Delhi District Court
Mrs. Shimla Rani vs M/S Capitol Art House Pvt. Ltd on 29 February, 2020
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IN THE COURT OF MS. POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE (SOUTH)
SAKET, NEW DELHI
CISRCT No. 212019
CNRDLST01 0063612019
Mrs. Shimla Rani
Wife of late Shri Subhash Chand Bhalla
R/o 40, New Mangla Puri,
Mehrauli,
New Delhi ... Appellant
Vs.
1. M/s Capitol Art House Pvt. Ltd.
Registered office:
10D, Sagar Apartments,
6, Tilak Marg,
New Delhi110 001
Through its Director
Mr. Sanjeev Batra
2. Shri Ramesh Chander Bhalla
3.09, SFS Flats, Hauz Khas
New Delhi. ... Respondents
Date of Institution : 17.09.2019
Arguments concluded on : 27.02.2020
Judgement pronounced on : 29.02.2020
APPEAL UNDER SECTION 38 OF DELHI
RENT CONTROL ACT AGAINST ORDER
DATED 05.08.2019 OF LD. ACJ/ CCJCUM
CIS RCT ARCT 21/2019
Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 1 of 25
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ADDL.RENT CONTROLLER (SOUTH), IN
RC/ARC NO. 19/2018 TITLED AS M/S
CAPITOL ART HOUSE PVT. LTD. VS SHRI
RAMESH CHANDRA BHALLA & ANR.
JUDGMENT
1.0 Vide this appeal, the appellant has challenged the order dated 05.08.2019 ("impugned order) of the Ld. ACJcumCCJ cumAddl. Rent Controller, South ('ARC' in short) whereby the respondent's/ owner landlord's application under Order XII rule 6 CPC filed in eviction petition bearing no. RC/ARC 19/2018, under Section 14(1)(b) of Delhi Rent Control Act, 1958 ('DRC Act' in short) in respect of Shop no. 4/5 at 4/114 (A1/4), Ward no.1, Mehrauli, Near Tikona Park, Opposite Qutub Minar, New Delhi110 030. ("Suit Premises" in short) was allowed; and the appellant and respondent no. 2 herein were directed to handover vacant possession of the suit premises.
2.0 Briefly stating, the facts as per the record relevant for disposal of the appeal are, that the respondent no. 1 M/s Capitol Art House had purchased the suit premises from legal heirs of late Shri Raj Nath vide Sale Deed dated 13.06.2012. The suit premises had been let out to Shri Ramesh Chander Bhalla / respondent no. 2 herein vide Rent Deed dated 01.02.1974 by late CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 2 of 25 :: 3 ::
Shri Raj Nath, the predecessor in interest of the respondent no.1 herein. But, Sh. Ramesh Chander Bhalla vide a Memorandum of Family Settlement dated 17.02.2004, transferred the possession of the tenanted / suit premises to Smt. Shimla Rani, the appellant herein, without the consent of the landlord. The respondent no. 1 thus, filed petition seeking eviction of the appellant and the respondent no. 2 herein under Section 14(1)(b) of Delhi Rent Control Act pleading that Sh. Ramesh Chander Bhalla had sublet/ assigned / parted with possession of the suit premises to Smt. Shimla Rani Bhalla, the appellant herein.
2.1 Sh. Ramesh Chandra Bhalla / the respondent no. 2 did not file any reply/ WS to the eviction petition and made a statement before Ld. Trial Court on 17.09.2018 that he did not wish to file any reply and the Court may pass any order as deemed fit. Smt. Shimla Rani (alleged subletee) / the appellant herein vide her reply / written statement admitted the Rent Deed dated 01.02.1974 in favour of Sh. Ramesh Chander Bhalla. She also admitted that the Memorandum of Family settlement dated 17.02.2004 whereby, the tenancy of the suit premises was transferred to her. Thereafter, the landlord / owner / the respondent no.1 herein filed an application Order XII rule 6 CPC praying for decree on the basis of admission by the subletee/ the appellant herein.CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 3 of 25
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2.2 The Ld. Trial Court allowed the respondent no.1's application under Order XII rule 6 CPC vide order dated 05.08.19 and directed the respondent no. 2 and Smt. Shimla Rani, the appellant herein to vacate the suit premises.
