Delhi District Court
Smt. Sharda Devi vs Shri Prithvi Raj on 28 August, 2018
In the Court of CCJ cum ARC, Pilot Court (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E317/17
U. ID No. 368/17
In the matter of :
Smt. Sharda Devi
W/o Late Shri Ramesh Chand
R/o H.No. 6306, First Floor,
Gali No. 4, Block No. 6, Dev Nagar
Karol Bagh, New Delhi110005. ...........Petitioner
Versus
1. Shri Prithvi Raj
S/o Jai Ram Dass Phulwaria
Shop at ground floor,
In property no. 6306, Gali No. 4,
Block No. 6, Dev Nagar,
Karol Bagh, New Delhi110005.
2. Raj Kumar (Ravi)
S/o Shri Late Ram Ratan
3. Nirmal Devi
W/o Shri Ganesh Ram
4. Parveen Kumar
S/o Late Shri Ram Ratan
5. Sunita
W/o Shri Gajender Pal Singh
6. Sanjay
S/o Late Shri Ram Ratan
All r/o THuts, 78, Sangli Mess,
Jyoti Rao Phule Marg,
Bhagwan Dass Road,
New Delhi110001. ..........Respondents
Date of institution : 08.05.2017
Date of reserved for judgment : 31.07.2018
E. No. 317/17 Sharda Devi v. Prithvi Raj Page 1 of 17
Date of judgment : 28.08.2018
Decision : Dismissed as rejected
JUDGMENT :
1. An eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises, i.e., Shop situated at ground floor of property bearing no. 6306, Block No. 6, Gali No. 4, Dev Nagar, Karol Bagh, New Delhi as shown in red colour in the site plan annexed with the petition on the ground of bonafide requirement under Section 14 (1) (b) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the petitioner is owner of the suit property. It is submitted that property in question belongs to father in law of the petitioner who executed a Will in favour of the son Shri Deepak, being son of the petitioner has executed a gift deed in favour of the petitioner which was registered on 20.07.2015. The suit property consists of three shops on the ground floor out of which one shop has already been sold and other two shops are in the occupation of the tenants. The tenanted shop is under the tenancy of the respondent and the other shop under the tenancy of the Shri Gulab Chand. The tenanted shop was originally let out to the respondent in the year 1993 on a monthly rent of Rs. 400/. After taking the premises on rent the respondent was running business of trading shoe buckles, trouser buckles and other kind of buckles till December 2016. Thereafter, the respondent kept the shop closed for few days, shifted all the goods and materials to another premises i.e. basement of property number 6305, Block No. 6, Gali No. 4, E. No. 317/17 Sharda Devi v. Prithvi Raj Page 2 of 17 Dev Nagar, Karol Bagh, New Delhi.
3. It is submitted that about three months from the date of filing of petition, the petitioner came to know that the respondent has illegally, unlawfully and without the consent of the petitioner sub let, assigned and parted with the possession of the tenanted premises to one Shri Chandan Singh. The respondent is getting monthly rent of Rs. 50,000/ per month from said Shri Chandan Singh. The sub tenant is running the shop of selling the jeans/ denim garments in the tenanted shop and is having one employee. The said sub tenant opens the tenanted shop daily and also closes the same at odd hours. The petitioner vide notice dated 03.02.2016 terminated the tenancy of the respondent which was duly served but despite notice the respondent has not vacated the premises. It is submitted that the petitioner has come to know that the respondent has shifted to Mumbai permanently and he is running business in Mumbai and legal possession of the shop is not with the respondent. The petitioner had earlier filed eviction petition under Section 14(1)(e) of DRC Act against the respondent which was dismissed by the Court vide order dated 02.12.2016 in eviction petition No. 40/16 (old number) and 80437/16 (New number). The respondent also filed a petition under Section 27 DRC Act against the petitioner in October 2015. It is submitted that neither in the application for leave to defend nor in the affidavit nor in the petition under Section 27 of the DRC Act, the respondent has averred a single word about the sub tenant or the written permission of late Shri Tara Chand of sub letting. It is submitted that father in law of the E. No. 317/17 Sharda Devi v. Prithvi Raj Page 3 of 17 petitioner never executed any document regarding grant of permission for sub letting the tenanted premises.
