Final Order 7

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. V. K. BANSAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI
RCT No.2/2023
CIS No.DLNE01-002973-2023
In the matter of:
Devraj (since deceased through LRs)
1. Saroj W/o Late Devraj
2. Naresh Kumar S/o Late Devraj
3. Nisha D/o Late Devraj
4. Sonia D/o Devraj
All R/o :
House No.C-60A, gali No.6,
Block-C, Bhajanpura, Delhi-110053.
And also at:
Almirah shop No.6,
Portion of property No.146,
Gali No.6, Bhajanpura, Delhi-110053.
…......... Appellants
Versus
1. Vansh
2. Vibhor
Both Sons of Late Lalit Kumar,
R/o House NO.D-162A, Block-D
Bhajanpura, Delhi-110053.
........Respondents
RCT No.2/23 DEVRAJ (since deceased through LRs) Vs. VANSH & ANR. Page 1/14
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Date of registration of appeal: 04.10.2023
Date when appeal was received by this Court: 04.10.2023
Date of conclusion of arguments: 09.02.2024
Date of pronouncement of order: 24.02.2024
JUDGEMENT:
1) The jurisdiction of this court has been invoked under
section 38 of the Delhi Rent Control Act, in short, Act as the
appellants are aggrieved by order dated 10.07.2023 passed by Ld.
RC in RC/ARC No.7296/2015 titled as “Vansh & Vibhor Vs.
Devraj”. The appeal has been filed by the LRs of Devraj as after
the passing of the order and before the filing of the appeal,
Devraj expired. There is delay in filing the appeal but keeping in
view the facts mentioned in the application as sufficient reason
has been shown, hence, delay in filing of the appeal is condoned.
2) The brief facts necessary for deciding the present appeal
are that the petition was filed by Vansh and Vibhor, hereinafter
referred to as petitioner filed a petition under Section 14 (1) (a)
of the Delhi Rent Control Act seeking eviction, through their
grandfather, as at that time they were minors, alleging that their
late father Lalit Kumar was the owner /landlord of the Almirah
which was rented out to Devraj, hereinafter referred to as
respondent vide rent agreement dated 01.12.2002 at the monthly
rent of Rs.2500/- excluding electricity and other charges. Sh.
Lalit Kumar and his wife, i.e. the parents of the petitioners died
in an accident on 21.04.2007 and after the death of Sh. Lalit
Kumar, they became the landlord of the tenanted premises by
operation of law. The respondent stopped paying rent after the
death of Sh. Lalit Kumar and are in arrears of rent w.e.f.
01.05.2007. A legal demand notice dated 12.08.2014 was sent to
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the respondent which was duly served and they also sent the
reply dated 25.09.2014 but no rent was tendered or paid, hence,
the petition.
3) Notice of the petition was sent to the respondent who filed
the written statement taking preliminary objection that there is no
relationship of landlord and tenant between the petitioners and
the respondent and that the petitioners have never furnished the
ownership documents. Even the deceased father of the petitioners
namely Sh. Lalit Kumar was not the owner of the tenanted shop
which is a mandatory requirement and hence, the petition is not
maintainable. The petitioners have not come to the court with
clean hands and therefore, the petition is liable to be rejected.
4) The respondent has also taken the defence that rent deed
dated 01.12.2002 is unregistered, for a fixed period of 11 months
expiring on 31.10.2003. It also does not bear the signature of
Lalit Kumar and the same cannot be legally termed as rent
agreement. It was also got notarized on 06.01.2013 while the
deed is dated 01.12.2002. Sh. Lalit Kumar never asserted that he
is the owner of the tenanted shop. He himself claimed to be the
landlord. The rent deed is witnessed by one Sh. Ashok Nischal.
