Delhi District Court
Shri Mohd. Ali vs Sheikh Mohd. Yahya on 15 March, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT appeal No. 32/2011
Unique ID No. 02401C0142022011
Shri Mohd. Ali,
S/o Shri Mohabbal Lal,
R/o 65/4, Ground Floor,
New Rohtak Road,
Karol Bagh, New Delhi.
...........Appellant
Versus
1- Sheikh Mohd. Yahya,
S/o Sheikh Mohd. Saeed,
R/o 3331, Bagachi Achheji,
Bara Hindu Rao, Delhi-110 006.
2- Dr. Iqbal Ahmed,
S/o Sheikh Mohd. Saeed,
R/o 3331, Bagachi Achheji,
Bara Hindu Rao, Delhi-110 006.
3- Dr. Abdul Mateen,
S/o Sheikh Mohd. Saeed,
R/o 3331, Bagachi Achheji,
Bara Hindu Rao, Delhi-110 006.
..............Respondents.
Date of institution of appeal : 28.03.2011
Date when final arguments were heard: 29.02.2012
Date of pronouncement of judgment :15.03.2012.
JUDGEMENT :-
Feeling aggrieved by the order dated 25.02.2011, passed by the learned Addl. Rent controller, whereby the objections filed by the Appellant were dismissed, present (RCT Appeal No.32/2011) (Page 1 of 10) appeal has been filed under Section 38 of the Delhi Rent Control Act (hereinafter referred to as "the DRC Act") inter- alia on the grounds that the Respondents filed an eviction petition under Section 14(i)(e) of the Act against Shri V.K. Bhandari & Others with respect to the tenanted property and two rooms on the ground floor of the tenanted property which are under the tenancy of the appellant for the last number of years. The respondents, deliberately did not implead the appellant in the petition and obtained an eviction order by suppressing material facts. The appellant had no notice or knowledge of the passing of the eviction order. All of a sudden, on 02.09.2009, one Court Bailiff alongwith respondents came to the tenanted property and tried to remove the appellant on the basis of warrants of possession issued by the Court. The appellant informed the bailiff that he is a tenant of the respondents with respect to two rooms on the ground floor and he cannot be dispossessed in illegal manner as eviction order has not been obtained against him. The bailiff returned back and thereafter the appellant filed objections on 22.09.2009, submitting therein that the appellant is in possession of two rooms on the ground floor of tenanted property since 1998. His father had taken two rooms on rent from the respondents. Father of the appellant was known to the respondents and their mother used to treat him as her brother, as such, rent was paid in cash and due to good relations, father of the appellant did not insisted for issuance of rent receipts. Initially the rent was being paid @ Rs.300/- per month and thereafter, it was increased to (RCT Appeal No.32/2011) (Page 2 of 10) Rs.400/- per month. For the last about 10 months, respondents stopped accepting rent from him. The electricity connection is in the name of the appellant since the year 2001. There are number of documents viz. electricity bills, water connection bills, telephone bills and other documents in possession of the appellant. The respondent is well aware that the appellant is a tenant of the respondent with respect to two rooms on the ground floor, whereas other portion of the property was in occupation of other tenants, yet without impleading the appellant and the other tenants as party in the proceedings, respondents, in collusion with one Shri V.K. Bhandari & Others, filed the false petition and obtained eviction order, which is not binding upon the appellant. The respondents filed reply to the objections and alleged that the appellant made a statement before the bailiff that he is an employee of the judgment debtor, but in fact no such statement was made by the appellant. Learned Addl. Rent Controller, without conducting any inquiry and asking the parties to lead evidence to prove their respective case, straightway passed the impugned order and dismissed the objections filed by the appellant which are not sustainable under law. The learned Addl. Rent Controller committed grave error in holding that the appellant is required to file separate civil suit for declaration of his title in the property and objection under Section 47 CPC was not maintainable. It was alleged that since the appellant is claiming independent title as a tenant, as such, he can object and get his claim adjudicated when he was sought to be dispossessed (RCT Appeal No.32/2011) (Page 3 of 10) by the decree holder and he need not to wait till he is dispossessed. As such, it was submitted that the impugned order be set-aside.
