Delhi District Court
Manpreet Kaur vs Sh. Ramesh Kumar Jain on 17 January, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT appeal No. 58/11
Unique ID No. 0240IC0366052011
Manpreet Kaur,
W/o Late Sh. Maninder Singh
R/o 1 KA-42, Vigyan Nagar,
Kota, Rajasthan.
...........Appellant
Versus
1. Sh. Ramesh Kumar Jain
S/o Late Sh. Mussadi Lal Jain,
R/o 5174, Basant Road, Pahar Ganj,
New Delhi.
2. Sh. Jaswinder Singh
S/o Late Sh Jagjeet Singh,
R/o B-96, Shivaji Vihar,
New Delhi-110027
3. Smt. Parvinder Kaur
W/o Sh. Pritpal Singh
R/o Flat No. 101, SFS,
Rajouri Apartment,
Rajouri Garden,
New Delhi-27. ..............Respondents.
Date of institution of appeal : 10.08.2011
Date when final arguments were heard: 05.01.2012
Date of pronouncement of judgment :17.01.2012.
JUDGEMENT :-
Appellate jurisdiction of this Tribunal has been invoked by the appellant/objector, feeling aggrieved by the order dated 01-06-2011 passed by Shri Pritam Singh, Addl. Rent Controller (Central) whereby the objection petition moved under Section 25 of DRC Act has been dismissed. 2- Briefly stated facts giving rise to the present appeal are that with respect to the tenanted premises, viz. shop bearing No.5179, Basant Road, Pahar Ganj, New Delhi, an eviction petition bearing No.266/2009 was filed by the respondent No.1 herein only against respondent no.2 herein. The appellant is (RCT Appeal No.58/11) (Page 1 of 21) the sister in law (Bhabhi) whereas respondent no.3 is the sister of respondent No.2 An eviction order against respondent No.2 herein was passed by the learned Addl. Rent Controller vide order dated 13-8-2010. Respondent No.2/judgment debtor filed a revision petition vide RCR No.08/2010 before the Hon'ble High Court which was dismissed by the Hon'ble High Curt vide order dated 15-1-2010. Decree holder filed execution petition and the objector/appellant claiming herself to be one of the legal heirs of original tenant late Shri Jagjit Singh filed the objections under Section 25 of DRC Act inter-alia on the allegations that she is the daughter-in-law of late Shri Jagjit Singh who was tenant in the premises in question and after death of Shri Jagjit Singh on 17-2-2007, all his legal heirs including herself stepped into his shoes and became co-tenants. This fact was admitted in the legal notice dated 03-07-2008 by the petitioner/decree holder. It was alleged that the eviction petition was filed only against Jaswinder Singh (son of Jagjit Singh), leaving all other legal heirs of late Jagjit Singh and got an eviction order concealing the fact that there are other legal heirs of late Shri Jagjit Singh and hence eviction order was not binding against other co-tenants. The matter was adjudicated and dismissed by the learned ARC vide order dated 1-6-2011.
3. Feeling aggrieved by the impugned order, the present appeal has been preferred by the appellant/objector. Alongwith the appeal, an application for condonation of delay has been filed.
4. Notice of the appeal as well as application for condonation of delay was given to the respondent and the trial court record was summoned.
5. I have heard Shri Harsh Gupta, Counsel for the appellant; Shri Vijay Wadhwa Counsel for respondent No.1/decree holder; respondent no.2 who appeared in person (RCT Appeal No.58/11) (Page 2 of 21) and Shri S.K.Sharma, counsel for respondent No.3 and have also perused the records carefully.
