Delhi District Court
Smt. Shakuntala Gupta vs Sh. Sardari Lal on 26 October, 2012
//1//
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL)
TIS HAZARI COURT, DELHI.
E-228/09
Smt. Shakuntala Gupta
W/o Sh. O.N Gupta
R/o 4647/21, Darya Ganj,
New Delhi
Through her General Attorney
Sh. Anil Prasad Aggarwal
S/o Sh. Moti Ram
R/o 3338, Kucha Kashgari, Bazar Sita Ram
Delhi-110006 ...Petitioner
Vs.
1. Sh. Sardari Lal
2. Sh. Murari Lal
3. Sh. Prakash Chand
(Since deceased) Now represented by :-
1. Sh. Sachin
S/o Sh. Parkash Chand
2. Ms. Poonam
D/o Sh. Parkash Chand
3. Ms. Rekha
D/o Sh. Parkash Chand
4. Ms. Makta
D/o Sh. Parkash Chand
5. Ms. Chhaya
D/o Sh. Parkash Chand
6. Ms. Meenu
D/o Sh. Parkash Chand
All C/o 3346, First Floor, Kucha Kashgari, Bazar Sita Ram,
Delhi-06, Having passage adjacent to property no. 3430,
Gali Bajrang Bali, Bazar Sita Ram, Delhi-06 ...Respondents.
Petition u/s 14 (1) (b) (d) & (j) of Delhi Rent Control Act
1. Date of institution of the case : 22.08.2008
2. Date of Judgment Reserved : 15.10.2012.
3. Date of Judgment pronounced : 26.10.2012
//2//
JUDGMENT
1. The brief facts of the case are that the present petition U/s 14 (1)(b), (d) and (j) of DRC Act was filed by the petitioner stating that the property no. 3346, Kucha Kashgari, Bazar Sita Ram, Delhi was owned by Sh. Moti Ram, who expired and a decree for partition was passed by the Hon'ble High Court of Delhi and the said property fell to the share of the petitioner. One room, one tin shed, one Courtyard, latrine, store, small store situated on the first floor in the above said property as shown in red colour in site plan was let out to the respondent namely Sh. Sardari Lal by the previous owner for residential purposes. The respondent became tenant of the petitioner by operation of law after the purchase of property by the predecessor of the petitioner in a public auction. The property was earlier owned by the Custodian of Evacuee Property. The rent of suit premises is Rs. 28/- per month as standard rent was fixed w.e.f 31.07.1964 by Sh. Amarjeet Chopra, the then, Ld. ARC in suit no, 153/63 tittled Moti Ram Vs. Sardari Lal. It is further stated that the respondent has inducted Sh. Murari Lal as sub tenant, who is paying Rs.500/- per month to the respondent as rent. It is further stated that neither the respondent nor any member of his family is in occupation of the suit premises for the last more than six months and as such the respondent is liable to eviction. It is further stated that the respondent had raised unauthorized construction of a room on the second floor without the consent in writing of the petitioner or of the predecessor of the petitioner and it has caused substantial damage to the suit premises. The suit premises is situated in Slum Area and the permission from the Competent Authority, Slum was obtained on 31.08.2008.
2. The notice of the present petition was issued to the respondent which //3// returned unserved. The petitioner had moved an application U/o 1 rule 10 r/w order 6 rule 17 and Section 151 CPC stating that as per process report the respondent had expired but the petitioner could not ascertain the death of the respondent. The respondent namely Sh. Sardari Lal sub-let the suit premises to two sub tenants namely Murari Lal and Prakash Chand and they may kindly be impleaded as sub tenants. The said application U/o 1 rule 10 r/w order 6 rule 17 and Section 151 CPC was allowed vide order dated 03.03.2009. Amended petition was filed stating that the respondent Sh. Sardari Lal sublet the suit premises to Sh. Murali Lal and Sh. Prakash Chand, who are living in the suit premises alongwith their families as subtenants. The fresh notices of the amended petition was issued to respondents. Written statement was filed on behalf of respondent no.2 namely Sh. Murari Lal. Respondent no.3 namely Sh. Prem Prakash adopted the written statement filed by respondent no.2. The name of respondent no.3 was corrected as Sh. Prem Prakash on the request of counsel for the petitioner vide order dated 27.05.2009 when respondent no.3 stated that his name is Prem Prakash and not Prakash Chand.