2- Notice of the appeal was given to the respondents and the trial court record was summoned.
3- I have heard Shri Rajesh Mahindru, Counsel for the Appellant and Shri M. Salim, Counsel for the respondents and have perused the record.
4- It was submitted by the learned Counsel for the Appellant that the appellant was residing in the same property on the ground floor being a tenant in respect of two rooms. As such, the respondents were very well aware about the possession of the appellant, yet, in collusion with Shri V.K. Bhandari, respondents filed the eviction petition and got the eviction order. Respondents have relied upon the report of the bailiff according to which, the appellant met him and sought time to obtain stay order from the Hon'ble Supreme Court. However, the appellant never met the bailiff and did not give any such statement. Moreover, in the eviction petition, it was alleged by the respondents that tenant had sublet the premises to Ananda etc., then how could the appellant be a representative of tenant. At the most, he could be representative of those sub-tenants. It was submitted that the observation of learned Addl. Rent Controller that he has first to deliver the possession and then can only be heard, was wrong. Reliance was placed on Banwari Lal v. Satyanarain &Anr. (1995) 1 SCC 6; Noorduddin v. Dr. K.L. Anand 57 (1995) DLT 321 (SC);
(RCT Appeal No.32/2011) (Page 4 of 10) Babu Lal v. Raj Kumar & Others (1996) 3 SCC 154; Indira Transport v. Rattan Lal & Ors 67 (1997) DLT 544 for submitting that the claim filed by the appellant was required to be adjudicated upon by the learned Addl. Rent Controller instead of dismissing the objections straightaway. As such, it was submitted that the impugned order, being perverse, is liable to be set-aside.
5- Per contra, it was submitted by the learned Counsel for the respondents that the impugned order does not suffer from any infirmity. When the bailiff had gone to the spot, the objector met the bailiff and gave in writing that he will get stay order from the Hon'ble Supreme Court within 1-1/2 hours but when he did not turn back, thereafter, the possession was delivered to the decree holder and since the possession had already been delivered to the decree holder, therefore, the appeal has become infructuous. The remedy, if any, lies with the objector to file a separate suit. One another person has filed a civil suit which is pending in the Hon'ble High Court. As such, it is submitted that the appeal is liable to be dismissed.
6- I have given my considerable thoughts to the respective submission of the learned Counsel for the parties and have carefully gone through the record.
7- Record reveals that the respondents had filed an eviction petition under Section 14(i)(e) r/w Section 25-B of the Act against the V.K. Bhandari, Shri K.K. Bhandari and Smt. Meenakshi Khosla, wherein it was also alleged that the respondents have sublet, assigned or otherwise parted with (RCT Appeal No.32/2011) (Page 5 of 10) possession of the tenanted premises to one Mr. Ananda, Mr. Ashish etc., who are in unauthorised occupation and possession of the tenanted premises. The petition was contested by the respondents Shri V.K. Bhandari & Ors. Vide order dated 12.09.2008, an eviction order was passed against the respondents. Revision was filed against the eviction order which was dismissed vide order dated 18.03.2009. Thereafter, execution petition was filed. During the pendency of the execution petition, objections were filed by the present appellant Shri Mohd. Ali as well as one Shri Murari Lal. Vide impugned order dated 25.02.2011, the objections filed by the Shri Mohd. Ali were dismissed on the ground that although, he claims that his father had taken two rooms on rent in the year, 1988, but he has not filed any documents for the period 1988 to 2000. The documents have been filed only from the year 2001 onwards. The eviction petition was hotly contested by the respondents and the respondents also challenged the eviction order upto Hon'ble High Court, but could not succeed. As such, it was observed that it cannot be said that the eviction petition was filed in collusion with the respondents. It was observed that the objector was not a tenant in the suit premises in his independent capacity and came in possession of the suit premises through the judgment debtor. By relying upon Nand Lal v. Inderjeet & Others, 1992 (102) PLR 9 it was observed that the only recourse available to the objector is to file a separate suit and not an objection under Section 47 CPC. As such, the objections were dismissed with cost.
