Delhi District Court
) Sh. Parvinder Kumar S/O Late Sh. Madan ... vs Dr. Asha Gandhi W/O Sh. Yogesh Gandhi on 30 January, 2016
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IN THE COURT OF Ms.SUNENA SHARMA
Addl. Distt Judge - 03 (SE)
SAKET COURTS COMPLEX: NEW DELHI
RCA No. : 09/2015
Unique Case ID No. 02406C0066742015
Date of Institution : 28.02.2015
Arguments concluded : 29.01.2016
Date of decision : 30.01.2016
Smt. Naresh Rani (since deceased)
Through LRs.
1) Sh. Parvinder Kumar S/o Late Sh. Madan Lal
2) Sh. Vijay Kumar S/o Late Sh. Madan Lal
3) Sh. Vinod Kumar S/o Late Sh. Madan Lal
4) Ms. Meena Sikka S/o Late Sh. Madan Lal
All R/o F-11, B-Type, Tara Cooperative Society,
Kalkaji, New Delhi
............. Appellants
VERSUS
Dr. Asha Gandhi W/o Sh. Yogesh Gandhi
R/o 545, Mayflower Road,
Lake Forest, I.L.60045,
U.S.A.
At present:
C-2/14, Safdarjung Development Area,
New Delhi
............... Respondent
RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi
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JUDGMENT
1. Instant Regular Civil Appeal has been preferred by the appellants against impugned judgment/decree dated 28.01.2015 passed by Ld. Additional Senior Civil Judge (Central District), Tis Hazari Courts, Delhi in CS No. 651/2013, filed by the respondent herein against Smt. Naresh Rani (since deceased) and present appellants who were arrayed in the plaint as defendant no.1 and defendant no.2 to 5 respectively, for seeking relief of possession and recovery of damages/mesne profits in respect of a tenanted premises.
2. The brief facts of the case as borne out from appeal and impugned judgment are as follows : -
Plaintiff had let out flat no. F-11, B-Type, Tara Cooperative Society, Kalkaji, New Delhi (hereinafter referred to as suit property) to Sh. Madan Lal, husband of the defendant no. 1 and father of defendants no. 2 to 5 in the year 1980. In the year 1984 an eviction petition bearing No. E175/84 was filed by plaintiff against Sh. Madan Lal under Section 14(1) of Delhi Rent Control Act, 1956 (hereinafter referred as Act) for non-payment of rent after serving upon him notice of demand -cum- termination dated 16.02.1984. The said eviction petition was disposed of vide judgment dated 17.11.1986 passed by learned ARC by giving benefit of Section 14(2) of the Act to Sh. Madan Lal. However, on RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 3 of 29 account of second default in payment of rent, plaintiff herein again filed an eviction petition but the same was dismissed on the technical ground that petitioner failed to prove the authority of witness to depose on her behalf. It is further the case of plaintiff that since Sh. Madan Lal's tenancy was terminated by notice dated 16.02.1984, he became a statutory tenant and his tenancy rights were not heritable by his legal heirs, whose possession in the suit premises, after death of Sh. Madan Lal became illegal and unauthorised. Since the defendants failed to vacate the suit premises despite plaintiff's repeated requests, plaintiff filed the present suit no. 492/2004, before trial court for seeking relief of possession and recovery of damages/mesne profits to the tune of Rs. 47,250/- for the period w.e.f. 1.8.2000 to 31.7.2003, calculated at the rate Rs. 1320/- per month i.e. last paid rate of rent.
3. All the defendants contested the suit by filing written statement. Defendant no. 1 and 3 filed separate written statement, while a joint written statement was filed by other three defendants. Though, the defence put forth by all the defendants was on same lines.
4. The grounds of defence set out in the written statements were that suit was not maintainable on account of suit being not properly valued and being not verified, signed and instituted by plaintiff. Further because, in the eviction petition no.
RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 4 of 29 E-14/1993 filed against Sh. Madan Lal, present defendants were also impleaded on record after death of Sh. Madan Lal and judgment of dismissal passed in said petition operates as resjudicata as no appeal was preferred against it and as such the question of defendants being tenant stands already decided. Further because, Sh. Madan Lal had died as contractual tenant and hence, after his death his legal heir i.e. defendants herein have inherited the tenancy. Further that, the tenanted premises was let out to Sh. Madan Lal for residential-cum-commercial purposes therefore, in view of decision of Hon'ble Apex Court in Gian Devi Anand vs. Jeevan Kumar, AIR 1985 SC 796 (1), tenancy was inherited by all his legal heirs after his death. Further because, Smt. Naresh Rani widow of late Sh. Madan Lal (defendant no. 1) was financially dependent upon Madan Lal at the time of his death as she neither had any independent source of income nor was owning any property in her name and in view thereof, present suit is barred u/s 2 & 50 of the Act.
5. Replication filed by plaintiff is the reiteration of plaintiff's stand taken in the plaint and denial of contentions raised in the written statement.
6. Vide order dated 18.11.2010, Ld. Trial court framed following issues in the matter:
1. Whether the defendant was contractual tenant in the suit RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 5 of 29 property?OPD
2. Whether the jurisdiction of this court is barred in view of Section 2 and Section 50 of the Delhi Rent Act?OPD
3. Whether the suit is not properly valued for the purpose of court fees and jurisdiction?OPD
4. Whether the plaintiff is entitled for decree of possession as prayed?OPP
5. Whether the plaintiff is entitled for decree of Rs.47520/-
as prayed?OPP
7. An additional issue was framed by the trial court vide order dated 03.01.2012 and same reads as under:
"Issue no. 1A: Whether the suit premises were let out to Sh. Madan Lal for residential cum commercial purposes?OPD"
8. Record reveals that during pendency of proceedings before trial court, Smt. Naresh Rani i.e. defendant no.1 expired on 28.06.2007 and since all her LRs were already on record as defendant no.2 to 5, an application u/O 22 R. 2 CPC was moved by plaintiff and suit was allowed to be proceeded against remaining defendants.
9. In evidence, one witness each was examined by both the sides. Plaintiff examined Vinod Malhotra her brother cum attorney as PW-1. From defendant's side, defendant no. 3 was examined as DW-1.
RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi
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10. Vide impugned judgment/decree dated 28.1.2015,
learned trial court decreed the suit in favour of plaintiff and against the defendants while deciding all the issues in favour of plaintiff and against the defendants.
11. The impugned judgment and decree has been challenged by the appellants on the following grounds:
1. That the impugned judgment is based on surmises and conjectures and against the law and facts on file.
2. Learned trial court wrongly drawn adverse inference against the appellants on account of non-examination of Smt. Naresh Rani whereas, Smt. Naresh Rani had already died on 28.6.2007 i.e. much prior to the framing of issues.
3. Learned trial court failed to correctly appreciate the evidence on record and wrongly came to conclusion that Smt. Naresh Rani was not financially dependent on her husband, Sh. Madan Lal and further wrongly held the suit maintainable before a civil court.
4. Learned trial court failed to appreciate that Sh. Vinod Malhotra neither had any right to verify, file and sign the suit nor to appear as a witness on behalf of respondent/plaintiff and hence, trial court has wrongly and illegally relied upon his flimsy and sketchy statement when no reliance could have been placed on the same.
5. Learned trial court did not appreciate that Sh. Madan Lal had RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 7 of 29 died as a contractual tenant and wrongly held the notice of termination dated 16.02.1984 to be duly served upon Sh.
Madan Lal in view of judgment of Ld. ARC in Eviction Petition NO. E-175/84. Whereas, in second eviction petition decided on 20.08.2002 by Learned ARC Sh. V.K. Khanna, a categoric finding was returned that no notice had been served upon Madan Lal and petition was dismissed on said ground. In view of said finding, all legal heirs of Madan Lal inherited the tenancy and a civil suit for possession was barred by section 50 of DRC Act.
6. Learned trial court erroneously held that the tenanted premises was let out for residential purposes, despite the fact that the alleged attorney of respondent/plaintiff had categorically stated in his cross-examination that the terms of tenancy were not settled in his presence nor did he know the vocation of Sh. Madan Lal. Whereas, respondent/plaintiff did not come in the witness box to contradict the stand taken by defendants that tenanted premises was let out and used for residential cum commercial purposes.
