Delhi District Court
Atul Gulati vs Mrs. Varsha Mehra on 1 May, 2019
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
RCT ARCT No. 13/2018
1. ATUL GULATI
S/o LATE SHRI S.C. GULATI
2. Ms. POOJA GULATI @ SHIKSHA GULATI
D/o LATE SHRI S.C. GULATI
BOTH R/o 204, GROUND FLOOR, SANT NAGAR,
EAST OF KAILASH, NEW DELHI 110065
... APPELLANTS
VERSUS
1. Mrs. VARSHA MEHRA
W/o SHRI I.S. MEHRA
R/o 18, NETAJI SUBHASH MARG,
DARYAGANJ, DELHI 110002
2. SHRI PANKAJ GULATI
S/o LATE SHRI S.C. GULATI
R/o 204, GROUND FLOOR, SANT NAGAR,
EAST OF KAILASH, NEW DELHI 110065
3. AMIT GULATI
S/o LATE SHRI S.C. GULATI
SHOP No. 12, DEFENCE COLONY MARKET
NEW DELHI 110024
4. Mrs. LUCKY GIROTRA
W/o SANDEEP GIROTRA
TOWER No. 4, FLAT No. 701
VIPUL BELMONTE, SECTOR53,
GOLF COURSE ROAD
GURGAON 122002
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 1 of 24 pages
5. Mrs. ROSY MATTA
W/o Dr. SUNEEL MATTA
1622, AMBADKHAR NAVGAZA,
MATHURA, UTTAR PRADESH 281001
...RESPONDENTS
Date of filing : 02.05.2018
First date before this court : 03.05.2018
Arguments concluded on : 23.04.2019
Date of Decision : 01.05.2019
Appearance : Shri Deepak Sharma, counsel for appellant
Shri Sanjeev Sindhwani, Senior Counsel with Shri Sanjay Dua
counsel for respondent no. 1
JUDGMENT
1. Appellants have assailed order dated 12.02.2018 of learned Additional Rent Controller (South), Saket New Delhi, whereby their application dated 04.03.2017 under Order IX Rule 13 CPC was dismissed. Respondent no. 1 is the only contesting party in this appeal. I have heard Shri Deepak Sharma, learned counsel for appellant and Shri Sanjeev Sindhwani, Senior Counsel assisted by Shri Sanjay Dua, counsel for respondent no. 1, who took me through records.
2. Briefly stated, circumstances leading to the present appeal are as follows.
2.1 The original tenant late Shri Subhash Chander Gulati, father of the appellants entered into a rent agreement with the landlady mother in law of respondent no. 1 in respect of ground floor shop in premises no. 12, Defence Colony Market, New Delhi. Mother in law of RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 2 of 24 pages respondent no. 1 passed away, bequeathing the demised premises in favour of respondent no. 1. After demise of Shri Subhash Chander Gulati, the tenancy in respect of the demised premises was inherited by his legal representatives including the appellants. Amongst the legal representatives of Shri Subhash Chander Gulati, there was a series of litigations pertaining to the estate left behind by Shri Gulati, during pendency whereof the present respondent no. 1 filed eviction proceedings pertaining to the demised premises under Section 14(1) (g) of the Delhi Rent Control Act.
2.2 Vide judgment and order dated 27.05.2009, the learned Rent Controller allowed the eviction petition, thereby directing the present respondent no. 1 to complete the reconstruction of premises within ten months of receiving possession of the demised premises and to place back the appellants in occupation of the basement of the demised premises, though the tenancy inherited by them was with respect to ground floor of the premises.
2.3 Vide order dated 13.09.2010, the municipal authorities rejected the application for revalidation of building plans, which order was challenged by the present respondent no. 1 by way of an appeal before the Appellate Tribunal MCD.
