Delhi District Court
Sukhdev Raj Arora (Since Deceased) vs M.K. Bhargava (Since Deceased Through ... on 28 March, 2025
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
RCT No. 53/2017
CNR No. DLCT01-009226-2017
Sh. Sukhdev Raj Arora
(Since deceased)
Through his legal heir
Sh. Deepak Arora (son)
Ground Floor, H.No. 5048/49,
Plot no.11, Netaji Subhash Marg,
Darya Ganj, New Delhi-110002. ........Appellant
Versus
Sh. M.K. Bhargava (since deceased)
Through his legal heirs
i. Ajay Bhargava
R/o 24A, Hanri Lawson Drive
Peakhurst NSW 2210,
Australia.
ii. Amit Bhargava
R/o 11, Netaji Subhash Marg,
Darya Ganj, New Delhi.
iii. Ms. Mukta Bhargava
w/o Sh. Sanjeev Bhargava
R/o A-232, Malviya Nagar,
Shivanand Marg, Jaipur.
iv. Ms. Neeti Bhargava
w/o Sh. Sanjay Bhargava
R/o Flat No. C-502, Pearl Court,
Ramprastha, Sector-7,
Vaishali, Ghaziabad, UP.
...... Respondents Digitally
signed by
SANJAY
SANJAY GARG
GARG Date:
2025.03.28
16:37:46
RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 1 of 12 +0530
Date of filing of appeal : 09.06.2017
Date of arguments : 14.02.2025
Date of Judgment : 28.03.2025
JUDGMENT
1. Vide this judgment I am deciding appeal under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred as "the DRC Act") whereby vide impugned order dated 17.05.2017, the application filed by respondents under Section 151 CPC was dismissed.
FACTUAL BACKGROUND
2. The brief facts of the case as per the petition is that an eviction petition u/s 14(1)(a) of DRC Act was filed by Sh. M.K. Bhargava against the deceased Sh. Shukhdev Raj Arora on the ground that the appellant is a tenant and has become defaulter and not paid the rent since November, 2003 and the rent stands enhanced w.e.f 01.01.2004 pursuance to the issuance of notice dated 06.12.2003 of the premises being show room on ground floor forming part of property M.C.No.5048/49, Plot no.11, Netaji Subhash Marg, Daryaganj, New Delhi-02 (hereinafter referred to as 'subject property'). Demand notice dated 11.04.2005 was duly served. Deceased M.K. Bhargava and Sh. B.K. Bhargava let out the suit property to Sh. Sukhdev Raj Arora vide an agreement dated 25.06.1984. The appellant was served with the said petition and he filed reply to the said petition. Replication was also filed by the respondent. Vide order dated Digitally signed by SANJAY SANJAY GARG RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 2 of 12 GARG Date:
2025.03.28 16:37:53 +0530 13.12.2007, the defence of the appellant was struck off and application u/s 15(7) of DRC Act moved by the respondent was allowed.
2.1 Two eviction petitions were filed by the respondent, one u/s 14(1)(a) DRC Act and other u/s 14(1)(b) and (j) of DRC Act against the appellant. The appellant Sukhdev Raj Arora died on 06.10.2008 leaving behind five legal heirs. An application under Order 22 Rule 4 r/w Sec.151 CPC was moved by the respondent on 16.10.2008 to bring on record legal heirs of deceased and only three names were mentioned in the said application namely Smt. Sudesh Arora, Sh. Deepak Arora and Sh. Vinod Arora. It is averred that an application was also filed in another court where the names of said five legal heirs with correct names were mentioned but in the present case only the correct names of two legal heirs have been mentioned. Vide order dated 16.10.2008, notice was directed to be issued to the legal heirs as mentioned in the application under Order 22 Rule 4 CPC, but till date the said application has not been pressed or allowed. The notice was served upon Deepak Arora. However, there is no son with the name of Vinod Arora of deceased appellant. The deceased Sukhdev Raj Arora died and had left behind his widow Smt. Sudesh Arora, one son Deepak Arora and three daughters namely Mrs. Deep Shikha Thatai, Smt. Nidhi Sabharwal and Smt. Ashu Suri and till date, they were not made a party to the main petition.