7. That the learned trial court lost sight of the fact that during pendency of previous eviction petition decided by learned ARC V.K. Khanna, Sh. Madan Lal had died and after his death all the defendants/appellants were brought on record as legal heirs of Madan Lal and in this way they were treated as tenants by plaintiff/respondent herself and now, it does not RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 8 of 29 lie in her mouth to say that they had no right in the suit property.
8. Learned trial court has not considered the pleadings and evidence on record in right perspective and suit has been wrongly and illegally decreed against the appellants/defendants.
12. As per record, despite opportunity, respondent failed to file any reply to appeal. Record further reveals that after advancing part arguments on 26.08.2015, respondent's counsel never came forward to advance further arguments. Respondent also failed to file any written submissions despite repeated opportunities afforded to her. Arguments were however addressed by learned counsel for the appellant who also filed the written submissions on record.
13. I have given my thoughtful consideration to the submissions raised from both the sides and also perused the entire record. The trial court record was also carefully gone through with the assistance of counsels.
14. One of the grounds of challenge raised by the appellant is that the contractual tenancy of Sh. Madan Lal was never determined during his life time which is also evident from the findings of the court given in judgment dated 20.08.2002 passed RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 9 of 29 by the then Ld. ARC Sh. V.K. Khanna in 2nd eviction petition No. E-14/93.
15. I have carefully perused both the judgments dated 20.08.2002 & 17.11.1986. In the judgment dated 20.08.2002, it was the notice of demand after 2nd default of payment of rent which was held to be not duly served upon Sh. Madan Lal. The said notice is dated 07.10.1992 which was allegedly issued by respondent before filing the 2nd eviction petition no. E-14/93 for seeking eviction of Sh. Madan Lal from tenanted premises u/s 14(1)(a) DRC Act, because in the first eviction petition no. E-175/84, Sh. Madan Lal was given benefit of Section 14(2) of the Act. Hence, argument of learned appellant's counsel that learned ARC in said second eviction petition had returned the finding to hold notice of termination as not being duly served is totally fallacious and misconceived.
16. In this regard, learned trial court has rightly held that the findings given in first eviction petition no. E-175/84 by the court of the then learned ARC Sh. A.K. Garg, to the effect that notice dated 16.2.1984 was duly served upon Sh. Madan Lal, has already attained finality and said question of fact having been already decided cannot be re-agitated or reconsidered. Vide said legal notice dated 16.2.1984, Sh. Madan Lal was called upon to vacate the suit premises within 15 days of receipt of notice or by RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 10 of 29 the end of tenancy month. As said notice was duly served upon Sh. Madan Lal during his life time, his contractual tenancy came to an end after expiry of notice period and he assumed the status of a statutory tenant. Hence, I do not find any fault in the findings of Ld. Trial court on Issue no.1.
17. Now, the 2nd contention raised from appellant side is that tenanted premises was let out and used for residential -cum- commercial purpose and hence in view of the decision of Hon'ble Apex Court in Gian Devi Anand vs. Jeevan Kumar's, tenancy was heritable by all the LRs of Sh. Madan Lal as per the general law of succession and not as per the succession enunciated u/s 2 (I) (iii)of the Act.
In this regard, I have carefully gone through the evidence adduced before trial court as well as the findings of the trial court on Issue no. 1A.
18. Admittedly, tenancy was an oral tenancy and tenanted premises is a flat on the first floor in a co-operative society. In absence of any document of lease/rent deed, the nature of tenancy has to be gathered from all attending circumstances such as nature of property, actual user, the area or location where the tenanted premises is situated. As already noted above, the flat was located in a residential society and as per appellant's own case Sh. Madan Lal was living here with all his family members.
RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 11 of 29 Appellant's claim is that since Sh. Madan Lal was doing the job work of embroidery from said premises, therefore, property was used for residential -cum-commercial purposes.
19. To my mind, a property can be said to be used for residential-cum-commercial purposes only when it is used for combined purpose i.e. for residence as well as for running some commercial activity, such as in case of a doctor running a clinic from certain part of his residential house, a lawyer using some part of his house as his office for entertaining clients. But, if a lawyer starts bringing home his briefs for preparing his cases for next day, that will not make user of premises as residential-cum- commercial. Even in the instant case, there is nothing on record to suggest that Sh. Madan Lal was carrying any business activity from the tenanted premises. Mere fact that he had been doing some job work of embroidery work at home, will not make the user residential cum-commercial as alleged by appellants.
