Delhi High Court

Tej Pal Gupta vs Rattan Singh on 25 May, 2009

Author: Manmohan

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      R.C.R. 142/2005

                                            Reserved on : 05th May, 2009

%                                          Date of Decision : 25th May, 2009


TEJ PAL GUPTA                          ..... Petitioner
                          Through:     Mr. S.S. Panwar, Advocate and
                                        Mr. Sunil Dutta Baloni, Advocate

                     versus

RATTAN SINGH                           ..... Respondent
                          Through:     Mr. S.P. Jain, Advocate.


CORAM:
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.



                              JUDGMENT

MANMOHAN, J

1. Present revision petition has been filed by petitioner/tenant under

Section 25B(8) of Delhi Rent Control Act, 1958 challenging the eviction

order dated 04th July, 2005.

2. When I had taken up the matter for hearing on 13th February,

2009, learned counsel for petitioner vehemently argued that property

No.4251, Mohalla Jatan, Pahari Dhiraj, Delhi-110006 was an

alternative residential property available to respondent/landlord for

residential use and occupation. In this connection, petitioner's counsel

drew my attention to annexure P-R8 which according to him showed

that respondent had been paying house tax for the said property. Even

though I did not find mention of property No.4251, Mohalla Jatan,

Pahari Dhiraj, Delhi-110006 in the petitioner's leave to defend

application, in the interest of justice, I asked respondent to file a

response thereto.

3. Respondent herein filed a detailed affidavit wherein he

specifically averred that neither he nor any of his family members or

relative have any right, title, interest or possession of house No. 4251,

Mohalla Jatan, Pahari Dhiraj, Delhi-110006. In the said affidavit, it was

further stated that the said house was initially occupied by petitioner's

brother-in-law as a tenant and petitioner had stayed in the said

property when he was a minor. In the said affidavit, it was also stated

that respondent's brother-in-law had vacated the said premises in and

around the year 1955 and the said property was no longer available to

him.

4. On 04th March, 2009, petitioner filed a detailed counter affidavit

wherein he emphasized that another property bearing No.4410,

Mohalla Jatan, Pahari Dhiraj, Sadar Bazar, Delhi-110006 was available

to respondent. In the said counter affidavit, petitioner mentioned about

property No.4251, Mohalla Jatan, Pahari Dhiraj, Delhi-110006 only in

one paragraph and that too by stating that in some other proceedings

the petitioner had, in the year, 1976 mentioned his address as 4251,

Mohalla Jatan, Pahari Dhiraj, Delhi-110006. In the said counter

affidavit, there was no specific denial of the averment that the said

property was neither owned or occupied or available to

respondent/landlord.

5. During the course of hearing, when I asked petitioner as to

whether he had any document or evidence to show that property No.

4251, Mohalla Jatan, Pahari Dhiraj, Delhi-110006 was available for

residential use and occupation of respondent either at the time of filing

of eviction petition i.e. in the year, 2004 or at any subsequent period of

time, learned counsel for petitioner candidly stated that he had no

documents or evidence in his possession.

6. However, learned counsel for petitioner immediately changed

track and started emphasizing about another property being property

No. 4410, Mohalla Jatan, Pahari Dhiraj, Delhi-110006. Again on

perusal of leave to defend application, I found that this property had

not been mentioned as being available for residential use and

occupation of the respondent. But in the interest of justice, I once

again asked the respondent to file his response with regard to the said

property.

7. On 05th May, 2009, respondent handed over his reply affidavit in

which it was stated that the said property was owned by the

respondent's son but no part of it was in respondent's possession. It

was further averred that the said property was in occupation of tenants

for more than 17 to 18 years and no part of the said property was

available for use and occupation to either respondent or his family

members.

8. Upon being confronted with this affidavit, petitioner once again

changed track and argued that there was no relationship of landlord

and tenant between petitioner and respondent. He stated that

petitioner had in the year 1984 taken on rent a piece of land measuring

13 Sq. yards from Shri Umrao Singh and thereafter, petitioner had

constructed a shop at his own cost. Learned counsel for petitioner

argued at length that respondent was not the owner of tenanted

premises and further that respondent's suit for declaration bearing Suit

No. 598/2002 was still pending before Civil Judge, Tis Hazari Courts,

Delhi.

