Delhi District Court
Sh. Yash Pal Mehta vs Kartar Singh on 3 June, 2019
IN THE COURT OF SH. SANDEEP GARG,
ADDITIONAL DISTRICT JUDGE 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
RCA No.05/17
Sh. Yash Pal Mehta
S/o Late Sh. Narain Das Mehta
R/o WZ1409, D3,
Bhoop Singh, Nangal Raya Village,
Opp. DDA Complex, Delhi64
...Appellant
Versus
1. Kartar Singh
S/o Lt. Sh. Jag Ram
R/o WZ1264, Nangal Raya Village,
Delhi
2. Shakuntala Devi
W/o Lt. Sh. Radhe Krishanan
R/o WZ32 A, Gali no.3,
Sagarpur, New Delhi
....Respondents
Appeal presented on : 28.01.2017
Arguments concluded on : 30.05.2019
Judgment pronounced on : 03.06.2019
JUDGMENT
1. The present appeal is directed against judgment and decree dated 02.12.2016 passed by the Court of Sh. Sandeep Gupta, Ld. Civil Judge02, West District, Tis Hazari Courts, Delhi in CS No. 609010/16 instituted by the appellant herein seeking a decree for permanent injunction against the respondents herein. As per record, the plaintiff/appellant had RCA No. 0517 Page no. 1 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
averred that he has been residing at WZ208, Village Nangal Raya, Delhi 110064 along with his family members. In the year 1995, his father was inducted as a tenant by defendant/respondent no.1 in the aforementioned property, comprising of two rooms, kitchen, bathroom, toilet in rear side and one shop on the front side (hereinafter referred to as the suit property). The tenanted portion is shown in red color in the site plan appended with the plaint. Initially the rate of rent was Rs. 79/ per month, excluding water and electricity charges. However, the rate of rent was enhanced from time to time and at the time of institution of the suit, the rate of rent was Rs. 200/ per month. It is pertinent to mention that the rent was composite, both in respect of residential and commercial portions.
2. It was averred that the tenancy was oral between father of plaintiff/appellant and respondent/defendant no.1. An electricity meter is installed in the shop in the name of father of the plaintiff. Initially, the father of plaintiff was carrying on business of ghee. However, subsequently, he carried on the business from the shop, as a cloth merchant. The plaintiff has been residing in rear portion of the suit property since his birth. The father of the plaintiff expired on 07.12.1979, when the plaintiff was only 12 years old. After the death of his father, the elder brother of the plaintiff with Sh. Radha Krishan took over the business of deceased father. The plaintiff started assisting his elder brother in the said business. The plaintiff and other family members kept on residing in the rear portion and carried on business activities jointly from the shop situated in the front. No objection was ever raised by defendant/respondent no.1. Thus, the plaintiff had become a joint tenant in respect of the suit property.
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3. Rent receipts were issued by defendant no.1 in the name of elder brother of the plaintiff as plaintiff was minor at the time of death of his father. The family business was being carried out jointly from the shop situated on the front side of the suit property, by plaintiff and his elder brother. After the marriage of elder brother of the plaintiff, need for more accommodation had arisen and therefore, the elder brother of the plaintiff and his wife (defendant no.2) had shifted their residence to # 32A, Street No.3, Sagarpur, New Delhi. However, the business continued to be joint. The plaintiff had been continuously residing in the suit property since his birth. Copies of ration card, voter Icard, telephone bill and aadhaar cards of the plaintiff and his family members have been appended along with the plaint. The elder brother of plaintiff expired in the year 2010 after which, his widow/defendant no.2 started looking after the joint business. Defendant no.2 changed the nature of business of cloth merchant to readymade garments which was being carried on under the name & style of M/s. Himani Garments.
4. It was averred by the plaintiff/appellant that the tenancy of the suit property remained joint. Rent is being tendered regularly, but due to ulterior motives, defendant no.1 had stopped accepting rent tendered by the plaintiff/defendant no.2 through money order. Lastly, the rent of the suit property was tendered to defendant no.1 by way of money order on 12.09.2012. The receipts of money orders are in possession of defendant no.2, who has refused to give copies of the same to the plaintiff. Defendant no.2 has developed malafide intention. The numbers of money order receipts are 029667120912013772 & 029667120912013773 both dated 12.09.2012. On 10.09.2012, defendant no.1 personally visited the suit property. However, he did not contact the plaintiff. When the plaintiff went to his residence in the RCA No. 0517 Page no. 3 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
evening, his wife informed him that defendant no.2 had come to the house and negotiated with defendant no.1. Thereafter, defendant no.2 informed wife of the plaintiff that defendant no.1 had threatened to dispossess the plaintiff and defendant no.2, if they do not vacate the tenanted premises by the end of September, 2012.
