Ram Dulari Thru Lrs vs Om Parkash Gupta & Anr.
2010 Latest Caselaw 1860 Del

 *                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 C.M. (Main) No.796-799 of 2005 & C.M. Appl. Nos.6363-6364
                                     of 2005 & 16594 of 2007

%                                                                                09.04.2010

         RAM DULARI THRU. L.R.S'                         ......Petitioner
                              Through: Mr. S.D. Singh, Advocate.

                                            Versus

         OM PARKASH GUPTA & ANR.                       ......Respondents
                             Through: Ms. Manisha Aggarwal, Advocate.

                                                         Date of Reserve: 21st January, 2010
                                                              Date of Order: 9th April, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                      JUDGMENT

1. By present petition, the petitioner has assailed an order of learned Additional Rent

Control Tribunal dated 23rd September, 2004 whereby the learned Additional Rent

Control Tribunal set aside the eviction order dated 4th February, 2002/21st February, 2002

passed by learned Additional Rent Controller.

2. Brief facts relevant for the purpose of deciding this petition are that the petitioner

(landlady) filed an eviction petition against respondents Sh. Om Prakash Gupta and

Sh. Shrawan Kumar Lohia under Section 14 (1) (b) & (d) and Delhi Rent Control Act.

She alleged that the premises in question was let out to respondent No.1, Sh. Om Prakash

for residential purpose at monthly rent of Rs.25/- exclusive of water and electricity

charges. The tenancy initially was a joint tenancy in the name of Sh. Om Prakash and his

father Sh. Narain Lal. Since Sh. Narain Lal died, the entire tenancy devolved upon his

son Sh. Om Prakash and he became the exclusive tenant. The petitioner and her husband

had purchased the premises on 21st April, 1982. She alleged that tenant/respondent No.1,

Sh. Om Prakash along with his family had shifted from the tenanted premises at Delhi to

his own premises at Charkhi Dadri, Haryana. He was an employee of Haryana

Government and was living there. Neither respondent No.1 nor any of his family

members was residing in the premises for a period of about 15 years and respondent No.1

had sublet and assigned/parted with the possession of the premises to respondent No.2,

who was in exclusive possession of the premises as an unlawful sub-tenant at the time of

filing of the suit.

3. Before filing eviction petition, an application was made before Competent

Authority (Slums) by the petitioner seeking leave to file eviction petition, wherein

respondent No.2 had pleaded that he was looking after the mother of respondent No.1,

who was living in the premises and he was serving as a caretaker to her. Petitioner

contended that this was a false stand and respondent No.2 was a sub-tenant. It was also

contended that the respondents had caused substantial damage to the suit property by

making unauthorized additions/alterations and converting varandha into a room. It was

asserted in the leave application also that Sh. Om Prakash, respondent No.1 was serving

in Canal Department of State of Haryana and was residing at Charkhi Dadri along with

his family members in the house purchased by him in the name of his mother.

4. Respondents in the written statement to eviction petition took plea that Sh. Om

Prakash and Sh. Narain Lal (son and father) were co-tenants in the suit property and after

death of Sh. Narain Lal, his all legal heirs became co-tenants by operation of law and

since they had not been impleaded, the eviction petition was not maintainable. The

relationship of landlord and tenant was also disputed and it was stated that premises

belonged to M/s. Parmeshwari Dass Vijay Kumar Jaipuria and the tenants were not

informed about purchase of premises by the petitioner from the previous owner and no

attornment was there. The extent of premises was also disputed and it was stated that the

premises consisted of three rooms; varandha, open space on second floor and common

user of open toilet of second floor and toilets on ground floor plus staircase leading from

ground floor to second floor. Respondent No.1, however, admitted that he was residing at

Charkhi Dadri, Haryana and was serving at Canal Department of State of Haryana. He,

however, pleaded that his family members, namely, his mother Smt. Savitri Devi, his wife

