Delhi District Court
Smt. Kailash Sethi vs Ms. Punita Sahni @ Punita Kohli @ Punita ... on 28 October, 2009
1
IN THE COURT OF MS. NAVITA KUMARI: ADDL. RENT CONTROLLER: WEST
DELHI
E-223/09/92
Smt. Kailash Sethi,
Wd/o late Sh. K. L. Sethi, advocate,
R/o 5/28, West Patel Nagar, New Delhi-110008. .....Petitioner
Versus
Ms. Punita Sahni @ Punita Kohli @ Punita Trikha
R/o 4/5, East Patel Nagar, New Delhi-110008. .....Respondent
Eviction Petition U/Sec.14(1)(b) & (h) of Delhi Rent Control Act,1958
JUDGMENT:-
1 The present eviction petition was filed by the petitioner against the respondent on 16.07.1992 under Sec.14(1)(b)&(h) of Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act). The brief facts as narrated in the petition are that the petitioner is landlady who had let out the tenanted premises comprising of four rooms, one kitchen, one bath and latrine combined, as 2 shown in red colour in the site plan filed with the petition, to the respondent vide Rent Agreement dated 01.04.1990 for residential purpose but the respondent had left the premises on 03.06.1991 when she got married to Mr. Sunil Trikha and shifted to house no. 4/5, East Patel Nagar, New Delhi where she is residing with her husband and has sublet, assigned and parted with the possession of whole of the tenanted premises to her mother Smt. Usha Sahni and her husband. She has acquired possession of premises bearing no. 4/5, East Patel Nagar, New Delhi. Hence the petition has been filed under Sec.14(1)(b)&(h) of DRC Act.
2 After service of summons, the respondent appeared and filed her Written Statement wherein she has admitted that the premises in question were let out to her by petitioner on 01.04.1990. But she has denied that she has sublet, assigned or parted with the possession of the tenanted premises. Rather she has submitted that she is still in possession of these premises. She has submitted that her younger sister is residing with her since the inception of the tenancy because she feels 3 that it is her duty to maintain her sister and marry her as her father is not doing anything. She has further submitted that her mother Smt. Usha Sahni has permanent residence in premises bearing no. 11/26, East Patel Nagar, New Delhi where she is residing with her husband, though she has come on temporarily basis to reside with her in order to help and console her as the petitioner is having lot of mental tensions due to abusive behaviour of petitioner and her son as well as due to non-cordial relations with the children of her husband Mr. Sunil Trikha from his previous wife who are under the influence of their maternal grandmother and maternal grandfather who have been preaching them that the respondent would get the entire property of her husband. She has further submitted that both the children of her husband have clearly told her that they would not allow her to live with Mr. Trikha and as such she is residing in the premises in question. She has denied that she has acquired possession of other premises and has submitted that though she has married to Mr. Sunil Trikha but she has never shifted to his house at 4/5, East Patel Nagar, New Delhi. She has further submitted that she has no title to the abovesaid 4 premises.
3 An application U/Sec.15(2) of DRC Act was moved by petitioner on 29.09.1993 which was allowed vide order dated 25.04.1994 and the respondent was directed to pay or deposit the arrears of rent at the rate of Rs.2,000/- per month w.e.f. 01.08.1992 up to the end of the month previous to that in which payment was made within one month from the date of order and to continue to pay or deposit the future rent month by month by the 15th of each succeeding English calender month. When the matter was fixed for filing of Replication, none appeared for petitioner on 03.06.1997 despite a number of calls and finally the petition was dismissed in default on that day. Thereafter the petitioner moved a restoration application U/O.9 R.9 CPC on 06.06.1997. But neither anybody appeared for petitioner nor filed process fee for service of the said application and hence the said restoration application was dismissed for non- prosecution vide order dated 02.02.1998. Thereafter the petitioner moved an application U/O.9 R.4 & R.9 CPC on 5 27.02.1998. The petition was restored vide order dated 14.07.1999 by allowing application U/O.9 R.4 CPC & U/O.9 R.9 CPC subject to cost of Rs.1,000/-.