3.0 The appellant has challenged the aforesaid judgment inter alia on the grounds that:
(i) the appellant's husband Sh. Subhash Chandra Bhalla was the tenant in respect of the suit premises, who died leaving behind the appellant, as the only ClassI legal heir. The Ld. ARC failed to appreciate that it was the appellant who had inherited the tenancy rights being classI legal heir / wife of the deceased who died issueless;
(ii) Ld. ARC failed to appreciate that although, the rent agreement was obtained in the name of Sh. Ramesh Chander Bhalla /the respondent no. 2 herein, it was the appellant's husband who had actually taken the suit premises on rent for running his business of photography under the name and style of M/s Camera Film House; and it was the appellant's husband and not the respondent no. 2 Sh. Ramesh Chander Bhalla, CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 4 of 25 :: 5 ::
who had been running his business from the said premises and had been paying the rent to the erstwhile owner landlord. The aforesaid rent agreement was a sham document;
(iii) the Ld. ARC failed to appreciate that after the death of her husband, the respondent no.
2/ her brotherinlaw Sh. Ramesh Chandra Bhalla and other relatives colluded with each other to deprive the appellant of her lawful rights in all the assets left behind by her husband, on the basis of a fabricated Will of her late husband, in respect of which, the probate petition had been dismissed;
(iv) the Ld. ARC failed to appreciate that thereafter, the dispute was settled and a memorandum of family settlement was drawn and it was agreed that the appellant herein is the tenant in the suit premises and shall have exclusive tenancy rights in the suit premises being the Class I legal heir / wife of Sh. Subhash Chandra. The erstwhile landlord had complete knowledge of the litigation between the family members and had always accepted appellant's husband Sh. Subhash Chander Bhalla as the CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 5 of 25 :: 6 ::
tenant and had been collecting rent from him till May 2012;
(v) that Ld. ARC failed to appreciate that after demise of her husband, the respondent no. 2 despite settlement, had been creating problems for the appellant herein and had been colluding with the owner landlord and that is why, he did not file any written statement knowing fully well that he had no right in the suit premises and that it was the appellant only, who had succeeded the tenancy rights in the suit premises; there is no subletting by the respondent no. 2 herein to the appellant as she stepped into the shoes of her husband and succeeded the tenancy rights;
(vi) the Ld. ARC failed to appreciate that there was no unequivocal admission made by the appellant in her written statement on the basis of which any eviction order could have been passed under Order 12 rule 6 CPC;
(vii) the Ld. ARC failed to appreciate that there were triable issues which could be decided only after leading of evidence. The Ld. ARC erred in not granting opportunity to the appellant CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 6 of 25 :: 7 ::
to lead evidence / file the documents which could have been put to respondent no.1 during crossexamination;
(vii) the Ld. ARC failed to appreciate that even if it is assumed that the appellant is an unauthorised occupant being a subtenant, no action whatsoever has been taken against the appellant or her deceased husband since the year 1974;
(viii) the Ld. ARC failed to appreciate that since the inception of the tenancy, the rent had been paid by the predecessor of the appellant which was a sufficient ground to prove the acquiescence and waiver on the part of the landlord;
(ix) the Ld. ARC failed to appreciate that the respondent no. 1 herein did not file any replication to the written statement filed by the appellant and the same implied admission of the stand taken by the appellant claiming herself to be the tenant in the property.CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 7 of 25
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3.1 Ld. Counsel for the appellant argued that in view of the above, the impugned order calls for setting aside. 4.0 The respondent no. 1 sought dismissal of the appeal pleading that it is the abuse of process of law. There is no infirmity in the impugned order as the same has been passed on the basis of unequival admission on the part of the appellant herein.
4.1 The respondent no. 2 did not appear and contest the appeal.
5.0 I have duly considered the submissions made by Shri Manu Nayar, Ld. Counsel for the appellant and Ms. Diksha Bhatia, Ld. Counsel for respondent no.1; and have also perused the record carefully.