20. For holding aforementioned view, I further draw support from the judgment Shri Kishan Lal v. Shri Rajan Chand Khanna, AIR 1993 Delhi, wherein it was held that, "45.xxxxxxxxxx It is settled principle of law that if a tenanted premises is a house then it means that letting was for residing and house means a dwelling place. If tenant gives address of his house for commercial communication or correspondence, then it would not mean commercial user. This has been held in M. Mohan v. Maheshwari Seth, (1987) 17 RLR 121. In Abdul Salam v. Somwati Devi, (1982) 12 RLR Note 23 Justice Goswamy has RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 12 of 29 held that mere use of a premises as an address for trade purposes of no commercial activity. In Salek Chand Jain v. Vinesh Chand Seth, (1986) 29 Del LT 155 Justice G.C. Jain has held that in order to show that the premises are let for commercial purposes, some business activity has to shown which connotes sale, purchase or manufacturing of goods or any other such activity. There must be some real, substantial and systematic organized course of activity or conduct with a set purpose. In the present case, nothing has been shown. In Shri Girdhari Lal v. The Life Insurance Corporation of India, (1974) 6 RCJ 467; S.N. Shankar, J. has held that it does sometimes happen that a premises let exclusively for residential purposes is also incidentally put by the tenant to some other uses connected with his vocation in life but that does not change the nature of the building or its letting purposes.
"46. Viewed from another angle, it has been demonstrated by the respondent-land-lord that the premises in dispute are located in residential locality and were let out for residential purpose and that no business activity is being carried out from that premises and there is only registered offices of wine merchant and Hotel Rajdoot but no supplies are being made from that house and that the dominant user of the demised premises therefore is residential one. In these circumstances, it can only be held that the premises were let out for residential purpose only and not for both the purposes, com-mercial-cum-residential.
In the light of aforementioned judgment, I do not find any infirmity in the findings of trial court even on Issue no. 1A.
21. Another contention raised on behalf of appellant is that PW-1 Vinod Malhotra, the only witness examined on behalf of plaintiff, was not competent to depose as he appeared only as an attorney of the plaintiff whereas, plaintiff herself never appeared in the witness box to substantiate her claim. It is further argued that learned trial court has erred in relying upon the testimony of witness who was not even competent to depose with regard to RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 13 of 29 facts of the case. In this regard counsel for respondent rebutted the arguments saying that even an attorney can depose on behalf of principal with regard to facts which are in his personal knowledge. He further submitted that PW1 is the real brother of plaintiff who was personally aware of the facts of the present case. He further pointed out that even in his examination in chief PW1 has stated that he was aware of the facts of the present case as he had been accompanying her sister while contacting her Advocates and also helping her in prosecuting the suit and even in his cross-examination, PW1 reaffirmed his stand by deposing that he knew all about the case right from the very beginning and his testimony in this regard remained unrebutted as nothing was suggested to witness to controvert the same.
22. Order 3 Rule 1 & 2 empowers the holder of power of attorney to 'act' on behalf of principal. The word 'act' employed in Rule 1 & 2, confirms only in respect of 'acts' done by power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for principal in respect of such acts, but he cannot depose for principal for the acts done by the principal and not by him. (Janki Vashdeo Bhojwani vs. Indus Ind. Bank Ltd., AIR 2005 SC
439).
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23. In the instant case, PW-1 is not a stranger but a family member of plaintiff, being her brother. His testimony to the effect that he was aware about the facts of case has remained unrebutted. The mere fact that he had never met the defendants or their predecessor in interest Sh. Madan Lal or that terms of tenancy were also not fixed in his presence, will not make him an incompetent witness to depose in this case especially when he is plaintiff's brother and had helped her sister in prosecuting the present case and was having personal knowledge of the facts relating to the present case. Hence, even the contention raised regarding incompetency of plaintiff witness to depose is also bereft of merits.