4 In order to prove her case, the petitioner examined three witnesses i.e. herself as AW1, her son Rohit Sethi as AW2 and Mukesh Mahajan, a resident of the locality as AW3. In RE, the respondent examined herself as RW1 and also filed affidavits of RWs i.e. her mother Smt. Usha Sahni, one Ram Nath Kapoor and one Vijay Kumar. But before they could be examined, the petitioner moved an application U/Sec.15(7) of DRC Act for striking out the defence of the respondent on the ground of non-compliance of order passed U/Sec.15(2) of DRC Act. The said application was allowed by the Ld. Predecessor Court vide order dated 26.04.2008 and the defence of the respondent was struck out. The respondent preferred an appeal against the said order but her appeal was dismissed by the Hon. Appellate Tribunal vide order dated 23.03.2009. Then the respondent filed CM(M) No. 641/20009 before the Hon. High Court against the order of 6 the Hon. Appellate Tribunal. But the said petition of the respondent was also dismissed by the Hon. High Court vide order dated 10.09.2009 and thus the order of striking out the defence of the respondent has been confirmed by the Hon. High Court also.
5 I have heard the final arguments from counsels of both the parties and perused the record. The petition has been filed on two grounds i.e. under Sec.14(1)(b) and Sec.14(1)(h) of DRC Act. First of all I take up the case under Sec.14(1)(b) of DRC Act.
Sec.14(1)(b) of DRC Act 6 It is the case of the petitioner that the respondent has shifted to her husband's house at 4/5, East Patel Nagar, New Delhi after her marriage with Mr. Sunil Trikha and has sublet, assigned and parted with the possession of the tenanted premises to her mother Smt. Usha Sahni and her husband. 7 Sec.14(1)(b) of DRC Act uses three expressions i.e. 7 "subletting", "assignment", and "otherwise parted with possession" of the tenanted premises. These three expressions deal with different concepts and apply to different circumstances. In case of subletting there should exist the relationship of landlord and tenant between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be present i.e. the transfer of an interest in the estate, payment of rent and the right to possession against tenant in respect of the premises sub-let. And in assignment, the tenant has to divest himself of all the rights that he has as a tenant. But in the present case the abovesaid components of sub-letting and assignment are absent both in the pleadings as well as evidence of the petitioner. Neither the relationship of landlord and tenant between the respondent and her mother has been established by the petitioner nor she has been able to prove the component of assignment. During the final arguments, the counsel for petitioner said that present petition has been filed U/Sec.14(1)(b) of DRC Act on the basis of "parting with possession of the tenanted premises". The evidence of the petitioner to prove this ground is the oral testimony of AW1, 8 AW2 and AW3. They have deposed that premises were let out to respondent who had, after her marriage with Mr. Sunil Trikha on 03.06.1991, shifted to her husband's house at 4/5, East Patel Nagar and is at present living at husband's house no. S-61, Greater Kailash-I, New Delhi along with her husband, her son and two children of her husband from his earlier wife and has sublet, assigned and parted with the possession of the tenanted premises to her mother Smt. Usha Sahni and her husband who are in the exclusive possession of the same. In their cross-examination, suggestions have been put to them denying all the abovesaid. The counsel for the petitioner during arguments has referred to Ex.RW1/P-1 to Ex.RW1/P-11 to prove that the respondent has left the tenanted premises and shifted to her husband's house. But the counsel for respondent has vehemently objected to the same on the ground that evidence of the respondent could not be looked into as her defence has been struck out. He has placed reliance upon judgments in case titled as Sohan Lal Vs. Hodal Singh & Ors., AIR 1979 Allahabad 230 and Modula India Vs. Kamakshya Singh Deo, (1988) 4 SCC 619. But so 9 far as Modula India Vs. Kamakshya Singh Deo, (1988) 4 SCC 619 is concerned, the same is of no help to respondent as it is on different point. It was held in this case that the respondent has the right to cross-examine the plaintiff's witnesses and to address arguments, even if his defence is struck out. It has been held in this case, "However, the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses."
In the present case, the respondent has cross-examined the plaintiff's witnesses as well as has addressed arguments, so this judgment is of no help to her. So far as the other judgment in AIR 1979 Allahabad 230 is concerned, it has been held in this case, 10 "O.15 R.5 CPC - Trial Court not striking off defence of tenant wrongly - Consequently defendant allowed to adduce evidence -
Held, the defence could not be read in passing the order."
