Delhi High Court
Prakash Wati Bali vs Manish Dewan on 2 May, 1996
Equivalent citations: 1996IIIAD(DELHI)457, 62(1996)DLT475, 1996(37)DRJ556A, 1996RLR369, 1996 A I H C 5650, (1996) 37 DRJ 556, (1996) 62 DLT 475, (1997) 2 RENCJ 320, (1996) 2 RENCR 378, (1996) 2 RENTLR 117
JUDGMENT C.M. Nayar, J.
(1) The present Second Appeal is directed against the judgments dated September 3, 1991 and October 19, 1992 respectively passed by the Additional Rent Controller and Rent Control Tribunal, Delhi.
(2) The respondent filed a petition for eviction of appellant No.2, Subhash Chander Bali from premises, B-72 (A-Type) Double Storey Quarters, Ramesh Nagar, New Delhi on the allegations that the premises were let out for residential purposes; the appellant No.2 has, on or about July, 1981, acquired a Dda flat bearing No. 201, Pocket- 4- A/C Janakpuri, New Delhi. An alternative plea was also taken that the said appellant also acquired flat No. 85-A, Pocket A-6, Janta Flats, Paschim Vihar, New Delhi from DDA. Therefore, he was liable to eviction under the provisions of Section 14(1) (h) of the Delhi Rent Control Act (hereinafter referred to as 'the Act').
(3) The petition was contested on the ground that no relationship of landlord and tenant existed between the parties as the respondent was not the landlord: The premises were taken on rent by Shri K.R.Bali, deceased father of appellant No.2 and husband of appellant No.1. The premises are in the use and enjoyment of Smt.Prakash Wati Bali and other legal heirs of the above said Shri K.R.Bali. Appellant No.2 also denied that he had acquired Dda flat bearing No. 201-A, Pocket 4-A/C Janakpuri, New Delhi but did not deny that he acquired flat No.85-A, Pocket A-6, Janta Flats, Paschim Vihar, New Delhi. Before the Rent Control Tribunal, an application was moved by appellant No. 1, Smt. Prakash Wati Bali under the provisions of Order 1 Rule 10 read with Section 151 Civil Procedure Code . to be imp leaded as a party to the proceedings. This application was allegedly made on 16th April, 1992. Taking note of the fact that in view of the demise of the father of appellant No.2, Shri K.R.Bali he alone was issued rent receipts in respect of the premises by the landlady and his mother, two brothers and sisters never asserted their tenancy rights, the Tribunal came to the inevitable conclusion on the basis of the admission and conduct of the parties that there was implied surrender of tenancy by the other heirs of Shri K.R.Bali deceased in favour of appellant No.2 who alone became the tenant in the disputed premises. The appeal, as a consequence, was dismissed and the order of the Additional Rent Controller was 'affirmed. Similarly, the application moved by appellant No.l under Order I Rule 10 Civil Procedure Code . was also dismissed and she was not permitted to be imp leaded as a party. The appellants felt aggrieved by the order passed by the Rent Control Tribunal and has filed the Second Appeal before this Court.
(4) The learned counsel for the appellants has contended that the Tribunal gravely erred in dismissing the application of appellant No.l to be imp leaded as a party as she was one of the legal heirs of the deceased tenant K.R.Bali and, accordingly, no order of eviction could be passed without hearing her. The provisions of Section 37 of the Act were cited in this regard and it was reiterated that no order which prejudicially affected the right of appellant No.1 could be made by the Controller without giving her a reasonable opportunity of showing cause and until her objections, if any. were considered. Reference is made to the judgments as reported in Indra Sharma v. Gopal Dass & others ; Mohd. Azeem v. District Judge, Aligarh and others and Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup and another .
(5) In the case of Indra Shanna (supra) it was held that the legal heirs inherited the tenancy rights as co-tenants and not as joint tenants. They have unity of possession but no unity of title. The order of eviction against one tenant is not binding against other co-tenants. In Mohd. Azeem (supra) the Hon'ble Supreme Court has held that "where the original tenant died and one of his sons built a house in the same city and moved to it, the tenancy of other sons, widow and daughter of the deceased tenant did not terminate and they continued to be the tenants in their own rights being covered by the definition of tenant." Similarly, it was held in the case of Textile Association (India) Bombay Unit (supra) that "an ex parte decree obtained against mother and son was not binding on one of the sons who was not imp leaded."
(6) The learned counsel for the respondents, on the other hand, has strongly relied on the judgments as reported in Shri Dalam Chand v. Dr. M.C.Sharma and others 1988 (1)R.CJ. 97, Sushil Kumar v. Bhagwanti Devi and another 1989 (2) R.CJ. page 8; Mohd. Usman v. Mst. Surayya Begum 1990 (2) Rent Control Reporter 408; Mst. Surayya Begum v. Mohd. Usman & others 44 (1991) D.L.T 293 and Pushpa Rani and others v. Bhagwanti Devi and another etc. . The last judgment affirmed the judgment of this Court in the case of Sushil Kumar (supra). I may now refer to this judgment which has been strongly relied upon by the counsel for the respondent and in fact dealt with the principles of implied surrender.. Paragraphs 15 and 16 which will indicate the facts and law as laid down read as follows:
"15.In view of the admitted facts that after the death of Chaman Lal, Sushil Kumar alone was issued rent receipts in respect of the premises by the respondents-landlords; other heirs never asserted their tenancy rights and could not produce any rent receipts issued by the respondents-landlords in their favour; Sushil Kumar as alone carrying on business in the shop; and other facts, the only inevitable conclusion which can be drawn is that the conduct of the parties is inconsistent . with the continuance of lease of the other heirs of Chaman Lal after his death and is in conformity with creation of new relationship of tenant and landlord between Sushil Kumar and the respondents. Therefore, I uphold the contention of the learned counsel for the respondents-landlords and endorse the finding of the learned Tribunal that Sushil Kumar was alone attorney as tenant after the death of Chaman Lal, and by conduct other heirs would be deemed to have surrendered their tenancy rights, if any, impliedly.
