Delhi High Court
B. Banerjee vs Romesh Mahajan on 10 September, 1996
Equivalent citations: 63(1996)DLT930, 1996(39)DRJ87, 1996RLR499
JUDGMENT Usha Mehra, J.
(1) The petition for eviction was filed by Mr.Romesh Mahajan against the present petitioner from the premises bearing No.8-A/99, Western Extension Area, Karol Bagh, New Delhi under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act (hereinafter called the Act). The ground taken in the petition was that the premises in question was required bonafide by the landlord owner for his use as he was to vacate the tenanted premises in his occupation. He wanted to occupy his own house.
(2) On notice being served, the tenant (petitioner herein) filed an application seeking leave to defend, inter alia, on the ground that the Mr.Romesh Mahajan was neither the owner nor the landlord of the premises. Property vested with Delhi Land & Finance Limited or Bombay Life Insurance Company Limited. The father of the respondent herein was simply a lessee and as per the terms of the lease the property belonged to the lessor or vendor and not 'to the lessee. Moreover, original lessee was the father of Mr.Romesh Mahajan. Respondent herein asserted his right on the property as per the 'Will'. But the said 'Will' had not been produced hence respondent herein (petitioner before the Trial Court) had no right over the property. The premises was let out for residential-cum-commercial purpose.The present petitioner was giving coaching of music and his wife imparting teaching of dancing to various boys and girls in the premises in question. Finally, Mr.Romesh Mahajan was entitled to rent free accommodation from his employer. He in fact was residing in such an accommodation, therefore, did not require the premises for his bonafide use.
(3) These averments were not only denied by the landlord owner but proved to be wrong. The Trial Court after scrutinising their affidavits and documents annexed with it and after hearing the parties declined to grant leave to the tenant vide its order dated 8th March,1995.
(4) It is against the impugned order dated 8th March,1995 that the present petition has been preferred, inter alia, on the ground that the petitioner had raised triable issues with regard to the title of the respondent. As per the documents filed by the respondent it is clear that the premises was leased out to his father by Delhi Land & Finance Limited. The respondent had no right to use the said building untill the sale was complete. He could not assign, under-let, sub-let or part with possession of the said premises without first obtaining the written consent of the vendor. The vendor in this case i.e. Delhi Land & Finance Limited had not given any such consent, hence Mr.Romesh Mahajan or for that matter he also could not be called the owner of the premises. Respondent being neither the owner nor landlord of the premises could not file petition under Section 14(i)(e) of the Act. This raises a triable issue which required adjudication. Hence his application could not have been dismissed in limini. Secondly, the summons received from the Court did not indicate under what provisions these were issued. Moreover, the purpose of eviction had also been disputed, but without affording opportunity to prove that it was being used with the consent for commercial purpose his leave has been rejected. The lease deed dated 23rd April,1988 is a forged document. The stamp paper on which it has been typed is dated , May,1988 whereas lease deed is dated 23rd April,1988. Finally the respondent is residing in an accommodation provided by his employer. He does not require the premises in question. It is in this background that the present revision petition has been preferred.
(5) So far as the petitioner's objection regarding summons being incomplete and lacked details, to my mind, this has no force. In fact petitioner on the basis of this summons not only put in appearance before the Court but also applied for leave to defend within time as per the provision of Section 25-B(5) of the Act. It is not his case that he could not file leave to defend application within time or that he was misled due to the vagueness of the summons. Because of non- mentioning of the name of the Act, to my mind, did not tentamount to a triable issue. Hence on this ground no leave to defend could be granted. Having exhausted the remedy of filing the leave to defend application within time, the arguments that summons did not contain the name of the Act has no force.
(6) So far as the question of respondent being neither the owner nor the landlord, to my mind, this argument has also no force. In the Lease Deed executed on 23rd April,1988 of which execution has not been denied by the petitioner it has been clearly mentioned that Dr.M.R.Mahajan, father of the present respondent, was admitted to be the owner of the premises in question. As regards the question of purchase of stamped papers in May,1988 it has been explained by the respondent. Even from the reading of para No.4 of the lease Deed it gets clear that tenancy was to commence from 23rd April,1988, therefore, this date was given though paper was purchased subsequently in May,1988. This explanation appears to be plausible coupled with the fact it gets supported from the reading of para No.4 of the lease deed. It does not raise any triable issue nor can prove that the lease deed dated 23rd April,1988 is a forged document. This was duly signed by the petitioner herein in 1988 itself. The recital of this document clearly shows that this petitioner admitted the father of present respondent to be the owner of this premises and never challenged by the present petitioner. Now he is estopped from challenging the same after number of years.
