Delhi District Court
Rathindra Nath Nandy S/O Late Sh. ... vs Pamela Manmohan Singh W/O Late Sh. ... on 18 November, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH)-CUM-ADDITIONAL RENT CONTROL
TRIBUNAL: SAKET: NEW DELHI
(1) ARCT No. 35/2012
ID No.: 02406C0119922012
(2) ARCT No. 36/2012
ID No.: 02406C0119902012
1. Rathindra Nath Nandy s/o late Sh. Niranjan Nandy
R/o 5F, Nivedita Enclave, A6, Paschim Vihar,
New Delhi 110063.
2. Shamindra Nath Nandy s/o late Sh. Niranjan Nandy
R/o 74, Royed Park, Behala, Kolkata 700034
through his brother and General Attorney Sh. Rathindra
Nath Nandy, Appellant no.1.
3. Dipendra Nath Nandy s/o late Sh. Niranjan Nandy
R/o 78/13A, BlockE, New Alipore, Kolkata 700053
through his brother and General Attorney Sh. Rathindra
Nath Nandy, Appellant no.1.
4. Ranendra Nath Nandy s/o late Sh. Niranjan Nandy
Permanent R/o 5F, Nivedita Enclave, A6, Paschim
Vihar, New Delhi 110063.
through his brother and General Attorney Sh. Rathindra
Nath Nandy, Appellant no.1. ... Appellants
Versus
1. Pamela Manmohan Singh w/o late Sh. Manmohan Singh,
d/o late Sh. D. V. Kohli,
ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 1 of 74
R/o 5 Friends Colony (West), N. Delhi 110065.
2. Chuck Kohli @ Chukles Kohli s/o late Major K.V. Kohli
R/o B98, Defence Colony, New Delhi 110024.
3. Pexie Kauble @ Pixy d/o late Major K.V. Kohli
c/o Sh. Chuck @ Chukles Kohli
R/o B98, Defence Colony, New Delhi 110024.
4. Nisha Kohli d/o late Major K.V. Kohli
c/o Sh. Cuchk @ Chukles Kohli
R/o B98, Defence Colony, New Delhi 110024.
5. B.R. Ahuja s/o (not known)
Joint Registrar (Retd.),High Court of Delhi,
New Delhi. "Receiver (since discharged) appointed by
order dated 3.2.1992 passed by the Hon'ble High Court
of Delhi in Suit No. 238 of 1989 tilted as Pamela
Manmohan Singh Vs. Sh. K. V. Kohli"
... Respondents
Instituted on: 21.05.2012
Judgment reserved on: 07.11.2013
Judgment pronounced on: 18.11.2013
J U D G M E N T
1. Both these appeals arise out of the same case registered before the Rent Controller (South) as eviction petition no. E125/2008 (1996). The appellants herein were the petitioners in the said case, while the respondents herein were arrayed as opposite party. The eviction order had been sought in the said case by the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 2 of 74 petitioners in respect of entire ground floor except the front lawn of property no. 31 Jor Bagh, New Delhi (hereinafter referred to as "the tenanted premises"), on the grounds under Section 14(1)(d) & (h) Delhi Rent Control Act (hereinafter referred to as "the DRC Act").
2. It appears that an order had been passed in the course of the said proceedings under Section 15(2) DRC Act. On allegations of breach of said order, the appellants had prayed for an order for striking out the defence of the respondents through an application moved under Section 15(7) DRC Act. The said application was dismissed by the Rent Controller vide order dated 30.03.2012. On the same day, vide separate judgment, the main petition for eviction was also dismissed.
3. The order on the application under Section 15(7) DRC Act has been assailed through the appeal registered as ARCT No. 35/2012. The judgment, whereby the eviction petition was dismissed, has been assailed through the appeal registered as ARCT No. 36/2012.
4. On notice, respondent no.1 has appeared through Sh. Mahendra Rana, advocate and has contested both the appeals by way of formal reply. Respondents no. 2 to 4 have also appeared ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 3 of 74 through Sh. Lovkesh Sawhney, advocate seeking to contest the appeal on the basis of trial court record.
5. No notice was issued to respondent no.5 in view of the submissions made on 08.08.2012 by all sides to the effect that he had no personal stake involved, his role being restricted to that of receiver appointed by the Hon'ble High Court even in which regard his duty had come to an end he having been discharged.
6. I have heard Sh. Deepak Gupta, advocate for the appellant and Sh. Mahendra Rana, advocate for respondent no.1. The counsel for respondents no.2 to 4 submitted that they adopt the argument of counsel for respondent no.1 I have gone through the trial court record.
7. The background facts need to be noted in brief at this stage.
8. The eviction petition was presented by the appellants on 30.01.1996. As per the averments set out in the said petition, the tenanted premises had been let out originally in favour of Dr. (Mrs) Raseel Kohli, some time around 1960, by the then owner/landlady Smt. Sarojini Biswas wife of Sh. R. R. Biswas. The appellants herein are maternal grand children of the said original owner who died on 02.10.1980, leaving behind her last ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 4 of 74 Will and testament executed on 16.05.1978 bequeathing the right, title and interest her estate of which the tenanted premises formed part in favour of the appellants. In terms of the said Will, Major S. Biswas, one of the sons of late Smt. Sarojini Biswas, was to be the executor.
9. The said Major S. Biswas instituted proceedings before the Hon'ble High Court of Delhi seeking grant of probate (vide Probate Case No. 28/1986) which was allowed vide judgment dated 09.05.1988, subject to completion of formalities. The executor Major S. Biswas died on 29.12.1995. It was indicated in the petition by the appellants that though formalities subject to which probate petition had been allowed had been completed, formal probate has not been issued.
10.The original tenant Dr. (Mrs.) Raseel Kohli died on 11.10.1987 leaving behind two legal heirs including daughter Mrs. Pamela Manmohan Singh (respondent no.1 herein) and son Major K. V. Kohli (Retd.). The said other legal heir of the original tenant died on 22.07.1991 leaving behind his widow Mrs. Minni Kohli and three children including son Sh. Chuck Kohli (respondent no.2 herein) and two daughters Mrs. Pexie Kauble @ Pixy (respondent no.3 herein) and Ms. Nisha Kohli ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 5 of 74 (respondent no. 4 herein).
11.It was own case of the appellants in the eviction petition that the tenancy rights in favour of Dr. (Mrs.) Raseel Kohli being contractual in nature, upon her death, the same devolved upon her legal heirs who at that stage would include widow Mrs. Minni Kohli and respondents no.2 to 4 herein.
12.It appears that respondent no.1, the daughter of the original tenant instituted a partition suit (Suit No. 238/1989) before the Hon'ble High Court with regard to the estate left behind by Dr. (Mrs.) Raseel Kohli. The interest in the tenanted premises was shown as part of the estate in the said civil suit. On an application moved by the respondent no.1 herein, Hon'ble High Court vide order dated 03.02.1992 appointed Sh. B. R. Ahuja, (Respondent no.5 herein) the then Joint Registrar, High Court of Delhi as the Receiver in respect of the properties which were subject matter of the said civil suit.
13.In terms of the aforesaid order, the court receiver took possession of the tenanted premises on 28.04.1992. It appears from the record that on 11.10.1996, Hon'ble High Court passed an order in the said civil suit adjudicating the respondent no.1 to be the sole person entitled to the possession of the tenanted ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 6 of 74 premises and, thus, directed the court receiver to handover the possession thereof to her. It has been the case of the appellant that the order came to be complied with by the court receiver on 03.11.1996 restoring the possession of the tenanted premises unto the respondent no.1.
14.Earlier, on I.A. No. 7211/93 filed by the appellants in the civil suit no. 238/1989, Hon'ble High Court vide order dated 26.07.1994 granted leave to the appellants to institute eviction proceedings in respect of the tenanted premises, interalia, against the court receiver (respondent no.5 herein).
15.The eviction case was, thus, brought on 30.01.1996 by the appellants against the respondents, also impleading Mrs. Minni Kohli (widow of Major K. V. Kohli as respondent no.2) on the averments that the premises had been let out for residential purposes but had not been put to such use by the tenant since 22.07.1991 till the date of filing of the petition, within the mischief of provision of Section 14(1)(d) DRC Act. It was also alleged that the respondentstenant had also secured their own respective residential houses as mentioned in the cause title and had been actually and voluntarily residing in such other houses and not in the tenanted premises and, thus, had also ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 7 of 74 incurred a liability to be evicted under Section 14(1)(h) DRC Act.
16.The eviction petition was contested by respondent no.1 through written statement dated 06.06.1997. The contest was raised on several grounds including the plea that the leave of the Hon'ble High Court had been taken for instituting eviction petition on the ground of bonafide requirement as pleaded in IA No. 7211/1993 and that such leave could not be used for purposes of pressing home an eviction petition under Section 14(1)(d) & (h) DRC Act. The respondent no.1 questioned the locus standi of the appellants to file the eviction petition on the ground that admittedly no formal probate had been granted in their favour in respect of the Will dated 13.05.1978 of the original owner.
17.The respondent no. 1 also disputed the case of the appellant with regard to the purpose of letting, claiming that the tenancy had been created for residentialcumoffice purposes and had been used accordingly to the knowledge of the appellants. It was claimed that a partnership firm in the name and style of Ziroconium India was running its office from the tenanted premises.
18.The respondent no.1 pleaded that the application for ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 8 of 74 appointment of court receiver was moved by her in the partition suit for the protection and safeguard of the tenanted premises and of the movable assets left behind by the deceased tenant. She submitted that the appointment of the receiver and taking over possession of the tenanted premises by him under directions of the court could not amount to dispossession or surrendering of possession or lapse of continuous possession since it was an act of the court taken in the interest of justice or exdebito justitiae. The respondent no.1 claimed that the appointment of the receiver by the court had put the tenanted premises in custodia legis, as a result of which the respondents had been "non voluntarily, nonresidented" or become "tenant of the court" with the court having taken over the custody of the property.