5. It was averred by the plaintiff that defendant no.2 told wife of the plaintiff that she was willing to hand over possession of the shop situated in the front side to defendant no.1 as she did not want any confrontation with defendant no.1. Defendant no.2 told the wife of plaintiff that defendant no.1 is criminal by disposition and can take law in his own hands. The plaintiff should contribute so that arrears of rent may be sent to defendant no.1. Accordingly, the plaintiff had given Rs. 3500/ to defendant no.2 for transmitting the same to defendant no.1. Thereafter, entire arrears of rent were sent to defendant no.1 vide moneyorder, as aforementioned. Defendant no.2 has refused to hand over moneyorder receipts to the plaintiff. She had also expressed her willingness to hand over possession of the shop to defendant no.2. All these developments had taken place after negotiations were held between defendant no.1 and defendant no.2 on 10.09.2012 which establish their collusion.
6. It was averred that in case, defendant no.2 succeeds in her malafide design, the plaintiff will be deprived of his tenancy rights in the shop comprising part of the suit property. After arrears of rent were sent to defendant no.1 through moneyorder, he had got annoyed and he came to the suit property along with his son and henchmen on 14.09.2012. Defendant no.1 extended threats of dire consequences to the plaintiff and had asked the RCA No. 0517 Page no. 4 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
plaintiff to hand over possession of the shop and residential portion forming part of the suit property, failing which, possession of the same will be taken by force. Defendant no.1 claimed influence over local police and politicians. The plaintiff prayed for a decree of permanent injunction against both the defendants, their servants, agents, etc. from dispossessing the plaintiff forcibly and from parting with possession of the shop respectively.
7. Initially, both the defendants were proceeded exparte vide order dated 26.09.2012. An application under Order 9 Rule 7 CPC was filed on behalf of defendant no.1 on 20.12.2014 which was allowed vide order dated 27.08.2015 and order proceeding defendant no.1 as exparte was setaside. Defendant no.1 filed his written statement wherein preliminary objections were taken that the suit is not maintainable in its present form as no relief of declaration was sought by the plaintiff. The suit is barred under Section 34 of Specific Relief Act.
8. It was averred by defendant no.1 that the plaintiff was a joint tenant in the suit property and an eviction petition under Section 14(1) (b) &
(e) of the Delhi Rent Control Act had already been instituted against defendant no.2. An eviction order was passed against defendant no.2 on 24.07.2013 and possession of the entire tenanted premises was taken over on 24.03.2014. Therefore, the suit had already become infructuous. Even otherwise, the plaintiff had surrendered his tenancy rights as not even a single penny was ever paid by him. The initial rate of rent was Rs. 59 per month, excluding electricity and water charges. The last rate of rent paid by defendant no.2 was Rs. 300/ per month, excluding electricity and water charges.
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9. It was averred by defendant no.1 that electricity meter was installed in the name of brother of plaintiff, who had become tenant after the demise of father of the plaintiff. After the death of brother of the plaintiff, defendant no.2 had become tenant and plaintiff had impliedly surrendered his tenancy by his conduct and on account of nonpayment of rent. It was denied that plaintiff had ever helped his elder brother Sh. Radhey Kishan in his business. It was denied that plaintiff and his family members had kept on residing in the rear portion of the suit property and continued with business activities from the shop situated in the front.
10. It was averred by defendant no.1 that the plaintiff had never paid any rent to defendant no.1. It was denied that the business had remained joint even after elder brother of plaintiff had shifted his residence from the suit property. It was denied that rent of the suit property was sent to defendant no.1 by way of moneyorder on 12.09.2012 and moneyorder receipts are in possession of defendant no.2. It was denied that on 10.09.2012 and 14.09.2012, defendant no.1 had gone to the suit property and threatened to dispossess the plaintiff and defendant no.2. The plaint does not disclose any cause of action and the same deserves to be rejected under Order 7 Rule 11 CPC with costs.
11. The plaintiff had filed a replication to the written statement filed on behalf of defendant/respondent no.1 and had reiterated and reaffirmed the averments made in his plaint.
12. Vide order dated 15.03.2016, the following issues were framed by the Ld. Trial Court:
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i) Whether the suit is not maintainable in the present form and nature ? OPP
ii) Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP
iii) Relief.
