Delhi District Court
Khwaja Syed Mohd. Nizami vs Salamt Ullah Page.....1 Of 12 on 20 August, 2016
In the court of Ms. Asha Menon, District & Sessions Judge
South East : Saket Courts, New Delhi
RCT/ARCT No. 05/15
1. Khwaja Syed Mohd. Nizami
S/o Late Khwaja Mehdi Nizami
R/o 71 (OLD) 133134 (New)
Basti Hazrat Khawaja Nizamuddin
New Delhi - 110013
2. Khwaja Hasan Sani Nizami (Now Deceased)
.... Appellants
V E R S U S
1. Shri Salamat Ullah
S/o Shri Karamat Ullah
R/o A3, Nizamuddin West
New Delhi 110013
2. Mohd. Ismail
R/o 60 (New) 99/2 (Old) House known
Imli Wala Makan, Kote Basti
Hazrat Nizamuddin
New Delhi 110013
.... Respondents
Appeal presented on : 15.08.2015
Arguments concluded on : 04.08.2016
Judgment on : 20.08.2016
J U D G M E N T
This is an appeal filed under Section 38 of the Delhi Rent Control Act 1958 (hereinafter called the DRC Act) by RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....1 of 12 Khwaja Syed Mohd. Nizami against the order dated 23.03.2015 passed by Ld. Rent Controller, SouthEast, Saket Courts in the Eviction Petition No. E6/2013 titled as Khawaja Hasan Sani Nizami & Anr. Vs. Salamat Ullah.
2. The facts as set out in the appeal are that the appellant and his deceased uncle Khawaja Hasan Sani Nizami had filed an eviction petition under Section 14 (1) (b) of the DRC Act for the eviction of the respondent no. 1 herein, namely, Salamat Ullah, on the ground of sub letting and causing substantial damages to the suit property i.e. one double storey house known as Imli Wali Makan, old Municipal No. 99/2 and new No. 60, inside Kote Basti Hazrat Nizamuddin Aaulia, New Delhi 110013, as joint owners of the suit property. Khawaja Hasan Sani Nizami died during the pendency of the petition on 15.03.2015 leaving behind the appellant as his sole LR.
3. It is submitted that before the Ld. Rent Controller Khawaja Hasan Sani Nizami, as petitioner no. 1 and the present appellant as petitioner no. 2, had submitted an eviction petition under Section 14 (1) (b) and (j) of the DRC Act on the ground that the respondent Salamat Ullah had illegally sublet/parted with the possession of the premises without the permission of the landlord, either oral or in writing, to one Mohd. Ismail and his family members who were in illegal possession as subtenant. It is submitted that after the petitioner no. 1 (since deceased) had RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....2 of 12 examined himself and the matter was fixed for cross examination, an application was moved under Order 1 Rule 10 CPC by the said Mohd. Ismail. Reply to the application was filed by the petitioner on 06.02.2014. Another application was moved by applicant Tahir Ismail under Order 1 Rule 10 CPC on 06.03.2014 and reply was sought from the petitioner on that application as well. Shri Tahir Ismail is the son of Mohd. Ismail. Vide order dated 23.03.2015, the Ld. Rent Controller dismissed the application of Tahir Ismail for impleadment and allowed the application of Mohd. Ismail and the petitioner was directed to file the amended memo of parties.
4. This order has been challenged by the present appellant submitting that 23 years prior to the filing of the petition, the respondent no. 1 namely, Salamat Ullah had raised some illegal construction and made addition and alternation in the tenanted premises as shown in yellow in the site plan, which had devalued the property and had also covered the open portion at points A and B and also put a gate at point C and had tried to obtain a Municipal Number for the same. The appellant has contended that the respondent no. 1 ceased living in the suit premises which was now under the control of Mohd. Ismail and his family and by means of the present application and the submissions of the respondent no. 1 in the WS, a claim was being setup that the tenanted portion was only 70 sq. yards of the total RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....3 of 12 property in Imli Wala Makan and the property had been taken on rent for the sister of the respondent Salamat Ullah on the insistence of the late petitioner no. 1, that the rent agreement should be executed in the name of a male and not in the name of a female and that thus the rent agreement was executed between the late uncle of the appellant and respondent no. 1.
