Mrs. Inshallah Begum Allias Noor ... vs Mohd. Yunus, S/O Mohd. Ahmad, ...
2003 Latest Caselaw 55 Del

JUDGMENT

S.N. Kapoor, J.

1. Heard.

2. This petition is directed against order dated 31.3.1999 passed by the learned Additional Rent Controller, Delhi, allowing an application under Order 1 rule 10 CPC.

3. In this case, one Mohd. Ahmad was tenant under late Sh. Hazi Abdul Najib in respect of two rooms. He died as a contractual tenant in the year 1965. It is claimed by Mohd. Yunus for no other legal heir claimed any tenancy right in the premises in question Hazi Abdul Hamid, the landlord, also expired. Litigation started amongst his legal heirs. On 26th July, 1967 by a decree confirmed up to the High Court, the premises in question in occupation of Mohd. Yunus was allotted to the petitioner and constructive possession of the said portion was also given to the said petitioner.

4. She filed an eviction petition against respondent No. 1 Mohd. Yunus in the year 1989 under Section 14(i)(e) of the Delhi Rent Control Act (in short 'the Act'). Respondent No. 1 delayed the matter by one way or the other. It is contended that with a view to further delay the eviction proceedings, an application was filed on behalf of Smt. Amana Khanam and Mohd. Farooq stating that Sh. Mohd. Ahmad was tenant in respect of the premises in dispute till his death in 1965 and tenancy of Sh. Mohd. Ahmad was inherited by Smt. Amana Khanam, widow of Sh. Mohd. Ahmad and Mohd. Farooq, son of Mohd. Ahmad. On 6th December, 1997 the impugned order was passed ignoring the contention of the petitioner that respondent No. 1 became the sole tenant after death of Mohd. Ahmad. Rent receipts were also issued in his name alone.

5. It is contended that the learned trial Court without considering the conduct of the applicants/respondents in giving up their rights in the tenanted premises by neither claiming any rent receipt in the joint names of all the heirs of deceased Mohd. Ahmad, has allowed the application. The application was moved after 32 years after death of Mohd. Ahmad. It is submitted that since the case of the petitioner is that respondent No. 1 Mohd. Yunus was the sole tenant and since the petitioner is dominus litis, therefore, the respondent could not have been imp leaded in view of their own conduct.

6. On the other hand, it is submitted that it is an undisputed fact that the applicants are legal representatives of Mohd. Ahmad and as such, they became co-tenant after death of Mohd. Ahmad. They never surrendered their tenancy and therefore, they are proper parties and the learned counsel appearing on behalf of the respondent tried to support the order passed by the learned trial Court.

7. The only short question is: "Whether by conduct the applicants/respondents have given up their tenancy rights?"

8. Learned counsel for the petitioner in support of his contention relies upon the judgment in Pushpa Rani v. Bhagwanti Devi, . In that case this proposition of implied surrender was accepted.

9. But before I proceed further to consider this aspect and the other judgment in the case of Bina Chand Jain v. Keshav Chander Chadha and others, , it will be desirable to note that one of the applicants who sought to be imp leaded was Mohd. Farooq. He admitted before this Court that no receipt had been issued in his name. He had purchased property No. V-141 in Gali No. 17, Vijay Park in the area of village Maujpur Illaqua, Shahadara. His children studied in Guru Harkishan Public School, Maujpur for several years. He admitted that he and his family stayed for few days at the property purchased by him. He did not insist on issuing rent receipt since he had full faith in his eldest brother Mohd. Yusuf. He did not file any application 10 years earlier indicating that he knew of the receipt of notice. He stated that neither he insisted for the rent receipt nor he thought it proper to be imp leaded at the initial stage when notice was received by his brother for, he was living along with his brother. Thus, there appear numerous circumstances to infer that Mohd. Farooq, the respondent, has virtually shifted to his self acquired premises. Otherwise in the formative years when the children are young they would have not got admitted in Guru Harkishan Public School, Maujpur near the premises which has been purchased by Mohd. Farooq. Lack of receipt, lack of interest despite service of notice of termination of tenancy in the name of his brother, are indicative of intention to surrender the tenancy rights in the property. In such circumstances, there appears some force in the submission that respondent No. 1 has virtually set up these persons to cause further delay by moving the application under Order 1 Rule 10 CPC.

10. In the aforementioned circumstances, if the petitioner has dominus lIT is over the eviction proceedings as initiated by him by filing the eviction petition and claiming that Mohd. Yusuf was the sole tenant of the petitioner qua the tenanted premises in question, the matter could effectually and completely be adjudged upon without the newly added respondents being joined as party to the eviction petition. In that sense Order 1 Rule 10 CPC is not attracted to the case of the newly added respondents. Since the application has not been moved with bona fide intention but to cause further delay, I think, it would not be desirable to accept such delayed applications when applicant knew about the receipt of notice and the pendency of the case. Since the newly added respondents just slept over their rights for around 10 years or so, it would be putting premium to those who are blatantly interested in delaying the matter.

11. It may be mentioned that in Pushpa Rani v. Bhagwanti Devi's case (supra), as has already been held, the proposition of implied surrender was accepted on the basis of the circumstances as obtained in that case. In the aforementioned circumstances, the facts and circumstances of this case are more or less stand on the same footing. Consequently, it is felt that that names of the newly added respondents may be deleted from the array of respondents and the petition should be allowed.

12. For the aforesaid reasons, the petition is allowed and the impugned order dated 31.3.1999 impleading respondents Smt. Amana Khanam and Mohd. Farooq is set aside accordingly.