Associated Traders And Engineers ... vs Girish Kumar Joshi & Ors
2016 Latest Caselaw 901 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment reserved on : 03.02.2016
                     Judgment delivered on :05.02.2016

+        CM(M) 621/2012
         ASSOCIATED TRADERS AND ENGINEERS P LTD
                                                    ..... Petitioner
                        Through Mr.Anil Sapra, Sr. Adv. with Mr.
                                Sunil Magon, Ms.Ashna Abrol
                                and Ms.Deepika Shrivastava,
                                Advocates.

                          versus

         GIRISH KUMAR JOSHI & ORS
                                                      ..... Respondents
                          Through     Ms.Gian Mitra, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This petition is directed against the impugned judgment dated

02.01.2012 delivered by the Rent Control Tribunal (RCT) wherein the

findings of the Additional Rent Controller (ARC) dated 08.03.2010 had

been reversed. The aggrieved petitioner is the landlord before the Trial

Court.

2 Record shows that an eviction petition had been filed by M/s

Associate Traders and Engineers Ltd against its tenant Jagdish Chander

Joshi (the respondent) under Section 14 (1)(i) read with Section 22-A of

the Delhi Rent Control Act (DRCA). The suit premises bear municipal

No. 3624, Mori Gate, Delhi. The premises were let out in the year 1967

to the respondent who was an employee of the petitioner. The

respondent had retired from the service on 09.06.1998 but he did not

surrender the premises to the petitioner. Eviction petition was

accordingly filed. In para 19 of the eviction petition, it has been stated

that this suit premises was owned by the Delhi Wakf Board and the

petitioner himself is a tenant in the premises.

3 Written statement/reply to the pending eviction petition was filed.

The defence of the respondent was that there was no relationship of

landlord-tenant and as such the petition under Section 14 (1)(i) of the

DRCA is not maintainable. Further submission was that a criminal

complaint No. 214/1998 had been filed by the petitioner against the

respondent under Section 630 of the Companies Act in which the

respondent stood acquitted and that judgment having become final on

25.04.2003, the present petition is also barred under the principle of res-

judicata. The petitioner is not the owner of the premises and he has no

legal title; the respondent is living with his family in this premises since

the last 47 years in his own right. In para 7 in the reply on merits, it is

categorically stated that the premises is owned and possessed by the

respondent. It was denied that the premises was allotted to the

respondent while he was in service in the year 1967; he is in possession

of the suit premises since the year 1943.

4 Replication was filed by the landlord. He denied the averments

contained in the reply/written statement and reiterated the averments

made in the eviction petition.

5 Issues were framed and the matter went for trial. On behalf of the

landlord two witnesses were examined. AW-1 was Hari Om Sachdev

who was authorized to institute and pursue the eviction petition in terms

of Resolution dated 30.06.2004 (Ex. AW-1/2) of the company M/s

Associate Traders and Engineers Ltd. He had proved the site plan

Ex.AW-1/3. He reiterated that the respondent was an employee of the

petitioner company and had been allotted the premises in 1967; he

retired from the service on 09.06.1998 and he was asked to surrender the

premises but he had failed to do so. The petitioner himself is a tenant of

Delhi Wakf Board vide rent note dated 10.07.1961. In his cross-

examination, he admitted that he had joined the petitioner company in

1979. This statement of AW-1 has been vehemently harped upon by the

learned counsel for the respondent to substantiate a submission that

premises having been let out to the respondent in the year 1967 and

AW-1 having been joined the service of the company in 1979, it is clear

that this testimony is hearsay and it is liable to be rejected on this count

alone. AW-1 further admitted that the petitioner had not issued any letter

of allotment to the respondent.

6 The second witness of the landlord was Nabibl Hasan who had

produced the summoned record from the Delhi Wakf Board. His

testimony was to the effect that this property had been let out by the

Delhi Wakf Board to the petitioner in the year 1961 and he had brought

the original rent note dated 10.07.1961 proved as Ex.AW-2/1. In his

cross-examination, he admitted that this rent note was not executed in

his presence. He denied the suggestion that the petitioner was not a

tenant of the Delhi Wakf Board.

