Vijay Kumar vs Nafis Ul Arfin
2017 Latest Caselaw 3076 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                             Date of decision: 6th July, 2017
+                 RC.REV. 451/2016
    VIJAY KUMAR                                   ..... Petitioner
                  Through: Mr. Nitin Bhatia and Mr. Rohit
                            Malik, Advs.
                       Versus
    NAFIS UL ARFIN                            ..... Respondent

Through: Mr. T.S. Ahuja and Mr. Varun Ahuja, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.19553/2017 (for restoration of petition dismissed in default on 28th April, 2017)

1. For the reasons stated, the application is allowed and the petition is restored to its original position.

2. The application is disposed of.

RC.REV. 451/2016 & CM No.23308/2017 (of petitioner u/S 151 CPC)

3. This Rent Control Revision Petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 filed by a tenant impugns the order dated 3rd June, 2016 of the Additional Rent Controller (ARC) of dismissal of application filed by the petitioner/tenant for leave to leave to defend the petition for eviction filed by the respondent/landlord for eviction of the petitioner/tenant from one shop on the ground floor of property bearing No.5385, New Market, Sadar Bazar, Delhi-110006.

4. The petition was entertained and vide ex-parte ad-interim order dated 19th September, 2016 the execution of the order of eviction was stayed.

5. The respondent/landlord appeared through counsel and the matter was adjourned from time to time. On 28th April, 2017, the petition was dismissed in default of appearance of the petitioner/tenant. The petitioner/tenant applied for restoration of the petition and which application came up before this Court on 22nd May, 2017 when notice thereof was ordered to be issued for 13th October, 2017.

6. The petitioner/tenant filed CM No.23308/2017 and which was got listed on urgent mentioning yesterday and came up before this Bench at the fag end of the Court hours. The counsel for the petitioner/tenant contended that the respondent/landlord had applied for execution of the order of eviction and warrants of possession were issued and the Bailiff had reached the tenancy premises yesterday and all the goods of the petitioner/tenant lying in the tenancy premises had been thrown on the road. The petitioner/tenant thus sought early hearing of this petition and also sought stay of further execution contending that though his goods have been thrown out but possession had not been lost.

7. Notice of the said application was issued for today and observing that without knowing whether the warrants have been completely executed or not, stay as sought could not be granted. It was directed that the respondent/landlord should not deal with the shop till further orders.

8. The counsel for the respondent/landlord has appeared today and states that though the goods of the petitioner/tenant had been removed but on a receipt of call from Mr. Nitin Bhatia, Advocate for the petitioner/tenant stating that this Court had granted stay of execution and in terms of the same, possession was not taken.

9. Mr. Nitin Bhatia, Advocate controverts and state that he did not state so and rather supplied copy of yesterday‟s order itself to the respondent/landlord.

10. Yesterday‟s order, according to the counsel for the petitioner/tenant also, was received by the petitioner/tenant only at about 1830 hours and could not have been supplied to the respondent/landlord before that. It is quite obvious that Mr. Nitin Bhatia, Advocate misconveyed the order of this Court to the counsel for the respondent/landlord and owing whereto the respondent/landlord did not take possession inspite of the goods of the petitioner/tenant having already been removed from the premises.

11. Such conduct of the petitioner/tenant/his agent disentitles the petitioner/tenant to any relief from this Court. Wrong communication of order of the Court to the prejudice to the other party is a serious issue and has to be condemned and must deprive the party from any hearing before the Court.

12. Be that as it may, the counsel for the petitioner/tenant has been asked to argue on the merits of the Revision Petition.