6. It was submitted by learned Counsel for the Appellant that suit premises are commercial in nature and was under
the tenancy of late Shri Jagjit Singh. His tenancy was never determined by respondent No.1 during his lifetime. On the demise of late Shri Jagjit Singh on 17-2-2007, all his legal heirs including the appellant who is his daughter-in-law, became co-tenant with respect to the tenanted shop. In this regard reliance was placed on Gian Devi Anand vs. Jeevan Kumar and others, AIR 1985 SC 796. In fact, as per the case of respondent No.1, he himself has reflected in para 3 of the notice that after the death of original tenant, all legal heirs became tenants. Despite that eviction petition was filed only against the son of Jagjit Singh. Application for leave to defend was filed which was rejected and eviction order was passed. However, since tenancy was not determined during the lifetime of original tenant, therefore all the legal heirs of deceased Jagjit Singh inherited as co-tenants and not as joint tenants. In this respect, reliance was placed on Vidyawati Vs. Taken Dass and another ILR1974 Delhi 835. It is contended that respondent No.1 deliberately filed an eviction petition under Section 14(1)(e) of DRC Act only against respondent no.2, without impleading any other co-tenants, knowing fully well that applicant is one of the co-tenants, being legal heirs of late Shri Jagjit Singh. It is further contended that respondent No.1 never informed the appellant about pendency of eviction petition for the reasons best known to him and he did not take care of the interest and rights of the appellant. Lastly, it was submitted that learned ARC did not grant time to the appellant to seek redressal of her grievance by exercising her statutory right to prefer an appeal against the impugned order and on 9-6-2011., i,e a week after the passing of the impugned order, (RCT Appeal No.58/11) (Page 3 of 21) bailiff was appointed to take possession of the tenanted shop. Under the circumstances, it was submitted that the impugned order be set aside and the objections filed by the objector/appellant be allowed.
7. Per contra, it was submitted by learned Counsel for the DH that eviction order with respect to the tenanted shop was passed by learned ARC vide order dated 13-8-2010.. JD had filed a revision petition vide RCR No.8/2010 before the Hon'ble High Court and same was dismissed vide order dated 15-1-2010. Thereafter decree holder filed execution petition and the objector/appellant claiming to be one of the legal heirs of late Shri Jagjit Singh filed objections under Section 25 of DRC Act which was dismissed by learned ARC. Thereafter present appeal has been preferred. It was submitted that in the grounds of appeal, the appellant has set up a new case in sub para (d) (e) and (g) which was never urged before the learned Trial Court and she can not be permitted to raise these pleas for the first time in the present appeal. Moreover, the appellant has failed to establish any independent right in the tenanted shop. She is making her claim through original tenant late Jagjit Singh, being one of hi legal heirs. It was submitted that as per legal settled proposition, eviction order is binding not only on the JD who was a party to the eviction petition but on all the persons who may be in occupation of the premises and they are bound to give peaceful and vacant possession of the tenanted shop to the decree holder/landlord. Reference was made to the conduct of the appellant, for submitting that appellant has failed to disclose as to how she came to know about the pendency of the execution petition. The appellant is estopped from claiming any independent tenancy right in the shop in question. By her conduct, she did not raise any objection to the eviction petition, by deposit of rent petition which was filed by respondent no.2. It was further (RCT Appeal No.58/11) (Page 4 of 21) submitted that if the appellant is relying upon the notice which was issued by landlord that she has stepped into the shoes of her father, then what were the circumstances which stopped her from tendering rent and raising objections against DR petition filed by respondent No.2 or replying to the said notice. Her malafide is apparent from the fact that on the one hand it has been contended that she came to know about the eviction petition and immediately contacted her counsel but failed to explain as to what stopped her from approaching the Court despite being aware of the eviction petition. Moreover, respondent no.2 has also raised objection before the Hon'ble High Court with respect to the fact that other legal heirs of late Shri Jagjit Singh have not been made party in the eviction petition but the said objection was not considered by the Hon'ble High Court and revision petition was dismissed. Principle of Implied Surrender of tenancy right is applicable inasmuch as other legal heirs of late Shri Jagjit Singh never raised any objection either in the eviction petition nor ever tendered any rent to the landlord at any point of time. Reliance was placed on K.L. Diwan and others Vs. Mohan Malhotra and another 158(2009) DLT 442 and Pushpa Rani and others Vs. Bhagwanti Devi & others, AIR 1994 SC 774.