19.Respondent no.1 asserted that the court receiver had restored the physical possession of the tenanted premises to her on 03.11.1996 and that she had been in actual physical and constructive possession thereof through out.
20.Respondent no.1 also contested the petition on the ground under Section 14(1)(h) DRC Act claiming that the property described as 5 Friends Colony (West), New Delhi (of which she was ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 9 of 74 shown to be original resident in the cause title) was a property owned by her husband. She claimed that there was no law as per which the husband and wife could be deemed to be one person. She denied having acquired vacant possession of or been allotted any residence of her own within the meaning of ground contained in Section 14(1)(h) DRC Act.
21.The court receiver (respondent no.5 herein) did not have any personal stake in the matter. After he had restored the possession of the tenanted premises in the hands of respondent no.1 on 03.11.1996, he had no interest left in this litigation. Thus, there was no occasion for he putting any contest to the eviction petition.
22.Mrs. Minni Kohli, widow of late Major K. V. Kohli, died during the pendency of the eviction petition. Her legal heirs being already on record, her name came to be deleted from the array of parties.
23.The remaining legal heirs of the original tenant namely respondents no.2 to 4 herein, suffered the proceedings before the Rent Controller exparte. The trial court record shows that at the fag end of the said proceedings, they appeared through counsel on 11.09.2008 when the matter was pending on the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 10 of 74 board of Mrs. Navita Kumari, Additional Rent Controller and, thereafter, moved application under Order 9 Rule 7 CPC. The said application was dismissed by the Additional Rent Controller on 06.10.2008. The said order was assailed in appeal RCA No. 26/2008 before this court but the challenge was repelled and the appeal was dismissed vide order dated 04.04.2011. The said judgment of this court in appeal was not challenged before superior forum and, thus, attained finality.
24.During the pendency of the proceedings before the Rent Controller, an application was moved on 16.07.1997 by the appellant seeking directions under Section 15(2) DRC Act to the respondent no.1 for paying rent in which regard there had been allegedly certain defaults. The said application, inter alia, claimed that respondent no.1 could not be allowed to contest the eviction petition, unless and until she paid the rent for the period for which it was legally recoverable. The application was contested. It was allowed by Sh. Dilbagh Singh, Additional Rent Controller, Delhi, vide a detailed order passed on 22.11.1997.
25.In terms of the aforesaid order dated 22.11.1997, the respondent no.1 stood directed to pay/deposit the rent in respect of the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 11 of 74 tenanted premises at the rate of Rs. 650/ per month with effect from 01.8.1994 within one month of the said order and to pay/deposit rent in future at the said rate by 15th of each succeeding month for the month for which rent became due.
26.The order dated 22.11.1997 allowing the application under Section 15(2) DRC Act was challenged by way of appeal RCA No. 6/1998 before the Rent Control Tribunal (RCT), then presided over by Sh. J. D. Kapoor (as Hon'ble Judge then was). The RCT did not find merit in the appeal and, thus, dismissed the same vide judgment dated 07.08.2000. There was no further challenge to the said directions. Thus, the order under Section 15(2) DRC Act as noted above became final and binding.
27.It must also be noted here that respondent no.1 had also moved application under Order 7 Rule 11 CPC seeking rejection of the petition, interalia, on the ground that the petition could not be maintained as probate had not been obtained. This challenge was repelled. The application was dismissed vide order dated 08.01.1998 by Sh. Dilbagh Singh, Additional Rent Controller, interalia, observing that a tenant could not be allowed to raise such dispute, since the Will could be questioned only by ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 12 of 74 persons claiming thereunder. The respondent no.1 challenged the said order by way of RCA No. 52/1998 which, however, was dismissed in limine by the RCT, then presided over by Sh. S. M. Aggarwal vide judgment dated 03.03.1998. A Civil Misc. (Main) No. 503/1998 was preferred there against but withdrawn on 03.09.1998, though with liberty to take recourse to any other remedy as may be available in law. The above mentioned matter was not pursued any further.
28.By way of application under Order 13 Rule 1, 3, 6 & 7 CPC, respondent no.1 also claimed that the Will relied upon could not be admitted in evidence and must be ordered to be rejected and taken off the record. The application was dismissed by the Additional Rent Controller vide order dated 07.12.2000. The said order was also challenged before the ARCT, then presided over by Sh. H. P. Sharma, vide MCA No. 34/2011. The appeal came to be dismissed in limine vide judgment dated 17.02.2001.
29.In the course of trial of the main petition, the appellants as well as respondent no.1 led evidence.
30.The appellants examined appellant no.1 Ratinder Nath Nandi (AW1); Sh. M. D. Andley (AW2) to identify the signatures of attesting witness on the Will; and Sh. Deepak Gupta, advocate ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 13 of 74 (AW3), son of the attesting witness Om Nath Gupta to identify the signatures of attesting witness on the Will.
31.The respondent no.1 examined herself as RW1. She also examined Sh. Anshu Garg, (RW2), Senior Judicial Assistant from Delhi High Court to prove that probate certificate has not been issued; Sh. Ram Prasad, (RW3), Judicial Assistant, Delhi High Court to prove the record of civil suit No. 259/78; Sh. Surender Kumar (RW4), LDC from SubRegistrar's office to prove the sale deed in respect of property no. 5, Friends Colony (West); Sh. B. R. Ahuja, (RW5), the Court Receiver appointed by Delhi High Court in partition suit in respect of the estate left by Major S. Biswas including the tenanted premises; Sh. Vijay Kumar, (RW6), Junior Assistant from NDMC, to prove the water and electricity bills relating to the tenanted premises; and Sh. Alok Bhatnagar (PW7), Senior Assistant, NDMC to prove the facts relating to consumption of electricity and water installed in the tenanted premises.
32. In the course of proceedings before the trial court, interalia an application came to be moved on 29.07.2005 under Section 15(7) DRC act, alleging defaults in compliance with the directions in the order under Section 15(2) DRC Act. The ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 14 of 74 appellant prayed for the defence of respondent no.1 to be struck out. Notice on the application was issued vide order dated 02.08.2005 for the next date of hearing, i.e. 10.08.2005 as had been earlier fixed.
33.The application remained pending for several years. Eventually on 17.12.2001, the respondent no.1 submitted a reply, inter alia, claiming that marginal delays or small defaults merited condonation also pleading that there had not been any willful, contumacious or deliberate conduct in noncompliance. The reply was accompanied by affidavit of Sh. Surender Singh, clerk engaged by Sh. Mahender Rana, advocate representing respondent no.1.
34.The reply claimed that respondent no.1 had authorised the aforesaid court clerk of the counsel for depositing the rent in terms of the order under Section 15(2) DRC Act and that after realising the money against cheques issued from time to time for such purposes, the said clerk used to make deposit in the respective courts. She pleaded that if there had been any marginal delay, it had occasioned on account of negligence of the said clerk.
35.It was also claimed in the reply that there had been delay on ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 15 of 74 account of change of courts. Reliance in this context was placed on orders dated 18.02.2006, 28.03.2007 and 17.11.2008, whereby the file of the eviction case had moved from one Rent Controller to the other, each time under directions of Hon'ble High Court.
36.As is clear from record, the order dated 18.02.2006 was passed by Sh. Sanjeev Aggarwal, Rent Controller making over the case to the court of Sh. B. S. Chumbak, Additional Rent Controller, Delhi. The order dated 28.03.2007 was passed again by Sh. Sanjeev Aggarwal, Rent Controller, Delhi transferring the case from the court of Sh. B. S. Chumbak, Additional Rent Controler, Delhi to the court of Smt. Savita Rao, Additional Rent Controller, Delhi. The order dated 17.11.2008 was passed by Ms. Navita Kumari, Additional Rent Controller (West) sending the file for transfer to the court of Rent Controller (South) in the wake of bifurcation of NCT of Delhi into 9 districts with effect from 01.11.2008.
37.It must be mentioned here that it is very clear from record that prior to 17.11.2008, the case had remained pending before one or the other Rent Controller at Tis Hazari Court complex. It was only upon bifurcation of NCT of Delhi into 9 civil districts that ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 16 of 74 the file actually moved from Tis Hazari Court complex to Patiala House Court complex, where the Rent Controller (South) was then sitting. It must also be added here that the courts/tribunals of South Civil District moved to Saket Court Complex with effect from August, 2010.
38.Be that as it may, the court of Rent Controller (South) was presided over by Sh. Sandeep Yadav, both at Patiala House Court complex and at Saket Court complex for the relevant duration.
39.Vide the separate order dated 30.03.2012, the Rent Controller dismissed the application under Section 15(7) DRC Act concluding that the defaults in deposit of rent by respondent no. 1 did not warrant such consequences as prayed. He observed that the reports dated 07.06.2011, 14.07.2011 and 24.11.20011 submitted by the Nazir indicated that rent had been deposited regularly and though there had been some defaults, the same were neither willful nor contumacious. Reference having been made to Kamla Devi Vs. Vasdev [AIR 1995 SC985], the Rent Controller observed that the provision contained in Section 15 DRC Act for striking out the defence of the tenant was not mandatory but vested a discretion. He referred to Ranchhod ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 17 of 74 Lodha Vs. Madhabji Kanji [1974 Patna 211], and Dhan Raj Vs. Brijesh Kumar [2003(1) RLR (Rajathan)] to conclude that the appellants had waived the right that may have accrued in their favour under Section 15(7) DRC Act for the report of the Nazir indicated that the rent deposited by respondent no.1 had been withdrawn.
40.The main eviction petition was dismissed vide judgment dated 30.03.2012 mainly on the ground that the purpose of letting had not been proved to be residential and that the residence at property no. 5, Friends Colony (West), New Delhi could not give rise to cause of action under Section 14 (1) (h) DRC Act as the same had been available to respondent no.1 even before she had become a tenant (by inheritance).