3. It is stated in the written statement of the respondent no.2 that the present petition was filed in respect of premises bearing no. 3346 Kuch Kashgari, Bazar Sita Ram Delhi while the site plan filed referring the portion of the property no. 3430, Gali Bajrang Wali, Chawri Bazar, Delhi. It is further stated that the suit no. 153/1963 pertains to property no. 3346, Kuch Kashgari, Bazar Sita Ram Delhi and not the premises in dispute. It is further stated that in suit no. 185/81 Sh. Sardari Lal was shown as defendant no. 5 who died during the pendency of said suit on 05.06.1992 but none of his legal heir impleaded as a party in the said suit. The judgment was passed in said suit on 26.04.1995 after the expiry of Sh. Sardari Lal. It is further stated that //4// the permission for Competent Authority, Slum was obtained against dead person therefore, the present petition is not maintainable. It is further stated that the respondent no.2 was neither a tenant under Sh. Moti Ram nor under the petitioner. The respondent no.2 is direct tenant under the Ministry of Labour and Rehabilitation, Department of Rehabilitation (Settlement Wing) Evacuee property, @ Rs. 4.50/- per month. Rent receipt dated 07.09.2001 was issued to the respondent no.2 in respect of premises no. IX/ 3430-31, Gali Bajranj Bali Chawri Bazar, Delhi. It is further stated that the respondent no.2 is residing in his own right in property no. IX/ 3430-31, Gali Bajranj Bali Chawri Bazar, Delhi and has not carried out any unauthorized construction of a room. All other averments made in the petition were denied.
4. Replication to the written statement was filed by the petitioner. The averments made in the written statement were denied and controverted and the averment made in the petition were reaffirmed and reiterated.
Ld. Counsel for the petitioner relied upon the following rulings:-
i) South Asia Industries Pvt Ld. Vs. S. Anup Singh & Ors., DLT 1966, 149
ii) Karuppaswamy & Ors Vs. C. Ramamurthy AIR 1993, SC 2324.
Ld. Counsel for the respondent relied upon the following rulings:-
i) A.V Papayya Sastry & Ors Vs. Government of A.P & Ors. AIR 2007 SC 1547.
ii) East and Apartments Co-operative Group Housing Society Vs. Delhi Development Authority & Anr. 157 (2009) DLT 272 (DB)
5. Argument heard. Record perused and considered.
6. In order to prove his case the petitioner has examined Sh. Anil Prasad as PW-1 and his evidence by way of affidavit Ex. P-A
7. The documents exhibited in the evidence of PW-1 are the photocopy of GPA Ex. P-1 (OSR), site plan Ex. P-2, order of the Ld. ARC in standard rent //5// case is Ex. P-3, certified copy of the judgment and decree of the court of Sh. Brijesh Sethi, the then Sub-Judge, Delhi Ex. P-4 and P-5 respectively. Certified copy of the judgment and decree of Hon'ble High Court of Delhi Ex. P-6 collectively and certified copy of slum permission is Ex. P-7.
8. On the other hand respondent no.2 has examined himself as RW-1 and his evidence by way of affidavit Ex. RW-1/A and one Sh. Nagender Shah, UDC from EP cell, Govt. of NCT of Delhi, Land and Building Department as RW-2.
9. The documents exhibited in the evidence of respondent are the photocopy of the rent receipt dated 07.09.2001 Ex. RW-1/1 and the photocopy of the death certificate Ex. RW-1/2.