Smt. Hansa Devi and his son Mahesh Gupta were residing in the suit property along with

respondent No.2, Sh. Sharwan Kumar, who was looking after them. It was averred that

respondent No.2 was a nephew of Smt. Savitri Devi and being a near relation, his

possession and possession of his family members was only as a licensee and they were

living in the premises only to look after the family of the petitioner for their day to day

requirements. He also pleaded that he used to visit Delhi frequently and on such visits, he

stayed in the suit property. His family also used to visit Haryana and stay with him at

Charkhi Dadri. So, it was contended that respondent No.2 was not a sub-tenant but was a

permissive user as a licensee. The trial court after recording evidence of both the sides,

apart from holding that petitioner was landlady, came to the conclusion that it was

respondent No.2 who was residing in the suit property along with his family and

respondent No.1 with his family was residing at Charkhi Dadri, Haryana and employed

with State of Haryana. It was also observed that there was no evidence on record to show

that respondent No.2 was related to respondent No.1 in any manner. The trial court also

concluded from the evidence that the mother of respondent No.1 and his wife were not

residing in the suit premises and respondent No.2 and his family members were residing

there and the evidence in totality indicated that respondent No.1 did not have legal control

over the suit premises and was residing in Charkhi Dadri, Haryana. The actual and legal

control on the suit premises was that of respondent No.2, who was not a tenant of the

petitioner. Thus, the learned Additional Rent Controller came to the conclusion that

respondent No.1 had parted with the possession of the premises in favour of respondent

No.2 without written consent of the petitioner and the petitioner had successfully proved

her case under Section 14 (1) (b) of Delhi Rent Control Act. Learned trial court also

concluded that in view of the facts, the case under Section 14 (1) (d) also stood proved

and accordingly, she passed an eviction order under Section 14 (1) (b) and 14 (1) (d) of

Delhi Rent Control Act.

5. Since an appeal against the order of Additional Rent Controller lies under Section

38 of Delhi Rent Control Act only on the question of law, the learned Additional Rent

Control Tribunal on appeal by respondent framed following questions of law for his

decision :-

"(i) Whether PW-1 Mr. Chandresh Goel who appeared as a witness of the respondent on the basis of her power of attorney Ex. PW1/1 was competent to give evidence on her behalf.

(ii) Whether petition for partial eviction was maintainable.

(iii) Whether respondent being one of the two owners of separate portions of the suit building was alone competent to file the eviction petition against the appellants seeking eviction in respect of tenanted accommodation, a portion of which fell in her ownership and the other portion in the ownership of her husband Mr. Ram Bhagat Goel.

(iv) Whether the respondent has led necessary evidence to show exclusive possession of appellant No.2 over the suit premises so as to shift the burden of proof on the appellants to disprove alleged sub-letting."

6. The learned Additional Rent Control Tribunal decided first question in favour of

the petitioner and observed that there was no bar on an attorney to appear as a witness and

attorney was a person competent to give evidence on behalf of the petitioner. However,

while answering second question, the learned Additional Rent Control Tribunal came to

conclusion that it was a case of partial eviction since the premises as stated by tenants in

their occupation was more than what was stated by the petitioner in the eviction petition.

He concluded that in view of the testimony of respondents and the site plan filed by the

respondents, the eviction had been sought only in respect of a part of the rented

accommodation and eviction could not be sought in respect of a part of the premises. He,

therefore, held that eviction order passed by the learned Additional Rent Controller was

bad in law for this reason. While answering third issue, he held that since there were two

co-owners, one the petitioner and other her husband Sh. Ram Bhagat Goel and the

petition was filed by her alone, she being only an owner of a part of the premises, she

could not have filed eviction in respect of entire tenanted portion more so, when Sh. Ram

Bhagat Goel was alive on the date of filing eviction petition, that is, 11th April, 1997

(Sh. Ram Bhagat Goel died in August, 1998). He, therefore, held that eviction petition

filed by petitioner alone was not competent. While deciding the fourth issue, the learned

Additional Rent Control Tribunal did not agree with the conclusion arrived at by the

Additional Rent Controller regarding parting with possession of premises to respondent

No.2 and upheld the plea of the tenant/respondent No.1 that his mother was living in the

premises and respondent No.2 and his family members were taking care of his mother.