41.The counsel for the appellants has submitted that the view taken by the Rent Controller in the context of prayer under Section 15(7) DRC Act is not in accord with the law on the subject or the facts on record. He submitted that order under Section 15(2) DRC Act had been consistently disobeyed and defied over the years and the defaults that have been shown from the reports of the Nazir and even the documents submitted by the respondent no.1, cannot be treated as conduct amounting to ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 18 of 74 anything but willful and contumacious, which merited exercise of the jurisdiction under Section 15(7) DRC Act. The counsel submitted that the explanation given in the reply to the application under Section 15(7) DRC Act cannot be said to be just or sufficient. He referred to Modula India Vs. Kamakshya [AIR 1989 SC 162]; Jain Motor Car Co. Vs. Swayam Prabha Jain, (1996) 3 SCC 55, Aero Traders (P) Ltd. Vs. Ravinder Kumar Suri [(2004) 8 SCC 307]; Shanti Prasad Jain Vs. Prakash Narain Mathur [(2009) 11 SCC 663]; Shukla Malhotra & Ors Vs. M/s Dee Pee Kagajydyog Pvt. Ltd. [2001 VI AD (Delhi) 797; Parkash Narain Mathur Vs. Shanti Parshad Jain [2008 (148) DLT 545]; Shobha David Vs. Om Prakash Gulati; and Harjinder Singh Bedi Vs. R. P. Malhotra [2010 (116) DRJ 244] to argue that the order on the application under Section 15(7) DRC Act is perverse and deserves to be set aside.
42.The counsel for the appellant has pointed out that in the case of Harjinder Singh Bedi (supra) even a default to the extent of deposit of rent at the original rate without the element of enhancement under Section 6A DRC Act was held to be ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 19 of 74 sufficient to attract the mischief of Section 15(7) DRC Act. The counsel relied heavily on the observations in para 13(A) of the judgment to the following effect: "The entire conduct of the petitioner tenant in the present case is found to be malfide and contumacious. A default in compliance of the order under Section 15(1) can be condoned only when the tenant is found to have acted bona fide and the default is found to be inadvertent and inspite of best efforts. However, where a tenant is found to be misusing the protection from eviction under the Act and is found to be indulging in harassment of the landlord, such tenant cannot seek exercise of discretion in his favour. The Supreme court in M/s Jain Motor Car Co. Delhi Vs. Swayam Prabha Jain, AIR 1996 SC 2951 upheld the decision of the High Court (reversing the decision of the court below) of striking off of the defence. The default in payment of even one month's rent was held to be negligent and careless and the explanation offered by the tenant held to be an afterthought. "
(emphasis supplied).
43. The appellants further rely on observations in Shanti Prasad Jain (supra) to the following effect:
ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 20 of 74
"............ the appellants were guilty of negligent default in depositing the rent in compliance with the order of the Rent Controller, Delhi, under Section 15(1) of the Act. From a bare reading of the averments made in the application for condonation of delay, it would be evident that the appellants could not provide any explanation or justification for such wilful default and in fact they have made contradictory statements in their application for condonation of delay which was not the defence taken by them in the objection filed to the application under Section 15(7) of the Act filed by the respondent.
X X X X
30. .................... the application for condonation of delay was a belated one and an afterthought attempt was made to explain the willful default. That apart, as noted hereinearlier, in the application for condonation of delay, the appellants, for the first time, contended that they were advised by their counsel that they were not obliged to comply with the order under Section 15(1) of the Act, till the appellants were brought on record. Whereas contradictory stand was taken by them that rent was submitted regularly to their learned counsel through their clerk to assure that it was duly deposited.
X X X X ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 21 of 74
37. In this connection, we may refer to two decisions of this Court in Jain Motor Car Co. V. Swayam prabha Jain [1996(3) SCC 55] and Aero Traders (P) Ltd. V. Ravinder Kumar Suri [2004(8) SCC 307].
38. So far as Jain Motor Car case is concerned, this court has held that striking out the defence under Section 15(7) of the Act in paying or depositing the rent in compliance with the order passed under Section 15(1) of the Act is discretionary in nature and in appropriate cases having regard to the facts and circumstances, it is open to the Rent Controller to exercise his power to condone the delay in deposit of rent. It was also held in that decision that the Rent Controller at the same time is entitled to strike out the defence if the Rent Controller finds that default in deposit of rent was wilful default and, therefore, the Rent Controller is conferred with the power to exercise his discretion to strike out the defence under Section 15(7) of the Act.
39. So far as Aero Traders (P) Ltd. case is concerned, a threeJudge Bench of this Court similarly laid down that the power to strike out the defence under Section 15(7) of the Act was discretionary in nature."
(Emphasis supplied).
44.The appellant further relies on Aero Traders (P) Ltd. (supra) ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 22 of 74 to contend that in a case where a totally false plea about the remittance of rent is set up, there was absolutely no ground on which discretion in favour of condonation should be exercised on the plea of the tenant. On the strength of Prakash Narain Mathur (supra), it has been submitted that the delay would be condoned only where it is found that the conduct of the tenant in failing to deposit the rent was not contemptuous and there were good and sufficient reasons furnished for the default. Reference was also made to Sobha David (supra) to contend that the tenant having made series of defaults, there was no case made out for discretion to be used for waiver of the effect.
45.The counsel for the appellant also referred to Modula India (supra) to submit that if as a consequence of default wherein the order under Section 15(7) DRC Act was to follow and the defence was to be struck out, a valuable right would inure in favour of the landlord, in that the tenant would not be entitled to lead any evidence nor could he be permitted crossexamination beyond the very limited objective of pointing out the falsity or weaknesses of the petitioner's case. The counsel for appellant submitted that the view taken by the Rent Controller in the impugned order demonstrated a casual approach in taking away ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 23 of 74 the said valuable right flowing from the defaults and, thus, the order deserves to be vacated.
46.Per contra, it has been argued on behalf of the respondent no.1 that the reasons for the defaults have been duly explained by the respondent no.1 and, therefore, the order of the Rent Controller cannot be faulted. Reliance was placed on the following judgments:
(i) V. K. Verma Vs. Radhey Shyam [AIR 1964 SC 1317];
(ii)Santosh Mehta Vs. Om Prakash [AIR 1980 SC 1664];
(iii)Bimal Chand Jain Vs. Sri Gopal Agarwal [(1981) 3 SCC 486];
(iv) Ram Murti Vs. Bhola Nath & anr. [26 (1984) DLT 91 (SC)];
(v) Man Mohan Kaur Vs. Surya Kant Bhagwandi [ VIII1989 (2) All India Rent Control Journal 144 (SC);
(vi)Wander Ltd. & anr. Vs. Antox India (P) Ltd. [1990 (2) Arbitration Law Reporter 399 (SC)];
(vii)Kamla Devi Vs. Vasdev [AIR 1995 SC 985];
(viii) Hari Chand Vs. Nand Lal [1972 RCR 387 (DHC);
(ix) Ariana Afghan Airlines Vs. Cycle Equipment [(1978) 14 DLT 19 (DHC)]
(x) Surendra Nath Vs. Indra Devi Dhawan [ III1985(1) 297 (DHC)];
ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 24 of 74
(xi)Mohd. Suolin & ors Vs. Sunita Chug [21(1982) DLT 77 (DHC)];
(xii) Jai Kumar Vs. Janki Devi & ors [ II1985(1) All India Rent Control Journal 215 (DHC)];
(xiii)Ram Swaroop Kathuria Vs. Nagpal Optical Co. [ 50(1993) DLT 387 (DHC)]; and
(xiv) Abdul Razak Vs. Kali Charan [1995 1 AD (Delhi) 836].
47. The gist of the case law which has been referred is that striking out the defence of the tenant is harsh and extreme step and having regard to the scheme of the legislation such drastic power is meant for use in grossly recalcitrant situation where a tenant is guilty of contumacious disregard in compliance with the directions of the court. The provision contained in Section 15(7) DRC Act does not impose a mandate. It only vests discretion in the Rent Controller. It being an exceptional step, the punitive consequences cannot be visited in routine upon mere failure to pay or deposit. The conduct indicating mood of defiance or gross negligence must be discernible before such consequences can flow. The power to condone default has been read as inherent in the statutory provision. It has been a consistent view of the superior courts that if there has been a late but voluntary compliance with the order, ordinarily the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 25 of 74 defence should not be struck out.
48.It was then submitted by the counsel for respondents that even if there has been a default in timely deposit of rent, so long as the full rent has been deposited and accounted for and the same has been withdrawn by the landlord, the punitive consequences under Section 15(7) DRC Act ought not follow. In support of this, he placed reliance on M/s Bharat Pulvarising Mills Pvt. Ltd. Vs. Tara Chand Malik Charitable Trust & ors. [1973 RCR 1 (DHC)]; Bibi Amna Khatun & ors Vs. Zahir Hussain & ors [AIR 1981 Patna 1]; Ranchhod Lodha Vs. Madhabji Kanif [AIR 1974 Patna 211]; Hukam Chand Vs. Madan Lal [1986(1) RCR 284 (Raj. HC).
49.It was also submitted by the counsel for respondents that the remedy of appeal under Section 38 DRC Act, (as amended with effect from 01.12.1988), restricts the consideration only upon the "questions of law". It was argued that, sitting in appeal, it would be improper for this court to interfere in the discretion exercised by the Rent Controller in favour of the tenant on the reasoning that a different view than the one taken by the Rent Controller was also possible. Referring to Wander Ltd. & ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 26 of 74 anr. (supra), he submitted that the appellate court ought not interfere with the exercise of discretion by the court of first instance to substitute its own view, except and unless where the discretion has been shown to have been exercised in a manner arbitrary or capricious or perverse or where settled principles of law governing the subject have been ignored. In his submissions, the Rent Controller through the impugned order had demonstrated that the facts in entirety have been taken into consideration and, thus, the discretion has been exercised objectively and no case is made out for the same to be interfered with.
