Full Text
HIGH COURT OF DELHI
RC.REV. 44/2023 & CM APPLs. 7215-16/2023
SUBHASH CHANDRA RASWANT ...... Petitioners
Through: Mr. Sudhir Nandrajog, Senior Advocate, with Ms Payal Jain, Advocate
Through: Mr. Sanjeev Sindhwani, Senior Advocate with Mr. Sachin Bandooni, Advocate.
JUDGMENT
1. This eviction petition has been filed by the Petitioner, tenant, assailing the eviction order dated 17.08.2022 passed by the Rent Controller, East District, Karkardooma Courts, Delhi (‘Trial Court’), whereby the Petitioner’s application seeking leave to defend was dismissed and the eviction order was passed with respect to Shop No. 2 in Property No. K-3, Laxmi Nagar, Main Market, Opposite State Bank Patiala, New Delhi – 110092 (‘tenanted premises’).
2. The eviction petition has been filed by the Respondent herein, landlord, under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (‘DRC Act’) for the bona fide need of his elder son, Sh. Vishwajit Barua, who wants to start his business of fast-food restaurant. It is stated in the eviction petition that the Respondent herein is the owner of property No. K- 3, Laxmi Nagar, Main Market, Opposite State Bank Patiala, New Delhi – 110092 (‘subject building’), wherein the tenanted premises are located. It is stated that the Respondent herein does not have any suitable alternate accommodation except the tenanted premises, for the bona fide need of the elder son.
3. The Petitioner herein filed his leave to defend application under Section 25B(5) of the DRC Act, claiming to be the legal owner of the tenanted premises by way of an unregistered Agreement to Sell (‘ATS’) dated 06.07.1982. It is stated that the Respondent’s father, Sh. J. B. Barua, in the year 1982, executed the said ATS with the Petitioner for a total consideration of ₹ 1,10,000/-. It is stated that in view of the said ATS, there is no landlord-tenant relationship between the parties. Arguments of the Petitioner, tenant
4. Mr. Sudhir Nandrajog, the learned senior counsel for the Petitioner states that the Petitioner herein is protected from eviction in view of Section 53A of the Transfer of Property Act, 1882 (‘TPA’).
4.1. In this regard, he relies upon the unregistered ATS dated 06.07.1982 placed on record as Annexure P-3 and more specifically, the recital therein to the effect that the total sale consideration for the tenanted premises was reserved at ₹ 1,10,000/- and a sum of ₹ 81,000/- already stands paid to Respondent’s mother (the recorded owner) as detailed at paragraph Nos. 1 and 2 of the said ATS. He further relies upon the receipt dated 25.07.1988, to aver that a further sum of ₹ 10,000/- was paid to the Respondent’s father i.e., Sh. J. B. Barua towards the outstanding sale consideration.
4.2. He also relies on the fact that the Petitioner herein had applied for an electricity connection in the year 1988, on the basis of the ATS and obtained an electricity connection. In this regard, he relies upon a document dated 28.10.1988 filed with the electrical supply company; and states that the aforesaid shows that the Petitioner herein held himself out to be an owner to third parties after execution of the ATS. He also relies upon the fact that the Petitioner herein has paid conversion charges to the Municipal Corporation of Delhi (‘MCD’).
4.3. He states that the Respondent herein had earlier as well filed an eviction petition under Section 14(1)(a), (c), (e) and (j) of the DRC Act, which was withdrawn by the Respondent vide order dated 19.09.2016. He states that subsequently the Respondent herein had filed this eviction petition on 04.10.2016. He states that in view of the adversarial action of the Respondents in disputing the proprietary rights of the Petitioner herein, the said Petitioner has filed a civil suit bearing no. 9982/2016 (‘civil suit’) for specific performance of the ATS, on 03.11.2016, which is pending before the Civil Court. He states that issues have been framed in the said civil suit.
4.4. He has placed reliance on the judgment passed by this Court in Ran Singh v. Lilu Ram (Deceased) Thr. Lrs., 2018 SCC OnLine Del 6783, wherein the Court in similar facts had granted leave to defend and the matter was remanded back to the Rent Controller for trial.
