Delhi High Court
Allahrakha & Anr. vs Allahwala & Anr. on 2 July, 2014
Author: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02.07.2014
+ RC. REV. 283/2010 & CM No. 8007/2011 (stay)
ALLAHRAKHA & ANR. ..... Petitioners
Through: Mr. V.B. Andley, Senior Advocate
with Mr. Rajiv Duggal and Mr. Aly Mirza,
Advocates.
Versus
ALLAHWALA & ANR. ..... Respondents
Through: Mr. Vinod Malhotra & Mr. Nikhil
Malhotra, Advocates.
+ RC. REV. 297/2010 & CM No. 8009/2011 (stay)
ASIF & NAIM ..... Petitioner
Through: Mr. V.B. Andley, Senior Advocate
with Mr. Rajiv Duggal and Mr. Aly Mirza,
Advocates.
Versus
ALLAHWALA & ANR. ..... Respondents
Through: Mr. Vinod Malhotra & Mr. Nikhil
Malhotra, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI
1. This petition impugns an order of 07.09.2010 which allowed the
respondents‟ application under Section 14(1)(e) of the Delhi Rent
Control Act, 1958 (for short „the Act‟) and ordered the eviction of the
petitioner from premises No. 4234, Gali Qutubuddin, Gali Shahtara,
Ajmeri Gate, Delhi.
2. It has been the case of the landlord that for a family consisting of
13 members there were merely three rooms, one kitchen, two toilets and
an open courtyard available which was woefully insufficient for their
requirement. Hence, they require the suit premises for their residential
use. It was also contended that the two sons of landlord No. 1 who were
of marriageable age i.e. 24 to 26 years, were constrained from planning
their marriage due to insufficient accommodation. Similar was the case
of the two sons of the second landlord who too were of marriageable age
being around 27 to 32 years, but, again were constrained from entering
into marriage due to acute lack of space. It is further stated that they were
the owners of the premises, having purchased it vide registered sale deed
of 03.03.2003, and it was their sole residential accommodation property.
Hence, on the ground of bonafide need the eviction petition was allowed.
3. In the leave to defend application, tenant had contended primarily,
that landlord‟s ground of bonafide need lacked merit; they had sufficient
alternate residential accommodation as the landlord owned two other
properties i.e. property bearing No. 4426-27, Phatak Risaldar, Gali
Shahtara, Ajmeri Gate, Delhi, being on an area of more than 100 square
yards and another property bearing No. 4217, Gali Faizul Hasan, Gali
Shahtara, Ajmeri Gate, Delhi on an area of more than 200 square yards.
Therefore, the petition was filed mala fidely and only to harass the
tenants. However, apart from the bald averments of ownership of these
two properties, no documents were adduced by the tenant to show that
the above said properties were owned by the landlord.
4. In the reply to the leave to defend application, the landlords denied
ownership of the aforesaid two properties. Therefore, the argument of
additional accommodation being available with them became untenable.
The other argument which was raised by the tenant and could be treated
as a triable issue is that the landlords are not the owners of the suit
premises since the sale deed is a document based upon fraud. Learned
Senior Counsel for the tenants, Mr. V.B. Andley, contends that the
landlord claims ownership of the premises on the basis of a registered
sale deed of 03.03.2003, however, (i) this document would not pass any
right, title or interest in the suit premises because the alleged seller
herself had no such right, title or interest to be transferred to anyone; (ii)
that fraud is writ large upon the face of the document itself insofar as it
seeks to confer and thereafter transfer title upon the seller Smt. Anno
"by virtue of a decree passed by Hon‟ble Court of Sh. J.P. Sharma,
Administrative Sub Judge, First Class, Delhi on 07.01.2003 against the
case No. 429."
