest of justice as the situation may warrant in a given case including the trial of the case".
7.3 In the case of S.P. Chengalvaraya Naidu (dead) by LRs vs Jagannath (dead) by LRs & Ors., (1994) 1 SCC 1, the Hon'ble Supreme Court had an occasion to deal with a case of fraud played on court by plaintiff. Jagannath, predecessor in interest of respondents was employed as clerk with one Chunilal. Chunilal obtained a decree against the appellants and at a court auction during execution of decree, Jagannath on behalf of Chunilal purchased property of appellants. By registered deed, RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 19 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:38:40 +0530 Jagannath released all his rights in the said property in favour of Chunilal. Meanwhile, appellants had paid the total decretal amount to Chunilal, so he was not entitled to hold that property. Without disclosing that he had executed release deed in favour of Chunilal, Jagannath filed a partition suit and obtained preliminary decree against the appellants. At the stage of consideration of application for final decree, the appellants came to know about the release deed executed by Jagannath in favour of Chunilal, so they challenged the application for final decree on the ground that nondisclosure of a vital document by Jagannath had vitiated the proceedings and preliminary decree had been obtained by playing fraud on court. Trial court accepted the contention and dismissed the application for final decree. But the High Court set aside the trial court order and held that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The Hon'ble Supreme Court, setting aside the order of the High Court held thus :
"5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such a absurdity that it becomes an engine of fraud in the hands of RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 20 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:38:49 +0530 dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation". (emphasis supplied) 7.4 Similar sentiments of keeping the fountain of justice unpolluted from the unscrupulous litigants were echoed by the Hon'ble Supreme Court in the case of Dalip Singh vs State of Uttar Pradesh, (2010) 2 SCC 114 in following expression :
"For many centuries Indian society cherished two basic values of life i.e. satya (truth) and ahimsa (nonviolence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice delivery system which was in vogue in the pre independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, the post independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 21 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:38:59 +0530 challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final".
7.5 In the case of North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (Dead) by LRs, (2008) 8 SCC 511, the submission before the Hon'ble Supreme Court was that the respondent had obtained the decree by concealing material facts, so the decree was nullity and therefore non consideration of additional material placed on record had resulted in grave miscarriage of justice in the sense that had the application being allowed, the additional evidence brought on record by the appellant would have exposed the fraud played by the respondent and would have made material difference in the findings recorded by the trial court. The Hon'ble Supreme Court held thus :
"13. It is plain that under clause (b) of sub rule (1) of Rule 27 Order 41 C.P.C., with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The scope of the rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur & Ors. Vs. Lal Mohar Thakur & Ors. . While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 22 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:39:08 +0530 patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows: "Under Cl. (1) (b) it is only where the appellate Court 'requires' it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the subclause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent."
14. Again in K. Venkataramiah Vs. A. Seetharama Reddy & Ors. a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim's case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits." (emphasis supplied) 7.6 Not every failure to disclose a fact amounts to concealment and fraud. Failure to disclose only that fact would RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 23 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:39:17 +0530 amount to concealment or fraud, which fact, had it been disclosed, would have led to a decision against the litigant under a duty to disclose that fact.
8. Falling back to the present case, broadly stated, contention of M/s Handloom Mandap is that Smt. Maya concealed the Sale Deed dated 19.07.2007 from the learned Additional Rent Controller and had she not done so, the learned Additional Rent Controller, on finding that the tenanted premises did not fall to the share of Smt. Maya and rather the same fell to the share of Shri Haripal Singh Tandon, would have dismissed the eviction petition on account of nonjoinder of Shri Haripal Singh Tandon. This contention of M/s Handloom Mandap is countered by Smt. Maya on the ground that there was no concealment insofar as nothing prevented M/s Handloom Mandap to carryout due diligence and obtain a certified copy of the Sale Deed dated 19.07.2007 to be filed before learned Additional Rent Controller. On the other hand, contention of Shri Haripal Singh Tandon is that despite his being owner of the tenanted premises by way of oral partition between the parties, he was kept in dark about the eviction proceedings by Smt. Maya and M/s Handloom Mandap in collusion with each other.
9. Admittedly, the registered Sale Deed dated 19.07.2007 executed by Shri Adarsh Kumar Oberoi and Shri Om RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 24 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:39:25 +0530 Prakash in favour of Smt. Maya pertaining to 2/3rd share in larger premises No. 46UB, Jawahar Nagar, Delhi was not brought on record of the eviction proceedings before the learned Additional Rent Controller. According to the detailed recitals of the said registered Sale Deed, the tenanted premises did not form a part of that sale transaction, since the tenanted premises did not fall to the share of the vendors Shri Rajinder Singh Tandon and Shri Harjeet Singh Tandon in the course of oral partition of the larger premises. In other words, the tenanted premises fell to the share of Shri Haripal Singh Tandon in the course of oral partition of the larger premises according to the said Sale Deed. That being so, if the said Sale Deed was brought before the learned Additional Rent Controller, the irresistible inference would have been that Smt. Maya has no relationship of tenancy with M/s Handloom Mandap with regard to the tenanted premises.