Grounds U/s 14 (1) (b) of DRC Act
10. PW-1 deposed that he is General Attorney of the petitioner and also brother of the petitioner. Before the demise of his father Sh. Moti Ram, he had been looking after the suit premises on behalf of Moti Ram and after the demise of Sh. Moti Ram, on behalf of the petitioner. PW-1 further deposed that he is conversant with the facts of the present case and deposing only on his personal knowledge. PW-1 further deposed that Sh. Sardari Lal was a tenant in respect of one room, one tin shed, courtyard latrine, store, small store situated on the first floor as shown in red colour in site plan Ex P-2. A petition was filed by Sh. Moti Ram against Sh. Sardari Lal for fixation of standard rent and rent was fixed Rs. 28 per month by Sh. Amarjeet Chopra, the then ARC, Delhi in respect of suit premises vide order Ex P-3. Sh. Sardari Lal and others were occupying the property no. 3346, Kucha Kashgari, Bazar Sita Ram Delhi who took up the objection that the property in their possession was not part of property no. 3346 Kucha Kashgari, Bazar Sita Ram Delhi and //6// as such Sh. Moti Ram filed a suit for declaration against Union of India, Custodian of Evacuee Property and Sh. Sardari Lal as party. The said suit was decreed by the court of Sh. Brijesh Seth, the then Sub Judge, first class, Delhi vide order Ex P-4 and decree sheet Ex P-5. PW-1 further deposed that Sh. Moti ram expired on 30.03.1984 leaving behind several LRs and in the suit for partition filed by Sh. Amba Prashad Aggarwal in the High Court of Delhi, a decree was passed in which the property no, 3346, Kucha Kashgari, Bazar Sita Ram Delhi came to the share of the petitioner. The certified copy of judgment and decree collectively Ex P-6 passed by Hon'ble High Court of Delhi. PW-1 further deposed that respondent no.1 had inducted the respondent no.2 and 3 in the suit premises unauthorizedly without obtaining any consent in writing of Sh Moti Ram and after his demise of any of his heirs. The respondent no.1 sublet, assigned, or otherwise parted with the possession of the suit premises. PW-1 further deposed that the petitioner was not aware about the death of Sardari Lal at any time and as such filed the petition for grant of Slum permission against Sh. Sardari Lal which was allowed. The petitioner came to know about the death of Sh. Sardari Lal for the first time when the process server report came to the effect of death of Sardari Lal.
11. PW-1 deposed in his cross examination that he had no knowledge that Sardari Lal expired on 05.06.1992. The disputed premises is just about 100 meters from his residence and is about 20 ft from the roof of his residence. He did not try to find about the whereabouts of Sardari Lal. PW-1 denied that the Judgment Ex P-4 is not binding on Sardari Lal as he died prior to 26.04.1995 about three years back. PW-1 voluntarily deposed that Sardari Lal was ex- parte and nobody informed about his death and he was a proforma defendant in said suit. Sardari Lal was not personally served in the proceeding before //7// Slum Authority. PW-1 denied that respondent no.2 and 3 are tenants under the Ministry of Rehabilitation @ Rs. 4.50 per month in the property no. IX/ 3430, Gali Bajrang Bali, Chawri Bazar Delhi.
12. RW-1 deposed that the present petition was filed in respect of premises bearing no. 3346 Kucha Kashgari, Bazar Sita Ram, Delhi while the site plan filed referring the portion of the property no. 3430, Gali Bajrang Wali, Chawri Bazar, Delhi. RW-1 further deposed that the suit no. 153/1963 pertains to property no. 3346, Kuch Kashgari, Bazar Sita Ram Delhi and not the premises in dispute. It is further stated that in suit no. 185/81 Sh. Sardari Lal was shown as defendant no. 5 who died during the pendency of said suit on 05.06.1992 but none of his legal heir was impleaded as a party in the said suit. The judgment was passed in said suit on 26.04.1995 after the expiry of Sh. Sardari Lal. It is further stated that the permission for Competent Authority, Slum was obtained against dead person therefore, the present petition is not maintainable. It is further stated that the respondent no.2 was neither a tenant under Sh. Moti Ram nor under the petitioner. The respondent no.2 is direct tenant under the Ministry Labour and Rehabilitation, Department of Rehabilitation (Settlement Wing) Evacuee property, @ Rs. 4.50/- per month. Rent receipt dated 07.09.2001 Ex RW-1/1 was issued to the respondent no.2 in respect of premises no. IX/ 3430-31, Gali Bajranj Bali Chawri Bazar, Delhi. It is further stated that the respondent no.2 is residing in his own right in property no. IX/ 3430-31, Gali Bajranj Bali Chawri Bazar, Delhi and has not carried out any unauthorized construction of a room.
