Delhi District Court
Kamlesh Bhardwaj vs Sh. Ram Kumar (Deceased) on 26 September, 2018
BEFORE DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL
TIS HAZARI COURTS, DELHI
CNR NO. DLCT010003612012
RCT No. 30235/2016
Jag Roshan Bhardwaj (Deceased)
S/o Late Sh. Bhag Mal
Through his legal representatives:
1. Kamlesh Bhardwaj
W/o Late Sh. Jag Roshan Bhardwaj
2. Shelender Kumar Bhardwaj
S/o Late Sh. Jag Roshan Bhardwaj
(Appellants No.1 & 2 are
R/o H.No. UP19, Pitampura, Delhi34)
3. Shalini Sharma
W/o Sh. Bheesham Sharma
D/o Late Sh. Jag Roshan Bhardwaj
R/o H.No. C5A/183,
Janak Puri, New Delhi
4. Anu Ragini Sharma
W/o Sh. Arun Sharma
D/o Late Sh. Jag Roshan Bhardwaj
R/o H.No. WP214A,
Pitampura, Delhi34.
5. Nalini Bhardwaj
D/o Late Sh. Jag Roshan Bhardwaj
R/o H.No. UP19, Pitampura, Delhi34
6. Mukesh S/o Late Sh. Prem Raj
RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 1 of 22
7. Ravinder Kumar S/o Late Sh. Prem Raj
8. Indu Bala D/o Late Sh. Prem Raj
9. Vichitra Kumar S/o Late Sh. Prem Raj
10. Sanjay Kumar S/o Late Sh. Prem Raj
11. Vijay Laxmi D/o Late Sh. Prem Raj
12. Ajay Kumar S/o Late Sh. Prem Raj
13. Mithlesh Kumari D/o Late Sh. Prem Raj
(Appellants No.6 to 13 are
C/o 57D, Kamla Nagar, Delhi07) .....Appellants
Versus
Sh. Ram Kumar (Deceased)
Through his legal representatives:
1. Swati Sharma
D/o Late Sh. Ram Kumar
2. Ashok Kumar Sharma
S/o Late Sh. Shiv Kumar Sharma
3. Ramesh Kumar Sharma
S/o Late Sh. Shiv Kumar Sharma
4. Archana Sharma
D/o Late Sh. Shiv Kumar Sharma
5. Kalpana Sharma
D/o Late Sh. Shiv Kumar Sharma
6. Sarita
D/o Late Smt. Shakuntala Devi
7. Anju
D/o Late Smt. Shakuntala Devi
8. Neena
RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 2 of 22
D/o Late Smt. Shakuntala Devi
9. Dharshan
D/o Late Smt. Shakuntala Devi
(Respondents No.1 to 9 C/o Sh. Ashok Kumar)
10. Radha Devi D/o Late Sh. Shiv Kumar Sharma
11. Pushpa Devi D/o Late Sh. Shiv Kumar Sharma (Respondents No.1 to 11 are represented by Respondent No.2/Ashok Kumar Sharma and are R/o H.No. 57D, Kamla Nagar, Delhi07)
12. Aarushi Sharma D/o Late Sh. Dinesh Kumar Sharma R/o H.No. 5556, Mangol Puri, Delhi .....Respondents Date of filing of Appeal : 15.05.2012 Date of reserving Order : 24.08.2018 Date of Order : 26.09.2018 ORDER ON RENT APPEAL UNDER SECTION 38 OF DELHI RENT CONTROL ACT Present appeal has been filed by the appellant Jag Roshan Bhardwaj/subtenant through his LRs against impugned judgment dated 10.04.2012 passed by Ld. ARC, North, whereby petition under Section 14(1) (b) & (d) of Delhi Rent Control Act (hereinafter refer to as the DRC RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 3 of 22 Act) was allowed and the eviction order was passed. Petition on grounds under Section 14(1)(c) and (h) of the DRC Act was dismissed.