10. Further, even in the notice Ex. PW1/9 dated 05.01.2013, Smt. Maya falsely claimed having purchased the 2/3rd share of the larger premises from Shri Rajinder Singh Tandon and Shri Harjeet Singh Tandon by way of registered Sale Deed executed by them on 19.07.2007 and that M/s Handloom Mandap was one of the tenants in the shop situated on the ground floor of the said property, symbolic possession whereof was given to her on 19.07.2007. In reply Ex. PW1/12 dated 19.01.2013, Shri Sudhir Gupta as proprietor of M/s Handloom Mandap RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 25 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:39:35 +0530 specifically claimed that he is a tenant in the tenanted premises under Shri Haripal Singh Tandon and that the sale transaction in favour of Smt. Maya had no concern with the tenanted premises.
11. Despite that, in the eviction petition filed by her, Smt. Maya opted not to implead Shri Haripal Singh Tandon as a party. In the written statement, M/s Handloom Mandap took a clear and specific plea that Smt. Maya is neither owner nor landlord in respect of the tenanted premises and rather the tenanted premises fall under the exclusive share of Shri Haripal Singh Tandon after oral partition. In replication, Smt. Maya, contrary to the recitals of the Sale Deed dated 19.07.2007, went on to even deny that the larger premises No. 46UB, Jawahar Nagar, Delhi had been partitioned amongst its coowners and the tenanted premises came to fall under the share of Shri Haripal Singh Tandon.
12. Even in the chief examination affidavit of Smt. Maya's husband/attorney PW1, Sale Deed dated 19.07.2007 was not proved or even produced before the learned Additional Rent Controller despite such contentious pleadings. On the other hand, in cross examination of Shri Sudhir Gupta, proprietor of M/s Handloom Mandap as RW1, learned counsel for Smt. Maya went on to challenge claim of RW1 that the tenanted premises were owned by Shri Haripal Singh Tandon, by asking as to whether he RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 26 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2022.11.21 15:39:44 +0530 (RW1) could produce any document to show that the tenanted premises fell to the share of Shri Haripal Singh Tandon and RW1 expressed inability. Despite being party to the Sale Deed dated 19.07.2007, Smt Maya, what to say of fairly and honestly producing the same in court, went on to challenge that the tenanted premises formed part of the property purchased by her.
Not only that, learned counsel for Smt. Maya in cross examination of RW1 even extended a suggestion that Smt. Maya is the owner of the tenanted premises.
13. Then comes the argument qua due diligence or lack thereof on the part of M/s Handloom Mandap. According to Smt. Maya, if she did not produce or disclose the Sale Deed dated 19.07.2007 before the learned Additional Rent Controller, nothing prevented M/s Handloom Mandap from obtaining certified copies from the office of SubRegistrar, so for lack of due diligence on the part of M/s Handloom Mandap, benefit cannot be extended to it. Admittedly, no particulars of the registration of the Sale Deed dated 19.07.2007 were disclosed ever during the eviction proceedings to M/s Handloom Mandap by Smt. Maya. Besides, according to notice Ex.PW1/9, the Sale Deed was dated 19.07.2007, but the document, if perused, would show that the same was registered on 12.06.2008, which date was admittedly nowhere disclosed by Smt. Maya. Rather, in notice Ex. PW1/9 dated 05.01.2013, Smt. Maya went on to mislead M/s Handloom RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 27 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:39:54 +0530 Mandap by falsely claiming that she had purchased the tenanted shop from Shri Rajender Singh and Harjeet Singh vide Sale Deed dated 19.07.2007, whereas the said Sale Deed was executed in her favour by Shri Adarsh Oberoi and Shri Om Prakash as sellers. Under these circumstances, Smt. Maya cannot blame M/s Handloom Mandap with lack of due diligence.
14. Most importantly, one cannot ignore that ultimately it is the rights of Shri Haripal Singh Tandon which were being trampled over. Whether or not M/s Handloom Mandap could have obtained with due diligence the Sale Deed dated 19.07.2007 or could have sought discovery and production thereof through orders of the learned Additional Rent Controller, it was the duty of Smt. Maya to present all relevant facts and documents truthfully before the court. Going by the stand of Shri Haripal Singh Tandon, it cannot be ruled out that concealment of the Sale Deed dated 19.07.2007 was a collusive act of Smt. Maya and M/s Handloom Mandap to deprive Shri Haripal Singh Tandon of his rights in the tenanted premises.