50.In rejoinder to the arguments of the respondents, the counsel for the appellant placed reliance on Laxmi V. Patel Vs. Chetanbhai Shah & anr. [(2002) 3 SCC 65]; and Sanjay Kumar Saxena Vs. Meeta Govel [2005 RLR 161]. The law laid down in Laxmi V. Patel (supra) is with reference to the permissible extent of interference by the appellate court in the judicial exercise. Reliance on Sanjay Kumar Saxena (supra) is mainly in answer to the full bench judgment of the Patna High Court about the effect of the withdrawal of the rent (by the landlord) on the plea for defence to be struck out in case of ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 27 of 74 noncompliance with Section 15(2) DRC Act.
51.The copies of the reports of Civil Nazir, which had been called for by the Rent Controller, interalia, for purposes of examining the prayer under Section 15(7) DRC Act, do show that there had been belated deposits of rent for several months. Each delay, however, generally was of a few days, with some involving delay of a few months as well. The said documents also reveal that liability to deposit rent for the period of September, 2008 to January, 2009 and for August, 2009, to December, 2009 came to be overlooked. The entire arrears for the said periods ultimately came to be deposited on 13.09.2011
52. There is no doubt that barring the element of delay, the directions under Section 15 (2) DRC Act for the rent to be deposited have been fully and substantially complied with. It is also clear from a fresh report (dated 17.09.2013), which was called for on the request of the appellant, from the Civil Nazir of the court concerned that the rent deposited for the period June, 2008 to March, 2012 has been not withdrawn by the appellants. The rent for the earlier period, however, was withdrawn at different intervals.
53. As has been the consistent view of the superior courts, the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 28 of 74 provision contained in Section 15(7) DRC Act is not penal in nature. Indeed, this provision is not meant to entrap the tenant into defaults. The default in compliance with the directions under Section 15 DRC Act must be intentional and contumacious so as to incur the penal consequences. Generally speaking, if there has been substantial compliance, serious consequences as envisaged in Section 15 (7) DRC Act ought not follow.
54. The case has been contested by respondent no.1 who is an aged lady. The explanation for delays given has been consistent. In the facts and circumstances involved, it cannot be said that the delay was to cause harassment to the landlords. She has given her due explanation with regard to the delays that have occurred. Her explanation has been found by the Rent Controller to be just and sufficient. He thus exercised the discretion vested in him in her favour. Sitting in appeal, it will not be proper to supersede the said discretion and substitute or enforce another view particularly when the approach taken by the Rent Controller cannot be said, in the facts and circumstances, to be perverse. It is pertinent to note here that the appellants having moved the application under Section 15 ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 29 of 74 (7) DRC Act on 29.07.2005 did not seriously pursue it till December, 2001. In these circumstances, I need not go into the question of the effect of withdrawal of the rent for the earlier period.
55.For the foregoing reasons, the appeal directed against order under Section 15(7) DRC Act ought not succeed. It is bound to be dismissed. Ordered accordingly.
56.The counsel for the respondent pointed out that after the amendment with effect from 01.12.1988 under Section 38(1), the appeal against order passed by the Rent Controller under the DRC Act lies before this court "only on question of law". The counsel referred to (i) Bell & Co. Ltd. Vs. Waman Hemraj [AIR 1938 Bombay 22]; (ii) Hari Shankar & ors Vs. Rao Girdhari Lal Chowdhury [AIR 1963 SC 698; (iii) Mattu Lal Vs. Radhey Lal [(1974) 2 SCC 365]; (iv) Sarla Ahuja Vs. United India Insurance Co. Ltd. [AIR 1999 SC 100]; and
(v) Pushpa Rani jaggi & ors Vs. Dwarka Dass (deceased) through LRs [136(2007) DLT 346] to contend that it will not be permissible for this court in the facts and circumstances to reassess the value of the evidence and interfere with findings of fact. It was argued that the limited scope for scrutiny by this ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 30 of 74 court would involve examination of the question as to whether there has been any miscarriage of justice which, in turn, would depend on the question whether the appellants have had a proper trial in accordance with law or not.
57.In above context, it only needs to be observed that while this court would not substitute its own opinion for that of the trial court, (only because both views are possible, it is open for this court to interfere even with the findings of fact if it is shown that there has been an error in appropriate application of settled law in arriving at the same or when it is found that the findings have been recorded on no evidence at all or if the same are arbitrary, unreasonable or perverse. [Ishwar Dass Jain V. Sohan Lal (2000) 1 SCC 434 and Bhagat Construction Co. P. Ltd. V. Commissioner of Income Tax 2001 (90) DLT 78].
58. The respondents, while resisting the appeal against the judgment dated 30.03.2012, have raised the issue of appellants no.2 and 3 having transferred their undivided share in the title of the property by way of agreement to sell dated 28.05.2004 in favour of a third person (Mr. Basant Ray Bhandari). It was submitted that the transferee of the title not having been impleaded as a party and the facts in this regard having been ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 31 of 74 suppressed, concealed or withheld, the proceedings suffer from defect of nonjoinder and are in the nature of gross abuse of the process of law, as a consequence of which, the appeal merits dismissal.
59.The appellants, through counsel, have disputed the plea about the transfer of title by appellants no.2 and 3. The counsel explained that the agreement to sell had become subjectmatter of suit for specific performance which was still pending adjudication before the competent court. He submitted that no formal sale deed having been executed till date, the title still vested in all the appellants collectively.
60. The plea of transfer of the title by some of the petitioners/appellants was never raised before the trial court. Therefore, the facts in such regard were never tried or tested. Be that as it may, it is clear from the material on record that the tenancy in the case at hand was created by the predecessorin interest of the appellants. After her demise, the property stood devolved on all the four appellants collectively. They are co owners and, thus, claim to be the colandlords. Even if it were to be assumed as correct that appellants no.2 and 3 have executed some such documents, including in the nature of ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 32 of 74 agreement to sell of their undivided share in favour of a third person, the proceedings for eviction of the tenant can be prosecuted to their logical end by the remaining appellants. It is well settled that one of the coowners can file a case for eviction of tenant in the properly jointly owned by coowners. He does so not only on his behalf and in his own rights but also as an agent of other coowners. [India Umberalla Manufacturing Co. & ors Vs. Bhagabandei Agarwalla [(2004) 3 SCC 178] and judgment dated 18.09.2013 of Hon'ble High Court in the case of Chemons India Pvt. Ltd. Vs. Vijay Sandhu in RFA 26/2013.
61.The eviction petition was brought before the Rent Controller on 30.01.1996 on the grounds under Section 14(1) (d) & (h) of DRC Act. Since the property in question at that time was in the control of the court receiver appointed by the Hon'ble High Court in the proceedings arising out of Suit No. 238 of 1989, the appellants had earlier applied for, and had been granted, permission for such purposes. One of the contentions raised by the respondents has been that the leave of Hon'ble High Court was obtained by the appellants for filing petition for eviction under DRC Act on the ground of "bonafide need" of the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 33 of 74 landlords. It has been argued that leave not having been applied for or granted for the specific purposes of grounds under Section 14(1)(d) and (h) DRC Act, the eviction petition impleading the court receiver was bad in law.
62.The contention of the respondents to above effect, to my mind, is meritless. The Hon'ble High Court considered the prayer for permission for eviction proceedings to be taken out qua the tenanted premises apparently after considering only its permissibility since all such action would involve the court receiver. The grounds which were available to the landlords were never examined with regard to their merit in strict sense of the term. That is a task to be carried out by the statutory forum ("the Rent Controller"). Even otherwise, the court receiver in due course came to be discharged of his responsibility when he was directed by Hon'ble High Court to handover the possession of the premises in question to respondent no.1. In these circumstances, it is of no effect that the prayer for leave of the court for instituting the eviction proceedings did not refer to the grounds under Section 14(1) (d) & (h) DRC Act.
63.It is necessary at this stage to take note of relevant clauses ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 34 of 74 invoking which the eviction case was brought before the Rent Controller. Section 14 of DRC Act, to the extent relevant, reads as under: "14. Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds, namely: X X X
(d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of filing of the application for the recovery of possession thereof; X X X
(h) that the tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allotted a residence;
64. Noticeably for both the above mentioned clauses invoked by ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 35 of 74 the appellants, it is necessary that the purpose of letting of the demised premises should be "residence".
65. It was the case of the appellants in the eviction petition that the property was let out to Dr. (Mrs.) Raseel Kohli for residential purposes only. It was prayed that the demised premises are residential in nature, built upon lease hold land demised by the President of India for purposes of construction of a residential house, situated in a residential locality and used only for residential purposes since inception till July, 1991.
66.The respondent no.1, on the other hand, in her written statement claimed the premises was let out by the then landlady Smt. Sarojani Biswas for residencecumoffice to Dr. (Mrs.) Raseel Kohli. It was claimed that office of M/s Zirconium India, a partnership firm was run from the tenanted premises to the knowledge of the appellants and late Smt. Sarojani Biswas (original landlady). It was further claimed that the premises was also being used for purposes of office of Chuck Materials Private Limited, a company in which Major K. V. Kohli, the late son of the deceased tenant, had an interest.
67.The Rent Controller, in the impugned judgment, concluded that the appellants had failed to prove the purpose of letting to be ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 36 of 74 residential. In this context, he noted the omission on the part of AW1 to depose about the purpose of letting. He also noted that there was material on record indicating the tenanted premises to have been put to commercial use by the respondents. He rejected the contention of the appellants about the residential nature of premises indicating the predominant purpose for which the premises would have been let out.
68. Both sides have referred to a catena of judgments germane to the issue at hand. The judgments include the following:
(i)Gopal Dass Verma Vs. S.K. Bhardwaj & anr.
[AIR 1963 SC 337];
(ii) S. Kartar Singh Vs. Chaman Lal & ors [AIR 1969 SC 1288];
(iii) A.N.Kapoor Vs. Pushpa Talwar [AIR 1992 SC 799];
(iv) Meenal Eknath Kshirsagar Vs. M/s Traders and Agencies and anr. [AIR 1997 SC 59];
(v) M/s Precision Steel and Engg. Works & anr. Vs. Prem Deva Niranjan Deva Tayal [AIR 2003) SC 650];
(vi) M/s Raghunandan Saran Ashok Saran Vs. H.C. Thukral [1971 RLR (Note96) 72 (DHC);
(vii) Kaila Devi vs. Banarasi Das [ 16 DLT (1979) 139 (DHC)];
(viii) Mohan Lal Vs. Tirath Ram Chopra & anr.