5. The learned Senior Counsel further contends that upon persistent
investigation it came to the tenants‟ knowledge that no such decree was
ever passed by a Judge of that name in a said case with that title and
number. That according to the information received, there was indeed no
such Presiding Officer working as Administrative Civil Judge, First
Class, Delhi in 2003. That RTI sourced information has revealed that
Shri Ravinder Dudeja was the Administrative Civil Judge in 2003,
whereas Mr. J.P. Sharma occupied that position from 1983 to 1986. The
learned counsel submits that, therefore, the said recital in the sale deed
was either a fraud played by the seller upon the present respondent or it
was collusion between them so as to have the fraudulent sale deed
registered purporting to transfer the right, title and interest in the suit
property. Counsel further contends that the properties bearing No. 4234-
35, Gali Qutubuddin, Gali Shahtara, Ajmeri Gate, Delhi were purchased
by one Chhottey and his brother Bulla, sons of Babban in 1926. The
property was partitioned in 1936 with Chhotey getting 4234, Gali
Sahtara, Bazar Ajmeri Gate, Delhi which was confirmed in Civil Suit
No. 60 of 1957 by the Court of Shri Joginder Nath, Sub Judge, 1 st Class
in Re: "Chhottey (Mst. Hiro) vs. Mst. Piro". He contended that vide sale
deed of 30.06.1960 Chhottey had sold his property in favour of Perma
Nand @ Perma Chand and Itwari Lal son of Panna Lal. The latter served
a legal notice dated 16.04.2008 upon Smt. Anno claiming ownership
rights, to which there has been no reply.
6. In reply the learned counsel for the landlord contends that no
triable issues were raised by the tenant and all the issues now being
sought to be canvassed are only to obfuscate the issue solely to delay the
proceedings so as to deny the use of the suit premises which are urgently
required by the already large and otherwise expanding family of the
landlords. Counsel states that the landlords had purchased the property
vide the aforesaid registered sale deed of 03.03.2003 with the tenants in
situ. A legal notice was issued to the tenants on 19.05.2003 intimating
them of the purchase of the said property and demanding rent from them.
Reply was given by the tenants stating that Smt. Anno was their landlady
and they were paying rent to her regularly. The tenants also issued a legal
notice to Smt. Anno asking her whether she had sold the said property to
the present respondents claiming to be the landlords. Smt. Anno
confirmed the sale whereby the respondents became the present owners
and landlords and that they were entitled to recover the rent from the
tenants in their own right. In the subsequent three proceedings decided
by Sh. Anil Kumar Sisodia, ARC, Delhi on 27.10.2007, the tenants
admitted the relationship of landlord and tenant with the present
landlords and started paying rent to them.
7. The learned counsel further submits that thereafter, with the
growing up of the children of the landlords a bona fide need was felt for
additional space to accommodate the immediate family members who
were of marriageable age etc., the eviction petition was filed which
resulted in the eviction orders impugned in the present petition. Learned
counsel for the landlords submits that the tenants‟ argument that the sale
deed is a forged document is misleading and untenable since recital in
the sale deed apropos court proceedings when discovered to be wrong
and it was specifically rectified without much ado vide a rectification
deed registered on 03.11.2012 to read inter alia:
"By virtue of Sale Deed, duly registered in the office
of the Sub-Registrar, Delhi, document regd. As No.
1330, in Addl. Book No. I, Volume No. 1432, on
pages 207 to 211, red. On 02.06.1926 and an order /
Decree dated 16.11.1973, passed by Sh. B.B. Gupta,
the then Senior Civil Judge, Delhi in RCA No. 34 of
1972 and a subsequent Order/ Decree dated
09.08.1976 and 03.02.1976, passed by the Court of
Sh.A.K. Garg, the then Sub-Judge, Delhi, in case No.
60 of 1957 (Old) and 01 of 1976 (New), titles a Mst.
Heero & Ors. Versus Mst. Peero. The execution
proceeding in the case dismissed the default on
13.12.2002. (This Rectification deed and previous
rectification deed shall form part of aforesaid Sale
Deed dated 5.3.2003)."
This Court notices that the impugned order considered the fact that
the legal notice of 16.04.2008, referred to by the tenant, did not match
with the particulars of the tenanted property; that the tenant had admitted
Smt. Anno to be the their landlady and owner of the property in question
from whom the current landlords had purchased the property; this sale
were confirmed by Smt. Anno‟s letter dated 10.07.2003; that sale deed
on record purporting Shri Perma Nand to be the owner thereof does not
derive title from Smt. Anno in respect of the suit premises, of which,
according to tenants themselves - Smt. Anno was the owner; therefore,
the said document/sale deed apropos Shri Perma Nand could not be
relied upon; and finally, that the tenants had already admitted to the
landlord and tenant relationship of the eviction-petitioner by virtue of
orders passed in D.R. petition No. 1010/2006 titled "Sh.Ajmeri vs.