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 3 of 24 pages 2.4 In the meanwhile, the present respondent no. 3 Shri Amit Gulati filed an appeal before my learned predecessor against the eviction order dated 27.05.2009, which appeal was disposed of vide order dated 09.11.2011 directing that the eviction order would be executed only upon the present respondent no. 1 showing to the satisfaction of the executing court the revalidated building plans.
2.5 Appeal filed by the present respondent no. 1 against rejection of revalidation of the building plans was dismissed by the Appellate Tribunal MCD on 27.01.2012, granting liberty to the present respondent no. 1 to apply afresh for sanction of building plans.
2.6 Order dated 27.01.2012 of the Appellate Tribunal MCD was challenged by way of appeal by the present respondent no. 1 before the learned District Judge, South, Saket Courts, but subsequently, on 13.02.2013 learned counsel for the present respondent no. 1 withdrew that appeal reserving right to move an appropriate application before the learned Rent Controller to seek suitable modification of the terms on which eviction order dated 27.05.2009 had been passed.
2.7 After obtaining the validated sanction plans for reconstruction of the premises, the present respondent no.1 filed execution proceedings on 02.11.2016, in which the present respondent no. 3 appeared on 23.12.2016 and got the matter adjourned to 04.02.2017 for filing objections. But objections were not filed by any of RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 4 of 24 pages the judgment debtors, so at request of the present respondent no. 3, one more opportunity to file objections was given by the executing court, posting the matter to 16.03.2017 by way of last and final opportunity. Even thereafter till 03.05.2017, objections were not filed by any of the judgment debtors.
2.8 On 03.05.2017, the learned executing court recorded satisfaction regarding valid sanction plans available with the present respondent no. 1 and the judgment debtors were directed to handover vacant possession of the demised premises within two months. Even thereafter, objections were not filed and the period of two months for vacating the demised premises also expired.
2.9 It is thereafter on 04.09.2017 that the present respondent no.3 filed objections against the execution proceedings.
2.10 In the meanwhile, the present appellants challenged order dated 03.05.2017 of the executing court before the Hon'ble Delhi High Court by way of Ex. FA 14/17, but after arguments and at the stage of dictation of the judgment, counsel for the present appellants withdrew the said Execution First Appeal.
2.11 Objections filed by the present respondent no. 3 on 04.09.2017 were dismissed by the learned executing court by way of order dated 23.05.2018, against which he filed an appeal. That appeal RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 5 of 24 pages of the present respondent no. 3 was dismissed by this court by way of judgment dated 01.09.2018.
2.12 The present appellants who were respondents no. 3 and 6 to the eviction proceedings before the learned Rent Controller were proceeded exparte vide order dated 26.03.2009 and the eviction order dated 27.05.2009 was passed exparte according to them. Although, some of the other legal representative of late Shri Subhash Chander Gulati also were proceeded exparte and they filed an appeal which was dismissed vide order dated 09.11.2011, the present appellants opted not to file any appeal against the eviction order.
2.13 Upon receipt of notice of the execution proceedings, the present appellants preferred an application under Order IX Rule 13 CPC for setting aside the exparte eviction order, which application came up for first hearing on 20.03.2017 but the learned Rent Controller refused to stay the execution proceedings and adjourned the matter to 09.05.2017. In the meanwhile, on 03.05.2017, the learned Rent Controller recorded satisfaction qua validation of the building plans, observing that there was no stay of the execution proceedings.
2.14 Since on 09.05.2017, the learned Rent Controller was on leave, reader of the court adjourned the application under Order IX Rule 13 CPC of the present appellants to 24.07.2017. It is thereafter that against order dated 03.05.2017, the present appellants filed Execution RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 6 of 24 pages First Appeal before the Hon'ble Delhi High Court and withdrew the same after brief arguments on 31.05.2017.
2.15 Application of the present appellants under Order IX Rule 13 CPC was ultimately dismissed vide order dated 12.02.2018 of the learned Rent Controller.
2.16 Hence, the present appeal, assailing order dated 12.02.2018 of learned Rent Controller, whereby application under Order IX Rule 13 CPC of appellants was dismissed.
