Delhi High Court
Madhumati Kaur vs Harish Chander Khanna on 27 January, 1997
Equivalent citations: 1997IAD(DELHI)672, 65(1997)DLT658, 1997(40)DRJ634, 1997RLR129
JUDGMENT Usha Mehra, J.
(1) RESPONDENT-LANDLORD an 85 years old man, filed a petition in July,1992 seeking order of eviction against his tenant (petitioner herein) on the ground of bonafide requirement. The tenanted accommodation was required by him for himself, for his 80 years old wife. She is bed ridden. The old couple has to engage the services of a maid servant to lookafter his wife who is incapacitated. His wife has been suffering from diabetics and high blood urea. As a result of this illness she has developed wounds on her ankle, wherefrom pus is oozing out all the times. She has been suffering from this ailment for the last about 7 years. The accommodation with him consisted of two rooms, kitchen, bath, latrine and a courtyard. He has one married son. Son has children, he also have four married daughters. One of his daughter died leaving behind children. The married daughters with their children visit the petitioner. They stay with him. The accommodation with him is not sufficient to accommodate them as well as his son and his family who frequently visit and stay with him. Hence his requirement for additional accommodation. The accommodation with him is not sufficient to accommodate his family. He needs a room for himself, one separate room for the maid servant who looks after his wife and one room for his guests. Moreover, the tenant lives with her daughter at Bombay. She has sub let one room to one Mr.Rama Nand Gupta who happens to be neighbourer. It is in this background that the petition for eviction was filed. Leave to contest sought by the present petitioner was declined. It is against this order of declining the leave to contest that present petitioner Smt.Madhumati Kaul has preferred this petition.
(2) The leave to contest was sought on two grounds namely (i) that the sub-tenant Mr.Rama Nand Gupta had not been imp leaded as a party. The landlord in his petition under section 14(1)(e) himself had pleaded that part of the premises was in occupation of a sub-tenant. In this view of the matter when admittedly there existed a sub- tenant in the premises in question the provisions of Section 25B of the Delhi Rent Control Act (in short the Drc Act) cannot be attracted. The leave to contest can only be sought by a tenant and not by sub-tenant. Sub-tenant being necessary party having not been imp leaded, leave ought to have been granted. It raises substantial question of law and needed evidence. Secondly, leave was sought on the ground that the accommodation in possession of the respondent/landlord was sufficient. The landlord had not described the accommodation with him properly. Since there was a dispute with regard to accommodation in possession of the landlord hence this being a disputed question of fact, leave ought to have been granted.
(3) Repelling these arguments the Additional Rent Controller (in short the ARC) by the impugned order dated 30th October,1995 concluded that since the sub-tenant had not been imp leaded, therefore, there was no question of granting leave on that ground. Leave was not sought by a sub-tenant nor sub-tenant was before the Court. Only tenant had been imp leaded. It was he who applied for leave hence the provisions of law as envisaged under Section 25-B would apply. In fact the impugned order is well reasoned. The Arc has discussed in details all the aspects of the case and the contentions raised by the parties. The impugned order is based, to my mind, on correct interpretation of law. Reliance by the petitioner on the decision of this Court in the case of Siri Pal Jain V._Brij Kishore reported in 1982 Rlr (Note) 50 is misplaced. In that case sub-tenant was imp leaded as a party. The said sub-tenant had sought leave hence the Court concluded that since sub-tenant a party to the petition had sought leave it was not permissible under the provisions of Section 25-B of the Act. It is only a tenant who can seek leave and not a sub-tenant. In that case this Court observed that:- @SUBPARA = "As the sub-tenant had been made a party and eviction order is also sought against her, petition cannot be tried under Section 25-B,since a sub-tenant has not been given any right to apply for leave to defend and also allegations against her cannot be deemed to be admitted and no eviction order under Section 25-B can be passed against a person who is not a tenant."
(4) That decision had been distinguished by the learned Arc and, to my mind, rightly so. The conclusion arrived at by the learned Arc after interpreting Section 25-B and drawing distinction with the facts of Siri Pal Jain (Supra) with that of this case cannot be faulted with. In Sir Pal Jain's case (Supra) sub-tenant was a party to the petition, therefore, the Court observed that he being not a tenant had no right to seek leave to defend under Section 25-B of the Act. But in the case in hand the sub-tenant had not been imp leaded as a party, therefore, the question of seeking or granting leave to defend under Section 25-B to him did not arise. It had never been the case of the parties that the said sub-tenant was lawfully inducted as sub-tenant and that too with the consent of the landlord. This can be seen from the reading of para 16 of the petition. In para 16 it has been specifically mentioned that the tenant had sub-let and parted with possession of one room to Mr.Rama Nand Gupta and remaining rooms are lying locked. The said Rama Nand Gupta happens to be a tenant of the other portion of the building. It had not been the case of the petitioner (respondent before the ARC) that the sub-tenant was lawfully inducted with the consent of landlord as sub-tenant. Rama Nand Gupta alleged to be a sub-tenant inducted by tenant without the consent of landlord hence he had no right in the premises in question, therefore, need not have been imp leaded as party. This Court in the case of Sh.Tara Chand V. Mst.Marrium Bi and Anr. reported in 1970 Rcr 438 observed that:- @SUBPARA = "On the general principal that the right of the sub-tenant depends on the continuance of the right of the tenant, the sub-tenant goes out with the tenant. Section 18(1), however, confers a special right on a sub-tenant to become a direct tenant of the landlord, after the termination of the tenancy of the tenant provided that such a sub-tenant has complied with the provisions of sub- section (2) of Section 17. It is this special right which alone, could have enabled the appellant to continue in possession after the eviction of the tenant. It is clear that the appellant has not acquired this special right in the present case. The conclusion is that even if the appellant is assumed to have been a lawful sub-tenant within the meaning of sub-section (1) of Section 16, he is not entitled to continue in possession after eviction of the tenant under Sub-section (1) of Section 18."
