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2017 DIGILAW 2998 (DEL)

MUKESH NIGAM v. ARUN KUMAR KHANDELWAL

2017-08-18

RAJIV SAHAI ENDLAW

body2017
JUDGMENT : CM No.29214/2017 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. RC.REV. 370/2017 & CM No.29213/2017 (for stay) 3. This Rent Control Revision Petition under Section 25B(8) of the Delhi Rent Control Act, 1958 impugns the order [dated 1st June, 2017 in E No.270/2017 (New No.311/2017) of the Pilot Court (Central), Tis Hazari Courts, Delhi] of dismissal of the application filed by the two petitioners Mukesh Nigam and Pramod Nigam for leave to defend the petition for eviction under Section 14(1)(e) of the Act filed by the nine respondents namely Arun Kumar Khandelwal, Rajeev Kumar Khandelwal, Sanjay Khandelwal, Sanjeev Kumar Khandelwal, Amit Khandelwal, Tarun Kumar Khandelwal, Akhil Kumar Khandelwal, Manju Khandelwal & Pradeep Kumar Khandelwal and the consequent order of eviction of the petitioners from first, second and third floors of House No.3752, Gali Loha Wali, Main Road, Chawri Bazar, Delhi-110006. 4. The counsel for the respondents appears on advance notice and the counsel for the petitioners has been heard. 5. The counsel for the petitioners/tenants, on enquiry, states that the petitioners/tenants do not controvert ownership of the respondents of the premises in the tenancy of the petitioners and the existence of the relationship of landlord and tenant between the respondents on the one hand and the petitioners on the other hand. 6. It is however stated that one of the brothers of the two petitioners/tenants, who is also residing in the tenancy premises, has not been impleaded. 7. Petitioner No.1 in this petition is described as son of late Sh. Fateh Bahadur Nigam and the petitioner No.2 is described as son of late Sh. Dharampal Singh Nigam. It is stated that Sarajoo Nigam, another son of late Sh. Dharampal Singh Nigam, has not been impleaded. 8. From the record, it transpires that the premises were let out as far back as in the year 1940 to the grandfather of the present petitioners. 9. Merely because another heir has not been impleaded by the respondents/landlords in the petition for eviction, the same will not be detrimental or fatal to the maintainability of the petition for eviction. The law in this regard is settled by the Supreme Court as far back as in Surayya Begum Vs. Mohd. 9. Merely because another heir has not been impleaded by the respondents/landlords in the petition for eviction, the same will not be detrimental or fatal to the maintainability of the petition for eviction. The law in this regard is settled by the Supreme Court as far back as in Surayya Begum Vs. Mohd. Usman (1991) 3 SSC 114 where it was held that unless the legal heir of the tenant impleaded does not represent the entire estate owing to collusion with the landlord, represents the entire estate and there is no need to implead all the legal heirs. It is not the case of the petitioners/tenants that there is any animosity between the petitioners Mukesh Nigam and Pramod Nigam on the one hand and Sarajoo Nigam on the other hand or that the petitioners Mukesh Nigam and Pramod Nigam are in collusion with the respondents/landlords. There is thus no merit in the said argument. 10. The next argument of the counsel for the petitioners/tenants is that as per the respondents/landlords, only the first floor was let to the predecessor of the petitioners/tenants and that the predecessor of the petitioners/tenants had raised unauthorised construction at the level of second and third floors above the first floor. The counsel contends that though the petitioners/tenants controvert that they/their predecessor raised unauthorised construction but such being the case of the respondents/landlords, the respondents/landlords cannot seek eviction of the petitioners/tenants from the portion claimed by the respondents/landlords to have been unauthorisedly constructed by the petitioners/tenants’ predecessor. 11. I have enquired from the counsel for the petitioners/tenants whether not the principle of accretion to the tenancy premises would apply. 12. The counsel has not volunteered any reply to the aforesaid. 