Delhi High Court
Munni Devi & Anr vs Madan Lal & Ors on 28 October, 2024
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 28.10.2024
+ RC.REV. 449/2013 & CM APPL. 20837/2023
MUNNI DEVI & ANR .....Petitioners
Through: Ms. Jyoti Dwivedi, Adv. with Mr.
Madan Lal, son of Petitioner No.2
in person.
versus
MADAN LAL & ORS .....Respondents
Through: Mr. Anurag Ojha, Adv. with Mr.
D.N. Chaturvedi and Mr. Deepak
Somani, Advs. with son of
Respondent No.1 in person.
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
TARA VITASTA GANJU, J.: (Oral)
1. Learned Counsel for the Petitioners on instructions from the son of
the Petitioner No.2 who is physically present in Court today submits that
the Petitioner No.2 has expired on 19.05.2015.
2. Since, no Application for impleading the legal representatives of the
Petitioner No.2 has been filed for the last nine years, it is contended by the
learned Counsel for the Respondents that the Petition is abated qua
Petitioner No.2.
3. This Court has in Shiv Charan v. Bal Kishan Singh and Another1
has while applying the provisions of Order XXII Rule 9 and 3 of the Code
of Civil Procedure, 1908 [hereinafter referred to as "CPC"] held that the
period for bringing a legal heir of a party on record is 90 days and where
the same is not done in the said period and no sufficient cause has been
shown for the same, the right to sue does not survive for the legal heirs of
such person. It was held as follows:
"6. Order XXII Rule 3(1) of Civil Procedure Code, 1908 (CPC) sets out
that where a Plaintiff dies and the right to sue survives, the Court shall
cause the legal representative of the Plaintiff to be made a party. Sub
section (2) of Order XXII Rule 3 CPC provides that in the case that no
Application under Sub-rule (1) is made, the suit so far as concerns the
deceased Plaintiff shall abate.
6.1 Order XXII Rule 9 (1) CPC also provides that where a suit abates or
is dismissed under this Order, no fresh suit shall be brought on the same
cause of action. Order XXII Rule 3 (1) CPC and Order XXII Rule 9(3)
CPC are extracted below:
"3. Procedure in case of death of one of several plaintiffs or of sole
plaintiff. -- (1) Where one of two or more plaintiffs dies and the right
to sue does not survive to the surviving plaintiff or plaintiffs alone,
or a sole plaintiff or sole surviving plaintiff dies and the right to the
sue survives, the Court, on an application made in that behalf, shall
cause the legal representative of the deceased plaintiff to be made a
party and shall proceed with the suit.
xxx xxx xxx
9. Effect of abatement or dismissal.-- .....
(3) The provisions of Section 5 of the 1 [Indian Limitation Act, 1877
(15 of 1877)] shall apply to applications under sub-rule (2).
[Explanation. -- Nothing in this rule shall be construed as barring,
in any later suit, a defence based on the facts which constituted the
cause of action in the suit which had abated or had been dismissed
under this Order.]"
7. Limitation under Article 120 of Schedule 1(A) of the Limitation Act,
2024 SCC OnLine Del 7287
1963 [hereinafter referred to as the "Act"] upon the death of a
Plaintiff/Defendant to a suit is 90 days from the date of
Plaintiff/Appellant, defendant or respondent as the case may be. Article
120 of Schedule 1(A) is reproduced below:
Description of suit Period of Time from which
limitation Period begins
to run
120. Under the Civil Ninety The date of death of
Procedure Code, 1908(5 of days. the plaintiff,
1908), to have the legal appellant, defendant
representative of a deceased or respondent, as the
plaintiff or appellant or of a case may be.
deceased defendant or
respondent, made a party.
8. Order XXII Rule 1 CPC mandates that a death of a Defendant or
Plaintiff shall not cause a suit to abate if the right to sue survives. Order
XXII Rule 3 CPC further sets out that if the right to sue does survive then
an appropriate Application to implead the legal representatives of the
deceased is required to be filed within specified time - which is 90 days as
per the Act. Consequently, if the party does not take appropriate steps, the
right to sue does not survive and the proceedings abate qua the deceased.
8.1 Order XXII Rule 9(2) CPC provides for an Application for setting
aside of the abatement in circumstances where the principles under
Section 5 of the Act are applicable. Thus, the Applicant must show that
there was sufficient cause for not filing the Application within the
prescribed time.