4.5. He states that grave prejudice will be caused to the Petitioner if he is evicted from the tenanted premises during the pendency of the civil suit and therefore, his possession in the tenanted premises needs to be protected. In this regard, he has relied upon the judgment passed by a Division Bench of this Court in Jai Singh Rana v. Mohinder Mohan Goel, 1994 SCC OnLine Del 622, wherein the Division Bench at paragraph no. 6 (2) has held as under:
4.6. To a query from this Court, the learned senior counsel for the Petitioner fairly admits that the Petitioner continued to pay the rent for the tenanted premises even after the execution of the ATS, to the Respondent’s mother and the Respondent herein. He states that however, the payment of the rent is of no consequence in view of clause 3 of the ATS, which reads as under: “The second party only has to pay balance amount of Rs. 29,000 to the second party in future and second party will continue to pay rent for remaining portion till the payment of balance amount.” He states that the rent was being tendered towards the undivided portion of the tenanted premises proportionate to the unpaid sale consideration.
4.7. No other arguments were addressed by the learned senior counsel for the Petitioner. Arguments of the Respondent, landlord
5. In reply, Mr. Sanjeev Sindhwani, the learned senior counsel for the Respondent states that the Petitioner, tenant, has sought to set up a fresh plea of possession in part performance of Section 53A of TPA. He states that no such plea was raised before the Trial Court and it was never alleged that the tenancy has been surrendered and the possession of the premises was being held in pursuance of the ATS.
5.1. He relies upon the judgment of this Court in Hari Gopal Manu v. B. S. Ojha, 2016 SCC OnLine Del 985, and more specifically the judgment in M/s Jagdambey Builders Pvt. Ltd. v. J.S. Vohra, 2016 SCC OnLine Del 765, quoted therein at paragraph 7. He also relied upon judgment of the Supreme court in Shyam Narayan v. Krishna Prasad, (2018) 7 SCC 646. He relied upon the said judgments to contend that the Petitioner herein to avail the benefit of Section 53 A of TPA must necessarily plead in his application seeking leave to defend that he has taken possession of the property in part performance of the contract. He stated that in the present case, no such plea was raised by the Petitioner in his pleadings and therefore, he is not entitled to claim the benefit under Section 53 A of TPA.
5.2. He relies upon judgment passed by the Supreme Court in S. Sanyal v. Gian Chand, AIR 1968 SC 438, to contend that it is trite law that the tenancy cannot be split up. He states that therefore, the averments made by the Petitioner, tenant, with respect to payment of rent towards undivided portion of the tenanted premises, proportionate to the unpaid sale consideration is absurd, untenable and contrary to law. He states that the Respondents do not admit that the payment of rent by the Petitioner was towards a portion of the tenanted premises as alleged.
5.3. He states that in fact in the leave to defend application and the rejoinder to the reply to leave to defend application, it is admitted by the Petitioner that the tenant continued to pay the admitted rent till 2014, whereas the alleged ATS was executed in the year 1982.
5.4. He has relied upon the averments at paragraph ‘11’ of the eviction petition and the corresponding paragraphs of the leave to defend application and rejoinder to contend that the averment of the landlord that the monthly rent of tenanted premises is ₹ 500 was unchallenged and therefore, admitted.
5.5. He states that in reply to leave to defend application, the landlord at paragraph 4 had asserted that last rent was paid until 30.06.2014 and in the rejoinder to the said reply; no dispute was raised by the tenant. He states that the rent receipts filed before the Rent Controller are also not disputed and therefore, admitted.
5.6. He states that the judgment of Ran Singh v. Lilu Ram (Supra) is distinguishable as the alleged agreement to sell therein was purportedly executed between the parties therein post service of the eviction petition.
5.7. No other arguments were raised by the learned senior counsel for the Respondent. Analysis and finding
6. This Court has perused the paper book and considered the submission of the learned senior counsel for the parties.
7. The Trial Court held that the Respondent herein has sufficiently established the three (3) essential ingredients of Section 14(1)(e) of the DRC Act.