5) The petitioners cannot take advantage of presumption
under section 116 of the Indian Evidence Act. Respondent never
dealt with Sh. Lalit Kumar during his lifetime. Rent was paid to
one Sh. Mukesh Kumar closely related to Sh. Lalit Kumar. The
present petition has been filed in collusion with one Ashok
Nischal. It is alleged that taking advantage of demise of Lalit
Kumar, Ashok Nischal projected himself to be the owner of the
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tenanted shop in connivance with the petitioners through their
grandfather and other family members. Since after the demise of
Lalit Kumar, petitioners remained absolutely silent. They never
came forward to claim their ownership or title. This itself is
sufficient to hold that on account of their conduct, omissions,
commissions, waiver and estoppel on the part of the petitioners
that they cannot be now claimed to be the landlord particularly
when Ashok Nishal had claimed himself to be the owner after the
demise of Sh. Lalit Kumar by filing a civil suit no.31/2003
against the wife of the respondent which was dismissed vide
judgment dated 14.07.2014. In reply on merits the details of
tenanted premises and site plan are not disputed. The rate of rent
is denied but not mentioned as to what was the rate of rent.
Service of notice is admitted. There is no averment that they paid
any rent or tendered any rent to petitioner after service of notice.
6) After attaining majority, the petitioners moved an
application and their application was allowed to pursue the case
in their own name by Ld. RC vide order dated 10.07.2023.
7) Petitioner filed rejoinder to the written statement denying
the averments made in the written statement and reasserted the
facts as mentioned in the petition, therefore, the case was fixed
for petitioner evidence.
8) On behalf of the petitioners, Mahender Prakash their
grandfather appeared in the witness box and tendered his
affidavit Ex.PW1/A denying that Ashok Nischal filed a suit
against the wife of the defendant in connivance with them. He
has proved on record the site plan of the tenanted shop as
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Ex.PW1/1, copy of legal demand notice dated 12.08.2014 are
proved as Ex.PW1/2 and Ex.PW1/3, postal receipts are proved as
Ex.PW1/4 and Ex.PW1/5 though in the affidavit the same are
referred as Ex.PW1/5 and Ex.PW1/6, copy of rent agreement is
proved as Mark A, copy of the civil suit filed by the respondent
titled as “Devraj Vs. Lalit Kumar & Anr.” is proved as Mark B,
copy of written statement filed by the respondent in civil suit
bearing no.31/2008 titled as “Ashok Nischal Vs. Saroj” as Mark
C, copy of ration card of petitioner as Mark D and copy of death
certificate of Neeru and Lalit Kumar as Mark E and F.
9) During cross-examination by ld. Counsel for respondent,
he admitted that he has no document to show that Lalit Kumar
was the owner of the suit property. He stated that Lailt Kumar
was working under a Charted Accountant where he kept the
documents of his property. After the death of Lalit Kumar, he
went to find those documents to his employer but he refused to
hand over the same to him. He admitted that he did not lodge any
complaint regarding missing or withholding the documents by
the employer of Lalit Kumar. He stated that his wife had already
died 5-6 years back but after the filing of present petition. He
stated that they had received the summons of the suit filed by
Devraj against Lalit Kumar and Ashok Nischal but they refused
to receive the summons as by that time his son Lalit Kumar had
died. He does not know anybody by the name of Ashok Nischal.
He admitted that the rent agreement Mark A does not bear the
signature of his son Lalit Kumar. He does not know where and by
whom the said document Mark A was prepared and executed as
he was not present at that time of execution of the document but
he can say that the document was executed between Devraj and
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Lalit Kumar. He denied the suggestion that Mark D to Mark F are
forged and fabricated. He admitted that he cannot produce the
original of Mark D i.e. rent agreement, however, he can produce
the documents Mark E and Mark F. He does not remember the
date when he received the copies of Mark B i.e. suit filed by the
respondent against Lalit Kumar and Ors. and Mark C i.e. the
written statement filed by the wife of respondent in civil suit
no.31/2008, however, the the same was obtained by his counsel.
10) Further cross examination was deferred on the request of
ld. Counsel for the respondent but after that he could not be
examined as he expired and the counsel for petitioners closed the
evidence. Case was fixed for the evidence of the respondent.
11) Respondent himself appeared in the witness box and
tendered his affidavit Ex.RW1/A in evidence reaffirming and
reasserting the facts as mentioned in the written statement.