6.0 Let me at the outset refer to the impugned order, the relevant portion of which reads as under: "I have considered the pleadings of the parties and the arguments put forth by the Counsels.
Section 14(1)(b) of the DRC Act provides for eviction of the tenant if "the tenant has, on or after the nineth day of June, 1952, sub let, assigned or otherwise, parted with the possession of whole or any part of the premises without obtaining the consent in writing of CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 8 of 25 :: 9 ::
the landlord.
These three expressions deal with different concepts and apply to different circumstances. In subletting there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against tenant in respect of the premises sublet. In assignment, the tenant has to divest himself of all his rights that he has as a tenant. The expression "parted with possession" undoubtedly, postulates the parting with legal possession. In other words, there must be vesting of possession by the tenant in another person by divesting himself nor only of physical possession but also of the right to possession.
In her WS the respondent has admitted that the premises were let out to respondent no.1 vide a rent deed dated 012.1974 by the predecessor in interest of the petitioner. However, the respondent has claimed that her deceased husband was doing business from the premises and was also paying the rent to the earlier landlord and on the demise of her husband, she has stepped into his shoes. Apparently, the respondent has claimed that her husband also acquired the status of a tenant by doing business CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 9 of 25 :: 10 ::
from the premises and by paying rent. However, the said belief is mistaken as mere payment of rent by a person does not make him a tenant. As per section 2(l) of DRC Act, tenant means any person by whom or on whose account or behalf the rent is payable. In Mohinder Kumar Madan v. Madan Mohan Lal 1972 RCR 112(SN) where as shop was taken on rent by an individual but the joint family business was carried on therein and rent was paid by the brother, it was held that the joint family of the brother did not become tenant. It was further held that rent would be deemed to have been paid on behalf of the tenant. Thus, the rent of a tenant may be paid by his servant, his agent, family members or even a third person. Likewise, even by doing business in the premises being the brother of the original tenant does not give any tenancy right to the husband of the respondent no.2.. Accordingly, there is no legal basis to the said pleading of respondent no.2, even if the same is deemed to be correct.
The second line of defence of respondent no. 2 is that she also received the tenancy rights of the suit premises under amicable family settlement i.e. registered family settlement dated 17.02.2004 and that suit premises were never sublet by respondent no.1 to respondent no.2. As per respondent no.2, tenancy right in her favour does not amount to sub CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 10 of 25 :: 11 ::
letting or transfer or any assignment as no rent agreement in respect of any sublease was entered into between respondent no. 1 and 2 and the terms and conditions of original lease are still existent between respondent no.2 and owner of the property. However, it is to be noted that the petitioner has not pleaded ground of "subletting" only but has claimed eviction on all the three grounds mentioned in 14(1)(b) of DRC Act. Once the respondent no.2 admits that she has "received the tenancy rights", same is assignment as envisaged under section 14(1)(b) of DRC Act. Even the family settlement discusses various properties of the parties i.e. respondent no.1 and 2 and provides that respondent no. 2 shall have exclusive rights over the goods lying in the suit shop and shall have rights to get the tenancy transferred in her name at her own expense. IT is mentioned in said settlement that the parties shall execute the required documents whenever needed in favour of each other qua the parties settled through the family settlement. It is also mentioned that first party i.e. respondent no.1 shall not claim right in the movable and immovable property of the second party. Thus, the incidents of assignment of tenancy are writ large in the whole body of family settlement. It is to be noted that as there was no pre existent right of respondent no.2 in the tenancy, such transfer cannot be equated to a relinquishment by one tenant in favour of cotenant. Thereby from CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 11 of 25 :: 12 ::
the reply of respondent no.2 and from the express provisions of the family settlement it stands admitted that the tenancy rights were assigned by the respondent no.1 in favour of respondent no. 2. However, it is not the case of respondent no.2 that any written consent was taken from the landlord regarding the same. Thus, ground of 'assignment' u/S 14(1)(b) DRC Act stands admitted by respondent no.2.
Proceeding further, respondent no.1 has failed to file any WS and rather he appeared before the court on 17.09.2018 and gave a statement that he does not want to file any WS and the court may pass appropriate orders on the petition. Thus, the petition is deemed to be admitted by respondent no.2 on the principle provided under order VIII rule 5(1), rule 5(2) CPC.
