Delhi High Court
Mr. Krishan Gopal & Ors. vs Mr. Ram Phal Yadav & Ors. on 25 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC REV No. 324/2012
% 25th July, 2014
MR. KRISHAN GOPAL & ORS. ......Petitioners
Through: Ms. Beenashaw N. Soni, Advocate.
VERSUS
MR. RAM PHAL YADAV & ORS. ...... Respondents
Through: Mr. Gaurav Kumar Singh, Advocate
with Mr. Nagender Yadav, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
+ RC. REV. No.324/2012, C.M. Nos. 12233/2012 & 18309/2012
1. This petition under Section 25B(8) of the Delhi Rent Control
Act, 1958 (hereinafter referred to as 'the Act') is filed against the impugned
judgment of the Additional Rent Controller dated 14.2.2012 by which the
leave to defend applications filed by the petitioners/tenants have been
dismissed.
2. Originally, there were four respondents in the eviction petition.
The original tenancy was jointly of late Sh. Barkat Ram and late Sh. Sohan
Lal. Late Sh. Barkat Ram was sued as respondent no.1 in the eviction
petition. He died during the pendency of the suit and was substituted by his
legal heirs. Respondent nos.2 to 4 in the eviction petition were legal heirs of
the deceased co-tenant Sh. Sohan Lal. Smt. Ram Pyari wife of late Sh.
Sohan Lal expired during the pendency of the case and she was therefore
substituted by her legal heirs including the respondent nos.3 and 4 who were
her sons. The present petition has been filed by two legal heirs of late Sh.
Sohan Lal, namely Sh. Kishan Gopal and Sh. Ashok Kumar who were
respondent nos.3 and 4 originally in the eviction petition and who after the
death of late Smt. Ram Pyari were impleaded also as legal heirs of Sh. Ram
Pyari, wife of late Sh. Sohan Lal. The third petitioner in this Court is Sh.
Kala Ram one son of deceased Sh. Barkat Ram. In the eviction petition at
the time of passing of the impugned order on the leave to defend
applications, there were a total of 10 respondents and thus only three of
these persons have filed the present petition, meaning thereby, seven other
respondents in the eviction petition are not challenging the eviction order.
3. As per the pleadings in the court below, including the eviction
petition; applications for leave to defend; its replies and rejoinder affidavits,
respondent no.1 herein Sh. Ram Phal Yadav claimed to be the
owner/landlord of the suit property and he filed the eviction petition. It was
stated in the eviction petition that the suit property forms a part of the entire
property bearing no.8796 situated at Rani Jhansi Road, Shidi Pura, Karol
Bagh, New Delhi, Municipal Ward No.90. The tenanted premises
comprised of two shops. The respondent no.1/landlord was the son of late
Sh. Phool Singh Yadav, the original owner of the suit property. The
property no.8796 fell to the share of the respondent no.1 pursuant to a decree
for partition passed by the High Court in the suit no.367/1970 in the year
1972. In the Local Commissioner's report which was filed for bringing
about partition of the properties of the father Sh. Phool Singh Yadav, one of
the properties was the property bearing no.8796 and Sh. Barkat Ram was
shown as a tenant in the list of tenants. At the request of Sh. Barkat Ram,
Sh. Sohan Lal was added as a co-tenant in the suit property. Landlord-
respondent no.1 has four sons. Three sons are married having children and
respondent no.1 is living jointly with his sons. The third son Sh. Surender
Yadav aged about 38 years is unemployed and wants to open a hardware and
paint shop in the suit premises.
4. Leave to defend applications were filed and it was disputed that
respondent no.1 was the owner/landlord of the suit property. It was also
pleaded that the respondent no.1 is not the owner of the suit property which
is pleaded to be owned by the Government. It was further pleaded that the
site plan filed by the respondent no.1 was defective as there is no proper
description of the tenanted premises and various areas have been merged
though certain areas as shown in site plan are not in the tenancy of late Sh.
Barkat Ram and late Sh. Sohan Lal now represented by his legal heirs. It
was also pleaded that the respondent no.1/landlord has various properties
and therefore the alleged need is not a need for bonafide necessity. These
very aspects have also been argued before this Court.