On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.
4. Summons were served upon the respondent, who appeared and filed their written statement denying all the contentions made by the petitioner in the eviction petition. It is submitted by the respondent that there is no sub letting of the tenanted premises. The tenanted premises was taken on rent by the petitioner namely Prithvi Raj in the year 1992 and at the time of taking the shop in question on rent, Rs. 4 lakhs was paid as pagri to Shri Tara Chand landlord. It is further submitted that since the inception of the tenancy, Shri Chandan Singh, real brother of the respondent, was sitting in the shop in question and running business. It is submitted that the eviction petition is barred by time on the ground of sub letting. The petitioner and all her family members including Shri Tara Chand had been seeing Shri Chandan Singh running business in shop in question since 1992 and never raised any objection to his running business in the tenanted premises alongwith the respondent. The petitioner and her family members have, thus, acquiesced the possession of Chandan Singh and the respondent.
5. It is submitted that even otherwise Tara Chand had permitted in writing on 15.05.1995 Shri Chandan Singh to run business in shop in question after receiving Rs. 1.50 lakhs as consideration thereof. It is submitted that even otherwise the respondent and Shri Chandan Singh are E. No. 317/17 Sharda Devi v. Prithvi Raj Page 4 of 17 real brothers and they had been running business in the shop in question in partnership. They are still running business in the partnership in the name and style of Prithvi Raj Traders. The partnership was in writing but the same had been lost and not traceable despite best efforts. The brothers have now reexecuted a partnership deed dated 02.05.2017 in continuation of the old partnership. It is submitted that the respondent since prior to taking the shop on rent had settled in Mumbai. The possession of the tenanted premises was handed over by Shri Tara Chand to Shri Chandan. The rent was also paid by Shri Chandan to Shri Tara Chand though the receipts are issued in the name of the respondent.
6. It is further submitted that Smt. Sharda Devi i.e. petitioner is neither the owner nor landlady qua the tenanted premises. Late Shri Tara Chand never executed any Will in his life in respect of the suit property. The alleged gift deed is also false and fabricated document as the executant thereof had no right, title or interest in the suit property. Moreover no gift deed was ever executed in respect of the tenanted premises.
7. The allegations of the petitioner that she came to know of the possession of Shri Chandan Singh only three months prior to filing of the eviction petition is false. It is submitted that the petitioner resides above the tenanted premises and comes up and down from the stairs existing by the side of the tenanted premises. She is observing the presence of Shri Chandan Singh in the tenanted shop since inception of tenancy. The tenanted shop never remained closed and the respondent never shifted E. No. 317/17 Sharda Devi v. Prithvi Raj Page 5 of 17 from the shop in question. The business has always run in the shop in question in the name and style of Prithvi Raj Traders. It is submitted that there is no sub letting as falsely alleged. The allegations that the respondent is getting monthly rent of Rs. 50,000/ from Chandan is totally false. It is submitted that in the previous eviction petition and in the DR petition there are no allegations / disputes regarding alleged sub letting.
8. Replication to the written statement was filed by the petitioner, wherein the petitioner has denied all the averments made by the respondent in the written statement and further, reaverred what was averred by her in the original petition.
