Ashok Kumar vs Praveen Kumar Gupta

Reserved on: 06.05.2014 Date of Decision: 10.11.2014

+ RC. REV. No.19 of 2014 & CM No.473 of 2014

ASHOK KUMAR ...... Petitioner Through: Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Rakesh Saini & Mr. Sanjay Dua, Advs.

versus

PRAVEEN KUMAR GUPTA ..... Respondent Through: Mr. Sunil Lalwani, Adv. CORAM: HON‟BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

1. This petition impugns an eviction order dated 15.7.2013 passed by

the Additional Rent Controller (Central) in an eviction petition filed

by the respondent/landlord under Section 14(1)(e) read with Section

25B of the Delhi Rent Control Act, 1958 (hereinafter referred to as

the „DRC Act‟). The landlord had petitioned for vacation of the

premises, being shop No.9813, Ahata Thakur Dass, Sarai Rohilla,

New Rohtak Road, New Delhi (hereinafter referred to as the „suit

premises‟) on the ground that he was unemployed and not gainfully

engaged to earn a living, therefore he required the shop for starting a

general/kirana store in the tenanted premises, particularly, because it

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 1 of 10 is located near the Sarai Rohilla Railway Station which is merely 50

feet away from his residence, hence the tenanted premises would be

eminently suitable for his proposed business. The landlord had

further submitted that he had no other reasonable or suitable

accommodation for his proposed business. His case was that he had

purchased the suit premises from its owner and landlord, Shri K.K.

Jain, along with one Shri Mukesh Sharma by registered Sale Deed

dated 18.1.2006. Later on, he purchased the undivided share of Shri

Mukesh Sharma through a registered Sale Deed dated 31.7.2012.

2. The tenant is admittedly the sole surviving legal heir of one Shri

Desh Raj in a tenancy created prior to 1947. In his leave to defend

application, the tenant had contended that the eviction-petitioner was

neither the owner nor the landlord of the suit premises since he could

not have gained any right in the property from Shri K.K. Jain through

the alleged Sale Deed either in his favour or through Shri Mukesh

Sharma because the property was self-acquired by one Shri Thakur

Dass who bequeathed it to Shri Jahangir Chand without any right to

sell, mortgage or create any charge in the suit premises, therefore, the

alleged sale by Shri Jahangir Chand to Shri K.K. Jain itself was

illegal and in the absence of any right having been transferred

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 2 of 10 legitimately to Shri K.K. Jain, the latter could not transfer or bestow

any better right upon the eviction-petitioner or to Shri Mukesh

Sharma. Additionally, the tenant argued that since the eviction-

petitioner had acquired the undivided share of Shri Mukesh Sharma

only on 31.7.2012, the eviction petition would not be maintainable by

virtue of Section 14(6) of the DRC Act which bars the filing of an

eviction petition on the ground of bona fide need, unless a period of

five (5) years have elapsed from the date of such acquisition. The

tenant further argued that the eviction petition did not disclose the

complete facts of the case inasmuch as the eviction-petitioner‟s wife

owned two properties being property No.9820-A (part), Sarai

Rohilla, Amrik Ganj, Ahahta Thakur Dass, New Rohtak Road, Delhi

admeasuring 64.4 sq.yds and a shop on the ground floor of property

bearing No.9812, Sarai Rohilla, Amrik Ganj, Ahahta Thakur Dass,

New Rohtak Road, Delhi. The tenant had argued that the eviction-

petitioner was already running a general store from the aforesaid

shop and residing on the first floor above it. Additionally, it was

contended that the eviction-petitioner was running a

hotel/restaurant/dhaba from property No.9812, and that the eviction-

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 3 of 10 petitioner was the owner of certain other properties. However, no

details of such other properties were furnished.

3. In reply, the eviction-petitioner had controverted the submissions of

the tenant and submitted that the properties owned by his wife were

occupied by tenants, namely Giriraj and Pawan Kumar. The rent

receipts in original with regard to both the properties were filed.

4. On the issue of right of ownership being transferred to the eviction-

petitioner through J.C. Madhok and Shri K.K. Jain, the Trial Court

was of the view that the tenant had not given any account of the

person, whom he has attorned as the landlord and it was not his case

that he was not a tenant. Relying upon the judicial precedents1, the

Trial Court was of the view that mere denial of ownership is no

denial at all and that such denial would not give a licence to a tenant

to drag on an eviction petition for years in a trial. Furthermore, the

Trial Court was of the view that the law is settled that under Section

14(1) of the DRC Act, a landlord is not supposed to prove absolute

ownership but only that he is more than a tenant. The Trial Court

was of the view that the eviction-petitioner had claimed his

ownership through duly registered sale deeds whereas the tenant had

1 Meenakshi Vs. Ramesh Khanna & Anr. 60 (1995) DLT 524; Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383.

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 4 of 10 shown nothing to substantiate his argument that such a right did not

flow to the eviction-petitioner/landlord; that if at all anyone were to

challenge the said ownership right as claimed by the eviction-

petitioner, it would only be the original owners and/or his legal heirs

and surely not the tenant. Accordingly, the said contention was not

found to be a triable issue.

5. Apropos the constraint of five (5) years as stipulated under Section

14(6) of the DRC Act, the Trial Court was of the view that the bar

would operate only when the landlord becomes an owner of the

property by virtue of a transfer whereas in the present case he had

become a co-owner/landlord of the property in the year 2006 itself

when he became a co-owner with Shri Mukesh Sharma. Therefore, it

was held that the period of five (5) years would start running from

2006 because the subsequent purchase of the undivided share of Shri

Mukesh Sharma merely gave him absolute right of ownership in the

suit premises. The Trial Court was of the view that the eviction-

petitioner had become the landlord apropos the tenant in 2006 itself

along with the co-owner Shri Mukesh Sharma and by the doctrine of

agency, a co-owner could file a suit for eviction of a tenant as he

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 5 of 10 does so, not on his own behalf but in his own right2. The Trial Court,

thus, found that this contention too was not a triable issue.

