Delhi District Court
Smt. Pooja vs Smt. Surjeet Kaur on 5 March, 2014
THE COURT OF SHRI M.P. SINGH: SENIOR CIVIL JUDGE : RENT
CONTROLLER: KARKARDOOMA COURTS (EAST)
Eviction Petition No. 02/2014
Unique Case ID No. 02402C0025802014
Smt. Pooja
W/o Sh. Ashish Kumar Adlakha
R/o 1103, Sector - 10A,
Gurgaon, Haryana ............... Petitioner
Versus
Smt. Surjeet Kaur
W/o Sh. Mohinder Singh
R/o 67, Second Floor,
Sunder Park, Shastri Nagar,
Delhi110031
.............. Respondent
ORDER
1. Vide this order, I shall dispose of the present eviction petition under clause (e) of proviso to section 14 (1) of the Delhi Rent Control Act, 1958 (for short 'the Act') filed by the petitioner.
2. Facts are as follows: Respondent is a tenant under the landlordship of the petitioner in one flat in property no. 67, 2nd Floor, Sunder Park, Shastri Nagar, Delhi31 at monthly rental of Rs. 1,700/ besides electricity and water charges. The tenancy was 'renewed' vide registered rent deed dt. 03.08.2012 for 11 months. Despite lapse of 11 months, respondent did not vacate the E02/14 Pooja v. Surjeet Kaur Page 1 of 12 tenanted premises. Petitioner's legal notice dt. 04.06.2013 thereby calling upon the respondent to vacate the tenanted premises by 02.07.2013 was replied to by the latter wherein she sought 46 months to vacate the same. But, the respondent even after lapse of 46 months did not vacate the tenanted premises.
3. Petitioner states that she is suffering from many ailments (Encephalitis/Vasculitis/VenusSinusThrombosis) for the last 34 years. It is stated that the disease is related to brain fever and is caused by some virus/high fever/high blood pressure and causes permanent damage to vision or any other organ and partial or total paralysis. The damage caused by this disease is stated to be irreversible and that presently in the world there exists no cure for vision improvement. This ailment, it is pointed out, requires constant monitoring by a NeuroPhysician and Specialist Ophthalmologist. Petitioner submits that she is physically weak and suffers from very poor vision and that she is required to take regular medicines for blood pressure and calmness of the brain. Petitioner avers that she is being treated at Kolmet Hospital & Medical Research Centre, Pusa Road, New Delhi. She further avers that she is also taking treatment from Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi. And consequently, it is averred, she is required to travel from Gurgaon to New Delhi for her treatment once or twice a week. Due to the aforesaid medical treatment, the petitioner pleads that she wants to shift from Gurgaon to the tenanted premises, situated in Delhi, which is E02/14 Pooja v. Surjeet Kaur Page 2 of 12 very near to the hospitals where she is presently undergoing treatment. Petitioner thus asserts that she and her family members require the tenanted premises bonafidely on immediate basis. Petitioner also asserts that she has no other premises or accommodation available in Delhi or at any other place except her matrimonial home which is presently situated at Gurgaon. Hence, the instant eviction petition.
4. Summons under the Third Schedule of the Act was served upon the respondent on 17.01.2014.
5. Instead of filing the requisite affidavit, as required by section 25B (4) of the Act, stating therein the grounds on which the instant application for eviction would be contested, the respondent on 28.01.2014 filed an application styled as 'Application on behalf of defendant for putting her appearance eviction petition u/s 14 (1) (e) r/w section 25B of DRC Act'. In para 2 of her application she stated that she was served on 17.01.2014 with the summons of the instant eviction petition. In para 3 of the application, she stated, "3. That the respondent/applicant as per the provisions of the eviction petition u/s 14 (1) (e) r/w section 25B of DRC Act is hereby putting her appearance by way of this application. The corresponding address of the respondent/applicant as under:......"