2. Notice of the present appeal was issued to the respondents. Trial Court record was summoned.
3. I have heard arguments advanced by Ld. Counsel for the parties and perused the record.
4. Ld. Counsel for the appellants has submitted that evidence of AW1 cannot be read as he died before his crossexamination; evidence of AW2 is not sufficient to prove the case of the petitioners; prior to the present eviction petition, petitioners had filed two eviction petitions bearing no. E278/75 and E281/75, but not even a single word was uttered about second eviction petition and the petitioners are guilty of concealment of fact. In para 19 of the eviction petition, it is mentioned that the rent had not been paid for last five years, which shows that the rent was paid uptil 1984. AW2 in his crossexamination stated that the partition took place in the year 1967; his father used to take rent of the property in dispute and after partition the rent was also divided; total rent of the premises was Rs.60/; AW2 also admitted that two petitions were filed - one by his grand father and another by his father; AW2 also admitted that two rent receipts were also issued after partition; he also admitted that Prem Raj had left the premises in 1981; there is no document to prove that Prem Raj had lived in the premises; wife of Prem Raj was not impleaded as a party although she was alive; AW2 Ashok Kumar Sharma had stated that a suit was filed against respondent no.8 which was dismissed; second landlord RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 4 of 22 was not examined as a witness and there was nothing on record to prove his case.
5. On the other hand, Ld. Counsel for the respondents/ landlords has submitted that case of the all the tenants and subtenant was that all the legal heirs of original tenant Sh. Prem Raj had surrendered the tenancy and a fresh tenancy in favour of subtenant Sh. Jag Roshan Bhardwaj was created but there is no document on record to support this contention; in para no. 14 of the written statement of respondent Nos. R1 to R4 ( LRs of original tenant), it is claimed that there was an agreement of surrender of tenancy in writing but no document was brought on record by the tenant/ subtenant to this effect, nor was any witness examined; stand of the respondents was that premises were vacated by tenants (except subtenant) on 31.12.1980; RW3 Sh. J.R.Bhardwaj (subtenant) had admitted that no Surrender Deed was filed in any Court showing that LRs of original tenant Sh. Prem Raj had vacated the property and handed over possession to Sh. Shiv Kumar. It is also submitted that earlier eviction petitions were dismissed on technical grounds and petition in hand was not hit by principle of resjudicata; if there was no surrender of the tenancy, so sub tenancy is proved and onus is on the subtenant/appellant to prove how he came in possession of the premises in question as a tenant. It is further submitted that no question of law has been raised by the appellants; appeal is only on the ground of material facts and contradictions and none of the judgments cited supports the case of appellants so the appeal has no merits and deserves dismissal.
Let us take all main grounds of appeal one by one:
RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 5 of 22A. Splitting of Tenancy
6. In the present case, the main objection of the appellant is that there were two separate tenancies and a single eviction petition for the same was not maintainable, hence, the impugned judgment is liable to be set aside. Earlier, an eviction petition no.278/75 was filed by the landlord Shiv Kumar Sharma against tenant Prem Raj & Anr. under Section 14(1)
(a)(b)(c)(d) & (h) of the Delhi Rent Control Act in respect of only one room, which had fallen in his share after partition. The present appellant Jag Roshan Bhardwaj was respondent no.2 in the said petition and objection was taken in the written statement that the eviction petition was filed only for part of the tenanted premises and thus it was liable to be dismissed. It was also case of appellant that he was residing in the premises in question as a member of joint family with his brother Prem Raj and there was no subletting. No document was filed to show that tenant Prem Raj had agreed to splitting up of the tenancy and paid the rent of two portions separately. The tenanted premises cannot be split unilaterally and it was proved that there was no splitting of the tenanted premises with consent of the tenant. It was held that it was a case for partial eviction. It was case of the tenant Prem Raj that he alongwith his family was residing in the premises in question and Jag Roshan Bhardwaj was not a subtenant but being his younger brother, he was residing with him as a joint family. But, the respondent no.1 had not entered the witness box to prove his case, nor were the wife and children of respondent no.1 examined to prove that respondent no.1 alongwith his family was residing in the tenanted premises. Respondent no.2 was found to be in exclusive possession of the RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 6 of 22 premises in question and was held not to be a member of the family of respondent no.1. Thus, the case of the petitioner under Section 14(1)(b) &
(d) of the DRC Act was proved in the earlier eviction petition. Though the eviction petition was dismissed in view of ground taken in preliminary objection that eviction application was filed only for part of the tenanted premises.
7. Another eviction petition no.281/75 was filed by landlord Shiv Lal Sharma against Prem Raj and Jag Roshan and the said eviction petition was also dismissed. It was pleaded in the said petition that in April, 1974 one room and one kitchen were let out to Prem Raj. Since the original landlord or his successor in interest did not enter the witness box, so nothing was proved on record, hence, the petition was dismissed.
