Delhi District Court
Shri Dev Raj vs Smt Saroj Singhal on 4 October, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCT No. 30191/2016
Shri DEV RAJ
S/o Sh. RAM PREM
C/o GROUND FLOOR, B-1074
SHASTRI NAGAR, DELHI 110052 .....APPELLANT
VERSUS
1. Smt SAROJ SINGHAL
W/o Late Sh. BELA RAM
(DECEASED THROUGH HER LRs)
i. GANGA RAM SINGHAL
S/o Late Smt. SAROJ SINGHAL
AT B-1074, SHASTRI NAGAR,
DELHI 110052
ii. Smt. POONAM GARG
D/o Late Smt. SAROJ SINGHAL
(DECEASED THROUGH HER LRs)
a. APARNA GARG - DAUGHTER
b. SHELLY GARG - DAUGHER
c. NIKHIL GARG - SON
d. ARUN GARG - HUSBAND
ALL AT L-70, SHASTRI NAGAR,
DELHI 110052
iii. Shri RAJU SINGHAL
S/o Late Smt. SAROJ SINGHAL
(DECEASED THROUGH HER LRs)
BEING RESPONDENT NO. 2 TO 5
2. Mrs. KUSUM SINGHAL
W/o Late RAJU SINGHAL
3. Ms. SWATI ARORA
D/o Late RAJU SINGHAL
4. Ms. ANMOL SINGHAL
D/o Late RAJU SINGHAL
5. TARUN SINGHAL
S/o Late RAJU SINGHAL
ALL AT B-1074, SHASTRI NAGAR
DELHI 110052
RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 1 of 20 pages
GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA
Date: 2021.10.04 14:41:26 +05'30'
6. Shri ANUP KUMAR SINGHAL
S/o Late Smt. SAROJ SINGHAL
(DECEASED THROUGH LRs)
i) Mrs. NEELAM SINGHAL - WIFE
ii) SAURABH SINGHAL - SON
BOTH AT B-1074, SHASTRI NAGAR
DELHI 110052
7. Shri NARESH KUMAR SINGHAL
S/o Late Smt. SAROJ SINGHAL
(DECEASED THROUGH LRs)
i) Smt SONALI SINGHAL - WIFE
ii) MAYAK SINGHAL - SON
iii) TARANA SINGHAL - DAUGHER
iv) PARI SINGHAL (MINOR DAUGHTER)
THROUGH HER MOTHER/NATURAL GUARDIAN
Mrs. SONALI SINGHAL
ALL AT B-1074, SHASTRI NAGAR
DELHI 110052
8. Shri GOPAL SINGHAL
S/o Late Smt. SAROJ SINGHAL
(DECEASED THROUGH LRs)
i) Smt RITA SINGHAL - WIFE
ii) YASH SINGHAL - SON
iii) PUSHAR SINGHAL (MINOR SON)
THROUGH HER MOTHER/NATURAL GUARDIAN
Smt. RITA SINGHAL
ALL AT B-1074, SHASTRI NAGAR
DELHI 110052
9. Shri BASANT SINGHAL
S/o Late Smt. SAROJ SINGHAL
AT B-1074, SHASTRI NAGAR
DELHI 110052
10. Shri RITU SINGHAL
S/o Late Smt. SAROJ SINGHAL
(DECEASED THROUGH LRs)
a. SUNITA SINGHAL
(DECEASED NOW BEING REPRESENTED
BY HER LRs (b) & (c)
b. CHINTU SINGHAL - SON
c. ANNAPOORNA SINGHAL - DAUGHTER
ALL R/o 193/2020, KALLUPURA,
GHAZIABAD, U.P. .....RESPONDENTS
RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 2 of 20 pages
GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA
Date: 2021.10.04 14:41:10 +05'30'
Date of filing: 01.11.2013
First date before this court : 06.06.2019
Date of arguments : 24.09.2021
Date of Decision : 04.10.2021
Appearances :
Shri Chaudhary Ranjeet Singh, counsel for appellant
Respondent 6(ii) in person
JUDGMENT
1. By way of this appeal under Section 38 of the Delhi Rent Control Act, the appellant tenant has assailed order dated 07.10.2013 of the learned Additional Rent Controller whereby petition under Section 14(1)(c) of the Act, filed by the predecessor in interest of the present respondents was allowed, and eviction order in respect of two shops (as depicted in the site plan and hereinafter referred to as "the tenanted premises") on the ground floor of premises bearing No. B-1074, Shastri Nagar, Sarai Rohilla, Delhi was passed. On issuance of notice, respondents entered appearance through counsel and filed reply, strongly opposing the appeal. As reflected from record, disposal of this appeal got delayed since unfortunately, number of successors of the original landlord passed away which led to multiple applications under Order XXII CPC. Initially, respondents were represented through a counsel, but subsequently the counsel stopped appearing and one of the respondents namely Shri Saurabh Singhal respondent no. 6(ii) continued to prosecute the appeal on behalf of all respondents. I heard learned counsel for appellant and respondent no. 6(ii) in person, who took me through trial court record.