7.1. The Trial Court held that the rent receipts evidencing payment of rent earlier to late Smt. Bidhu Bala Barua and thereafter to the Respondent herein were not disputed by the Petitioner. It also noted that the Petitioner himself had categorically admitted in his leave to defend application that rent had been regularly paid to the Respondent till the month of December,
2014. The Respondent had placed on record rent receipts evidencing payment of rent until 30.06.2014. In view thereof, the Trial Court concluded that the Respondent is the landlord and there exists a landlordtenant relationship between the parties. The said admitted rent receipts are tabulated as under for ease of reference:-
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Period of Rent Receipt Amount of Rent │ │ No. Received │ │ For the month of August in the year 1981 Rs. 150/- │ │ 1. │ │ For the month of January in the year 1982 Rs. 150/- │ │ 2. │ │ For the month of August in the year 1982 Rs. 150/- │ │ 3. │ │ For the month of December in the year Rs. 200/- │ │ 4. │ │ 1982 │ │ For the month of January in the year 1983 Rs. 150/- │ │ 5. │ │ For the month of January in the year 1984 Rs. 150/- │ │ 6. │ │ For the month of January in the year 1985 Rs. 150/- │ │ 7. │ │ For the month of August in the year 1985 Rs. 150/- │ │ 8. │ │ For the month of March in the year 1986 Rs. 150/- │ │ 9. │ │ For the month of May in the year 1987 Rs. 150/- │ │ 10. │ │ For the month of January in the year 1988 Rs. 150/- │ │ 11. │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────┘
18. Section 53A of the Transfer of Property Act, 1882 codifies the doctrine of part performance. A purchaser of immovable property, who in pursuance to an agreement to sell in writing has been put into possession of the property, is entitled to so remain in possession. However, the writings relied upon by the appellant in this regard, even if were to be looked into (notwithstanding the contention of the counsel for the respondent that the same were not brought before the Trial Court), do not record the possession of the premises having been delivered to the appellant in pursuance to or in part performance of the agreement to sell. The writings do not even state that the appellant shall be entitled to continue in the premises free of rent as has been pleaded.”
10.3. In the opinion of this Court, the Trial Court has rightly concluded at paragraph 16 of the impugned eviction order that the Petitioner, tenant, cannot claim any right, title or interest in the tenanted premises on the basis of ATS dated 06.07.1982. The filing of the suit for specific performance after 32 years
11. Another material fact which weighs against the reliance placed by the Petitioner on the unregistered ATS dated 06.07.1982 is the delay of 32 years in filing the suit for specific performance.
11.1. The Petitioner states that the cause of action for filing the civil suit for specific performance arose after he was served with a legal notice dated 20.07.2015 by the Respondent demanding arrears of rent followed by eviction petition filed under the DRC Act. The civil suit was filed on 03.11.2016, after the present eviction petition already stood filed on 06.10.2016.
11.2. The ATS is dated 06.07.1982 and Smt. Bidhu Bala Barua died on 19.01.1993, however, the civil suit was neither filed during her life time nor filed for 23 years after her death. The Petitioner continued to pay rent uninterruptedly from 1982 to 2014 and elected to file the civil suit only after an eviction petition was filed by the Respondent against him.
11.3. The payment of the sale consideration is said to have been made in cash, which is not admitted by the Respondent. The execution of the ATS itself is disputed by the Respondent. In these circumstances, as observed above there is no prima facie case made out in favour of the Petitioner and all these disputed facts will have to be established during the trial before the Civil Court.
11.4. Thus, in these facts no case has been made out by the Petitioner for grant of leave to defend or stay of the eviction proceedings to await the outcome of the civil suit. For these reasons, the reliance placed by the Petitioner on the judgement of the Division Bench in Jai Singh Rana (Supra) is not attracted in the facts of this case.
11.5. The reliance placed by the Petitioner on the judgement of the Supreme Court in R. Kanthimathi and Anr. v. Beatrice Xavier, 2000 SCC OnLine SC 347, is not attracted in the facts of this case. Unlike, in the present matter, the execution of the agreement to sell and receipt of part consideration was admitted between the parties in the said case. This is evident from paragraph ‘2’ of the said judgement. Further, in the said case, the tenant therein did not continue to pay any further rent to the landlady after the execution of the agreement to sell. The paragraph 2 of the said judgment reads as under:-
11.6. The reliance placed by the Petitioner on the order dated 17.01.2018 passed by the Coordinate Bench in Ran Singh v. Lilu Ram (supra) is of no assistance to the Petitioner as it is evident that the said order was passed in the peculiar facts of that case. There is no discussion on the legal principles governing the eviction proceedings under Section 14(1)(e) of the DRC Act, in the circumstances, where the tenant has admittedly continued to pay the rent to the landlord even after execution of the alleged agreement to sell. Application for electric connection
12. The Petitioner in support of ATS has also relied upon the fact that the electric connection in the tenanted premises stands in his name. This Court is not persuaded by the said fact as it is a matter of law and fact that a tenant is permitted to obtain an independent electric connection in the tenanted premises.