8. With regard to dismissal of earlier eviction petitions, two appeals were filed by the landlords and same were disposed off vide common judgment dated 15.12.1980 of Ld. Rent Control Tribunal. In common judgment of two appeals, Ld. Rent Control Tribunal held as under:
"However, it is a wellsettled principle of law that by merely partitioning of the property, the tenancy is not split unless the tenant expressly or impliedly consents to such splitting. It will remain one composite tenancy so far as the tenants rights are concerned."
9. It was held that except Ex. AW6/4 and AW6/5 and two such counterfoils signed by respondent no.2 for respondent no.1, there is no other written agreement to establish the said fact. Even the respondent no.2 had denied his signature on the counterfoils but when Shiv Kumar RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 7 of 22 appeared as AW6, it was not suggested to him that counterfoils were not bearing signatures of respondent No.2. It was specifically held by Ld. Rent Control Tribunal that these two rent receipts would not establish the case of splitting up of tenancy for the reason that the consent, if any, had to be of respondent no.1 (tenant) and not of his brother. The rent receipts filed on behalf of the landlords clearly showed that there was no splitting of tenancy because even when lesser rent was paid, the entire tenanted premises had been mentioned. Thus, it was held by Ld. Rent Control Tribunal that there was no splitting up of tenancy.
10. The appellant Jag Roshan Bhardwaj was a party in both earlier eviction petitions and he was also a party in both the appeals which were disposed off vide judgment dated 15.12.1980 by Ld. Rent Control Tribunal. This order was never challenged by or on behalf of appellant Jag Roshan Bhardwaj. Hence, it has attained finality and now the appellant Jag Roshan Bhardwaj is estopped from raising a plea that the eviction petition no. 1337/2006 was bad as there were two separate tenancies. Hence, this objection is without any merit and same is dismissed. B. Surrender of Tenancy by LRs of original tenant and Creation of New Tenancy in favour of Sh. Jag Roshan Bhardwaj
11. It was also case of appellant Jag Roshan Bhardwaj that after dismissal of appeal nos. RCA 332/76 titled "Shiv Kumar vs. Prem Raj"
and RCA no. 1070/79 titled "Shiv Lal vs. Prem Raj" on 15.12.1980, LRs of tenant Prem Raj had vacated the premises and then two separate tenancies were created in favour of Jag Roshan Bhardwaj. No document of vacation of the premises by LRs of tenant Prem Raj has been proved in RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 8 of 22 this case. Suggestions were given to AW2 Sh. Ashok Kumar Sharma in crossexamination on 08.03.2010 as under:
"It is wrong to suggest that during the pendency of the said case, the tenancy was surrendered in favour of respondent no. 8. It is wrong to suggest that after the dismissal of the case the tenancy was transferred in favour of respondent no. 8."
12. In crossexamination of AW2 on 22.04.2010, another line of defence of surrender of tenancy by original tenant and creation of tenancy in favour of appellant was prepounded in the following suggestion:
"I do not remember about the appeal filed by my father against the order of Sh. M.A.Khan, the then Ld. A.R.C. Delhi. However, the order was passed and the copy of the said order is placed on record. It is wrong to suggest that the tenancy was transferred in favour of respondent no.8 on the same day. No application was filed in the said appeal to my knowledge to change of tenancy in favour of respondent no.8. it is wrong to suggest that my father has issued rent receipt on the same day in favour of respondent no.8."
13. In his crossexamination dated 20.09.2011 on page 3, RW3 Sh. Jag Roshan Bhardwaj admitted that no Surrender Deed was filed in any court showing that LRs of Prem Raj vacated the property and handed over the possession to Shiv Kumar. He did not know if there existed any Surrender Deed in respect of Kitchen to Ram Kumar. It is a fact that no Surrender Deed was brought on record in the eviction petition by the appellant at any stage.