8. It was further submitted that it was rightly held by learned ARC that appellant and respondent No.2 are joint tenants and therefore, the eviction order passed against one of the legal heirs is binding on other legal heirs and it was not necessary for the landlord to implead all the legal heirs as party to the eviction petition. Reliance was placed on :-
(i) Harish Tandon Vs. Addl. District Magistrate, Allhabad (1995) 1 SCC 537;
(ii) H. C. Pandey Vs. G. C. Paul (1989) 3 SCC 77;
(iii) Mitrasen Ashok Kumar & Ors. Vs. Ram Niwas 2006 (1) (RCT Appeal No.58/11) (Page 5 of 21) AWC 391 ;
(iv) Mr. Ashok Kumar Gupta Vs. Ms. Renu Chawla & Anr. CM (M) No. 1049/2010 DOD 19.08.2010;
(v) Inder Pal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD Delhi 328;
(vi) Krishna Devi Vs. Bhool Singh through L.Rs 82(1999) DLT82;
(vii) Tahira Begum Vs.Sumitar Kaur and others 166 (2010) DLT 443;
It was further submitted by placing reliance on Krishan Kumar Alag Vs.Jambu Prasad Jain reported in 161 (2009) DLT 511 that a person who claims to have independent title in the demised premises,must not claim through tenant but must assert that he had come to the possession at the behest of landlord. In any case, it is not the case of the appellant that she came in possession of the premises at the behest of the landlord, rather she is claiming possession being legal heirs of late Shri Jagjit Singh and that too without any proof. It was next submitted that appellant was never in possession of the tenanted shop which fact is established from the report of Bailiff who visited the tenanted shop and found respondent No.2 to be in possession of the tenanted shop and he had given in writing that he shall comply with the orders of the Court but the appellant was never found at the suit premises. In fact, after the death of original tenant Jagjit Singh, his son Jaswinder Singh (respondent No.2 herein) has been running the shop and was in exclusive possession of the same. He has also tendered rent only on his behalf through money order to the decree holder and on his refusal, has filed a DR petition for deposit of rent, claiming himself to be the tenant of the suit premises. The decree holder issued a legal notice dated 31- 7-2008, stating that other legal heirs stepped into the shoes of (RCT Appeal No.58/11) (Page 6 of 21) Jagjit Singh. In reply, JD (respondent no.2) denied the same and contended that he alone is in possession of suit premises after the death of his father. As such, objector is estopped from claiming tenancy right through her father-in-law. Malafide on the part of objector is also borne out from the fact that objector is relying on the notice issued to the DH/JD whereas she contended that JD has concealed the fact with regard to the eviction petition and did not inform the objector about the eviction proceedings. If that was so, how the objector procured legal notice from the JD which was issued to him only.
9. It was further submitted that objections are otherwise not maintainable inasmuch as the appellant filed objections claiming herself to be the widow of son of deceased Jagjit Singh/ tenant who predeceased the tenant. In fact the objector remarried even prior to the death of original tenant Jagjit Singh but this fact was never disclosed in the appeal and as such appellant is guilty of suppressing the material fact and appeal is liable to be dismissed on this ground also. It was further submitted that despite directions given by learned ARC to the appellant to file an affidavit to show her present status, the appellant failed to file any affidavit. Under the circumstances, keeping in view the fact that objector/appellant got remarried during the lifetime of original tenant, she has no locus standi to file the objections and/or the present appeal. Since she suppressed the material fact from the Court, as such, appeal is liable to be dismissed with exemplary costs.
10. During the course of arguments, though It was not disputed by the learned Counsel for the appellant that the appellant has got remarried during the lifetime of original tenant, but it has been submitted that the appellant has also got a child who is the legal heir of the deceased and as such objections as well as appeal are maintainable.
(RCT Appeal No.58/11) (Page 7 of 21)
11. In rebuttal, it has been submitted by learned Counsel for the respondent No.1 that for the first time this plea is being set up that the objector has got a child but neither in the objections nor in the grounds of appeal, it was averred that objector has got any child. Be that as it may, the appeal has not been filed on behalf of the Child.