13. RW-1 deposed in his cross examination that they were living in the suit premises since 1986. He came in possession of the suit premises in the year 1986 as he was having contact with Sardari Lal. Prior to the year 1986, Sh. Sardari Lal, respondent no.1, was occupying the suit premises. RW-1 //8// admitted that Sardari Lal was tenant in respect of suit premises prior to his occupation of the same. Sh. Sardari Lal was residing in the suit premises since 1947. RW-1 was further admitted that Sh. Sardari Lal was a tenant under the Custodian of evacuee Property. RW-1 further deposed that he did not know if Moti Ram had filed Standard Rent petition against Sardari Lal in respect of suit premises. RW-1 denied that Moti Ram purchased the suit premises from Custodian in 1961 in auction sale. RW-1 further admitted that Sardari lal alleged that the suit premises was part of property no. 3430, 3431 and not 3346. RW-1 further deposed that he did not know if Moti Ram had filed a suit for declaration against Custodian of Evacuee Property to declare the suit premise as part of property no. 3346, Kucha Kashgari, Bazar Sita Ram, Delhi which was sold to Moti Ram. RW-1 deposed that he could not tell the name of the sons, father of Sh. Sardari Lal. RW-1 further deposed that he had paid the amount to the Custodian between 1996-98 but had not brought the said receipts with him that day. RW-1 admitted on the ground floor of the suit premises one Smt. Bina was residing. RW-1 further admitted that the petitioner got possession of the ground floor portion recently in an eviction petition passed by the court. RW-1 further deposed that he did not know that the property no. 3346, Kucha Kashgari, Bazar Sita Ram, Delhi came to the share of petitioner in a partition decree passed by Hon'ble High Court of Delhi.
14. RW-2 deposed that he had seen the original receipt Ex RW-1/1 which was issued from their office to Sh. Murari Lal. He had brought the carbon copy of the same in the court. RW-1 further deposed that he had brought the original plan in respect of property no. IX/ 3430-31, (new). This plan pertained to the property situated in Gali Murge Wali and Gali Kashgari but he had no knowledge about the plan. RW-2 further deposed that he could not say referring to the site plan where the property of Murali Lal situated however, he //9// used to charge the rent from Murari Lal in respect of premises situated in property no. IX/3430, Gali Bajranj Bali. RW-2 deposed in his cross examination that he had no knowledge if the certified copy of plan filed in suit titled Moti Ram Vs. Union of India was placed on the file brought by him though the same was there in the file. The plan which he brought was the handmade drawing of property no. IX/3342-46 and 3430-31 (new) 2243-46 and 2289 (old) Gali Kashgari and Gali Murge Wali, Bazar Sita Ram Delhi. RW-2 further deposed that he could not tell which portion on the site plan was property no. 3342-46 and which portion 3430-31. He had no knowledge since when Murarli Lal was tenant in the said premises. RW-2 admitted that the judgment and plaint of suit titled Moti Ram Vs. Union of India was placed on the file brought by him. There was no order of Competent Officer in the file brought by him to show that Murari Lal was accepted as a tenant in place of Sh. Sardari Lal.
