Delhi High Court
Kailash Rani vs Mallo Mall Malhotra & Ors on 20 November, 2017
Author: Jayant Nath
Bench: Jayant Nath
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 20.11.2017
+ CM(M) 952/2016 & CM Nos. 34981-983/2016
KAILASH RANI .....Petitioner
Through Mr.Rajiv Khosla, Mr.Kulbhusan &
Mr.Ajeet Tyagi, Advocates
versus
MALLO MALL MALHOTRA & ORS ..... Respondents
Through Mr. Bhaskar Tiwari & Mr. Amit
Negi, Advocates for R-1, 3 & 4.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. This petitioner is filed under Article 227 of the Constitution of India seeking to impugn the order of the Appellate Court dated 1.7.2016 by which order the said court upheld the order of the trial court dismissing the application of the petitioner under Order XXXIX Rule 1 and 2 CPC and declined to grant any interim orders in favour of the petitioner/plaintiff.
2. The petitioner/plaintiff has filed the suit for declaration and permanent injunction seeking the following reliefs:-
CM (M) 952/2016 Page 1 of 10"(a) Pass a decree of Declaration in favour of Plaintiff and against the defendant no.1 thereby declaring that eviction order/judgment dated 07.05.2015 passed in RC.REV.65/2015 by the Hon‟ble High Court in case titled as "Mallo Mall Malhotra versus Suresh Kumar" and the proceedings related to in the eviction petition bearing nos. E-69/14/12 are null and void as the same have been obtained by playing fraud by Defendant no.1.
(b) Pass a Decree of Permanent Injunction in favour of the Plaintiff and against the Defendants thereby restraining the Defendant no.1 his family members, agents servants, assignees, attorney, associates etc. from operation of the execution of the order/judgment dated 07.05.2015 passed by the Hon‟ble High Court in RC.REV. 65/2015 in case titled as "Mallo Mall Malhotra versus Suresh Kumar"
3. The case of the petitioner is that respondent No.1 had inducted the husband of the petitioner late Sh. Krishan Lal now deceased and his son respondent No.2 as tenants in the suit property being the Ground Floor, bearing Nos. 22-F, Kolhapur road, Kamla Nagar, Delhi110007 at a monthly rent of Rs.150/- w.e.f. 10.06.1979. It is urged that respondent No.1 filed an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter referred as „the Act‟) before the learned Additional Rent Controller (in short „ARC‟) for securing the financial future of his widowed daughter, namely, Ms.Geeta Khattar i.e. respondent No.3. It is the grievance of the petitioner that respondent No.1 filed the eviction petition impleading respondent No.2-one of her sons only, without making the petitioner a party who is alleged to be the other tenant of the suit property. It is urged that respondent No.1 has cleverly termed the tenancy as „Single Tenancy‟ whereas the tenancy was a joint tenancy between respondent No.2 and the late husband of the petitioner Sh. Krishan Lal.
CM (M) 952/2016 Page 2 of 104. It is the case of the petitioner that she had four sons of whom two have expired. It is further stated that respondent No.2 was a co-tenant in the suit property with her but has now started independent business from another premises, though he has not left his claim on the tenanted premises. It is further urged that the petitioner never received summons from any court pursuant to the eviction petition filed by respondent No.1. Respondent No.2 kept the petitioner in dark. It is urged that respondent No.1 and 2 have connived to deprive the petitioner of her valuable rights. Further, it is stated that respondent No.3 the widowed daughter of respondent No.1 is getting handsome amount for her livelihood from the property business being carried out by her and her brother-in-law i.e. respondent No. 4. Hence, it is urged that the order of eviction has been passed fraudulently by not impleading the petitioner who was the real tenant in the premises being the only beneficiary of the suit premises. It is also urged that a fraud has been played by respondent No.1 by getting an eviction order of the said property for respondent No. 3 under the pretext that she has no source of income whereas she has inherited a three storeyed posh house in Pitampura which was purchased in the name of her deceased husband.