Accordingly, application under Order XII rule 6 is allowed and both the respondents are directed to vacate the suit premises i.e. shop no. 4/5 at 4/114 (A1/4) Ward 1, Mehrauli, Near Tikona Park, Opposite Qutub Minar, New Delhi110030"
7.0 Let me now examine the rival contentions. The case of the respondent no. 1 in his eviction petition is that the suit CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 12 of 25 :: 13 ::
premises was rented out to the respondent no. 2 herein Sh. Ramesh Chander Bhalla vide rent deed dated 01.02.1974; and that vide memorandum of family settlement dated 17.02.2004 the respondent no. 2 herein without taking permission of the owner / landlord has transferred the possession of the suit premises to the appellant herein. It is a matter of record that the tenant / respondent no. 2 herein did not file any reply to the eviction petition. He rather made a statement before the Ld. Trial Court on 17.09.2018 to the effect that he did not wish to file any reply and the court may pass any order as deemed appropriate.
7.1 As far as the appellant herein is concerned, she vide her reply/ written statement admitted that the suit premises was let out to Sh. Ramesh Chandra Bhalla, the respondent no.2 herein vide Rent Deed dated 01.02.1974 by Shri Raj Nath (Predecessorininterest of the petitioner). She however, further submitted that her husband, Sh. Subhash Chandra Bhalla (deceased) was also doing the business under the name of M/s Camera Film House from the suit premises and was paying the rent to the predecessor landlord. She also submitted that on demise of her husband on 02.02.1999, the appellant being his wife stepped into the shoes of Sh. Subhash Chandra Bhalla as he died issueless; and that she also received the tenancy rights of the suit premises vide the registered Family settlement dated CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 13 of 25 :: 14 ::
17.02.2004; and that the said family settlement annexed with the eviction petition (by the owner / landlord / respondent no. 1 herein) may be referred to.
7.2 Ld. Counsel for the appellant argued that the Rent Deed was never acted upon as since inception it was the husband of the appellant who had been in possession of the suit property and had been paying the rent; he was accepted as the tenant by the erstwhile owner/landlord. Thus, the appellant was entitled to lead oral evidence to prove that the said document / Rent Deed though executed was not intended to be acted upon and was a sham document. In support, reliance was placed upon judgment of Hon'ble Supreme Court in 'Ishwar Dass Jain (Dead) through LRs vs Sohan Lal (dead), 2000(1) SCC 434. It was pleaded that without appreciating the same, the Ld. ARC proceeded simply on the ground that the appellant has admitted Rent Deed dated 01.02.1974 in favour of the respondent no.2 herein. It was further argued that for passing any judgment / decree under Order 12 rule 6 CPC an admission has to be clear, unequivocal and unambiguous. Whereas, the instant case involved intricate questions of fact and law, which required leading of evidence, before arriving at the conclusions about such admissions on the part of the appellant. Therefore, no judgment under Order 12 rule 6 CPC could have been passed by the Ld. trial court. In support, reliance was placed upon the judgments of Hon'ble High CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 14 of 25 :: 15 ::
Court and Supreme Court in 'Inder Mohan Singh & Others Vs Sube Singh', (2014) 215 DLT 168 and 'Hari Steel and General Industries Ltd. & Anr.' vs Daljit Singh & Others', 2019(3) CLJ 472 (SC), respectively.
7.2.1 In this respect, Ld. Counsel for the respondent no.1 submitted that no such plea regarding the aforesaid Rent Deed being a sham document was taken in the written statement filed on behalf of the appellant herein before the Ld. Trial Court. The appellant cannot now be allowed to raise a new plea at appellate stage. Further as far as sub letting is concerned, the appellant herself in her reply / written statement (to the eviction petition) before the Ld. Trial Court stated that "the respondent no.2 / appellant herein also received the tenancy rights of the suit premises under an amicable family settlement vide the registered Family Settlement dated 17.02.2004...." Thus, there was clear and unequivocal admission on the part of the appellant about letting of suit premises to respondent no. 2 herein; and its assignment by respondent no. 2 in favour appellant vide family settlement.