15. As the present petition is also u/s 14 (1) (b) of DRC Act, therefore, in order to succeed, the petitioner has to prove that the respondent no.1 was a tenant under him in the suit premises and the respondent no.1 had sublet, assigned or otherwise parted with the possession of the suit premises respondents no.2 and 3. From the deposition of PW-1 and the documents i.e order passed by Sh. Amarjit Chopra, the then ARC, Delhi Ex. P-3, the judgment passed by Sh. Brijesh Sethi, the then Sub Judge, Delhi Ex. P-4 and the certified copy of the judgment/settlement arrived between the legal heirs of Late Sh. Moti Ram Ex. P-6 proved that petitioner is landlord/owner of the suit premises. The contention of the respondents that present petition was filed in respect of premises bearing no. 3346, Kucha Kashgari, Bazar Sita Ram, Delhi but the site plan filed referring the portion of property bearing no. 3430, Gali Bajrang Wali, Chawri Bazar, Delhi has no substance, as RW-2 a //10// summoned witness from EP Cell, Govt. of NCT of Delhi, Land and Building Department deposed that the plan which was brought by him is of the property bearing no. 9/3342-46 and 3430-31, Gali Kashgari and Murgewali, Bazar Sita Ram, Delhi. RW-2 also admitted that the judgment and the plaint of suit titled Moti Ram Vs. Union of India Ex. P-4 was also lying in his file brought by him. RW-2 further deposed that there was no order of Competent Officer, in the file brought by him, to show that Murari Lal was accepted as a tenant in place of Sh. Sardari Lal. The respondent no.2 has admitted that before his occupation in the suit premises, Sh. Sardari Lal, the respondent no. 1 was a tenant in it since 1947 and the respondent no.2 came in possession of the suit premises in the year 1986 as he was having contact with Sh. Sardari Lal. The copy of judgment passed by Sh. Brijesh Sethi, the then Sub Judge Delhi, shows the residential address of Sh. Sardari Lal as 3346, Kucha Kashgari, Bazar Sita Ram, Delhi. Thus, it is established that the premises in which Sh. Sardari Lal was tenant and later on came in possession of respondent no. 2 and 3 is bearing no. 3346, Kucha Kashgari, Bazar Sita Ram, Delhi and it further established that respondent no.1 Sh. Sardari Lal, became tenant of the petitioner by the operation of law.
16. Ld. Counsel for the respondent argued that the respondent no. 2 was a tenant under the Ministry of Labour and Rehabilitation at a monthly rent of Rs. 4.50/- and even the rent receipt dated 07.09.2001 Ex. RW-1/1 was issued in his favour by the said department. Ld. Counsel further argued that when the present petition was filed, the respondent no. 1 was no more as he had already expired in the year 1992, therefore, the present petition against a dead person is not maintainable. Ld. Counsel for the respondent further submitted that even the petitioner filed a petition u/s 19 of Slum Act against the respondent no. 1 when he was no more, therefore, the petitioner obtained //11// the order from the Competent Authority (slum) by playing fraud. On the other hand, Ld. Counsel for the petitioner argued that the receipt Ex. RW-1/1 is not a rent receipt and the same was obtained by the respondent no. 2 in collusion with the official of Ministry of Labour and Rehabilitation. Ld. Counsel further submitted that it was not in the knowledge of the petitioner that respondent no. 1, Sh. Sardari Lal, expired in the year 1992 and the petitioner came to know only when the process in the present petition returned with report that respondent expired. Ld. Counsel further submitted that as the original tenant Sh. Sardari Lal expired living behind no legal heirs, therefore, there was no need to take any permission from the Competent Authority (slum) as a permission is only required against a tenant and not sub tenant. The contention of the Ld. Counsel of the respondent that the petition u/s 19 of Slum Act was filed against dead person, therefore, it was not maintainable has no substance, firstly because it is well settled law that petition u/s 19 of Slum Act is filed only against a tenant or the legal heirs of tenant, if any, but in the case in hand it is the case of respondent no. 2 and 3 itself that Sardari Lal expired in the year 1992. No one has come forward to claim the legal heirs of Sh. Sardari Lal, therefore, I am of the considered view that there was no need to take any slum permission u/s 19 of Slum Act before filing the present eviction petition. So far the present petition is concerned, as the petitioner after coming to know that original tenant Sardari Lal expired, moved an application u/o 1 rule 10 CPC r/w order 6 rule 17 CPC to implead the respondent no. 2 and 3 and the said application was allowed vide order dated 27.05.2009 by the Ld. Predecessor of this court. The respondent no. 2 and 3 never challenged the said order in any higher court. Therefore, said order became final. Ld. Counsel for the respondent further argued that the present petition cannot be continued in the absence of original tenant on the ground of //12// subletting against the sub tenants, therefore, the same is liable to be dismissed. I do not find any substance in this contention because it was held by the Hon'ble Supreme Court in South Asia Industries Pvt Ld. Vs. S. Anup Singh & Ors., DLT 1966, 149 that "where tenant became extinct without leaving any successor on whom tenancy devolves an order can be made against a person who took an assignment of the lease from the tenant. Orders for ejectment against all persons in occupation must have been contemplated so that the landlord without further trouble recovers possession."