5. The perusal of the impugned order would show that the Appellate Court has agreed with the order of the trial court dismissing the injunction application of the petitioner. The Appellate Court in the impugned order held that nothing has been placed on record by the petitioner to show that she was exclusively running business from the tenanted premises. Further, the impugned order holds that the trial court has rightly held that the petitioner was throughout aware about the pendency of the eviction CM (M) 952/2016 Page 3 of 10 proceedings, but despite knowledge, she chose not to contest the eviction proceedings. The impugned order further holds that the petitioner has failed to show that respondent No.1 had concealed any vital or material document from the ARC or from this Court. It is observed that Sh. Tejinder Singh who is the grandson of the petitioner and son of one of her deceased sons, namely, Sh. Gulshan Kapoor, had been served with copy of the summons of the eviction petition which were sent by the ARC. The said Sh.Tejinder Singh had appeared before the trial court to pursue the claim of the petitioner, hence, Sh. Tejinder Singh admittedly, had no ill-will towards the petitioner and there can be no reason to believe that he did not inform the petitioner about the factum of receipt of summons. The impugned order also holds that at best petitioner can be a joint tenant and notice on one of the tenants is sufficient to terminate the tenancy and the eviction petition cannot be held to be bad for non-joinder of other tenants or all the legal heirs of the deceased tenants. The application for stay filed by the petitioner was accordingly dismissed.
6. I have heard the learned counsel appearing on behalf of the parties.
7. Learned counsel for the petitioner has reiterated as follows:-
(a) That respondent No.1 and 2 had played a fraud on the Court and on the petitioner. It is stated that respondent No.1 has admitted that respondent No.2 is carrying on his jewellery business from another premises as is apparent from the perusal of the revision petition filed before this Court by respondent No.1. Petitioner was a necessary party in the eviction petition.
(b) That the widowed daughter of respondent No.1 has inherited a CM (M) 952/2016 Page 4 of 10 number of properties from her deceased husband. It is urged that this Court was misled by respondents No.1 and 3 when this Court passed the eviction order dated 7.5.2015 noting that there is no disclosure of the properties inherited by the widowed daughter from her late husband.
(c) It is reiterated that the petitioner was in possession of the tenanted property and was a necessary and proper party.
8. Learned counsel for the respondent No.1 has reiterated that there is a clear admission in the plaint filed by the petitioner that the tenancy was a joint tenancy. It was further urged that the admitted fact is that the elder son of the petitioner, namely, respondent No.2 was looking after the business. It is inconceivable that he would not have informed his mother i.e. the petitioner about the eviction petition. Reliance is placed on the averments made in the appeal that was filed before the Appellate Court where an averment is made that respondent No.2 used to look after the affairs of the family. It is also reiterated that it was Sh. Tejinder Singh the grandson of the petitioner who received the service of summons from the court of ARC. It is pointed out that it is the own case of the petitioner that immediately after she learnt about the eviction order, she had instructed her grandson Sh.Tejinder Singh who is the son of predeceased son Sh.Gulshan Kapoor to engage a lawyer and inspect the court record. It is implicit that Sh.Tejinder Singh was her close confidant and hence the petitioner was aware of the eviction order.
9. The sum and substance of the plea of the petitioner is that she was a necessary party to the eviction petition and was not served with notice of the petition. Hence, respondent No.1 is guilty of having played a fraud on the CM (M) 952/2016 Page 5 of 10 petitioner and on the court. Based on that, the present suit has been filed for declaration that the eviction order has been obtained by fraud.
10. One cannot help but reach an obvious conclusion that the suit is only an attempt to deny to respondent No.1 the fruits of the eviction order that has been passed by this Court on 7.05.2015.
11. In the eviction petition that was filed by respondent No.1, the ARC vide order dated 23.12.2014 granted leave to defend to respondent No.2. The respondent No.1/landlord thereafter filed a revision petition before this court being RC No.65/2015. This court noted the plea of respondent No.1 mainly i.e. widowed daughter had no means to earn the livelihood for herself and for her children. It also noted that the respondent No.1 had denied that the widowed daughter had inherited any property from her late husband. This court came to the conclusion that the landlord/respondent No.1 had pleaded essential facts including the fact that his widowed daughter has no means to support herself. The plea of respondent No.2 (respondent in the eviction petition) that the landlord had failed to disclose the properties inherited by the widowed daughter was rejected as no details of the alleged properties inherited by the said daughter had been provided by respondent No.2/tenants. This court concluded that no triable issue has been raised by respondent No.2 (respondent in the eviction petition) and accordingly, set aside the order of the ARC and passed an eviction order in favour of respondent No.1.