6. Thereafter on 19.02.2014 (after more than 15 days of being served with the summons under the Third Schedule of the Act) respondenttenant filed her application seeking leave to contest along with her affidavit. The E02/14 Pooja v. Surjeet Kaur Page 3 of 12 grounds, as set out by respondent in her affidavit, may be taken note of. The respondent's stand is that vide an agreement dt. 15.04.2006 her son Gursharan gave Rs. 2.25 lacs to Ms. Nirmala Devi wife of Ramji Lal (petitioner's relative) in lieu of residing in the tenanted premises for 11 months with the undertaking that no rent would be paid by respondent's son and that the amount of Rs. 2.25 lacs would be returned later on. This agreement was renewed on 24.05.2007 for another 11 months. On 01.06.2008 an agreement was executed between the respondent and Ms. Nirmala Devi for another 11 months on the same terms as stated aforesaid. This agreement was thereafter orally renewed and continued till 20.06.2011 and a fresh agreement deed was executed between the petitioner and the respondent for seven months on terms which were same as aforesaid. Another agreement was executed between the parties for five months commencing from 29.02.2012 till 31.07.2012 on the same terms as aforesaid. It is also averred that Ms. Nirmala Devi had agreed to sell the property to the respondent for a consideration of Rs. 4 lacs, however, she backed out from executing the necessary documents after taking the earnest money. It is stated that for executing the Agreement to Sell, petitioner along with her witnesses took the respondent to SubRegistrar's office on 03.08.2012 but the petitioner with dishonest intention got executed a rent deed instead of Agreement to Sell. Lastly, the respondent also questions the ownership of the petitioner qua the tenanted premises.
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7. Petitioner replied to this application. The execution of the agreement dt. 15.04.2006 and 24.05.2007 between respondent's son and Ms. Nirmala is not denied. It is, however, stated that it is the respondent's son who failed to vacate the premises in accordance with terms of the agreement. It is submitted that there is no agreement dt. 01.06.2008. It is averred that respondent also failed to comply with the terms of the agreement dt. 20.06.2011. The petitioner denies taking any security amount from respondent. It is also denied that Ms. Nirmala Devi ever agreed to sell the property to the respondent. Denying other averments, the petitioner seeks dismissal of the application seeking leave to contest.
8. Along with the application seeking leave to contest, the respondent tenant also filed an application under section 5, Limitation Act with the prayer that delay in filing the leave to contest application be condoned. It is averred that the application seeking leave to contest was not filed within the stipulated time due to lack of knowledge and due care on the part of previous counsel. The petitioner replied to this application and opposed the same.
9. I have heard arguments at bar and perused the case file.
10. Once summons under the Third Schedule of the Act is issued and served upon the tenant, the tenant is required to file his/her affidavit stating therein the grounds on which he/she seeks to contest the eviction application in terms of section 25B (4) of the Act and obtain leave. To my mind, the tenant cannot devise his/her own procedure and bypass section 25B (4) of the E02/14 Pooja v. Surjeet Kaur Page 5 of 12 Act. Decision of Hon'ble Delhi High Court in Manoj Kumar Bhatt & Anr. vs. Raj Kumari & Anr., RCR no. 174/2010 (date of decision - 13.04.2012) can be referred to in this context. This was case where the tenant, after being served with the summons under the Third Schedule of the Act, instead of filing the requisite affidavit containing the grounds on which the eviction petition would be contested, as required by section 25B (4) of the Act, directly filed a written statement. This is what the Hon'ble High Court observed:
With the issuance of summons prescribed under Schedule III of the Rent Act it is clear that the Controller had limited the eviction petition of the landlord to Section 14 (1) (e) of the Rent Act only to which the landlords also did not have any objection. The Controller could have very well done that. It cannot be said that he had committed any mistake in ordering issuance of summons only in respect of the ground of bona fide requirement. I am also in full agreement with the submissions of the learned senior counsel for the petitioners that once having ordered issuance of summons under Schedule III to the Rent Act the learned Controller should not have taken on record any written statement from the side of the respondenttenant. That course of action is not permissible in an eviction petition which has been treated as a petition under Section 14 (1) (e) of the Rent Act. The respondenttenant's only right is to seek permission from the Controller to contest the eviction petition on whatever grounds he wants to contest it. Without seeking the permission of the Controller the tenant cannot decide for himself that the eviction petition as framed could not be proceeded with only under Section 14 (1) (e) and consequently he could file the written statement straightaway. If this kind of practice is accepted by the Controllers then that would mean that every tenant would at liberty to present a written statement and then defend the eviction E02/14 Pooja v. Surjeet Kaur Page 6 of 12 petition without any prior permission from the Controller. This is not at all permissible and should not have been allowed to be done by the Controller.