7.3 From the averments made in her reply/written statement by the appellant as referred in para 7.1 above, it is evident that the appellant herein has categorically admitted that the suit premises was let out to Sh. Ramesh Chand Bhalla / the respondent no. 2 herein vide Rent Deed dated 01.02.1974. Her CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 15 of 25 :: 16 ::
averment that her husband was also carrying on business from the suit property, further shows that although, the suit premises was rented out to the respondent no. 2 herein; her husband also was using the same for running his business.
7.3.1 Further, the appellant herself made reference to the Family Settlement dated 17.02.2004 annexed with eviction petition by the landlord/ owner / the respondent no.1 herein, to espouse her plea that she received tenancy rights of the suit premises vide said settlement. Thus, admitting the said document/ family settlement; and that the tenancy rights have been transferred to her vide the same.
7.4 It would be pertinent to refer here to the Family Settlement, the relevant portion of which reads as under:
"...The following are the terms on the basis of which the oral family settlement was entered between the parties.
1. That the Second Party (Smt. Shimla Rani Bhalla)....
2......
3.That the Second party shall also have the rights to get the tenancy Shop No.4/5, Qutab Minar Market, Mehrauli, New Delhi at present under the CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 16 of 25 :: 17 ::
tenancy of Shri Ramesh Chander Bhalla transferred in her name at her own expense. Smt. Shimla Rani Bhalla shall have exclusive rights of the goods lying in Shop No. 4/5, Qutub Minar Market, Mehrauli, New Delhi.
WHEREAS the said Shri Subhash Chander Bhalla was also doing the business under the name of M/s Camera Film House from the tenancy shop of Shri Ramesh Bhalla at 4/5 Qutab Minar Market, Mehrauli, New Delhi."
7.4.1 Bare perusal of the aforesaid Family Settlement, an admitted document shows that it records that the suit premises is "at present under the tenancy of Sh. Ramesh Chander Bhalla (the respondent no.2 herein)". The said settlement further mentions that the appellant herein shall have right to get the tenancy (of Sh. Ramesh Chander Bhalla) of the suit premises transferred in her name at her own expense.
7.5 In view of the above, the appellant herein categorically admitted that the suit premises was rented out to the respondent no.2 herein and that the said tenancy was transferred to her vide Family Settlement.
7.6 As far as the appellant's plea of the rent deed dated 01.02.1974 being a sham document is concerned, it may be CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 17 of 25 :: 18 ::
mentioned that no such plea was raised by the appellant in her reply / written statement before the Ld. Trial court and the same is evidently an after thought, more particularly, in the light of categoric admission, as discussed above. It would also not be out of place to mention here that the appellant's prayer to amend her reply to include this plea has already been rejected by dismissal of her application u/O 6 rule 17 CPC. In view of the same, the judgement in Ishwar Dass Jain's case (supra) relied upon by the appellant to further her argument that the appellant should have been allowed to lead evidence to show that the said document was a sham document, is hardly of any help.
7.6.1 Even if the said judgment is considered for a while, it may be mentioned that facts in that case, were different. In that case, the defendant in his written statement had challenged the nature of the document/ mortgage deed, on which the suit was based. It was pleaded by the defendant that there was no relationship of mortgagor and mortgagee between the parties and actually the relationship between them was that of landlord and tenant. In that context, no doubt, the Hon'ble Supreme Court referred to its earlier judgment in Gangabai vs Chhabubai, 6(1982) 1 SCC 4 wherein it was observed that the bar imposed by Section 92(1) Evidence Act applies only when a party seeks to rely upon the document but not when a party pleads that the transaction recorded in the document was never intended to be CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 18 of 25 :: 19 ::
acted upon between the parties; and that the document is a sham document. But, it further noted that such a plea has to be seen in the facts of each case. The Hon'ble Supreme Court after examining the facts of that case (Ishwar Dass Jain's case) rejected the defendant's argument that the said document was a sham document.