8 Thus it is settled law that once the defence of the respondent is struck out, then his defence would not be read at the time of passing order if the respondent has led any evidence prior to the striking out of his defence. But striking out of defence does not mean that the entire evidence of the respondent would be thrown out, rather it means that the respondent could not raise any defence and any of his defence in his evidence would not be looked into. But if something favourable to petitioner has come up in his evidence, then the Court can certainly take note of the same. What is prohibited is the defence of the respondent and not of the petitioner. If the contention of the counsel for the respondent is accepted then it would amount to awarding a defaulting party i.e. the respondent whose defence was struck out for non-payment of rent as ordered under Sec.15(2) of DRC Act. This Court is of considered opinion that 11 when the respondent admits any part of the case of the petitioner in his evidence then Court can look into that part of evidence, even though the defence of the respondent is struck out. So now coming to Ex.RW1/P-1 to Ex.RW1/P-11, the counsel for petitioner has argued that in Ex.RW1/P-1 to Ex.RW1/P-10, the respondent has given her address as S- 69, Greater Kailash-1, New Delhi-48 which is her husband's house and thus it stands proved from these documents that she has shifted to and residing there. But I do not concur with his contention, Ex.RW1/P-1 to Ex.RW1/P-10 are the down loaded record of respondent's website and no where in these documents the address of S-69, Greater Kailash-1, New Delhi has been mentioned as residential address of the respondent and the mentioning of said address in her website is not the conclusive proof that she is residing at the said address. The counsel for petitioner has further argued that in her testimony Ex.RW1/P-11, recorded in the Civil Suit as well as in her statement recorded in the present case, the respondent has admitted that she has not cooked food for the last 8 months, the water connection has been disconnected and the gas 12 connection in the suit premises is in her mother's name, which proves that she is not residing there rather her mother is in exclusive possession of the same. But I do not concur with him on this point as it could not be held on the basis of this evidence that the respondent has left the premises and her mother is in exclusive possession when she has been repeatedly saying in her testimony that she is still in possession of the same. Now even if it is presumed that the petitioner is not residing in the tenanted premises, rather her mother is in exclusive possession of the same, it does not mean that case U/Sec.14(1)(b) of DRC Act stands proved as apart from exclusive possession, the petitioner has also to prove that the respondent has lost control over the tenanted premises. Mere residing of respondent's mother in the tenanted premises does not mean that the respondent has got divested herself of the right to possession as her mother might be staying there as a licensee. The mere use by other person is not parting with possession so long as the tenant retains the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by 13 divesting himself not only of physical possession but also of the right to possession. So, long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration, it would not be possible to say that the tenant has parted with possession even though for the duration of his stay the guest has been given the exclusive use of the whole or a part of the tenanted premises. The mere fact that the tenant himself is not in physical possession of the tenanted premises for any period of time would not amount to parting with possession so long as, during his absence, tenant has right to return to the premises and be in possession thereof. A mere privilege or license to use the whole or any part of the tenanted premises, which privilege or license can be terminated at the sweet will and pleasure of the tenant at any time, would not amount to "parting with possession". The divestment or abandonment of right to possession is necessary to invoke the clause of parting with possession. But in the present case the petitioner has failed to prove that respondent's mother was paying any rent or other consideration to the respondent or that the respondent has not 14 only divested herself of physical possession of the tenanted premises, rather she has also divested herself of the right to return to the premises in question and be in possession thereof and therefore it could not be said that the respondent has sublet, assigned or parted with the possession of the premises in question in favour of her mother. Hence, in the light of abovesaid it is held the the petitioner has failed to prove the ground of subletting, assigning or parting with the possession and hence her petition U/Sec.14(1)(b) of DRC Act is dismissed.
Eviction petition U/Sec.14(1)(h) of DRC Act 9 The petitioner/AW1 as well as her son AW2 have deposed that after getting married to Mr. Sunil Trikha on 03.06.1991, the respondent had shifted to her husband's house bearing no. 4/5, East Patel Nagar, New Delhi where she lived along with her husband and is presently living at house no. S-61, Greater Kailash-I, New Delhi along with her husband and children. It has been argued by counsel for petitioner that 15 since the respondent has acquired possession of another house i.e. the house of her husband, she is liable to be evicted U/Sec.14(1)(h) of DRC Act. But it is argued by the counsel for respondent that after marriage, the respondent had gone to her husband's place only for a few days and returned back due to the altercation with the grown up children of her husband from his previous wife and the suggestion to this regard had already been given by the respondent's counsel during the cross-examination of petitioner's witnesses. But it is pertinent to mention here that for attracting the provision of section 14(1)(h) of DRC Act the actual shifting of the tenant to the acquired premises is not essential. The requirement of Sec.14(1)(h) of DRC Act is that the tenant must have acquired the vacant possession of another residence irrespective to the fact that he or she has actually shifted there. 10 The counsel for respondent has further argued that the respondent is not the owner of the premises either of 4/5, East Patel Nagar, New Delhi or S-61, Greater Kailash-I, New Delhi and has thus no legal right to occupy the same and therefore 16 the present case could not be treated to be covered U/Sec.14(1)(h) of DRC Act. While arguing on this point he has placed reliance upon the judgment of Hon. High Court of Delhi in Smt. Revti Devi Vs. Kishan Lal, 1970 AIRCJ 417 wherein it has been held, "A mere occupation of a new residence by the tenant without any legal right to do so would not be covered by proviso (h) to Section 14(1) of the Delhi Rent Control Act, 1958. If he goes to stay in the house of his wife, legally speaking he has no right as such to stay and can be turned out from the house at any time by its legal owner, namely the wife. There is no law according to which the husband and the wife can be deemed to be one person. Therefore, where proviso (h) requires that the tenant himself should acquire vacant possession of another residence before he can be liable to eviction the force of its language cannot be whittled down by arguing that proviso (h) would apply even if it is not the tenant himself but his wife or his other relation were to acquire such other residence.