Learned Additional Rent Control Tribunal also observed that petitioner had failed to

explain as to why an action for subletting was not brought for such a long time prior to

11th April, 1997.

7. After the order was passed by learned Additional Rent Control Tribunal, a review

application was filed by the petitioner before Additional Rent Control Tribunal seeking

review of the order on the ground that respondent played fraud upon the court and that the

mother of respondent No.1, who was alleged to be living in the premises with respondent

No.2 had in fact died long before and this fact was not disclosed by the tenant (respondent

No.1) to the court and the tenant gave impression to the court that his mother was still

alive. The petitioner/land lady had made efforts to trace mother of the tenant and then

learnt that she died in Charkhi Dadri, Haryana on 27th July, 2001 and her cremation was

also done at Cahrkhi Dadri and respondent No.1 concealed this fact from the Tribunal.

The petitioner along with review petition filed a copy of death certificate of Smt. Savitri

Devi. This fact stated by the petitioner in review application was not disputed by the

respondents. However, the learned Additional Rent Control Tribunal observed that even

if mother of the tenant/respondent No.1 had died on 27th July, 2001, since she was alive

on the day eviction petition was filed, her death subsequently would not change the

situation and the fact that the respondents did not bring this to the notice of court below or

before appellate court also would not affect the judgment of the court. He, therefore,

dismissed the review application.

8. It is submitted by the counsel for the petitioner that the order of learned Additional

Rent Control Tribunal suffered from total illegality. Learned Additional Rent Control

Tribunal could not have ignored the fact that the mother of respondent No.1/tenant had

died at Charkhi Dadri which was her residence and she was not living in the premises at

Delhi and this fact demolished the entire case of tenant before the learned Additional Rent

Control Tribunal and learned Additional Rent Controller. Learned Additional Rent

Control Tribunal also went wrong in reversing the finding of fact given by learned

Additional Rent Controller that the possession of premises had been parted with by

respondent No.1 and respondent No.2 was in physical and legal control of the premises.

The finding of fact was not a question of law. It was further submitted that the petition

was filed by a competent person. There were two owners of the property, namely, Smt.

Ram Dulari and her husband Sh. Ram Bhagat Goel. Both were co-owners of the

premises and filing of the petition by one of them was a competent petition. Merely

because they had purchased premises 50-50 would not make one of the petitioner

incompetent to file the petition on behalf of the other. It was further submitted that in any

case, Sh. Ram Bhagat Goel had died shortly after filing of the petition and his rights also

devolved upon the petitioner since she was his wife and, therefore, the petition was not

incompetent as held by Additional Rent Control Tribunal. It is further argued that the

observation of Additional Rent Control Tribunal as to why the petitioner did not file

eviction petition prior to 1997 was bereft of factual situation and logic. Since the

premises was situated in slum area, the eviction petition could be filed only after

obtaining leave of the Competent Authority, Slum Area and the petitioner/landlady had

filed application before Slum Authority much before filing of the eviction petition.

9. Perusal of order of Additional Rent Control Tribunal shows that Additional Rent

Control Tribunal had not answered the questions of law correctly. This court in Yashpal

Vs. Chamanlal Sachdeva; 129 (2006) DLT 200 had held that a co-owner can maintain a

petition and that the inter se arrangement between owners is no business of the tenant. In

M/s. India Umbrella Manufacturing Co. & Others Vs. Bhagabandei Agarwalla (Dead) by

L.R.'s and others; AIR 2004 Supreme Court 1321, the Supreme Court observed that one

of the co-owners can file a suit for eviction of a tenant in the property generally owned by

the co-owners and this principle was based on doctrine of agency. One co-owner filing a

suit for eviction against the tenant does so on his own behalf in his own right and as an

agent of the other co-owners. The consent of other co-owners is assumed as taken unless

it is shown that the other co-owners were not agreeable to eject the tenant.