2. Briefly stated, circumstances leading to the present appeal RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 3 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:40:50 +05'30' are as follows.
2.1 The original landlord Shri Bela Ram Singhal filed eviction petition against the appellant Shri Dev Raj on the grounds stipulated under Section 14(1)(c) of the Delhi Rent Control Act, pleading that being owner of premises bearing No.B-1074, Shastri Nagar, Sarai Rohilla, Delhi, he orally inducted the appellant as tenant in respect of the tenanted premises for commercial purposes at a monthly rent of Rs. 340/- exclusive of other charges; that at the time of inception of this verbal tenancy, it was agreed that the tenanted premises would be used only for running a shop and accordingly the appellant tenant started running a bakery shop in the tenanted premises, selling biscuits and confectionery items; that the shop of the appellant was also got registered with the Shastri Nagar Shopkeepers Association; that subsequently in or around the year 1991, the appellant converted use of the tenanted premises from commercial use to industrial use by installing two ovens with chimney without written consent of the landlord; that the ovens so installed were emitting excessive smoke and heat thereby creating pollution and nuisance in the peaceful enjoyment of the eviction petitioner and his family; that on account of change of use of the tenanted premises, the entire larger premises no. B-1074, Shastri Nagar, Sarai Rohilla, Delhi got badly damaged and became inhabitable; that public at large in the vicinity got adversely affected due to industrial use of the tenanted premises, but despite various complaints lodged by the residents of the area the appellant did not stop misuse; that the appellant did not obtain requisite licenses and permissions for running industry in the tenanted premises; and that the eviction petitioner also served upon the appellant a notice dated 20.08.1996 under Section 14(5) of the Delhi Rent Control Act, to which the appellant sent a reply dated 14.10.1996.
RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 4 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:40:33 +05'30' 2.2 In his written statement filed before the learned trial court, the appellant admitted jural relationship of tenancy between the parties, though elucidated that as regards the two shops forming part of the tenanted premises, two separate tenancies were created. The appellant pleaded that the tenanted premises had been let out for commercial purposes and were being used for the same purpose, so the petition is not maintainable. Appellant denied having converted use of the tenanted premises from commercial to industrial, and specifically denied having installed any oven or chimney. Appellant pleaded that he has been using the tenanted premises only for selling bakery items and for cooking bakery items in a portion of the tenanted premises, but has not installed any oven or a chimney. Appellant denied that any local resident had lodged any complaint and pleaded that he has not caused any public nuisance as alleged by the eviction petitioner.
2.3 The eviction petitioner filed replication, thereby denying the pleadings of the appellant and reiterated the petition contents.
2.4 On the basis of above pleadings, trial was conducted before the learned Additional Rent Controller, in which four witnesses were examined by each side including the eviction petitioner and the appellant. After hearing both sides, the learned Additional Rent Controller passed the impugned eviction order.
