Richard Lee vs Girish Soni & Ors.
2014 Latest Caselaw 5221 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                        Reserved on: 09.05.2014
                                                    Date of Decision: 17.10.2014

+                             CM (M) No.1217 of 2013

RICHARD LEE                                                     ...... Petitioner
                         Through:   Mr. V.K. Srivastava, Adv.

                                       versus

GIRISH SONI & ORS.                              ..... Respondents
               Through: Mr. Sanjeev Mahajan, Adv. for R-1 & 2.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

1. This petition filed under Article 227 of the Constitution of India

impugns an order dated 22.8.2013 of the Rent Control Tribunal in Rent

Appeal No.14/13. The impugned order upheld the order of the learned

Additional Rent Controller which had rejected the petitioner‟s

application under Order I Rule 10 read with Section 151 of the Code of

Civil Procedure, 1908 (hereinafter referred to as „the Code‟) seeking

impleadment in the eviction petition filed by the respondent/landlord for

eviction of the tenants declared therein.

2. The eviction-petitioner‟s case was that Shri P.C. Soni was the

owner/landlord of shop bearing No.B-30, Khan Market, New Delhi,

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which was let out to Shri L. Queth Khong on a monthly rent of Rs.500/-.

Since there were considerable arrears of rent, eviction of the tenant was

sought under Sections 14(1)(a) and 14(1)(b) of the Delhi Rent Control

Act, 1958 (hereinafter referred to as „the Act‟). However, the tenant,

Shri L. Queth Khong claimed the partnership firm M/s. K.K. Lee to be

the tenant. The Court rejected the plea and held Shri L. Queth Khong as

the tenant and an order was passed under Section 14(1)(a) of the Act.

The tenant‟s appeal against the said dismissal was rejected by the

appellate court so was the subsequent revision petition [CM (M)] by this

Court on 18.1.2012. The landlord Shri P.C. Soni got to know that the

tenant Shri L. Queth Khong had shifted to Canada and resided there till

his demise but prior to his departure from India he had illegally sub-let

the tenanted premises to his brother, one Shri Mankhong Lee and the

applicant Shri Richard Lee, who after his death are in physical

possession; that neither the wife nor the son of the deceased tenant, Shri

L. Queth Khong, were in physical possession of the same. Accordingly

an eviction was sought under Section 14(1)(b) of the Act which

stipulates a ground for eviction where the tenant has sub-let, assigned or

otherwise parted with the possession of the whole or any part of the

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premises without obtaining the consent of the landlord in writing. The

eviction-petitioner had relied upon the judgement of the Additional Rent

Controller in eviction petition No.421/89 titled Prem C. Soni v. L.

Queth Khong decided on 24.10.1998 which held the respondent L.

Queth Khong was a tenant as opposed to M/s. K.K. Lee, the partnership

firm. The judgement clearly recorded that Mr. L. Queth Khong in his

individual capacity was the tenant and not the firm M/s. K.K. Lee. The

learned ARC had allowed the present petitioner‟s impleadment

application on the ground that the earlier petition initiated by the

landlord was filed under Section 14(1)(a) of the Act since it concerned

the non-payment of arrears of rent whereas the present case was filed on

the grounds of sub-letting of the tenanted premises. He was of the view

that the factors discussed in the judgement of Devki Nandan v. Om

Prakash & Anr. 1972 RCR 321which was referred to in the judgement

of 24.10.1998 were sufficient to hold that there was no sub-letting. The

learned ARC was further of the view that the question as to who was the

tenant in the tenanted premises or whether the applicant through M/s.

K.K. Lee was a tenant was the matter at issue, i.e., whether Shri Richard

Lee was inducted into the premises without the knowledge and consent

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of the eviction-petitioner, had yet to be determined. The Court

distinguished between the present case and the judgement titled

Balavant N. Viswamitra & Ors. v. Yadav Sadashiv Mule AIR 2004 SC

4377 relied upon by the eviction-petitioner which had held that the sub-

tenants cannot be said to be necessary parties to the suit proceedings and

are not required to be joined as defendants in the suit and that non-

joinder of such sub-tenants to the suit would not make a decree passed in

the suit nullity or inexecutable apropos a sub-tenant. The learned ARC

was of the view that the ratio of that decision has to be understood in the

background of the facts of the case as the decision was only an authority

for what it actually decides. He then relied upon Bhavnagar University

v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 and Bharat

Petroleum Corporation Ltd. & Anr. v. N.R. Vairamani & Anr. AIR

2004 SC 4778 in support of the proposition that a little difference in

facts would make a huge difference in the precedential value of a

decision and that the reliance upon precedents has to be examined to

ascertain whether they fit into the facts and circumstances of the case at

issue. The Court then relied upon the judgement in Kewal Kant vs. V.K.

Gupta ILR 1972 Delhi 357, which held it necessary to hold a sub-tenant

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as proper party because he possessed a right within the framework of the

Rent Control Act and that such matter should finally be adjudicated at

that stage instead of being determined at the stage of execution of an

order under Section 25 of the Act or other provisions of law. The

learned ARC then held that since Mr. Richard Lee was in possession of

the premises from where he was running his business he would be a

proper party and without his presence, all the questions involved in the

eviction petition could not be completely decided. However, on appeal

against the said order was allowed on the ground that the issue of

tenancy in favour of Mr. L. Queth Khong as against M/s. K.K. Lee, the

partnership firm, stood decided in the judgement dated 24.10.1998 in

Eviction Petition No.421/89. The Appellate Court was of the view that

once the tenant was declared, only his legal heirs could claim

relationship of landlord and tenant between the parties, for the purposes

of proceedings under Sections 14(1)(a), 14(1)(b) and 14(1)(j) of the Act.