5. So far as the aspect that whether the respondent no.1 is the
owner/landlord of the property, in my opinion, the same is not validly raised
as firstly this aspect has been duly proved in terms of the judgment and
decree passed by the High Court in a partition suit whereby the suit property
fell to the share of the respondent no.1 as he was the son of late Sh. Phool
Singh Yadav. Secondly, even for the sake of arguments, if the respondent
no.1 is not taken as the sole owner of the suit property, he would definitely
be a co-owner because he is the son of late Sh. Phool Singh Yadav, and, now
it is settled law that eviction petition can always be filed by one co-owner
once there is no objection of the other co-owners. In the present
proceedings, there are no objections of the other legal heirs of late Sh. Phool
Singh Yadav to the claim of the respondent no.1 as the owner/landlord of the
suit premises. Thirdly, I may also note that respondent no.1 in the eviction
petition stated categorically that after receipt of legal notice, the petitioners
had paid rent by money order from 1.5.2001 to 31.5.2004, however, in the
applications for leave to defend and the affidavits in support thereof, this
aspect is not disputed. I therefore hold that there is no illegality in the
conclusion of the Additional Rent Controller that the respondent no.1 is the
owner/landlord of the premises.
6. So far as the argument that the Government is the owner of the
suit property, and not the respondent no.1 or his father late Sh. Phool Singh
Yadav, this argument merits rejection for the simple reason that if
Government was the owner of the property, it would have claimed
possession of the entire property bearing no.8796 including the tenanted
premises which form part of property no.8796, however, nothing is filed on
record to show that the Government has ever claimed any rights in the
property no.8796 or have filed any proceedings for possession against the
respondent no.1 or any other person including the other legal heirs of late
Sh. Phool Singh Yadav claiming rights and possession to the property
no.8796. Accordingly, the argument that the Government is the owner of
the suit property is a frivolous argument and is rejected.
7. The third argument that the respondent no.1 has filed a site plan
which has mixed up tenancies of various persons and the site plan does not
correctly show the area with the legal heirs of late Sh. Barkat Ram and late
Sh. Sohan Singh because the area which was not in their tenancy has been
included in the site plan, all that is required to be stated is that the
respondent no.1 has filed a specific site plan colouring the area in the
tenancy with late Sh. Barkat Ram and late Sh. Sohan Lal who are now
represented by legal heirs and which in the opinion of this Court is sufficient
because there are no separate municipal numbers for different parts of the
property bearing no.8796. This aspect has to be taken with the fact that if
the respondent no.1 is assumedly seeking possession of portions in the
tenancies of other tenants, then, it is for such other tenants to have come and
who would have come and objected to this petition but have not. In any case,
such third person can always object after passing of the decree under Section
25 of the Act, however, merely because the tenants/petitioners state that
allegedly other portions of other tenants have been mixed in the tenanted
premises shown in the site plan filed alongwith the eviction petition cannot
give any substance to this argument for creating a triable issue.
8. The next argument which is urged by the petitioners was that
the respondent no.1 has many other properties and which are therefore
alternative suitable accommodation. The Additional Rent Controller while
rejecting this argument has rightly noted that what are the other properties
which are owned by the respondent no.1 are not stated in the leave to defend
applications and therefore such a vague plea cannot be considered.
9. Learned counsel for the petitioners has sought to draw the
attention of this Court to the judgment and decree passed by the High Court
which showed other properties falling to the share of the respondent no.1,
however, the argument is without merit because the judgment and decree is
way back of the year 1972 and the eviction petition was filed in the year
2009 i.e after about 37 years after passing of the decree and it was therefore
necessary that the petitioners in the leave to defend applications should have
specifically averred as to the other property forming part of judgment and
decree of the High Court as continuing to be available to the respondent
no.1, and only if that was done, the respondent no.1 would have got
sufficient opportunity to explain/contest this position but since such a plea
was not taken in the applications for leave to defend, now a surprise cannot
be sprung on to the respondent no.1 for treating the position in the year 1972
as the position prevailing as many as 37 years later in the year 2009. Also,
after the passing of the judgment by the Supreme Court in the case of
Prithipal Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15 no
ground which is not taken within the inflexible statutory period of 15 days
for filing of the leave to defend application, can be subsequently urged for
granting leave to defend.
10. In view of the above, there is no merit in the petition, and the
same is therefore dismissed, leaving the parties to bear their own costs.
JULY 25, 2014 VALMIKI J. MEHTA, J.
Ne