2.2 During the pendency of petition, the appellant herein filed an application u/s 151 CPC dated 13.01.2017 with the Digitally signed by SANJAY SANJAY GARG Date:
GARG 2025.03.28
16:37:59
RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 3 of 12 +0530
prayer to abate the petition filed by the respondent. Vide impugned order, the application filed by the appellant was dismissed whereas the application filed by respondent is allowed.
Hence, the present petition.
GROUNDS OF APPEAL
3. The impugned order has been assailed broadly on two points mentioned below:-
i) application seeking substitution of the legal heirs should have been filed within 90 days of the death of the deceased appellant and if no such application has been filed, the petition stands abated and no specific order is required to be passed.
ii) The shop was let out for commercial purposes, hence the tenancy inherited by tenant is common and not as joint tenant.
The commercial tenancy is inheritable under the provisions of Section 19 of Hindu Succession Act. In the present case, all legal heirs of the deceased appellant were not brought on record and now the application is barred by the law of limitation and the petition stand abated.
ARGUMENTS
4. I have heard Sh. P.K. Rawal, Ld. Counsel for the appellant and Sh. Hitender Kapur, Ld. Counsel for LRs of respondent. Written arguments were filed on behalf of appellant as well as on behalf of LRs of respondent. In support of his Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.03.28 16:38:05 +0530 RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 4 of 12 submissions, Ld. Counsel for the appellant has relied upon judgments viz- Smt. Gian Devi Anand Vs Jeevan Kumar & Ors.: AIR 1985 SC 796; Mohd. Idrees Vs Mst. Nathi: 2001 (90) DLT 274; Madan Naik (Dead) by Legal Representatives & ors Vs Mst. Hansubala Devi & ors.: 1983 AIR (SC) 676;
Deepak Verma Vs Daya Nand: C.R.P. 183/2018 decided by Hon'ble Delhi High Court on 01.07.2019; Lanka Venkateshwarlu Vs State of Andhra Pradesh: 2011(4) SCC 363 and Budh Ram Vs Bansi: 2010 (11) SCC 476. In support of his submissions, Ld. Counsel for the respondent has relied upon judgment Suresh Kumar Kohli Vs Rakesh Jain & Anr:
AIR 2018 SC 2708.
5. Ld. Counsel for the appellant has reiterated the averments made in the appeal. The main contention raised by Ld. Counsel for the appellant is that two eviction petitions have been filed by the respondent, one u/s 14(1)(a) of DRC Act and other u/s 14(1)(b) and (j) of DRC Act. After the death of appellant Sukhdev Raj Arora on 06.10.2008, applications under Order 22 Rule 4 CPC were filed in both the petitions. But in the present case, only three LRs were impleaded and in the second petition five LRs were impleaded. In fact, Late Sh. Sukhdev Raj Arora has left behind his widow, one son and three daughters. But in the present case three daughters were left out in the application under Order 22 Rule 4 CPC. Respondent has played fraud by not impleading them in the present case and had impleaded them in the other petition. Moreover, respondent had moved an application u/s 151 CPC in March, 2016 supported with his Digitally signed by SANJAY SANJAY GARG RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 5 of 12 GARG Date:
2025.03.28 16:38:11 +0530 affidavit giving the names of all five LRs in the said application. Two contradictory stand has been taken. Ld. Counsel further submits that legal heirs of Late Sh. Sukhdev Raj Arora has filed an application u/s 151 CPC for abatement of petition as no application has been filed to amend the application under Order 22 Rule 4 CPC to add the other three legal heirs, hence as per law laid down by Hon'ble Supreme Court, the petition stands abated.
He further submitted that Ld. Trial Court has not given any finding/reason on the merits of the case while disposing of the application of the LRs of Sh. Sukhdev Raj Arora. Hence, Ld. Counsel for the appellant prays for setting aside the impugned order either by allowing the application filed by the appellant u/ 151 CPC or matter may be remanded back as contemplated under Order 41 Rule 23 CPC with directions to the Ld. Trial Court to decide both the applications on merits.