12. It was further submitted that there is also delay in filing the appeal for which no satisfactory explanation has been given and therefore, besides the fact that appeal is not legally maintainable, even otherwise same is liable to be dismissed on the point of delay.
13. As regards delay, it has been submitted by the learned Counsel for the appellant that appellant was residing outside Delhi and was not informed by her Advocate regarding dismissal of the objections and thereafter she fell ill and after recovery she came to Delhi and then; file the present appeal. As such it was submitted that there are sufficient grounds for condonation of delay which be condoned in the interest of justice.
14. I have given my considerable thoughts to the respective contentions of the parties counsel and have perused the record carefully.
15. First of all, I shall take up the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. At the outset it may be mentioned that Section 38 of the DRC Act provides for filing of appeal to the Tribunal. Sub- section (2)of Section 38 provides for limitation of filing the appeal before the Tribunal. This sub-section reads as under :-
"(2) An appeal under sub-
section (1) shall be preferred within thirty day's from the date of order made by the Controller:
Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty day's, if it (RCT Appeal No.58/11) (Page 8 of 21) is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time."
Perusal of this sub-section goes to show that limitation prescribed for filing appeal before the Rent Control Tribunal is 30 days from the date of passing of the impugned order.
Indisputably, the impugned order was passed on 1-6-2011. However,the appeal has been filed only on 10-8-2011. That being so, on the face of it, the appeal is barred by time. Proviso appended to this sub-section, however,provides that on showing "sufficient cause", the Tribunal may condone the delay in filing the appeal. Although the application for condonation of delay has been filed but keeping in view the fact that specific provision has been made under DRC Act, which is complete Code in itself, therefore, the application should have been under Section 38 of DRC Act itself. However, it is settled principle of law that the Court is not to go by nomenclature of the application but has to go by its substance and therefore, even if it is moved under Section 5 of the Limitation Act, it is to be treated as having been filed under Section 38(2) of the DRC Act.
16. Question for consideration is whether there are sufficient ground for condoning the delay in filing the appeal. It is alleged in the application that appellant is residing in Kota (Rajasthan). She engaged a counsel who filed objections but due to some error in communication, he could not inform her about dismissal of the objection petition. Thereafter she appellant had fallen ill and was not able to travel to Delhi. When she became stable, she came and contacted her Counsel who could not find the case file as there were vacations and he was out of station. Later on, file was traced and new counsel was engaged who applied for certified copy. As such delay of 25 days has occurred in filing the appeal. It (RCT Appeal No.58/11) (Page 9 of 21) is alleged that delay is unintentional and not deliberate.
17. The application is opposed by respondent no.1/DH on the ground that no good and sufficient cause has been shown for condoning the delay in filing the appeal within stipulated period. It was further submitted that it was not the duty of the Counsel to inform his/her client rather it was the duty of the appellant to remain in touch with the Counsel and to get information about the proceedings of the case and final order. It is not explained as to how many days she was unable to contact her counsel and when she came to know about dismissal of the objections. It was also denied that appellant had fallen ill in Kota from viral fever and was not able to travel to Delhi. Remaining averments were also denied, by stating that appellant failed to file any document in support of her application, nor she filed any medical certificate.
18. In Writ Petition No.2165/2006 titled as SOW Kamal Bai w/o.Narasaiyya Shrimal and Narasaiyya s/o. Shayana Shrimal Vs. Ganpat s/o Vithalrao Gavare (Manu/MH 0865/2006), it was held as under :-
"The expression "sufficient cause"can not be erased from Section 5 of the Limitation Act, by adopting excessive liberal approach which would defeat very purpose of Section 5 of the Limitation Act. There must be some cause which can be termed as "sufficient" one for purpose of condonation of delay.