13. The counsel for the petitioner/tenant has argued (i) that the respondent/landlord is not the owner of the premises in the tenancy of the petitioner/tenant which is a Wakf property; (ii) that the respondent/landlord before the ARC produced a document being a settlement between the respondent/landlord and his brother whereunder the shop in the tenancy of the petitioner/tenant had fallen to the share of the respondent/landlord and on the basis whereof, the learned ARC has held that there is no merit in the plea of the petitioner/tenant of the

property being a Wakf property; however the petitioner/tenant has now learnt that the sister of the respondent/landlord who was not a party to the said deed of settlement is claiming rights to the property and owing to such dispute as to the title of the property, the respondent/landlord cannot be said to have ownership of the property; (iii) that according to the respondent/landlord also 104 shops have fallen in his share and the respondent/landlord, to satisfy his pleaded requirement of a shop, has chosen the shop in the tenancy of the petitioner/tenant only because the said shop is the largest of the said 104 shops; (iv) that the respondent/landlord pleads that he intends to commence his own business and needs the shop in the tenancy of the petitioner/tenant therefor; the respondent/landlord is now 57 years of age and cannot be expected to commence any business at this advanced age; (v) that "admittedly" some of the said 104 shops are lying vacant (I may however state that upon being asked to show the admission to the said effect, the counsel is unable to show any); (vi) that since the petitioner/tenant has raised all the aforesaid pleas disputing the claim of the respondent/landlord, the ARC erred in refusing leave to defend; reliance in this regard is placed on Vijay Kumar Ahluwalia Vs. Bishan Chand Maheshwari (2017) 3 SCC 189.

14. I have considered the aforesaid contentions of the counsel for the petitioner/tenant and gone through the paper book.

15. The learned ARC in a lucid and well reasoned order has held (a) that the respondent/landlord has placed on record a certified copy of a decree of the Court in a civil suit of the year 1976 pertaining to division of properties of a Wakf Alal Aulad and under which decree the shop in

the tenancy of the petitioner/tenant had come to the share of the respondent/landlord; (b) that the respondent/landlord has also placed on record counterfoils of the rent receipts by virtue of which rent was paid by the petitioner/tenant to the respondent/landlord; (c) that the petitioner/tenant had not disputed the issuance of those rent receipts meaning thereby the petitioner/tenant had admitted the landlord-tenant relationship; (d) that the petitioner/tenant is estopped under Section 116 of the Indian Evidence Act, 1872 from disputing the title of the respondent/landlord of the tenancy premises; (e) that under the provisions of the Delhi Rent Control Act, the landlord is required to prove that his title is better than that of the tenant and absolute ownership is not required to be proved; (f) that in the present case, the respondent/landlord has successfully proved his title to be better than that of the petitioner/tenant since the respondent/landlord is having a decree of the Court of competent jurisdiction vesting the property in him and has also been issuing rent receipts in favour of the petitioner/tenant;

(g) that the averment of the petitioner/tenant that he has been paying house tax with respect to the tenanted premises is of no avail as the same would not make the petitioner/tenant owner of the shop in his tenancy.

16. I may at this stage add that a Wakf Alal Aulad is different from a Wakf for charitable purpose. Wakf Alal Aulad is made to vest the property in the heirs and the heirs can always on conditions of the Wakf Deed being satisfied divide the property amongst themselves. Reference can be made to Tamil Nadu Wakf Board Vs. Larabsha Darga Panruti (2007) 13 SCC 416, Sheikh Mumtaj Ahmed Vs. Rana Khursheed 2013 SCC OnLine Del 2702 and Nisar Ahmed Vs. Agyapal Singh 2015 SCC

OnLine Del 7611. Thus, the entire argument of Wakf or of the brother of the respondent/landlord being Mutawalli of the said Wakf is misconceived and only to perpetuate the possession of the petitioner who is stated to be a tenant in the shop since the year 1964 at a rent of Rs.150/- per month. Such pleas taken ought to be dealt with in the manner as have been dealt with by the ARC.

17. The ARC has further with respect to the bona fide requirement of the respondent/landlord for the premises and availability of alternative accommodation to the respondent/landlord held (i) that it is the case of the respondent/landlord that he was earning his livelihood from the rental income of the shops which had fallen to his share under the decree aforesaid and all the tenants being old the rent is meager; (ii) that the respondent/landlord used to supplement his income by repairing of television sets by visiting the customers‟ residences; (iii) however now with the change of technology and coming of LCD, LED technology, there is negligible demand for the respondent/landlord‟s services and the respondent/landlord thus required the premises to settle himself for the rest of his life by commencing his own business from the shop in the tenancy of petitioner/tenant with respect to which the petition for eviction was filed; (iii) that thus the bona fide requirement of the respondent/landlord could not be doubted; reliance was placed on Sarla Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC 100 laying down that the Rent Controller shall not proceed on the presumption that the requirement is not bona fide and that when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide; (iv) that the