12) During the cross-examination he admitted that in they year
2002, he entered into an agreement with Lalit Kumar and he took
the tenanted shop on rent from him. He does not remember
where he signed the agreement with Lalit Kumar. The maternal
uncle of Lalit Kumar used to collect rent on behalf of Lalit
Kumar. The document Mark A is not the agreement vide which
he had entered into tenancy with Lalit Kumar.
13) He admitted that he filed a civil suit against Lalit Kumar.
He does not remember if Ashok Nischal is a party in that suit. He
does not remember if Mark B is the copy of that suit filed by him
against Lalit Kumar. He does not know if Ashok Nischal filed
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any suit against his wife Saroj. He stated that he had not deposed
as a witness in the suit filed by Ashok Nischal against his wife
Saroj. He is not having the copy of the rent agreement vide which
he entered into tenancy with Lalit Kumar in the year 2002. He
admitted that the suit filed by him against Lalit Kumar in the year
2007 was withdrawn by him. He does not remember as to why he
withdrew the same. He admitted that he has the knowledge that
Lalit Kumar has expired but he does not know when he expired.
After the death of Lalit Kumar, Mama of Lalit Kumar took the
rent from him once or twice but thereafter, he stopped coming to
collect the rent. He had not paid rent to the legal heirs of Lalit
Kumar as he does not know their address or about his legal heirs.
He does not know whether he had mentioned the residential
address of Lalit Kumar in the suit filed by him against Lalit
Kumar in the year 2007. He does not know how many legal
heirs, Lalit Kumar had left and what are their names. He even did
not try to find out legal heirs of Lalit Kumar. The certified copy
of his examination which is Mark C is shown to the witness
which he admitted. The certified copy of judgment passed in the
suit filed by Ashok Nischal against his wife is also shown to him
which he has admitted and same is Mark D. The certified copy of
documents filed by his wife in the case titled as “Ashok Nischal
Vs. Smt. Saroj” are Mark F and the certified copy of affidavit
filed by his wife in evidence in the suit is Mark G. He admitted
that documents Ex.RW1/X1 bears his signature at point A and A.
He denied the suggestion that he mentioned the address of Lalit
Kumar when he filed the suit. He denied the suggestion that he
knew the address when he filed the suit. He denied the
suggestion that he knew the address of Lalit Kumar and that is
why the address was mentioned in the Mark F. He has not filed
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any petition for depositing the rent since the day he was tenant in
the premises. Thereafter, he closed the evidence.
14) Ld. RC after hearing the arguments passed the order which
is under challenge in the present appeal.
15) Notice of appeal was sent to the respondents and they put
appearance. The Trial Court record was requisitioned.
16) I have heard ld. Counsel for the appellant, ld. Counsel for
the respondent and perused the record.
17) Ld. Counsel for the appellants submitted that the impugned
judgment is bad in law and the Ld. RC has picked up the
pleadings as per his own convenience without reading the
pleadings as a whole. It is further submitted that the impugned
order is bad in law as the law of estoppel has been wrongly
applied by Ld. RC in the facts and circumstances of the present
case. The Law of estoppel, at the best can be made applicable
between appellant and Lalit Kumar but the same cannot be
extended in case of respondent and the petitioners, who are
claiming the derivative title but there is no document to
authenticate or establish biological relationship between the
petitioners and Lalit Kumar or any document executed by Lalit
Kumar in their favour but the Trial court has appreciated the
same. There is no document on record to establish their
relationship with Lalit Kumar.
18) The Trial court has also failed to appreciate that once the
petitioners were allowed to file the petition through their
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grandfather under Order 32 CPC and when they have attained
majority they should have approached the court and expressed
their consent or affirmation for continuance of the petition which
was not moved. Ld. Counsel for the appellant submitted that
infact after the death of next friend the petitioners did not turn up
to continue with the petition or lead any evidence inspite of the
fact that cross-examination of next friend was not concluded
which was deferred on 19.03.2019 and remained incomplete. Ld.