13. Under Section 108(d) of Transfer of Property Act, 1882, if any accession is made to the leasehold property during the continuance of the lease, such accession is deemed to be comprised in the lease. Supreme Court, in Chapsibhai Dhanjibhai Danad Vs. Purushottam (1971) 2 SCC 205 held that if accession is by encroachment and the tenant acquires title thereto by prescription, he must surrender such accession together with leased premises to the landlord. To the same effect are Kailash Devi Vs. Brij Pal Manocha 2014 SCC OnLine Del 7109, Bhupinder Kalra Vs. Paramjit Kaur 2016 SCC OnLine Del 5389 & Shanti Swaroop Vs. Badri Bhagat Jhandewala Temple Society MANU/DE/1986/2017. 14. To the same effect are Kailash Devi Vs. Brij Pal Manocha 2014 SCC OnLine Del 7109, Bhupinder Kalra Vs. Paramjit Kaur 2016 SCC OnLine Del 5389 & Shanti Swaroop Vs. Badri Bhagat Jhandewala Temple Society MANU/DE/1986/2017. 14. In my view, the aforesaid does not constitute a ground for leave to defend, inasmuch as the construction, even if any raised by the petitioners/tenants/their predecessors above the tenancy premises, would form part of the tenancy premises. I have also scanned the application for leave to defend and do not find the petitioners/tenants to have claimed any other rights with respect to the second and third floors of the property. 15. Though the counsel for the petitioners/tenants has not raised any other argument with respect to the bona fide requirement of the respondents/landlords or availability of alternative suitable accommodation to the respondents/landlords but a perusal of the petition for eviction shows the respondents/landlords to have pleaded (i) that the respondent No.7 Akhil Kumar Khandelwal was residing in rented accommodation at QP-11, First Floor, Maurya Enclave, Pitampura, New Delhi at a rent of Rs.19,000/- per month along with his family members; (ii) that the respondent No.9 Pradeep Kumar Khandelwal is also living with his son Gaurav Khandelwal at A-1, Ground Floor, Plot No.21, Shakti Khand-II, Indira Puram, Ghaziabad, Uttar Pradesh; (iii) that the relationship between the respondent No.9 Pradeep Kumar Khandelwal and his son Gaurav Khandelwal with whom he is residing has strained over the years; (iv) that the respondent No.7 Akhil Kumar Khandelwal and respondent No.9 Pradeep Kumar Khandelwal require the premises in the tenancy of the petitioners/tenants for their own residence and have no other alternative accommodation available to them. 16. A perusal of the application for leave to defend filed by the petitioners/tenants shows the petitioners/tenants to have not controverted that the respondents/landlords No.7 & 9 were so residing at the addresses disclosed or in the capacity pleaded in the petition for eviction. No other alternative accommodation which may be available to the respondents/landlords No.7&9 for their residential requirement also has been disclosed. 17. In the aforesaid scenario, no error is found in the impugned order that the application for leave to defend does not disclose any ground which would disentitle the respondents/landlords from an order of eviction under Section 14(1)(e) of the Act and the petitioners/tenants were thus not entitled to leave to defend. 18. 17. In the aforesaid scenario, no error is found in the impugned order that the application for leave to defend does not disclose any ground which would disentitle the respondents/landlords from an order of eviction under Section 14(1)(e) of the Act and the petitioners/tenants were thus not entitled to leave to defend. 18. The only other two arguments of the counsel for the petitioners/tenants are (i) that the respondents/landlords in the petition for eviction also pleaded about non-payment of rent by the petitioners/tenants; and, (ii) that the premises in the tenancy of the petitioners/tenants are capable of fetching much higher rent. On the basis thereof, it is stated that the intent of the respondents/landlords is to earn higher rent from the premises in the tenancy of the petitioners. 19. Merely because the respondents/landlords in the petition for eviction have pleaded the factum of non-payment of rent of Rs.25/- per month by the petitioners/tenants or of the letting value of the tenancy premises having changed over the years, does not negate the requirement pleaded and qua which as aforesaid, no defence is disclosed in the application for leave to defend. If at all the respondents/landlords, after evicting the petitioners/tenants, do not use the premises for their own purposes as pleaded, the remedy under Section 19(2) of the Rent Act is available to the petitioners/tenants. 20. There is thus no merit in this petition. Dismissed. No costs.