Smt. Renu Jolly And Ors. vs Shri Vinod Kumar
2002 Latest Caselaw 1071 Del

JUDGMENT

R.C. Chopra, J.

1. The petitioner-tenants have filed this petition under Section 25B(8) of Delhi Rent Control Act (hereinafter referred to as the Act only) to challenge the eviction order dated 1.7.2000 passed by learned ARC by which an eviction petition filed by the respondent under Section 14(1)(e) of the Act was allowed and an eviction order was passed.

2. The facts relevant for the disposal of this petition, briefly stated, are that the respondent filed an eviction petition under Section 14(i)(e) read with Section 25B of the Act against Shri Mit Pal Singh Jolly and Smt. Balwant Kaur, both since deceased, whose LRs. are the present petitioners. According to the respondent, the premises in question had been let out to the predecessor in interest of the petitioners for residential purposes but now the respondent bonafide required the same for his own and the residence of his family members. According to the respondent the accommodation available with him consisted of two small rooms, passage, bath and latrine etc. which was wholly insufficient for his family. According to him he had no other suitable residential accommodation available to him. He also pleaded that he, his wife and two daughters as well as his old and ailing mother were facing extreme inconvenience on account of paucity of accommodation and hence the prayer for eviction of the petitioners from the premises in question.

3. The petitioners were granted leave to defend the petition. In their written statement they pleaded that there was no relationship of tenant and landlord between them and the respondent and hence the petition filed by him was not maintainable. It was also pleaded that the respondent was gainfully employed and living at Bombay and as such he did not require the premises in question and it was a false plea that he was contemplating to come to Delhi. The mother of the respondent Smt. Raj Kaushalya, who was the landlady had filed an eviction petition under Section 14-D of the Act against the petitioners which was dismissed by learned ARC and as such the present petition was not maintainable. It was also pleaded that the premises were let out for residential-cum-commercial purposes and as such this petition was not maintainable. The Agreement dated 30.7.1974 by which the tenancy was created in favor of the predecessor in interest of the petitioners was referred to and it was submitted that they had never adorned to the respondent as tenants.

4. Both the parties led evidence in support of their pleas. The learned ARC vide the impugned orders upheld the plea of the respondent that he was the landlord of premises in question and required the premises bonafide for his residential use. It was also held that he has no other suitable alternative accommodation. The plea of the petitioners that the premises were let out for residential-cum-commercial purposes or were being used as such since the inception of the tenancy was not accepted.

5. I have heard learned counsel for the petitioners and learned counsel for the respondent. i have gone through the records of the case.

6. The main contention raised by the learned counsel for the petitioners is that the eviction petition filed by the respondent is not maintainable for the reason that he was never the landlord of the premises in question. Learned counsel for the petitioners has contended that the mere fact that the respondent was the owner of the premises in question was not enough for maintaining the petition under Section 14(1)(e) of the Act which required that the petitioner should be a landlord as well as owner. The view taken by the learned Trial Judge that the respondent being the owner of the premises in question had automatically become the landlord as well as owner. The view taken by the had himself given up his right to receive rent in respect of the premises in question during the life time of his mother and since his mother was alive, the respondent could not be taken as the landlord of the premises in question. It is also argued that the premises in question had been let out for residential-cum-commercial purposes and the respondent did not intend to shift to Delhi and stay here and as such he had no bonafide need.

7. Learned counsel for the respondent has controverter the pleas raised by learned counsel for the petitioners. He submits that under the facts and circumstances of the case, this Court while exercising its powers under Section 25-B(8) of the Act may not interfere with the impugned orders passed by learned ARC which are according to law. He contends that the powers of the High Court under Section 25-B(8) of the Act are not as wide as those of Appellate Court and as such, this Court must not undertake reappraisal of the evidence and the issues of facts determined by the ARC. It is submitted that the High Court has to limit the inquiry only to the question as to whether the impugned order passed by the Additional Rent Controller is according to law or not. In support of his submissions he relies upon judgments of the Apex Court in Sarla Ahuja v. United National Company Limited, and Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, AIR 1999 SC 2501.