9. On a perusal of the file, I find that respondent/landlord had filed a

suit for injunction in the year 1967 against Union of India, Custodian

Evacuee property and the Chief Settlement Commissioner claiming to

be owner of tenanted premises bearing House No. 11036 to 11038,

Motia Khan, Delhi. In the said suit, one of the specific issues framed

was whether respondent/landlord was the owner of suit property?

10. After a protracted trial, Ms. Manju Goel, Sub-Judge (as she then

was) after recording Umrao Singh's statement, gave a finding that

respondent was owner of suit property. I may mention that from the

said judgment, it is apparent that Umrao Singh had deposed in

respondent's favour and had specifically stated that he had transferred

the land to respondent. Even, an appeal filed by Union of India against

the said judgment was dismissed by Additional District Judge vide his

detailed judgment and order dated 17th September, 1977. Learned

counsel for petitioner contended that the said judgment was obtained

by respondent by fraudulent means.

11. Learned counsel for respondent took exception to this argument

and pointed out that petitioner had paid rent and executed rent

receipts wherein the purpose of letting was mentioned as residential.

He further pointed out that as petitioner had in the year 1994 stopped

making payment of rent, respondent had filed a civil suit for recovery of

rent. He stated that after a full contest, Court of Smt. Neena Krishna

Bansal, Judge, Small Causes Courts, had passed a decree of arrears of

rent vide judgment dated 27th April, 2002 holding that there existed a

relationship of landlord and tenant between petitioner and respondent.

He further stated that even the petitioner's revision petition against

the judgment of Courts of Small Causes, was dismissed in limine by this

Court while holding that petitioner was tenant in the said premises

under the respondent. The said order dated July 8, 2002 passed by a

Single Judge of this Court is reproduced hereinbelow:

"Petitioner had been making payment of rent to the respondent admittedly since 1994 and had at no point of time objected to the relationship of landlord and tenant before the filing of the suit by the respondent. Even in his application for grant of electricity connection, the petitioner had described the respondent as the landlord of the premises and rent receipt issued by the respondent was filed alongwith the application. It was on these facts that the trial court held the respondent to be entitled to rent and directed the petitioner to pay rent to the respondent. There is also a judgement of the court of competent jurisdiction declaring the respondent to be the owner of the property bearing No.11036 to 11038. It is in these properties that the petitioner is a tenant. I, therefore, do not find any infirmity or illegality in the order of the trial court. There are no merits in this petition and the same is, accordingly dismissed."

(emphasis supplied)

12. Learned counsel for respondent further pointed out that even

though petitioner's case in the present proceedings was that he had

constructed a shop in tenanted premises in the year 1984, petitioner

had filed an affidavit before the electricity authorities wherein he had

stated that premises had been constructed in the year 1981.

13. Having heard the parties at length, I am of the opinion that the

judgment of Sub-Judge dated 23rd October, 1974 as well as of

Additional District Judge dated 17th September, 1977 and Small Causes

Courts dated 27th April, 2002 coupled with order of this Court dated

08th July, 2002 in C.R. No.637/2002 establish beyond doubt that

respondent is the owner of tenanted premises and petitioner on the

principle of res judicata is disentitled from disputing respondent's

ownership of tenanted premises in his leave to defend application. I

may mention that in the case of Shri Ramesh Ahuja & Anr. v. Shri

Ram Nath Jain in RCR 20/2009 decided on 1st April, 2009, it has

been held as under:

"5. Undoubtedly, a Court of Small Causes has limited jurisdiction, but in my opinion, on the principles of res judicata, finding of Court of Small Causes that respondent was owner of tenanted premises, would disentitle petitioners from raising this plea in their leave to defend application."

14. I may mention that, in the present eviction proceedings the

respondent herein has only to prove that he is a landlord. He need not

prove ownership of the premises - but in the present case, even the

said issue stands concluded in earlier proceedings. Consequently, in

my view, present petition is devoid of merits and is dismissed.

15. Before I part with this judgment, I may point out that today a

class of litigants has emerged, who have scant regard for truth. They

not only take false pleas but also file multifarious litigations in the hope

that in view of the docket explosion in courts, the cases would

unnecessarily prolong. These litigants believe that as justice is

depicted to be blind folded, the Courts will not be able to pierce the veil

of their multi-layered defences in multifarious litigations.