2.5 Hence, the present appeal.
3.1 During final arguments, learned counsel for appellant contended that since all legal representatives of late Shri Bela Ram had RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 5 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:40:13 +05'30' not been impleaded, the eviction petition stood abated, so in that regard, the appellant had filed an application which remained undecided in the file of learned Additional Rent Controller. It was argued by learned counsel for appellant that on 04.02.2001, Shri Bela Ram passed away and vide order dated 18.04.2001, the learned Additional Rent Controller directed impleadment of legal representatives enlisted in para 2 of the application, but amended memo of parties was not filed for longtime so on 08.09.2008, the appellant filed an application contending that since Smt. Poonam Singhal and Shri Ritu Singhal, two of the legal representatives of late Shri Bela Ram had not been impleaded and they had passed away in the meantime, the eviction petition stood abated. It was further argued by learned counsel for appellant that after dismissal of the eviction petition in default, during pendency of restoration application, on 15.10.2011 an application to implead legal representatives of Shri Raju Singhal, another legal representative of Shri Bela Ram was filed and the learned Additional Rent Controller allowed the amended memo of parties to be taken on record vide order dated 22.3.2012, but one of the legal representatives Shri Basant Singhal was not named in the amended memo of parties. Thereafter, while disposing of an application to implead legal heirs of Shri Raju Singhal vide order dated 12.10.2012, the learned Additional Rent Controller directed filing of amended memo of parties and the same was filed on 07.02.2013 but the names of two legal heirs shown in the earlier amended memo of parties namely Smt. Poonam Singhal and Shri Ritu Singhal were deleted and name of Shri Basant Singhal was added apart from showing the names of legal heirs of deceased Shri Raju Singhal. Learned counsel for appellant contended that since all legal representatives of Shri Bela Ram were not impleaded due to malafide, the petition must be held to have abated. Under these circumstances, appellant filed an application for RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 6 of 20 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.04 14:39:54 +05'30' holding abatement of the petition on death of Smt. Poonam Singhal and Shri Ritu Singhal but that application remained undecided on the file of learned Additional Rent Controller. In these circumstances, according to learned counsel for appellant the impugned order is liable to be set aside because by the time it was passed, the petition already stood abated.
3.2 As regards merits of the impugned order, learned counsel for appellant, after taking me through the above factual matrix contended that ever since the year 1990, no manufacturing is being done in the tenanted premises, as admitted by PW1 Shri Bela Ram in his cross examination, so no case of misuse is made out. It was also contended by learned counsel for appellant that the eviction petitioner failed to prove any public nuisance committed by the appellant. Learned counsel for appellant placed reliance on the judgments in the cases of Barmeshwar Nath Prasad Singh vs Babu Kuer Rai, AIR 1964 Patna 116; R. Chand Goel vs Union of India, AIR 1973 Patna 401; Amrik Chand vs Harbans Singh, (VII) 1971 DLT 125; and Pushpa Devi vs Om Prakash, 1979 RLR 441.
4.1 On behalf of respondents, the respondent no. 6(ii) argued that ground of abatement having not been taken in the memo of appeal, the same cannot be allowed to be raised now. It was argued that Smt. Poonam Singhal and Shri Ritu Singhal were not legal representatives of Shri Bela Ram Singhal because Shri Bela Ram had bequeathed his rights in favour of his wife Smt. Saroj Singhal, therefore, argument of abatement is not correct. It was also argued on behalf of respondents that unless the court takes notice of abatement, the legal proceedings cannot be held to have abated automatically.
RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 7 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:39:35 +05'30' 4.2 On behalf of respondents, it was also argued that the appeal itself is not maintainable on account of the appellant's failure to implead Shri Ganga Ram Singhal, one of the persons in whose favour the impugned eviction order was passed. Respondent no. 6(ii) placed reliance on the judgment of Hon'ble Supreme Court in the case of Ram Kishna Ghosh & Ors vs Roop Chand Moola & Ors., reported as 1997(10) SCC 307 in support of his argument that on account of failure to implead Shri Ganga Ram Singhal as one of the respondent, the present appeal is liable to be dismissed.
4.3 As regards merits of the impugned order, respondent no. 6(ii) took me through trial court record and contended that the appellant in his written statement was completely evasive as regards use of the tenanted premises, as permitted at the time of inception of tenancy. Respondent no. 6(ii) took me through evidence on record to show that business of the appellant is not even registered as a shop. Respondent no. 6(ii) also took me through evidence on record reflecting that activity of the appellant in the tenanted premises was causing public nuisance. Respondent no. 6(ii) also referred to the judgment of Hon'ble Supreme Court in the case of Bharat Lal vs Virendra Kumar Aggarwal, 2003(2) SCC 343 which held that manufacturing activity cannot be allowed in a shop.
5. In rebuttal arguments, learned counsel for appellant pointed out that Shri Ganga Ram Singhal is already impleaded in this appeal so argument of respondent as regards the alleged non joinder is not sustainable. It was argued that as regards abatement, the objection was taken even before the learned trial court and it being a legal issue, the appellant can raise the same even without specifically pleading the same RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 8 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:39:13 +05'30' in the memo of appeal.
