Smt Raj Kumari Bansal & Anr. v. Sh Gurcharan Singh & Ors.

14. Thus, the Impugned Order has found three grounds on which the leave to defend Application was allowed.

15. So far as concerns the second issue that the names of the other coowners were not disclosed in the Eviction Petition is concerned, the finding of the learned Trial Court in this regard is clearly against the law. The law on this aspect is well settled. The Supreme Court in India Umbrella Manufacturing v. Bhagabandei Agarwalla (Dead) by L.R.s Savitri Agarwalla (Smt) and Others[4]; has held 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. The relevant extract of the India Umbrella case is reproduced below:

adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law.”

16. Concededly, there is also no document to show that any co-owner has withdrawn their consent, thus there is no question of any examination to be conducted on this aspect. The Respondents/tenants have been unable to show any objection from the other co-owners of the subject premises. There is thus no requirement for the Petitioners/landlords to prove their coownership in view of the settled law. In view thereof, this contention of the Respondents/tenants cannot be sustained.

17. The other triable issue that has been found by the learned Trial Court is in respect of Shop Nos. 19 and 20, as whether these shops are in the possession of the Petitioners/landlords and are available as alternate accommodation.

18. In this regard, the learned Counsel for the Petitioners/landlords drew the attention of the Court to the Application for leave to defend filed by the Contesting Respondents/tenants as well as to paragraph 10(2) of the Impugned Order to submit that the learned Trial Court has itself recorded, based on the leave to defend Application filed, that Shops Nos.19 and 20 are tenanted. The relevant extract of the Impugned Order referenced is set out below: “(2) Further, it is stated by the respondents that there are premises bearing no. 19, 20 and 21, Church Mission Road, Fatehpuri, Chandni Chowk, Delhi-110006, which are under the ownership of partner and/or with M/s Haryana Paneer Bhandar, out of which premises bearing no. 19 & 20, Church Mission Road, Fateh Puri, Chandni Chowk, Delhi-110006 is with M/s Garhwal Paneer Bhandar and has been rented out by M/s. Haryana Paneer Bhandar, which is next to the premises of M/s Haryana Paneer Bhandar and shop no. 21 is being owned by partners of M/s Haryana Paneer Bhandar and the same is vacant but has been concealed by the petitioners. Per contra, it is submitted by the petitioners that the alleged shop, i.e. small space of shop no. 21 is converted into entrance for shops NO. 16, 17 & 18 of M/s Haryana Paneer Bhandar.” 18.[1] To fructify its submission, the learned Counsel for the Petitioners/landlords also relies upon paragraph 17C(i) of the leave to defend Application filed by the Respondents/tenants which reiterates the same and is set out below: “17C. …

(i) M/s Haryana Paneeer Bhandar, a partnership business with partners Smt. Raj Kumari Bansal, Shri Vikas Bansal, Shri Prashant Bansal and Shri Ashish Bansal, manufacturing and trading Paneer, Khoya, Namkeen and Sweets presently from Shop No.14, Church Mission Road, Fateh Puri, Chandni Chowk Delhi- 110006 and from properties bearing No. 16, 17 and 18, Church Mission Road, Fateh Puri, Chandni Chowk Delhi-110006, which is under the tenancy of Shri Vikas Bansal. The said M/s Haryana Paneer Bhandar is allegedly working from premises bearing No.14, Church Mission Road, Fateh Puri, Chandni Chowk Delhi- 110006 and premises bearing No.16, 17 and 18, Church Mission Road, Fateh Puri, Chandni Chowk Delhi-110006 as per the Partnership Deed dated 1st October, 2013 but the Petitioners have very conveniently suppressed and concealed the factum that other than these. there are three more premises bearing No.19, 20 and 21, Church Mission Road, Fateh Puri, Chandni Chowk other than these there are three more premises bearing No.19, 20 and 21, Church Mission Road, Fateh Puri, Chandni Chowk Delhi- 110006 which are under the ownership of partners and/or with M/s Haryana Paneer Bhandar. At present premises bearing No.19 and 20, Church Mission Road, Fateh Puri, Chandni Chowk Delhi-110006 is with M/s Garhwal Paneer Bhandar and has been rented out by M/s Haryana Paneer Bhandar, which is next to the premises of M/s Haryana Paneer Bhandar. Similarly, the Petitioners have conveniently concealed the existence of Shop No.21, Church Mission Road, Fateh Puri, Chandni Chowk Delhi- 110006 which is owned by the partners of M/s Haryana Paneer Bhandar.”

