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2014 DIGILAW 2977 (DEL)

Kanchan Kapoor v. Sarwan Kumar

2014-11-17

VALMIKI J.MEHTA

body2014
Judgment Valmiki j. Mehta, j (oral): 1. This rent control revision petition is filed under Section 25B(8) of the Delhi Rent Control Act, 1958 (in short ‘the DRC Act’) impugning the judgment of the of the Additional Rent Controller (ARC) dated 4.6.2011 which has dismissed the leave to defend application filed by the petitioners/tenants and has decreed the bonafide necessity eviction petition filed by the respondent/landlord under Section 14(1)(e) of the DRC Act with respect to the tenanted premises being two rooms, store, kitchen, bathroom, W.C on the ground floor together with one mezzanine room between ground and first floor above the garage of the property bearing no. D95, Kamla Nagar, Delhi-110007. 2. The facts of the case are a bit curious to say the least inasmuch as, respondent/landlord claims to be the owner on the ground that he was a servant working with the owner namely one Mr. Dayal Dass Talwar and his daughter-in-law Smt. Vidyawati and that the respondent became the owner of the suit property by virtue of a registered Will dated 17.3.1988 executed by Smt. Vidyawati who had become the owner of the suit property after the death of her father-in-law Sh. Dayal Dass Talwar. Respondent/landlord claims that tenants originally were Sh. Roop Lal Sehgal and his wife Smt. Kailash Wati and the present petitioners are the legal heirs of Sh. Roop Lal Sehgal and Smt. Kailash Wati. The bonafide necessity eviction petition was filed claiming that the tenanted premises are required for the bonafide residential need of the respondent and his family members. 3. A reading of the impugned judgment shows that the same is cryptic to say the least because there is lack of adequate discussion in the judgment with respect to the family members of the respondent, the accommodation already available and consequent bonafide need and more importantly as to how the respondent has been held to be the owner of the premises. The only effective discussion with respect to ownership of the respondent is given in para 10 of the impugned judgment and the same reads as under:- “10. The first ground taken on behalf of the respondent for grant of leave to defend is that petitioner is not owner of the suit property and only a rent collector. The only effective discussion with respect to ownership of the respondent is given in para 10 of the impugned judgment and the same reads as under:- “10. The first ground taken on behalf of the respondent for grant of leave to defend is that petitioner is not owner of the suit property and only a rent collector. For deciding application under Section 14(1)(e) of the DRC Act the first question for determination is whether there exists a landlord-tenant relationship between the parties and not the question of ownership. The use of the word owner in clause (e) of the proviso of sub-section (1) of section 14 of the Delhi Rent Control Act seems to have been inspired by the definition of the word landlord as contained in Section 2(e) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person. Construed in the context in which the word owner is used in clause (e), the concept of ownership in a landlord-tenant litigation governed by Rent Control Law has to be distinguished from the one in a title suit. An owner under section 14(1)(e) need not be an absolute owner requiring registered sale deed in his favour contemplated by the general law in section 54 of Transfer of Property Act. A restricted meaning cannot be given to owner for purposes of the Act. The meaning of the word owner vis-a-vis the tenant is that the owner should be something more than the tenant. In the present case, it is admitted by the respondent that he has been paying rent to the applicant and the applicant has been collecting the rent from the respondent which establishes a landlord-tenant relationship between the parties.” 4. Learned counsel for the petitioners/tenants has vehemently contended that the Additional Rent Controller has wrongly held that the petitioners/tenants have admitted payment of rent to the respondent. More importantly petitioners rely upon the judgment of the civil court dated 16.3.2011 being the judgment passed by Ms. Aanchal, Civil Judge, North-05, Room No. 251, 2nd Floor, Tis Hazari Courts, Delhi in Suit No. 1431/2010 between the same parties titled as Sh. Sarwan Kumar Vs. More importantly petitioners rely upon the judgment of the civil court dated 16.3.2011 being the judgment passed by Ms. Aanchal, Civil Judge, North-05, Room No. 251, 2nd Floor, Tis Hazari Courts, Delhi in Suit No. 1431/2010 between the same parties titled as Sh. Sarwan Kumar Vs. Smt. Kanchan Kapoor, Manju Nayyar and Param Hans (who are also petitioners herein) and as per this judgment it has been held by the civil court that the respondent herein is not the owner of the suit property and since respondent is not the owner the eviction petition in fact was liable to be dismissed. This finding that the respondent is not the owner of the suit property is given in the judgment dated 16.3.2011 by the civil court while deciding issue no.2 in the subject suit no. 1431/2010. This issue no.2 reads as under:- “2). Whether the Plaintiff is the owner of the suit premises? OPD.” 5. The relevant findings of the civil court with respect to issue no.2 in the judgment dated 16.3.2011 are as under:- “Issue No.2. 