3. In the impugned order, while dismissing application under Order IX Rule 13 CPC, the learned Rent Controller, broadly speaking traversed through three aspects. It was held by the learned Rent Controller that the eviction order dated 27.05.2009 was not an exparte order since the legal representatives other than the present appellants of late Shri Subhash Chander Gulati had contested the eviction proceedings and since the present appellants had inherited the tenancy as joint tenants with the contesting legal representatives, there was no need to bring them on board, especially because even according to the present appellants, they had been dispossessed from the demised premises. Secondly, it was held by the learned Rent Controller that there was no error in service of notice of eviction proceedings under Order V Rule 20 CPC. Thirdly, it was held by the learned Rent Controller that even according to the case set up by the present appellants, they were aware RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 7 of 24 pages about the eviction proceedings on 07.09.2012 itself when a settlement was recorded amongst the legal representatives of late Shri Subhash Chander Gulati and that being so, the application under Order IX Rule 13 CPC filed on 04.03.2017 was hopelessly time barred in view of Article 123 of the Limitation Act.
4. During arguments, learned counsel for appellants took me through trial court record and contended that the impugned order is liable to be set aside. It was argued on behalf of appellants that the view taken by the learned Rent Controller that the present appellants were not required to be heard is in violation of principles of natural justice of right to be heard. It was submitted by learned counsel for appellants that the remaining legal representatives of late Shri Subhash Chander Gulati kept the appellants in dark about pendency of eviction proceedings. It was further argued that in the absence of formal application under Order V Rule 20 CPC, the learned Rent Controller could not have proceeded with substituted service of notice by way of publication and even the publication of the notice was carried out in National Herald, which is not a national level newspaper and is hardly read by anyone. Learned counsel for appellants also submitted that appellant no. 1 was dispossessed from the demised premises in August 2002 and thereafter he avoided going to the shop since whenever he tried to do so, he was forcibly restrained by respondents no. 2 and 3 and their agents by way of involvement of local police and SDM and that was the reason for non availability of appellants in the demised premises at the time of visit of RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 8 of 24 pages the process server. It was also argued on behalf of appellants that there is no explanation as to why no effort was done to serve the notice of the eviction petition on appellant no. 1 at his residential address before proceeding with substituted service by way of publication. It was further argued by learned counsel for appellants that the settlement deed dated 07.09.2012 did not mention about the judgment and decree dated 27.05.2009 and appellate order dated 09.11.2011, so limitation to file application under Order IX Rule 13 CPC could not be computed with effect from 07.09.2012. Learned counsel for appellants placed reliance on the judgments of Hon'ble Delhi High Court in the case of Goodwill India Ltd. vs Jagir Singh & Ors, 1979(1) ILR (Del) 328; Baldev Raj Gandok vs Krishan Singh Pasricha, 1989 (37) DLT 67; and DVH Industries vs Hartley Knitts, 2011 (176) DLT 106.
5. During arguments, learned Senior Counsel on behalf of respondent no. 1 raised a preliminary objection to the maintainability of the application under Order IX Rule 13 CPC itself in view of explanation to Order IX Rule 13 CPC. On merits, learned Senior Counsel took me through records and strongly supported the impugned order. It was argued on behalf of respondent no. 1 that in the grounds of appeal, the appellant has simply reiterated the contentions which were dealt with and rejected by the learned Rent Controller. It was argued on behalf of respondent no.1 that at best, case of the appellants is irregularity of substituted service, which cannot be a ground to set aside order of RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 9 of 24 pages dismissal of application under Order IX Rule 13 CPC in view of law laid down in the case of Basant Singh vs Roman Catholic Mission, 2002(7) SCC 531. Besides, with the help of elaborate case law, learned Senior Counsel also took me through the legal position as regards status of persons who inherit tenancy.