7 Per contra, the respondent had produced one witness in defence.

He was Grish Joshi, the son of Jagdish Chander Joshi as by this time

Jagdish Chander Joshi had expired and his legal representative i.e. his

son had been brought on record. He had deposed that he was living

along with his father in the suit property along with his family members

and there is no relationship of landlord-tenant between the petitioner

company and the respondent and no such accommodation had been

allotted by the petitioner to his father Jagdish Chander Joshi. Further

submission being that this property had been handed over to his father

by his maternal grandfather Mathura Dutt Tiwari who was an employee

of Indian Express. In his cross-examination, he stated that his maternal

grandfather Mathura Dutt Tiwari was in fact the owner of the suit

premises but he did not know when it was purchased. Admittedly he and

his predecessor have never paid any house tax qua this property. He

admitted that his father was an employee of the petitioner and they were

getting electricity from the petitioner who used to deduct electricity

charges from the salary of his father. He admitted that his father retired

in the year 1998. He admitted that he did not have any documentary

proof that his maternal grandfather was living in the suit property since

1943 as was his submission.

8 The ARC vide which judgment dated 08.03.2010, on the basis of

oral and documentary evidence adduced by the respective parties, had

decreed the eviction petition in favour of the landlord.

9 The RCT i.e. the Appellate Court had reversed this finding.

10 On behalf of the respective parties, arguments have been heard in

detail.

11 Learned senior counsel for the landlord/petitioner submits that the

order of the RCT suffers from an illegality. There was no document on

record with the RCT who have given a finding in favour of the tenant

especially there was a categorical admission by the tenant that he had no

documentary proof to show as to in what capacity they were living in

the suit property since the year 1943; submission being that the tenant

was blowing hot and cold and whereas in one version (another

statement) he had set up a submission that he was the owner of the suit

property yet in his cross-examination (when examined as RW-1) he had

not whispered a word on this count although in his cross-examination he

admitted that he is the owner of the suit premises. The status of the

respondent as to in what capacity he was living in the suit premises is

not known. Further submission being that to maintain an eviction

petition under Section 14 (1)(i) of the DRCA, it is the landlord tenant

relationship which is essential and the status of the landlord not

necessarily to be that of the owner and for that proposition, he has

placed reliance upon a judgment of a Bench of this Court reported as

AIR 2007 Delhi 147 Kamla Rani and Ors Vs. M/s Texmaco Ltd..

Impugned judgment is liable to the set aside.

12 Per contra, learned counsel for the respondent submits that the

order of the RCT suffers from no infirmity. The petitioner himself was a

tenant in the property and as such this eviction was not maintainable.

Reliance has been placed upon a judgment reported as 2009 (2) RCR

344 Rishab Chand Bhandari (D) BY Lrs. And Anr Vs. National

Engineering Industry Ltd. wherein the proposition was that an agent of

the owner of the premises cannot file a suit for eviction of the tenant

although he has authority to collect rent from the tenant. This

proposition is wholly inapplicable to the factual scenario as it is not the

case of the petitioner that he is the agent of the owner of the suit

premises. His case is that he is a tenant in his individual capacity of the

Delhi Wakf Board.

13 Record has been perused. Arguments have been heard.

14 The petitioner in the eviction petition has categorically stated that

he is the tenant of Delhi Wakf Board and the rent note Ex.AW-2/A

dated 10.06.1971 which has proved by AW-2 who had produced the

summoned record from the Delhi Wakf Board establishes the

submission of the landlord that the landlord was a tenant in the suit

property since the year 1961. There is no gainsaying of the settled legal

proposition that to maintain an eviction petition under Section 14 (1)(i)

of the DRCA, the landlord-tenant relationship has to be seen by the

Court and the status of the landlord need not be seen. The judgment

relied upon by the learned counsel for the petitioner in Kamla Rani lays

down this ratio. A petition by a landlord even if he is not the owner can

be maintained.

