Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 1 September, 2017
+ RC.REV. No.408/2017
SATYA PRAKASH .... Petitioner
Through: Mr. O.P. Faizi, Adv.
Versus
AMIT JAIN & ANR. …...Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.31863/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
RC.REV. 408/2017 & CM No.31863/2017 (for stay)
3. This Rent Control Revision Petition under Section 25B(8) of the Delhi
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Rent Control Act, 1958 impugns the order [dated 20 May, 2017 in Eviction
Petition No.253/2017 (Old No.) / 293/2017 (New No.) of the Court of
Additional Rent Controller (ARC), Pilot Court (Central), Tis Hazari Courts,
Delhi] of dismissal of the application filed by the petitioner for leave to
defend the petition for eviction under Section 14 (1)(e) of the Act filed by
the respondents and the consequent order of eviction of the petitioner from
residential flat No.2, First Floor of Property No.1416, Kucha Ustad Hira,
Gali Guliyan, Dariba Kalan, Delhi.
4. The counsel for the petitioner has been heard.
5. The contention of the counsel for the petitioner is that as per the Rent
Note filed by the respondents themselves, besides the petitioner, Sh. Ved
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Prakash, brother of the petitioner is also a tenant in the premises but the
petition for eviction was filed against:
“Sh. Satya Prakash Ved Prakash
Son of Late Sh. Ram Swaroop,
Flat No.2, First Floor, 1416, Kucha Ustad Hira,
Gali Guliyan, Dariba Kalan, Delhi-110006.”
It is contended that the petition for eviction against the petitioner Satya
Prakash alone, without impleading Ved Prakash is bad and the petitioner
ought to have been granted leave to defend on the said ground.
6. I have enquired from the counsel for the petitioner as to on what basis
it is contended that the petition for eviction was against the petitioner Satya
Prakash only when it clearly also mentions the name of Ved Prakash. It has
further been enquired, whether there are any differences between the
petitioner and his brother Ved Prakash.
7. The counsel for the petitioner states that there are no differences
between the petitioner and Ved Prakash and that though the petition has been
filed against “Sh. Satya Prakash Ved Prakash” as aforesaid but only one
summon in the name of “Satya Prakash Ved Prakash” was received and it is
only the petitioner Satya Prakash who has been appearing. It is further
contended that the petition for eviction was filed, as if against a “firm”.
8. Significantly, the petition for eviction, while describing the
respondent, does not use/mention the word „M/s‟ as is often used before
describing a firm‟s name. It is thus only the view of the petitioner that the
respondents have sued in the firm name or have sued only Satya Prakash.
The summons served being in the name of “Satya Prakash Ved Prakash”,
even if only one and not separately in the name of Satya Prakash and Ved
Rc.Rev.No.408/2017 Page 2 of 7
Prakash, if Ved Prakash has chosen not to file leave to defend, he has to
suffer the consequences thereof and it cannot be said that the petition is bad
for non-joinder of necessary parties or that leave to defend ought to have
been granted on this ground. Even otherwise, once the interest of the
petitioner and his brother Ved Prakash is common and the same and it is not
the case that there is any collusion between the petitioner on the one hand
and the respondents on the other hand, the argument of the petition having
not been filed against Ved Prakash, even if was to be accepted, does not
entitle the petitioner to leave to defend. Reference in this regard may be
made to the dicta of the Supreme Court in Surayya Begum Vs. Mohd.
Usman (1991) 3 SCC 114. There is thus no merit in the said ground urged
which is rejected.
10. The counsel for the petitioner has next contended that as per
averments of the respondents in para 18(a) of the petition for eviction i)
Narender Kumar Jain, Sushma Jain, Amit Jain and Arhant Jain had 25%
share each in the property No.1416, Kucha Ustad Hira, Gali Guliyan, Dariba
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Kalan, Delhi-110006; ii) Narender Kumar Jain expired on 3 January, 2001
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and his wife Sushma Jain expired on 25 May, 2006 leaving Amit Jain and
Arhant Jain and two daughters viz. Anubha Jain and Anjana Jain as their
only legal heirs; iii) Anubha Jain and Anjana Jain released / relinquished
their undivided share in the said property in favour of the respondent no.1
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Amit Jain; and, iv) Arhant Jain, vide registered Sale Deed dated 31 January,
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2013, sold his 1/4 undivided share in the property to the respondent no.2
Nidhi Jain who is the wife of respondent no.1 Amit Jain.
11. It is argued that the respondent no.2 Nidhi Jain having acquired title to
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the property only on 31 January, 2013, could not have instituted the petition
Rc.Rev.No.408/2017 Page 3 of 7
for eviction under Section 14(1)( e) of the Act before five years from expiry
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thereof i.e. before 31 January, 2018 and the petition for eviction from which
this petition arises was premature.
