Delhi High Court
Anil Khattar vs Capt. Preetinder Singh Thapar & ... on 21 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st August, 2017
+ CM(M) 884/2017
ANIL KHATTAR ..... Petitioner
Through: Mr. Vikas Aggarwal and Mr. Karan
Arora, Advs.
Versus
CAPT. PREETINDER SINGH THAPAR & ORS..... Respondents
Through: None.
AND
+ CM(M) 888/2017
VIJAY KUMAR SETIA ..... Petitioner
Through: Mr. Vikas Aggarwal and Mr. Karan
Arora, Advs.
Versus
CAPT PREETINDER SINGH THAPAR & ORS ..... Respondents
Through: None.
AND
+ CM(M) 892/2017
RAM GOPAL ..... Petitioner
Through: Mr. Vikas Aggarwal and Mr. Karan
Arora, Advs.
Versus
CAPT PREETINDER SINGH THAPAR & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.29596/2017 in CM(M) No.884/2017, CM No.29692/2017 in
CM(M) No.888/2017 & CM No.29826/2017 in CM(M) No.892/2017 (all
for exemption).
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
CM(M) 884/2017, CM(M) 888/2017 & CM(M) 892/2017 Page 1 of 6
CM(M) No.884/2017 & CM No.29595/2017 (for stay), CM(M)
No.888/2017 & CM No.29691/2017 (for stay) & CM(M) No.892/2017 &
CM No.29825/2017 (for stay)
3. These three petitions, all under Article 227 of the Constitution of
India, impugn separate but identical orders [all dated 21 st April, 2017 in CIS-
RCT-23-2016 CNR-DLST 01-002344-2015, CIS-RCT-22-2016 CNR-DLST
01-002343-2015 and CIS-RCT-24-2016 CNR-DLST 01-002345-2015
respectively of the Rent Control Tribunal (South District), Saket Courts,
New Delhi] of dismissal of the appeals preferred by the petitioner in each of
the petitions against the common order dated 13th October, 2015 of the
Additional Rent Controller (ARC) of dismissal of the application filed by
each of the petitioner under Order VI Rule 17 of the Code of Civil
Procedure, 1908 (CPC) for amendment of the written statement to the
petitions for eviction under Section 14(1)(a) of the Delhi Rent Control Act,
1958 filed by the three respondents against each of the petitioner for eviction
of each of the petitioner from shop in his respective tenancy in property
no.A-78, Malviya Nagar, New Delhi.
4. The learned Rent Control Tribunal (RCT) has dismissed the appeals
holding the same to be not maintainable under Section 38 of the Rent Act.
5. The counsel for the petitioner in each of the petitions has been heard.
6. The application for amendment filed by each of the petitioner/tenant
was to take a plea in the written statement of each of the petitioner/tenant,
having together purchased 1/4th share in the property in which shop in the
tenancy of each of the petitioner was located.
7. The learned ARC dismissed the applications for amendment of the
written statement holding that even if the plea of the petitioner/tenant of
having purchased 1/4th share in the premises in the tenancy of each of the
CM(M) 884/2017, CM(M) 888/2017 & CM(M) 892/2017 Page 2 of 6
petitioner was correct, the same was not material for adjudication of the
petitions for eviction under Section 14(1)(a) of the Act inasmuch as the same
required only the relationship of landlord and tenant to be proved and did not
require the respondent/landlord to be the owner of the premises.
8. I have enquired from the counsel for the petitioner in each of the
petitions, which provision of law is he invoking to urge that the purchase,
even if any (and which is disputed by the respondents/landlords) would
defeat the petition for eviction under Section 14(1)(a) of the Act.
9. The counsel for each of the petitioner has rightly referred to Section
111 of the Transfer of Property Act, 1882 and agrees that per Clause (d)
thereof, lease rights are determined only if the interest of the lessee and the
lessor in the 'whole of the property' become vested at the same time in one
person in the same right and that there would be no merger of the tenancy of
each of the petitioner with 1/4th ownership, even if acquired.
10. The counsel for each of the petitioner however argues that the plea of
the petitioner is that because they have purchased 1/4 th share in the tenancy
premises, the petitions for eviction are for partial eviction.