7.6.2 Facts in the instant case are quite different. In the present case, as noted above, vide her reply/ written statement before the trial court, the applicant /appellant categorically admitted the document/ Rent Deed dated 01.02.1974 by stating that vide said Rent Deed the premises was rented to Sh. Ramesh Chandra Bhalla. She further stated in her reply / written statement that her husband was also doing his business from the suit premises. Meaning thereby, that besides Shri Ramesh Chandra Bhalla/ respondent no. 2 herein, her husband was also using the suit premises. Further, it is also noteworthy that the appellant herself made reference to the Family Settlement dated 17.02.2004 to espouse her plea that she received tenancy rights of the suit premises vide said settlement. Thus, admitting the said document/ family settlement; and that the tenancy rights have been transferred to her vide the same. In these facts and circumstances, there is hardly any force in the appellant's plea that Ld. ARC erred in proceeding on the basis of admission without giving her opportunity to lead evidence.CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 19 of 25
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8.0 In view of the above, the admission of the appellant about the suit premises being rented out to the respondent no. 2 herein and that the tenancy was transferred to her vide family settlement, is very categoric and unequivocal. The appellant's plea that Ld. ARC erred in passing judgment under Order 12 rule 6 CPC in absence of any clear and unequivocal admission is therefore untenable. Thus, the judgments in Inder Mohan Singh (supra) and Hari Steel & General Industries Ltd.'s case (supra) relied upon by the appellant also are of no help to the appellant in any manner, though, the law laid down by them cannot be assailed.
8.1 It may be mentioned that in Hari Steel & General Industries Ltd.'s case (supra), the appellant vide application under Order 12 rule 6 CPC had sought decree on the basis of admission made by the respondent in his bail application about his readiness to execute the sale deed in their favour in terms of the agreement. Besides that no other admission had been claimed in the application. In that context, the Hon'ble Supreme Court noted as under: "34. ... in the case on hand, it is to be noted that the relief claimed under Order XII Rule 6 CPC by filing by filing a written application claiming admission CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 20 of 25 :: 21 ::
only based on the statement made by the advocate in the bail application, and there is no other pleaded admissions, in the application filed by the respondents
- plaintiff. ... It is true that when categorical and unconditional admissions are there, judgment on admission can be ordered. ..."
8.1.1 The facts in the instant case are very distinct.
8.2 As far as Inder Mohan Singh's case (supra) is concerned, facts of that case are also distinguishable. Considering the facts of that case, the Hon'ble High Court had noted that the case involved question which could not be conveniently disposed of without recording of evidence and therefore, it declined judgment / decree on the basis of admissions made by the defendant in his reply to plaintiff's application u/O 39 rule 1 & 2 CPC. Whereas, the facts in the present case are different. In the instant case, there is categoric admission on the part of the appellant in her reply / written statement.
9.0 Ld. Counsel for the appellant also argued that since inception of the tenancy, the appellant's husband had been paying rent to the erstwhile owner / landlord; and the acceptance of the rent by the erstwhile owner landlord from her husband and thereafter, from the appellant, amounts to acceptance of the appellant as a tenant. In support, reliance was placed on judgment in Balquis Jehan Begum Vs. Sibghatulla and Anr., 1971 RCR CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 21 of 25 :: 22 ::
Rent 552 and Kailash Chand Vs. Chaman Lal, 1982 2 RCR (Rent) 581. It was further contended that as the respondent no. 1 did not file any replication, the fact that the appellant's husband had been paying rent since inception has remained unrebutted and amounts to admission of the said fact by the respondent no. 1 herein. It was also submitted that had the appellant been given an opportunity to lead evidence, the appellant would have produced before the Ld. Trial Court, the rents receipts issued in her husband's name.
9.1 On the other hand, the Ld. Counsel for respondent no. 1 submitted that non filing of replication does not amount to admission. Reliance in support was placed on the judgment of Hon'ble Punjab and Haryana High Court in Naresh Kumar Sodhi & others vs Hari Ram Chaurasia & Anr., RSA No.81/2015 & CM No.3337/2015 decided on 24.02.2015. Ld. counsel for the respondent no. 1 also argued that even the appellant did not file any reply to their application under Order 12 rule 6 CPC and therefore, admitted their averments in the said application and cannot be now allowed to raise these objections.