12. A petition for eviction under Section 14(1)(e) of the Rent Act can be
instituted by one of the co-owners /co-landlords also as has been consistently
held by the Supreme Court in Sri Ram Pasricha Vs. Jagannath (1976) 4
SCC 184, Kanta Goel Vs. B.P. Pathak (1977) 2 SCC 814, Pal Singh Vs.
Sunder Singh (1989) 1 SCC 444, Dhannalal Vs. Kalawatibai (2002) 6 SCC
16, Indian Umbrella Manufacturing Co. Vs. Bhagabandei Agarwalla
(2004) 3 SCC 178 & Mohinder Prasad Jain Vs. Manohar Lal Jain (2006)
2 SCC 724.
13. The bar of Section 14(6) admittedly does not apply to the respondent
no.1 Amit Jain. Amit Jain could have alone filed the petition for eviction
and the same would have been maintainable. Merely because he has, along
with himself, also impleaded his wife Nidhi Jain qua whom the bar of
Section 14(6) is invoked, would not make the petition for eviction not
maintainable or entitle the petitioner to leave to defend. It is not as if separate
requirements of Amit Jain and Nidhi Jain have been pleaded or that the
petition for eviction against the petitioner is only for the requirement of
Nidhi Jain to whom the bar of Section 14(6) applies.
14. The two respondents as aforesaid are husband and wife and the
requirement pleading which the petition for eviction has been filed is their
joint requirement and even if the petition of respondent no.1 Amit Jain alone
was to be considered, the requirement of his wife Nidhi Jain as a member of
his family would be implicit therein.
14. There is no merit in the said contention also which is rejected.
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15. The third and last contention of the counsel for the petitioner is i) that
the subject property comprised of ground floor, first floor (in tenancy and
occupation of the petitioner) second floor and terrace floor; ii) that the
respondents were earlier residing on the second floor of the said property; iii)
that the respondents have admittedly sold the ground floor, second floor and
terrace floor of the property between the years 2014 and 2016; iv) that the
requirement pleaded of the first floor in the tenancy/occupation of the
petitioner is self-created; v) that the plea of the respondents of now living as
a tenant at a rent of Rs.16,000/- per month in property no.1337 Krishna Gali,
Gali Gulliyan, Dariba Kalan, Delhi-110006 is false and the rent note filed in
support thereof is on a plain paper, not notarized and is undated and without
any witnesses.
16. The respondents, in para 18(a) of the petition for eviction, have
pleaded that the respondent no.1 suffered heavy losses in business and got
into debts and to liquidate the debts was constrained to sell one godown on
ground floor and also second floor in the year 2014 and the third floor in July
2016 and has taken the premises aforesaid on rent from May, 2016 while the
petitioner is now, after statutory enhancement under Section 6A of the Rent
Act, paying rent of Rs.310/- per month only.
17. A perusal of the affidavit accompanying the application for leave to
defend shows the petitioner to have not controverted that the respondent no.1
was carrying on business or had suffered losses therein; though it is pleaded
that the respondent no.1 is a habitual drunkard.
18. Though the petitioner in the leave to defend application denied that the
respondents are living on rent at the rate of Rs. 16,000/- per month but have
not pleaded that the respondents are not residing at the address given or
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in any other capacity. It is not even the plea that the respondents have any
right to the other property where they claim to be residing as tenants.
19. Further though it is argued that the respondents were earlier residing
on the second floor but it is not so stated in the leave to defend application
also. Rather, the leave to defend application is found to have been drafted
like a written statement denying all the contents of the petition for eviction
and putting the respondents to proof thereof.
20. The aforesaid does not constitute disclosing facts as would disentitle
the landlord from an order of eviction under Section 14 (1)(e) of the Act,
within the meaning of Section 25B(5) of the Act. In fact, on an entire reading
of the application for leave to defend, no facts which would disentitle the
respondents from obtaining an order of eviction under Section 14(1)(e) of the
Act, are found to be disclosed. Else, vide Section 25B (4) of the Act, the
petitioner is deemed to have admitted what is pleaded in the petition for
eviction and the respondents therefore become entitled to the order of
eviction.
21. The debts for which the respondents have pleaded to have sold the
ground floor, second floor and third floor of the property on the first floor
whereof the petitioner is a tenant are also not found to have been disputed
and the same would deemed to have been admitted. Once that is so, then the
sale by the respondents of the other portions of the property to pay off the
debts cannot be said to be a self-created paucity of accommodation for which
it can be said that the petition for eviction can be dismissed. The landlord is
always entitled to, as per his/her requirement, deal with his property and
unless anything else is disclosed to show self-created paucity of
accommodation, no leave to defend can be granted on such grounds.
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22. There is thus no merit in the petition and it cannot be said that the
order of learned ARC impugned in this petition is not in accordance with the
law.
Dismissed.
No order as to costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 01, 2017
„gsr‟
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(Corrected & released on 3 October, 2017)
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