Similar view was taken in MCD Vs. Vasdev Sharma (Manu :
DE 0540/2005 and Union of India Vs. Kameshwar Dubey (Manu: DE/2954/2005. Inder Industries vs. Gemco Electrical Industries 147(2008) DLT 305 was a case where application under Order IX rule 13CPC was moved alongwith application under Section 5 of the Limitation Act for condonation of delay in filing the application. The plea taken was that there was lawyers' strike and his Advocate could not (RCT Appeal No.58/11) (Page 10 of 21) appear. It was held by Hon'ble high Court that plea taken was too feeble an excuse to be taken seriously. The appellant indulged in hubble bubble and did not clarify the position. No action was initiated against the Advocate for reasons best known to the Appellant. It was further observed that such like story can be minted at any point of time. No cogent and plausible reason was given by the Applicant in his application for condonation of delay. No extraneous circumstances, justifies condonation of delay. For the purpose of condonation of delay, there must be some cause which can be termed as "sufficient cause".
18. This being the legal position, in the instant case it has to be seen whether the appellant has been able to assign any sufficient cause for delay in filing the appeal. Perusal of entire application goes to show that very vague averments have been made, inasmuch as it is alleged that due to some error in communication, counsel could not inform the Appellant about dismissal of the objections. There is force in the submissions of leaned Counsel for the Respondent No.1/JD that after having filed objections, it was the duty of the Appellant to know about the fate of her objections and she can not shift entire liability upon her counsel. Moreover, it is not disclosed as to when he came to know about dismissal of the objections. However, a vague plea has been taken that she had fallen ill in Kota and was suffering from Viral Fever and therefore, could not travel to Delhi. Besides this, it is not disclosed as to when she suffered from viral fever and even no medical certificate has been placed on record to substantiate her averments. In fact, entire averments are quite vague as to when she came to know about dismissal of the objection or when she suffered from Viral Fever and when she came to Delhi and contacted the counsel. It is settled law that it is not length of delay which is crucial for consideration of application for condonation of (RCT Appeal No.58/11) (Page 11 of 21) delay but it is sufficiency of the cause which matters. Even one day's delay has been held to be fatal. In the instant case, application lacks material particulars and is not even supported by any documentary evidence. In the circumstances, the appellant has failed to assign any cause much less "sufficient cause " for condonation of delay in filing the appeal. Therefore, application under Section 5 of the Limitation Act in filing the appeal is dismissed. 19- Since the appeal is barred by limitation, the appeal is liable to be dismissed on score. Even on merits, the appellant has no case.
20. It is undisputed case of the parties that appellant/objector filed objections under Section 25 of DRC Act which reads as under :-
"25. Vacant possession to landlord:-
Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this act for the recovery of possession of such premises, the order shall, subject to the provisions of Section 18, be binding on all persons who may be in occupation of the premises and possession thereof shall be given to the landlord by evicting all such persons therefrom:
Provided that nothing in this section shall apply to any person who has an independent title to such premises."
This Section is divided into two parts. Substantive part of this Section describes the persons on whom order of recovery of possession of the premises is binding and who are, therefore, liable to be evicted in execution of the eviction order. These are "all persons who may be in occupation of the (RCT Appeal No.58/11) (Page 12 of 21) premises". Second part of this Section consists of a proviso and as per this proviso, the order of eviction is not binding on the person who claims to be tenant of the landlord in his own right and who does not claim through the person against whom order of eviction was passed. It was held by Hon'ble High Court in Rakesh Gupta (supra) and Krishna Devi (supra) that a person who claims to have independent right in the suit premises and has filed objections under Section 25 of the Act is not bound by the order of eviction and that such person has got a right to maintain objection application before the Executing Court to resist decree of eviction passed against tenant but the person who claims to have independent title in the demised premises must not claim through tenant but must assert that he has come to the possession at the behest of the landlord. Undisputedly, the appellant is not claiming any independent title in the suit premises but is claiming title being the legal heir of deceased tenant Jagjit Singh, by submitting that even in case of commercial premises, tenancy is inheritable, as held in Gian Devi's case (supra) and therefore, the appellant/objector being one of the legal heirs of deceased Tenant is tenant in common and therefore, eviction order was not binding upon her as was also held in Vidyawati's case (supra).