12. The admitted position is that this order has not been challenged by any one before the higher court. It has attained finality. The suit is filed CM (M) 952/2016 Page 6 of 10 essentially seeking a decree that this eviction order is null and void as having been obtained by playing a fraud. The basic ground for claiming a fraud is that the tenancy was a joint tenancy between the respondent No.2 and the husband of the petitioner late Shri Krishan Lal. On the death of Shri Krishan Lal, it is pleaded that his widow Smt.Kailash Rani, the petitioner was the one who was running the business from the premises and had to be impleaded as a necessary and proper party.
13. The trial court and the appellate court have also prima facie concluded that the petitioner was aware of the filing of the eviction petition, yet took no steps to protect her so called interests. Some of the relevant facts in this regard are that summons in the eviction petition were sent by the ARC at the tenanted premises and were received by Sh.Tejinder Singh. It is an admitted fact that Sh.Tejinder Singh is the grandson of the petitioner. It is also the case of the petitioner that she is running a jewellery shop from the tenanted premises with the help of the wife of Sh.Gulshan Kapoor who is giving her a helping hand in running the jewellery business. Sh.Tejinder Singh is the son of said Sh.Gulshan Kapoor. It is inconceivable that Sh.Tejinder Singh for whose benefit the shop is allegedly being run, would not have informed the petitioner about the receipt of summons in the eviction petition. Further the petitioner herself states that Sh.Tejinder Singh helped her engage a lawyer. It is clear that Sh.Tejinder Singh is her confidant.
14. Therefore, the conclusion arrived in impugned order namely that petitioner had prima facie knowledge about the filing of the eviction petition appears to be correct and there are no reasons to differ with the said view.
CM (M) 952/2016 Page 7 of 1015. Regarding non-impleadment of the petitioner as party, the settled legal position in this regard is that in the case of a joint tenant, service on one tenant is sufficient. The Supreme Court in H.C PANDEY VS. G.C PAUL AIR1989SC1470 held as follows:-
"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidences of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bone (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed."
16. Similarly, in Ashok Chintaman Juker and Ors. Vs. Kishore Pandurang Mantri and Anr., AIR(2001) SC 2251, the Supreme Court held as follows:-
13. In the case of Knaji Manji Vs. The Trustees of the Port of Bombay, MANU/SC/0337/1962: AIR1963SC468, a bench of three learned Judges of this Court, construing the terms of the deed of assignment, observed as follows:-CM (M) 952/2016 Page 8 of 10
"The argument about notice need not detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of that assignment were that "..the Assignors do and each of them both hereby assign and assure with the Assignees as Joint Tenants..".
The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr.B.Sen, in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit."
14. This court in the case of H.C. Pandey vs. G.C.Paul MANU/SC/0209/1989:[1989]2SCR769 taking note of the settled position that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant, held that it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereafter and that is the position as between the landlord and the heir s of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. This Court further held that the respondent acted on behalf of the tenants; he paid rent on behalf of his father and he accepted notice on behalf of all; in the circumstances the notice served under section 106 of the Transfer of Property Act on the respondent was sufficient and it was a valid notice."
17. It is the own case of the petitioner that it was a joint tenancy between her late husband and respondent No.2 her son. On the death of her husband, at best she was a joint tenant. It was not mandatory to implead her as a separate party. Even otherwise, in my opinion, there is no equity in favour of the petitioner. This case appears to be a clever device instituted to stall the CM (M) 952/2016 Page 9 of 10 eviction order passed by this Court on 7.05.2015. It also appears to be an attempt to re-agitate on merits the eviction order passed by this court on 7.5.2015.
18. I also cannot help noticing that the petitioner here is 85 years old. She is unlikely to be independently running a jewellery showroom as is claimed. Prima facie it appears that she is being used as a pawn to frustrate the eviction order.
19. There is no merit in the present petition and the same is dismissed.
20. All pending applications also stand dismissed.
JAYANT NATH, J.
NOVEMBER 20, 2017 'raj' CM (M) 952/2016 Page 10 of 10