24. One more ground of appeal vehemently agitated before this court is that trial court erred in appreciating the evidence while deciding the issue no. 1 vide which the defendant no. 1 Smt. Naresh Rani (since deceased) was held to be not financially dependent on the deceased tenant Sh. Madan Lal.
25. Issue No.1 read as "Whether the defendant was contractual tenant in the suit property?OPD".
This issue appears to have been framed in view of defendant's objection that alleged notice of termination dated 16.2.1984 was never served upon Sh. Madan Lal, hence, tenancy RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 15 of 29 of Sh. Madan Lal was never terminated during his life time. In view thereof, the onus of proving said issue was put upon defendants and the findings of the court to the extent that alleged notice dated 16.2.1984 had been duly served upon Sh. Madan Lal and after expiry of said notice, he was continuing in possession of tenanted premises as a statutory tenant is legally sound and correct. But, I do not feel convinced with the observation of the trial court that financial non-dependency of legal heirs of deceased tenant (whose tenancy stood terminated during his life time) is also one of the precondition for declaring such legal heir as a statutory tenant.
26. In the impugned judgment, Ld. Trial Court while deciding issue no.1 has observed that as per section 2(I)(iii) of the Act, two conditions are required to be fulfilled before deciding any legal heirs of deceased tenant as statutory tenant. Firstly, termination of tenancy of deceased tenant, during his life time and his (deceased tenant) continuing in possession of tenanted premises after such termination. Secondly, financial non dependency of legal heirs on the deceased tenant at the time of his death. On second aspect, I do not find the trial court's view correct.
27. The combined reading of Sec. 2(1) (iii) read with Explanation I & II, makes it clear that even a financially dependent RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 16 of 29 legal heir, subject to order of succession given in said clause, shall also become a statutory tenant and he shall also be entitled to statutory protection of the Act during his life time, but upon his death, his own successor or any other legal heir of deceased tenant falling in lower category of succession, shall not be entitled to any such protection, though the right to continue in possession of other legal heirs falling in same category of succession shall remain unaffected.
28. In the instant case, except Smt. Naresh Rani, all other legal heirs of Sh. Madan Lal (children of Sh. Madan Lal i.e. defendants no. 2 to 5) were falling in 2nd category of succession and therefore, were not entitled to any protection of a statutory tenant after death of Smt. Naresh Rani.
29. Hence, by deciding the question of financial dependency of Smt. Naresh Rani, who was falling in first category of succession, the trial court has travelled beyond the scope of issue no.1, the onus of which was upon the defendants. In my view, all the legal heirs of deceased tenant (off course, as per the order of succession given in sub clause (iii) of the Act), who were ordinarily residing with deceased tenant (whose tenancy was terminated during his life time) as member of his family, shall be entitled to protection of the Act against eviction and would become statutory tenant. In case, such LR was not financially RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 17 of 29 dependent upon deceased tenant at the time of his death, then such protection shall be available for limited period of one year from the date of death of deceased tenant and in case such LR was financially dependent on deceased tenant, then till he or she dies.
30. In my view, conclusion of issue no.1 was merely dependent upon the fact whether contractual tenancy of deceased tenant Sh. Madan Lal was validly terminated during his life time. And since said issue had already been decided vide judgment passed by Sh. A.K. Garg, the then Ld. ARC whereby, the notice of termination dated 16.02.1984 was held to duly served upon the deceased tenant Sh. Madan Lal and said judgment had already attained finality, there was no occasion for the trial court to get into the issue of financial dependency of Smt. Naresh Rani, while deciding issue no.1.
31. In my opinion, the initial onus to prove the financial non dependency of Smt. Naresh Rani on her husband Sh. Madan Lal at the time of his death was upon the plaintiff who had approached the trial court to seek the decree of possession in her favour and against the defendants including Smt. Naresh Rani and therefore, said question ought to have been dealt with by the trial court while deciding issue no.4. Because, even if he defendants were able to prove that they all were financially dependent on deceased RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 18 of 29 tenant at the time of his death, even in that case, the protection of the Act, would have been available only to Smt. Naresh Rani i.e. defendant no.1 that too during her life time only and after her death, all her family members would be liable to ejectment in view of clause (a) & (b) of Explanation III to Section 2 (I) (iii) of the Act. And it is only in case, if the plaintiff was able to establish that Smt. Naresh Rani was not financially dependent, then only the protection of the Act would have been available to Smt. Naresh Rani for a limited period of one year from the date of death of deceased tenant, and after expiry of one year, a cause of action would have arisen in favour of plaintiff to seek possession from the defendants because the tenancy would no longer be protected u/s 50 of DRC Act.