respondent/landlord had clearly stated his need for the premises; (v) that it was not the case of the petitioner/tenant also that the respondent/landlord was carrying on any other business or was in some alternative employment; thus, the respondent/landlord could not be denied right to earn his livelihood by establishing his independent business even at the age of 54 years; (vi) that it is not as if the respondent/landlord had concealed his other shops; in the petition for eviction ifself, the respondent/landlord had pleaded that he was the owner of properties No.5385, 5386, 5387, 5393 and 5394 in New Market, Sadar Bazar, Delhi comprising of total 104 shops and all these shops have been occupied by various tenants who were in occupation since long; (vii) that the respondent/landlord had also annexed the list of all the tenants who were occupying different portions of the properties under the ownership of the respondent/landlord; (viii) that in the aforesaid list none of the shops was shown to be lying vacant or unused;

(ix) that the respondent/landlord had also disclosed the amount of rent received from the tenants in each of the shops; (x) that on the other hand, the petitioner/tenant had merely made vague averments that some of the shops were lying vacant or unused without giving the specific number or the details of the shops which according to the petitioner/tenant were lying vacant; (xi) that the petitioner/tenant had not even filed a site plan to contradict the site plan of the properties filed by the respondent/landlord; (xii) that such averments of the petitioner/tenant remained mere bald averments without any substance and on the basis thereof leave to defend could not be granted; (xiii) that the petitioner/tenant had thus failed to prove the availability of alternative

suitable accommodation for the bona fide requirement of the respondent/landlord.

18. The dealing by the learned ARC of each of the pleas of the petitioner/tenant in the application for leave to defend is based on cogent reasons and material on record and the counsel for the petitioner/tenant has also not contradicted any of the same. The inferences drawn from the said reasoning are also in accordance with law. Once this Court, while exercising jurisdiction under Section 25-B(8) of the Act finds so, in my view, the powers under Section 25-B(8) cannot be converted into an appeal. All that has to be seen is that the conclusions drawn by the ARC are based on record, are supported by cogent reasons and are not such which could not have been drawn at all in the facts of the case. Once it is so, the order of the ARC would be according to law and would not be interfered by this Court in exercise of powers under Section 25-B(8) of the Act which are distinct from appellate powers and this Court cannot substitute its own opinion. Reference in this regard can be made to the judgment of the Constitution Bench of the Supreme Court in Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh (2014) 9 SCC 78

19. In view of the aforesaid, none of the arguments today raised by the counsel for the petitioner/tenant has any merit or is such which defeats the reasoning given by the ARC.

20. As far as the contention of the counsel for the petitioner/tenant, that the sister of the respondent/landlord has since been claiming title in the property and was not privy to the decree under which the

respondent/landlord has become the owner of the shop in the tenancy of the petitioner/tenant and that the petitioner/tenant is now in the process of getting documents in this regard, is concerned, all that can be observed is that such a claim raised by any of the siblings of the respondent/landlord would not take away from the fact of the respondent/landlord being owner of the property within the meaning of Section 14(1)(e) of the Act. Qua the Delhi Rent Control Act, it has been held that even a co-owner is entitled to maintain a petition for eviction of the tenant. Reference can be made to Kanta Goel Vs. B.P. Pathak (1977) 2 SCC 814, Pal Singh Vs. Sunder Singh (1989) 1 SCC 444, as well as to Dhannalal Vs. Kalawatibai (2002) 6 SCC 16, Indian Umbrella Manufacturing Co. Vs. Bhagabandei Agarwalla (2004) 3 SCC 178 and Mohinder Prasad Jain Vs. Manohar Lal Jain (2006) 2 SCC 724.

