Ram Mohan vs Inder Singh
2012 Latest Caselaw 4899 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+      CM(M) 800/2012 with CM 12022/2012 and 12021/2012

                                            Date of Decision: 22 .08.2012

RAM MOHAN                                            ..... Petitioner
                    Through      Mr. N.P. Singh with Mr. Amreek Singh,
                                 Advocates.

                          Versus

INDER SINGH                                        ..... Respondent
                   Through     Mr. Mukesh M. Goel, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This petition under Article 227 of the Constitution is filed assailing order dated 04.07.2012 of District Judge cum Additional Rent Control Tribunal (ARCT), North, whereby appeal against order dated 30.07.2011 of Additional Rent Controller (ARC) was dismissed.

2. Vide order dated 30.07.2011 an application under Section 144 CPC filed by the respondent objector Inder Singh for setting aside the eviction order dated 13.01.2007 and for restitution of the tenanted premises, was allowed. Vide this order another application under Order 9 Rule 13 CPC filed by the respondent Babu Ram was also set for evidence on the point of service of this respondent. The petitioner challenged only that part of the order dated 30.07.2011 of ARC before the ARCT, whereby tenanted premises was directed to be restituted to the objector Inder Singh

(respondent herein). The ARCT vide impugned order dismissed the appeal of the petitioner and maintained the order of restitution of the tenanted premises to objector Inder Singh. This order of ARCT is under challenge in the instant petition.

3. The undisputed facts are that tenanted premises was in the tenancy of Babu Ram and Inder Singh. Babu Ram is the father of the petitioner. Both, Babu Ram and Inder Singh were in a partnership business in the tenanted premises under the name of M/s Meghdoot Electrical. The premises had two portions, as front and back. The premises was purchased by petitioner by a sale deed of 06.05.2002 from the erstwhile owner Usha Rastogi. The petitioner filed eviction petition only against his father Babu Ram under Section 14 (1) (a), (b) and (c) of the Delhi Rent Control Act (DRC Act). The petition was decreed ex-parte on 13.11.2007 against Babu Ram under Section 14(1) (a) of the Act, wherein order under Section 15 (1) of the Act was passed directing him to deposit the rent with effect from 01.11.2003 within one month of the order. Thereafter, petitioner filed execution against his father, and in the process got possession of tenanted premises by breaking open the locks. The objector Inder Singh, who was joint tenant with Babu Ram and was not impleaded in the eviction petition along with him, got aggrieved of the eviction order as also dispossession of the tenanted premises. He filed an application under Section 25 of the Act read with Order 21 Rule 99 to

101. He also filed an application under Section 144 and 151 CPC. By these applications he sought setting aside of the eviction order and restitution of the tenanted premises. He alleged the petitioner having obtained the eviction order, without impleading him, in collusion with his

father. It was also his case that he had been paying rent regularly to land lady Usha Rustogi and the petitioner had filed the petition on the false allegation of surrender of tenancy in favour of his father vide surrender deed dated 31.05.1999. His case was that it was agreed between him and the petitioner's father Babu Ram to dissolve the partnership business and one surrender deed and another dissolution deed dated 31.05.1999 were executed. As per the surrender deed Babu Ram had agreed to transfer the possession of the back portion of the tenanted premises to him. However, they never acted upon these deeds and resultantly, he continued to be the joint tenant along with Babu Ram and also continued to pay the rent to the landlady.

4. The petitioner contested the applications stating that objector Inder Singh had surrendered the tenanted premises vide surrender deed dated 31.5.1999 on the dissolution of the partnership firm with his father and that there was no collusion with his father.

5. The learned ARC and also the ARCT have specifically noted certain facts which would, apparently, demonstrate that the possession of the tenanted premises was taken by the petitioner in deceitful manner in collusion with his father Babu Ram. Babu Ram and Inder Singh had agreed to dissolve the partnership business in the year 1999 and executed surrender deed and dissolution deed. As per the settlement, back portion of the tenanted premises, which was in the use and occupation of Babu Ram, was to come to the share of Inder Singh; whereas, the front portion thereof, which was in the use and occupation of Inder Singh, was to be the share of Babu Ram. Besides this, the dissolution deed regarding the business was also executed. Undisputedly, no effect could be given to

them as they could not be submitted to the authorities and the landlady. Resultantly, both, Babu Ram and Inder Singh continued to be in occupation of their respective portions of the premises. Inder Singh continued to pay the rent to landlady till 31.03.2002 and since no one came from the side of landlady to collect the rent, thereafter, he deposited the rent under Section 27 of the Act. The petitioner had purchased the premises from the landlady in May 2002. In the sale deed, there is a mention of the tenancy of the premises with Inder Singh and Babu Ram. It is rightly observed by both the courts below that if the surrender deed dated 31.5.1999 had been given effect to, there was no reason to mention in the sale deed, executed by landlady in May 2002 in favour of the petitioner, about the premises to be in the tenancy of Babu Ram and Inder Singh. The fact that Babu Ram filed a suit being Suit No. 611/2007 against Inder Singh for injunction and rendition of account in respect of the firm itself would uproot the case of the petitioner. This would show that the purported family settlement of the year 1999 comprising of surrender deed and dissolution deed were never acted upon. The filing of the eviction petition by the petitioner only against his father Babu Ram on the basis of surrender deed, and which was allowed to go ex-parte by Babu Ram, would demonstrate the deceitful manner of the petitioner in dislodging Inder Singh from the tenanted premises.

6. The learned ARC was of the view that the petitions filed by Inder Singh disputing surrender deed, dissolution deed and alleging collusion and fraud could only be determined by way of evidence. He was of the view that Prima facie dispossession of Inder Singh from the tenanted premises was actuated with malafide and fraud and accordingly he

ordered of restitution of the tenanted premises to the objector Inder Singh. The learned ARCT elaborately discussed all aspects of the matter and confirmed the view that the objector need to be restituted.

7. Another interesting aspect of the matter which is noticed is that the possession of the premises was taken by the petitioner on 23.05.2009 and he executed sale deed of the premises in favour of Ms Kiran Singh within three days on 26.05.2009. The malafide of the petitioner is seen from the fact that the stamp papers of sale deed dated 26.05.2009 were already purchased on 01.05.2009 in the name of Kiran Singh. It is also noted that Kiran Singh is none else, but the maternal aunt of the petitioner. This is another mischievous design of the petitioner in dragging the objector Inder Singh to further litigation. The petitioner already having played fraud on the Court, seems to be not stopping, but hell bent upon dislodging the rightful claim of Inder Singh in the tenanted premises.

8. The submission of learned counsel for the petitioner that the restitution of the tenanted premises could not be allowed till the objections filed by the objector Inder Singh were decided by the executing Court, is noted only for rejection. The law on the point of restitution is well settled and is reiterated by the Supreme Court in the case of Mrs. Kavita Trehan and another vs. Balsara Hygiene Products Ltd., AIR 1995 SC 441 which is as under:

"The law of Restitution encompasses all claims founded upon the principle of unjust enrichment. Restitutionary claims are to be found in equity as well as at law. Section 144 CPC incorporates only a part of the general law of restitution. It is not exhaustive. The jurisdiction to make restitution is inherent in

every Court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within he ambit of Section

144. Section 144 opens within the words "where and in so far as a decree or an order is varied or reversed in any appeal revision or other proceeding or is set aside or modified in any suit instituted for the purpose....". A case may not strictly fall within the terms of S. 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every Court."

9. In view of my above discussion I do not see any infirmity or illegality in the impugned order. The petition is, therefore, dismissed.

M.L. MEHTA, J.

AUGUST 22, 2012 awanish