8. Coming to the question as to whether the respondent is the landlord as well as owner of the premises in question, this Court is of the considered view that a landlord may or may not be owner but the converse is not true in as much as the owner is always a landlord in view of the definition of the landlord given under Section 2(e) of the Act. The landlord is a person who by virtue of some authority or powers is entitled to collect rent on behalf of owner whereas the owner by virtue of ownership itself is entitled to receive rent from the tenants in occupation of his property. In Narinder Singh v. Raj Kumari reported in 1992 RLR page 14 and Zulfiquar Ali Khan and Ors. v. J.K. Helenee Curtis Ltd. and Ors. , two learned Single Judges of this court have also taken the view that the owner is simultaneously a landlord while the converse may not be true.

9. In the present case the petitioners are relying upon an Agreement dated 30.7.1974 between the predecessor in interest of the petitioners and the mother of the respondent by which tenancy was created in favor of Shri Sohan Singh, father of deceased tenant Sh. Mit Pal Singh. A perusal of this Agreement shows that in this agreement even the mother of the respondent had declared herself to be entitled to receive rent only during her life time and had nowhere claimed that her son i.e. the present respondent had been divested of his rights as owner. If the owners of a property allow someone only to collect rent and use it for his own needs, they do not divest themselves of the character of the landlord vis-a-vis tenant and always remain entitled to collect rent. The arrangement by the owners regarding receipt or collection or use of rent is an internal matter between the owners only. The tenant, even if a signatory to such an agreement, is merely a confirming party. In the present case the respondent's mother has appeared as AW2 and has deposed on oath that the respondent, i.e. her son, is the owner of the premises in question and because of her old age she wants to stay with him and as such eviction order may be passed in his favor which clearly conveys that she has given up her rights as contained in the Agreement dated 30.7.1974 and has permitted the respondent to exercise his rights as the landlord also of the premises in question. The agreement dated 30.7.1974 had merely suspended respondent's right to act as a landlord but as soon as his mother started living with him his right to collect rent stood restored. The respondent had alleged in para-14 of the petition that petitioners had been depositing rent under Section 27 of the Act in his favor which averment was not controverter by the petitioners. Therefore, it cannot be said that the respondent who is the owner of the premises in question is not the landlord thereof. Therefore the learned Trial Judge was fully justified in holding that the respondent was the owner-landlord of the premises in question and as such the petition filed by him was maintainable.

10. It is also worth noticing that the eviction petition No. E 1022/91 which was filed by respondent's mother under Section 14-D read with Section 25-B of the Act was only rejected by the Controller under Order 11 Rule 7 of the CPC. The petitioners predecessor in interest had filed an application for leave to defend, a copy of which is proved on record as Ex.AW7/3. In his affidavit, in para (4), he had categorically stated that half share in the property in question was owned by the respondent. In para (8) of the affidavit it was pleaded that a serious and important question of law had arisen as to whether a person having only a life interest to receive rent could file or not an eviction petition against a tenant and in the alternatively it was also a question of law as to whether a person having life interest and not being the owner of the property could sue for eviction under Section 14-D of the Act. In para (10) a further plea was raised that the proper course would have been, if the present respondent had filed an eviction petition for his personal requirements. It was also averred that respondent's mother (petitioner in the said eviction petition) had ceased to be the landlady. It is, therefore, manifestly clear that in the eviction petition field by respondent's mother the petitioners were raising a plea that the eviction petition ought to have been filed by her son i.e. present respondent but now when the respondent himself has filed the eviction petition, a plea is being raised that the petition filed by him is not maintainable as he is not the landlord of the premises in question. The petitioners, therefore, are blowing hot and cold in their effort to resist their eviction from premises in question.