6. In the backdrop of above factual and legal matrix, the issues to be examined by this court are: whether failure to implead Smt. Poonam Singhal and Shri Ritu Singhal led to abatement of the eviction petition; whether there is any infirmity in the findings arrived at by the learned Additional Rent Controller that the appellant misused the tenanted premises by converting the bakery shop into bakery products manufacturing unit without consent of the landlord; and whether on account of failure to implead Shri Ganga Ram Singhal as a party to this appeal, the appeal is liable to be dismissed.
ABATEMENT
7. As mentioned above, in order to buttress his claim of abatement of the eviction petition, the reason advanced by the appellant is that since during their lifetime Smt. Poonam and Shri Ritu Singhal were not impleaded as legal representatives of Shri Bela Ram before the trial court, after their death during trial, their legal representatives could not be impleaded to substitute them. In response, it is claimed by respondent no. 6(ii) that Shri Bela Ram had bequeathed his rights in favour of Smt. Saroj Singhal only, therefore Smt. Poonam and Shri Ritu Singhal were not legal representatives of Shri Bela Ram.
8. But perusal of trial court record would show a different picture. On 13.03.2001, before the trial court, 9 legal heirs of Shri Bela Ram filed an application under Order XXII Rule 3 CPC, seeking themselves to be substituted in the place of Shri Bela Ram as he had passed away on 04.02.2001. In the said application, all those 9 legal RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 9 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:38:53 +05'30' heirs of Shri Bela Ram stated that they had no objection if Shri Anup Kumar Singhal son of Shri Bela Ram was taken on record as solitary legal representative of Shri Bela Ram. The present respondent no.6(ii), who addressed arguments on behalf of respondents is son of Late Shri Anup Singhal and grandson of Shri Bela Ram Singhal. Vide order dated 18.04.2001, the said application under Order XXII Rule 3 CPC was allowed by learned Additional Rent Controller, specifically observing that the present appellant had not disputed that there was no other legal representative of Shri Bela Ram. Thus, the application under Order XXII Rule 3 CPC was allowed, thereby substituting Shri Bela Ram with his legal representatives named in para 4 of the application and the applicants were directed to file amended memo of parties. Smt. Poonam Singhal as well as Shri Ritu Singhal were not just named in that application dated 13.03.2001, they were also signatories to the same. But thereafter, apparently amended memo of parties was not filed for longtime and ultimately application dated 08.09.2008 was filed by the appellant claiming that Smt. Poonam Singhal and Shri Ritu Singhal had passed away before being brought on record by amended memo of parties, so the petition stood abated.
9. In my considered view, merely because the amended memo of parties was not filed in terms with order dated 18.04.2001, more so, because there was never any objection raised on behalf of appellant till September 2008, the petition itself cannot be said to have abated. Shri Bela Ram stood substituted with his legal representatives vide order dated 18.04.2001 itself and filing of amended memo of parties was a mere procedural formality, especially because the application under Order XXII Rule 3 CPC had been signed by all the legal representatives, including Smt. Poonam Singhal and Shri Ritu Singhal. Not just this, RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 10 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:38:29 +05'30' vide order dated 22.03.2012, even that insignificant irregularity was rectified by the learned Additional Rent Controller by taking on record the amended memo of parties subject to payment of cost. That amended memo of parties dated 22.03.2012 (page 149 of trial court record) specifically named Smt. Poonam Singhal as well as Shri Ritu Singhal as LRs No. (b) and (c) of the deceased eviction petitioner Shri Bela Ram. Keeping in mind that no benefit could accrue to the present respondents by delaying the eviction proceedings, I am unable to deduce any malafide on their part, as alleged by the appellant. Therefore, I am of the considered view that there is no reason to hold that the petition stood abated before the trial court.
10. I have examined this issue from another angle as well. Even if the Will relied upon by respondent no.6(ii) is ignored, after death of Shri Bela Ram, all his legal representatives became co-owners of the tenanted premises. Even if it is assumed that not all the co-owners of the tenanted premises were impleaded as eviction petitioners, can the eviction petition fail on this count ?