14. It also does not appeal to the reason that the landlords after dismissal of their appeals would create a fresh tenancy in favour of sub tenant w.e.f. 31.12.1980/ 01.01.1981. Even prior thereto, there are rent receipts in the name of Jag Roshan Bhardwaj. Since it was the case of sub RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 9 of 22 tenant that LRs of original tenant Prem Raj had vacated the tenanted premises on 31.12.1980 and a fresh tenancy was created in favour of sub tenant w.e.f. 31.12.1980/ 01.01.1981, so the burden was on the subtenant to prove this. However, no document was proved on record by or on behalf of subtenant Jag Roshan Bhardwaj with regard to surrender of tenancy by LRs of original tenant Prem Raj and creation of a new tenancy in his favour w.e.f. 31.12.1980/ 01.01.1981. In the earlier eviction petition, it was held that appellant Jag Roshan Bhardwaj, who was in exclusive possession of tenanted premises, was held to be a subtenant. Moreover, it was case of the appellant that he had taken the premises on rent but the rent receipts were being issued in the name of his elder brother Prem Raj. Sh. Jag Roshan Bhardwaj was an Advocate and he knew the consequences of such rent receipts being issued in the name of his brother Prem Raj, but he did not object to the same and kept silent for the reasons best known to him.
15. A specific question was put to RW3 Sh. J.R. Bharwaj in his crossexamination whether any document was signed by Mr. Shiv Kumar and Mr. Ram Kumar and other legal heirs that they had received possession from original tenant Prem Raj or his legal heirs and whether such writing had been filed on record, RW3 stated that Mr. Shiv Kumar had only stated that he received possession from LRs of Mr. Prem Raj and that he had let out the premises to respondent no.8 (Jag Roshan Bhardwaj). But RW3 could not point out any such document on record. He voluntarily stated that he had summoned the file from the record room and proved the said fact. But, it was never a case of Jag Roshan Bhardwaj in RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 10 of 22 his pleading. No such document was brought on record of eviction case file through the summoned record. RW3 had further stated that LRs of Mr. Prem Raj wrote a letter to the police and other authority that they had vacated the premises and delivered possession, but it was never the case of RW3 in his pleadings nor it was their case in the evidence nor any such document or writing has been proved on record. RW3 further improved and stated that it was their stand in the earlier appeal and a Surrender Deed was also filed in the appeal titled as "Shiv Kumar v. Prem Raj". But, such surrender deed or writing was never proved by Sh. Jag Roshan Bhardwaj by summoning the record of the said appeal.
16. Reliance was heavily placed on rent receipts Ex. RW3/1 to RW3/9 purportedly executed by Sh. Shiv Kumar in favour of Jag Roshan Bhardwaj. To prove these rent receipts, RW4 Sh. M.C. Kaushik had been examined. In his crossexamination, this witness stated that Mr. Shiv Kumar was his friend and he might have died in the year 1984 or 1985. He did not know what Mr. Shiv Kumar was doing. He could not say that who was the writer of the receipts Ex. PW2/R1 to PW2/R9 but he volunteered that said receipts bear signatures of Sh. Shiv Kumar as he had signed in his presence. He also stated that rent receipts were prepared at his house by late Sh. Shiv Kumar. Surprisingly, this witness claims to be a friend of late Sh. Shiv Kumar but he did not know about his profession. Moreover, RW4 also did not know the exact year of death of late Sh. Shiv Kumar. It also remained a mystery as to why the rent receipts were prepared and signed at his residence. Moreover, there was nothing on record to prove that RW4 was neighbour of Sh. Shiv Kumar. Thus, the RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 11 of 22 evidence of RW4 was rightly considered by Ld. ARC as he stated that he could not say as to who was the writer of the rent receipts and these rent receipts were not duly proved on record as the same could have been proved only by the writer thereof or an attesting witness thereto. Even if these rent receipts were proved in the earlier eviction petitions and the appellants could have summoned the record of those petitions but it was not done so for the reasons best known to appellants. Even the copies of these rent receipts were not filed with the written statement. There is no explanation as to why the appellants had not obtained original rent receipts from the earlier proceedings or as to why he had not summoned the files for the purpose of comparison of signatures with the rent receipts relied upon by him as he had admitted in his crossexamination that rent receipts were being issued since the year 1961.
17. There is no document or writing on record to prove that any agreement in writing pertaining to creation of fresh tenancy in favour of appellant Jag Roshan Bhardwaj and surrender of the tenancy by LRs of original tenant Prem Raj. There was no evidence to prove that appellant was a tenant in the premises in dispute. It was rightly held by Ld. ARC that there was no letting in favour of the appellant w.e.f. 01.01.1981; there was nothing on record that LRs of original tenant Prem Raj had surrendered tenancy; appellant is in exclusive possession of the tenanted premises and LRs of original tenants are not residing in the tenanted premises. Thus, it was rightly held by Ld. ARC that the landlords have proved their case under Section 14(1)(b) & (d) of the DRC Act and eviction order was rightly passed against the appellants.
RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 12 of 22C. Plea of ResJudicata:
18. In the impugned judgment itself Ld. ARC has specifically dealt with issue of resjudicata that earlier evictions petitions were dismissed on technical ground and even otherwise facts were quite different from the eviction petition in hand. So, there was no question of applicability of principles of resjudicata. Moreover, ResJudicata, if has to be made applicable in this case, it also adversely affects the appellant too but it has been rightly held that the said principle is not applicable in the present case. Ld. ARC has rightly held that "C. In this regard, relevant point for consideration is that the appeal was dismissed holding that since there was split of tenancy by the landlord unilaterally which is not permissible under law and, therefore, case being case of partial eviction is not maintainable. In the last paragraph, Ld. Appellant Court made observation as under: "For the reasons given above, the appeals filed are dismissed being bad for partial eviction. No opinion is needed to express on merits which may embarrassment the parties in subsequent litigations, if any."
D. Thus, on the point of merits, there is no findings by the Ld. Appellate Court and now question remains to be decided as to whether the order passed in eviction petitions will operate resjudicata and, if so, which of the order will operate as res judicata.
RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 13 of 22E. In the first petition, the ground of eviction only U/Sec. 14 (1)(b) and (d) of D.R.C. Act was held to be proved. In the subsequent judgment, all the grounds have been dismissed. F. However, it is cardinal principle of law that the judgment or decision on a particular issue operates resjudicta which is earlier in point of time and if it is on merits. Both the petitions were dismissed and ultimately the appeals were also dismissed holding that the case being case of partial eviction and, therefore, is not maintainable and the said judgment was never challenged by either of the parties. Thus, it can be safely held that the judgment aforesaid do not operate as resjudicata. So far as maintainability of present petition on the ground of Sec. 14(1) 9b) and (d) are concerned as both the petitions were dismissed on technical ground and otherwise facts are quite different of present petition from earlier petition. G. If the law of resjudicata is taken into consideration, in this case the same will be applicable against the respondent no. 1 to 9 as it was held that the predecessor in interest of the present petitioners have proved the grounds of eviction U/Sec. 14(1)(b) & (d) of the D. R.C. Act in the petition file bearing No. 278/75 which was decided earlier to the petition bearing No. 281/75 which was dismissed holding that no ground of eviction is made out.
RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 14 of 22H. Thus, from the above, it can be safely held that present petition is not hit by principle of resjudicata atleast so far as grounds of eviction U/Sec. 14(1)(b) & (d) are concerned." D. Nonimpleadment of all the Legal Heirs of deceased tenant Sh. Prem Raj:
19. Case of the appellants is that Smt. Bimla Kumari, wife of the original tenant Sh. Prem Raj was not impleaded as a legal heir, so the impugned judgment is bad. The landlords denied that Smt. Bimla Kumari was wife of the deceased tenant Sh. Prem Raj. Even if it is presumed that Smt. Bimla Kumari is wife of deceased tenant and since she is stated to be living with other legal heirs; hence, they had watched her interest. Moreover, in view of judgment of Hon'ble Supreme Court of India Suresh Kumar Kohli v Rakesh Jain and Anr. (Civil Appeal No. 3996 of 2018 decided on 19.04.2018) wherein it has been held it is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. Thus impleadment of Smt. Bimla (even if it is presumed that she was wife of tenant and she was alive when petition was filed) is not fatal to the petition as all the sons and daughters of deceased tenant were parties to watch her interest.
20. The appellant has relied upon the following judgments:
1) Satish Khosla v. Eli Lilly Ranbaxy Ltd. 1998 RLR 180 wherein it has been held that a litigant must produce all relevant documents and withholding same is a fraud on the Court and opponent.RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 15 of 22
Ratio of this judgment is not applicable here as there is no allegation of withholding of any record on the petitioner, rather the appellant himself did not summon or produce the original rent receipts and original documents.
2) Kuldip Gandotra v. Union of India 2007 RLR 151 wherein it has been held that if a person obtains an order by concealment of true facts and fraudulently gets favorable orders, then these orders may be recalled on discovery of true facts. This judgment does not help the appellant as there is no allegation of concealment of any relevant documents or facts by the landlords.
3) Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & Anr. 2008(2) RCR (Civil) 937;
4) M.Nagabhushana v. State of Karnataka & Ors. AIR 2011 SC 1113;
5) Ram Chander Aggarwal & Anr. v. UOI & Ors. 187 (2012) DLT 379 (DB); and
6) Gram Panchayat Bahadurpur v. Social Education & Panchayat Officer, Bahadurgarh 2010(4) RCR (Civil) 325.