11. It is also noticed that in the said petition, an affidavit, the certified copy of which is PW7/4, was filed by Smt. Balwant Kaur Jolly also in which a plea was raised in para (6) that the respondent's mother was a stranger to the property in question and only a right to collect rent had been granted to her for her maintenance. It was stated that the respondent had granted this right to her during her life time only. In para (12) of the said affidavit it was also pleaded that since the respondent's mother was economically dependant upon the respondent the arrangement between her and her son giving her life interest in the property to recover rent from the tenants was not operative and had fizzled out for all practical purposes. It was also pleaded that the respondent's mother had ceased to be a landlady and had nothing to do with the property in question and she had lost her status of land lady qua the tenants and as such had no right to institute the petition. In para (13) of this affidavit it was repeated that the parties had reverted back to pre-agreement position prior to 30.7.1974 and as such respondent was the owner of the property in question and his mother had no locus standi.

12. The aforesaid affidavits filed on behalf of the petitioners predecessors clearly show that in the petition filed by respondent's mother the maintainability of the eviction petition was being challenged on the ground that she was neither owner nor landlady but her son was the owner. Now when the son-respondent has filed an eviction petition a plea is being raised that he is not the landlord and as such this petition is not maintainable. This court is not at all inclined to entertain such a frivolous plea which is aimed at only harassing the opposite party and delaying the relief to them on one pretext or the other. The petitioners are trying to be gainers bothways. A case of "Heads I win, tails you lose".

13. The plea of learned counsel for the petitioner that the aforesaid affidavits have not been properly proved cannot be sustained for the reason that these documents were admitted and taken on record by the learned ARC with the consent of the parties in as much as in the course of cross-examination of AW1 on 28.2.1996 liberty was given to both the parties to file certified copies of the litigation which concession was not refuted by any of the parties. Moreover the procedural laws which are hand maiden of justice cannot be allowed to defeat the ends of justice. The certified copies which were exhibited without any objection and with the consent of the parties therefore could be read in evidence by the Court. It may be mentioned that the procedural laws exist for assisting the Courts for advancing and administering justice and can not be permitted to obstruct the course of justice. The Apex Court in the judgments in Kewal Chand Mimani deceased by LRs. v. S.K. Sen and Ors., ; M.S. Grewal and Anr. v. Deep Chand Sood and Ors., and N.Kamalam (dead) and Anr. v. Ayyasamy and Anr., has highlighted the responsibility of the law Courts to deal with the matters having due regard to the concept of justice and adopt a justice oriented approach instead of going by the technicalities of law. In Kewal Chand Mimani's case (supra), Hon'ble Mr. Justice U.C. Banerjee speaking for the Bench gave guidance to the Court in the following words:--

"It is trite knowledge that presently, the law courst are being guided by a justice oriented approach, since the concept of justice is the call of the day and a need of the hour. Justice is the goal of jurisprudence - procesual/procedural as much as substantive. Puritan approach has lost its significance in the present day context."

14. This Court does not find any material on record to hold that the premises in question were let out to the petitioners for residential-cum-commercial purposes or that the same were being used as such with the consent of the respondent/landlord. The view taken by learned Trial Judge in this regard calls for no interference. The pleadings of the parties and the evidence on record clearly establish that the accommodation available with the respondent consists of only two small rooms, bathroom, latrine wherein he, his wife, two daughters and his aged mother are accommodating themselves. The respondent, therefore, is facing acute shortage of residential accommodation and as such, it cannot be said that the petition for eviction filed by him is not bonafide. It is satisfactorily established that the respondent who is the owner/landlord of the premises in question wants to shift to Delhi and live in his own house with his mother who is quite old as well as ailing. In the cross-examination of A.W. 1, respondent, it came out that after about an year of the filing of the eviction petition, he had paid Rs. 1 lac to Roshanara Club, Delhi for becoming its member which clearly shows that the respondent intends to shift to Delhi, otherwise he had no reason to pay such a heavy amount for acquiring the membership of a club at Delhi. There is nothing on record to show that the respondent has any other alternative residential accommodation available for himself and his family members.

15. After considering the submissions made by learned counsel for the parties and on perusal of the Trial Court's records, this Court is of the considered view that the impugned orders passed by learned Additional Rent Controller are in accordance with law and do not call for any interference by this Court. No good grounds are made to for any interference by this Court.

16. The petition, therefore stands dismissed.