9. During evidence, petitioner has examined herself as PW1 and deposed on the lines of the petition. Further, she relied upon the following documents :
a) The copy of the gift deed in her favour by her son Deepak : Ex. PW1/1
b) Copy of death certificate of her father in law namely Shri Tara Chand : Mark A
c) The copy of death certificate of her husband Shri Ramesh Chand : Mark B
d) Photocopy of the leave to defend application filed by the respondent in the earlier eviction petition u/s 14(1) (e) DRC Act : Mark C
e) The copy of the legal notice dated 03.02.2016 : Mark D
f) The copy of the postal receipt : Mark E
g) Photocopy of the petition under Section 27 DRC Act filed by the respondent against the petitioner : Mark F
h) Photographs of the tenanted premises : Mark G
i) The site plan of the tenanted premises : Ex. PW1/9
10. In his turn, the respondent examined nine witnesses in his E. No. 317/17 Sharda Devi v. Prithvi Raj Page 6 of 17 evidence. The respondent examined himself as RW1 and deposed on the lines of his written statement. Further, he relied upon the following documents :
a) The original agreement of permission dated 15.05.1995 : Ex.RW1/1
b) The partnership deed dated 02.05.2017 : Ex.RW1/2
c) Original registration certificate of M/s Prithvi Raj Traders : Ex.RW1/3
d) TIN of M/s Prithvi Raj Traders : Mark A
e) Original receipt dated 06.02.2006 for payment of fine to MCD : Ex.RW1/5
f) Original receipt dated 06.11.2007 for payment of fine to MCD : ExRW1/6
g) Original premium noticecumreceipt dated 28.12.1996 issued by LIC : Ex.RW1/7
h) Original premium noticecumreceipt dated 20.09.1997 issued by LIC : Ex.RW1/8
i) Original letter dated 07.07.1998 issued by MCD to Shri Chandan regarding Adhoc Registration Scheme 1997 : Ex.RW1/9
j) Original receipt dated 31.03.2008 for Rs. 1979/ for mix land user charges alongwith copy of application, cheque, customer copy of bill, application and affidavit / undertaking : Ex.RW1/10
k) Photocopy of the statement summary of Chandan Kumar issued by HDFC Bank and Syndicate Bank : Mark B
l) Original retail invoice dated 21.08.2010 for purchase of Dell Vostro note book : Ex.RW1/12
m) Original acknowledgment dated 05.11.1997 in the name of Chandan Kumar : Ex.RW1/13
n) Original LIC premium noticecumreceipt dated 30.03.1995 and 28.12.1994 : Ex.RW1/14
o) Original renewal premium receipt dated 28.11.1993 : Ex.RW1/15
p) Original LIC suspense memorandum dated 09.10.1993 : Ex.RW1/16
q) Original notice dated 27.09.2004 issued by Sahara India Commercial Corporation Ltd. : Ex.RW1/17 Respondent examined his brother Chandan as RW2 who relied upon the documents already exhibited by RW1 and deposed on the same lines as RW1.
RW3 Assistant from the office of LIC produced the summoned record regarding the LIC policy of Chandan Kumar having the address of the tenanted premises. He relied upon Ex. RW1/1.
E. No. 317/17 Sharda Devi v. Prithvi Raj Page 7 of 17RW4 Branch Manager HDFC Bank brought record i.e. the account opening form of Chandan Phulwaria Ex. RW4/1 and statement of account Ex. RW4/2.
RW5Assistant Manager, Syndicate Bank, Dev Nagar Branch, New Delhi produced the summoned record i.e. account opening of Chandan Jai Ram Dass Phulwaria Ex. RW5/1 and also exhibited the pass book issued by the bank to Chandan as Ex. RW5/2.
RW6 UDC from Sales Tax Department produce the RC folder of Sales Tax Department of M/s Prithvi Raj Traders which is already Ex. RW1/3 in the name of owner of Shri Chandan Kumar. The copy of record brought by him including the rent receipt is Ex. RW6/1.
RW7 LDC from office of Executive Engineer Building Department, Karol Bagh Zone brought the general receipt dated 31.03.2008 on account of registration charges for mix user charges which is already Ex. RW1/10. He has also brought form of payment of mix user charges/affidavit undertaking given by Chandan Phulwaria dated 29.03.2008, online adhoc application form of retail shop and receipt of registration fee as Ex. RW7/A (Colly.).
RW8 LDC from Sales Tax Department, ITO brought the dealer profile regarding TIN number issued by Department of Trade and Taxes, Sales Tax Department as Ex. RW8/1 in the name of Chandan Kumar showing himself as proprietor of Prithvi Raj Traders.
