Delhi High Court
Mukesh Nigam & Anr vs Arun Kumar Khandelwal & Ors on 18 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th August, 2017.
+ RC.REV. 370/2017
MUKESH NIGAM & ANR ..... Petitioners
Through: Mr. Ravinder Tyagi, Ms. Kanishka
Tyagi, Ms. Divya Singhal and Ms.
Kartika Tyagi, Advs.
Versus
ARUN KUMAR KHANDELWAL & ORS ..... Respondents
Through: Mr. Peeyush Pahuja, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.29214/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
RC.REV. 370/2017 & CM No.29213/2017 (for stay)
3. This Rent Control Revision Petition under Section 25B(8) of the Delhi
Rent Control Act, 1958 impugns the order [dated 1 st June, 2017 in E
No.270/2017 (New No.311/2017) of the Pilot Court (Central), Tis Hazari
Courts, Delhi] of dismissal of the application filed by the two petitioners
Mukesh Nigam and Pramod Nigam for leave to defend the petition for
eviction under Section 14(1)(e) of the Act filed by the nine respondents
namely Arun Kumar Khandelwal, Rajeev Kumar Khandelwal, Sanjay
Khandelwal, Sanjeev Kumar Khandelwal, Amit Khandelwal, Tarun Kumar
Khandelwal, Akhil Kumar Khandelwal, Manju Khandelwal & Pradeep
Kumar Khandelwal and the consequent order of eviction of the petitioners
RC.REV.370/2017 Page 1 of 6
from first, second and third floors of House No.3752, Gali Loha Wali, Main
Road, Chawri Bazar, Delhi-110006.
4. The counsel for the respondents appears on advance notice and the
counsel for the petitioners has been heard.
5. The counsel for the petitioners/tenants, on enquiry, states that the
petitioners/tenants do not controvert ownership of the respondents of the
premises in the tenancy of the petitioners and the existence of the
relationship of landlord and tenant between the respondents on the one hand
and the petitioners on the other hand.
6. It is however stated that one of the brothers of the two
petitioners/tenants, who is also residing in the tenancy premises, has not
been impleaded.
7. Petitioner No.1 in this petition is described as son of late Sh. Fateh
Bahadur Nigam and the petitioner No.2 is described as son of late Sh.
Dharampal Singh Nigam. It is stated that Sarajoo Nigam, another son of late
Sh. Dharampal Singh Nigam, has not been impleaded.
8. From the record, it transpires that the premises were let out as far back
as in the year 1940 to the grandfather of the present petitioners.
9. Merely because another heir has not been impleaded by the
respondents/landlords in the petition for eviction, the same will not be
detrimental or fatal to the maintainability of the petition for eviction. The
law in this regard is settled by the Supreme Court as far back as in Surayya
Begum Vs. Mohd. Usman (1991) 3 SSC 114 where it was held that unless
the legal heir of the tenant impleaded does not represent the entire estate
RC.REV.370/2017 Page 2 of 6
owing to collusion with the landlord, represents the entire estate and there is
no need to implead all the legal heirs. It is not the case of the
petitioners/tenants that there is any animosity between the petitioners
Mukesh Nigam and Pramod Nigam on the one hand and Sarajoo Nigam on
the other hand or that the petitioners Mukesh Nigam and Pramod Nigam are
in collusion with the respondents/landlords. There is thus no merit in the said
argument.
10. The next argument of the counsel for the petitioners/tenants is that as
per the respondents/landlords, only the first floor was let to the predecessor
of the petitioners/tenants and that the predecessor of the petitioners/tenants
had raised unauthorised construction at the level of second and third floors
above the first floor. The counsel contends that though the
petitioners/tenants controvert that they/their predecessor raised unauthorised
construction but such being the case of the respondents/landlords, the
respondents/landlords cannot seek eviction of the petitioners/tenants from
the portion claimed by the respondents/landlords to have been
unauthorisedly constructed by the petitioners/tenants' predecessor.
11. I have enquired from the counsel for the petitioners/tenants whether
not the principle of accretion to the tenancy premises would apply.