19. Clearly, once again the learned Trial Court has erred in recording the finding above that the Petitioners/landlords have not mentioned anything with regard to these shops. In addition, once the Respondents/tenants admit that the shops are tenanted, there is no question of these shops being available. Thus, no issue on availability of alternate suitable accommodation with the Petitioners/landlords is there. On this aspect as well, the Impugned Order is infirm.

20. Thus, the only issue that remains to be examined is the first issue, which is whether the learned Trial Court has rightly found that the issue of landlord-tenant relationship is under challenge and requires trial. 20.[1] Learned Counsel for the Contesting Respondents/tenants has vociferously urged the Court that once the Petitioners/landlords have denied the fact that the Contesting Respondents/tenants are their tenants, this aspect would require to be adjudicated by the Court through a trial. Learned Counsel for the Contesting Respondents/tenants has submitted that in view of the denial, a triable issue arose which requires adjudication.

21. The record shows that the Contesting Respondents/tenants in their Application under Order I Rule 10 CPC state that the subject premises was taken by Shri S. Jagjit Singh from its owners in 1947 “after the owners left for Pakistan” and in the same year, then he started his restaurant in partnership with some other persons. It is further stated therein that originally, an eviction petition captioned Prabha Singh vs. Jagjit Singh in Suit no. 95/1966 was filed by the erstwhile owner of the subject premises, one Shri Prabha Singh before the Ld. ARC, Tis Hazari Courts, Delhi [hereinafter referred to as ‘Original Tenancy Petition’]. This Petition was filed against the tenant at that time Shri S. Jagjit Singh on the ground of nonpayment of rent and subletting of the subject premises. It is further stated therein that a suit for injunction captioned Jagdish Singh and Others vs. Joginder Singh had been filed before the Ld. Civil Judge, Delhi [hereinafter referred to as ‘Injunction Suit’] by the said Shri S. Jagjit Singh against Shri Prabha Singh. It is further stated that later the proceedings in the Injunction Suit resulted in compromise between the legal heirs of Shri Prabha Singh and the Contesting Respondents/tenants. Thus, the claim of the Contesting Respondents/tenants qua tenancy/sub-tenancy is based on a compromise deed entered into between the predecessor-in-interest of the Petitioners/landlords and the Contesting Respondents/tenants. 21.[1] The Compromise deed records the consensus of the parties to the Injunction Suit, that the erstwhile owner of the subject premises will implead the Contesting Respondents/tenants (Plaintiff in the Injunction Suit) to any suit/proceedings that the erstwhile owner may file in respect of the property against some other persons.

22. The Petitioners/landlords have contended that a compromise between the predecessors-in-interest of the Petitioners/landlords and the Contesting Respondents/tenants can only bind the parties entering into the compromise. This Court agrees. The Petitioners/landlords admittedly were not a party to this compromise deed. No other document has been shown to this Court to bind the Petitioners/landlords to the comprise either. Thus, the Petitioners/landlords cannot be bound by its contents. However, as discussed hereafter, this aspect would, in any event, not come to the rescue of the Contesting Respondents/tenants.

23. As stated above, the learned Trial Court has already given a finding of ownership in favour of the Petitioners/landlords. 23.[1] This Court has examined the order passed in Original Tenancy Petition which, as stated above, was filed by the erstwhile owner of the subject premises against the predecessor-in-interest of the Respondents including the Contesting Respondents/tenants. Learned ARC gave a finding that the subject premises have been sublet to third parties, however without the consent of the landlord.