9. In the present case, the Petitioner (Defendant in the Eviction Petition)
passed away. However, no Application as is contemplated by Order XXII
Rule 3 CPC has been made. No reason much less sufficient cause is
shown by the Petitioner for the inaction. As stated above, the Petitioner
is unable to give any reason for the same.
10. The Supreme Court has held that where the Application to bring on
record the legal representatives of a deceased party has not been made
on time and no reasons are given for the same, the Suit/Petition will
stand abated. The ratio of the decision of the Supreme Court in Balwant
Singh v. Jagdish Singh is squarely applicable to the facts in the present
case."
[Emphasis supplied]
4. Undisputably, no steps have been taken pursuant to the demise of
Petitioner No.2 after 19.05.2015. Thus, for a period of more than 10 years,
the Application was not filed by the Petitioners/tenant. No explanation is
forthcoming by the Petitioners/tenants either. No reasons have been given
for this huge delay by the learned Counsel of Petitioners/tenants. In these
circumstances, and since no sufficient cause has been shown by the
Petitioners/tenants in not filing the Application for impleadment of
Petitioner No.2 within the prescribed time, the Petition qua Petitioner No.2
stands abated.
5. Learned Counsel for the Respondents submits that the Notice was
issued in this matter on 19.05.2014 when the Impugned Order was directed
to be stayed by the Court on the plea that the premises is owned by the
DDA. He submits that, as was recorded by this Court in a subsequent order
on 18.03.2015, the civil proceedings which were sought to be relied upon
by the Petitioners/tenants had since culminated into a decree and the Civil
Court had held that the Respondent is the owner of the said premises.
Reliance is placed on the Order dated 18.03.2015 where this has been
recorded by a Coordinate Bench of this Court.
6. Learned Counsel for the Respondents submits that despite
supplying the details of the legal heirs of Respondent No.1, no application
has been filed for bringing the legal representatives of Respondent No.1
on record. It is submitted by the learned Counsel for the Respondents that
the Petitioners/tenants are only trying to delay these proceedings.
6.1 Learned Counsel for the Petitioners/tenants contends that the said
Application has been filed but is lying under objection.
7. Learned Counsel for the Respondent No.1 submits on instructions
from the legal representative of the Respondent No.1 who is present in
Court, submits that since the subject premises is co-owned by all the
Respondents, this Court can proceed with the matter even in the absence
of this Application.
8. It is no longer res integra that a co-owner of a premises acts as an
agent of the other co-owners and can file an eviction petition without
joining the other co-owners as a party. This Court has in R.S. Chadha v.
Thakur Dass2 while relying on India Umbrella Manufacturing Co. v.
Bhagabandei Agarwalla (Dead) by LRs3 while dealing with the issue of
consent of co-owners held as follows:
"10.4 It is settled law that a co-owner of a premises acts as an agent
of the other co-owners and can file an eviction petition without joining
the other co-owners. The consent of all co-owners is assumed unless
shown to the contrary."
[Emphasis supplied]
8.1 In the present case, it is not disputed that the Respondents/landlords
had jointly filed the Eviction Petition before the learned Trial Court and
have been contesting the Petition jointly. The consent of all co-owners is
assumed unless shown to the contrary. There is no averment to the
contrary, shown by the Petitioners/tenants.
8.2 In any event, the son/legal representative of the Respondent No.1 is
present in Court and this order has been passed in his presence. In these
2024 SCC OnLine Del 47
(2004) 3 SCC 178
circumstances and in view of the fact that the present Petition is being
contested by the Respondents who are all co-owners, the impleadment of
the legal representatives of Respondent No.1 is dispensed with.
9. Learned Counsel for the Respondents submits that the
Petitioners/tenant have encroached upon property bearing No.6469, which
belongs to the DDA, however, the subject premises is property bearing
No. 6470, which was purchased by the father of the Respondent No.1,
Madan Lal by virtue of a registered sale deed. Learned Counsel for the
Respondents submits that the Respondents are the owners of the property
bearing No.6470 and that property bearing No.6469 is not the subject
matter of the present Petition.