12. The counsel has not volunteered any reply to the aforesaid.
13. Under Section 108(d) of Transfer of Property Act, 1882, if any
accession is made to the leasehold property during the continuance of the
lease, such accession is deemed to be comprised in the lease. Supreme
Court, in Chapsibhai Dhanjibhai Danad Vs. Purushottam (1971) 2 SCC
205 held that if accession is by encroachment and the tenant acquires title thereto
RC.REV.370/2017 Page 3 of 6
by prescription, he must surrender such accession together with leased
premises to the landlord. To the same effect are Kailash Devi Vs. Brij Pal
Manocha 2014 SCC OnLine Del 7109, Bhupinder Kalra Vs. Paramjit Kaur
2016 SCC OnLine Del 5389 & Shanti Swaroop Vs. Badri Bhagat
Jhandewala Temple Society MANU/DE/1986/2017.
14. In my view, the aforesaid does not constitute a ground for leave to
defend, inasmuch as the construction, even if any raised by the
petitioners/tenants/their predecessors above the tenancy premises, would
form part of the tenancy premises. I have also scanned the application for
leave to defend and do not find the petitioners/tenants to have claimed any
other rights with respect to the second and third floors of the property.
15. Though the counsel for the petitioners/tenants has not raised any other
argument with respect to the bona fide requirement of the
respondents/landlords or availability of alternative suitable accommodation
to the respondents/landlords but a perusal of the petition for eviction shows
the respondents/landlords to have pleaded (i) that the respondent No.7 Akhil
Kumar Khandelwal was residing in rented accommodation at QP-11, First
Floor, Maurya Enclave, Pitampura, New Delhi at a rent of Rs.19,000/- per
month along with his family members; (ii) that the respondent No.9 Pradeep
Kumar Khandelwal is also living with his son Gaurav Khandelwal at A-1,
Ground Floor, Plot No.21, Shakti Khand-II, Indira Puram, Ghaziabad, Uttar
Pradesh; (iii) that the relationship between the respondent No.9 Pradeep
Kumar Khandelwal and his son Gaurav Khandelwal with whom he is
residing has strained over the years; (iv) that the respondent No.7 Akhil
Kumar Khandelwal and respondent No.9 Pradeep Kumar Khandelwal
RC.REV.370/2017 Page 4 of 6
require the premises in the tenancy of the petitioners/tenants for their own
residence and have no other alternative accommodation available to them.
16. A perusal of the application for leave to defend filed by the
petitioners/tenants shows the petitioners/tenants to have not controverted that
the respondents/landlords No.7 & 9 were so residing at the addresses
disclosed or in the capacity pleaded in the petition for eviction. No other
alternative accommodation which may be available to the
respondents/landlords No.7&9 for their residential requirement also has been
disclosed.
17. In the aforesaid scenario, no error is found in the impugned order that
the application for leave to defend does not disclose any ground which
would disentitle the respondents/landlords from an order of eviction under
Section 14(1)(e) of the Act and the petitioners/tenants were thus not entitled
to leave to defend.
18. The only other two arguments of the counsel for the
petitioners/tenants are (i) that the respondents/landlords in the petition for
eviction also pleaded about non-payment of rent by the petitioners/tenants;
and, (ii) that the premises in the tenancy of the petitioners/tenants are
capable of fetching much higher rent. On the basis thereof, it is stated that
the intent of the respondents/landlords is to earn higher rent from the
premises in the tenancy of the petitioners.
19. Merely because the respondents/landlords in the petition for eviction
have pleaded the factum of non-payment of rent of Rs.25/- per month by the
petitioners/tenants or of the letting value of the tenancy premises having
changed over the years, does not negate the requirement pleaded and qua
RC.REV.370/2017 Page 5 of 6
which as aforesaid, no defence is disclosed in the application for leave to
defend. If at all the respondents/landlords, after evicting the
petitioners/tenants, do not use the premises for their own purposes as
pleaded, the remedy under Section 19(2) of the Rent Act is available to the
petitioners/tenants.
20. There is thus no merit in this petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 18, 2017
bs