In all these judgments principle of estoppel and resjudicata have been discussed. But the abovestated judgments are also of no help to the appellants as no ground for resjudicata is made out as detailed in point (C) above.
7) M/s Karta Ram Rameshwar Dass v. Ram Bilas & Ors.
AIR 2006 SC 362 wherein effect of a decree in partition suit on the tenanted premises has been discussed. In that case, tenant was also a party RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 16 of 22 to the said suit. It was held that a tenant can object to claim for partition if it is shown that same was not bona fide and made with an oblique motive to overcome rigors of rent Control Laws. In the case in hand, the appellants or original tenant were not party to the partition, rather appellants did not have any objection to the partition effected between the landlords. Hence, this judgment does not help the appellants.
8) Surinder Singh & Ors. v. Rup Kaur & Ors. 1986 (2) RCR
53. In this case, it was held that a joint application by the landlords for ejectment of tenants was not maintainable and each landlord should file separate application on ground of bonafide requirement. This judgment also does not help the appellants as present eviction petition was filed on subletting and other grounds and not on the ground of bonafide requirement and in earlier petitions as well as in appeal by Rent Control Tribunal, it was held that there was no splitting up of tenancy.
9) Smt.Laxmi @ Anandi & Ors. v. C.Setharama Nagarkar & Ors. AIR 1996 SC 268 wherein it has been held that when landlord's evidence does not establish subtenancy and there was no finding as to when subtenancy was created, eviction on ground of subletting cannot be ordered. In the present case, there is clear and clinching evidence that appellant being subtenant was in exclusive possession of the tenanted premises to the exclusion of original tenant and he failed to prove that he became a direct tenant. Thus, this judgment is not applicable to facts of present case.
10) Durga Charan Saha v. Baradamani Dasi 1998 (1) RCR 265 wherein it has been held that in case of subletting when the landlord RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 17 of 22 is not examined, same must be viewed seriously. In the present case, one of the landlords was examined as AW1 but he expired before his cross examination was conducted. Another landlord Ashok Kumar Sharma was examined and crossexamined as AW2, hence, it is not a case of non examination of the original landlord. Hence, this judgment is of no help to the appellant.
11) Harbhajan Singh v. Kuldeep Singh & Ors. 2017(1) CLJ 392 (Del). In this case also, it has been held that when a party to suit does not offer himself to be crossexamined by other side, presumption shall arise that case set up by him is not correct and this shall give rise to an adverse inference against him. But this is not the case here as AW1 was examined in the Court and before he could not be crossexamined, he expired. Therefore, this judgment does not help the appellant.
12) Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup & Anr. 1991(1) SC 49 wherein it has been held that where a tenant dies leaving behind widow and two sons but suit for ejectment was filed against widow and one son; exparte decree of ejectment was not binding on the son who was not impleaded. This judgment does not apply to the facts of the present case in view of judgment of Hon'ble Supreme court in "Suresh Kumar Kohli vs. Rakesh Jain and Anr." (supra)
13) Mohd. Idrees & Anr. v. Mst. Nathi (Deceased) through LRs 90 (2001) DLT 274 where one of the sons of deceased original tenant was not impleaded as respondent, who was necessary party and his non joinder makes eviction petition liable to be dismissed. But again this judgment does not apply to the facts of the present case and in view of RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 18 of 22 judgment of Hon'ble Supreme Court of India in Suresh Kumar Kohli v Rakesh Jain and Anr. (supra).
14) Govindji Khera v. Padma Bhatia AIR 1972 DEL 239 wherein it has been held that when father of the tenant was living in the property as a member of the family and was dependent on the tenant, it was not a case of subletting. Here in this case, the appellant was living in the tenanted premises to the exclusion of original tenant Prem Raj and it is not shown that subtenant was dependent on original tenant Prem Raj. Hence, this judgment does not help the appellant.
15) Baldev Sahai Bangia v. R.C. Bhasin AIR 1982 SC 1091 wherein it has been that when the tenant shifts to foreign country and leaving his mother, sister and brother in tenanted house, it cannot be said that they ceased to be members of family. But this is not the case here as original tenant's family intentionally shifted from the premises, hence, this judgment does not apply to the present case.