6. Finally, apropos the issue of suitable alternate accommodation being

available to the petitioner with respect to property Nos. 9820-A

(part), Sarai Rohilla, Amrik Ganj, Ahahta Thakur Dass, New Rohtak

Road, Delhi ad measuring 64.4 sq.yds and a shop on the ground floor

bearing No.9812, Sarai Rohilla, Amrik Ganj, Ahahta Thakur Dass,

New Rohtak Road, Delhi, the Trial Court concluded that the tenant

had failed to file anything on record, not even photographs to show

that the said kirana shop or the dhaba/restaurant as alleged being run

by the eviction-petitioner, whereas rent receipts shown by the

eviction-petitioner showed that the property had been let out by his

wife to the tenants. Therefore, the Trial Court was of the view that

neither of them could be said to be available to the landlord, and that

since the properties owned by the wife of the eviction-petitioner were

already in possession of the tenants, there was no need for the same

to have been mentioned in the eviction petition. The Trial Court

found the tenanted premises suitable for the proposed business and

2 India Umbrella Mfg. Co. v. Bhagabandei Agarwalla (2004) 3 SCC 178

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 6 of 10 concluded that this too was not a triable issue. Accordingly, an

eviction order was passed.

7. Mr. Sanjeev Sindhwani, the learned Senior Advocate appearing for

the petitioner/tenant has reiterated the same arguments as raised

before the Trial Court. In addition, he submits that the bar of Section

14(6) of the DRC Act would be operative in the present case since

the eviction-petitioner had acquired exclusive ownership rights only

on 31.7.2012. In support of his contention, he relied upon a judgment

of the Supreme Court in Sk. Sattar Sk. Mohd. Choudhari v.

Gundappa Amabadas Bukate, AIR 1997 SC 998, in particular para

37 thereof, which reads as under:

"37. In view of the above discussion, it is obvious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co- owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves.

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 7 of 10 Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute."

8. From the paragraph referred to hereinabove and the facts of the case,

it would be evident that the lis related to division of a joint property

between its co-owners to which a tenant could have no objection in

law whereas the present case concerns the eviction of a tenant by a

landlord who becomes the absolute owner of the premises.

9. The relevant Section 14(6) of the DRC Act reads as under:

"14. Protection of tenant against eviction. -

xxxx xxxx xxxx xxxx xxxx

(6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub-section (1), on the ground specified in clause (e) of the proviso thereto, unless a period of five years have elapsed from the date of the acquisition."

Quite clearly, if as a co-sharer of a leased property could file an

eviction petition after years from 2006, surely the co-sharer could not

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 8 of 10 be put in a worse-off position upon his becoming the absolute owner

of the premises in 2012. Such an interpretation would be a clear

absurdity. A co-ownership right which matures into a right for

seeking eviction after a lapse of five (5) years thereafter, under

Section 14(6) of the Act cannot be diminished, simply because the

co-sharer acquires some more right in the interim or becomes the

absolute owner of the leased premises. The statute does not stipulate

any such successive curtailment of the co-sharers or absolute

ownership rights of enjoyment or interest in the property. The

aforesaid stipulation cannot be read as to deprive a landlord from the

beneficial enjoyment of his property which would come about his

way after five (5) years from the initial transfer.

10. The learned counsel for the respondent/landlord has relied upon

Jagdish Chander Gulati v. Ram Chand Lakram, 15 (1991) DLT

660 wherein this Court has held as under:

"6. The legislative intention underlying Section 14(6) is that a landlord who is himself unable to evict a tenant for some reason should be deprived of the temptation of transferring the premises to another person who would not be prevented. Section 14(6) applies only when the person becomes the landlord of the premises in question by virtue of transfer itself. The words used under Section 14(6) are ''has acquired" any premises by transfer. The petitioners have acquired the possession of these premises on 13.1.1978 in part performance of the agreement of sale and since then for all intents and

_______________________________________________________________________ R.C. Rev. No.19 of 2014 Page 9 of 10 purposes the petitioners are in physical possession of the ground floor and barsati and in notional possession of the first floor, which has continued to be in possession of the respondent as a tenant. The language of the Section 14(6) shows that the person must become landlord by acquisition of the premises before this sub-Section can be attracted. It cannot be said that the petitioner became landlord by acquisition of the premises by transfer on 29.12.1986 when the sale deed was executed. He became landlord on 13.1.1978 when the agreement of sale was executed and he got the symbolic possession of the suit premises. In this case there is no escape from the conclusion that Section 14(6) will not stand in the way of the petitioners landlord from asking for recovery of the premises in dispute under Section 14 (l) (e) of the Delhi Rent Control Act. Even otherwise now more than five years have passed when the decree for specific performance and execution of sale deed was passed on 29.9.1983."

11. This Court is of the view that the reasoning for and the conclusion

arrived at in the eviction order is based upon the records and the view

taken is plausible in law. It does not suffer from any material

irregularity.

12. The petition is without any merit and is accordingly dismissed with

costs of Rs.50,000/- to be paid to the respondent within three (3)

weeks from today.

NOVEMBER 10, 2014 NAJMI WAZIRI, J. b'nesh

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