10. I, therefore, consider that the learned Additional Rent Control Tribunal went

wrong in holding that the petitioner being owner only of a part of the premises could not

have filed the eviction petition unless she was joined by her husband, who was a joint

owner of the premises. Even otherwise, it is settled law that the court can take into

account subsequent events and in this case, the petitioner's husband had died soon after

filing of the petition and she became the owner of not only in her own right but as legal

heir of her husband of the remaining portion of the premises. Leaned Additional Rent

Control Tribunal could not have ignored this fact.

11. Leaned Additional Rent Control Tribunal also went wrong in holding that the

eviction petition was filed only in respect of part of the premises. The record shows that

after learned Additional Rent Controller passed judgment, an application was made to

learned Additional Rent Controller under Sections 151 and 152 of CPC and learned

Additional Rent Controller allowed the application and corrected the description of the

premises. Learned Additional Rent Control Tribunal ignored the fact that the landlady, in

her petition, had specifically stated that the tenant had changed the tenanted premises and

converted varandha into a room and had made additions and alterations. Where a tenant

makes additions and alterations into the tenanted premises and the landlord files eviction

petition in respect of the premises as let out, that would not make the eviction petition

incompetent or an eviction petition for a part of the premises. A tenant is liable to be

evicted from the entire premises including from additions/alterations made by him.

12. I also consider that the learned Additional Rent Control Tribunal exceeded its

jurisdiction by entering into an area which was prohibited. It is prohibited for Additional

Rent Control Tribunal to re-appreciate the facts and change the finding of fact given by

Additional Rent Controller. Learned Additional Rent Control Tribunal also wrongly

brushed aside the review petition whereby it was brought to his notice that the mother of

respondent No.1, who was allegedly living in the premises had, in fact, died during the

pendency of the eviction petition before Additional Rent Controller. She had died at

Charkhi Dadri and was cremated at Charkhi Dadri. Her death certificate obtained by the

landlady from Charkhi Dadri clearly showed that the finding given by the learned

Additional Rent Controller that she was not living in the premises in question were

actually correct finding and this subsequent event substantiated those findings. The

learned Additional Rent Control Tribunal, therefore, wrongly came to contrary

conclusion. In Seshambal (dead) through L.Rs. Vs. Chelur Corporation Chelur Building

and Ors. in Civil Appeal No.565 of 2005 decided by Supreme Court on 17th February,

2010 by Bench of Justice Markandey Katju and T.S. Thakur, the Supreme Court observed

as under :-

"While it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted. That proposition of law is, in our view, fairly settled by the decisions of this Court in Pasupuleti Venkateswarlu case (supra). Krishna Iyer J. (as His Lordship then was) has in his concurring judgment lucidly summed up legal position in the following words:

"....................If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed............."

11. To the same effect is the decision of this Court in Om Prakash Gupta's case (supra) where the Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit yet the Court has power to mould the relief in case the following three conditions are satisfied:

".....(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;

(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and

(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise......"

13. In view of the law laid down by Supreme Court and my discussion above, I

consider that the order of learned Additional Rent Control Tribunal is not tenable in the

eyes of law. The conclusion arrived at by learned Additional Rent Controller that the

tenanted premises has been sublet and the tenant, who was employed in Charkhi Dadri

was living with his entire family at Charkhi Dadri was correct. The eviction order was

rightly passed by Additional Rent Controller taking into account the entire evidence and

properly appreciating the same.

14. The order of Additional Rent Control Tribunal is hereby set aside and the eviction

order passed by Additional Rent Controller is hereby restored.

SHIV NARAYAN DHINGRA J.

APRIL 09, 2010 'AA'