Therefore, as a general proposition of law, the acquisition of other residence must be by the tenant himself before proviso (h) to Sub-section (1) of Section 14 of the Act can apply."
17But it is pertinent to mention here that the Hon. Supreme Court has set the controversy at rest in the case titled as B. R. Mehta Vs. Smt. Atma Devi, 1987 (2) RCR (Rent) 464, wherein it has been held, "The correct position must be that if wife or husband acquires the property and the other spouse if he/she is the tenant, has a legal right by virtue of such a acquisition and stay there, then only can such acquisition or allotment of premises would dis-entitle or attract the provisions of Clause (h) of Section 14(1)." 11 Thus, it is clear that if a tenant has a legal right to stay in the premises acquired by his or her spouse then such tenant is liable to be evicted U/Sec.14(1)(h) of DRC Act. In the present case, the respondent has got married to Mr. Sunil Trikha on 03.06.1991 and after her marriage, the house of Mr. Sunil Trikha has become the matrimonial house of the petitioner where she has every right to stay and thus the case is duly covered under Sec.14(1)(h) of DRC Act. I would like to mention here that the counsel for respondent has contended 18 that Sec.14(1)(h) of DRC Act is not attracted in the present case because the other accommodation i.e. the house of Mr. Sunil Trikha was not acquired by him after the creation of tenancy, rather the same was acquired by him prior to the creation of the tenancy. But I totally disagree to him on this point due to peculiar facts of the present case. In the present case, the respondent was not married to Mr. Sunil Trikha at the time of creation of tenanted on 01.04.1990, rather she subsequently got married to him on 03.06.1991. Had she been married to him prior to the creation of tenancy, the contention of the counsel for respondent would have been valid. Sec.14(1)(h) of DRC Act comes into play when another accommodation becomes available to the tenant either by way of acquisition or by way of allotment which was not available to the tenant at the time of creation of tenancy. So, what we have to see here is that whether the respondent has acquired possession of another accommodation after the creation of tenancy which was not previously available to her. We are not here concerned with that Mr. Sunil Trikha has acquired it prior to the creation of tenancy because at that time he was not 19 there in the picture as respondent was not married to him at that time. Thus, obviously the house of Mr. Trikha was not available to her at that time which has become available to her only after her marriage with him on 03.06.1991. This being her matrimonial house, she has every right to stay there and thus it amounts to acquiring of possession of residence by her within the meaning of Sec.14(1)(h) of DRC Act and accordingly the petition U/Sec.14(1)(h) of DRC Act is allowed and eviction order is passed in favour of petitioner and against the respondent with respect to four rooms, one kitchen, one bath and latrine combined of premises bearing no. 5/28, West Patel Nagar, New Delhi as shown in red colour in the site plan Ex.AW2/1.
12 File be consigned to Record Room.
(ANNOUNCED IN THE OPEN COURT (NAVITA KUMARI) ON 28th October, 2009) ADDL.RENT CONTROLLER( WEST) DELHI 20 E-223/09/92 28.10.09 Present: None for petitioner.
Usha Sahni mother of respondent with counsel Sh. Sanjeev Mehta and Aruna Mehta.
Vide separate judgment the petition U/Sec.14(1)(b) of DRC Act is dismissed and petition U/Sec.14(1)(h) of DRC Act is allowed and accordingly eviction order is passed in favour of petitioner and against the respondent with respect to four rooms, one kitchen, one bath and latrine combined of premises bearing no. 5/28, West Patel Nagar, New Delhi as shown in red colour in the site plan Ex.AW2/1.
File be consigned to Record Room.
(Navita Kumari) ARC (West), THC 28.10.09