Allahwala & Anrs." And D.R. No. 1012/2006 titled as "Allahrakha Vs.
Allahwala & Anrs." The Trial Court, relying on the decision in the case
of Ramesh Chand vs. Uganti Devi. 157 (2009) DLT 450, held that the
only thing required to be seen by the Court is that the landlord has been
receiving rent for his own benefit and not for and on behalf of someone
else. If the landlord is receiving rent for himself then he is to be
considered as the owner howsoever imperfect his title over the premises
may be; that the imperfectness of the title to the premises cannot stand in
the way of an eviction petition under Section 14(1) (e) of the DRC Act;
neither is the tenant allowed to raise the plea of imperfect title nor raise a
plea that the title is not vested in the landlord, and that too when the
tenant has been paying the rent to the landlord. Furthermore, Section 116
of the Indian Evidence Act creates an estoppel against such a plea by a
tenant. A tenant can challenge the title of landlord only after vacating the
premises and not when he is occupying the tenanted premises. In fact,
such a tenant who denies the title of the landlord to whom he has been
paying rent qua the premises, acts dishonestly.
8. The Trial Court further relied upon the case of Rajender Kumar
Sharma & Ors. vs. Leela Wati & Os. 155 (2008) DLT 383 which says
that "leave to defend not be (sic) granted to tenant on basis of false
affidavit and false averment and assertions and only those averments in
affidavit are to be considered by Rent Controller which have some
substance in it and are supported by some material."
9. In the present petition, the need or bona fide has not been argued.
The case has been argued primarily on the point of landlord not having
the locus to file the eviction petition i.e. non-ownership for the premises
by the eviction-petitioner. The learned counsel for the tenants states that
this was a triable issue and leave to defend ought to have been granted
and that the Trial Court ought to have recorded a finding as to the
ownership of the premises by the eviction petitioner. He relies upon Devi
Das v. Mohan Lal, AIR 1982 SC 1213 to contend that where allegations
have been made that there was in reality no sale and at best the said sale
was a paper transaction. He argues that the Trial Court ought to return a
finding on this point i.e. whether it was a bona fide transaction upon the
evidence on record. However, from a perusal of the afore cited judgment,
it appears that it was not passed under any special statute, such as a Rent
Control Act, as in the present case, where scheme of the Act provides for
summary proceedings for eviction of tenants. Therefore, the precedent is
not relevant and the ratio would not be applicable to the facts of this case.
10. In the revisionary jurisdiction, which has been invoked under
Section 115 of the CPC, this Court has to see whether the impugned
order falls foul to any of the three ingredients of Section 115 of the CPC.
It is not for this Court to re-appreciate the entire facts. Section 115 of the
CPC reads as under:
"(1) The High Court may call for the record of any
case which has been decided by any court subordinate to
such High Court and in which no appeal lies thereto, and
if such subordinate court appears
(a) To have exercised a jurisdiction not vested in it by law,
or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction
illegality or with material irregularity.
The High Court may make such order in the case as it
thinks fit:
[Provided that the High Court shall not, under this section,
vary or reverse any order made, or any order deciding an
issue, in the course of a suit or other proceeding, except
where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the
suit or other proceeding.]
(2) The High Court shall not, under this section, vary or
reverse any decree or order against which an appeal lies
either to the High Court or to any court subordinate
thereto.
(3) A revision shall not operate as a stay of suit or other
proceeding before the Court except where such suit or
other proceeding is stayed by the High Court."
11. All that the Trial Court was required to see was whether there was
a landlord-tenant relationship between the parties, which it did find. On
the basis of the discussion hereinabove it stands proven that the
landlords‟ need was indeed bonafide and that no alternate
accommodation was available to them. It is also a matter of record that
the petitioners/tenants had already accepted the respondents as landlords
in DR Petition Nos. 1010 and 1012 of 2006. The parameters for grant of
an order for eviction under section 14(1)(e) of the DRC Act were clearly
met. Therefore, the eviction order was rightly passed.
12. For the reasons mentioned hereinabove, this Court finds that there
is no infirmity in the order impugned in the petition and there is no
reason for any interference with it. The petition is dismissed as being
without merit.
NAJMI WAZIRI
(JUDGE)
JULY 02, 2014
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