11. Therefore, what is clear is that upon being served with the summons under the Third Schedule of the Act, the tenant's only right is to seek permission from the Controller to contest the eviction petition on whatever grounds he/she wants to contest it. This right can be availed of by filing the requisite affidavit under section 25B (4) of the Act and that too within the specified 15 days and not later. Therefore, the respondenttenant cannot seek to benefit by adopting an unusual procedure of filing an application entering appearance in contravention of section 25B of the Act and then after lapse of 15 days coming up with her application and an affidavit seeking leave to contest.
12. Next, ever since the Apex Court's decision in Prithipal Singh vs. Satpal Singh, I (2010) SLT 116, it is well settled that Rent Controller has no power to give the tenant the benefit by extending the time under section 5, Limitation Act for filing the leave to defend application. It was observed by the Apex Court that Rent Controller cannot condone the delay in filing leave to defend application as the provisions of Limitation Act cannot be attracted. In the case at hand, the summons under the Third Schedule of the Act was admittedly served upon the respondent on 17.01.2014. She came up with her application for 'putting appearance' on 28.01.2014. Fifteen days' time expired on 01.02.2014. Respondent filed her application with an affidavit E02/14 Pooja v. Surjeet Kaur Page 7 of 12 seeking leave to contest on 19.02.2014, when it was too late in the day for her to take the corrective measure. In terms of the law as laid down in Prithipal Singh (supra) tenant cannot be given any more time than 15 days for filing her application/affidavit seeking leave to contest.
13. In this view of the matter, the application under section 5, Limitation Act filed by the respondenttenant seeking condonation of delay in filing the application seeking leave to contest merits dismissal.
14. The necessary consequence thereof is that the respondenttenant having not filed her application seeking leave to contest within 15 days of being served with the summons under the Third Schedule of the Act is liable to be visited with an eviction order qua the tenanted premises.
15. However, in order to bring about a completeness to this Order, it would be apt if respondent's contentions, as set out in her application seeking leave to contest, are examined even on merits.
16. The respondent states that the petitioner is not the owner of premises. This contention is noted only to be rejected in view of section 116, Evidence Act. The respondent, who admittedly is the tenant, cannot question the petitioner's ownership qua the tenanted premises. It bears repetition to state that there is a registered rent deed dt. 03.08.2012 executed between the parties. Even de hors the rent deed, there are crystal clear admissions on the part of the respondent that she is in occupation of the premises as a tenant.
17. The next ground is that respondent's son had given Rs. 2.25 lacs to E02/14 Pooja v. Surjeet Kaur Page 8 of 12 Ms. Nirmala Devi, at the time of inception of the tenancy. This is no triable issue at all. It is open to the respondent to recover the same as per law. Advancement of Rs. 2.25 lacs would not make the tenant the owner of the premises. This will not alter the relationship of landlord and tenant between the parties and the nature of possession at the hands of the respondent.
18. It was next urged that Ms. Nirmala Devi had entered into an agreement to sell with the respondent. However, there is no document evidencing such an agreement. That apart, a mere agreement to sell, in terms of section 54 of Transfer of Property Act, 1882, does not, of itself, create any interest in or charge on such property. Even, if it be accepted that there indeed was such an agreement, it is open to the respondent to seek her remedy under the law. In this context, decision reported as Sanjay Singh vs. M/s Corporate Warranties Pvt. Ltd. 204 (2013) DLT 12:
MANU/DE/3099/2013 can be referred to, wherein it was observed, "17. Thus the status of the appellant/defendant even if the execution of Agreement to Sell were to be believed, remained as that of a tenant and did not change to as that of a purchaser. The only rights of an agreement purchaser (as discussed by me in detail in the recent judgment dated 06th August, 2013 in RFA No. 324/2013 titled Sanjiv Pathak vs. Somnath and attention to which of the appellant/defendant was drawn during the hearing on 26.08.2013 and which the counsel for the appellant/defendant has failed to distinguish) are of specific performance of the said agreement. ............. I have enquired from the counsel for the appellant/defendant whether the appellant/defendant has taken any steps for specific performance. The counsel fairly admits that E02/14 Pooja v. Surjeet Kaur Page 9 of 12 no steps have been taken. A tenant in the property, even if he enters into an agreement for purchase thereof, cannot avoid his/her ejectment therefrom as a tenant and only has a remedy of specific performance of the agreement to sell in his favour."