6. In rebuttal arguments, learned counsel for appellants contended that explanation to Order IX Rule 13 CPC is not attracted to the present case since no such objection was raised before the learned Rent Controller. It was argued by learned counsel for appellants that status of the appellants and the remaining legal representatives of late Shri Subhash Chander Gulati is that of tenants in common and of not joint tenants.
7. Against the above backdrop of factual and legal matrix, following questions are to be examined by this court :
(i) Whether the substituted service of notice of the eviction proceedings on the appellants by way of publication in the National Herald Newspaper suffered any infirmity?
(ii) Whether the application under Order IX Rule 13 CPC was filed within time prescribed by law?
(iii) Whether status of the appellants was of joint tenants with the remaining legal representatives of late Shri Subhash Chander Gulati and if so, whether the RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 10 of 24 pages eviction order dated 27.05.2009 can be treated as ex parte order, amenable to scrutiny under Order IX Rule 13 CPC?
(iv) Whether in view of explanation to Order IX Rule 13 CPC, application for setting aside eviction order dated 27.05.2009 and consequently the present appeal were and are not maintainable?
QUESTION (i)
8. Notice of the eviction proceedings was issued by the learned Rent Controller to all respondents of the petition, including the present appellants, on 03.10.2005 returnable on 18.10.2005. On 18.10.2005, counsel for only the present respondents no. 2 and 3 appeared and the matter was adjourned to 12.12.2005 for service of notice on the present appellants. On 12.12.2005, the present respondents no. 2 and 3 being brothers of appellants were directed to furnish address of the present appellants. On 27.02.2006, fresh service of notice on the present appellants was directed by way of ordinary process, registered post as well as publication in a national newspaper. Thereafter, matter kept getting adjourned for one or the other reason with no reference as regards service of notice on the present appellants and finally on 26.03.2009, the learned Rent Controller observed that since the present appellants had not been appearing for many dates despite service of notice by way of publication, they were proceeded exparte.
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 11 of 24 pages
9. As mentioned above, notice of the eviction proceedings was issued to the appellants not just by one mode but by three modes namely ordinary process, registered post and publication. The notices sent by registered post to both appellants returned undelivered with the postal endorsement that they were not found at the given address. The notices sent by ordinary process to appellants returned with the report that one Manager found at the spot had stated that appellants had no concern with the tenanted shop. It is after such reports that the learned Rent Controller directed the present respondent no. 2 and 3 to furnish current address of the present appellants. Since the present respondents no. 2 and 3 did not furnish current address of the present appellants, the learned Rent Controller directed service of fresh notice on the appellants by ordinary process, registered post and publication.
10. Submission of the present appellants that they were not in possession of the demised premises at the time of service of notices is contrary to the proceedings of the Civil Suit in which the present appellant no. 1 filed an application under Order I Rule 10 CPC, disclosing his address to be of the demised premises. That application was filed on 05.11.2003. Even in the partition suit before the Hon'ble Delhi High Court filed by appellant no. 1 on 06.02.2006 the appellant no. 1 specifically pleaded that ever since 1991 he was in possession of a portion of the demised premises. Further, the settlement deed dated 07.09.2012 does not encompass middle portion of the demised RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 12 of 24 pages premises, which was admittedly in possession of appellant no. 1. Therefore, submission of the present appellants that they had been dispossessed in August 2002, so service of notice at the demised premises was not proper does not appear to be correct.
11. Merely because no formal application under Order V Rule 20 CPC was moved by the present respondent no. 1, the entire exercise of service of notice cannot be discarded. What Order V Rule 20 CPC stipulates is the satisfaction of the court that there is reason to believe that the defendant is keeping out of the way for avoiding service or for any other reason, the summons cannot be served in the ordinary way. It is the satisfaction of the court and not formal application of the plaintiff which is stipulated by the provision of law. In the circumstances described above, it cannot be said that the learned Rent Controller wrongly arrived at a satisfaction for the need to serve the notices by way of publication. In the case of Basant Singh (supra), the Hon'ble Supreme Court of India rejected the contention that trial court had not passed an explicit order about its satisfaction as envisaged under Order V Rule 20 CPC and held that such satisfaction is implicit in the order directing service by publication.
