Smt.Sudha Aggarwal & Ors. vs Shri Sunil Kumar Jain
2011 Latest Caselaw 678 Del

A-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 04.02.2011


+      RSA No.23/2011 & CM No.2258-2259/2011



SMT.SUDHA AGGARWAL & ORS.       ...........Appellant
                Through: Mr.J.C.Mahindro, Advocate.

                   Versus

SHRI SUNIL KUMAR JAIN                     ..........Respondent
                   Through:           Nemo.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                   Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

01.11.2010 which had endorsed the finding of the trial judge dated

17.8.2010 whereby the suit for possession, permanent injunction

and damages filed by the plaintiff Nirmal Kumar qua the suit

property bearing No.1715, Pilli Kothi, Nahar Sada Khan,

S.P.Mukherjee Marge, Delhi had been dismissed.

2. The contention of the is plaintiff that he was the owner of the

suit property and the defendant Sunil Kumar Jain is a trespasser.

Admittedly, father of Sunil Kuma Jain, Inder Kumar was his tenant

but after his death on 19.2.2005 and thereafter the death of his

wife Memo Devi on 9.3.2008, the defendant had become a mere

trespasser and was liable to be evicted.

3. The defence of the defendant was that he was a tenant n his

legal right and he had inherited the tenancy from his father; he

could not be evicted by way of the present suit. Bar of Section 50

of the Delhi Rent Control Act (hereinafter referred to as „the

DRCA‟) was in operation as the suit property was admittedly rented

out for less than `3500/- per month.

4. The trial judge had framed seven issued. Issue no.3 was the

contentious issue; it reads as follows:

"Whether the suit is barred Under Section 50 of the DRC Act? OPD"

5. The trial judge had examined the judgment of the Apex Court

reported in 1985(1) RCR 459 Gian Devi Anand Vs. Jeevan Kumar &

Ors.. It was held that the tenancy had devolved upon the

defendant being the legal heir of his father. The judgment

reported in 148(2008) DLT 705 (SC) Satyawati Sharma (dead) by

LRs Vs. Union of India had been distinguished. It was held that the

said judgment had not in any manner overruled the proposition of

Gian Devi‟s judgment; what was under examination before the

Apex Court in the case of Satyawati was the vires of Section

14(1)(e) of the DRC Act and the Court had held that no distinction

can be drawn between a non-residential or a residential property

as far as the bonafide need of the landlord is concerned under

Section 14(1)(e) of the Act.

6. This is a second appeal. At the first hearing it had been

pointed out that the judgment of Satyawati (supra) had overruled

the judgment of Gian Devi (supra). This is incorrect. The

judgment of Satyawati (supra) which was pronounced more than

two decades later had referred Gian Devi judgment although

noting that with lapse of time and change of circumstances certain

legislations become unreasonable and violative of the doctrine of

equity. In the judgment of Satyawati the Court had held that part

of Section 14(1)(e) of DRCA which is violative of the doctrine of

equity as it discriminates between premises let out for a residential

or non-residential purpose but the same are required by the

landlord bonafide as an accommodation for himself or any member

of his family dependent upon him was struck down. The distinction

between residential and commercial premises under Section 14 (1)

(e) was struck down.

7. The suit filed by the plaintiff was seeking possession of the

suit land; it was a commercial property. Gian Devi (supra) had

decided the issue of heritability of the tenancy rights of commercial

premises and which proposition was not in challenge in the case of

Satyawati.

8. The oft quoted paragraph of the judgment of Gian Devi is

reproduced herein below and reads as follows:

"In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in Section 2(1)(iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision.............. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. ...... We are of the opinion that in cases of commercial premises governed by the Delhi Act, the Legislature has not though it fit in the light of situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. In the absence of any provision restricting the heritability of tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determinate of the contractual tenancy will devolve on the heirs in accordance with law and the heirs who steps into the position of the deceased tenant will continue to enjoy in the protection afforded by the Act and they; can be only be evicted in accordance with the provisions of the Act."

9. Both the Courts below had rightly held that the bar of

Section 50 of the DRCA is applicable. Admittedly the rent in terms

of the rent receipts Ex. PW-1/3 to Ex. PW-1/5 show that the rate of

rent was less than Rs.3500/-. Defendant was protected as a tenant

as he has inherited this tenancy ; suit was rightly dismissed. No

question of law has arisen. Appeal as also pending applications are

dismissed.

INDERMEET KAUR, J.

FEBRAURY 04, 2011 nandan