10. It is no longer res integra that a Revision Petition is not meant to
decide the issue of title between the parties. Reliance is placed on
judgment of Supreme Court in Smt Shanti Sharma & Ors. vs Smt. Ved
Prabha& Ors.4 and this Court in Jiwan Lal vs Gurdial Kaur and Others5.
10.1 The Supreme Court in the Shanti Sharma case has held that the
term 'owner' in the context of the provisions of Section 14(1)(e) of the
Delhi Rent Control Act, 1958 [hereinafter referred to as "DRC Act"], viz-
a-viz a tenant should mean more than a tenant. The relevant extract reads
as follows:
"14. The word "owner" has not been defined in this Act and the word
'owner' has also not been defined in the Transfer of Property Act.
The contention of the learned Counsel for the appellant appears to be
that ownership means absolute ownership in the land as well as of the
(1987) AIR (SC) 2028
(1995) 57 DLT262
structure standing thereupon. Ordinarily, the concept of ownership
may be what is contended by the counsel for the appellant but in the
modern context where it is more or less admitted that all lands belong
to the State, the persons who hold properties will only be lessees or the
persons holding the land on some term from the government or the
authorities constituted by the State and in this view of the matter it
could not be thought of that the legislature when it used the term
"owner" in the provision of Section 14(1)(e) it thought of ownership
as absolute ownership. It must be presumed that the concept of
ownership only will be as it is understood at present. It could not be
doubted that the term "owner" has to be understood in the context of
the background of the law and what is contemplated in the scheme of
the Act. This Act has been enacted for protection of the tenants. But at
the same time it has provided that the landlord under certain
circumstances will be entitled to eviction and bona fide requirement is
one of such grounds on the basis of which landlords have been
permitted to have eviction of a tenant. In this context, the phrase
"owner" thereof has to be understood, and it is clear that what is
contemplated is that where the person builds up his property and lets
out to the tenant and subsequently needs it for his own use, he should
be entitled to an order or decree for eviction the only thing necessary
for him to prove is bona fide requirement and that he is the owner
thereof. In this context, what appears to be the meaning of the term
"owner" is vis-a-vis the tenant i.e. the owner should be something
more than the tenant. Admittedly in these cases where the plot of land
is taken on lease the structure is built by the landlord and admittedly he
is the owner of the structure. So far as the land is concerned he holds a
long lease and in this view of the matter as against the tenant it could
not be doubted that he will fall within the ambit of the meaning of the
term "owner" as is contemplated under this section. This term came up
for consideration before the Delhi High Court and it was also in
reference to Section 14(1)(e) and it was held by the Delhi High Court
in T.C. Rekhi v. Smt Usha Gujral [1971 RCJ 322, 326 (Del HC)] as
under:...."
[Emphasis supplied]
10.2 A Coordinate bench of this Court in Jiwan Lal case has held that
there is a tendency on the part of the tenants to deny ownership in cases
under Section 14(1)(e) of the DRC Act, however, these petitions are not
title cases involving disputes of title to the property and ownership is not
to be proved in absolute terms. The relevant extract of the judgment is
reproduced below:
"3. There is a tendency on the part of tenants to deny ownership in cases
under Section 14 (1)(e). To test the substance of such a plea on the part
of the tenants the Courts have insisted that they should state who else is
the owner of the premises if not the petitioner.' In the present case it is
not said as to who else is the owner. Further these cases under Section
14(1)(e) are not title cases involving disputes of title to the property.
Ownership is not to be proved in absolute terms. The respondent does
not claim the ownership of the premises. He is only a tenant and
according to him was inducted by Kuldip Kaur, daughter of deceased
Raghubir Singh. Raghubir Singh held lease of the premises from Kanna
Mal Chhanna Mal. AW 1 Smt. Gurdayal Kaur has stated that the lease of
the property was in the name of her husband Raghubir Singh and after his
death she has inherited the same. House tax bill AW 1/2 is in the name of
Raghubir Singh. Therefore, I do not find anything to disturb the finding of
the Court below on this point."
[Emphasis supplied]
11. The Impugned Order has been passed in respect of one room and
common courtyard on the ground floor forming part of property no. 6470,
Gali Hanuman Mandir, Ward No. XV, Nabi Karim, Paharganj, New Delhi,
as shown in the map annexed. The record shows that the issue with regard
to the Petitioners/tenants being in possession of property bearing No.6469
and not property bearing No.6470, was raised before the learned Trial
Court and that a similar submission that the said property is owned by
DDA was made before the learned Trial Court. The learned Trial Court
found that the Petitioners/tenants could not place any material on record
to substantiate their plea.