2) Whether the Plaintiff is the owner of the suit premises? OPD. It is the settled law that one who asserts have to prove the facts. The plaintiff has claimed himself to be the owner and landlord of the suit property. This fact is specifically denied by the defendants in their written statement. It is submitted on behalf of the plaintiff that it is the admitted case of the defendant No.1 & 2 that they are the legal heirs of late tenant Sh. Roop Lal Sehgal, therefore, the rule of estoppel shall operate against the defendants and they are stopped denying the title of the plaintiff and burden lies upon the defendants to prove the present issue. It is also strongly contended that the present suit is only in respect to perpetual injunction, wherein as settled preposition of law, ownership is irrelevant. Thus, this issue also become redundant. Further the defendants have no right in law to oppose the ownership of the landlord as late Sh. Roop Lal Sehgal and Smt. Kailashwati used to pay rent and attorned the plaintiff to be the owner/landlord of the premises. Thus, this issue also become redundant. Further the defendants have no right in law to oppose the ownership of the landlord as late Sh. Roop Lal Sehgal and Smt. Kailashwati used to pay rent and attorned the plaintiff to be the owner/landlord of the premises. On the other hand it is submitted on behalf of the defendants that at no point of time the defendants have admitted the plaintiff as a landlord, therefore, rule of estoppel does not apply in the present case. Further, it is submitted that there is no bar for adjudication of the question of ownership in the suit of injunction and it is only depend upon the facts and circumstances of the case in which the question of ownership may become the irrelevant. But in the present case the plaintiff is basing his relief being the owner and landlord of the suit property, therefore, the question of ownership has to be disposed off in order to effective adjudication of the controversy in issue. Ld. Counsel for the defendants also relied upon “AIR 2008 Supreme Court 2033 title Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs. & Ors.” in order to substantiate his contention. It is strongly submitted that the plaintiff has filed an eviction petition against the defendants on the ground of creation of sub-tenancy and the present suit is filed just to gather the evidence in order to strengthen his eviction petition. Plaintiff is seeking the perpetual injunction in his favour claiming himself to be the owner/landlord of the suit property. It is specifically denied in the written statement that the plaintiff is owner or landlord. The plaintiff is stated to be the servant of last owner Sh. Dayal Dass Talwar. This dispute goes to the root of the controversy as the injunction can not be granted when the plaintiff has no personal interest in the matter as per Section 41(j) of the Specific Relief Act or the Plaintiff has approached the Court by suppressing the material facts. The plaintiff can have the personal interest in the matter if he is proved to be the landlord or owner. Thus the present issue is relevant for the disposal of the present case and it can not be avoided. I also draw the strength from the judgment relied upon by Ld. The plaintiff can have the personal interest in the matter if he is proved to be the landlord or owner. Thus the present issue is relevant for the disposal of the present case and it can not be avoided. I also draw the strength from the judgment relied upon by Ld. Counsel for the defendant in which it has been specifically observed that:- 17(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroch upon his property. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroch upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case” It is deposed by the Defendant No.1 as DW1 that true owner and landlord of the suit property had been Sh. Dayal Dass Talwar and he injudcted late Sh. Roop Lal Sehgal as tenant after the death of Sh. Dayal Dass Talwar, Smt. Vidyawati wife of Prem Kumar Talwar (Son of Sh. Dayal Dass Talwar) was the landlady and owner and at present the suit property is jointly owned by Smt. Seema Mehra, Smt. Meenu Malhotra and Smt. Neelam Sehgal, who are the daughters of Smt. Bimla. The suit was taken on rent from Sh. Dayal Dass Talwar and the plaintiff was not even present in this house. He become servant of late Sh. Dayal Dass Talwar in the year about 1968-69. He did not bring his wife or family members. He brought his wife and family members after the death of Sh. Dayal Dass Talwar. She further deposed