16) Maheshwar Dayal (deced) v. Shanti Devi & Ors. 2012 (128) DRJ 334 wherein it has been held that where son of tenant was using the premises right from the beginning and eviction petition was filed 21 years after discovery of alleged subtenancy; tenant died during pendency of the eviction petition, the son inherited the premises in his own right. Again this is not the case here as the appellant could not have inherited the tenancy, hence, this judgment does not apply to the facts of present case.
17) Mukhtiar Singh v. Sant Ram 2011 RLR 28 wherein it has been held that Section 3 of the Limitation Act provides that if a matter is filed beyond the prescribed period of limitation, then mandate of Section 3 RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 19 of 22 is that it must be dismissed even if defendant has not raised this question. Limitation is not applicable to DRC Act cases, hence, ratio of this judgment does not apply to the present case.
18) GM(OSD), BN Cotton Mills v. Bharat Lal 2011 RLR (NSC) 7 wherein it has been held that where a person does not give his correct address and conceals the same mala fide then he is not entitled to any relief. In the present case, there is no concealment on the part of the landlords, hence, this judgment does not help the appellants.
19) Janki Vashdeo Bhojwani & Anr. v. Indusind Bank Ltd. & Ors. 2005 RLR 308 (SC); &
20) S.Kesari Hanuman Goud v. Anjum Jehan & Ors. 2014 (2) RCR (Civil) 52.
In these two judgments, it has been held that a power of attorney holder is not entitled to depose on oath on behalf of the principal as he cannot personally swear to facts within the personal knowledge of party. In the present case, AW2 Ashok Kumar Sharma was landlord and another landlord AW1 expired before his crossexamination was conducted. Hence, these judgments do not apply to the facts of the present case.
21) All India Tibbi Conference & Anr. v. Haji Mohd. Shafi 2005(2) RCR 701 wherein it was held that where there is subletting by tenant without permission of landlord and tenant died, a civil suit for eviction treating the occupants as trespasser is maintainable and provisions of Rent Act will not apply. This is not the case here as jurisdiction under RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 20 of 22 DRC Act has been invoked, hence, this judgment does not help the appellants.
22) Vijay Syal & Anr. v. State of Punjab & Ors. IV (2003) SLT 296 wherein it has been held that in order to sustain and maintain sanctity and solemnity of proceedings in Law Courts, it is necessary that parties should not make false or knowingly inaccurate statements or misrepresentation and should not conceal material facts to gain benefit at hands of Court, where truth and justice are solemn pursuits. There is no dispute with regard to ratio of this judgment. But it does not apply to the present case as there was no concealment of fact on the part of landlords.
23) Sandeep Kumar v. Nihal Chand 2014(1) RCR (Rent) 30. This judgment is also not applicable to facts of this case as no concealment of facts can be imputed to the landlords.
24) M/s Govardhan Kagaj Udyog Rankuta, Agra v. U.P. Financial Corporation, Agra & Ors. AIR 1991 Allahabad 211 wherein the petitioner suppressed filing of earlier petition on same set of facts and orders passed therein, second petition on same set of facts is barred by principles of resjudicata. First of all, there is no concealment of filing of earlier eviction petitions and secondly principle of resjudicata can not be invoked here as both the petitions were dismissed on technical grounds as detailed above.
25) Brijendra Kumar & Ors. v. Om Prakash & Ors.
Manu/DE/2478/2010 wherein it has been held that finding of Rent Controller regarding relationship of landlord and tenant would operate as resjudicata in a subsequent suit notwithstanding the fact that the Rent RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 21 of 22 Controller had no jurisdiction to try the subsequent suit. No such issue is involved in the present case, hence, this judgment does not help the appellants.
21. The landlords have been able to prove their case under Sections 14(1)(b) & (d) of the Delhi Rent Control Act against the tenants and the appellant has not been able to raise any sustainable legal ground of appeal to challenge the impugned judgment of the Ld. Additional Rent Controller.
22. In view of the above discussion, I hold that there is no merit in the appeal. Same is accordingly dismissed. TCR be sent back alongwith copy of the order.
Appeal file be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH SINGH Date: 2018.09.28 15:45:27 +0530 Announced in the open Court (TALWANT SINGH) Dated: 26th September, 2018 District & Sessions Judge (HQs) Rent Control Tribunal Tis Hazari Courts : Delhi RCT No.30235/16 Jag Roshan Bhardwaj & Ors. v. Ram Kumar & Ors. Page 22 of 22