13. Issue No.1 was treated to be a preliminary issue and after hearing arguments advanced on behalf of plaintiff and defendant no.1, the impugned order dated 02.12.2016 was passed by the Ld. Trial Court, whereby the suit was dismissed holding it to be not maintainable.
14. It has been emphatically contended by Ld. Counsel for appellant that both the respondents had hatched a conspiracy whereby they conspired to dispossess the appellant from the suit property illegally. The Ld. Trial Court failed to take into account the material fact that at the time of institution of the suit, the appellant was in possession of the suit property. Defendant/respondent no.1 had instituted an eviction petition on the ground of subletting in which, he had referred to the appellant being a subtenant. Therefore, it was established that the appellant was in possession of the suit property, as on the date of filing of the eviction petition and he was dispossessed pursuant to an eviction order which was obtained by playing fraud upon the Court of Ld. ARC (West). The appellant could have been allowed to amend his suit taking into account the subsequent events. As a matter of fact, a family partition had taken place between husband of defendant/respondent no.2 and the appellant whereby the tenanted premises was given to the appellant. Therefore, the judgment and decree dated 02.12.2016 passed the Ld. Trial Court is liable to setaside and the suit of the RCA No. 0517 Page no. 7 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
plaintiff/appellant deserves to be decreed. Reliance is placed upon judgment delivered by Hon'ble Supreme Court of India in the case of Suresh Kumar Kohli Vs. Rakesh Jain & Anr., SLP No. 5489/2014, decided on 19.04.2018.
15. Per contra, it has been emphatically contended on behalf of respondent no.1 that the appellant has concealed material facts from this Court. An application under Order 39 Rule 2A CPC was filed by the appellant. Vide order dated 29.10.2014 passed by the Ld. Trial Court, defendant/respondent no.1 was directed to restore possession of the suit property (excluding shop) to the appellant within one month. Respondent no.1 had preferred an appeal against the said order. Vide its order dated 12.12.2014, the Ld. Appellate Court of Ms. Kiran Gupta, Ld. Senior Civil Judge, New Delhi District, had setaside order dated 29.10.2014 passed by the Ld. Trial Court. It was observed by the Ld. Appellate Court that possession of the suit property was taken by defendant/respondent no.1 pursuant to an eviction order passed under Section 14(1) (e) of the Delhi Rent Control Act i.e. by following due process of law. The tenancy was a joint tenancy, which was surrendered by the appellant as he had never paid any rent to defendant /respondent no.1. The appellant had assailed order dated 12.12.2014 passed by the Ld. Appellate Court. The said order was upheld and confirmed by Hon'ble High Court of Delhi vide order dated 02.08.2016 passed in CM (M) No. 196/2015.
16. Thereafter, the Ld. Trial Court had framed a preliminary issue as to whether the suit is not maintainable in the present form and nature. The plaintiff/appellant ought to have sought relief of declaration qua his rights. The Ld. Trial Court had rightly dismissed the suit of the plaintiff, being infructuous RCA No. 0517 Page no. 8 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
and decided the preliminary issue in favor of respondent/defendant no.1. The joint tenancy of appellant had stood surrendered after the death of his father as rent was being paid only by his elder brother. Rent receipts were being issued only in the name of elder brother of the appellant. After the death of elder brother of the appellant, his sisterinlaw/defendant no.2 started paying the rent to respondent/defendant no.1. Moreover, the appellant had never assisted his elder brother in any kind of business.
17. It has been emphatically contended on behalf of respondent no.1 that the appellant and defendant/respondent no.2 had challenged eviction order passed against respondent/defendant no.2 before Hon'ble High Court of Delhi. The appellant had also filed objections in the execution petition which are pending in the Court of Ld. ACJcumARC, West District, Tis Hazari Courts, Delhi. As a matter of fact, the suit, in which the present appeal has arisen, was instituted by the plaintiff/appellant in collusion with defendant/respondent no.2. Defendant/respondent no.1 was never served in this suit and only notice of contempt petition was received by him, after which, he had contested the contempt petition and the suit. It is well settled proposition of law that joint tenant has no right as a cotenant. The appeal is devoid of any merits and the same deserves to be dismissed with exemplary costs.
18. The Court has heard Dr. Shivji Yadav, Ld. Counsel for appellant and Sh. Mohd. Sarfaraz, Ld. Counsel for the respondent no.1 and has perused the record with their able assistance.