RW9 Licensing Inspector, NDMC, Karol Bagh Zone, brought the letter dated 07.07.1998 issued by MCD to Chandan Kumar regarding E. No. 317/17 Sharda Devi v. Prithvi Raj Page 8 of 17 Adhoc Registration Scheme 1997 which is already Ex. RW1/9. He also proved Ex. RW1/5, Ex. RW1/6 and Ex. RW1/13. After cross examination the respondent evidence was closed.
11. The matter was listed for final arguments. At the stage of final arguments, one application under Order 1 Rule 10 CPC r/w Section 151 CPC with documents was filed on behalf of the applicants namely Raj Kumar Ravi, Smt. Nirmala Devi, Praveen Kumar, Smt. Sunita and Sanjay Kumar stating themselves to be coowners of the suit property for their impleadment as respondents being necessary party. The said application was allowed and they were impleaded as respondents. The said applicants have stated that the petitioner has not disclosed the true and real facts of the case. The petitioner has also filed a probate case vide suit number 195/17 in respect of the alleged Will of Late Shri Tara Chand allegedly executed in favour of son of petitioner namely Deepak Kumar. However, the other LRs of the Late Shri Tara Chand filed a civil suit for partition bearing no. 545/1998 before the Hon'ble High Court. It is submitted that during the pendency of the said probate suits bearing no. 195/97 and 545/98, the petitioner had sold ¾ portion of the suit property without disclosing to the Court or to the LRs of late Shri Tara Chand. Hence, the Hon'ble High Court passed an interim order dated 16.11.2005 thereby restraining the parties to the suit to maintain the status quo with regard to possession and title in respect of the suit property till the disposal of the suit. It is submitted that vide order dated 06.02.2007 the Hon'ble High Court disposed the IA number 8978/2006 thereby impleading the E. No. 317/17 Sharda Devi v. Prithvi Raj Page 9 of 17 applicants i.e. respondent no. 2 to 6 as defendants in the said suit. It is submitted by the respondent no. 2 to 6 that Late Shri Tara Chand was their maternal grand father who had died intestate and the petitioner has suppressed the material facts of the case. The applicants / respondents thus impleaded, have also placed on record certified copy of the IA No. 7181/2003 & 7182/20036 in CS(OS)545/ 1998 and probate suit bearing no. 195/7 and 545/98 being relied upon by them. The certified copies of the above orders are mentioned admissible under Section 77 of the Indian Evidence Act. Moreover, the said documents / copies have also been admitted to be correct by the petitioner. Further the respondent Prithvi Raj moved an application under Order 6 Rule 17 CPC r/w Section 151 CPC for amendment in the written statement to incorporate the new facts/ documents disclosed by the respondent no. 2 to 6 as their impleadment in the present matter. However, as certified copies of the documents in the suit for partition as well as probate suit has already been taken on record judicial notice of the same can be taken.
12. Thus, in view of the certified copy of IA No. 7181/2003 & 7182/20036 in CS(OS)545/ 1998 and probate suits bearing no. 195/97 and 545/98, the question of maintainability of the present eviction petition arose as doubt has arisen on the ownership of the petitioner qua the tenanted premises in view of the status quo order of Hon'ble High Court dated 16.11.2005. The respondent no. 2 to 6 have already disputed the ownership of the petitioner over the premises in question as well as existence of landlord tenant relationship between the petitioner and the E. No. 317/17 Sharda Devi v. Prithvi Raj Page 10 of 17 respondent no.1 arose. Hence, the arguments on the point of maintainability were heard alongwith application under Order 6 Rule 17 CPC as well as arguments on the entire petition were heard. GROUNDS OF EVICTION UNDER SECTION 14(1)(b) OF THE ACT:
13. In Bharat Sales Ltd. V. LIC of India, (1998) 3 SCC 1, it has been held that two essential conditions are required to be satisfied to prove subletting as under:
(a) That the alleged subtenant is in exclusive possession, and
(b) That between the tenant and the alleged subtenant, there is a relationship of lessor or lessee.
