Prem Raj Chaudhary vs R.C.Ohri
2012 Latest Caselaw 1437 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of Judgment: 01.3.2012

+     CM(M) No. 109/2002 and CM No. 1090/2003

      PREM RAJ CHAUDHRY                          ..... Petitioner
                   Through              Ms. Sushma, Advocate.

                     versus

      R.C.OHRI                                  ..... Respondent
                              Through   Mr. Som Dutt Sharma, Advocate.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. The order impugned before this Court is the order dated

26.09.2001 passed by the Rent Control Tribunal (RCT) which has

endorsed the finding of the Additional Rent Controller (ARC) dated

28.04.1998 by virtue of which the objections filed by the objectors

under Section 25 of the Delhi Rent Control Act (DRCA) were accepted

and the ARC held that the said objectors were not bound by the decree

obtained by Prem Raj Chaudhary against them. This finding was

endorsed by the RCT in his impugned judgment.

2. Record shows that the landlord Prem Raj Chaudhary had filed an

eviction petition against two of his tenants namely R.C. Ohri and Anil

Ohri (legal representatives of deceased Dr. Vimla Devi) under Section

14 (1)(e) read with Section 25-B of the DRCA; premises are property

bearing No. 172-D, Second Floor, front portion, Kamla Nagar, Subzi

Mandi, Delhi; address of the two respondents in the eviction petition

was described as C-177, West Patel Nagar, New Delhi; the alternate

address of Shop No. 3/1, West Patel Nagar, New Delhi. Record further

shows that this eviction petition was filed on 06.05.1987. Notices were

issued to the respondents returnable for 27.07.1987; summons were sent

only at the shop address at 3/1, West Patel Nagar, New Delhi and not at

the address at C-177, West Patel Nagar. Record further shows that

earlier also, the landlord filed two eviction petitions against Vimla Devi;

Vimla Devi could not be served by ordinary process; she has been

served by publication in 'The Statesman' on 24.02.1986; in the course

of these proceedings, the Court was informed about the death of Vimla

Devi on 01.10.1984 (her death certificate was filed); it was brought to

the notice of the Court that in fact Vimla Devi had died prior to the

filing of the said eviction petitions which had accordingly been

permitted to be withdrawn.

3. This present eviction petition has been filed against the legal

representatives of deceased Vimla Devi namely R.C.Ohri and Vipin

Ohri. This petition had been decreed in favour of the landlord on

27.7.1987. In the course of the execution proceedings objections were

filed by the present objector namely Kailash Ahuja and Vinod Ahuja

under Section 25 of the DRCA; their contention was that Satpal Ahuja

was the tenant in the disputed premises since 1954 and after his death in

1976, they had inherited the tenancy and they were in occupation of the

suit premises; he had taken these premises on rent from Gokal Chand

who was the earlier tenant. After the death of Satpal Ahuja, his wife and

son Smt. Kailash Ahuja and Vinod Ahuja inherited the tenancy rights;

Vimla Devi never resided in the premises in question; she was a resident

of the ground floor from where she was running a clinic about 35 years

ago; she had left these premises in 1955. The objectors were living in

these premises in their own rights independent of Vimla Devi; the

decree holder had falsely stated that R.C. Ohri and Anil Ohri are the

tenants in the suit property; they were not bound by the decree dated

27.7.1987; they had an independent title.

4. Reply filed to these objections has also been noted; contentions

were denied. It has made bald denials; vehement submission urged

before this Court that Gokal Chand was never the tenant of the landlord

and in fact the premises had not been constructed up to the year 1954

and as such the question of Gokal Chand being a tenant of these

premises does not arise, admittedly did not find mention in the reply

filed to these objections; in fact even in the entire evidence led by the

decree holder which comprised of two witnesses no such plea was

made; all along the defence of the decree holder (in his reply to the

objections) was that Vimla Devi was the tenant and he had a rent deed

executed between Vimla Devi and his father; rent receipts had also been

issued; in his cross-examination the decree holder (DHW-1) had

admitted that he had no documentary evidence to substantiate this

submission; neither the rent deed and nor the rent receipts could be

located.

5. On behalf of the objectors, 13 witnesses were examined; the

officials from the MCD, Food and Supply Department and MTNL were

examined as OW-1 to OW-3. The Manager of UCO Bank had proved

the account opening form of Kailash Ahuja evidencing her address as

172/D, Kamla Nagar, as Ex.OW-6/1; OW-7 the Head Clerk from the

CGHSS School, Roop Nagar, had proved the admission of Nirmal

Kumari D/o Satpal Ahuja in the school in the year 1958 showing the

address of the child even at that time as that of the disputed premises.