11. In the case of M/s India Umbrella Manufacturing Co. vs Bhagabandei Aggarwala, AIR 2004 SC 1321, the Hon'ble Supreme Court of India held thus :
"6. .... It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners (see. Sri Ram Pasricha vs Jagannath & Ors.(1976) 4 SCC 184; Dhannalal vs Kalawatibai & Ors. (2002) 6 SCC 16) This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement....." (emphasis supplied) RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 11 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:38:10 +05'30'
12. Subsequently, in the case of Mohinder Prasad Jain vs Manohar Lal Jain, (2006) 2 SCC 724 the Hon'ble Supreme Court of India had the occasion to deal with circumstances similar to the present case in the sense that the original landlord died, leaving behind five children who became co-owners of the demised premises and one of them filed eviction petition, which was dismissed on the ground that the eviction petitioner had not been able to show consent of his sisters in his favour for institution of the eviction petition. The Hon'ble Supreme Court of India referred to the judgment in the case of M/s India Umbrella Manufacturing Co.(supra) and held thus :
"11. A suit filed by a co-owner is thus maintainable in law. It is not necessary for the co-owner to show before initiating the eviction proceedings before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein...." (emphasis supplied)
13. In the case of Sriram Pasricha vs Jagannath & Ors., 1976 AIR 2335 the Hon'ble Supreme Court of India elucidated the concept of co-ownership thus :
"........... Mr. V.S. Desai reads to us from Salmond on Jurisprudence (13th edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254:
"As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co- ownership. Partners, for example, are co-owners of the chattels which constitute their stock-in trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 12 of 20 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.10.04 14:37:47 +05'30' each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person ...... The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned". Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will, change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants."
14. In the case of Subhendu Prosad vs Kamla Bala Roy Choudhary, AIR 1978 SC 835, the Hon'ble Supreme Court of India reiterated that even assuming the quit notice was not given on behalf of one of the co-owner landlords, the decision in the case of Sriram Pasricha (supra) would show that yet the notice was good and valid.
15. In the case of Kanta Goel vs B.P. Pathak & Ors., 1977 AIR 1599, the Hon'ble Supreme Court of India held thus :
"This Court, in Sri Ram Pasricha clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is: "Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns very part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property. It is therefore, not possible to accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of section 13(1) (f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13 (1) (f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 13 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:37:27 +05'30' defendants." That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owner on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co- owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner". (emphasis supplied)
16. Similarly, in various judicial precedents consistent view of the Hon'ble Supreme Court of India and the Hon'ble Delhi High Court has been that a co-owner is as much an owner of the entire property as any sole owner of the entire property and therefore an action for eviction of the tenant brought by one of the co-owners is legally maintainable. What is to be seen is not as to whether the co-owner who did not join the issuance of quit notice or institution of eviction petition had consented for the issuance of notice or institution of eviction petition. What is to be seen as to whether the co-owner who did not join the issuance of quit notice or institution of eviction petition had objected to the issuance of notice or institution of eviction petition. It is in the latter case that the quit notice or the institution of the eviction petition would be bad in law.
17. It is nobody's case that Smt. Poonam Singhal and/or Shri Ritu Singhal and/or any of their legal heirs objected to the eviction of the appellant. Therefore, the eviction petition even in their absence would not fail. Rather, as mentioned above Smt. Poonam Singhal and Shri Ritu Singhal were duly impleaded, substituting Shri Bela Ram as his legal representatives. Consequently, claim of the appellant that the eviction petition stood abated is rejected.
CONVERTING COMMERCIAL USE TO INDUSTRIAL USE
18. As mentioned above, the case set up before the trial court by RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 14 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:37:06 +05'30' the eviction petitioner Shri Bela Ram was that he had inducted the present appellant as tenant in the tenanted premises for commercial use, which use at that time was a bakery shop, selling biscuits and confectionery items, but subsequently without his consent the appellant converted the commercial use into industrial use by installing ovens and chimney, which created public nuisance as well as pollution and despite notice under Section 14(5) of the Act, the appellant did not stop misuse, therefore, the appellant was liable to be evicted under Section 14(1)(c) of the Act. On the other hand, case set up by the present appellant before the learned trial court was that he has been using the tenanted premises for commercial purposes of selling bakery items and has been cooking those bakery items but has not installed any oven causing pollution or public nuisance, so the eviction petition is liable to be dismissed.