12. Contention of learned counsel for appellants is not correct that National Herald is not a national newspaper of wide circulation, so publication of notice in the same was not appropriate. Admittedly, RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 13 of 24 pages National Herald is in wide circulation in Delhi where the appellants are residing and working for gain and even the demised premises are situated. Rather, on account of financial viability, National Herald is one of the sought after newspapers for publication of court processes. As rightly observed by the learned Rent Controller in the impugned order, such a contention even otherwise is only to the extent of contending that there was irregularity in publication of notice, but the same cannot be treated as an illegality which can entail setting aside of exparte judgment. In the case of Basant Singh (supra), Hon'ble Supreme Court of India held that since the local newspapers namely Aacharan and Dainik Bhaskar are widely circulated in the area, change of name of the local daily from Dainik Bhaskar to Aacharan would not materially affect the service of notice by way of publication and would not invalidate effect of substituted service and that second proviso to Order IX Rule 13 CPC casts an embargo on the court that a decree passed ex parte shall not be set aside merely on the ground that there has been an irregularity in service of summons.
13. In view of above discussion, I am unable to find any infirmity in the substituted service of the notice of the eviction proceedings on the appellants by way of publication in the National Herald newspaper and question no. (i) framed above is answered accordingly.
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 14 of 24 pages QUESTION (ii)
14. There is no dispute to the proposition that limitation period for filing an application under Order IX Rule 13 CPC is governed by Article 123 of the Limitation Act, as per which such an application can be filed within thirty days from the date of decree or where the summons or notice was not duly served, from the date of knowledge of the applicant about the decree. What is to be seen in the present case is as to whether, as claimed by the appellants, they had no knowledge of the eviction proceedings and eviction order dated 27.05.2009 till they received notice dated 27.10.2016 of the present respondent no. 1 intimating filing of the execution proceedings. For, according to the appellants, they became aware of the eviction order dated 27.05.2009 only on 29.10.2016, so the application under Order IX Rule 13 CPC filed on 04.03.2017 was well within time after deducting the time taken for obtaining certified copies of the eviction order and judgment.
15. But perusal of record reflects that contention of appellants is not correct that they did not have knowledge of the eviction order dated 27.05.2009 till 29.10.2016.
16. The admitted document namely the settlement deed dated 07.09.2012 specifically stipulates that the appellants and the present respondent no. 3 had agreed that if at any stage, the present respondent no. 1 settled the tenancy disputes and out of three, two agreed to vacate RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 15 of 24 pages the shop, the third would be bound to vacate the same. That clearly shows awareness of the parties about the eviction proceedings. Having signed such settlement, any prudent person would have exercised due diligence to ascertain the exact nature of the dispute before transacting into a sum of Rs. 20,00,000/. I am unable to believe that appellants had no knowledge about the eviction proceedings and order even on 07.09.2012 when they executed the settlement deed.
17. The prescribed period of limitation vide Article 123 of the Limitation Act for filing an application under Order IX Rule 13 CPC being thirty days from the date of knowledge of the applicant about the decree, in the present case, the application under Order IX Rule 13 CPC filed on 04.03.2017 despite knowledge of the eviction order acquired by the appellants on 07.09.2012, the application was rightly held time barred by the learned Rent Controller.
18. Further, according to appellants' own case, they became aware about the eviction order dated 27.05.2009 only on 29.10.2016. Going by appellants' own case, vide Article 123 of the Limitation Act, the application under Order IX Rule 13 CPC could have been filed only by 28.11.2016. But as mentioned above, the application under Order IX Rule 13 CPC was filed on 04.03.2017.