The Appellate Court further held that once the plea of the partnership

firm had been rejected and had attained finality, the petitioner claiming

through the said partnership firm would have no locus and would be

clearly an outsider to the proceedings. The Trial Court relied upon

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Balavant N. Viswamitra & Ors. (supra) and held that the impleadment

application was not bona fide because it was filed only to control the

tenanted premises through illegal designs.

3. The learned counsel for the petitioner reiterates the same arguments as

were advanced on behalf of the applicant before the learned ARC. He

further submits that the eviction-petitioners themselves have admitted

that the property was in physical possession of the applicant, Richard

Lee, who was put in possession by Mr. L. Queth Khong; that the

judgement and order in eviction petition No.421/89 would not be

applicable to the present petitioner since he was not a party to the

proceedings and it had been obtained behind his back; that he is not an

outsider to the present proceedings but a person vitally interested in the

eviction proceedings and his presence is necessary for complete

adjudication of the disputes between the parties; that the eviction petition

is at an initial stage and the evidence has not even started hence the

impleadment would not make any difference to the proceedings before

the learned ARC. He relied upon the judgement of this Court in Devi

Dayal Dixit v. Rashtriya Electrical And Engineering Company 23

(1983) DLT 119 and Kewal Kant vs. V.K. Gupta (supra) which held that

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where there was a dispute on the basis of the rent deed as to who was the

original tenant the issue ought to be decided to obviate multiplicity of

proceedings especially because the respondent therein had admittedly

been in possession of the premises for quite some time. However, this

Court is of the view that the issue of tenancy could not be raised as a lis

since the matter already stood settled vide judgement dated 24.10.1998.

4. The learned counsel for the respondents, however, refutes the

contentions of the petitioner and relies upon the dicta of the Supreme

Court in Balavant N. Viswamitra & Ors. (supra), which held that a sub-

tenant cannot be a necessary party in the proceedings and hence is not

required to be joined as a defendant in the suit. He draws the attention

of this Court to the judgement passed on 24.10.1998 by the learned ARC

which recorded that: the signature of Mr. L. Queth Khong had been

denied by him but the said person had intentionally not appeared before

the Court as that would have put the Court in a better position to

compare his signatures under Section 73 of the Indian Evidence Act.

Accordingly an adverse inference was drawn against him. The signatures

were compared by the Court and it was found that they were made by

the same respondent. The Court observed that "Mr. L. Queth Khong had

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not dared to come in the witness box to deny his signatures on the lease

deed. Had the respondent got his signatures compared of the dates prior

to the institution of the case, then I would have definitely given some

weightage to the report of the hand writing expert as in that case the

possibility of the tendency on the part of the respondent to make out

different signatures was not there. I have compared the signatures of

Mr. L. Queth Khong on partnership deed produced by the respondent,

rent receipts placed on record by the petitioner and have found that there

are similarities in the same to observe that the signature on the lease

deed are that of the respondent." Upon further reasoning, the learned

ARC held that Mr. L. Queth Khong, in his individual capacity, was the

tenant and not the firm M/s. K.K. Lee.

5. The Supreme Court in Rupchand Gupta vs. Raghuvanshi (Private) Ltd.

& Anr. AIR 1964 SC 1889 held that "....it is quite clear that the law

does not required that the sub-lessee need be made party. It has been

rightly pointed out by the High Court that in all cases where the

landlord institutes a suit against the lessee for possession of the land on

the basis of a valid notice to quit served on the lessee and does not

impleaded the sub-lessee as a party to the suit, the object of the landlord

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is to eject the sub-lessee from the land in execution of the decree and

such an object is quite legitimate. The decree in such a suit would bind

the sub-lessee. This may act harshly on the sub-lessee; but this is a

position well understood by him when he took the sub-lease. The law

allow this and so the omission cannot be said to be an improper act."

6. This Court is of the view that the aforesaid determination had become

final insofar as the appeal against it and subsequently the revision

petition before this Court were dismissed. The petitioner, Richard Lee,

does not claim tenancy through the tenant Mr. L. Queth Khong but as a

beneficiary of M/s. K.K. Lee, the partnership firm. This issue is no more

res integra since the firm itself had contested the matter and lost.

Therefore, no right would come to the petitioner from the aforesaid firm

which itself had no tenancy rights. The mere possession of the tenanted

premises too would neither lend any legitimacy nor confer any rights

upon the petitioner as a person to be considered as a necessary party to

the eviction proceedings. If mere possession or being a sub-tenant were

to confer a right it would create an abnormal situation in virtually all

other cases as a third party would step in to say that he/she is in

possession of the tenanted premises and, therefore, ought to be heard.

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This would defeat the objective of the statute and prolong the eviction

proceedings. In the present case, clearly the petitioner would have no

right to any tenancy through the entity M/s. K.K. Lee since this entity

itself was declared not to be a tenant. This clearly is the second round of

litigation and is not justified.

7. From the aforesaid discussion it is quite clear that the impugned order

does not suffer from any infirmity, the conclusions arrived at are based

upon the law and the reasoning is cogent and clearly plausible in law,

there is no ground for interference with the same. The petition is

without merit and is dismissed with costs of Rs.25,000/- to be deposited

with the Delhi High Court Staff Welfare Fund within four (4) weeks

from the date of this order.

OCTOBER 17, 2014                                      NAJMI WAZIRI, J.
b'nesh

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