14. In, Shama Prashant Raje Vs. Ganpatrao, (2007) 7 SCC 522, it has been held by the Hon'ble Apex Court that "on subletting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and monetary consideration, have to be established."
15. Thus, the subtenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered.
16. In the present petition the petitioner has relied upon the gift deed Ex. PW1/1 registered on 20.07.2015 vide which she submits herself to be the owner of the property in question. It is stated that the son of the petitioner was bestowed with the suit property by way of Will by his E. No. 317/17 Sharda Devi v. Prithvi Raj Page 11 of 17 grand father. However, the petitioner concealed the material facts regarding the probate suit bearing no. 195/97 and the partition suit bearing no. 545/98 which are pending before the concerned Courts. Thus, on the basis of the gift deed which has been relied upon by the petitioner, she cannot claim herself to be the lawful owner of the suit property. When the suit property has not been probated in favour of her son namely Deepak, he could not have validly gifted the suit property in the name of his mother. More so there is already an order of status quo by the Hon'ble High Court dated 16.11.2005 in suit number CS(OS)545/1998 and IA No. 7181/2003 & 7182/20036, the certified copy of which is part of record. Hence, the gift deed is found to have been made in complete disregard of the status quo order by the Hon'ble High Court. It is settled law that whoever comes to the Court of law has to come with clean hands without suppressing the material facts. However, the petitioner is found to be deliberately concealing the status quo order and the pendency of earlier litigation regarding same property. One of the arguments of Ld. Counsel for petitioner is that the tenant is no one to challenge the tile of the petitioner. However, the said contention is not found to be tenable. It has been held in the case of T. Arivandandam v. T. V. Satyapal & Another, 1977 AIR 2421 that if on a meaningful normal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise his power under Order VII Rule 11 CPC taking care to see that the ground mentioned therein fulfilled. And, if clever drafting has created the illusion of a cause of action, it should be E. No. 317/17 Sharda Devi v. Prithvi Raj Page 12 of 17 nipped in the bud at the first hearing. Further, in Satish Khosla v. M/s Eli Lilly Ranbaxy Ltd., 71 (1998) DLT 1, it has been held that a litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party. A party must come to the Court with clean hands and must disclose all the relevant facts which may result in appreciating the rival contentions of the parties. In the case of Laurdu Mari David v. Louis Chinnaya Arogiaswamy AIR 1996 SC 2814 it has been held that the party who seeks to avail of the equitable jurisdiction of the Court must comes to the Court with clean hands. Hence, on the ground of concealment of material facts itself the present petition is liable to be rejected. All the more, the ownership of the petitioner over the suit premises is under dispute as no person can pass a better title then he himself has to the other person. The son of the petitioner namely Deepak whose Will is under challenge before the Court of law could not have legally gifted the property in favour of his mother i.e. the petitioner against the status quo order of the Hon'ble High Court. Hence, the present petition is found to be not maintainable.
17. Further more even on merits, the petitioner has failed to prove the ingredients of the Section 14(1)(b) of DRC Act which is discussed as under.
18. In the present case the respondent has stated that the alleged sub tenant is his brother who is occupying the premises in question since E. No. 317/17 Sharda Devi v. Prithvi Raj Page 13 of 17 inception of the tenancy in the year 1992. He has relied upon the documents RW1/1 to Ex. RW1/17 to show that Shri Chandan Kumar is in occupation of the premises in question. Moreover, he has examined seven other formal witnesses other than himself and his brother Chandan Kumar. The said witnesses have proved the documents on record i.e. the LIC premium payment receipts as well as bank statements, receipts of payment of fine to MCD. The above mentioned documents show the address of Shri Chandan Kumar i.e. the alleged sub tenant to be that of property in question. The documents Ex. RW1/1 to Ex. RW1/17 as well as the documents produced by the remaining respondent's witnesses pertains to the year 1993 to 2017. Hence, the petitioner cannot be taken to allege that it is only three months back that she came to know about a sub tenant sitting on the tenanted premises and the respondent having shifted to Mumbai. Petitioner during crossexamination has admitted to be residing above the tenanted premises. Despite residing above the tenanted premises she cannot be taken to say that she has not been seeing the person who used to sit in the tenanted premises which is on the ground floor of the suit property. Further during cross examination, PW1 has stated that she used to notice the person sitting in the shop in question while coming and going to her residence but again said that she never paid any attention who was sitting in the shop. Further she did not know whether Shri Chandan Kumar used to sit at the shop in question since she never paid any attention. She further stated that she does not know the brother of the respondent but later she admitted that Chandan is the E. No. 317/17 Sharda Devi v. Prithvi Raj Page 14 of 17 brother of the respondent. Thus, from the submissions made by the petitioner, it is clear that despite residing on the first floor of the suit property, the petitioner is not clear on the facts of the case as to who used to sit on the tenanted premises located on the ground floor.