[1982 (2) All India Rent Control Journal 161 ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 37 of 74 (DHC);
(ix)Joginder Singh Vs. Uma Devi [ VII1985 All India Rent Control Journal 1(DHC)];
(x)Tressa Nair Vs. Sobha Ram [1985 RLR 463 (DHC)];
(xi) Salek Chand Jain Vs. Vinesh Chand Seth [1986 RLR 17 (DHC)];
(xii) Kartar Kaur Vs. L. Walia & ors [1993(1) RCR 691 (DHC)];
(xiii )Kishan Lal Vs. Rajan Chand Khanna [AIR 1993 Delhi 1];
(xiv)Khairul Nissan Vs. Tufail Ahmed [1993(27 DJR 277 (DHC);
(xv)Jagmohan Singh Wadhera Vs. K. M.Bhatnagar [59(1995) DLT 707 DHC];
(xvi) Kuldeep Raj Kapoor Vs. Yash Pal Mahindroo [VII1996(2) All India Rent Control Journal09 (DHC)];
(xvii) Satya Malhotra Vs. Mohinder Singh Arora [81(1999) DLT 627(DHC)];
(xviii) Santosh Mehra Vs. Malik Singh Sahni [100(2002) DLT 713(DHC)];
(xix) Kishan Swaroop & anr. Vs. Mawasi (now deceased) through LRs [95(2002) DLT 560 (DHC)]. (xx) Naranjan Kaur Vs. Dr. Siri Ram Joshi [VIII1969 All India Rent Control Journal 652 (P&H HC).
69.Undoubtedly, the basic burden of proving a fact lies on the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 38 of 74 party which asserts the same. But then, in a case where both sides have led evidence, the question of burden of proof pales into insignificance. It is well settled that in a litigation where evidence is adduced by both sides, the court must decide the issue on evidence and not on the question of onus. [AIR 1959 SC 31 and AIR 1994 Karnataka 247].
70. The law on the question of proof of letting purpose particularly in the context of disputes under DRC Act is well settled. The principles which have been consistently followed may be summarized as set out hereinafter.
71. Primarily, the purpose of letting is to be seen from the agreement whereby the tenancy is created. In the absence of a lease deed, the terms of letting may also be reflected in documents in the nature of rent receipts, correspondence exchanged etc.
72.In cases where there is no written contract or document indicating the letting purpose, inferences are to be drawn from the surrounding circumstances, which would include the nature of the premises, the purpose for which it was constructed or its predominant use, locality where the premises is situate etc.
73.Undoubtedly, continued user of the premises since inception ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 39 of 74 for commercial purposes to the knowledge of the landlord, particularly when there is no exception taken, would lead to the inference that the letting purpose was nonresidential. But then, in case where there is no sufficient or clear evidence adduced as to since when the use of the premises for business was commenced, stray documents indicating its address being utilized for purposes of correspondence will not result in a conclusion in favour of the tenant claiming commercial tenancy. In the case of M/s Precision Steel and Engg. Works (supra), in the context of Section 14(1) (e) DRC Act, Hon'ble Supreme Court went to the extent of observing that the expression "the premises let out for residential purposes"
should be construed liberally and not technically or narrowly.
It was held that so long the purpose and dominant purpose of letting is residential, merely because there had been mixed user of the premises or user of the part or incidental or ancillary user of the premises was permitted for activities other than residential, the purpose of letting would not cease to be residential.
74.In the facts of the case at hand, there can be no doubt about the fact that the property which comprises the tenanted premises ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 40 of 74 was built on land demised for residential purposes. It is located in a residential neighbourhood. It was constructed apparently with the intention that it would be used as residence. This is clear merely from the description of the premises which includes facilities such as bed rooms, drawing and dining room, kitchen etc. Thus, there can be no doubt about the fact that its predominant use was, has been and remains residential.
75. It is admitted on both sides that the tenancy was created by the erstwhile owner in favour of Dr. (Mrs.) Raseel Kohli without any formal document being executed. There are no rent receipts available. In these circumstances, conclusions about the purpose of letting will have to be reached on the basis of attendant circumstances.
76.It is conceded on behalf of the respondents that Dr. (Mrs) Raseel Kohli, the original tenant was a government servant, employed at the relevant point of time as Medical Superintendent in Lady Hardinge Medical College. It is inherent in this admission that she would not be permitted by the conduct rules applicable to her employment in the government to engage in any commercial activities. It is not even claimed by the respondents that she had secured any such ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 41 of 74 permission from the government to embark upon any business venture. Her family comprised only of her two children namely respondent no.1 (daughter) and (now late) Major K. V. Kohli (the son), respondent no.1 was married off soon after and settled in her matrimonial home. The son, on the other hand, was a commissioned officer in Indian Army. For the same reason as mentioned in the context of the original tenant, Major K. V. Kohli, a member of the family of the tenant, also could and would not have started any commercial activities in the premises in question at the inception of the tenancy.
77.Reference has been made repeatedly to the use of the premises for purposes of office of M/s Ziroconium India and Chuck Materials Private Limited. The only cogent material submitted in this regard is indicative of the tenanted premises being shown as the office address of the said firm/company in which Major K.V. Kohli appears to have acquired interest subsequent to leaving service in Indian Army, some times after 1962. There is no documentary evidence adduced to show as to when the said businesses commenced. Mere use of the premises for such purposes would not, by itself, change the letting purpose. There is nothing on record to show that the user of the premises for ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 42 of 74 such business purposes was with oral consent, leave alone with consent in writing, of the landlady.
78.Respondent no.1, in her evidence, made it clear that she was not privy to the terms of tenancy as settled between her mother and the original landlady. In this view, her statement about letting purposes is nothing but speculation.
79.In above facts and circumstances, the Rent Controller apparently fell into grave error by reaching conclusions contrary to the case of the appellants on the score of letting purpose. The nature of the premises and its predominant use as indeed the attendant circumstances at the time of letting leave no doubt in my mind that the premises would have been taken by the tenant for residential purposes only. The negative finding recorded by the Rent Controller is vacated and the issue is decided accordingly.
80. The premises was let out in 1960s. Original tenant Dr. (Mrs.) Raseel Kohli died on 11.10.1987. It is admitted case on both sides that after her demise the premises came in use as residence of her son Major K. V. Kohli. The respondent no.1, the other legal heir of the tenant, was admittedly a daughter married and settled in her matrimonial home. Some time after ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 43 of 74 the death of original tenant, dispute arose between Major K.V. Kohli, on one hand, and respondent no.1, on the other over, over the estate left behind by Dr. (Mrs.) Raseel Kohli. Admittedly, this became the subject matter of suit for partition registered as Suit No. 238 of 1989 before Hon'ble Delhi High Court. The estate to which reference was made in the said civil suit included the tenancy rights in respect of the premises involved herein. Major K. V. Kohli died on 22.07.1991. It is the case of the respondents that at that point of time, the premises was being used by one Mrs. Pamela Bhole, who claimed to be former secretary of Major K. V. Kohli. On an application submitted by respondent no.1 in the said civil suit, interalia, taking exception to the user of the tenanted premises by the said other person, Hon'ble High Court vide order dated 03.02.1992 appointed respondent no.5 as the Court Receiver in respect of the tenanted property. The Court Receiver admittedly took over the possession of the premises soon thereafter. Eventually, vide order dated 11.10.1996, the Court Receiver came to be discharged and under directions of Hon'ble High Court the vacant possession of the tenanted premises was handed over to respondent no.1.
ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 44 of 74
81.The petition for eviction, interalia, invoking under Section 14(1)(d) DRC Act was presented on 30.01.1996 when the premises was admittedly in the control and possession of the Court Receiver.
82.Section 14(1)(d) DRC Act has been quoted above in extenso. It is clear from the bare reading of the said clause that the non user of the tenanted premises by the tenant, or any member of his family, must be for a period of six months "immediately before the date of filing of the application (for eviction)". It is in this context that the respondent no.1 has pleaded that she having been kept out of the premises on account of appointment of the Court Receiver vide order dated 03.02.1992, Section 14(1)(d) DRC Act is not available as a ground of eviction. The respondents claim to have been nonvoluntarily nonresidented by the Court Receiver and the premises being custodia legis during the relevant period.
83. In invoking the doctrine of custodia legis, the respondents have referred to:
(i) Kanhiya Lal Vs. Dr. D. R Banaji & ors. [AIR 1958 SC 725];
(ii) Everest Coal Company (P) Ltd. Vs. State of Bihar & ors [(1978) 1 SCC 12].ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 45 of 74
(iii) S. Jagtar Singh Vs. S. Karamjit Singh Panjwar & ors [(1997) 11 SCC 322];
(iv) Shyam La Gomatwala Vs. Nand Lal & ors [AIR(31) 1944 All. 220];
(v) S. A. Jawwad Vs. Maqsood Jahan [AIR 1978 All. 73]; and
(iv)Joseph Abraham Vs. Ouseph Eapen & ors [AIR 1978 Kerala 36].
84. It is well settled that appointment of a receiver by the court puts the property in custodia legis. If the property is in possession of a tenants they become the tenants of the court. The receiver holds the property on behalf of the court. Even where the order of appointment of receiver is not exhaustive or explicit with regard to the conferment of a particular duty or contract but it is necessarily implied in such order, it is the duty of the receiver to perform such functions in the course of management and preservation of the property. But, in such cases it is imperative for the court receiver to obtain previous leave of the court for discharging such duties and incurring any expenses or liability on that account. The property does not vest in the court receiver. It remains with the court but in the actual custody of the receiver. Under Order 40 Rule 1 CPC, the permission of the court is absolutely necessary for institution of ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 46 of 74 proceedings involving the court receiver. The court would generally not stand in the way of the legitimate legal proceedings for redressal or relief respecting the property in the hands of the court receiver unless the action is totally meritless, frivolous, vexatious or otherwise vitiated by any sinister factor. Thus, the court would ordinarily accord permission to sue, this for the reason that, in the usual run of cases, the court is not affected by a litigation which settles the right of the parties.