The address of Kiran Ahuja at the disputed premises in July, 1975 had

been proved through the version of OW-8; OW-9 related to the

admission of Vinod Ahuja in July, 1963 which had also evidenced the

address of the disputed premises. Admission of Nirmal Kumari D/o

Satpal Ahuja to the school in May, 1955 was proved through OW-13

again evidencing the same address as that of the disputed premises even

in the year 1955. The objector Kailash Ahuja examined herself as OW-

4; OW-5 was Vinod Kumar Ahuja, the second objector; their testimony

was to the effect that the premises had been taken on rent by Gokul

Chand from Prem Lal Ahuja in 1950; Dr. Vimla Devi was a tenant in

the ground floor; she had remained there for about 1-2 years after which

the objectors had come into the possession of the premises; the ration

card, electricity bills, gas connection, telephone bills and photocopy of

the registration application had been proved as Ex.OW-5/1 to Ex. OW-

5/8 evidencing the fact that the premises were in occupation of the

objectors right from 1955. OW-10 & OW-11 were the tenants in the

adjoining property; they had deposed that the property was never under

the tenancy of Vimla Devi; the objectors were the tenants in the said

premises and prior to them, it was their father Satpal Ahuja; OW-11 was

in fact living in the property as a tenant since 1957. There was no

ulterior purpose as to why these witnesses would depose falsely.

6. Per contra, the decree holder DHW-1 had deposed that the

premises had been let out to Vimla Devi on 01.04.1954 and the ground

floor had been surrendered but the second floor continued to be retained

by her. In his cross-examination, DHW-1 had admitted that a rent deed

had in fact been executed between the landlord and Vimla Devi copy of

which is not available; he also could not produce any rent receipt to

substantiate the submission that Vimla Devi was the tenant in the suit

premises; he admitted that the premises were in occupation of the

objectors 1981 but he could not say since when prior thereto they were

residing. DW-2 was an official from the MCD. He had been examined

as DHW-2; in his cross-examination he had admitted that reports

Ex.DHW2/01 and Ex.DHW2/02 show that on 09.12.1953 the suit

property had a second floor and a barsati in existence. This is also

evident from a perusal of this documentary evidence. Thus the

submission of the petitioner/decree holder that the premises in fact had

not been constructed up to November 1953 when he has filed his

application seeking construction of the barsati floor is an argument

bereft of any merit. Ex.OW-5/16 and Ex.OW-5/17 are the Form-C

reports regarding the revision of assessment by the Municipal

Corporation of Delhi showing that Satpal Ahuja has been shown as a

tenant in the suit premises; both these documents show that inspection

had been conducted in the suit premises in September, 1960 where a

second floor and a barsati were in existence.

7. Thus on all counts the submission of the decree holder must fail;

the documentary evidence has clearly evidenced the presence of Satpal

Ahuja in this premises from the year 1955 onwards; the submission of

the decree holder that Vimla Devi was the tenant in the aforenoted

premises has nowhere been established.

8. Fact findings were returned by the ARC on the basis of this oral

and documentary evidence. The Court was of the view that various

documents placed on record by the objectors substantiating their

possession in the suit premises right from the year 1955 had been

established; these document had remained unchallenged; fact finding

was returned that the objectors were occupying the second floor in their

capacity as independent tenants under the decree holder since May

1955; there was no explanation as to why in the earlier two eviction

petitions filed by the decree holder against Vimla Devi, he had not

impleaded the present objectors even though he knew as a fact that the

objectors were in possession of the suit premises; this discloses the

ulterior and malafide motives of the decree holder.

9. The objections under Section 25 of the DRCA filed by the

objectors were rightly sustained; it was held that the decree holder is not

entitled to possession of the suit premises as objectors were not bound

by this decree; proviso of Section 25 of the DRCA having been adverted

to; objectors having proved that they had an independent title in the suit

premises. This fact finding was endorsed by the RCT. The RCT while

dealing with an appeal under Section 38 of the DRCA has to restrict

itself on substantial question of law; nevertheless the whole gamut of the

oral and documentary evidence was re-examined by the him and

detailed fact findings were returned in favour of the objectors

evidencing their prima facie independent title in the suit premises. The

proviso to Section 25 of the DRCA was attracted and it was rightly

noted that the decree dated 27.7.1987 was not binding upon the

objectors.

10. This Court is sitting in its power of superintendence under Article

227 of the Constitution of India; unless and until there is a patent

illegality or a manifest error which is crept in the order of the two fact

finding courts below interference by the High Court is not called for.

There is no such patent illegality which has been pointed out to this

Court. The RCT has re-appreciated the record which included the oral

and documentary evidence in the correct perspective and had reaffirmed

the finding of the ARC. There is thus no infirmity in the impugned

order holding that the objectors were not bound by the decree dated

27.7.1987. Petition is wholly without any merit. Dismissed.

11. Trial court record be returned.

INDERMEET KAUR, J MARCH 01, 2012 a/nandan