16.Further question that would arise for consideration is whether the finding of the Tribunal to the fact that Sushil Kumar who was alone attorney as tenant after the death of Chaman Lal, and by conduct other heirs would be deemed to have surrendered their tenancy rights, if any, impliedly is a finding of fact or a substantial question of law. It is no doubt true that under Section 39 of the Act the scope of challenge is restricted by sub-section (2) thereof which suits out a second appeal unless some substantial question of law is involved therein. A substantial question of law, it is against beyond dispute, does not -mean a mere question of law. In order to be "substantial", a question of law must at least be such that there is some doubt or difference of opinion or there is room for difference of opinion on the legal aspect, though generally a question of law of general public importance or even one which may alter materially the rights of the parties has been considered to be substantial in some decisions. However, the law is well settled that the mere application of the settled principles to a particular set of facts would scarcely constitute a substantial question of law. In view of this it cannot be said that any question of law/substantial question of law is involved in these appeals."
(7) This view was affirmed by the Supreme Court in the judgment as reported in the case Pushpa Rani and others (supra). The doctrine of implied surrender was accepted and the plea of the tenant was rejected. Paragraph 7 of the judgment may be reproduced as under: "THE contention strenuously urged by Sri Aruneshwar Gupta in support of these appeals is that it is a settled law that even a non-residential tenancy is heritable, that the heirs of a deceased tenant inherit the tenancy and that the decree against Sushil Kumar alone was insufficient to denude the rights of the appellants who are the other heirs. On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on the business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights of tenancy. This implied surrender was inferred from the evidence as to the conduct of the other heirs. The principle in Gian Devi's case as to the heritability of a non-residential tenancy relied upon by Sri Gupta does not detract from, and is not inconsistent with, the principle of implied surrender. The finding on implied-surrender, in our opinion, is supported by the evidence .on record. Both the Rent Control Tribunal and the High Court, in our opinion, were right in not countenancing the claim of the heirs which incidentally came through the challenge on the executing side. So far as the appeal of Sushil Kumar is concerned, there is hardly anything that can be said in support of it."
(8) The Supreme Court in the case of Mst. Surayya Begum (supra) dealt with the question, as to whether, the eviction decree against one of the legal heirs who was not made a party to the proceedings was valid, the Court came to the conclusion that the eviction decree obtained by the landlord is binding on all the legal heirs of the deceased-tenant irrespective of whether or not they were imp leaded as parties to the eviction proceedings. However, such heirs are entitled to object to the decree on the ground of fraud or collusion between the landlord and the other heirs of the deceased-tenant and if it can be shown any conflict of interests.
(9) In the background of the settled law the facts of the present case may be looked into. It is established that appellant No.2 after the death of his father was accepting the rent receipts and was paying rent and rent receipts were issued in his name in respect of the premises. He has also admitted that neither his mother nor sister nor any of the brothers ever objected to it. The mother, appellant No.1, remaining two brothers and sisters never asserted their tenancy rights. The Rent Controller as well as the Rent Control Tribunal,therefore, came to the obvious conclusion that there was implied surrender of tenancy by the other heirs of the deceased-tenant in favour of appellant No.2 who alone became the tenant in the disputed premises. It may also be noticed that in the eviction petition filed by the earlier landlady Smt. Kishan Devi, appellant No.2 was only made party as a tenant. In paragraphs 3 and 9 of the eviction petition the specific plea was taken that Shri S.C.Bali was the tenant and the premises were occupied by him. The said appellant clearly replied to the averments made in the eviction petition and accepted that he was the tenant and was living in the premises along with his family. Similarly, the position is not denied in his own statement recorded as R.W.1. In the above background the conduct of appellant No.2 cannot be held to be bona fide and even in the present proceedings he has been contesting the same as it is conceded by the learned counsel for the appellant that he will be the ultimate beneficiary if this appeal is accepted. There is no challenge to the findings by appellant No.2 and the learned counsel has only confined his relief qua appellant No.1. The facts, accordingly, establish that appellant No.2 was admittedly accepted as a tenant after the death of his father and in the absence of any collusion or mala fide on his part to defend the case and conflict of interest between himself and the respondent-landlord, the plea of appellant No.1 to be imp leaded as a party at a belated stage before the Tribunal could not have been entertained and her application, as a consequence, was correctly dismissed. It is held by this Court in the judgment as reported in Mohd. Usman (supra) that a decree for eviction is binding against all the heirs even when one of the heirs is not imp leaded as a party. The judgments cited by the learned counsel for the appellants will be, therefore, of no application to the present case.
(10) The Second Appeal does not raise any substantial question of law which will call for interference by this Court. The only question involved is, as to whether, the legal heirs of the deceased- tenant surrendered their tenancy rights and the landlord had created fresh tenancy in the premises in favour of appellant No.2. The Rent Controller as well as the Tribunal have concurrently held that there was implied surrender of tenancy by the other heirs of the deceased-tenant in favour of appellant No.2 who alone became the tenant in the disputed premises. This, in deed, is not a substantial question of law which will call for interference. The appeal, as a consequence, is dismissed. There will be no order as to costs.