85. Per contra, the appellants have relied on Anthony C. Leo Vs. Nandlal Bal Krishnan & ors. [AIR 1977 SC 173]. The submission with reference to Order 40 Rule 1 CPC is that though the court becomes custodia legis of the property in suit in respect of which receiver is appointed, such de jure possession of the court, through its receiver, does not bring about vesting of the property in the receiver, or in the court, free from encumbrances even pendente lite. As the property does not vest free from encumbrances in custodia legis by annulling all rights and obligations attached to the property, the receiver cannot interfere with any rights of the third party. Sub Rule (3) of Rule 1 of Order 40 CPC clearly provides that it does ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 47 of 74 not authorise the court to remove from possession or custody of property any person whom any party of the suit has not a present right to remove. Thus, neither the court nor the receiver, possess any right higher than the rights which the party to the suit possesses.
86. It was submitted, on the strength of Anthony C. Leo (supra), that the receiver remains bound by the incidences of tenancy flowing from the statute regulating and determining inter se rights of landlord and tenant and that, though, a tenant of a property in custodia legis cannot be deprived of statutory protection of the rights of tenant visavis landlord, a tenant cannot claim protection of any assumed right not flowing from the incidences of tenancy.
87.On careful appraisal of the facts at hand, as indeed the chronology of events, it is clear that nonuser of the tenancy premises (for residence) by the legal heirs of the original tenant, particularly after demise of Major K. V. Kohli on 22.07.1991, cannot give rise to a cause of action in favour of the appellants under Section 14(1)(d) DRC Act.
88.Admittedly, the premises had remained in use and occupation of Major K.V.Kohli for residence purposes till he died on ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 48 of 74 22.07.1991. The problem arose after his death. A secretary engaged by Major K. V. Kohli during his life time continued to be in possession and control of the premises. The litigation over the estate left behind by the original tenant had already started in 1989. It was in these circumstances that respondent no.1 asserted her rights and claimed, interalia, that the presence of the third person (Mrs. Prem Bhole) was unauthorised/unwarranted. Apparently, she could not have taken law in her own hands to throw out the said stranger from the tenanted premises. She took resort to the legal remedies, in pursuit of which Hon'ble High Court vide order dated 03.02.1992 decided to take control of the tenanted premises through the court receiver. The question as to which of the litigating party should be put in possession was not immediately decided. Thus, while the stranger was removed from the premises through the court receiver, the question of possession (and use) was kept pending. It came to be determined in October, 1996 when the court receiver was discharged and the possession handed over to respondent no.1.
89.It is clear that when the petition was brought on 30.01.1996, the premises was in the control and possession of the court receiver. ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 49 of 74 The nonuser for the statutory period of six months immediately preceding the filing of the eviction petition, thus, cannot be intentional or deliberate act of commission or omission on the part of the tenant.
90.I, thus, endorse the plea of the respondents that they having been nonvoluntarily nonresidented, the petition under Section 14 (1)(d) DRC Act could not have been brought or maintained.
91.The Rent Controller in the impugned judgment has given findings to the contrary. I find the reasoning applied to be erroneous and not in accord with the settled principles of law on the subject. The findings recorded by the court below in favour of the appellants, thus, must be set aside. Ordered accordingly.
92.It must, however, be added that ultimately the result of the petition under Section 14(1)(d) DRC Act remains the same. Thus, the appeal to that extent is bound to be dismissed. Ordered accordingly.
93.This brings one to the cause of action claimed with reference to Section 14(1)(h) DRC Act. It is necessary in this context to take note of the pleadings germane to the subject.
94.In para 18(a) (iii), the appellants pleaded as under: "That the respondents/tenants have already acquired their own respective residential houses ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 50 of 74 at the addresses mentioned in the title clause of this eviction petition and have been actually and voluntarily residing at the aforesaid addresses (and not within the demised premises). These alternative residence so acquired by the respondents/tenants have not been built by them after the Ist December, 1988. In other words, the petitioners submit that the aforesaid acquisition of alternative residential houses by the respondents/tenants herein has been otherwise than in the manner mentioned in the Section 14 (1)((hh) of the Act.
As such, the respondents/tenants are also liable to be evicted from the demised premises on the ground enumerated in clause (h) to the proviso to subsection (1) of Section 14 of the Delhi Rent Control Act, 1958."
95. It must be mentioned here that the "addresses" to which reference was made in the above pleadings included "5 Friends Colony West, New Delhi 110065 " described as the residence of respondent no.1 and property no. "1 Dharam Marg, Chankaya Puri, New Delhi 110024", described as the residence of respondents no.2 to 4 and their mother Mrs. Minni Kohli wife of late Major K. V. Kohli (also since deceased).
96.As mentioned earlier, the legal heirs of Major K. V. Kohli who were impleaded as respondents no.2 to 5 in the eviction petition ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 51 of 74 (the surviving amongst them being respondents no.2 to 4 in the appeal) failed to put in any contest inspite of due notice and thus, chose to suffer the proceedings exparte.
97. Through her written statement dated 06.06.1997 the respondent no.1 joining issue with the above mentioned allegations through the following reply in corresponding para 18(iii) as under: "The contents of para 18(iii) are wrong and are denied. It is denied that the respondents/tenants have already acquired their respective residential houses at the address mentioned in the title clause of the eviction petition as falsely alleged. It is denied that the respondents have been actually and voluntarily residing at the aforesaid addresses or not within the demised premises as falsely alleged. It is denied that these alternative residences so acquired as falsely alleged by the respondents have been built up by them after 1st December, 1988. It is further denied that the alleged acquisition of alternative houses by the respondent/s/tenants filed within Section 14(1)
(i) (hh) of the Act as falsely alleged. The respondent no.1 and other respondents have not acquired any vacant possession of or have been awarded any residence or ever built any residence after the commencement of the Delhi Rent Control Amendment Act, 1988 or 10 years have elapsed thereafter as falsely alleged. The ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 52 of 74 residences mentioned in the title clause qua respondent no.1 is not the residence of respondent no.1 but is that of her husband Sh. Manmohan Singh. There is no law according to which the husband and wife could be deemed to be one person as husband has been held by the Hon'ble Supreme Court. Respondent no.1 is neither the owner nor her husband is the owner of 5 Friends Colony (West) New Delhi. The residences mentioned in title clause qua respondents no.2 to 5 are not the residences of respondents no. 2 to 5 to the knowledge of the petitioner. The premises at 1 Dharam Marg, Chankyapuri, New Delhi was a tenanted premises of which Mrs. R. Kohli was the tenant and is a subject matter of partition in a suit for partition 238/89 pending adjudication in the Hon'ble High Court of Delhi. Without the prejudice to the rights and contentions of respondent no.1 to knowledge of petitioner respondent no. 2 to 5 were surreptitiously illegally, unauthorisedly evicted from the tenanted premises 1 Dharam Marg, Chankyapuri, New Delhi by the landlord Mr. S. N. Sikand through their legal heirs in collusion and conspiracy by Sh. Vinod Nair claiming himself to be the alleged power of Attorney holder on behalf of the respondent no.2 to 5 against whom a criminal contempt petition is pending before the Hon'ble High Court of Delhi By way of inheritance and pursuance of the Hon'ble High Court of Delhi order dated 11th ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 53 of 74 October, 1996 that the respondent no.1 has been declared as a tenant qua the tenanted premises and has been handed over the possession only on 3rd Nov. 1996 by the Receiver respondent no.6, who was holding possession on her behalf since 3rd Feb. 1992 to the knowledge of the petitioner. It is denied that the respondent/tenants are also liable to be evicted from the demised premises on the ground enumerated in clause 14(1)(h) of the Delhi Rent Control Act, 1958, as falsely alleged. No documents have been placed to substantiate the false grounds set out in the answering para and no ground warrant the respondents/tenants to be evicted under the said clause. Facts stated in the preliminary objections be referred and replied to in the answering para. The grounds set out under Section 14(1)(h) are in any case time barred apart from being untenable."
98. The above pleadings would show that respondent no.1 contested the eviction petition not only by denying she having acquired any alternative residence in property no.5 Friends Colony (West), New Delhi but also resisting the claim of the appellants with reference to the other property (1 Dharam Marg, Chanakya Puri, New Delhi) on the reasoning that the latter was a tenanted premises which was subject of the suit for partition between the legal heirs of the original tenant and further that ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 54 of 74 possession thereof had been lost on account of the respondents having been surreptitiously or illegally evicted and also that the said residential accommodation can have no bearing on the case here since respondent no.1 had been adjudicated by Hon'ble High Court vide order dated 03.02.1992 to be the "tenant qua the tenanted premises (to the exclusion of others)".
99.The case of the appellants for eviction under Section 14(1)(h) DRC Act needs to be tested separately with reference to the above mentioned two residential properties.
100.As per the case of the appellants, respondent no.1 had acquired residential property no.5 Friends Colony (West), New Delhi as residence during the currency of the tenancy. The respondent no.1 had clarified in the written statement that it was a residence acquired by her husband Mr. Manmohan Singh and that this could not provide a cause of action in favour of the appellants. She clarified further that even her husband was not the owner of the property in question.
101. The Rent Controller in the impugned judgment held that property no. 5 Friends Colony (West), New Delhi could not result in order of eviction under Section 14(1)(h) DRC Act for the reason that the respondent no.1 had been living in the said ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 55 of 74 property before the death of original tenant (i.e. her mother). It appears that the Rent Controller construed it a case where the trigger for such eviction petition had to be found after the respondent no.1 had stepped into the shoes of her mother upon inheriting the tenancy rights.