21. Insofar as the judgment relied upon by the counsel for the petitioner/tenant is concerned, the Supreme Court in the facts of that case found the pleas contained in the application for leave to defend to be such which required trial. However, as aforesaid, it is not so in the present case. In the case before the Supreme Court, the tenant had not even attorned to the person who had filed the petition for eviction and there was no relationship of landlord and tenant. However, in the present case, there is a decree of a Court of competent jurisdiction under which the respondent/landlord is the absolute owner of the shop in the tenancy of the petitioner/tenant and the petitioner/tenant has been paying rent to the respondent/landlord and signing the counterfoils of the rent

receipt. 22. I may in this regard also mention that the decree under which the respondent/landlord has become owner is of 20th January, 1977 and it is not as if the respondent/landlord immediately after the said decree filed the petition for eviction of the petitioner/tenant. The petition for eviction has been filed after 38 years in the year 2015 which also establishes the bona fides of the respondent/landlord.

23. There is thus no merit in the petition, which is dismissed.

24. Though ordinarily this Court while dismissing a petition by a tenant under Section 25-B(8) would not issue a direction to the tenant to vacate the premises and the respondent/landlord is to execute order of eviction but the petitioner/tenant in the present case having been found to have interdicted with the process of execution by misrepresenting to the respondent/landlord that this Court had stayed the execution of the order of eviction, the petitioner/tenant is directed to deliver vacant, peaceful, physical possession.

25. The counsel for the petitioner/tenant at this stage again states that he will file an affidavit that he did not inform that there was a stay of execution.

26. Though I was not intending to institute further enquiry into the same but if the counsel for the petitioner/tenant desires to file affidavit, a separate file of contempt will have to be constituted and in which affidavit can be filed. In fact, Mr. T.S. Ahuja, Advocate for the respondent/landlord states that Mr. Rohit Malik, also the Advocate for the petitioner/tenant and today present in the Court, was present at the

site and threatened the Bailiff.

27. The conduct of all the persons concerned needs to be enquired into.

28. At this stage, the petitioner/tenant Mr. Vijay Kumar as identified by his Advocate states that he be given time till 31 st December, 2017 to hand over vacant, peaceful, physical possession of the shop to the respondent/landlord. He also states that he is willing to give an undertaking to the Court to the said effect, after understanding the consequences of breach of undertaking given to the Court. He further states that though the respondent/landlord had filed the petition for eviction against himself and his brother Mr. Varinder Kumar but he has in this petition not impleaded his brother Mr. Varinder Kumar as a party because Mr. Varinder Kumar does not claim any rights in the shop and he himself is the exclusive tenant in possession and control of the shop. He also states that there are no disputes between him and his brother Mr. Varinder Kumar and he is authorised to make a statement on behalf of his brother Mr. Varinder Kumar that his brother Mr. Varinder Kumar does not claim any rights in the shop and will not institute any proceeding claiming rights in the shop.

29. The counsel for the respondent/landlord has left it to this Court to deal with the said request.

30. Since the counsel for the petitioner/tenant has shown remorse for the actions, it is deemed appropriate to grant time as sought till 31 st December, 2017 to vacate the shop.

31. The petitioner/tenant Mr. Vijay Kumar undertakes to this Court:

(i) to hand over vacant peaceful physical possession of the premises in his tenancy / possession to the respondent/landlord on or before 31st December, 2017;

(ii) to, till the date of vacation of the premises, pay rent of Rs.150/- per month to the respondent/landlord month by month in advance for each month by the 10th day of each succeeding English Calendar month;

(iii) to clear the electricity and water dues of the premises till the date of occupation thereof, before leaving the premises; and,

(iv) to hereinafter not induct any other person into possession of the premises and to not damage the premises.

32. The aforesaid undertakings of the petitioner/tenant are accepted and he is ordered to be bound therewith and he has been explained the consequences of breach of undertaking given to this Court.

33. Resultantly, need to initiate any fresh proceeding to enquire any misrepresentation qua order is also not felt.

34. While dismissing the petition it is ordered that subject to the petitioner/tenant complying with all his undertakings aforesaid, the execution of order is deferred till 31st December, 2017. However, if the petitioner/tenant is in breach of his undertaking, the respondent/landlord despite taking action therefor shall also be entitled to execute the order of eviction.

35. The date of 13th October, 2017 is cancelled.

RAJIV SAHAI ENDLAW, J.

JULY 06, 2017/„bs‟..