(7) So far as the indenture dated 26th May, 1949 by virtue of which the father of the respondent Prof.Munshi Ram Mahajan purchased the land underneath this property shows that the same was purchased by him from Delhi Land & Finance Limited, a company registered under the Companies Act. This indenture shows that Prof.M.R.Mahajan purchased a piece of land bearing Plot No.99 admeasuring 134 sq.yards held on a perpetual lease from Delhi Improvement Trust. This lease provided that the plot purchased by Mr.Mahajan would not be assigned, sub let or part with possession without the consent of vendor and in violation of the terms of the lease, meaning thereby that the purchaser could not transfer nor could sell the plot. There is no restriction on the purchaser that after constructing the house he could not give it on rent. Letting the house on rent is neither parting with possession nor sub-letting. Therefore, the argument that the purchaser could not ve let out the house in view of this clause is without substance. As a matter of fact, one of the clause of the indenture shows that the building constructed on this plot has to be used as a private dwelling only and not for any other purpose whatsoever. It is also a term of the indenture that in case the purchaser failed to comply any of the conditions, the vendor would be within its right to forfeit the earnest money and take back the possession, it is not the case of the petitioner herein that Delhi Land & Finance Limited has re-entered the property in question. Clause 5 of the indenture shows that after the building was completed the vendor was to allow the purchaser to use this building as per the terms and conditions of the lease. There is no condition in the lease imposing on the purchaser that he cannot let out the premises on rent. Therefore, the contentions of Mr.Girdhar Govind that the respondent or for that matter his father had no authority to let out the premises on rent being not an owner of the house does not hold good. In fact in view of the terms of the indenture which document Mr.Girdhar Govind has relied it does not lie in the mouth of the petitioner herein to contend that the property does not belong to the father of the respondent or that he was not the owner. The Additional Rent Controller rightly concluded that father of the respondent purchased the property. He let out the same to Mr.B.Banerjee on rent as owner vide lease deed dated 23rd April,1988. ownership of Mr.Mahajan was not denied by the present petitioner at the time of execution of the lease deed dated 23rd April,1988. The Supreme Court in almost similar circumstances in the case of Swadesh Ranjan Vs. Hardeb Banerji, 1992 Rlr (SC) 392 held that an owner requiring the tenanted premises for own use need not strictly show that he is absolutely owner. His claim is good against all the world (including tenant) except true owner. He has only to show that he has better and superior title than tenant, in the case in hand title of ownership of the respondent is better than that of the petitioner. There is no one else who has claimed ownership of this premises. The Indenture dated 26th May,1949 proves that Prof.Munshi Ram Mahajan purchased this property and became the owner and his ownership was accepted by the present petitioner as tenant when he executed lease deed on 23rd April,1988. -Therefore, from the perusal of the affidavits and the documents annexed with it, I find no force in the submissions of the petitioner nor find any triable issue.
(8) The question as to for what purpose the premises was let out for that we have to see the purpose when the premises was let out. The terms of the lease deed dated 23rd April,1988 clearly show that this premises was let out for the residential purpose only. The contention of Mr.Girdhar Govind that subsequently the petitioner started using it for commercial purpose has no force because no consent of the landlord/owner to use the premises for commercial purpose placed on record. Premises was let out for residential purpose as per the lease deed, hence it is sufficient to conclude that the premises was let out for residential purposes only. In view of the written lease deed, it cannot be called a triable issue.
(9) So far as the present premises occupied by the respondent, it is not denied by the petitioner that it is a tenanted premises. He is occupying it as an employee. It is stated at the Bar that he is to retire in March,1997. The respondent cannot be forced to occupy the tenanted premises in preference to his own house.
(10) For the reasons stated above, I find no merits in this petition nor any infirmity in the order of the Additional Rent Controller. Dismissed.