Naresh Chadha & Ors vs Dharamveer Singh & Ors.
2014 Latest Caselaw 1115 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 91/2004

%                                                   3rd March, 2014
NARESH CHADHA & ORS                                       ......Appellants
                 Through:                Mr. Amitabh Narayan, Adv.


                          VERSUS

DHARAMVEER SINGH & ORS.                                    ...... Respondents

                Through:                 Mr. J.C.Mahindro, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This regular second appeal is filed by the plaintiff against the

judgment of the first appellate court dated 30.1.2004 which has allowed the

appeal filed by the defendants against the judgment of the trial court dated

18.2.2003. The trial court by its judgment dated 18.2.2003 had decreed the

suit for possession filed by late Smt. Ram Dulari and who is now

represented by the appellant herein.

2. The ground on which the first appellate court allowed the appeal of

the defendants was that the original tenant Sh. Diwan Singh at the time of

his death was a contractual tenant since his contractual tenancy was not

terminated during his life time by sending him a notice under Section 106 of

the Transfer of Property Act, 1882, the contractual tenancy rights stood

inherited by all the legal heirs of deceased Sh. Diwan Singh as per the Hindu

Succession Act, 1956 and therefore since the legal heirs were tenants under

the Delhi Rent Control Act, 1958, the suit for possession will not lie in the

civil court in view of Section 50 of the Delhi Rent Control Act.

3. The relevant observations of the first appellate court in this regard are

contained in the following words of the first appellate court :

I have considered the rival contentions and have carefully gone through the record of this case. PW6 Naresh Kr. Chadha is the main witness of the plaintiffs who has appeared before the Ld. Trial Court. In his examination in chief recorded on 15.12.97 he had stated that during the life time of Sh. Diwan singh, his tenancy was terminated. He sought to place on record a photocopy of the notice vide which the tenancy was alleged to have been terminated ( Mark-C). The exhibition of this notice was objected to by the other party. Apart from this, there is no evidence on record on behalf of the plaintiffs that a notice of termination of tenancy was duly served upon Diwan Singh. Mark-C, the alleged notice is reported to have been sent by Sh. Prem Sagar Gupta, adv. in the month of February 1973 under instructions from Smt. Ram Dulari. The plaintiffs have neither examined Ram Dulari not have examined Sh. Prem Sagar Gupta, the Adv. who had sent this notice. The plaintiffs have also not placed on record any postal receipt of AD card vide which the said notice had been served upon Diwan Singh. Therefore, there is no evidence on record to prove that a notice of termination of tenancy was actually sent and served upon Diwan Singh, the actual tenant. As already stated there is no other evidence on record to prove that tenancy of Diwan Singh was terminated during his life time. The defendants on their part had denied that a notice of termination of tenancy had

been served upon Diwan Singh during his life time. I, therefore, hold that Ld. Lower court had fallen in error in holding that the tenancy of Diwan Singh had been terminated during his life time. Since it has not been proved on record that the tenancy of Diwan Singh had been terminated during his life time, it must be hald that he had died as a contractual tenant rather than a statutory tenant. There is no dispute with regard to the facts that Diwan Singh had died issueless and his wife had pre-deceased him. There is overwhelming evidence on record that Khacheru Mal, the brother of Diwan Singh had come to stay with him in the suit property during his life time along with his family. On the death of Diwan Siingh, as a contractual tenant, the tenancy was inherited by his brother Khacheru Mal (See Ganesh Trivedi vs. Sundar Devi & others (2002) 2 SCC 329). On the death of Khacheru Mal, the tenancy was inherited by his family members including the present appellant. It has, therefore, to be held that there was a relationship of landlord and tenant between the parties. The rent of the suit premises was admittedly less than Rs.3500/- P.M. The tenancy was, therefore, protected under the provisions of Delhi Rent Control Act. The Civil Court had no jurisdiction to entertain and try the present suit U/s. 50 of Delhi Rent Control Act. I, therefore, reverse the findings of the ld. Trial Court on issue No.2 and also hold that the plaintiff is not entitled to a decree of possession, as prayed for. The judgment dated 18.2.2003 passed by the Ld. Civil Judge, is hereby set aside. Lower court record be sent back. File be consigned to record room." (underlining added)