12.1. The Petitioner has also relied upon the fact that he has paid conversion charges to MCD for use of the tenanted premises for commercial purposes. In this regard, he has placed reliance on affidavit filed with MCD on 29.06.2007. A perusal of the contents of the said affidavit does not reflect any assertion of the Petitioner with respect to the capacity in which the said affidavit was filed. The affidavit neither describes the Petitioner as an owner nor as a tenant. Further, the Petitioner in his own rejoinder to the leave to defend at paragraph ‘K’ has stated that payment of property taxes to MCD would not confirm any ownership rights on the tenderer. The relevant extract of the pleadings reads as under:- “.....However, it is well settled law that the person paying the tax, cannot give him the right of the ownership over the property, thus the Petitioner’s mere claim that he is paying one or other tax, cannot make him legible to be the owner of Shop, so the story put by the Plaintiff is absolutely false and frivolous. All the allegations, averments, incidents and occasions as alleged by the Petitioner are false, frivolous and contrary to the fact. Reference be made in the preceding paras. The Respondent is reaffirming and relying on the grounds placed in the para no. K of the Application filed by the Respondent.”
12.2. Thus, on the Petitioner’s own showing the payment of charges/taxes to MCD cannot be sufficient to accept the Petitioner’s claim of ownership. As held above, title in an immovable property can be acquired by a person only by a registered conveyance deed. The record of the statutory authorities providing essential and municipal services cannot confer ownership on a person who admittedly occupied the premises as a tenant.
13. The Petitioner has not challenged the Trial Court’s findings on bona fide requirement of Respondent’s son and absence of alternate accommodation before this Court during oral arguments. This is also evident from the written submissions filed on 15.05.2023. The challenge raised in the grounds of the revision petition on these findings was not pressed and therefore, the said findings have become final.
14. The Supreme Court in the case of Abid-ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30, has after discussing the law held that the scope of the revisional jurisdiction under Section 25B(8) of the DRC Act is limited. The relevant para 23 reads as under:
15. In view of the dicta of the Supreme Court, this Court is of the view that the pleas raised by the Petitioner herein do not merit any interference with the findings of the Trial Court as they do not suffer from any infirmity.
16. Accordingly, in view of the aforesaid discussion, this Court finds no merit in this revision petition, which is hereby dismissed and the eviction order dated 17.08.2022 is upheld. The pending applications, if any, are disposed of.
17. The eviction petition was filed by the Respondent on 06.10.2016 under Section 14(1)(e) read with Section 25-B of the DRC Act, which is intended for facilitating a speedy possession of the tenanted premises. However, in this case, the application for leave to defend itself was decided on 17.08.2022 i.e., after six (6) years. The statutory period of six (6) months granted by the Trial Court was due to expire on 17.02.2023 and the Petitioner filed this revision petition at the eleventh hour, therefore, evidencing that the Petitioner is prolonging the eviction proceedings to the prejudice of the Respondent. In the application seeking leave to defend frivolous pleas disputing the title of the Respondent in the tenanted premises were raised to protract the proceedings. The frivolity of the said plea was exposed by the prayers sought in the civil suit for specific performance by the Petitioner against the Respondent. The present revision petition is, therefore, without any merits and dismissed with cost of ₹ 1,00,000/- payable to the Respondent within two (2) weeks. In case, the said costs are not paid, the Respondent will be entitled to recover the said costs in execution proceedings.
18. It is clarified that the findings returned with respect to the ATS dated 06.07.1982 is only for deciding the present revision petition as well as the correctness of the eviction order dated 17.08.2022 and will not bind the Civil Court, which will be at liberty to decide the civil suit for specific performance of the said ATS on its own merits and in accordance with law without being influenced by the findings in the present proceedings. The rights and contentions of the parties with respect to the ATS dated 06.07.1982 are to this extent left open.