Manish Kumar vs Chaman Lal & Ors.
2015 Latest Caselaw 9252 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                 RC. Revision No.38/2015 & C.M. No.1117/2015

                                     Decided on : 11th December, 2015

MANISH KUMAR                                     ...... Petitioner
            Through:             Mr. Kanwal Chaudhary, Advocate.

                       Versus

CHAMAN LAL & ORS.                                 ...... Respondents
            Through:             Ms. S.R. Padhy, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a revision petition filed against the order dated 10.7.2014

passed by the learned Additional Rent Controller in Eviction Petition

No.44/12 titled Chaman Lal vs. Manish Kumar & Ors. whereby the leave

to defend of the petitioner herein has been rejected and an order of

eviction is passed.

2. Briefly stated the facts leading to filing of the present petition are

that the respondent/landlord (Chaman Lal) filed an eviction petition

against the petitioner, Manish Kumar, Ashish Kumar, Pankaj Kumar and

one married daughter of late Hanuman Prasad alleging therein that the

respondents are the tenants in respect of shop No.742, Khasra

No.264/84/1, Jheel Khurenja, Delhi, more particularly shown in red in the

site plan. It was stated that originally Hanuman Prasad, father of the

petitioner, Manish Kumar and respondent Nos.2 to 4 were the tenants;

however, on account of death of Hanuman Prasad, all the legal heirs, who

are four in number, that is, the petitioner in the present petition and

respondent Nos.2 to 4 inherited the tenancy.

3. It has been stated that the premises are required by respondent

No.1/landlord for his bona fide use for commercial purpose. It is alleged

by him that respondent No.1/landlord (Chaman Lal) is handicapped

person having 51 per cent disability and the property in question

originally belonged to Risalo Devi, mother of respondent No.1; however,

after her death, the respondent/landlord inherited the premises. It has

been alleged that Hanuman Prasad, the predecessor-in-interest of the

petitioner and respondent Nos.2 to 4 had incurred expenses on the

construction of the shop which was to the extent of Rs.3,500/- being 50

per cent of the construction cost which was to be adjusted for the period

14.5.1986 to 30.6.1991 @ Rs.80/- per month; however, from 1.7.1991,

the tenant Hanuman Prasad was liable to pay the rent at the said rate. It

has been alleged that after the death of Hanuman Prasad, Manish Kumar

is using the shop for running a cattle feed godown in the premises in

question while as Ashish and Pankaj Kumar, respondent Nos.2 and 3

respectively, were running big computer and electric shops in their house

at Krishna Nagar while as respondent No.4 is the married daughter.

4. The respondent No.1/landlord claimed that he requires the shop for

his own benefit as he wants to improve his economic condition because

he has two sons one of whom is married and is having wife and two

children, who are staying with him in the same property along with

married daughters to be looked after. The respondent/landlord has also

stated that he has in his possession two rooms and a kitchen apart from

one bathroom and toilet on the first floor of the tenanted premises. The

respondent No.1/landlord, in support of his case, has also filed documents

to show his ownership.

5. The present petitioner filed his leave to defend application and

contested the eviction petition being the legal heir of Hanuman Prasad. It

was stated by the present petitioner, Manish Kumar, that he has never

attorned Chaman Lal as his landlord nor has he paid any rent at any point

of time to Chaman Lal. He also disputed the transfer of ownership of the

suit property in favour of Chaman Lal. So far as the bona fide

requirement of respondent No.1 is concerned, that was also contested.

Respondent No.1 filed his reply to leave to defend and contested the

claim of the present petitioner. It was stated by him that he is claiming to

be the owner of the property on the basis of general power of attorney,

agreement to gift and Will executed by his mother Risalo Devi in his

favour.

6. I have heard the learned counsel for the petitioner as well as the

learned counsel for the respondents. It has been contented by the learned

counsel for the petitioner that the order of rejection of leave to defend

passed by the learned ARC is totally erroneous inasmuch as no

reasonable person could have arrived at such a finding with regard to the

points raised by the petitioner regarding ownership of respondent No.1,

his bona fide requirement and availability of alternate accommodation. It

has been contended that the petitioner has raised triable issues which, if

permitted to be proved, would disentitle the petitioner from claiming the

suit premises. This has been contested by the learned counsel for the

respondents.

7. I have considered this submission of the learned counsel for the

parties and have gone through the record. So far as this question of

existence of landlord and tenant relationship between the parties is

concerned, the petitioner has stated specifically in the leave to defend that

the petitioner has at no point of time attorned Chaman Lal as landlord by

payment of rent. The learned counsel for the respondents has drawn the

attention of the court to the photocopy of the counter foil of the rent

receipt purported to have been issued by Risalo Devi in favour of

Hanuman Prasad, father of the petitioner. This receipt does not take the

court anywhere to conclude that the present petitioner has at any point of

time attorned Chaman Lal as a landlord. It is not in dispute that Risalo

Devi, predecessor-in-interest of Chaman Lal had inducted Hanuman

Prasad as tenant. The case which has been setup by respondent No.1,

Chaman Lal is that Manish, Ashish, Pankaj and their married sisters are

the co-tenants in the capacity of legal heirs. They had inherited the

tenancy rights of Hanuman Prasad. But Manish Kumar, petitioner herein,

is stated to be carrying on the business alone from the tenanted premises

and at no point of time he has attorned Chaman Lal as his landlord. That

being the position, the relationship of landlord and tenant between the

parties, that is, Manish and Chaman Lal does not get established prima

facie. It is admittedly not the case of the petitioner that Hanuman Prasad

was the tenant and the death of Hanuman Prasad resulted in limited

inheritance of the tenancy rights by Manish and others. That being the

position, this question of existence of relationship of landlord and tenant

has to be established as a pre-condition for getting an eviction under

Section 14 (1) (e) of the DRC Act which can be done only after the

parties are permitted to adduce evidence as there is no evidence produced

by the respondent to prove the existence of such a relationship and this

raises a triable issue.

8. Since the relationship of landlord and tenant has not been

established, the petitioner is well within his right to challenge the

ownership of Chaman Lal. Regarding the ownership, the documents on

the basis of which ownership is claimed by him are general power of

attorney purported to have been executed by Risalo Devi when

admittedly she has died, the general power of attorney ceases to have any

relevance. The other documents are the agreement to gift which has no

value because gift is a document which becomes operational immediately

after the death of the donor and has to be compulsorily registered because

no right, title or interest in any immoveable property can be transferred

unless and until the document is registered as per Section 17 (1) (a) of the

Registration Act, 1908. Therefore, this agreement to gift is also of no

consequence. The third document is a Will which has not been probated.

Therefore, this document of Will also does not help the

respondent/landlord in any manner whatsoever.

9. In totality of these circumstances, the question of ownership which

is also one of the essential ingredients under Section 14 (1) (e) of the

DRC Act, has to be established which also raises a triable issue. Since

there is a triable issue raised by the petitioner in respect of both these

points, I feel that it is a fit case where the leave to defend ought to have

been given to the petitioner rather than being rejected summarily. There

is no point in going further in order to determine whether any triable issue

with regard to bona fide requirement is also made out or not.

10. With these observations, the impugned order dated 10.7.2014 is set

aside and leave to defend is granted to the petitioner. The petitioner shall

file his written statement within 30 days from today with an advance copy

to the respondent, who may file replication within 30 days thereafter.

Both the parties are directed to appear before the learned Additional Rent

Controller on 20th January, 2016.

11. In view of the aforesaid directions, the petition stands disposed of.

V.K. SHALI, J.

DECEMBER 11, 2015 'AA'