Krishan Lal vs Kartar Singh Ahuja
2011 Latest Caselaw 1258 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 03.03.2011

+            RSA No.59/2010 & CM No. 5461/2010 (for stay)



KRISHAN LAL                                    ...........Appellant
                        Through:    Mr. Prem Kumar, Mr. Girish
                                    Kumar and Mr. Surjeet Singh,
                                    Advocates.

                  Versus

KARTAR SINGH AHUJA                             ..........Respondent.
                  Through:          Mr. Keshav Dayal, Sr. Advocate
                                    with Mr.Sanjay Kumar Singh &
                                    Mr. T.S. Ahuja, Advocate.


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

18.02.2010 which had reversed the findings of the trial Judge dated

17.09.2005 whereby the suit filed by the plaintiff Kartar Singh

Ahuja seeking possession, damages and mesne profits qua the suit

property i.e. premises No. IX/6107, old No. 513/26, main Road,

Gandhi Nagar, Delhi had been dismissed. The impugned judgment

had reversed this finding; suit had been decreed.

2 The case of the plaintiff was that Ram Lal was a statutory

tenant in his shop at a monthly rent of `73.15 paise. His tenancy

had been terminated vide legal notice dated 14.08.2000 (Ex. PW-

1/5) terminating its tenancy w.e.f. 30.08.2000. Ram Lal had

admittedly died on 22.01.2001. Contention of the plaintiff was that

the defendants who are the brothers of the deceased Ram Lal were

not the tenants under him. They had not inherited the tenancy from

Ram Lal; they were unauthorized occupants.

3 The defence of the defendants was that they were tenants in

their own right; they did not claim themselves to be the legal

representatives of their deceased brother. This was specifically

contented in para 4 of the written statement. The defence of the

defendants as is evident from the perusal of the written statement

is that after the death of Ram Lal, the plaintiff had approached

defendant No. 1 and he had demanded a sum of `50,000/- from him

as advance rent to treat him as a tenant i.e. w.e.f. the date of death

of Ram Lal. Defendant No. 1 had in fact paid `50,000/- in cash to

the plaintiff as rent of the shop. The defendants had thereafter

acquired the status of independent tenants. It was specifically

averred that they are not the legal heirs of Ram Lal and they are

not claiming any interest in the property on that count; defendant

No. 1 was a tenant of the property in his own right. This was a joint

written statement of both the defendants. The defence set up by

defendant No. 2 was also to the effect that he was not claiming any

interest as a legal heir of his deceased brother.

4 On the basis of oral and documentary evidence led before the

trial Judge, the suit was of the plaintiff was dismissed. The trial

Judge was of the view that the defendants were class II heirs of

deceased Ram Lal; they were entitled to inherit his tenancy rights;

bar of Section 50 of the Delhi Rent Control Act (hereinafter

referred to as „DRCA‟) had become operable; since the rent was

below `3,500/-, the Civil Court had no jurisdiction to entertain the

suit. Suit was dismissed.

5 In appeal, this finding was reversed. The impugned judgment

had noted that the defence of defendant No. 1 in the written

statement was that he was not claiming as a legal representative of

deceased Ram Lal; he had waived this right; he had failed to prove

that he is a tenant in his own individual capacity. The alternate

claim of interest in the suit property through deceased Ram Lal

could not be entertained in view of the specific averment in the

written statement which was to the contrary; suit of the plaintiff

had been decreed. For mesne profits, the matter was remanded

back.

6 This is a second appeal. It is yet at its admission stage. On

behalf of the appellant, it has been urged that a substantial

question of law has arisen as the impugned judgment could not

have reversed the finding of the trial Judge on the finding of

waiver. It is pointed out that although admittedly in the written

statement, defendant No. 1 had taken a stand that he is not

claiming his right in the tenancy as being inheritable yet the

impugned judgment had wrongly held that the appellant had

waived this right; question of waiver could not arise where a party

is not aware of his legal right. Learned counsel for the appellant

has placed reliance upon AIR 1935 Privy Council 79 Dawsons Bank

Ltd. Vs. Nippon Menkwa Kabushihi as also AIR 1961 Calcutta 65

Nathmull Tolaram Vs. Killa & Co. to support his submission that

waiver is an intentional relinquishment of a known right; in the

instant case, the appellants were not aware that they had a right of

claiming inheritable status in the tenanted premises; question of

waiver would not arise. Reliance has also been placed upon AIR

2003 SC 1475 Sarwan Kumar & Another Vs. Madan Lal Aggarwal

to support his submission that in these circumstances where the

status of the appellants stool proved as tenants, jurisdiction of the

Civil Court is barred. There is no dispute to this proposition that

once relationship of landlord-tenant has been established and the

rent is below `3,500/-, jurisdiction of the Civil Court is barred.