32. In the circumstances of the case, it was only Smt. Naresh Rani who inherited the statutory tenancy after death of Sh. Madan Lal. The right of other legal heirs i.e. defendant no.2 to 5 who are appellants herein, to stay in the tenanted property was only in their capacity of being the family members of a statutory tenant, Smt. Naresh Rani, and not in their own individual capacity of a statutory tenant or a contractual tenant.
33. It is pertinent to mention here that plaintiff had approached the trial court for seeking possession of tenanted premises during the life time of Smt. Naresh Rani, on the premise RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 19 of 29 that since contractual tenancy of Madan Lal stood determined during his life time and tenancy being residential, the same was not heritable by his legal heirs. But as already held above, the tenancy was heritable as per the orders of succession provided u/s 2 (I) (iii) of the Act and same devolved upon surviving spouse of a deceased tenant, Smt. Naresh Rani, who was alive at the time of filing of the suit. In view of Section 2 (I) (iii) read with Explanation II of the Act, a suit for possession against surviving spouse of a deceased tenant (whose tenancy got terminated during his life time) may lie only if such spouse was not financially dependent at the time of death of deceased tenant and such suit can be is brought only after expiry of one year from the date of death of deceased tenant.
34. Hence, considering said position of law, it was incumbent upon the plaintiff to plead and prove on record that Smt. Naresh Rani was not financially dependent upon her husband Sh. Madan Lal during his life time. Whereas, I do not find any pleadings to this effect in the entire plaint nor there is any such deposition even in the evidentiary affidavit of PW1. Even in cross examination, besides denying a suggestion that Smt. Naresh Rani and all other defendants were financially dependent upon Sh. Madan Lal, plaintiff did not bring on record any iota of evidence to prove that Smt. Naresh Rani was not financially dependent upon Sh. Madan Lal at the time of his death. Rather, PW1 in his cross-
RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 20 of 29 examination did not even deny defendant's assertion that she was merely a house wife till her death. He stepped further by saying that he did not know if Smt. Naresh Rani had been dependent upon her husband during her life time. He further deposed that he had never seen Smt. Naresh Rani doing any work for gain.
35. Furthermore, despite DW1 having specifically deposed in his examination in chief that Smt. Naresh Rani had no source of income nor did she own any property and had all along been dependent upon her late husband, not a single suggestion was put to him to controvert or deny his said assertion.
36. In view of aforementioned position on record, trial court was totally wrong in assuming the burden on defendants for proving the financial dependence of Smt. Naresh Rani. Rather in my view, initial burden was upon the plaintiff to prove that Smt. Naresh Rani was never dependent upon her husband at the time of his death and had the plaintiff succeeded in discharging the initial onus, the onus would have shifted upon defendants to prove that Smt. Naresh Rani was financially dependent upon her husband during his life time.
Since the plaintiff herself failed to discharge the initial burden, there was no legal obligation upon defendant to disprove the same by leading evidence in rebuttal.
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37. In this regard, trial court further appears to have totally overlooked the fact that Smt. Naresh Rani had already expired in the year 2007 i.e. much before framing of issues in this case and said fact had duly come on record and in said circumstances, no adverse inference could have been drawn against the defendants for not having examined Smt. Naresh Rani. Hence, trial court has fallen into serious error by drawing adverse inference against defendants on this count.