102.In my considered opinion, the result of the petition for eviction on the ground under Section 14(1)(h) DRC Act with reference to aforementioned property no. 5 Friends Colony (West), New Delhi as reached by the Rent Controller must be maintained but for reasons which have to be stated differently.
103. The evidence on record clearly shows that the appellants have no evidence worth the name in their possession or control to the effect that respondent no.1 had acquired property no. 5 Friends Colony (West), New Delhi as an alternative residential accommodation. The evidence rather shows that respondent no. 1 having been married off had been living with her matrimonial family elsewhere. She shifted to 5 Friends Colony (West), New Delhi in due course. The said property of Friends Colony (West) does not even belong to her husband. There is no material to show the status of her husband visavis the said property. The evidence led by respondent no.1 rather ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 56 of 74 demonstrates that the property belongs to a third person (Sarabjit Singh), in which context documents Ex. RW 4/1 & Ex. RW 1/7 have been referred. In the given facts and circumstances, the thrust of the evidence shows that she and her husband had been, at the most, "permissive users" of the said property.
104.In above context, it is necessary to refer to :
(i) B.R. Mehta Vs. Atma Devi [AIR 1987 SC 2220];
(ii) Mrs Meenal Eknath Kshirsagar Vs. M/s Traders & Agencies & anr. [AIR 1997 SC 59];
(iii) Revti Devi Vs. Kishan Lal [1970 RCR 71 (DHC);
(iv)Ved Prakash Vs. Chunni Lal [VII (1971) DLT 59 (DHC);
(v) B. N. Mittal Vs. D.D. Kakkar & anr. [24(1983)DLT 96 (DHC)]; and
(vi) Shankar Nana Waychal & ors Vs. Mohan Ganesh Date & anr. [XII1985 (2) AIRCJ 668 (Bombay HC).
105. It has been the consistent view of superior courts that in order to attract the mischief of Section 14(1)(h) DRC Act, the tenant must have acquired a clear "right to reside" in some other ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 57 of 74 premises. In the cases of Revti Devi, B. R. Mehta and B. N. Mittal (supra), acquisition of alternative accommodation by the spouse of the tenant was held to be insufficient to attract the provision of Section 14(1)(h) DRC Act. Pointedly, it was hold that the tenant not having acquired a legal right by virtue of such acquisition by the spouse, the right of tenant was not affected.
106.For the foregoing reasons, the fact that respondent no.1 had been living even temporarily in property no. 5, Friends Colony (West), New Delhi, the case for eviction under Section 14(1)(h) DRC Act could not be made out in favour of the appellants. The appeal to that extent is found devoid of substance and must be rejected. Ordered accordingly.
107.This brings us to the cause of action pleaded with reference to property no. 1 Dharam Marg, Chanakya Puri, New Delhi.
108. While the appellants insist that the said acquisition would attract Section 14(1)(h) DRC Act, the respondents contest, interalia, by claiming that the right to reside in the said property had already been lost as a result of the eviction case which according to them was a collusive litigation.
109. Be that as it may, one of the contentions raised by respondent ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 58 of 74 no.1 in this context needs to be taken care of upfront. Her case is that, in the partition suit, it was decided by Hon'ble High Court vide order dated 11.10.1996 that she was to be treated as the tenant qua the tenanted premises which is the reason why the Court Receiver (appointed earlier) stood discharged with directions that he should handover the vacant possession of the tenanted premises to her (respondent no.1). It has been argued that respondent no.1 alone having been adjudicated as the tenant she stepped in to the shoes of the original tenant on account of inheritance. She contends that acquisition of alternative accommodation by other legal heirs of the original tenant would not affect her rights adversely.
110.The above plea of respondent no.1 must be rejected for the simple reason the order dated 11.10.1996 of Hon'ble High Court whereby the Court Receiver was directed to handover the possession of the tenanted premises to respondent no.1 did not adjudicate upon the conflicting claims between the legal heirs of the original tenant respecting the tenanted premises. It was only a fresh interim arrangement with regard to the use/possession/control of the tenanted premises which had been shifted from the hands of the Court Receiver to the hands of one ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 59 of 74 of the legal heirs.
111.There is no document showing where under respondent no.1 alone can claim inheritance of tenancy rights to the exclusion of her brother Major K.V. Kohli or his legal heirs. There is no adjudication of her claim to this effect reached till date. The partition suit is stated to be still pending adjudication before Hon'ble High Court.
112.For the foregoing reasons, the plea for rejection of the case for eviction founded on acquisition of property no. 1 Dharam Marg, Chankya Puri, New Delhi on the ground Major K. V. Kohli had been "held" not having "inherited" the tenancy rights in the property involved here cannot be accepted.
113.This brings us to the core issue as to whether the appellants have been able to prove the case about the tenant having acquired an alternative residence in property no.1 Dharam Marg, Chankya Puri, New Delhi so as to attract Section 14(1)
(h) DRC Act or not.
114.As noted earlier, the appellants had alleged in the eviction petition that the said property had been acquired by the tenant so as to give rise to such a cause of action. Only the respondent no.1 contested the case. She claimed that the possession over ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 60 of 74 the said property had been lost due to a collusive litigation. The Rent Controller noted in para 15 of the impugned judgment that the appellants had not deposed about the acquisition of the said alternative residential property. In his view, the acquisition of the said property by Major K. V. Kohli would not invite application of Section 14(1)(h) DRC Act since interest therein had been acquired before the death of the original tenant as a result of which event Major K.V. Kohli would have become the tenant in respect of the tenanted premises involved herein on account of inheritance. He rejected the case of appellants on such score with observations that "it is not the case of petitioners" that residence at 1 Dharam Marg was "acquired by respondents no. 2 to 6, legal heirs of Mr. K. V. Kohli after July, 1991."
115.The evidence led on this score includes the statement of AW1 to the effect that Dr. (Mrs) Raseel Kohli was a widow and the family of Major K. V. Kohli was residing in USA or in 1 Dharam Marg, Chankya Puri. Under crossexamination he stated that at the time of filing the petition before the Hon'ble High Court he was not aware that legal heirs of major K.V. Kohli were residing at "1 Dharam Marg, Chankya Puri, Delhi". ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 61 of 74 Respondent no.1 appearing as RW1, in her affidavit dated 25.09.2002, did not dilate on this subject at all. Under cross examination, she stated that when the original tenant died in 1987, her brother (Major K. V. Kohli) "was putting up at 1 Dharam Marg, Chankya Puri". She added that he had been residing both at the suit premises and in Dharam Marg property "simultaneously" while his wife and children were residing in USA.
116.Questions were raised during the crossexamination of respondent no.1 (RW1) as to the proceedings pursuant to which the landlord of property no. 1 Dharam Marg, Chankya Puri had secured eviction. It appears from the replies given by RW1 that the said case was decided on the petition of "Sikands" (landlords) by the court of Additional Rent Controller which had led to the appeal before the Additional Rent Control Tribunal (presided over by Sh. G. P. Thareja). It came out that after the eviction order had been suffered, respondent no.1 had moved an application under Order 9 Rule 13 CPC but the same was dismissed on the ground that she had not been party to the main petition. She further disclosed (during later crossexamination) that she had preferred an ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 62 of 74 appeal against the order whereby her application under Order 9 Rule 13 CPC was dismissed but without success before the Rent Control Tribunal.
117.During the continued crossexamination (on 29.07.2004), RW1 stated that she did not recollect, and so could not say, as to in which year the property no.1 Dharam Marg, Chanakya Puri had been taken on rent. She admitted the suggestion that her mother "had lived in 1 Dharam Marg", though she added that she would not remember the specific period when her mother or brother resided there. She, however, confirmed that her brother Major K. V. Kohli was residing in the said property at the time of his death.
118.The respondents have relied on Ganpat Ram Sharma & ors Vs. Gayatri Devi [AIR 1987 SC 2016] to contend that the onus to prove the availability of alternative accommodation to the tenant lies on the landlord and it is only after such fact has been proved that the tenant is required to prove that the accommodation is not suitable. It is the submission of the respondents that there is no evidence showing that property no. 1 Dharam Marg, Chanakya Puri, New Delhi at any stage became available as an alternative residence to the tenant. It is ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 63 of 74 further contended that the reasoning on which the learned trial court has rejected the case of the appellants on this score cannot be faulted and that the appellate court in the limited jurisdiction where only questions of law have to be addressed, may not enter into the reappreciation of the material on record. It is further submitted that the possession of the said premises having already been lost, it is no longer available as a ground for eviction under Section 14 (1)(h) DRC Act.
119.Per contra, the appellants submitted that the case for eviction on this ground stood made out even in the light of the pleadings which were further strengthened by the evidence on record leaving no room for doubt that the said property had been acquired as a residence by the tenant. Therefore, it has been argued that the case for eviction under Section 14(1)(h) DRC Act in this respect has been wrongly rejected by the trial court, ignoring the settled principles of law. The appellants, praying for interference with the findings, rely upon Mohini Badhwar Vs. Raghunandan Saran Ashok Saran [1989 (3) SCC 72]; B.R. Mehta Vs. Atma Devi [1987 AIR (SC) 2220]; and Hem Chand Baid Vs. Prem Wati Pareksh [AIR 1980 Delhi 1].
120.The appellants also rely upon Harish Tandon Vs. Addl. ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 64 of 74
District Magistrate, Allahabad, UP [AIR 1995 SC 676]; Kanhiya Lal Balkishan Dass Vs. Labhu Ram [AIR 1971 Delhi 219] and Usha Bhasin Vs. Competent Authority [17(1980) DLT 353 to contend that nothing turns on the submissions that the eviction proceedings were taken out in respect of the said property against Major K. V. Kohli, described as the sole proprietor of M/s Zirconium India in the eviction proceedings pertaining to property in question (1 Dharam Marg, Chankaya Puri, New Delhi). The contention is that the admission to the effect that the said property was taken on rent by the original tenant cannot be wished away. It is further the submission of the appellants that even if it were to be construed that the property having continued on rent in the hands of Major K. V. Kohli only, the cause of action for eviction under Section 14 (1)(h) DRC Act had been incurred by all the respondents since Major K.V. Kohli was one of the legal heirs of the original tenant, he having inherited the tenancy rights in common with respondent no.1.
