Surinder Kumar vs Prem Nath Pialok And Anr.
1992 Latest Caselaw 6 Del

JUDGMENT

S.C. Jain, J.

(1) The facts giving rise to this second appeal are that Prem Nath, respondent No. I herein, filed an eviction petition against Narinder Kumar respondent No. 2 under Section 14(l)(e) read with Section 25B of the Delhi Rent Control Act, hereinafter referred to as the Act. Appellant Surinder Kumar filed an application for being imp leaded as a party in the eviction petition, which application was dismissed by the Addl. Rent Controller. Against the dismissal of the application under Order I Rule 10 Civil Procedure Code the appellant filed C.M. (M) No. 201) of 1987 titled S'urinder Kumar v. Prem Nath, which was dismissed on 7-12-1988 by this Court observing "if the petitioner has an independent right of tenancy it will be open to him to move an application under Section 25 of the Act".

(2) In the eviction petition an order of eviction was passed against respondent No. 2 on 9-3-1989 and thereafter the appellant filed objections under Section 25 of the Act which were dismissed by the Addl. Rent Controller on 9-2-1990, Its appeal before the Rent Control Tribunal was also dismissed on 22-10-1990. Both the Courts below concurrently held that the appellant's possession in the premises has been throughout on behalf of his brother Narinder Kumar, respondent No. 2 herein, against whom an order of eviction has been passed and not in his own independent right.

(3) Aggrieved, this second appeal has been filed by the objector Surinder Kumar. Counsel for the appellant argued that both the Courts have dismissed the objection summarily without putting the parties to trial to prove their respective pleas both on law and facts. According to him, the objections under Section 25 of the Act cannot be dismissed in liming. He relied upon two decisions of this Court in Smt. Vidya Wami v. Takan Dans and Another 1974 R.C.R. 47(D) and Smt. Gaurl Devi v. Parmeshwar Parshad, 1975 Rlr 6.

(4) In this case, both the Courts below have come to a concurrent finding that the objector has no independent title to the premises and he is bound to vacate the premises in dispute in pursuance to the order of eviction in favor of the decree-holder and against the judgment debtor, respondent No. 2 herein As per the case of the appellant himself, his brother Narinder Kumar, respondent No. 2, took the premises on rent in 1971 on a monthly rent of Rs. 800.00 , but in 1976, his brother shifted to Ahmedabad and handed over the premises to the objector, who was already residing there and thereafter he (objector) started paying rent to the landlord, though the rent receipts were issued in the name of Narider Kumar, his brother. According to the appellant, the landlord accepted the rent from the appellant knowing fully well that the appellant is in actual physical possession of the demised premises. The plea of the Counsel for the appellant that both the Courts below dismissed the application under 25 of the Act in liming without appreciating the facts and law is not tenable in the present circumstances of the case. A perusal of the record shows that both the Courts below had decided the objections filed by the appellant after giving an opportunity to the parties to advance arguments and after appreciating the documents and pleadings on record. It cannot be said that those objections were dismissed auxiliary without giving opportunity to the appellant. The decisions relied upon by the Counsel for the appellant do not help him in the present circumstances of the case. It is clear from the finding of fact recorded by two Courts below that the rent receipts are in the name of Narinder Kumar, respondent No.2 and not in the name of Surinder Kumar appellant. There is nothing to show on record that the landlord accepted rent from the appellant in his own right as a tenant. Creation of tenancy is by a positive act of contract by the parties. Rent note is not in favor of the appellant . Since there is noting on record to suggest that the landlord has accepted rent from the appellant as his own payment, it cannot be inferred in law that by the conduct of acceptance of rent the landlord has recognised the appellant as the tenant.

(5) In this case, though as per the case of the appellant, the original tenant Narinder Kumar shifted to Ahemdabad in 1976, but Narinder Kumar deposited the arrears of rent in compliance with the order under Section 15(2) of the Act even thereafter. He also contested the eviction petition filed by the landlord and he did not take up this plea that he has surrendered the tenancy right and that a new tenancy has been created in favor of the appellant. These facts exclude any possibility of surrender of tenancy rights by Narinder Kumar, respondent No. 2 herein, in the year 1976 or at any other time. It is not the case of the appellant that eviction order was passed as a result of collusion between his brother Narinder Kumar and the landlord. The appellant has failed to show even on prima facie found that he has been living in the premises in his own right. His objections under Section 25 were bound to be dismissed and both the Courts below have rightly dismissed the same.

(6) I find no illegality or infirmity in the orders passed by the Courts below and for the reasons stated above, there is no merit in this second appeal and the same is dismissed. In view of the peculiar circumstances of the case there will be no orders as to costs. Petition dismissed.