38. Considering the fact that plaintiff has miserably failed to prove it on record that defendant no.1 Smt. Naresh Rani was not financially dependent upon her husband Sh. Madan lal at the time of his death, there was no cause of action in favour of plaintiff to seek possession from defendant no.1 Smt. Naresh Rani or her family members i.e. the other defendants, during the life time of Smt. Naresh Rani. In other words, as long as Smt. Naresh Rani was alive, she was entitled to similar protection against eviction as were available to a tenant under the Act. However, after death of Smt. Naresh Rani, the right to continue in possession did not pass onto other successors specified in lower category of succession, in view of Explanation III of Section 2 (1) (iii) of the Act. Defendant no.2 to 4 being the children of Sh. Madan Lal and Smt. Naresh Rani are falling in 2nd category of succession given in Explanation I of Sec. 2 (I) (iii). Further, as per clause (b) of Explanation III, the right of every successor, referred to in Explanation I, to continue in RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 22 of 29 possession after termination of tenancy, shall be personal to him and shall not, on the death of such successor, devolve upon any of his heirs.
39. Considering the fact that plaintiff failed to establish on record that Smt. Naresh Rani was not financially dependent upon her husband Sh. Madan Lal at the time of his death, her (Smt. Naresh Rani) right to continue in possession of tenanted premises extinguished only upon her death hence, there was no cause of action to seek possession from defendants at the time when the suit was instituted.
40. But, it is also a matter of record that defendant no.1 Smt. Naresh Rani had expired during the pendency of this case on 28.06.2007 and said fact was duly recorded in order sheet dated 10.01.2008. Now the question that falls for consideration is whether court can take into notice the subsequent cause of action which had arisen in favour of plaintiff during the pendency of proceedings and decree the suit against the other defendants i.e. the appellants herein to whom no right to continue in possession survived after death of Smt. Naresh Rani.
41. In this regard, it is vehemently argued on behalf of appellants that plaintiff/respondent cannot be allowed to take advantage of the cause of action arising subsequent to the filing of RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 23 of 29 the suit, and therefore, in the circumstances of the case, appeal may be allowed as the suit was liable to be dismissed for want of cause of action. In support of his arguments, counsel for appellants has put reliance on the judgment of Hon'ble Apex Court in Carona Ltd. vs. M/s Parvathy Swaminathan & Sons; (Appeal) Civil 2805 of 2005 decided on 05.10.2007; wherein Hon'ble Apex Court held as under:-
"Para 37: In our judgment, the law is fairly settled. The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit. Thus, if the plaintiff has no cause of action on the date of the filing of the suit, ordinarily, he will not be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Conversely, no relief will normally be denied to the plaintiff by reason of any subsequent event if at the date of the institution of the suit, he has a substantive right to claim such relief."
42. I have carefully gone through the aforementioned judgment as well as the previous judgment of Hon'ble Apex Court referred therein. After perusing said judgments, I am of the view that though as a general rule plaintiff shall not be allowed to take advantage of the cause of action arising subsequently, but said general rule is always subject to exceptions and can be deviated from, if the court finds it necessary to do so to promote substantial justice and provided the rules of fair play are not violated. Even in the judgment relied upon in Carone Ltd. (supra), the court has held that 'ordinarily' plaintiff will not be allowed to take advantage of a cause of action arising subsequent to filing of the suit. Hence, the use of the word 'ordinarily' itself indicates that this general RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 24 of 29 rule may be deviated from depending upon the facts and circumstances of the case. My view gets fortified from the judgment of Hon'ble Apex Court in Pasupuleti Venkateswarlu v. Motor & General Traders, 1975 (1) SCC, 770 wherein Hon'ble Justice Krishna Iyer has observed that:
"We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suit or institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exits, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."
43. Time and again, it has been held in plethora of judgments by the Hon'ble Apex Court that a pragmatic approach should be adopted by the courts in order to discourage the false claims and defences that have become a serious problem for already overburdened judicial system of our country. Unless, the RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 25 of 29 courts ensure that wrong doers are denied profit or undue benefit from the frivolous litigation it would be difficult to control frivolous and uncalled litigations.
44. In a suit for ejectment, it is necessary for defendant to show a subsisting right in his favour to continue in possession. There is already a flood of litigation unnecessarily burdening the courts only because tenant refused to vacate even after their tenancy right extinguishes and drive the landlords to file the suits for possession and then raise false claims and defences to continue their possession in the tenanted premises. The motivation of tenants to litigate with landlord is that they want to continue the occupation on payment of rent fixed decades ago. In order to meet such challenges courts have to evolve new rules to discourage misuse of process of law by unscrupulous litigants whose main object is to drag the litigation to tire out the opponent who would ultimately settle with them by paying huge amount.