24. The rights of the Contesting Respondents/tenants in the subject premises have to be examined from the point of view of the relevant provisions of the DRC Act. Section 25 of the DRC Act sets out that an order of eviction is binding on all persons in occupation of premises, subject to the provisions of Section 18 of the DRC Act. The proviso of Section 25 of DRC Act states that the Section is inapplicable in the event that the person has an independent title to such premises. It is apposite to extract Section 25 of the DRC Act below:

an independent title to such premises.” [Emphasis supplied]

25. Sections 17 and 18 of the DRC Act were enacted for the protection of genuine sub-tenants, who obtained the consent of the landlord for such subtenancy. The legislature wanted to prevent persons who had been inducted by a tenant, by not following the procedure as is prescribed in these provisions, from being accorded protection under the DRC Act. 25.[1] Section 17 of the DRC Act sets forth that where a premises is sublet by a tenant with the consent of the landlord, a notice in the prescribed form is required to be given to the landlord of the creation of a sub-tenancy. This notice is to be given within one month of creation of the sub-tenancy. Similarly, when such subtenancy is terminated, the notice of termination of the sub-tenancy is also required to be given within one month thereof. Section 17(1) of the DRC Act is extracted below: “17. Notice of creation and termination of sub-tenancy- (1) Where, after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the subtenant to whom the premises are sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such sub-tenancy within one month of such termination.” 25.[2] The DRC Act, thus, provides for a two-step mechanism for creation of a sub-tenancy:

(i) Prior consent of the landlord in writing; and

(ii) A notice of creation of the sub-tenancy within one month of date of the sub-letting, in the format as prescribed under the DRC Act. 25.[3] Sub-section (1) of Section 18 of the DRC Act, on the other hand, states that where an order for eviction is made against a tenant but not against a sub-tenant, as referred to in Section 17 of the DRC Act, the subtenant shall be deemed to be a tenant holding directly under landlord and on the same terms and conditions, if the tenancy had continued. This provision is, however, only applicable where notice of creation of a sub-tenancy has been sent to the landlord in the manner as prescribed in Section 17(1) of the DRC Act. 25.[4] For ease of reference, Section 18(1) of the DRC Act is extracted below: “18. Sub-tenant to be tenant in certain cases- (1) Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a subtenant referred to in section 17 and a notice of the subtenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.”

26. A plain reading of the aforesaid provision shows that an order for eviction and recovery of possession under Section 14 of the DRC Act is binding on all persons who are in occupation of a premises, the only exceptions being a person who has an independent title to the premises or where a sub-tenant is a lawful sub-tenant in terms of Section 17 of the DRC Act, being in authorised possession of the tenanted premises. 26.[1] Undisputably, the provisions of Sections 17 and 18 of the DRC Act have not been complied with. Thus, Contesting Respondents/tenants are not authorised sub-tenants under the DRC Act and in terms of the provisions of Section 25 of the DRC Act and an Eviction order would be binding on them as well.

27. In addition, learned Counsel for the Petitioners/landlords has placed reliance on judgment of a Coordinate Bench of this Court in Garg Trading Co. v. Vijay Mehra & Ors.[5] to submit that the Contesting Respondents/tenants have not filed the leave to defend Application in the capacity of a sub-tenant but have filed the Application under Section 25- B(4) and 25-B(5) of the DRC Act in their individual capacity as tenants. Paragraph 12 of the leave to defend Application shows that the Contesting Respondents/tenants have stated that they are the tenants in the subject premises along with other tenants i.e., Respondent/tenant Nos.[1] to 5. Paragraph 12 of the leave to defend Application is set out below: “12. It is thus clear that the Answering Respondents alongwith other Respondents are the tenants as per the pronouncements passed by the courts competent in this regard with the erstwhile owners of the tenanted premises.”

28. Once the Contesting Respondents/tenants have admitted to being tenants in their leave to defend Application, there is no issue which would require a trial. The finding in the Impugned Order on this aspect is thus infirm as well.

29. As stated above, the Impugned Order gives only three findings:

(i) triable issue qua landlord-tenant relationship;

(ii) triable issue qua not impleading other co-owners; and

(iii) availability of alternate accommodation being Shops

30. In order to make out a case under Section 14(1)(e) read with Section 25B of the DRC Act, the landlord is required to prima facie show the following:

(i) Existence of landlord/tenant relationship;

(ii) Existence of bona fide need on the part of the landlord and;

(iii) Non-availability of reasonable suitable alternative accommodation with the landlord. 30.[1] In the present case, the ownership has already been found to be in favour of the Petitioners/landlords. The landlord-tenant relationship also does not require any adjudication since the Contesting Respondents have admitted tenancy. In addition since Respondent/tenant Nos.[1] to 5 did not file the leave to defend Application within the prescribed period of time, the eviction is deemed to be admitted qua them.