6     Arguments have been opposed.

7     Perusal of the record shows that the specific averment of the

defendants in the written statement which is not at one part (but

the entire body of the document) that defendant No. 1 is a tenant

in his individual capacity qua the plaintiff. His contention was that

after the death of his deceased brother Ram Lal, he wanted to

continue the business in the shop and he had approached the

plaintiff and on an agreement had paid a sum of `50,000/- in cash

to the plaintiff pursuant to which a new tenancy had been created

in his favour. Stand of defendant No. 2 was also to the same effect.

Both the brothers i.e. defendant No. 1 & defendant No. 2 had

stated that they were not claiming inheritable status qua the suit

property; they were not claiming themselves to be the legal

representatives of deceased Ram Lal.

8 Admittedly there was no documentary evidence produced by

defendant No. 1 to substantiate his submission that he is a tenant

in the suit property. The sole document proved by him was Ex. DW-

2/1 which was a rent receipt dated 25.04.2001 which clearly on the

first page of the document had noted that Ram Lal had since died,

this was rent tendered by defendant No. 1 on behalf of Ram Lal

and rightly held so. The status of defendant No. 1 as a tenant could

not be established. The specific averment in the written statement

of both the defendants that they are not claiming any interest in

the property as legal heirs of Ram Lal and the version set up by

defendant No. 1 that he had in fact paid a sum of ` 50,000/- in cash

to the plaintiff qua his individual status as a tenant had been

rightly adverted to in the impugned judgment; the impugned

judgment had rightly noted that a defence could not now be taken

that defendant No. 1 is claiming his right in the suit property as a

class II legal heir of his deceased brother. He was estopped from

doing so. A party could not be allowed to approbate and reprobate;

he can not blow hot and cold in the same breath. There was a clear

and categorical version of the defendants in their written

statement that defendant No. 1 was an independent tenant; he was

not claiming inheritable status through his deceased brother. No

contrary argument could be entertained. The judgment of Dawsons

Bank Ltd. and Nathmull Tolaram are distinct on facts. They are on

the principle of waiver. The terminology used in the impugned

judgment that the defendant had waived his right may not be a

correct phraseology but that does not give any right to the

appellant to raise the argument which is now sought to be urged.

He is estopped from doing so.

9 Substantial questions of law have been embodied at page 10

of the body of the appeal. They read as under:-

(i) Whether the Civil Court has jurisdiction to try the suit and pass decree for possession against heirs of a tenant in view of section 50 of the Delhi Rent Control Act in the absence of pleading in the plaint that the defendant being legal heir of statutory tenants Ram Lal had knowingly given up/surrendered/waived his tenancy rights?

(ii) Whether the possession of heirs of a tenant holding commercial tenancy under Delhi Rent Control Act becomes unlawful and illegal after the death of the statutory tenants and cannot have heritable estate in the tenanted premises.\

(iii) Whether decree passed by the Civil Court would not be non-est having been passed by Court lacking jurisdiction as the only authority to pass a decree for ejectment of a tenanted premises, having protection of Delhi Rent Control Act by virtue of Section 50 r/w Section 3 (c) of the Act, is the Rent Controller.

(iv) Whether an appellate court can reverse the findings of the trial court on issue No. (3) without there being any evidence to show that the appellant had surrendered his tenancy rights under Delhi Rent Control Act knowing that he was conferred such a statutory right in law.

(v) Whether the Ld. Appellate Court could declare the statutory tenant in the suit property as "trespasser" even where the landlord permits the heir of the statutory tenant to remain in the suit property for more than 13 months after the death of the statutory tenant.

10 No such substantial question of law having arisen; appeal as

also pending application are dismissed in limine.

INDERMEET KAUR, J.

MARCH 03, 2011 A