4. It is trite that under the Delhi Rent Control Act, a tenant as is defined

under Section 2(l) of the Delhi Rent Control Act, 1958, is a person who

inherits the rights of a statutory tenant qua residential premises. So far as

commercial premises are concerned it is now settled law in Delhi by virtue

of judgment of Gian Devi Anand vs. Jeevan Kumar and Ors., 1995 (2)

SCC 683 that rights of a commercial tenant are inherited by all the legal

heirs under the Hindu Succession Act and not by the limited legal heirs as

specified under Section 2(l) of the Delhi Rent Control Act with respect to

residential premises. The effect of Section 2(l) is that where the contractual

tenancy as regards residential premises of a tenant is terminated in his life

time, the tenancy rights are not inherited by all the legal heirs specified

under the Hindu Succession Act but only by such family members who are

specified in Section 2(l). Also such persons specified under Section 2(l)

must be those who were residing with the deceased tenant at the time of his

death and who must be financially dependent upon him. In case the persons

are financially independent, such persons have right only for staying upto

one year in the premises after the death of the original tenant whose

contractual tenancy was terminated in his life time. In case, contractual

tenancy of tenant of residential premises is not terminated during the life

time of a tenant, in such circumstances, the rights are not inherited by

limited persons specified in Section 2(l) and tenancy rights would be

inherited by all the legal heirs under the Hindu Succession Act i.e for limited

inheritance under Section 2(l) it is necessary in the life time of tenant

contractual tenancy must be terminated by serving of a notice under Section

106 of the Transfer of Property Act, 1882. In effect the rights of inheritance

of a commercial tenancy and a residential tenancy where the contractual

tenancy rights are not terminated in the life time of the tenant, are the same.

5. In the present case as the aforesaid observations of the first appellate

court will show, the appellants failed to lead any evidence whatsoever of

service of the legal notice terminating the contractual tenancy of late Diwan

Singh in his life time. No proof was filed of service of the alleged notice of

February 1973, terminating the tenancy. Also, the Advocate who issued

notice was not examined, though I doubt that even the examination of

Advocate (or Ram Dulari for that matter) would have made any difference to

the factum of actual service of the notice terminating tenancy, once service

of notice is denied by the defendants and not proved to be served.

6. In view of the above I do not think that there is any illegality

whatsoever in the judgment of the first appellate court inasmuch as once the

contractual tenancy of residential premises is not terminated during the life

time of the tenant, all persons who are legal heirs under the Hindu

Succession Act will inherit the tenancy rights of the residential premises.

7. At this stage I must note that before 1979 as regards proceedings for

eviction of tenants under State Rent Control Acts (i.e not in suits filed in

civil courts) there were conflicting judgments of the Supreme Court as to

whether a tenant's contractual tenancy ought to be terminated before

eviction petition is filed under the respective Rent Control Acts of the

different States. Whereas one set of judgments required that the contractual

tenancy must be terminated before filing of an eviction petition on the

grounds of eviction as specified in the Rent Control Acts, other set of

judgments had held that no notice terminating contractual tenancy was

required. The matter was then referred to a Seven Judges Constitution

Bench of the Supreme Court in the case V. Dhanapal Chettiar Vs. Yesodai

Anmal (1979) 4 SCC 214. In V.Dhanapal's case (supra), the Constitution

Bench of Seven Judges held that for filing of a petition for eviction of a

tenant under the State Rent Control Acts, no notice terminating the tenancy

is required to be served upon the tenant terminating his contractual tenancy

as a pre-condition for filing of eviction proceedings under the State Rent

Control Acts. This judgment which is relied upon on behalf of the appellant

to contend that no notice is required for filing of a suit for possession against

a tenant and the contractual tenancy terminates on filing of the suit is

misconceived because in the present case the suit is filed in the civil courts

and proceedings are not for eviction of a tenant under the Delhi Rent Control

Act. As suit for possession is filed in a civil court where the defendant is not

a tenant under the Delhi Rent Control Act falling within Section 2(l). In the

present case, the tenant had already expired when the suit for possession was

filed and during his life time his contractual tenancy was never terminated.