in her cross examination that her mother used to pay the rent to Smt. Vidyawati. Smt. Vidyawati never executed any will regarding the suit property in favour of the plaintiff. These facts have not been rebutted by the plaintiff by putting any question to Defendant No.1 at the time of cross examination. Not only this it is admitted by the plaintiff in his cross examination that late Sh. Roop Lal Sehgal was paying rent to Smt. Vidyawati Talwar till her death and before this he was paying rent to Dayal Dass Talwar. He was serving late Sh. Dayal Dass Talwar and after his death Smt. Vidyawati. He was not doing any job in Himachal Pradesh before 1956, when he joined Sh. Dayal Dass Talwar and he came alone and his wife joined him in 1965. He also admits that Sh. Dayal Dass Talwar never sold the suit property to any one during his life time and he never transferred the possession of this property to any one during his life time. Dayal Dass Talwar and he came alone and his wife joined him in 1965. He also admits that Sh. Dayal Dass Talwar never sold the suit property to any one during his life time and he never transferred the possession of this property to any one during his life time. After the death of Sh. Dayal Dass Talwar, his daughter-in-law Smt. Vidyawati and her daughter namely Bholi @ Bimla resided in this house and Vidyawati Talwar was taking rent from Late Sh. Roop Lal Sehgal. This deposition of the plaintiff proves that Sh. Dayal Dass Talwar was the landlord of the suit property who inducted Sh. Roop Lal Sehgal as tenant and after his death his daughter-in-law kept on taking the rent as the landlord and no interest by any document has been created in favour of the plaintiff in respect of the suit property. It has also come on record that the plaintiff was serving to Sh. Dayal Dass Talwar and Smt. Vidyawati. He categorically deposed in his cross examination that he was like the son of Vidyawati Talwar. However, there was no adoption deed executed in his favour. He admits that he was serving Late Sh. Dayal Dass Talwar and after his death Smt. Vidyawati without any remuneration as their son. He was not a salaried servant. Defendant No.1 has also relied upon the cross examination of the plaintiff conducted in the proceeding before Ld. ARC dated 25.10.2007 and 07.04.2008. Authenticity of these certified copies has not been disputed by the plaintiff. These proceedings were pending between the same parties and the question was regarding the eviction of the present defendants from the suit premises. In the cross examination conducted on 25.10.2007, it has been admitted by the plaintiff that he came into the property No. D-95, Kamla Nagar as a servant in 1956 and at that time owner of the suit property was Sh. Dayal Dass Talwar and Smt. Vidyawait who was his daugher-in-law. This property was built up by Dayal Dass Talwar and by him and he did not sell his property to any person during his life time. Sh. Dayal Dass Talwar was died in 1984 and he was serving him form 1956 to 1984. He used to treat him as his son. But he has no documentary proof to show that he was being treated as his son. Sh. Dayal Dass Talwar was died in 1984 and he was serving him form 1956 to 1984. He used to treat him as his son. But he has no documentary proof to show that he was being treated as his son. It is also admitted that he was doing service of Vidyawati till her death. This testimony of the plaintiff proves that he is claiming the ownership on the basis of his treatment as a son. But the evidence in totality shows that he came into the property as tenant and he kept on serving the owner and thereafter his daughter-in-law during her life time. There is no proof at all as to the basis of the claim of Plaintiff being owner or landlord as tracing his title from the landlord/owner who inducted Late. Sh. Roop Lal Sehgal as tenant. The very factum that Sh. Roop Lal Sehgal was inducted as a tenant by Sh. Dayal Dass Talwar had not been denied by the plaintiff in his deposition. Thus the fact remains that Sh. Roop Lal Sehgal was inducted as a tenant by Sh. Dayal Dass Talwar. Under such circumstances rule of estoppel does not apply in favour of the plaintiff. Plaintiff has never been accepted as a landlord and he is also not deriving his title form the landlord Sh. Dayal Dass Talwar, who inducted Sh. Roop Lal Sehgal as tenant. The plaintiff has relied upon copies of three rent receipts. Original of these rent receipt has neither been placed on record nor produced. No reason has been assigned to produce the secondary evidence and for the absence for the primary evidence i.e. the originals of these receipts. These rent receipt are inadmissible in law and can not be looked into. For these reasons the present issue is decided in favour of the defendant and against the plaintiff.” 