31. On the bonafide need, the need as set out in the Eviction Petition by the Petitioners/landlords, is for a business for the son of the Petitioner/tenant No.2. The need cannot be said to be fanciful or not genuine. On the bonafide requirement, the learned Trial Court has only found the need not to be bonafide in view of the fact that the other co-owners have not been impleaded. This finding is clearly against the settled law. The Supreme Court has held in the case of Adil Jamshed Frenchman v. Sardar Dastur Schools Trust[6], has held that the landlord is only required to show that the requirement for the subject premises is a bona fide requirement and not merely a whimsical or a fanciful desire by the landlord. The relevant extract of the Adil Jamshed Frenchman case is reproduced below: “8. The decree of the trial court is based on the landlords' bona fide requirement of the accommodation. In appeal, the question before the court for adjudication was whether the trial court was justified in passing the decree in favour of the landlords on the ground of bona fide need and the tenants obviously were within their rights to show that the need of the landlords was not genuine. The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of the landlords. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath v. Pooran Lal [(2001) 5 SCC 705] this Court reiterated that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.”

32. On the availability of alternate suitable accommodation, the Petitioners/landlords had, in its Eviction Petition, disclosed that they have other alternate accommodations, however, each of these accommodations have been dealt with in the Impugned Order and the learned Trial Court has found these accommodations are either not available or sold or tenanted by the Petitioners/landlords. The learned Trial Court had discussed all these accommodations and raised a triable issue qua Shops Nos.19 and 20 alone which, as discussed above, are admittedly tenanted and thus not available.

33. The Impugned Order has been challenged by the Petitioners/landlords on the findings above. The jurisdiction of this Court is only revisionary in nature and limited in scope. The Supreme Court in Abid-Ul-Islam v. Inder Sain Dua[7] case while interpreting the intendment of the legislature in removing two stages of Appeal that were earlier provided in the Act has held that this is a conscious omission. It was held that the High Court is not expected to substitute and supplant its view with that of the learned Trial Court, its only role is to satisfy itself on the process adopted. Thus, the scope of revisionary jurisdiction of this Court has been limited to examine if there is an error apparent on the face of the record or absence of any adjudication by the learned Trial Court, and it is only then should the High Court interfere. The Supreme Court has also cautioned from converting the power of superintendence into that of a regular first Appeal under revisionary jurisdiction. This has been elucidated at length by Supreme Court in Abid- Ul-Islam case in the following manner:

power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature. xxx xxx xxx xxx xxx

25. The aforesaid decision has been recently considered and approved by this Court in Mohd. Inam v. Sanjay Kumar Singhal [Mohd. Inam v. Sanjay Kumar Singhal, (2020) 7 SCC 327: (2020) 4 SCC (Civ) 107]: (SCC pp. 340-41, paras 22-23) “22. This Court in Sarla Ahuja v. United India Insurance Co. Ltd. [Sarla Ahuja v. United India Insurance Co. Ltd., (1998) 8 SCC 119] had an occasion to consider the scope of proviso to Section 25-B(8) of the Delhi Rent Control Act, 1958. This Court found, that though the word “revision” was not employed in the said proviso, from the language used therein, the legislative intent was clear that the power conferred was revisional power. This Court observed thus: (SCC p. 124, para 11) ‘11. The learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the factfinding court is wholly unreasonable.’ It could thus be seen, that this Court has held, that the High Court while exercising the revisional powers under the Delhi Rent Control Act, 1958 though could not reassess and reappraise the evidence, as if it was exercising appellate jurisdiction, however, it was empowered to reappraise the evidence for the limited purpose so as to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable...”

34. The examination by this Court has shown that the findings of the Impugned Order are not in accordance with law and are accordingly set aside. As discussed above, the Petitioners/landlords have satisfied all three ingredients under Section 14(1)(e) of the DRC Act. Resultantly, the Eviction Petition filed by the Petitioners/landlords is allowed.

35. However, as set out in Section 14(7) of the DRC Act, the Contesting Respondents/tenants shall be granted a period of six months from the date of this order to vacate the subject premises.