19. Not only this, although appellants did not file the covering page of the certified copies bearing the stamp of dates of certified copy RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 16 of 24 pages application and its delivery, even according to the stamps on the certified copy of the impugned judgment, the same was prepared on 27.01.2017. Even if it is assumed that on 29.10.2016 itself the appellants applied for certified copies and the same were prepared on 27.01.2017, excluding the time taken for obtaining certified copies, application under Order IX Rule 13 CPC could have been filed only till 26.02.2017 but the same was filed on 04.03.2017. Even from that angle, application under Order IX Rule 13 CPC was clearly time barred.
20. I am unable to find any infirmity in the view taken by the learned Rent Controller that the application under Order IX Rule 13 CPC was time barred and accordingly question No. (ii) stands answered.
QUESTION (iii)
21. Fulcrum of this question rests on the legal issue as to whether upon death of a tenant, his/her legal representatives inherit the tenancy as joint tenants or as tenants in common. According to the appellants, their status, having admittedly inherited the tenancy after death of their father, is of tenants in common, while according to respondent no. 1, status of the appellants and other legal representatives of late Shri Subhash Chander Gulati is that of joint tenants, in the sense that act of any of those legal representatives would bind rest of the legal representatives. Despite having already taken a view on this issue after elaborate discussion on law in my judgment dated 01.09.2018 between RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 17 of 24 pages same parties, I again examined the issue at length but found no reason to deviate from the view taken by me in judgment dated 01.09.2018, which is reiterated herein for ready reference.
22. In the case of Narender Kaur vs Mahesh Chand & Sons, in R.C. Rev. 29/2012 decided on 17.08.2012 MANU/DE/4127/2012, the Hon'ble Single Judge of the Delhi High Court rejected the contention that eviction petition was not maintainable due to nonjoinder of some of the legal representatives of the deceased tenant and held that it is settled legal position that it is not necessary for the landlord to implead all the legal heirs of the deceased tenant and it is sufficient if the eviction petition is filed against any one of the joint tenants and all joint tenants would be equally bound by the eviction order.
23. In the case of Harish Tandon vs Addl. District Magistrate, Allahabad, UP & Ors., (1995) I SCC 537, the admitted factual position was that the premises in question were let out to Shri Sheobux Roy who died in the year 1941 leaving behind five sons out of whom three carried on their business in the said premises; on the question of contravention by one of the legal representatives of Shri Sheobux Roy, the Hon'ble High Court took a view that after death of Shri Sheobux Roy, his five sons became tenants in common, so contravention by one of them shall not be a ground for eviction as regards the other cotenants. After a detailed discussion, the Hon'ble Supreme Court of India observed thus :
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 18 of 24 pages "21. ...However, this court in the case of H.C. Pandey vs G.C. Paul (1989) 3 SCC 77 in connection with the same Act said :
"It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants."
22. ...According to us, it is difficult to hold that after the death of the original tenant, his heirs become tenants in common and each one of the heirs shall be deemed to be an independent tenant in his own right. This can be examined with reference to Section 20 (2) which contains the grounds on which a tenant can be evicted. Clause (a) of Section 20 (2) says that if the tenant is in arrear of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be a ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is default as provided in clause (a) of subsection (2) of Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 19 of 24 pages default thereto such heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, amongst the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as ground (b) of subsection (2) of Section 20, which says that if the tenant has willfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; again, if one of the sons of the original deceased tenant willfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of clause (c) which is another ground for eviction i.e. the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its value or utility or to disfigure it. Even if the said ground is established by the landlord, he cannot get possession of the building in which construction or structural alterations have been made diminishing its value and utility unless he establishes that all the heirs of the deceased tenant had done so......
23. It appears to us, in the case of H.C. Pandey vs. G.C. Paul (1985) 2 SCC 683 it was rightly said by this court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenant jointly. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants"
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 20 of 24 pages
24. In the case of Suresh Kumar Kohli vs Rakesh Jain, AIR 2018 SC 2708, the Hon'ble Supreme Court of India recapitulated various judicial pronouncements on the aspect of inheritance of tenancy and concluded thus :
"20. We are of the view that in the light of H.C. Pandey (supra) the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenants is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs."