6. On the other hand, Ld. Counsel for LRs of respondent submitted that appellant has filed false and frivolous appeal in order to delay the proceedings before Ld. Trial Court. The defence of appellant was already struck off on 13.02.2007. Against the said order appellant had approached Hon'ble High Court and Hon'ble Supreme Court wherein also the said order was upheld. He submitted that except Deepak Arora, no other LRs of deceased appellant ever exercised their rights qua the tenanted premises in question. He further submitted that even otherwise law is well settled that in a case of LRs of deceased tenant, all his legal heirs are joint tenants and impleadment of Digitally signed by SANJAY SANJAY GARG GARG Date:
2025.03.28 16:38:18 +0530 RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 6 of 12 one legal heir is sufficient for pursuing of the case. Hence, he prays that the appeal may be dismissed with exemplary cost.
ANALYSIS AND FINDINGS:-
7. The main contention raised on behalf of appellant is that the subject property was let out for commercial purposes and hence, the legal heirs of the deceased appellant inherited as joint tenants. In the application dated 16.10.08, out of five, only two legal heirs of the appellant were sought to be impleaded by moving an application under Order 22 Rule 4 CPC, hence on account of non impleadment of all the legal heirs as joint tenants, the application should have been dismissed and the proceedings should have abated against the appellant. In support of his submissions, Ld. Counsel for the appellant has relied upon Smt. Gian Devi Anand Vs Jeevan Kumar & Ors. (supra). The relevant observation made in Para 37 and 38 is re-produced as follows:-
"37. In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in Section 2(1)
(iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating heritability of commercial premises have also been made whereas in some Rent Acts no such provision either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death.
38. ......... The heirs and legal representatives of Wasti Ram step into his position and they are entitled to the benefit and protection of the Act. We must, accordingly, hold that the High Court was not right in coming to the conclusion that the heirs of Wasti Ram, the so called statutory tenant, did not have any right to remain in possession of the tenanted premises and did not enjoy any protection under the Act. ..........." Digitally signed by SANJAY SANJAY GARG GARG Date:
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8. In Madan Naik (dead) by Legal representatives & Ors. Vs Mst. Hansubala Devi & Ors.(supra), the Court has observed that order 22 Rule 11 CPC makes it obligatory to seek substitution of the heirs and legal representatives of deceased respondent if the right to sue survives. Such substitution has to be sought within the prescribed period of limitation and if no such substitution is sought, the suit shall abate. Appeal being continuation of the suit shall also abate. The remedy against such an order of abatement has been envisaged under Order 22 Rule 9(2) CPC wherein the party may file for setting aside the abatement. And if even that is refused, party may take resort under Order 40 Rule 1(k) CPC.
9. In Deepak Verma Vs Daya Nand (supra), the relevant observations in para nos. 16 and 17 are reproduced as follows:-
"16. Although the CPC does not expressly provide for the consequences of non-compliance with Order XXII Rule 10A of the CPC, at the very least, it is a factor to be taken into account while deciding whether or not delay in filing an application for setting aside abatement is justified. The provision does not, however, automatically extend the period of limitation provided under Articles 120 and 121 of the Limitation Act, 1963.
17. The position which emerges from the above discussion is that the period of limitation of making an application for substitution of legal heirs of a deceased defendant begins to run from the date of death. The date upon which the plaintiff acquired knowledge of the death is not relevant for this purpose. The suit would abate as against the deceased defendant after the period of 90 days provided under Article 120 of the Limitation Act expires. ........."Digitally signed by SANJAY
SANJAY GARG GARG Date:
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10. On the other hand the plea raised by Ld. Counsel for the respondent is that as the legal heirs of the deceased appellant were joint tenants it was sufficient for the landlord to implead either of those persons who were occupying the property as party. In this regard, Ld. Counsel for the respondent has relied upon Suresh Kumar Kohli Vs Rakesh Jain & Anr (supra).
11. Admittedly by the respondent, deceased appellant had left behind five legal heirs including his wife, son and three daughters, and in the application moved by the respondent under Order 22 Rule 4 CPC dated 16.10.08, only two legal heirs i.e. wife and son of the deceased appellant were made party as proposed respondents. As stated by Ld. Counsel for the respondent, it was inadvertent mistake on their part and there was no other reason with them to not implead the other legal heirs, as in the other eviction petition filed under Section 14(1)(b)(j) of DRC Act all the legal heirs were impleaded as party. It is further stated that as son of the deceased appellant was running the said shop he was made party alongwith mother, leaving behind three married daughters who had no concern left with the tenanted commercial shop. It is stated that as legal heirs of deceased appellant, after his death inherited joint tenancy, the service of notice of one is notice on all.