21. As regards legal preposition enunciated in Gianwati's case (supra) regarding heritability even in case of commercial premises, same is undisputed. However,as regards the plea that on the death of original tenant, his legal heirs became tenant in common, the matter came up for consideration before the Hon'ble Supreme Court in H.C. Pandey (supra) and it was held that after death of original tenant, his heirs succeed to the tenancy as joint tenants and not tenants in common. This view was reiterated in Harish Tandon (RCT Appeal No.58/11) (Page 13 of 21) (supra) and it was held that after the death of original tenant, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants." Referring to Gian Devi Anand (supra), it was held as under :-
24. In the case of Gian Devi Anand Vs. Jeevan Kumar the Constitution Bench of this Court in connection with Delhi Rent Control Act, 1958 said:-
"The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act."
25. The framers of the Act have clearly (RCT Appeal No.58/11) (Page 14 of 21) expressed their intention in Sections 12, 20 and 25 while protecting the tenant from eviction except on the grounds mentioned in Section 20, that after the death of the original tenant his heirs will be deemed to be holding the premises as joint tenants and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in sub-section (2) of Section 20 are established individually against each one of them, they cannot be evicted from the premises in question.
Our own High Court in Inder Pal Khanna (supra) observed that it is settled law that on the death of tenant, tenancy devolves upon legal heirs as the joint tenancy. L.Rs are not joint tenants and not tenants in common. Once tenancy is a joint tenancy, notice to one of joint tenant is sufficient to terminate tenancy and suit can not be held to be bad for non joinder of other joint tenants or all legal heirs of deceased Tenant. In that case plea taken that the petitioner was required to be served personally, was not accepted and it was held that where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises. Service to one of the joint tenants has to be considered as service on other joint tenants because in joint tenancy, tenancy remains one. It is not separate tenancy and right of each of the joint tenants is in whole of the premises." Hon'ble High Court relied upon Kanji Manji Vs.Trustees of the Port of Bombay, AIR 1963 SC 468 wherein Hon'ble Supreme Court observed that where the tenancy was a joint tenancy, notice to one of the joint tenants was sufficient and (RCT Appeal No.58/11) (Page 15 of 21) the suit against one of the joint tenants not impleading rest of the tenants was good and the suit can not be dismissed on this ground. The plea of the petitioner that petitioner was separately required to be served personally is therefore, not tenable. The petitioner was not a tenant in common. He had inherited joint tenancy alongwith his brother and other legal heirs. Reliance was also placed on 1990(3) Delhi Lawyers 163 Mohd. Usman Vs. Surrayya Begum where it was observed as under :-
In the light of the above observations of the Supreme Court, there can be no doubt that even if one of the legal heir is not a party to the proceedings for eviction filed by the landlord against the legal heirs of the original tenant, that heir who has been left out cannot later on come forward and agitate his or her right in the tenancy.
Substantially, similar view was taken in Krishna Devi (supra), Tahir Begum (supra), Mitrasen Ashok Kumar (supra) and Ashok Kumar Gupta (supra). In view of these authoritative pronouncements, it becomes clear that legal preposition is no longer res integra that after the death of original tenant, tenancy devolves upon all legal heirs as joint tenants and all the legal heirs are not required to be impleaded as respondents. One of the legal heirs is capable to represent the entire estate, unless shown to be in collusion with the landlord.
22. In the instant case, it is alleged by the appellant/objector that respondent no.2 did not inform her about pendency of the eviction petition. This plea is not tenable inasmuch as the entire conduct of the appellant reveals that objections hae been filed by her at the behest of respondent No.2/JD who has already lost litigation upto the Hon'ble High Court. It is pertinent to note that appellant did not raise any objection to the eviction petition nor moved any application under Order 1 (RCT Appeal No.58/11) (Page 16 of 21) rule 10 CPC for her impleadment during the eviction proceedings, nor in the application for deposit of rent filed by respondent no.2.
