Ramesh Chander Sethi And Anr. vs Shashi Grover
2018 Latest Caselaw 7228 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        RFA No. 945/2018

%                                    Reserved on: 4th December, 2018
                                  Pronounced on: 7th December, 2018

RAMESH CHANDER SETHI AND ANR.
                                                      ..... Appellants
                         Through:      Mr. Himanshu Sapra and Mr.
                                       Pramod    Kumar      Ahuja,
                                       Advocates    (Mobile   No.
                                       7988487418).

                         versus
SHASHI GROVER
                                                     ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not? YES

VALMIKI J. MEHTA, J

C.M. Appl. No. 48442/2018 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

RFA No. 945/2018 and C.M. Appl. No. 48441/2018 (for stay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit

impugning the Judgment of the trial court dated 10.10.2018 by which

the trial court had decreed the suit for possession, arrears of rent and

mesne profits to the extent of the relief of possession, and has passed

a decree for possession under Order XII Rule 6 CPC.

3. In Delhi, once the rate of rent is above Rs. 3,500/- per

month, then the premises fall outside the protection of the Delhi Rent

Control Act, 1958 and a tenant who does not have a registered lease

deed in his favour for the period of tenancy, such a tenant is liable to

be evicted from the premises in a suit filed for possession. In fact,

though termination of tenancy is required to be done by issuing a

notice under Section 106 of the Transfer of Property Act 1882, yet

the filing of a suit has been treated as a notice terminating tenancy in

terms of the judgment in the case of M/s. Jeevan Diesels &

Electricals Ltd. v. M/s. Jasbir Singh Chadha (HUF) & Anr., 2008

SCC OnLine Del 1623; 2011 (182) DLT 402 and this judgment

relies upon the ratio of the earlier judgment of the Hon'ble Supreme

Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh

(HUF), (2008) 2 SCC 728.

4. The admitted facts of the case are that the

respondent/plaintiff//landlady is the owner of the suit premises being

house No. 7/130, Ramesh Nagar, New Delhi-110015. The ground

floor of this property was let out by the respondent/plaintiff to the

appellant no. 1/defendant no. 1 in terms of a registered Rent

Agreement dated 14.11.2011 for a period of two years at a rent of Rs.

15,500/- per month. The respondent/plaintiff pleaded that the rent

was only paid for 22 months and despite the termination of tenancy

and demand for arrears of rent given in terms of Letters/Notices dated

20.09.2013, 12.11.2013 and 26.12.2013, the appellant no.

1/defendant no.1 failed to vacate the suit premises or pay the arrears

of rent, therefore, a civil suit being CS No. 6998/2016 was filed for

recovery of possession, arrears of rent and mesne profits. In this

earlier suit, the appellant no. 1/defendant no. 1 had filed a written

statement stating that no doubt he was originally the tenant as per the

Rent Agreement dated 14.11.2011, but on expiry of the two year

period under the Rent Agreement dated 14.11.2011, it was the

appellant no. 2/defendant no. 2, who is the sister of the appellant no.

1/defendant no. 1, who had become a tenant, and therefore she is the

tenant and not the appellant no.1/defendant no.1. The earlier suit was

withdrawn by the respondent/plaintiff on account of the aforesaid

facts and some technical defects, and thereafter the subject suit for

possession was filed.

5. The Ld. counsel for the appellants/defendants argued

that the subject suit could not be decreed under Order XII Rule 6

CPC because it has to be determined as to whether the decree has to

be passed against appellant no. 1 /defendant no. 1/brother or against

the appellant no. 2/defendant no. 2/sister, because it is only against a

tenant that a decree can be passed.

6. The trial court, though in my opinion, has rightly

observed that the fact of the matter is that either one of the

appellants/defendants is a tenant and therefore such a person who is a

tenant is liable to vacate the property, and therefore the decree for

possession has to be passed. The trial court in this regard has rightly

observed in paras 10 and 11 of the impugned judgment which read as

under:-

"10. From the stand taken by both the defendants, it is clear that they are trying to create confusion regarding relationship of landlord and tenant between the parties. But, it is also manifests from

the written statements of both the defendants that one of them is tenant of the plaintiff in the suit property and other is residing therein not in his/her individual capacity but as a family member of the one who is tenant in the property.

11. To the mind of this court, the question under consideration is limited whether the plaintiff is entitled for the decree of possession u/o 12 rule 6 CPC, therefore, the controversy whether it is the defendant no.1 or the defendant no.2 is the tenant losses its importance in the pecuniary facts of this case since, as already observed, one of the defendant admittedly is the tenant in the property and other is residing only as family member of the tenant. The defendant no.2 has stated herself to be tenant of the plaintiff in the suit property w.e.f. 16.01.2014, on the basis of oral tenancy entered between her and plaintiff. The plaintiff has denied any such oral tenancy agreement between her and defendant no.2. Considering, only for the purpose of point under consideration, the averments of the defendant no.2 to be correct that she is the tenant of the plaintiff in the suit property, the ingredient of relationship of landlord and tenant between the plaintiff and defendant no.2 stands established."

7. In my opinion, the aforesaid conclusion of the trial court

is buttressed by the legal provision of Order I Rule 7 CPC which

provides that where the plaintiff is in doubt from whom the relief is

to be sought, the plaintiff in such a situation can add more than one

parties as defendants to the suit. This provision of Order I Rule 7

CPC reads as under:-

"7. When plaintiff in doubt from whom redress is to be sought.- Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties."

8. In my opinion, therefore, the reasoning and conclusion

of the trial court is correct because in a suit for possession, a person

who has no right to continue in the tenanted premises, as the tenancy

of the tenant stands terminated, a decree for possession has to be

passed, and the same was therefore rightly passed by the trial court

by making relevant observations in paras 10 and 11 of the impugned

judgment which are reproduced above, and this reasoning is

buttressed by Order I Rule 7 CPC, which has also been reproduced

above. The person who is the tenant is evicted and the other appellant

living only as a family member of the tenant will also go when the

tenant is evicted.

9. The facts of the case also show that the

respondent/plaintiff has pleaded that the rent has not been paid way

back since March, 2014 i.e. almost four and a half years, no less. It is

claimed by the appellant no. 2/defendant no. 2 that the rent has been

paid till February, 2017, but no proof of payment of rent has been

filed. Obviously, therefore, prima facie, no rent has been paid for the

suit premises since March, 2014 till the pronouncement of the

impugned Judgment on 10.10.2018 i.e. for around 4½ years.

Obviously, therefore, the appellants/defendants are not only harassing

the respondent/plaintiff in refusing to vacate the property but are

staying in the premises without payment of charges, subject of course

to the final finding in this regard by the trial court which is

determining the issues of arrears of rent and payment of mesne

profits. The appellants/defendants are, therefore, clearly grossly

dishonest persons.

10. This appeal is therefore dismissed with costs of Rs.

1,00,000/- by noting that no cost has been imposed by the trial court

while passing the impugned judgment in favour of the

respondent/plaintiff. Costs be paid to the respondent/plaintiff within

four weeks from today.

11. I would also like to note that the trial court can at the

time of passing of the impugned judgment exercise powers under

Section 340 of the Code of Criminal Procedure, 1973 read with

Section 209 of the Indian Penal Code, 1860 to direct the filing of a

criminal case against the appellants/defendants, in case the

appellants/defendants are found to have laid out a false defence to the

suit and are falsely contesting the suit filed by the

respondent/plaintiff.

12. In view of the aforesaid observations, the appeal is

accordingly dismissed.

DECEMBER 7, 2018                           VALMIKI J. MEHTA, J
AK