17 It is not in dispute that respondent no. 2 and 3 are in exclusive possession of the suit premises since 1986 as admitted by RW-1 in his cross examination. The respondent no. 2 and 3 failed to bring anything on record to show that they were put in possession of the suit premises by the Ministry of Labour and Rehabilitation in the year 1986. If respondents no.2 and 3 are tenants under the Ministry of Labour and Rehabilitation since 1986 then why did they produce only one receipt dated 07.09.2001 Ex RW1/1. Where are the other receipts. Thus, the presence of respondent no. 2 and 3 itself proves that the suit premises was sublet, assigned or otherwise parted with by respondent no. 1 to respondent no. 2 and 3 without the consent in writing of the predecessor of the petitioner or of the petitioner. The ruling relied upon by Ld. Counsel for the respondents no.2 and 3 are not applicable to the facts of present case. Hence, the present petition u/s 14 (1) (b) of DRC Act is allowed.
Ground U/s 14 (1) (d) of DRC Act
18. PW-1 categorically deposed that suit premises was let out to respondent no.1 for residential purposes but neither the respondent no.1 nor //13// any member of his family was in occupation of the suit premises for the last more than six months immediately before filing of the present petition. According to respondent no.2 & 3, respondent no.1 expired in 1992 and respondent no. 2 & 3 are in possession of suit premises since 1986. It is already proved as discussed above that respondent no.1 sub let the suit premises to respondents no. 2 and 3. Thus, it is established that the suit premises was let out for residential purpose but neither the respondent no.1 nor any member of his family has been residing in suit premises for the last more than six months immediately before the filing of present petition. Hence the ingredients of Section 14 (1) (d) of DRC Act are fulfilled and the petition U/s 14 (1) (d) is allowed.
Ground U/s 14 (1) (j) of DRC Act.
19. PW-1 deposed that respondents have raised construction of one room on the second floor without the permission of the petitioner or his predecessor. But PW-1 not deposed when the said room was constructed by the respondent. According to the petitioner herself when the suit premises was purchased by her predecessor in 1961 in sale auction the respondent no. 1 was already a tenant. There is nothing on record to show that the room on second floor was constructed after 1961. I am of the considered view that in the absence of evidence it cannot be held that respondent no.1 or respondents no.2 & 3 had constructed room on the second floor. Hence, the ingredients of Section 14 (1) (j) of DRC Act are not fulfilled therefore, petition U/s 14 (1) (j) of DRC Act is dismissed.
20. The net result of the petition is that the present petition is allowed U/s 14 (1) (b) and (d) of DRC Act and dismissed U/s 14 (1) (j) of DRC Act. An eviction order is passed against the respondents U/s 14 (1) (b) and (d) of //14// DRC Act in respect of one room, one tin shed, one Courtyard, latrine, store, small store situated on the first floor in the property no. 3346, Kucha Kashgari, Bazar Sita Ram, Delhi property as shown in red colour in site plan Ex P-2 File be consigned to Record Room.
(Announced in the open court on 26.10.2012) Pritam Singh ARC/Central/Delhi Tis Hazari Court //15// E- 228/09 26.10.2012 Present: Respondent in person.
Vide a separate order dated 26.10.2012 the petition U/s 14 (1) (b) & (d) of DRC Act is allowed in favour of the petitioner and against the respondents and the petition u/s 14 (1) (j) is dismissed.
File be consigned to Record Room.
Pritam Singh ARC/Central/Delhi Tis Hazari Court 26.10.2012