Delhi High Court
Mamta Devi vs Preeti on 2 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 34/2016
% 2nd May, 2017
MAMTA DEVI .... Appellant
Through: Mr. Ashok Kumar Bahl, Mr.
V.P. Bansal, Advocates
versus
PREETI ..... Respondent
Through: Mr. Narain Saxena, Advocate
with Ms. Preeti, Respondent in
person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of Code
of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff
against the concurrent judgments of the courts below; of the Trial
Court dated 16.7.2015 and the First Appellate Court dated 24.9.2015;
by which the courts below have dismissed the suit for possession and
damages. Suit for possession was filed pleading that the tenant, whose
contractual tenancy had been terminated in her lifetime, had died and
since the legal heir of the deceased tenant was not financially
dependent on the deceased tenant, hence the legal
heir/respondent/defendant did not inherit the tenancy. In Delhi a
residential tenant is defined under Section 2 (l) of the Delhi Rent
Control Act, 1958 (hereinafter referred to as 'the Act') and as per this
provision only certain limited legal heirs of the deceased tenant inherit
the residential tenancy subject to their living with the tenant and being
financially dependent on the tenant.
2. The admitted facts are as under:
(i) That the suit property is a shop measuring 3 Ft. x 9 Ft. bearing
no. 3 in property no. 1/6826, Main Road, East Rohtash Nagar,
Shahdara, Delhi. The tenanted premises were let out by its
previous owner, landlord to Smt. Prem Rani, and the latter is the
predecessor-in-interest of the respondent/defendant.
(ii) That appellant/plaintiff purchased the suit property on 11.7.2005
and Smt. Prem Rani became tenant under the appellant/plaintiff
thereafter.
(iii) The last paid rent by Smt. Prem Rani to the appellant/plaintiff
was Rs.266/- per month.
(iv) Appellant/Plaintiff terminated the tenancy of Smt. Prem Rani
through a legal notice dated 7.11.2011 which was duly received
as she gave its reply dated 15.5.2011 (wrongly typed as
15.5.2010) also.
(v) Smt. Prem Rani expired on 7.11.2011 and the
respondent/defendant is her daughter.
(vi) That the suit property being a shop was used for commercial
activities by the deceased Smt. Prem Rani/tenant.
3. The limited issue is whether the subject suit for possession
will lie on the ground that the respondent/defendant was not financially
dependent upon her deceased mother Smt. Prem Rani at the time of her
death and consequently is therefore excluded from the definition of
'tenant' as contained in Section 2(l) of the Act.
4. The issue is no longer res integra and Supreme Court has
in the celebrated judgment in the case of Gian Devi Anand Vs. Jeevan
Kumar and Others, (1985) 2 SCC 683 held that so far as devolution of
commercial tenancies are concerned, the devolution thereof is as an
ordinary property of a deceased, and the commercial tenanted property
on the death of the deceased tenant devolves upon all his legal heirs
and not only upon the limited legal heirs as specified in Section 2(l) of
the Act. Accordingly, the subject suit for possession was not
maintainable because the suit proceeded on a wrong hypothesis that
Section 2(l) of the Act applies to tenancies which were commercial
whereas the subject section only applies to devolution of tenancy of a
residential property.
5. Learned counsel for the appellant/plaintiff argues that the
Supreme Court in the judgment in the case of Satyawati Sharma vs.
Union of India and Another, (2008) 5 SCC 287 has held that now
even the commercial tenancies under the Act will have limited
devolution under Section 2(l) of the Act, however, this argument is
based on a complete misreading of the judgment in the case of
Satyawati Sharma (supra) because in the case of Satyawati Sharma
(supra) Supreme Court only held that though the literal interpretation
of the language contained in Section 14(1)(e) of the Act allowed
eviction petitions for bonafide necessity only with respect to residential
premises, however, such language being discriminatory, and thus
consequently held that this Section 14(1)(e) of the Act will even apply
for evicting by landlords of tenants not only of residential premises but
also of commercial tenancies. There is nothing in the judgment in the
case of Satyawati Sharma (supra) which holds that the commercial
premises and commercial tenancies are covered under Section 2(l) of
the Act.
6. No substantial question of law arises. Dismissed.
MAY 02, 2017 VALMIKI J. MEHTA, J
godara/ne