23. Much stress was laid by the Counsel for appellant upon para 3 of the legal notice wherein it was alleged that after the death of original tenant, his legal heirs stepped into the shoes of deceased Tenant Jagjit Singh. But the appellant can not get any benefit from this legal notice, inasmuch in reply to the legal notice respondent No.2 /JD denied the said contention,rather contended that after the death of his father, he is in possession of the shop in question. It is the case of the respondent No.1/ landlord that JD was running the business in the said shop and was in exclusive possession of the same and that he alone had tendered rent to the DH and on his refusal, he had filed a DR petition for deposit of rent. It is not the case of the appellant/objector that she was ever in possession of the suit shop or tendered any rent to the DH.
As such, it was a case of Implied Surrender as held by Hon'ble Supreme Court in Pushpa Rani (supra) and by Hon'ble High Court in K.L. Diwan (supra).
24. Moreover, the fact that there was no collusion between the Decree holder and respondent no.2/JD is manifest from the fact that against eviction order, respondent no.2/JD filed a petition before Hon'ble High Court. Perusal of the copy of the order dated 15-1-2010 passed by Hon'ble Ms.Justice Hima Kohli goes to show that basic challenge to the eviction order was that the eviction petition was bad for non joinder of necessary parties as other legal heirs of the Tenant late Jagjit Singh were not impleaded as party. This plea did not find favour with Hon'ble High Court as no such plea was taken before the Trial Court and as such revision petition was dismissed.
25. Furthermore, appellant/objector has pleaded that she (RCT Appeal No.58/11) (Page 17 of 21) was never informed by respondent no.2 about the eviction petition. This plea is devoid of any merits. The appellant herself is relying upon the legal notice sent by the landlord to the JD. This notice was addressed to the respondent no.2/JD alone. It is not explained as to from whom she procured the copy of notice.
26. The nutshell of the aforesaid discussion is that since the appellant claiming herself to be one of the legal heirs of deceased Tenant, hence she was a joint tenant with other legal heirs and it was not necessary to implead her also as respondents. Moreover, she was not in possession of the demised premises. She was residing at Kota. Business in the premises was being run by respondent No.2/JD and therefore, it was he alone who tendered the rent to the decree holder and on refusal to accept rent, he filed DR petition for deposit of rent. Eviction petition was also contested by him by filing Leave to Defend wherein no objection was taken regarding non joinder of the parties. It was only when the application for leave to defend was dismissed and eviction order was passed, that JD/respondent No.2 when filed revision petition before Hon'ble High Court took a plea for the first time about non joinder of necessary party but the said plea was not accepted and the revision petition was dismissed. In order to frustrate the eviction order, the present appellant has been set up as an objector. Not only this, another objections have been filed by Smt. Parvinder Kaur ( daughter of the deceased Tenant) who is married and living separately in her matrimonial home. . As observed by Hon'ble High Court in K.L. Diwan and others (supra) that objections have been filed by petitioner to delay and defeat eviction decree which has attained finality. Even if petitioners accepted to have an independent title on account of being legal heirs of deceased tenant, they did not stake any such claim at any earlier stage (RCT Appeal No.58/11) (Page 18 of 21) and sat on the fence till after eviction order had been passed and revision petition dismissed by this Court."