6. At this stage, I would like to refer to Section 50 of the DRC Act and which provides that a judgment which is passed in the proceedings under the DRC Act deciding questions of title of the premises is not final and the issue of title has to be finally decided by the civil court. Section 50 reads as under:- “50. Section 50 reads as under:- “50. Jurisdiction of civil courts barred in respect of certain matters – (1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority. ......... ...... (4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.” 7. Therefore, once the civil court has decided the issue of title against the respondent holding that the respondent is not the owner of the suit property, then by virtue of Section 50 of the DRC Act, that judgment of the civil court will prevail and it has to be held that respondent is not the owner of the suit premises. In a bonafide necessity eviction petition under Section 14(1)(e) of the DRC Act, a person who files the eviction petition not only has to be the landlord, but he also has to be the owner, and once the respondent herein, petitioner in the eviction petition, is not the owner of the suit property, not only the leave to defend application has to be allowed but in fact the eviction petition has to be dismissed. 8. Learned counsel for the petitioners/tenants has filed before this Court the order dated 11.5.2012 passed by the appellate court hearing appeal against the aforesaid judgment and decree dated 16.3.2011 which holds that the respondent herein is not the owner of the suit property, and which order dated 11.5.2012 shows that the respondent herein simply withdrew the appeal and consequently the judgment of the civil court dated 16.3.2011 operates as res judicata between the parties that the respondent is not the owner of the suit property. The statement of counsel for the respondent, and who was the appellant in the first appeal being RCA 3/2011 alongwith the order of the court dated 11.5.2012 are given below:- Statement dated 11.5.2012 “Statement of Sh. Vijay Kumar Gupta, counsel for the appellant. At Bar. In view of the fact that subsequent to the impugned judgment and decree, an eviction order has been passed by the court of Dr. Rakesh Kumar-I, Ld. ARC (N), Delhi against the respondents in a petition preferred by the present appellant and without prejudice to the contentions and the out come in the trial court vide impugned judgment, I may be permitted to withdraw the present appeal.” Order dated 11.5.2012 “Present- Mr. V.K.Gupta & Mr.S.K.Jha, counsels for the appellant. Mr. J.S.Vohra, counsel for the respondent. Counsel for the appellant addressed arguments for about 40 minutes and counsel for the respondent also addressed part arguments. During arguments, counsel for the appellant made statement. In view of the statement, the present appeal is dismissed as withdrawn. Trial court record be sent to the Ld. Trial Court with a copy of this order. Appeal file be consigned to record room, after necessary compliance.” 9. Incidentally, the counsel who withdrew the first appeal against the judgment and decree of the trial court/civil court dated 16.3.2011 is the same counsel who has argued the present petition before me. 10. Learned counsel for the respondent argued before this Court the following aspects:- (i) Since the petitioners had admitted the aspect with respect to their predecessors-in-interest paying rent to the respondent, hence the petitioners are estopped by virtue of Section 116 of the Indian Evidence Act, 1872 in questioning the title of respondent/landlord. (ii) The regular civil first appeal no. 3/11 was withdrawn on 11.5.2012 in view of the eviction order passed in this suit and therefore it is argued on behalf of the respondent/landlord that the withdrawal of the appeal is not unconditional and cannot operate against the respondent. 11. (ii) The regular civil first appeal no. 3/11 was withdrawn on 11.5.2012 in view of the eviction order passed in this suit and therefore it is argued on behalf of the respondent/landlord that the withdrawal of the appeal is not unconditional and cannot operate against the respondent. 11. I am unable to agree with any of the arguments urged on behalf of the respondent in view of the categorical provision of Section 50 of the DRC Act which provides that it is the judgment of the civil court which will bind the parties with respect to deciding questions of title of the property and once the civil court has held that the respondent has no title to the property ie the respondent is not the owner of the suit premises, the necessary ingredient of respondent being the owner of the suit property as required by Section 14(1)(e) of the DRC Act is missing, and clearly therefore not only leave to defend will have to be granted but the eviction petition itself will have to be dismissed. I do not agree with the arguments urged on behalf of the respondent that petitioners/tenants are estopped from questioning the title of the respondent inasmuch as, the issue of estoppel against the petitioners under Section 116 of the Indian Evidence Act would operate only if there is no judgment of a civil court binding the parties giving its finding with respect to the title of the suit property. Once there