5. It was claimed in the written statement of the respondent no. 1 Salamat Ullah that his sister and Mohd. Ismail had been occupying the said tenanted portion as a tenant of the late petitioner no. 1 and that rents had been tendered to the appellant and his uncle for the last about 38 years and receipts had also been issued. Mohd. Ismail also claimed to have purchased the middle portion being no. 6099/2 opposite G8, measuring 108 sq. yards, Basti Hazrat Nizamuddin West, New Delhi 110013 which is just adjacent to the tenanted premises from one Sugra Begum on 06.07.1978 by way of unregistered GPA, agreement to sell, affidavit, Will and receipt. Another portion bearing No. T33/11A, Basti Hazrat Nizamuddin, New Delhi 110013 having an area of 126.12 sq. yards approximately was purchased by Tahir Ismail on 10.05.1995 from Mohd. Saleem by way of similar documents, while a fourth portion bearing no. 99/3A, Basti Hazrat Nizamuddin, New Delhi having an area of 74.21 sq. yards approximately was purchased by the applicant Mohd. Tahir in the year 2005 from one Smt. Lily Barnadine by RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....4 of 12 way of registered GPA, SPA and Will. Though the present appellant refuted all these claims, according to the appellant, the Ld. Rent Controller wrongly, allowed the impleadment of Mohd. Ismail as respondent no. 2 in the main petition.
6. It is submitted that since the rent agreement was with respondent no. 1 Salamat Ullah and the rent receipts had also been issued to him, Mohd. Ismail was not a necessary party to the eviction petition and ought not to have been impleaded. Further it is submitted that in case he had some independent right to the tenanted premises he could always come under the proviso to Section 25 of the DRC Act. It is further submitted that the Ld. Rent Controller overlooked the fact that if an eviction order is passed against the original tenant who was put into possession by the landlord and that tenant had to vacate the premises being bound by such order, anyone put in possession by such tenant would also be bound by the order of eviction and, therefore also, Mohd. Ismail was not required to be impleaded in the present eviction petition.
7. Thus, the appellant has prayed that this order dated 23.03.2015 be setaside and the application of Mohd. Ismail under Order 1 Rule 10 CPC be dismissed.
8. The respondent no. 1 Salamat Ullah was proceeded exparte vide order dated 07.02.2016. He has not filed any reply to the present appeal. However, respondent no. 2 has filed his RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....5 of 12 reply submitting that the impugned order passed by the Ld. Rent Controller was in accordance with law and did not suffer any error of law and that there was a catena of judgments to hold that a subtenant is a necessary party in the eviction petition under the Rent Control Acts, even though respondent no. 2 was not admitting his capacity as subtenant. He has reiterated the stand taken by respondent no. 1 in his written statement, to which reference has been made herein above, as to the circumstances in which the rent agreement was executed by the late petitioner no. 1 Khawaja Hasan Sani Nizami and the respondent no. 1 Salamat Ullah. It is claimed that the respondent no. 2 had always been accepted and treated as tenant by the petitioners and they had been occupying the tenanted premises without any objection from the side of the petitioners for the last about 38 years.
9. The respondent no. 2 has also reiterated the division of the complete premises namely, Imli Wala Makkan into four premises and that only one was the tenanted premises i.e. Imliwala Makkan, Androon (inside) Kote, Basti Hazrat Khwaja Nizamuddin Aulia New Delhi and that the respondent no. 2 was in possession of the old documents which would establish continued possession since long. He states that he even got Income Tax Registration and several other documents including Passport and Ration Card and various other government documents at the same address and after having purchased an RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....6 of 12 adjacent portion of 6099/2, opposite G8 Nizamuddin West, New Delhi 110013, he had amalgamated the two portions to make a door on the outer wall and used the common wall for construction on the property without any objection from the petitioner. Thus, respondent no. 2 controverts the claim of the petitioner that respondent no. 1 had never sublet or parted with the portion in favour of the respondent no. 2 and has sought dismissal of the eviction petition as it was the respondent no. 2 who was the true tenant of the petitioners. On these grounds, it has been prayed that the appeal be dismissed.
10. An application under Section 5 of the Limitation Act has also been filed explaining that the delay has occurred on the account of time taken in obtaining certified copies and on account of the fact that petitioner no. 1 before the Ld. Rent Controller expired on 15.03.2015 and the petitioner no. 2 before the Ld. Rent Controller was held up in the last rites of his uncle and remained unaware of the order dated 23.03.2015 and came to know of the order only on 30.04.2015.
11. I have heard the submissions of Ld. Counsel for the appellant and Ld. Counsel for the respondent no. 2 and have perused the record.
12. On account of the circumstances pleaded and in the interest of justice, the delay in filing this appeal is allowed and the appeal is considered on merits.
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13. The Ld. Rent Controller in the impugned order has observed that eviction petitions are not title suits and questions of title are not required to be gone into, except for the limited purposes for determining whether the requirements of Section 14 (1) of the DRC Act are fulfilled and that there is no reason for the Ld. Rent Controller to consider the question of title. On the basis of these observations and the further observations that proviso to Section 25 of the DRC Act would protect the interest of persons with independent title to the premises, the Ld. Rent Controller dismissed the application of Tahir Ismail for impleadment holding that he was not required as a party in the eviction suit before it. No appeal has been filed against that decision.
