Chaman Lal vs Shyam Lal Mehra
1992 Latest Caselaw 393 Del

JUDGMENT

P.N. Nag, J.

(1) This is an appeal under Section 39 of the Delhi Rent Control Act, 1958, (hereinafter referred to as "the Act") against the appellate order of the Rent Control Tribunal dated 12/02/1987whereby the Rent Control Tribunal has reversed the judgment and order of the Additional Rent Controller dated 2 2/05/1986 and has dismissed the petition for eviction.

(2) The facts giving rise to the present appeal are that the appellant/petitioner filed a petition in the Court of the Additional Rent Controller,Delhi under Section 14(1)(a) of the Act for ejectment of the respondent on the ground of non-payment of rent. The Additional Rent Controller having found that the respondent has not paid the arrears of rent and further that he has not complied with the order passed under Section 15(1) of the Act,ordered ejectment of the respondent from the premises in question.

(3) Being aggrieved against this order, the respondent filed an appeal before the Rent Control Tribunal, which was allowed by him and thereby THE petition for ejectment of the appellant/petitioner was dismissed.

(4) Being aggrieved against this order, the present appellant has filed this appeal under Section 39 of the Act. It may be noticed here that at the relevant time when the appeal was filed, the same was maintainable under Section 39 of the Act. However, at present the Act stands amended.

(5) The notice was ordered to be issued to the 'respondent but the respondent did not appear. This Court then allowed effecting of service of notice on the. respondent by publication. Inspite of that nobody appeared for the respondent. Again notices were sent by ordinary process as well as by registered A.D. post for 26/10/1990 to the respondent for attending the Court in connection with hearing of the matter. But, unfortunately nobody came and attended the Court, and, therefore, under these circumstances the appeal was directed for hearing. Even today nobody has appearedfor the respondent.

(6) There is no dispute that the rent has not been paid by the respondent and order passed by the Additional Rent Controller, Delhi under Section15(1) of the Act has not been complied with by the respondent and, therefore,appellant/petitioner is entitled to the ejectment order from the Court. However, the Rent Control Tribunal has non-suited the appellant/petitioner on theground that the father of the appellant Mr. Narota Ram had died and there are certain heirs left by Mr. Narota Ram along with the appellant/petitioner and that the appellant/petitioner without impleading other co-owners/heirs in THE petition cannot have any locus standi to file the petition and the petition was,therefore, not maintainable. This objection has been taken in the reply by therespondent that the petitioner/appellant is not the landlord and has no locus stand to file the petition.

(7) Learned Counsel for the appellant/petitioner has vehemently submitted that the appellant/petitioner is not only the owner but also landlord ofthe premises and he has every locus standi to file the petition and that the Rent Control Tribunal has gravely erred in law by having reversed the well reasoned judgment of the Additional Rent Controller. The Additional Rent Controller after appreciation of the evidence has rightly come to conclusion that the petitioner/appellant has proved his case.

(8) I have given careful consideration to the submissions of learned Counsel for the appellant/petitioner. In this case the petitioner/appellant has come in the witness box as A.W.I, and has categorically stated that therespondent has not paid the arrears of rent with effect from 3/02/1983. His father has died on 21/12/1982 and thereafter he is the owner of the property and the property stands mutated in his name. Copy of mutation is Exhibit A.W.1/10. It may be noticed here that the petitioner was not cross-examined at all by the respondent. Even otherwise, my attention has been drawn to the order passed by Additional Judge Small Causes Court,Delhi dated 27/01/1978 (Exhibit A.W.I/4) whereby in a suit for the recovery of rent filed by the father of the appellant/petitioner against the present respondent in respect of the same premises, the present respondent has appeared as D.W.I and has admitted that he used to pay rent to Mr. Narota Ram and sometimes to his son Mr. Chaman Lal, who is present in Court. In other words, he has admitted that he has been paying rent to Chaman Lal aswell, who is the present appellapt/petitioner. No evidence whatsoever in rebuttal has been produced. Nobody has come forward to challenge the authority of Mr. Chaman Lal to file the petition as a landlord. In thesecircumstances, the version/testimony of the appellant/petitioner that he is the owner/landlord has to be accepted as true. There is nothing on record to show that Shri Narota Ram left any heir. Even if it is assumed that ShriNarota Ram left other heirs, there is no dispute that the present appellant/' petitioner is also one of the co-heirs and has been receiving rent in respect ofthe premises even during the life time of his father which fact has been admitted by the respondent. In my opinion, since the respondent has been paying the rent to the appellant/petitioner, who was acting as the landlord also Along with his father during his life time and has been accepted as such by thetenant/respondent, himself and further neither respondent nor anybody else has produced evidence in rebuttal, on the petitioner/appellant has every locus stand to file this petition as a landlord.

(9) In Smt. Kanta Gael v. B.P. Pathak and Other, , a similar question arose and it was held that where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one co-heir to whom the rent is being paid by the tenant and who receives it on behalf of theestate, would be landlord for the purposes of the Act. The Co-heirs constituted the body of landlords and, by consent implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short,he functioned for all practical purposes as the landlord and was therefore entitled to institute proceedings for eviction against the tenant qualandlord.

(10) The approach of the learned Rent Control Tribunal has been wholly erroneous inasmuch as he has ignored the evidence produced by the appellant/petitioner as A.W.I on the file and has merely relied upon the statement made in the reply. The reply to the petition is itself is not an evidence unless it is proved by way of evidence. There is no evidence whatsoever on the file to show that the petitioner/appellant is not a landlord and the finding of the Rent Control Tribunal to that effect is without evidence.The appeal, therefore, raises substantial question of law, and is as such, a fit case of interference in the Second Appeal.

(11) In the light of the above discussion, the judgment of the RentControl Tribunal is set aside and the judgment of the Additional Rent Controller is restored and thereby the order of eviction is passed against the respondent/tenant. In the circumstances of the case, there will be no order as tocosts.