121.The case of Hem Chand Baid (supra) presented a similar factual background. In the context of a claim for eviction order on the ground under Section 14(1)(h) DRC Act, Hon'ble High ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 65 of 74 Court observed as under: ".....Once it is found that a tenant does not need any protection of law, there is no rationale left in continuing an impediment in the way of the landlord to evict the tenant. In this setting the word "has" imports concluded default and not a continuing default. It is only reasonable that a tenant who voluntarily gives up the original premises and disentitles himself to the protection of the Delhi Rent Control Act, cannot revive the protection of law by relinquishing the new accommodation and reverting to the original accommodation. The Act does not contemplate unilateral revival of the protection by a tenant or recreation of an impediment for the landlord.
(Para11) X X X "........Once a default is committed by a tenant he ceases to enjoy the protection of law permanently and at no point of time and under no circumstances, the protection of law is revived. In view of this answer, in regard to the interpretation of clause (h) of subsection (1) of Section 14, the stage in the litigation at which the default should continue, became irrelevant." (Para14) (emphasis supplied)
122. In para 3 of the judgment in Mohini Badhwar (supra), Hon'ble Supreme Court noticed that the High Court of Delhi (while dismissing the appeal of the tenant who had suffered an ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 66 of 74 eviction order under Section 14(1)(h) DRC Act) had endorsed the view taken by it earlier in Hem Chand Baid (supra). The tenant in that case had acquired possession of her own house during the currency of the tenancy. Within four days, she had handed over vacant possession thereof, selling it to another person. She had resisted the eviction petition [on the ground under Section 14(1)(h) DRC Act] on the plea that she was not in a position to shift to the said alternative accommodation. Her plea was rejected by the court of ARC for the reason that even though on the date of filing of the eviction petition, the other accommodation was no longer in her occupation, it was sufficient for purposes of Section 14(1)(h) DRC Act, that some time prior to the filing of eviction petition, the appellant had "obtained possession of the house". The appeal of the tenant was dismissed by Hon'ble Supreme Court in Mohini Badhwar (supra) holding that "the circumstance that she lost possession on the date when the eviction petition was filed does not protect" the tenant against Section 14(1)(h) of DRC Act.
123. In the facts and circumstances of the case at hand, there is no escape for the respondents from the application of the principle of law laid down in Mohini Badhwar (supra). ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 67 of 74 Following the law in Mohini Badhwar (supra) which affirmed the view to similar effect in Hem Chand Baid (supra), the fact that the tenant here had lost the possession of the alternative accommodation is of no consequence.
124. In the case at hand, the ground for eviction under Section 14(1)(h) DRC Act with reference to property no.1 Dharam Marg, Chanakya Puri, new Delhi stood established from day one. As mentioned earlier, only the respondent no.1 contested the case of the appellants by filing written statement. In her pleadings in answer to the corresponding para 18(a)(iii) of the petition, she herself stated that premises at 1 Dharam Marg, Chanakya Puri, New Delhi was a tenanted premises of which her mother Mrs. R. Kohli was a tenant. The pleadings to the effect that the said property was a residential house or that it had been "acquired" so as to incur cause of action under Section 14(1)(h) DRC Act (that is during the currency of the lease of the tenanted premises involved here), were not specifically denied and, therefore, must be treated as admitted facts. If any doubts were to persist in this regard, the same would stand set at rest upon perusal of the copy of the judgment dated 16.04.1994 passed by Sh. R. C. Yaduvanshi, Additional Rent Controller, ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 68 of 74 Delhi in eviction case no. E484/1989 preferred by Joti Sikand resulting in eviction order, interalia, under Section 14(1)
(d)&(h) DRC Act in respect of the premises in 1 Dharam Marg, Chanakya Puri, New Delhi which had been taken on rent, as per the said pleadings, on 01.01.1975. Copies of the judgment and the petition were submitted for perusal by the counsel for the respondent no.1 at the hearing and have been placed on record of the appeal (ARCT No. 36/2012).
125.The contention of the respondents that letting purpose of the tenanted premises was residentialcumoffice was already been rejected. The resistance to the eviction order on the ground that the possession of property no. 1 Dharam Marg, Chanakya Puri, New Delhi had been lost on account of collusive litigation is of no consequence in view of the dicta in Hem Chand Baid (supra) and Mohini Badhwar (supra). The tenant having acquired an alternative residence in property no. 1 Dharam Marg, Chanakya Puri, New Delhi, admittedly (as per pleadings) as tenant of such other property, had forfeited the protection of the DRC Act and incurred liability for an order of eviction under Section 14(1)(h) DRC Act. The protection, thus, forfeited cannot be revived only on account of the fact that the ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 69 of 74 possession of the alternative accommodation had been relinquished or lost.
126. Since the arguments to such effect have been raised, with reference to copy of the judgment dated 16.04.1994 on the petition brought by Joti Sikand on 03.04.1989, the same must be considered and adjudicated upon. The said material shows that the eviction proceedings had been taken out in respect of the tenanted premises no. 1 Dharam Marg, Chanakya Puri, New Delhi against M/s Zirconium India and its proprietor Major K. V. Kohli (who having died mid way, his legal heirs stood substituted). It appears from the said pleadings that the case of Joti Sikand was that the said tenancy had been taken by Major K.V. Kohli as the sole proprietor of M/s Zirconium India. The submission of respondent no.1 is that this should imply that neither she (respondent no.1) nor her mother (original tenant) had anything to do with the tenanted premises of 1 Dharam Marg, Chanakya Puri, New Delhi and, therefore, no order of eviction can be passed on that basis against her interest under Section 14(1)(h) DRC Act.
127.The argument does not impress me for the simple reason that respondent no.1 cannot be allowed to wriggle out of her own ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 70 of 74 admission in the pleadings confirming that the tenancy in 1 Dharam Marg, Chanakya Puri, New Delhi had been originally taken by none other than Dr. (Mrs.) Raseel Kohli. The admissions in the pleadings cannot be wished away. No evidence contrary to the admission in pleadings can be looked into.
128.It has to be remembered that the eviction case was filed in respect of such other property in 1989. The original tenant Dr. (Mrs.) Raseel Kohli had already died on 11.10.1987. It has been that the case of respondent no.1 herself has been that Dr. (Mrs.) Raseel Kohli was also a partner of M/s Zirconium India. The respondents have withheld the necessary material about the commencement of business by the said proprietary concern. Major K. V. Kohli apparently had continued to do business in the name of the said firm. He being the person in use and occupation of the said accommodation would thus be the person against whom the concerned landlord instituted legal proceedings.
129.It cannot be ignored that respondent no.1 continued to assert that she had inherited the rights jointly with her brother Major K. V. Kohli in respect of the entire estate left behind by their ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 71 of 74 mother Dr. (Mrs). Raseel Kohli at the time of her death on 11.10.1987. The said estate, as per her own case would include the tenanted premises in 1 Dharam Marg, Chanakya Puri, New Delhi. It is for asserting such a right that she claims to have challenged the eviction order in respect of the said other property by way of petition under Section 9 Rule 13 CPC, though with no success.
130.Even if it was to be presumed that Major K. V. Kohli and his proprietary concern M/s Zirconium India were tenants in respect of 1 Dharam Marg, Chanakya Puri, New Delhi, the case for eviction under Section 14(1)(h) DRC Act stands established qua all the respondents including respondent no.1, this for the reason that upon the death of Dr. (Mrs.) Raseel Kohli, her legal heirs would inherit the tenancy rights in common. Thus, Major K. V. Kohli would have incurred the cause of action under Section 14(1)(h) DRC Act on account of he being in possession as tenant of the other property. It is not the case of any of the respondents that the said other premises was not suitable for residence.
131.In my considered view, the rejection of the case of the appellants for eviction under Section 14(1)(h) DRC Act with ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 72 of 74 reference to 1 Dharam Marg, Chanakya Puri, New Delhi by the Rent Controller was on reasoning which is not in accord with the settled principles of law generally, respecting the effect and construction of pleadings and particularly respecting the effect of relinquishment of the alternative accommodation.
132.For the foregoing reasons, the findings recorded by the Rent Controller in above regard must be set aside. Instead, it must be held that the appellants have established a case for eviction under Section 14(1)(h) DRC Act on account of the tenant having acquired alternative residence in 1 Dharam Marg, Chanakya Puri, New Delhi. Ordered accordingly.
133.The necessary consequence of the above findings is that the impugned judgment is bound to be set aside. Instead, the eviction petition deserves to be allowed and the eviction order passed in favour of the appellants and against the respondents no.1 to 4. Ordered accordingly.
134.In the result, the eviction petition of the appellants stands allowed. The eviction order is hereby passed in favour of the appellants and against respondents no.1 to 4 in respect of the tenanted premises comprised in property no. 31, Jor Bagh, New Delhi as more fully shown bounded in red colour in the site ARCT No. 35/12 & 36/12 Rathindra Nath Nandy & ors Vs. Pamela Manmohan Singh & ors Page 73 of 74 plan Ex. AW 1/1.
135.In the facts and circumstances of the case, there shall be no order as to costs.
136.The two appeals stand disposed off with observations, directions and result as indicated in para no. 55 and 134 (supra).
137. This judgment has been passed on the file of ARCT No. 36/2012. The reader is directed to place an attested copy of the judgment on the file of ARCT No. 35/2012.
138.The trial court record along with copy of the judgment be sent back.
139.Files of the appeals be consigned to Record Room. Announced in open Court today on this 18th day of November, 2013. (R.K. GAUBA) Additional Rent Control Tribunal South/Saket/New Delhi.
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