19. To similar effect is the decision reported as Dr. N. P Tripathi vs. Dayamanti Devi & Anr., AIR 1988 Pat 123, wherein it was observed:
"So far the suit for specific performance of the contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sale. Merely filing a suit for specific performance of contract does not confer or is founded upon a fact that a title has accrued in the property in question under the deed of agreement or contract for sale."
20. In the case of K. V. Narayanan Murti vs. Thankamma Sebastian, RC Rev No. 48 of 2005 (dt. of decision - 19.05.2005) a Division Bench of Kerala High Court comprising Hon'ble Mr. Justice R. Bhaskaran and Hon'ble Mr. Justice K. T. Shankaran observed, "The further question is when the tenant raises a contention that there was an agreement between the landlord and the tenant to sell the building to the tenant, whether it would constitute denial of title of the landlord within the meaning of section 11(1) of the Act. When the landlordtenant relationship is admitted or proved, the question whether there was an agreement to sell the building to the tenant becomes irrelevant. An agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. The title would pass to the proposed transferee only on execution of the sale deed. The agreement to sell by itself would not terminate the landlord - tenant relationship. Even if a suit for specific performance filed by the tenanttransferee is pending, that E02/14 Pooja v. Surjeet Kaur Page 10 of 12 by itself would not be a ground to oust the jurisdiction of the Rent Control Court. So long as the tenant has not shed his character as a tenant, he cannot take shelter under the agreement for sale and contend that the Rent Control Court has no jurisdiction. Of course, in a case where Section 53A of the Transfer of Property Act applies, the position may be different.
21. Thus the ground that there was an Agreement to Sell is of no consequence at all from any angle.
22. It was lastly urged that the respondent was misled into signing the rent deed and getting it registered before the SubRegistrar. This ground is a frivolous one. Section 34, Registration Act, 1908 contemplates the Registering Authority being satisfied with the identity of the executant of the document presented for registration, and the executant admitting its execution, before he can order registration of the document presented for registration. In view of section 34, Registration Act, it has to be taken that the SubRegistrar followed the procedure prescribed by the Registration Act for registering the document in question in view of the presumption available under section 114, Evidence Act that official acts are duly performed. The mere self serving ipse dixit of the respondent in this regard would not suffice and merely on her averment it cannot be said that the SubRegistrar did not follow the procedure prescribed by the Registration Act for registering the document in question. In this regard, I am not at all inclined to believe the averments of the respondent.
23. Therefore, even on merits, the application seeking leave to contest is E02/14 Pooja v. Surjeet Kaur Page 11 of 12 devoid of any substance. No triable grounds even on merits are raised by the respondent in her application seeking leave to contest. Accordingly, even on merits, the same is liable to be dismissed.
24. It is not in dispute that respondent is in occupation of the tenanted premises as a tenant. There is a registered lease deed between the parties. Petitioner states that she requires the premises bonafidely for her own usage in view of her severe medical condition. The respondent's application seeking leave to contest is barred by limitation. In terms of Apex Court decision in Prithipal Singh (supra) Rent Controller has no power to condone the delay in filing the application seeking leave to contest. Even on merits, it is devoid of any substance. Consequently, the instant eviction petition is hereby allowed. An eviction order is hereby passed in petitioner's favour and against the respondent in respect of one flat in property no. 67, 2 nd Floor, Sunder Park, Shastri Nagar, Delhi31 (as shown in the site plan). This order shall be subject to the provision of section 14 (7) of the Act. File be consigned to record room.
Announced in the open court (M.P. SINGH)
Dated: 05.03.2014 SCJ/RC (East)
Karkardooma Courts, Delhi
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