27. Learned Counsel for the Appellant relied upon National Marble House Vs. Anand Prakash Jain (CM(M) 1255/2010
-decided on 22/12/2011. I have carefully perused this authority. With due respect, this authority does not help the appellant/objector in any way. In that case, landlord had filed an eviction petition under Section 14(1)(e) of DRC Act against one Devender Khosla which was not contested by him, nor any application for leave to defend was filed. On coming to know about the proceedings, the petitioner M/s National Marble House filed an application u/order I rule 10 CPC on the ground that eviction petition was filed in collusion betwen landlord and Devender Khosla and that actual tenant was the petitioner. On facts it was found that cheques were issued from the bank account of the petitioner National Marble House. The landlord himself had filed the eviction petitiion under Section 14(1)(a) and (b) of the DRC Act, alleging that Devender Khosla had sublet the premises to National Marble House. Hence, possession of National Marble House in respect of suit premises was admitted by the landlord. Legal notice was also sent to all the partners of National Marble House. Proceedings before the Arbitrator reflected that settlement took place between the partners and partnership assets had fallen to the share of other two partners. Devender Khosla did not file any application for leave to defend. Under the circumstances, it was held that active collusion between the landlord and Devender Khosla can not be ruled out and as such, petitioner was ordered to be impleaded as respondent.
28. Facts are entirely different in the instant case. At the cost of repetition, it may be mentioned that being joint tenants,there was no legal requirement for the landlord to implead appellant as party to the eviction petition. Moreover, (RCT Appeal No.58/11) (Page 19 of 21) she was never in possession of the suit premises, nor paid rent to the landlord, nor filed any application u/o.I rule 10 CPC for impleadment during the pendency of the eviction proceedings. Furthermore, there was no collusion between the decree holder and respondent No.2/JD, inasmuch as revision petition was filed by the JD before Hon'ble High Court wherein he had taken a plea of non joinder of necessary parties. After dismissal of the revision petition, at his behest the objections were filed which were dismissed by learned ARC by a speaking order. Under the circumstances, I hold that there is absolutely no infirmity in the impugned order which calls for interference by this Tribunal.
29. Furthermore, the appellant ceased to be Legal Heir of the deceased Tenant Jagjit Singh, inasmuch as it has come on record that appellant was the wife of son of deceased Tenant who predeceased the original Tenant. Even during the life time of original Tenant Jagjit Singh, the appellant has remarried. Trial court records reveals that appellant was directed to file affidavit regarding her status but despite directions, she failed to file the requisite affidavit. The conduct of the appellant in this regard is worth noting inasmuch as she filed appeal mentioning herself as :
"Manpreet Kaur, W/o Late Sh. Maninder Singh R/o 1 KA-42, Vigyan Nagar, Kota, Rajasthan"
After having remarried,in all fairness the appellant should have mentioned the name of her present husband but in order to claim that she is daughter in law of Jagjit Singh -deceased tenant and therefore, one of the legal heirs of deceased tenant, sh chose to mention name of her deceased husband, while suppressing material facts of having remarried. In fact, after having remarried, she ceased to be legal heirs of deceased Tenant and therefore,could not even file objections.
(RCT Appeal No.58/11) (Page 20 of 21) Confronted with this position, during the course of arguments, it was submitted by learned Counsel for the Appellant that besides the appellant she is also having a child who is legal heir of deceased Tenant and therefore,objections as well as appeal are maintainable. This submission is absolutely devoid of merits, inasmuch as neither in the objections nor in appeal it was ever averred that appellant is also having any child, nor appeal has been preferred on behalf of the child. That being so, even otherwise appeal filed by this appellant is not maintainable. In fact by filing objections as well as appeal, the appellant has tried to abuse the process of law. At this juncture it will be relevant to reproduce observations made by Hon'ble Supreme Court in SP Changal Wariya Naidu (dead by L.Rs) Vs. Jagan Nath (dead by L.Rs), AIR 1994 SC853, where it was observed as under :-
The principle of "filing of litigation" can not be pressed to the extent of such a absurdity that it become an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands.........
We have no hesitation to say that person whos1`e case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
30. In view of the aforesaid discussion, firstly the appeal is barred by time. Moreover, even otherwise it is bereft of any merits and in fact appellant had no right either to file objections or the appeal. As such, same is dismissed subject to Rs.5000/- as costs.
Let a copy of this order be sent to the trial court while returning the record.
Appeal file be consigned to record room.
Announced in open Court (SUNITA GUPTA )
on 17.01.2012 Rent Control Tribunal:
Delhi.
(RCT Appeal No.58/11) (Page 21 of 21)