19. It is the case of appellant himself that he had become joint tenant RCA No. 0517 Page no. 9 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
of the suit property along with defendant/respondent no.2. It is not in dispute that eviction order was passed against defendant/respondent no.2 by the Court of Ld. ACJcumARC (West) in Eviction Petition bearing no. E34/13 titled as Sh. Kartar Singh Vs. Smt. Shakuntala Devi on 24.07.2013 pursuant to which, the appellant and defendant/respondent no.2 were evicted on 24.03.2014. It is pertinent to mention that in the aforementioned eviction petition, it was averred by the defendant/respondent no.1 herein that defendant/respondent no.2 had sublet/parted with possession of the suit property to the appellant herein. Admittedly, vide order dated 29.10.2014 passed by the Ld. Trial Court, on application under Order 39 Rule 2A CPC filed by the appellant herein, defendant/respondent no.1 was directed to restore possession of the suit property to the appellant. The said order dated 29.10.2014 was assailed by defendant/respondent no.1 before the Appellate Court of Ld. Senior Civil Judge, New Delhi District. The Appellate Court of Ms. Kiran Gupta, Ld. Senior Civil Judge, New Delhi District, had vide its order dated 12.12.2014 setaside order dated 29.10.2014 passed by the Ld. Trial Court.
20. Order dated 12.12.2014 passed by the Ld. Appellate Court was assailed by the appellant herein before Hon'ble High Court. Vide order dated 02.08.2016, passed by the Hon'ble High Court in CM (M) No. 196/2015, order dated 12.12.2014 passed by the Ld. Appellate Court was upheld. The appellant herein preferred not to assail order dated 02.08.2016 before a higher forum and therefore, order dated 02.08.2016 whereby order dated 12.12.2014 passed by the Ld. Appellate Court was upheld, had attained finality. Admittedly, the appellant had only sought relief in the nature of a decree for permanent injunction against defendants/respondents from being RCA No. 0517 Page no. 10 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
dispossessed forcibly and without following due process of law. Admittedly, the appellant herein was dispossessed from the suit property on 24.03.2014, pursuant to eviction order dated 24.07.2013. Therefore, the suit of the appellant had become infructuous on 24.03.2014 itself. The appellant preferred not to amend his suit and continued to prosecute his suit in its original form. Therefore, the Ld. Trial Court rightly held that the suit of the plaintiff/appellant had already become infructuous and Issue No.1 was decided in favor of the defendants and against the plaintiff.
21. It is trite that upon death of the original tenant, all his legal heirs inherit the tenancy as joint tenants and it is not incumbent upon the landlord to implead all the legal heirs of a deceased tenant. It is sufficient if the landlord files an eviction petition against one of the joint tenant. An eviction petition, instituted against one of the joint tenants, is considered to have been instituted against all the joint tenants and all the joint tenants will be equally bound by the eviction order, though all the joint tenants may not be a party to the said petition. Reference can be made to the decisions rendered in the cases of Rajender Kumar Sharma Vs. Leelawati & Ors. 155 (2008) DLT 383; Kanji Manji Vs. The Trustees of the Port of Bombay, AIR 1963 SC 468; Inder Pal Khanna Vs. Commander Bhupinder Singh Rekhi (Retd.) 2008 VIII AD (Delhi) 328 and Suresh Kumar Kohli Vs. Rakesh Jain & Anr., SLP No. 5489/2014, decided on 19.04.2018. Issue no.1 was rightly decided by the Ld. Trial Court, in favor of the defendants and against the plaintiff. The findings recorded by Ld. Trial Court on issue no.1 are accordingly, affirmed.
22. In view of the affirmation of the findings recorded by the Ld. Trial Court on preliminary issue no. 1, the Court is of the considered view that there RCA No. 0517 Page no. 11 of 12 Yash Pal Mehta Vs. Kartar Singh & Anr.
is no infirmity, irregularity or illegality in order/judgment and decree dated 02.12.2016 passed by the Ld. Trial Court. The appeal is devoid of any merits and the same is accordingly, dismissed. Parties to bear their own costs. Decreesheet be drawn accordingly.
Trial Court Record be sent back forthwith. A copy of this judgment be sent to the Ld. Trial Court for record, in terms of Order 41 Rule 37 CPC.
File of appeal be consigned to Record Room. Digitally signed
by SANDEEP
SANDEEP GARG
GARG Date: 2019.06.03
06:41:48 +0530
Pronounced in open Court (Sandeep Garg)
on 03.06.2019 Additional District Judge01,
New Delhi District,
Patiala House Courts,
New Delhi
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Yash Pal Mehta Vs. Kartar Singh & Anr.