19. In that regard, the learned Additional Rent Controller minutely examined the material on record and reached a finding that the tenanted premises were being misused for commercial purposes by installing a bhatti (oven) and a chimney regarding which the local residents had lodged complaints to stop nuisance, and that in civil suit proceedings, the appellant was restrained from running bakery unit.
20. In notice Ex. PW1/5, got issued by Shri Bela Ram to the appellant, it was specifically alleged that the tenanted premises had been given to the appellant for running a bakery shop but he started manufacturing the bakery items by fixing two big ovens without consent of Shri Bela Ram and those ovens were emitting excessive heat and smoke due to which entire electrical wiring got burnt and the ovens were creating pollution and nuisance due to which the entire premises no. B-1074, Shastri Nagar, Sarai Rohilla, Delhi had become inhabitable and that other residents also were objecting to such activities of the appellant, so the appellant was called upon to stop this nuisance of manufacturing activity in the tenanted RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 15 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:36:44 +05'30' premises. The appellant got issued reply Ex. PW1/7 in which he denied having misused the premises or having caused any nuisance, but did not deny having installed ovens in the tenanted premises without consent of Shri Bela Ram.
21. The document Ex. PW3/1 is a complaint dated 05.06.1995 of Joint Director in Ministry of Environment and Forests, addressed to the Deputy Commissioner, Tis Hazari Courts, Delhi as regards pollution caused by operation of a bakery being run by the appellant from the tenanted premises, so necessary action under Section 133 CrPC was sought. The document Ex. PW3/2 is a report dated 22.09.1995 submitted by PS Sarai Rohilla in the court of SDM Kotwali, in which it was stated that on inspection of the tenanted premises, the appellant was found running two bhattis (ovens) of making biscuits in spite of rejection of registration from Zonal Health Officer and despite objections of the local residents and that the same was creating air pollution, besides raising unbearable heat.
22. During trial, Shri Jagbir Singh, Health Inspector, Civil Lines Zone of MCD was summoned and examined as PW4 before the trial court and he proved on record as Ex. PW4/1 a letter dated 06.08.1991 whereby application of the appellant for ad-hoc registration was rejected on account of non-fulfillment of technical conditions.
23. In his chief examination recorded on 17.12.1999, Shri Bela Ram deposed on oath his entire factual matrix as described above. Although Shri Bela Ram as PW1 was cross examined extensively across two dates, his testimony as regards misuse of the tenanted premises by the appellant remains unshaken. A substantial part of cross examination was only to establish that there are other bakery shops also near the tenanted premises. But that is not in dispute, case of the eviction petitioner being that the tenanted premises were let out for running bakery shop and not for RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 16 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:36:23 +05'30' running a factory, manufacturing bakery products. In his cross examination, PW1 stated that the appellant installed bhatti only in the year 1990, so prior to that he had no occasion to lodge any complaint, and he also proved on record as Ex. PW1/X his complaint dated 05.06.1990.
24. The appellant stepped into the box as RW1 and in his cross examination denied the suggestion that he had installed two bhattis and one chimney in the tenanted premises, but he voluntarily added that there is only one bhatti and one chimney. This vital admission of the appellant cannot be ignored. Appellant in his testimony as RW1 further stated that he had installed the bhatti and the chimney at the time of commencement of tenancy with consent of the landlord, but the same was not a written consent. RW1 also admitted that while working on bhatti, smoke gets spread, though he tried to justify by stating that there are number of other bhattis in the area. RW1 also admitted that the High Court had directed him not to operate bhatti without a license.
25. Contention of learned counsel for appellant that manufacturing of bakery items would not convert the commercial use into industrial use cannot be accepted. A commercial use in that regard would be running a shop of bakery, where bakery products like biscuits and cakes etc are sold across counter. Manufacturing of bakery products, especially with the use of ovens and chimneys is an industrial process and not just commercial activity. In that regard, learned Additional Rent Controller rightly placed reliance on the judicial precedents sited in para 11 of the impugned order.
26. Thence, the oral as well as documentary evidence on record clearly establishes that the appellant was inducted as a tenant with the limited permission to use the tenanted premises for running shop of bakery products, but subsequently he installed a bhatti and a chimney in the RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 17 of 20 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.10.04 14:36:05 +05'30' tenanted premises and started manufacturing activity, thereby converting the commercial use into industrial use, causing public nuisance and pollution; that there is not even a shred of evidence to show that the installation of bhatti and chimney in the tenanted premises was with consent of Shri Bela Ram, rather no such plea was taken by the appellant even in reply Ex. PW1/7 to the notice Ex. PW1/5 under Section 14(5) of the Delhi Rent Control Act.