(5) The observations of Justice V.S. Deshpande, (as his lordship then was) as quoted above clearly show that under Section 25B of the Act only two categories of persons can make objection namely; (1) a lawful subtenant who is acceptable to become a tenant under Section 18(1) and secondly a person having independent title to the premises. As per pleadings of the parties available on record it is apparent that Rama Nand Gupta was not inducted as sub-tenant by the petitioner with the consent of respondent/ landlord. He, thus has no independent title in the premises. In the absence of any independent title he need not have been imp leaded as party. Non-impleading him as party has not effected the decision on merits in any manner. The word "independent title" means a title which is not derived through someone else, but which is independent of it. The facts available on record show that Rama Nand Gupta derives his title from the petitioner and not independent of him. Therefore, it was not necessary for the respondent to implead him a party. On this count, I find no substance in the contention of Mr.Bhatia. In fact the learned Arc has very well dealt with this point. Learned ARC's order is a well considered order. With regard to point No.1 raised by Mr.Bhatia I find no merits in the contentions nor any ground built to interfere with this part of reasoning of the ARC.
(6) Now turning to the question of accommodation we must look to the site plan filed with the petition. Site plan shows there are two rooms on the ground floor. This fact is not disputed. With the affidavit of the respondent certain documents were filed. One of the document is a sale deed which shows second floor of the house was sold by the respondent about five years back i.e. much before the institution of the petition. One room was vacated by Shri Pankaj Seth. The respondent has shown the said room to be in his possession. The documents filed by the respondent formed part of his affidavit hence could be read by the Court as part of landlord's affidavit. No rejoinder affidavit was filed by the petitioner. In his affidavit the respondent depicted clear picture with regard to the accommodation in his occupation. Mere denial of these facts without prima facie substantiating the same by way of affidavit, to my mind, did not raise any dispute which could disentitle the respondent from the order of eviction. The contention of Mr.Bhatia that the A.R.C. could not have looked into the documents annexed with the affidavit of the landlord, this argument has no force. Reliance by Mr.Bhatia on the decision of Supreme Court in the case of Precision Steel Engineering Works Vs. Pem Deva is of no help to him. In that case the Apex Court held that the Tribunal could only look into the affidavit filed by the tenant and counter affidavit filed by the landlord. It was nowhere held in that case that the document which formed part of the affidavit can also not be looked into. On the contrary this Court in umpteen number of cases took the view that the documents which formed part of the affidavit can be looked into and relied upon. Such a document forming part of the affidavit could be considered for arriving at a correct decision. Reference in this regard can be had to following decisions D.N.Sharma V. Mr. S.P.Puri reported in 1995 Iii Ad (Delhi) 353, International B & F Co. Vs. J.S.Rikhy reported in 1985 Rajdhani Law Reporter 81, Sham Singh Bisht V. Sushil Bhatia reported in 1992 (1) Rcr 678, Bachan Singh V. Rajinder Pershad reported in 1984 Rajdhani Law Reporter 706, Sakhi Bai V. Major Satish Kumar Sabharwal , K.D.Gupta V. H.L.Malhotra reported in 1992 Rlr 323.
(7) In all these cases it was held that a tenant is not entitled to leave to defend unless he discloses the facts which would result in disentitlement to the landlord of order of eviction. Mere assertion of the petitioner that in the affidavit details had not been disclosed, that to my mind was sufficient to grant leave nor any credence can be attached to the same. It is only when a triable issue is raised that the landlord would be disentitled to the order of eviction.
(8) So far as the occupation of a portion of the house by Mr.Suresh Chand Bhargava and Smt.Raj Rani, mother of Suresh Chand Bhargava, the Trial Court dealt with it at length and I find no infirmity in the reasoning given by the learned Arc in arriving at that conclusion. Similarly, the allegation of the petitioner that respondent had constructed five rooms on the top floor and let out the same to M/s Phhol Chand Jain and Narender Kumar Jain, is belied from the documents filed by the respondent by way of his affidavit. One of the document namely sale deed shows that the top floor was sold by the respondent way back on 22nd February,1989 to Narender Kumar Jain. Narender Kumar Jain had become owner of the top floor. He constructed rooms on that top floor. Respondent- landlord had no right over the same. Regarding the room vacated by Pankaj Seth that has also been explained by the respondent/landlord when he stated that out of the two rooms shown in his occupation one room was the one vacated by Pankaj Seth. In view of the requirement which have been disclosed by the respondent-landlord it cannot be said that the two rooms with him are sufficient to accommodate himself, wife, maid servant and visiting daughters, son and their children.
(9) For the reasons stated above, I find no infirmity in the order and no merit in this petition. Dismissed.