14. However, in respect of the applicant Mohd. Ismail, respondent no. 2 before this court, the Ld. Rent Controller observed that Mohd. Ismail had claimed to be a tenant in a part of the suit premises and the owner in another portion of the property of which the tenanted premises were a part and therefore he was required to be impleaded as party to the eviction petition.
15. The Ld. Rent Controller further held that since an eviction order would operate against the subtenant also, the sub tenant was also required to be heard. This would also avoid multiplicity of the proceedings. Accordingly, the Ld. Rent Controller allowed the application of Mohd. Ismail.
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16. Before this court, the Ld. Counsel for the appellant has contended that subletting had to be in writing, relying on the judgment of the Hon'ble High Court of Delhi in Singer India Ltd. Vs. Chander Mohan Chadha & Ors., 113 (2004) Delhi Law Times 80 (SC) before independent rights could be asserted by the subtenant. However, a perusal of this judgment would show that the Court was not concerned in that case with the question of impleadment as much as the scope of protection available to a subtenant and that subtenant who is covered under Section 14 (1) (b) of the DRC Act could not be evicted on the grounds of subletting or assignment.
17. The other case relied upon by the appellant is the decision of the Hon'ble Supreme Court of India in Biswanath Poddar Vs. Archana Poddar & Anr, Civil Appeal no. 6712 of 2001. In that case, it was held in terms of the provisions of the West Bengal Premises Tenancy Act 1956, section 14 that since the previous consent of the landlord as also intimation in writing in the manner prescribed under the said Act by the tenant as well as by the subtenant within stipulated time thereunder upon the creation of the subtenancy was a mandatory requirement, and since the creation of subtenancy was without such compliance, it was unnecessary for the landlord to implead the subtenant when he sought to evict the original tenant on the ground of unlawful RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....9 of 12 tenancy. The said case being based on the West Bengal Act cannot be of help in deciding the present matter.
18. Reliance has also been placed on the judgment of the Hon'ble High Court of Karnataka titled as Kempahanumia Vs. M/s Allied Motors Service Station & Ors., AIR 2012 Karnataka 100 that impleadment which would enlarge the scope of dispute should not be allowed and that in the present case as well, the impleadment of Mohd. Ismail would only enlarge the scope of inquiry which was whether there was unlawful subletting and unlawful construction.
19. Ld. Counsel for the respondent no. 2 has also filed several judgments. In South Asia Industries Pvt. Ltd. Vs. Sarup Singh & Ors., 1966 AIR 346, the challenge was to an order of eviction that was sought to be executed against a person other than the tenant and it is in that light the following observations were made :
"....... an application under cl. (b) of the proviso to subs (1) of section 14 an assignee or subtenant, as the case may be, should be a proper party. Under this provision an ejectment order can be made only when the assignment or subletting was without the consent of the landlord. If it was with such consent, the assignee or the subtenant would be protected by the Act. An assignee or a subtenant is, therefore, RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....10 of 12 interested in showing that there was the requisite consent. They should hence be entitled to be made parties to the proceedings...."
20. Replying on these observations, it was similarly held by the Hon'ble Karnataka High Court in Yamuna Vs. A. Rama Amit & Ors. AIR 1983 Kant 27,1982 Kar LJ 113 that a tenant and an assignee was a proper party to the proceedings for possession.
21. Other judgments relied upon by the Ld. Counsel for the defendant are of the other Hon'ble High Courts of Rajasthan, Calcutta and Madras High Court and may not be considered in detail at this juncture. However in view of the fact that South Asia Industries Pvt. Ltd. (Supra) was directly dealing with Section 14 (1) proviso (b) of the DRC Act, we may be guided by that judgment.
22. No doubt an eviction order against a tenant would bind all his assignees and people claiming through him including subtenants and that a subtenant who has not sought the written consent of the landlord would not get any protection under Order 14 (1) proviso (b) of the DRC Act and therefore is not really required to be impleaded as a "necessary" party. But the fact remains that the Hon'ble Supreme of India while dealing with the very same Act concluded that such a subtenant or assignee would be a "proper" party.
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23. In these circumstances, there is no error in the conclusion of the Ld. Rent Controller that while the question of title can not be agitated before the Ld. Rent Controller, the question of direct tenancy or subtenancy as claimed by the present respondent no. 2 and the appellant respectively are matters that call for inquiry, and that therefore, the present respondent no. 2 should be impleaded as a party in eviction proceedings before the Ld. Rent Controller.
24. The present appeal is devoid of merits and is therefore dismissed. Nothing in this order shall be a reflection in merits of the case.
25. Copy of order along with TCR be sent back. File be consigned to Record Room.
Announced.
(Asha Menon) District & Sessions Judge South East, Saket Courts New Delhi 20.08.2016 RCT/ARCT No. 05/15 Khwaja Syed Mohd. Nizami Vs. Salamt Ullah Page.....12 of 12