27. In view of above discussion, I am in absolute agreement with the findings arrived at by the learned Additional Rent Controller that the appellant used the tenanted premises for a purpose other than that for which they were let and did not stop the misuse despite legal notice under Section 14(5) of the Delhi Rent Control Act and the said misuse caused not just public nuisance, but also made the entire premises No. B-1074, Shastri Nagar, Sarai Rohilla, Delhi unhabitable.
NON-JOINDER OF SHRI GANGA RAM SINGHAL
28. The impugned eviction order was passed in favour of Smt. Saroj Singhal (widow of Shri Bela Ram Singhal), legal heirs of Shri Raju Singhal (the deceased son of Shri Bela Ram Singhal) and Shri Anup Kumar, Shri Naresh Kumar, Shri Ganga Ram, Shri Gopal and Shri Basant Singhal (all sons of Shri Bela Ram). According to the trial court record, in the original memo of parties dated 30.10.2013 of this appeal, only 9 persons were impleaded as respondents, namely Smt. Saroj Singhal, legal heirs of Shri Raju Singhal, Shri Anup Kumar, Shri Naresh Kumar, Shri Gopal and Shri Basant Singhal. Shri Ganga Ram Singhal, who was one of the persons in whose favour the impugned eviction order had been passed, was not impleaded as a respondent in this appeal.
RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 18 of 20 pages GIRISH KATHPALIA Date:
Digitally signed by GIRISH KATHPALIA2021.10.04 14:35:46 +05'30'
29. When Shri Anup Singhal passed away, an application dated 18.07.2019 was filed by the counsel for appellant to implead legal representatives of Shri Anup Singhal and in reply to the same, respondent no. 6(i) and 6(ii) specifically pointed out that the appeal is liable to be dismissed because "the appellant has failed to file appeal against the co-decree holder namely Shri Ganga Ram who was a party in the trial court". Despite this lacuna having been pointed out, way back in August 2019, till date no action was taken by the appellant to implead Shri Ganga Ram Singhal as a party to this appeal.
30. As regards the rebuttal argument of learned counsel for appellant that Shri Ganga Ram Singhal was subsequently impleaded as a party, the same was to the limited extent of Shri Ganga Ram Singhal being one of the legal representatives of Smt. Saroj Singhal. In the said amended memo of parties dated 29.07.2021 Shri Ganga Ram Singhal was clearly impleaded only in his capacity as legal representative of Smt. Saroj Singhal and not in his individual capacity as one of the persons in whose favour the eviction order had been passed.
31. In the case of Ram Krishna (supra) relied upon by respondent no.6(ii), the Hon'ble Supreme Court observed thus :
2. ....We find that a grave error has been committed by the appellants in not impleading the original defendants as parties herein who had contested the suit. In the absence of those contesting parties before us, the appeal cannot proceed. We, therefore, not only dismiss Civil Miscellaneous Petition No. 3151 of 1983 but also the appeal as well, as no relief can be granted to the appellant in the absence of necessary parties."
32. In the present case also failure on the part of appellant to RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 19 of 20 pages GIRISH KATHPALIA Date:
Digitally signed by GIRISH KATHPALIA2021.10.04 14:35:27 +05'30' implead Shri Ganga Ram Singhal in his individual capacity has to be fatal to the appeal.
CONCLUSION
33. I am unable to find any infirmity in the impugned eviction order, so the same is upheld. The appeal is devoid of merits, and the same is dismissed with costs of Rs.20,000/- to be paid by the appellant to the respondent no.6(ii) towards litigation expenses qua the present appeal, estimated on conservative side.
34. Trial court record be sent back along with a copy of this judgment and appeal file be consigned to records.
Announced through videoconferencing
on this 04th day of October, 2021
GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2021.10.04 14:35:02 +05'30'
(GIRISH KATHPALIA)
Principal District & Sessions Judge (HQs)
Rent Control Tribunal (Central),
Tis Hazari Courts, Delhi
RCT No. 30191/16 Shri Dev Raj vs Smt. Saroj Singhal Page 20 of 20 pages