12. The main contention averred by Ld. Counsel for the appellant is that since it was a commercial property, the legal heirs of deceased tenant inherit as co-tenants and notice on all legal heirs is mandatory. It is stated that since the three daughters Digitally signed by SANJAY SANJAY GARG GARG Date:
2025.03.28 16:38:35 RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 9 of 12 +0530 are not impleaded as legal heirs of deceased in application under Order 22 Rule 4 CPC moved by the respondent, even if respondents are able to get eviction order in their favour, same will not be executable. Ld. Counsel for the appellant has argued to explain the concept of 'joint tenancy' and 'tenancy in common'. The Hon'ble Apex Court in Suresh Kumar Kohli Vs Rakesh Jain (supra), relied upon by Ld. Counsel for the respondent, in Para nos. 10 and 11 has explained both the concepts. Both these paras are reproduced as under:-
"10) The issue at hand is what would be the status of the succeeding legal representatives after the death of the statutory tenant. In this regard, it would be worthy to discuss the two capacities, viz., tenancy-in-common and joint tenancy, and the rights that one holds in these two different capacities. Fundamentally, the concepts of joint tenancy and tenancy-in-common are different and distinct in form and substance. The incidents regarding the co-
tenancy and joint tenancy are different: joint tenants have unity of title, unity of commencement of title, unity of interest, unity of equal shares in the joint estate, unity of possession and right of survivorship.
11) Tenancy-in-common is a different concept. There is unity of possession but no unity of title, i.e. the interests are differently held and each co-tenant has different shares over the estate. Thus, the tenancy rights, being proprietary rights, by applying the principle of inheritance, the shares of heirs are different and ownership of leasehold rights would be confined to the respective shares of each heir and none will have title to the entire leasehold property. Therefore, the estate shall be divided among the co-tenants and each tenant in common has an estate in the whole of single tenancy. Consequently, the privity exists between the landlord and the tenant in common in respect of such estate."
Digitally signed by SANJAYSANJAY GARG GARG Date:
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13. In Suresh Kumar Kohli (supra), father Ishwar Chand Jain and one son Ramesh Chand Jain were the tenants of the shop in Ajmal Khan Road, Karol Bagh. The other son Rakesh Jain was inducted as a partner in the family business subsequently. The owner through legal notice to Ramesh Chand Jain had terminated the tenancy on 31.05.2009. Thereafter, Sh. Ishwar Chand Jain died on 08.03.2010. The owner filed an eviction petition u/s 14(1)(e) of DRC Act which was allowed and same attained finality, as revision petition filed by Ramesh Chand Jain was dismissed. In execution petition, Rakesh Jain filed objection claiming that he being necessary party, as he has inherited rights in the family business, he was not aware about the eviction proceedings. The said objection petition was dismissed. The CM(M) filed by Rakesh Jain against the said order was allowed by the Hon'ble High Court. Against that order owner filed this appeal. The Court has mentioned in Para 5 that point for consideration is if the status of heirs and legal representatives of the deceased tenant will be of joint tenants or of tenants in common.
14. After considering various judgments including Gian Devi (supra), mainly relied upon by Ld. Counsel for appellant, the Court accepted the appeal. The conclusion in Para 20 is reproduced as follows:-
"20) We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.03.28 16:38:59 +0530 RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 11 of 12 legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."
DECISION
15. In view of the aforesaid reason, the service of the notice on wife and son of the deceased tenant can be considered as service on all the legal heirs of deceased tenant. It was not necessary for the landlord to implead all the legal heirs of the deceased tenant. The appeal is found to be without any merit. The same is thereby dismissed.
16. Trial Court Record be sent back along with copy of this order.
17. The appeal file be consigned to Record Room.
Digitally
signed by
SANJAY SANJAY GARG
Date:
GARG 2025.03.28
16:39:05
+0530
Announced in the open Court (SANJAY GARG-I)
th
on 28 Day of March, 2025 Principal District & Sessions Judge Central District, Tis Hazari Courts, Delhi(D) RCT-53/2017 Sukhdev Raj Arora Vs M.K. Bhargava (since deceased) through LRs Page 12 of 12