11.1 On the other hand, the Respondents/landlords placed on record copy
of civil proceedings filed in 1988, which were not disputed by the
Petitioners/tenants, to show that in those proceedings, the
Petitioners/tenants had taken the same stand. The learned Trial Court
relied on the finding of ownership given by the Court in its order dated
06.09.1999 passed in Suit No. 347/88 captioned Het Ram vs. Pooran
Chand and Munni Devi to hold that the Respondents/landlords are the
owners of the tenanted property which the Petitioners/tenants are in
possession, as tenants. Paragraph 10 of the Impugned Order, in this regard
is extracted below:
"10. The real dispute appears to be as to whether tenanted premises, as
shown in red colour attached in the petition, is part of the property
No.6470-71. Though the respondents have claimed that the tenanted
premises shown in the site plan filed by the petitioners is part of property
No.6469, however, they have not brought on record any material to
substantiate their plea. On the other hand, in support of their stand,
petitioners have placed on record the copy of judgment dated 06.09.1999
given in suit No.347/88 titled Het Ram vs. Pooran Chand and Munni
Devi which has not been disputed by the respondents. It is noteworthy
that the site plan of property no.6470-6471filed in those suit proceeding
is quite similar to the site plan filed alongwith present petition.From the
judgment, it also becomes clear that the respondents had taken a stand
that they are owners of property No.6469-6470, however, it was held by
the court that the plaintiff is the owner of the property and there exists
landlord tenant relationship between the parties. In view of this, there
remains no doubt that property in occupation of respondents is a part of
Property No.6470 and they are in possession thereof in the capacity of
tenants."
[Emphasis supplied]
11.2 Thus the issue of ownership had already been decided by the Civil
Court in previously instituted proceedings and has been dealt with in the
Impugned Order. In view of the settled position of law, the Court finds no
reason to interdict the same.
12. The only argument made by learned Counsel for the
Petitioners/tenant before this Court is that the Impugned Order directs the
eviction of the Petitioners/tenants from property No.6470, Gali Hanuman
Mandir, Ward No.XV Nabi Karim, Paharganj, New Delhi, but the
Petitioner No.1 is not in occupation of the said premises as it is residing at
property No.6469, Gali Hanuman Mandir, Ward No.XV Nabi Karim,
Paharganj, New Delhi.
13. The Impugned Order has been passed in Eviction Petition No. 25/12
captioned as Madan Lal & Ors. v. Munni Devi & Anr. where the
Respondents/landlords sought to evict the Petitioners/tenants from the
premises at No.6470, Gali Hanuman Mandir, Ward No. XV Nabi Karim,
Paharganj, New Delhi as shown in red in the annexed site plan, therein. As
discussed herein, the issues raised by the Petitioners/tenant in the present
Petition were also raised before the learned Trial Court and after an
examination of the same, the learned Trial Court found no merit therein.
This Court has also undertaken an examination of these issues and found
no infirmity with the Impugned Order passed by the learned Trial Court.
14. In any event, since admittedly the Petitioners/tenants are not
residing in property No.6470, Gali Hanuman Mandir, Ward No.XV, Nabi
Karim, Paharganj, New Delhi but at property No.6469, Gali Hanuman
Mandir, Ward No. XV Nabi Karim, Paharganj, New Delhi, the challenge
to the Impugned Order which is in respect to property no. 6470, Gali
Hanuman Mandir, Ward No. XV, Nabi Karim, Paharganj, New Delhi,
cannot be maintained by the Petitioners/tenants.
15. In the circumstances, the Petition and all pending Applications are
disposed of in the aforegoing terms. Consequently, all interim orders stand
vacated.
16. The Respondents/landlords are also at liberty to take recourse to
appropriate proceedings for recovery of arrears of use and occupation
charges/mesne profits, if applicable, in accordance with law.
17. Parties will act based on the digitally signed copy of the order.
TARA VITASTA GANJU, J
OCTOBER 28, 2024/SA
Click here to check corrigendum, if any