Counsel further submitted that substantial question of law arises
in this appeal as the trial court has not considered the entire facts
in right perspective and the findings arrived at are also against
the established law.
19) Ld. Counsel for the appellant further submitted that in this
case Ashok Nischal has also filed a civil suit and the petitioners/
respondent despite coming to know about the facts being the real
person behind all these proceedings have not made any effort or
filed any suit for recovery. Ld. Counsel further submitted that
there is no relationship of landlord and tenant between the
parties. The trial court has also considered this fact and that is
why order under section 15 (4) of DRC Act was passed.
20) Ld. Counsel for the appellant further submitted that as the
petitioners are not the landlord, hence, the question of payment
of rent does not arise and any legal demand notice dated
12.08.2014 issued by them is of no consequence. It is prayed that
all these facts raises question of law and therefore, appeal is
maintainable. It is submitted that the Trial court has not
considered the facts and law, hence, the impugned order be set
aside.
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21) Ld. Counsel for the respondent submitted that in this case
admittedly the respondent has taken the premises on rent from
Lalit Kumar. He also admitted that Lalit Kumar had died. The
death certificate of Lalit Kumar has been placed on record
though the respondents claim that it is forged one but when the
respondent appeared in the witness box, he admitted that Lalit
Kumar had died. Ld. Counsel for the respondent submitted that
infact both Lalit Kumar and his wife expired on the same date in
an accident as is evident from document Mark E and Mark F.
They were survived by their sons who are the petitioners herein.
Ld. Counsel for the respondent submitted that now they dispute
that petitioners are not the sons of Lalit Kumar. But in the written
statement in preliminary objections itself it is mentioned that:
“the petitioners never conveyed or furnished a copy
of the ownership documents to the respondent, nor any
intimation regarding ownership by any means furnished to the
respondent. Similarly, even the deceased father of the petitioners
namely Lalit kumar was also not the owner of tenanted
shop/Almirah. Their deceased father did not hold any title for
tenanted shop/ Almirah, therefore, for want of mandatory
requirement, the present petition is not maintainable on this
ground itself”.
22) Ld. Counsel submitted that from this itself, it is clearly
admitted that the petitioners are sons of deceased Lalit Kumar.
Ld. Counsel for the respondent submitted that respondent when
appeared in the witness box admitted that in the year 2002, he
has entered into the agreement with Lalit Kumar and as per that
agreement, he had taken that tenanted shop on rent from Lalit
RCT No.2/23 DEVRAJ (since deceased through LRs) Vs. VANSH & ANR. Page 10/14
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Kumar. Ld. Counsel further submitted that once it is admitted
that Lalit Kumar is the landlord and that the petitioners herein are
the sons of Lalit Kumar, therefore, it is established that
petitioners are the landlords and the appellants herein cannot be
allowed to say that the petitioners are not the landlords.
23) Ld. Counsel for the respondent submitted that the Trial
court has rightly held that there is a relationship of landlord and
tenant between the parties. Service of legal demand notice is
admitted. It is also admitted that after the death of Lalit Kumar,
he has never paid any rent except that once or twice the rent has
been collected by the maternal uncle of deceased Lalit Kumar.
He has not even deposited any rent in any court. He claimed that
he was not knowing the address of Lalit Kumar. Ld. Counsel for
the respondent submitted that in the rent agreement itself which
is Ex.RW1/X2 the address of Lalit Kumar is mentioned,
therefore, he cannot say that he was not knowing the address. Ld.
Counsel for the respondent further submitted that even in the suit
filed by him against Lalit Kumar, certified copy of which is
placed on record, the address was mentioned which is also
corroborated when the counsel for the respondent asked PW1 as
to whether he had received the summons of the suit filed by
Devraj against Lalit Kumar and Ashok Nischal marked as Mark
B which shows that they had the knowledge and that is why the
summons were sent to Lalit Kumar as per Mark B wherein the
address of Lalit kumar is mentioned as resident of D-162A,
Block D, Bhajanpura, Delhi-110053, despite that he has not paid
or tendered the rent. Infact he is taking a false defence that he
was not knowing the address of the landlord Sh. Lalit Kumar.