9.2 In view of the categoric admission by the appellant as discussed above, mere averment of payment of rent by the appellant's husband does not in any manner help the appellant. The Ld. ARC in the impugned order has rightly noted that mere CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 22 of 25 :: 23 ::
payment of rent by a person does not make him a tenant. The judgement in Balquis Jehan's case (supra) relied upon by the appellant is of no help as the facts in that case were very distinct. In that case, the rent receipts showed tenant's name but at the foot of those receipts were further writings which went to show that the rent was actually paid by alleged sub letee, who in some of the receipts was described as resident in the tenanted premises. Further, in the light of categoric admission, non filing of replication by the respondent no.1 herein is hardly of any consequence.
10.0 Ld. Counsel for the appellant further argued that the eviction petition was even barred by limitation in terms of Article 66 r/w Sec. 3 Limitation Act as it was filed much beyond period of 12 years as prescribed in Article 66. It was submitted that the erstwhile landlord/owner was well aware of the appellant's husband being in occupation of the suit premises since beginning. But he did not take any action within the period of 12 years. Reliance in this respect was placed upon judgment of Hon'ble High Court in Taherbhai Taiyebhai Poonawala & Ors. vs. G. Hamid Hasan Patel 2007 (1) All MR 832. It was further pleaded that in view of the same, the petition is also barred even on the principle of acquiescence and waiver.
10.1 In the light of the applicant/ appellant's admission in CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 23 of 25 :: 24 ::
her reply / written statement that the suit property was rented to Ramesh Chandra Bhalla / the respondent no.2 herein though, her husband was also doing business there; and also vide family settlement, that the suit premises was under the tenancy of Sh. Ramesh Chandra Bhalla, the question of acquiescence of the fact that the suit premises was actually in occupation of the appellant's husband as a tenant, did not arise.
10.2 Further, as far as the plea of eviction petition being barred by limitation is concerned, it was submitted by the Ld. Counsel for the respondent no.1 that at the time of sale of the suit premises on 13.06.2012, the erstwhile owner had handed over a list of tenants to it (respondent no,1). As per the said list, Sh.
Ramesh Chander Bhalla was the tenant of the suit premises and Rent Deed in question was also handed over to it in that respect. Ld. Counsel further submitted that the respondent no. 1 had been taking up the matter with Ramesh Chander Bhalla for payment of rent and vide letter dated 24.07.2017 as a final reminder, Sh. Ramesh Chander Bhalla was called upon to clear the arrears of rent. Let me mention here that it is the applicant/ appellant's own case that she never received any notice for payment of rent from the respondent no. 1. Ld. Counsel for the respondent no. 1 also submitted that even otherwise, as soon as the respondent no.1 herein came to know about subletting, the eviction petition was filed. Ld. Counsel further argued that the provisions of CIS RCT ARCT 21/2019 Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 24 of 25 :: 25 ::
Limitation Act are not applicable to proceedings under DRC Act.
10.3 It may be mentioned that Article 66 Limitation Act prescribes limitation period for suit for recovery of possession and not for petition for eviction under Delhi Rent Control Act.
Even otherwise, during the course of oral arguments, Ld. Counsel for the applicant / appellant did not dispute that the eviction petition by the respondent no. 1 had been filed within a period of 12 years of purchase of the suit premises in the year 2012 i.e., within a period of limitation as prescribed under Article 66. Thus, the judgment in Taherbhai Taiyebhai Poonawala & Ors' case (supra) relied upon by applicant/ appellant is of no relevance in the instant case.
11.0 In view of the above facts and circumstances and findings recorded in preceding paras, the impugned judgement does not call for any interference. Hence, the present appeal is dismissed.
12.0 A copy of this order alongwith TCR be sent back to the Ld. Trial Court.
Appeal file be consigned to Record Room.
Announced in open Court (POONAM A. BAMBA ) today on 29.02.2020 District & Sessions Judge (South) Saket/New Delhi.
Digitally signed by POONAM POONAM A BAMBA
A BAMBA Date: 2020.03.18
16:37:46 +0530
CIS RCT ARCT 21/2019
Smt. Shimla Rani Vs M/s Capitol Art House (P) Ltd. & Anr. Page 25 of 25