(RCT Appeal No.32/2011) (Page 6 of 10) 8- The objections filed by Shri Murari Lal were also
dismissed. However, the reason behind dismissal of the objections filed Shri Murari Lal are not required to be gone into inasmuch as Murari Lal has not preferred any appeal. 9- The sole question for consideration is whether the objections filed by Appellant were required to be adjudicated upon by the learned Addl. Rent Controller or not. Section 25 of the Act reads as under:
" 25. Vacant possession to landlord. - Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom:
Provided that nothing in this section shall apply to any persons who has an independent title to such premises "
10- A bare perusal of this section goes to show that eviction order is binding on all tenants who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons. However, if any person who claims to have independent title to the premises then the eviction order is not binding on him.
11- In the instant case, the appellant has not claimed his right in respect of the two rooms on the ground floor from (RCT Appeal No.32/2011) (Page 7 of 10) the judgment debtor, but is claiming independent title on the ground that his father had taken the premises on rent from the decree holder, initially at the rate of Rs.300/- per month, which was subsequently enhanced to Rs.400/- per month. However, it was alleged that the mother of the decree holder used to treat him as her brother, therefore, no rent receipts were issued to him. However, there are a number of documents to show their possession in respect of the two rooms on the ground floor. It is pertinent to note that in corresponding para of the reply to the objections, it is merely stated that each and every allegation contained in the objections is false, frivolous and vexatious. The entire reply revolves on the point that the judgment debtor has contested the eviction petition filed by the decree holder without alleging that the two rooms forming part of the decretal property are in possession and occupation of the objector as direct tenant of the decree holder. The eviction petition was hotly contested by the judgment debtors who even preferred revision before the Hon'ble High Court and at no point of time, it was alleged that the judgment debtors are not in possession of two rooms of the decretal property and the same are in possession of the objector. It was also pleaded that when execution petition was filed and the decree holder alongwith the court bailiff went to the decretal property, at that time Mohd. Ali, objector met the bailiff and claimed himself to be the representative of the judgment debtor. When warrants of possession were shown to him, he requested for time of 2-1/2 hours from the bailiff for (RCT Appeal No.32/2011) (Page 8 of 10) obtaining stay order from the Hon'ble Supreme Court. The court bailiff allowed 2-1/2 hours as requested, but when he failed to return back with any stay order, then the warrants were executed after obtaining police aid. There was no specific denial regarding father of objector taking the premises on rent @ Rs.300/- per month or that it was subsequently enhanced to Rs.400/- per month or that rent was regularly paid till about 10 months when respondent stopped receiving rent.
12- The objector filed rejoinder, wherein he has denied having met the bailiff or giving in writing to the bailiff that he will obtain stay order from the Hon'ble Supreme Court. In the authorities, relied upon by the learned Counsel for the Appellant, it was held that when the objector is claiming that his right is independent to that of the judgment debtor, then his claim is required to be adjudicated. In view of these authoritative pronouncements, coupled with the fact that there was no specific denial to the pleas taken in objection, the objections filed by the objector were required to be adjudicated upon and opportunity was to be given to the objector to lead evidence to prove his case. Therefore, the appeal is allowed and same is remanded back to learned Addl. Rent Controller for deciding the objections, after giving the parties, opportunity of leading evidence. 13- However, after filing of the appeal, it has come on record that possession of the suit premises has already been taken by the respondents. It is clarified that the remanding back of the appeal to the learned Addl. Rent Controller for (RCT Appeal No.32/2011) (Page 9 of 10) the purpose of deciding the objections after affording the parties opportunity of leading evidence will not ipso facto entitled the appellant for restitution of the suit property. In case, the appellant succeeds in proving that he is a tenant in his independent right in respect of two rooms on the ground floor, then he can move appropriate application for restitution, but till the time he succeeds in proving his case, he will not be entitled for restitution of the premises. The learned Addl. Rent Controller is directed to decide the objections preferably within a period of six months. 14- A copy of this order alongwith trial court record be sent back. Parties are directed to appear before the learned Addl. Rent Controller on 20.03.2012.
Appeal file be consigned to record room.
Announced in open Court
on 15.03.2012 (SUNITA GUPTA )
Rent Control Tribunal: Delhi.
(RCT Appeal No.32/2011) (Page 10 of 10)