15. Contention of learned counsel for Smt. Maya that in the eviction petition she had clearly pleaded her status as a co owner and the legal position being well settled that any coowner even in the absence of other coowners can lawfully maintain an eviction petition, so no fraud was played on the Additional Rent RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 28 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:40:02 +0530 Controller, is not correct. For, pleadings of Smt. Maya in the petition that she is coowner to the extent of 2/3rd share, elaborated by her in the replication denying that the larger premises No. 46 UB, Jawahar Nagar was partitioned amongst its coowners and the tenanted premises fell to the share of Sh. Haripal Singh Tandon, are totally contrary to the contents of the registered Sale Deeds dated 19.07.2007 as well as 25.07.2016. In the Sale Deed dated 19.07.2007, the recitals specifically declared the vendors Sh. Adarsh Kumar Oberoi and Sh. Om Prakash as sole owners in possession of specified portion of the larger premises No. 46 UB, Jawahar Nagar and also specifically mentioned that there was an oral partition of the said larger premises whereby the portion being sold to Smt. Maya had fallen to the share of Sh. Rajinder Singh Tandon and Sh. Harjit Singh Tandon. Similarly, even in Sale Deed dated 25.07.2016 of the portion adjoining the tenanted premises out of the larger premises, Smt. Maya as vendor claimed herself to be sole and absolute owner and in possession of the specified portion being sold, with no other person having any right, title or interest in the same and also mentioned about the oral partition of the larger premises whereby the portion being sold by Smt. Maya had fallen to the share of Sh. Rajinder Singh Tandon and Sh Harjit Singh Tandon.
16. On the issue of oral partition, vide order dated 17.11.2014 in RFA no. 668/2010, what was held by the Hon'ble RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 29 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:40:13 +0530 Single Judge of the Delhi High Court was not that the oral partition did not take place, but that in the suit for declaration and perpetual injunction, the trial court could not have returned a finding to the effect that oral partition had taken place, and that being so, the Hon'ble Single Judge only set aside that finding and clarified that the question would remain open to be decided in the partition suit. Whether or not oral partition of the larger premises took place, Smt. Maya cannot disown her own recitals in the said two Sale Deeds that an oral partition did take place.
17. I have no doubt in my mind that failure on the part of Smt. Maya to disclose before the Additional Rent Controller the Sale Deed dated 19.07.2007 was clearly a vital concealment insofar as the same would have knocked off the very foundation of her eviction petition claiming herself to be the owner and landlord of M/s Handloom Mandap with respect to the tenanted premises.
18. At the same time, it also cannot be ignored that Shri Haripal Singh Tandon, in whose share the tenanted premises fell under the oral partition according to Sale Deeds dated 19.07.2007 and 25.07.2016, in his appeal has not opposed the eviction of M/s. Handloom Mandap from the tenanted premises. According to Shri Haripal Singh Tandon, the impugned eviction order was obtained by Smt. Maya in collusion with M/s. Handloom Mandap. But RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 30 of 31 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2022.11.21 15:40:21 +0530 Shri Haripal Singh Tandon, as mentioned above was not made a party to the eviction proceedings.
19. In the present case, complete facts and material were never placed before the Additional Rent Controller and the impugned eviction order was obtained. Since Smt. Maya obtained the impugned eviction order by concealing the Sale Deed dated 19.07.2007 and by keeping Shri Haripal Singh Tandon uninformed about the eviction proceedings, a lot remains obscure and the interest of justice necessitate that the impugned order be sent aside so that after taking additional evidence the trial court of Additional Rent Controller can pronounce judgment in more satisfactory manner.
20. In view of above discussion, the impugned eviction order is set aside and both appeals are allowed, thereby remanding the matter back to the trial court to proceed further. Trial court record alongwith copy of this judgment be sent to the trial court and appeal files be consigned to records, leaving the parties bear their own cost.
Digitally signed by GIRISH KATHPALIAGIRISH Date: Announced in the open court on KATHPALIA 2022.11.21 15:40:34 +0530 this 21st day of November, 2022 (GIRISH KATHPALIA) Principal District & Sessions Judge (HQs) Rent Control Tribunal (Central) Tis Hazari Courts, Delhi RCT No. 30340/2016 M/s Handloom Mandap vs Maya RCT No. 30214/2016 Haripal Singh Tandon vs Maya Page 31 of 31 pages