The pre condition for the coming into existence of limited succession of

tenancy rights of residential premises under Section 2(l) is that the

contractual tenancy of residential premises is terminated in the life time of

the tenant. Tenants under the Delhi Rent Control Act in spite of termination

of their contractual tenancy continue to have statutory protection against

eviction and such tenants were called as statutory tenants (as differentiated

from contractual tenants)i.e tenants having statutory protection of the

different States Rent Control Statutes. Accordingly, in such circumstances,

the Seven Judges Constitution Bench held in the V. Dhanpal's case (supra)

that for filing of an eviction petition on any of the grounds on the basis of

which eviction can be ordered of the tenant under the State Rent Control

Acts no notice is required before filing of an eviction petition on the grounds

as specified under the Rent Control Acts inasmuch as the tenancy comes to

an end only on passing of the final eviction decree/ order and not because of

terminating of the contractual tenancy. Therefore, the judgment of V.

Dhanpal's case (supra) has no application to the determination of the issue

as to limited inheritance of the tenancy rights under Section 2(l) and the

limited rights under which Section comes into effect only on the contractual

tenancy of residential premises of a tenant being terminated in his life time,

and only thereafter the limited tenancy rights are inherited in favour of the

limited persons has found in Section 2(l). Accordingly, I reject the

contention that no notice was required for filing of the suit in the civil court

in view of V. Dhanpal Chettiar's case (supra)

8. The next argument which is argued on behalf of the appellant is that

onus of issue no. 2 was upon the defendants and, therefore, it was for the

defendants/respondents to prove that the notice was not served. This

argument is also misconceived for the reason that merely because an onus is

wrongly put will not mean that the onus was on the defendants to show that

notice was not served. As per the pleadings, service of notice terminating

contractual tenancy allegedly of February 1973 was denied by the

defendants. Accordingly, onus was squarely upon the plaintiff/appellant and

in any case issue of onus pales into insignificance once evidence is led on

behalf of both the parties and as per the evidence led on behalf of both the

parties it is shown that the notice terminating tenancy of February 1973 was

never served upon late Diwan Singh. In this regard I would also reject a

related argument urged on behalf of the appellant that since the evidence of

the main witness who is the defendant in the case, namely, Dharamveer

Singh cannot be read as his evidence was closed, notice is thus proved to

have been served, is an argument again without merit because the issue is

squarely and only with respect to the service of notice of termination of

tenancy and it will make no difference that the evidence of DW-2 stood

closed.

9. The final argument which is urged on behalf of the appellant is that

the tenancy came into existence before the passing of the Delhi Rent Control

Act, and therefore, there was no requirement of serving a notice under

Section 106 of the Transfer of Property Act for limiting the tenancy rights as

per Section 2(l) of the Act. What is essentially argued is that since tenancy

was first created in 1935 and the Transfer of Property Act came into effect in

Delhi after 1962, there was hence no requirement of terminating the tenancy

of 1935 by means of a notice under the Transfer of Property Act which came

into force in 1962. Once again this argument is misconceived because the

rights which the appellants/plaintiffs claimed are as per Section 2(l) of the

Delhi Rent Control Act. Once rights are claimed as per a particular section

of a particular statute, ingredients of that provisions have to be specified.

The ingredient of that provision being Section 2(l) is that the contractual

tenancy had to be terminated in the life time of the tenant Diwan Singh.

Diwan Singh died in 1977. Transfer of Property Act, 1882 was applicable to

Delhi in 1977. Contractual tenancy therefore had to be terminated as a pre-

condition of coming into application of Section 2(l) of the Act for the

plaintiffs to succeed in their case that the tenancy rights of Diwan Singh

were not inherited by anyone inasmuch as Diwan Singh had died issueless

and his wife had pre-deceased him. Therefore, this argument urged on

behalf of the appellants is also misconceived and is accordingly rejected.

10. Counsel for the appellants argued that the first appeal filed before the

first appellate court was barred by limitation and the appellate court should

have taken notice of this fact under Section 3 of the Limitation Act to

dismiss the first appeal as barred by time. However, when a query was put

to the counsel for the appellants in this Court as to whether this argument

was urged before the first appellate court, counsel for the appellants

conceded that no such argument was raised before the first appellate court.

Accordingly, once no such argument is raised obviously the issue of

limitation even if it arose stood waived inasmuch as there would be an

acceptance by deeming condonation of delay in filing of the appeal. A right

which exists in favour of the parties can surely be waived and it is not

unknown that delay in filing of an appeal is condoned on account of

concession made by the person who is entitled to object to the delay in filing

of the appeal. This argument is also therefore rejected.

11. In view of the above no substantial question of law arises under

Section 100 CPC. The appeal is, therefore, dismissed, leaving the parties to

bear their own costs.

MARCH 03, 2014                              VALMIKI J. MEHTA, J.
ib