15 The categorical version of AW-1 is that Jagdish Chander Joshi

was an employee of the petitioner company and was allotted the

premises in 1967. He had retired from the service on 09.06.1998. The

fact that he retired on 09.06.1998 is an admitted position and has been

so stated by RW-1 also. The further fact that the respondent was the

employee of the petitioner company is also an admission made by RW-1

who had stated that in the premises, the electricity was being given to

them by the petitioner who used to deduct the electricity charges from

the salary of his father. Thus the fact that the respondent was the

employee of the petitioner company and he was getting salary from

them stands admitted. The statement of the respondent that he was living

in the suit premises since the year 1943 was never established. RW-1

had categorically admitted in his cross-examination that he had no

documentary proof to this effect and there is no evidence to show that he

and his predecessor were living in the suit property since the year 1943

which was his submission. Moreover in what capacity they were living

in the suit property has not been answered. His submission that his

maternal grandfather was the owner of this property and he had given

this property to his son-in-law (father of the respondent) was nowhere

substantiated by any document. These admissions of RW-1 were noted

by the ARC in its correct perspective. Further defense of the respondent

taken in his written statement that they are the owners of this property

was also not established. RW-1 did not know when this property was

purchased by Mathura Dutt Tiwari who had allegedly given/gifted this

property to his father. No such document has seen the light of the day.

Admittedly no house-tax was ever deposited either by the respondent or

his predecessor. They also had no individual electricity or water

connection. Electricity was being given to them by the petitioner

company and as per the admission of RW-1 water was also drawn by

them directly from the MCD tank. There was no separate water

connection.

16 The findings of the ARC on no count suffer from any infirmity.

The RCT had committed a gross illegality by relying upon the evidence

of the respondent which were in fact clear and candid admissions and to

the effect that RW-1 had no document to show as in what capacity they

were living in the suit property and the plea that they were the owners of

the suit property. The judgment delivered by the Metropolitan

Magistrate in proceedings under Section 630 of the Companies Act

would also not operate as res-judicata. Res-judicata would apply only

when the matter in issue is the same and it is heard and decided on

merits and the judgment delivered in the first 'matter' would then have a

binding effect on the later 'matter'. It would only then that the principle

of res-judicata could be applicable. Admittedly, criminal proceedings

under Section 630 of the Companies Act which involve mens-rea on the

part of an employee of an employer to retain the premises of the

company would not encompass the same issue as contained in Section

14 (1)(i) of the DRCA where the landlord is seeking eviction of his

tenant on the ground that the property had been given to him in his

capacity as an employee and he has over-stayed; mans-rea is not an

ingredient in civil proceedings. This argument of the learned counsel for

the respondent is thus bereft of force.

17 Admittedly, the parties had been relegated to civil proceedings

and a suit had also been filed by the petitioner company against the

respondent which was decided on 19.01.2005. This was a suit for

perpetual injunction. While disposing of issue No. 1 i.e. as to whether

the plaintiff had any locus standi to file the present suit, the Trial Court

had adverted to a lease deed qua this property which had been executed

by the Delhi Wakf Board in favour of M/s Associate Traders and

Engineers Ltd. It had arrived at a categorical finding that the plaintiff

company was a lessee/tenant in the property bearing No. 3624, Mori

Gate, Delhi owned by the Delhi Wakf Board. It had also returned a

finding that defendant No. 1 Jagdish Chander Joshi was an employee of

the plaintiff company and as such while disposing of this issue, it was

held that the plaintiff did have the locus standi to file the present suit.

This judgment had become final.

18 The impugned order calls for an interference. It is set aside. The

petitioner/landlord is entitled to a decree in terms of Section 14 (1)(i) of

the DRCA. The order of the ARC is restored.

19     Petition disposed of in the above terms.



                                        INDERMEET KAUR, J
FEBRUARY 05, 2016
A