45. Even in the instant case, plaintiff/respondent is fighting a legal battle to get the possession of tenanted premises for 30 long years. The first eviction petition was filed before Ld. ARC in the year 1984. In said circumstances, driving the plaintiff/respondent to a new round of litigation, on this count that she cannot be given benefit of cause of action which subsequently arose in her favour, would be nothing but mockery of process of RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 26 of 29 law. After adjudications of all the issues which were framed in this case, nothing more survives for the appellants to agitate against plaintiff/respondent in the new litigation.
46. It is pertinent to mention that suit was instituted by plaintiff against all the LRs of late Sh. Madan Lal including the present appellants who were defendant no.2 to 5 before the trial court. Hence, the appellants have been on record all along and contested the case by tooth and nail by filing separate written statements. As per record, defendant no.2, 4 & 5 filed their joint written statement whereas, defendant no. 3 filed his written statement separately.
47. As per the provision of Section 2 (I) (iii) read with the Explanations given therein, after death of a statutory tenant, the right to continue in possession of tenanted premises shall devolve firstly to surviving spouse of deceased tenant and in absence of any living spouse , to the children of deceased tenant. In the instant case, since Smt. Naresh Rani was alive at the time of death of her husband Sh. Madan Lal, she exclusively succeeded to said right excluding the other legal heirs of late Sh. Madan Lal falling in next category of succession. Hence, once the court has arrived to the conclusions, that tenanted premises was let out for residential purpose and contractual tenancy of Sh. Madan Lal stood determined during his life time, nothing survives for further RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 27 of 29 adjudication by the court for granting relief of possession against the appellants who were entitled to stay in the tenanted premises not as statutory tenants but as family members of a statutory tenant Smt. Naresh Rani, as it is upon her only, the statutory tenancy devolved after death of her husband Sh. Madan Lal.
48. Here, it is not the case where appellants were brought on record after death of Smt. Naresh Rani as her LRs but, they were already on record in their individual capacity as LRs of deceased tenant Sh. Madan Lal. All the appellants who were arrayed as defendant no.2 to 5 have got full opportunity to contest the case by taking all the probable defences and no provision of fair has been violated. In said circumstances when parties are into legal battle for more than a decade, it would be highly unfair to now drive the parties to a new round of litigation of an unknown duration. In my opinion, in exercise of appellate jurisdiction, courts have ample power not only to correct errors in the judgment under challenge but to make such disposition of case as justice requires. And in determining what justice does require, court must take into consideration the totally of facts and circumstances of a particular case.
49. In view of above discussion, I feel no hesitation in concluding that defendants no.2 to 5 i.e. appellants herein are liable to hand over the vacant possession of tenanted premises to RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 28 of 29 plaintiff because after death of Smt. Naresh Rani, no right survived in their favour to continue in possession of tenanted premises.
50. As already held above, Smt. Naresh Rani on account of her financial dependency on her husband at the time of his death, was entitled to continue in possession of tenanted premises as statutory tenant during her life time. Hence, her right to stay in tenanted premises as statutory tenant came to an end only upon her death and considering the fact that no right devolved upon other legal heirs of Madan Lal after death of his wife Smt. Naresh Rani, the possession of defendants in tenanted premises became unauthorized only upon her death as prior to her death, they were living with her as members of her family. Hence, trial court's findings to the extent of awarding damages for unauthorized use and occupation, to the tune of Rs.47,520/- for the period w.e.f. 01.08.2003 to 31.07.2004 in favour of plaintiff is incorrect and liable to be set aside.
51. Appeal is accordingly partly allowed. The trial court's findings to the extent of granting relief of possession is upheld. However, the findings of trial court in awarding damages to the tune of Rs.47,520/- is set aside. Decree sheet be drawn accordingly.
RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi Page 29 of 29
52. Trial Court Record be remitted with copy of this judgment and decree henceforth. Appeal file be consigned to Record Room.
(Sunena Sharma) Addl. Distt Judge-03/South-East Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 30.01.2016.
RCA No.09/2015 Naresh Rani vs. Dr. Asha Gandhi