25. Going by the above described legal position, the irresistible conclusion in the present case is that the appellants and the remaining legal representatives of late Shri Subhash Chander Gulati inherited tenancy of the demised premises as joint tenants, in the sense that all the said legal representatives together constitute a single body tenant to the extent that act of one organ binds all the remaining organs of the body.
26. Consequently, notice of the eviction proceedings to the present respondents no. 2 & 3 was, as per law, notice to all joint tenants RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 21 of 24 pages including the appellants and contest of the eviction proceedings by the present respondents no. 2 & 3 was, as per law, contest of the eviction proceedings by all joint tenants including the present appellants.
27. Therefore, it cannot be said that the eviction order dated 27.05.2009 was an exparte order, amenable to scrutiny under Order IX Rule 13 CPC and question no. (iii) is answered accordingly.
QUESTION No. (iv)
28. Argument advanced by learned Senior Counsel on behalf of respondent no. 1 was that the present appeal is hit by the explanation to Order IX Rule 13 CPC and in response, learned counsel for appellants submitted that no such argument was raised before the learned Rent Controller.
29. Explanation to Order IX Rule 13 CPC contemplates that where an appeal is filed and disposed of against an exparte decree, application under Order IX Rule 13 CPC shall not lie except in a case where the appeal had been withdrawn. In the present case, as mentioned above, against the eviction order dated 27.05.2009, which was according to the appellants an exparte order, though not so according to respondent no. 1, an appeal was filed by the present respondent no. 3 which was disposed of vide order dated 09.11.2011 by my predecessor.
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 22 of 24 pages
30. Since the eviction order dated 27.05.2009 had already been challenged by way of appeal filed by one of the joint tenants of the demised premises, which appeal stood disposed of on 09.11.2011, application under Order IX Rule 13 CPC filed by the appellants on 04.03.2017 was not even maintainable in view of explanation appended to Order IX Rule 13 CPC.
31. Merely because in opposition to the application under Order IX Rule 13 CPC, the present respondent no. 1 did not challenge maintainability of the application on the ground under consideration, the ground now raised cannot be discarded, since it is a legal ground related to maintainability.
32. Therefore, it is held that the application under Order IX Rule 13 CPC filed by the appellants was not even maintainable in view of bar stipulated in explanation appended to that provision and question no. (iv) is answered accordingly.
CONCLUSION
33. To summarize, it is held that there was no infirmity in service by way of publication of notice of the eviction proceedings on the appellants; that the application under Order IX Rule 13 CPC was not filed within time prescribed by law; that status of the appellants was of joint tenants with the remaining legal representatives of late Shri RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 23 of 24 pages Subhash Chander Gulati and consequently, the eviction order dated 27.05.2009 cannot be treated as exparte order, amenable to scrutiny under Order IX Rule 13 CPC; and that in view of explanation to Order IX Rule 13 CPC, the application filed by the appellants under Order IX Rule 13 CPC was not even maintainable.
35. In view of above discussion, the impugned order dated 12.02.2018 of learned Rent Controller, whereby application of the appellants under Order IX Rule 13 CPC was dismissed, is upheld. The appeal is held devoid of merits and is dismissed with cost of Rs. 20,000/, to be paid in equal shares by the appellants to respondent no. 1 towards cost of her litigation in this appeal, estimated on conservative side.
36. A copy of this judgment be sent to the learned Rent Controller along with trial court record and appeal file be consigned to records.
Announced in the open court on
this 01st day of May, 2019 (GIRISH KATHPALIA)
District & Sessions Judge
Digitally signed
by GIRISH South East, Saket Courts
KATHPALIA New Delhi 01.05.2019 (a)
GIRISH
Date:
KATHPALIA 2019.05.02
15:01:03
+0530
RCT ARCT No. 13/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Page 24 of 24 pages