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24) Ld. Counsel further submitted that the relationship is
admitted in this case and it has also been observed in the
judgment passed in the case titled “Ashok Nischal Vs. Saroj”,
certified copy of which is already on file as Mark D wherein it is
held by the court that:
“on the contrary defendant has proved on record that her
husband was inducted as a tenant in the suit almirah by Lalit
Kumar through his relative on monthly rent of Rs.2500/- per
month”.
25) Ld. Counsel further submitted that the said order has
become final and not challenged by the respondent or his wife.
Now therefore, they cannot be allowed to say that they are not
the tenants at the rate of Rs.2500/- per month under Lalit Kumar.
Ld. Counsel further submitted that rate of rent is also established
in that judgment itself. Trial court has considered all these facts.
So far as testimony of PW1 is concerned, he could not be cross
examined thereafter because he expired and law is well settled
that after a witness is expired still his statement can be looked
into. He has categorically stated that respondent is a tenant under
his son. Rent agreement is proved on which respondent has
admitted his signatures. Rate of rent is admitted. Relationship of
landlord and tenant is also admitted. Now he cannot be allowed
to say that they are not the sons of Late Sh. Lalit Kumar and
prayed that there is no merit in the appeal and same be dismissed.
26) After hearing the arguments, I found that though the ld.
Counsel for the appellant vehemently argued that petitioners are
not the sons of Lalit Kumar but in the written statement it has
been mentioned that Lalit Kumar was their father, hence, they
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cannot be permitted to argue that they are not the sons of Lalit
Kumar. They also alleged that Lalit Kumar who rented out the
tenanted shop was not the owner but it is settled law that in the
eviction petition under section 14 (1) (a) or for that purpose for
the eviction of tenant from the tenanted premises covered by the
Act, ownership is not required to be established. The only
requirement is relationship of landlord and tenant between the
parties which is there in this case also. The Trial court has rightly
reached to the conclusion on the basis of admission and also the
finding by the court of Ld. ADJ, Sh. Pitamber Dutt in civil suit
No.31/08 titled “Ashok Nischal Vs. Saroj” which is also referred
to by the respondent in his written statement and mentioned that
the same was dismissed vide order dated 14.07.2014. In that
judgment, Ld. ADJ in para no.38 has specifically held that the
defendant has proved on record that her husband was inducted as
tenant on the shop by Lalit Kumar through his relative at the
monthly rent of Rs.2500/- per month. It is pertinent to mention
here that the defendant in that case is Saroj who is the wife of the
respondent herein is now one of the appellant being the legal heir
of the deceased respondent.
27) So far as rate of rent is concerned, it is mentioned that in
the petition the rate of rent was Rs.2500/-. Even in the rent
agreement it was for 11 months proved on record as Ex.RW1/X2.
The rate of rent is mentioned as Rs.2500/-. Even otherwise
respondent/ appellants does not dispute the same. Admittedly,
since the demise of Lalit Kumar they have not paid any rent.
They had even did not deposit any rent. They have even not
attempted to pay the rent to the legal heirs of Lalit Kumar.
Keeping in view all these facts, in my opinion, the Trial court has
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rightly decided all the facts and rightly reached to the conclusion
that the petitioners i.e. respondents herein are the landlord after
the demise of Lalit Kumar and the respondent in the original
petition i.e. his legal heirs who are the appellants herein are the
tenant at the rate of Rs.2500/-. I do not find any merit in the
appeal, the same is dismissed.
28) Copy of the order alongwith Trial court record be sent back
to the Ld. Trial court. Ld. Trial court shall moved further as per
the judgment.
29) File be consigned to Record Room.
ANNOUNCED IN THE OPEN
COURT ON 24th FEBRUARY, 2024
(V. K. BANSAL)
PRINCIPAL DISTRICT AND SESSIONS JUDGE
NORTH EAST DISTRICT
KARKARDOOMA COURTS, DELHI
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