11. During the hearing, it has also been disclosed that the
petitioners/tenants together have filed a suit for partition of their 1/4 th share
in the premises in tenancy of each of the petitioner against the three
respondents/landlords and which the respondents/landlords are contesting.
12. Once the counsel agrees that there is no merger of the tenancy rights
of each of the petitioner in the ownership rights claimed to have been
purchased by each of the petitioner in premises in his tenancy, the question
of the petition for eviction being bad for partial eviction or being liable to be
dismissed on that ground does not arise. Till the petitioners are found to
CM(M) 884/2017, CM(M) 888/2017 & CM(M) 892/2017 Page 3 of 6
have 1/4th share and the property is partitioned, it cannot be said that the
petitioner/tenant has right as owner to any demarcated portion of the
premises in his tenancy, for it to be said that the petitions for eviction are bad
for partial eviction.
13. The counsel for the petitioner in each of the cases has also contended
that without the consent of all the owners, one landlord could not have filed
the petition for eviction.
14. It has still to be determined in the partition suit, whether the person
from whom the petitioners/tenants claim to have acquired 1/4 th share in the
property, had any right in the property for it to be said that the
petitioners/tenants have acquired the same.
15. I have enquired from the counsel for the petitioner in each case, how
were the petitioners/tenants paying the rent.
16. The counsel states that they were paying in cash.
17. On enquiry, whether any receipts were issued, the counsel states that
the receipts were issued by respondents No.1&3 herein and who along with
respondent No.2 have filed the petitions for eviction from which these
petitions arise.
18. However, on being asked to show the rent receipts, the counsel states
that though rent receipts have been filed before the Trial Court but have not
been filed here and he is also not carrying the same today.
19. The contention however is, that since during the pendency of the
petitions, the petitioners/tenants have acquired the rights, the position would
be different.
20. The principle enshrined in Section 111 of the Transfer of Property Act
would however still apply.
CM(M) 884/2017, CM(M) 888/2017 & CM(M) 892/2017 Page 4 of 6
21. Reference in this regard may be made to India Umbrella
Manufacturing Co. Vs. Bhagabandei Agarwalla (2004) 3 SCC 178 laying
down (i) that it is well settled that one of the co-owners can file a suit for
eviction of a tenant in the property generally owned by the co-owners; (ii)
that the principle is based on the doctrine of agency--one co-owner filing a
suit for eviction against the tenant does so on his own behalf in his own right
and as an agent of the other co-owner; (iii) that the consent of other co-
owners is assumed as taken unless it is shown that the other co-owners were
not agreeable to eject the tenant and the suit was filed in spite of their
disagreement; (iv) that where eviction is sought by both co-owners, one of
the co-owners cannot withdraw his consent midway the eviction suit so as to
prejudice the other co-owner--eviction suit once filed, the rights of the
parties stand crystallised on the date of the suit and the entitlement of the co-
owners to seek ejectment must be adjudged by reference to the date of
institution of the suit; (v) that the only exception being when by virtue of a
subsequent event the entitlement of the body of co-owners to eject the tenant
comes to an end by act of parties or by operation of law; (vi) that where the
tenant purchases only a share in the property and not the entire property,
applicability of the doctrine of merger within the meaning of clause (d) of
Section 111 of the Transfer of Property Act is not attracted; (vii) that in order
to bring the tenancy to an end, the merger should be complete i.e. the interest
of the landlord in its entirety must come to vest and merge into the interest of
the tenant in its entirety; (viii) that when part of the interest of the landlord or
the interest of one out of many co-landlords-cum-co-owners comes to vest in
the tenant, there is no merger and the tenancy is not extinguished.
Accordingly, the judgment of the High Court directing that the order of
CM(M) 884/2017, CM(M) 888/2017 & CM(M) 892/2017 Page 5 of 6
eviction could not be executed unless the property was partitioned, was set
aside.
22. Applying the aforesaid law, these petitions also have to be dismissed.
23. There is no merit in the petitions.
24. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 21, 2017
Bs..
(Corrected & released on 28th September, 2017)