19. In the present case the respondent no. 1 has relied upon Ex. RW 1/1 agreement of permission whereby the landlord permitted Chandan Kumar to run the business in the shop. The petitioner has stated that she does not know about any such permission given. However, in view of the documents i.e. the LIC receipt, sale certificate as well as mix land user charges paid by Chandan Kumar vide documents Ex. RW1/1 to Ex. RW 1/17 pertaining to the year 1993 to 2017, the respondent has been able to raise probabilities of permission being granted vide Ex. RW1/1 by the erstwhile landlord namely deceased Tara Chand, the said permission Ex. RW1/1 has not been categorically refuted by the petitioner. It is clear that Shri Chandan Kumar is using the premises since the inception of the tenancy and he is cannot be stated to be sub tenant in the property in question without the permission of the landlord. Moreover, even if it is pleaded by the petitioner that the tenanted premises was let out to respondent no. 1 however Chandan Kumar being the brother of the respondent is using the premises in the capacity of brother of the respondent it cannot be stated that Chandan Kumar is exclusive possession of the premises in question to the exclusion of the respondent no. 1.
20. It has been held in the case of Prem Prakash v. Santosh Kumar E. No. 317/17 Sharda Devi v. Prithvi Raj Page 15 of 17 Jain and Sons (HUF) SLP (C) No. 7149 of 2015 in Civil Appeal No. 11106 of 2017 dated 30.08.2017 the Hon'ble Supreme Court has held that sub tenancy or sub letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In the present case the petitioner has not been able to prove exclusive possession of the alleged sub letee Chandan Kumar. Further she has not been able to prove any mutual agreement or understanding regarding relationship of lessor and lessee between the respondent and the alleged sub tenant. Further she has not been able to prove any such agreement was inacted behind the back of the landlord. Rather from the permission letter Ex.RW1/1 probability has arisen in favour of permission being granted to the sub letee Chandan Kumar by late Shri Tara Chand.
21. In view of the above discussions and the certified copies placed on E. No. 317/17 Sharda Devi v. Prithvi Raj Page 16 of 17 record by respondent no. 2 to 6, no ground is made out for eviction of the respondent no.1 from the tenanted premises u/s 14 (1) (b) of the DRC Act. Accordingly, the present petition stands dismissed as rejected on the ground maintainability as petitioner is not found to be lawful owner of the suit property by way of gift deed relied upon by her as well as on the ground that ingredients of Section 14(1)(b) DRC Act have not been established by the petitioner.
22. Since the present petition has already been dismissed, the application under Order 6 Rule 17 CPC moved on behalf of respondent no. 1 becomes infructuous and accordingly dismissed. In the facts and circumstances of the case, no order as to costs.
Digitally signed by SUSHEEL SUSHEEL BALA DAGAR
BALA DAGAR Date: 2018.08.30
05:55:06 +0530
Announced in open Court (Susheel Bala Dagar)
on 28th Day of August, 2018 Pilot Court,
CCJ cum ARC (Central)
(This judgment contains 17 pages.) Tis Hazari Courts, Delhi.
E. No. 317/17 Sharda Devi v. Prithvi Raj Page 17 of 17