is a finding of the civil court with respect to the title of the suit property, the said judgment and the principle of res judicata will operate against the respondent and in such a case the issue of estoppel cannot operate against the petitioners/tenants because the respondent could have urged and was bound to have urged the issue of estoppel under Section 116 of the Indian Evidence Act as one of his grounds in the civil suit for the civil suit to be decreed, but once the civil court has passed a judgment holding that the respondent is not the owner of the suit premises, all aspects which might or ought to have been urged before the civil court are deemed to have been urged and rejected in view of the doctrine of constructive res judicata contained in Section 11 of the Code of Civil Procedure, 1908 (CPC). The aforesaid has to be taken with the aspect that the issue of estoppel in the present proceedings are urged only at the interim stage of grant of leave to defend and is not decided against the petitioners/tenants in terms of a final judgment of the Additional Rent Controller, and even if there is a final judgment of a Rent Controller/Additional Rent Controller, that judgment would not be final on the question of title of the suit property in view of the provision of Section 50 of the DRC Act as per which the judgment of the civil court prevails with respect to issue of title of the property. The first argument urged on behalf of the respondent is therefore rejected. 12. The second argument urged on behalf of the respondent that there is no unconditional withdrawal of the appeal is again an argument without any merit because it is clear from the order dated 11.5.2012 and the statement of the counsel recorded on 11.5.2012 that the appeal has been unconditionally withdrawn. Giving a reason for withdrawal is different than the appeal being conditionally withdrawn because conditional withdrawal means that the respondent herein would have sought liberty either to file a fresh suit if it was permissible in law or for re-agitating the appeal in certain circumstances, but that admittedly has however, not been done, and therefore, giving a reason for withdrawing of the appeal is not enough to hold that the appeal has not been unconditionally withdrawn. Once the RCA 3/11 filed by the respondent herein challenging the judgment of the trial court dated 16.3.2011 was unconditionally withdrawn, the judgment dated 16.3.2011 between the parties will hold the field as res judicata between the parties and respondent is hence not the owner of the suit premises and consequently, the present eviction petition for bonafide necessity under Section 14(1)(e) of the DRC Act in fact cannot be filed. Also, whether the withdrawal of RCA 3/11 is conditional or unconditional, the fact of the matter is that as of today the judgment of the civil court dated 16.3.2011 stands and which holds that the respondent is not the owner of the suit property ie till the judgment dated 16.3.2011 is set aside, the respondent has to be held as not to have ownership/title to the suit property. 13. 13. For the sake of completion of narration I would like to put on record that I have considered the judgment of the civil court dated 16.3.2011 as it is a subsequent fact coming into existence after a period of 15 days being the statutory period prescribed for filing of a leave to defend application as subsequent events can be considered if they happen after the 15 days statutory period and so held by me in the judgment in the case of M/s Punjab Stainless Steel House & Anr. Vs. Smt. Sangeeta Kedia, CM(M) 1354/2011 decided on 1.9.2014. 14. I may note that the petitioners/tenants have been evicted in execution of the impugned judgment and decree dated 4.6.2011, but since the impugned judgment dated 4.6.2011 is set aside, respondent is ordered to restitute possession of the tenanted premises to the petitioners/tenants within a period of four weeks from today. This petition is accordingly allowed and disposed of in terms of the aforesaid observations. 15. It is clarified that since the present petition has been allowed, the order passed by the learned Single Judge of this Court dated 7.12.2011 with respect to payment by the petitioners/tenants of interim user charges also gets vacated because the issue of payment of interim user charges and not the rent would only have been if the petitioners/tenants would stand evicted by confirming of the impugned judgment and decree but once the impugned judgment and decree dated 4.6.2011 is set aside, the petitioners/tenants surely will not be liable to pay any mesne profits/interim user charges in terms of the order of learned Single Judge of this Court dated 7.12.2011. Petitioners/tenants will now file the written statement in terms of the directions which will be passed by the Rent Controller/Additional Rent Controller. Any of the parties can revive the eviction petition by filing of an application before the competent court annexing therewith a copy of the present judgment.