CM (M) 880/2012. Case: Rakesh Jain Vs Suresh Kumar Kohli and Anr.. High Court of Delhi (India)
| Case Number | CM (M) 880/2012 |
| Counsel | For Appellant: Mr. Arun Bhardwaj, Senior Advocate with Mr. Pawan S. Bindra, Mr. Amit Bhardwaj, Mr. Karan Yadav and Mr. Karan Bhardwaj, Advocates and For Respondents: Mr. Prag Chawla, Mr. Sourabh Shokeen and Mr. Sudeep Sudan, Advocates |
| Judges | Suresh Kait, J. |
| Issue | Transfer of Property Act, 1882 - Section 106; Delhi Rent Control Act - Sections 41(1)(e), 25B, 14(1)(e); Civil Procedure Code - Section 47; Order 21 Rule 26(1); Hindu Succession Act, 1956 - Section 19(b) |
| Judgement Date | December 05, 2013 |
| Court | High Court of Delhi (India) |
Judgment:
Suresh Kait, J.
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Vide the present petition, petitioner seeks setting aside of the impugned order dated 08.06.2012 passed in Execution Petition No. 51/2012 passed by Additional Rent Controller, whereby objections filed by the petitioner under Section 47 read with Order 21Rule 26 (1) have been rejected.
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He also seeks setting aside of the order dated 30.11.2011 passed by the ld. ARC (Central), Tis Hazari Courts, Delhi in Eviction Petition No. 304/2010, whereby the petition filed by the respondent no. 1 under Section 41(1) (e) read with Section 25-B of DRC Act was allowed.
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Facts of the case, in brief, are that petitioner''s father and respondent no. 2 took shop no. 3, property no. 2656, Ajmal Khan Road, Karol Bagh, New Delhi on rent from father of respondent no. 1, i.e., Sh. Bhagat Raj Kohli vide lease deed dated 02.12.1975 for carrying out a business. On attaining majority, petitioner was inducted as a partner in the family business vide a partnership deed dated 02.04.1979, which was being run at the tenanted premises.
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It is submitted that the above noted rent agreement was on month to month basis. Notice dated 25.04.2009 was sent to Sh. Ishwar Chand Jain and Sh. Ramesh Chand Jain, i.e., respondent no. 2 under Section 106 of Transfer of Property Act, 1882 whereby the tenancy was terminated w.e.f 31.05.2009 in respect of the premises in question.
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Ishwar Chand Jain, father of the petitioner died on 08.03.2010 leaving behind two legal heirs, i.e., the petitioner and Ramesh Chand Jain, i.e., respondent no. 2. Thereafter, respondent no. 1 filed a petition under Section 14 (1) (e) of the Delhi Rent Control Act seeking eviction from the tenanted premises on the ground of bona fide requirement, which has been allowed vide order dated 31.11.2011 passed by ld. ARC (Central), Tis Hazari Courts, New Delhi in Eviction Petition 304/2010.
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Case of the petitioner is that he was not made a party clandestinely in the said Eviction Petition and he came to know about this fact in the month of June, 2012 when the order of eviction was passed in Execution Proceedings. Thereafter, petitioner filed his objections under Section 47 of the CPC read with Order 21 Rule 26 (1) in the Execution Proceedings. Same has been dismissed vide order dated 08.06.2012 passed by ld. ARC.
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Mr. Arun Bhardwaj, ld. Sr. Counsel appeared on behalf of the petitioner and submitted that the petitioner was not aware of the pendency of the execution proceedings pertaining to the suit property. Neither he was ever made a party to the same despite being a tenant and legal heir of the erstwhile tenant Late Ishwar Chand Jain being in joint possession of the suit premises, nor he was ever served with any notice pertaining to the eviction proceedings of the suit property either at his residence or at the premises of suit property in question.
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Ld. Sr. Counsel further submitted that the petitioner was inducted as a partner in family business which was being run at the tenanted premises vide partnership deed dated 02.04.1979 wherein Bhagat Raj Kohli, erstwhile landlord, i.e., father of respondent no. 2 was the witness. Therefore, said Bhagat Raj Kohli accepted the tenancy of the petitioner in the said premises.
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He further submitted that the family business of the petitioner has been running under the name and style of M/s. ''Rakesh Wool Store'' at the tenanted premises since 02.12.1975. The father of the petitioner and his elder brother (respondent no.2) were the founding partners of the partnership firm at the tenanted premises. Thereafter, the petitioner was inducted as a partner in the family business, which has been running at the tenanted premises vide partnership dated 02.04.1979. He further submitted that respondent no. 1 was aware and had full knowledge that the petitioner was a necessary and a proper party being tenant and in occupation and possession of the tenanted premises.
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Ld. Sr. Counsel further submitted that the respondent no. 1 wilfully and intentionally not made the petitioner as a party in the Eviction Petition with an intention to take away his legal right to file application for leave to defend.
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On the other hand, Mr. Prag Chawla, ld. Counsel appearing on behalf of respondent no. 1 submitted that the admitted case of the petitioner is that the father of the petitioner and respondent no. 2 were tenants in the suit premises; and after the death of Ishwar Chand Jain, the petitioner and respondent no. 2, being sons, became joint tenants.
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He further submitted that the joint tenant is neither a necessary party nor a proper party, therefore, he was rightly not made a party in the Eviction Petition. Therefore, ld. Trial court has rightly passed the order dated 08.06.2012 as under:
"The objector has claimed himself tenant in the suit premises and filed photocopy of partnership deed and two recent receipts showing him as a partner in "M/s. Rakesh Wool Store". According to the objector himself he and his brother who is JD in present execution petition, developed strain relations. The question arises whether the objector is working as a partner in the partnership firm "Rakesh Wool Store" in the suit premises or not. The objector has filed photocopy of rent receipts for the month of December, 1993 and January 1994, if the objector was in use and occupation of shop in question and working as partner, then why he has not filed any other documents to show his possession in the suit premises. The father of the objector was a tenant in suit premises and after his death he and JD became joint tenants. It is well settled law that if a joint tenant does not occupy the tenanted premises for a long time and never made any attempt to pay the rent of the tenanted premises to the landlord then it amounts that he has surrendered his tenancy right. Even otherwise, the eviction petition was filed by the petitioner / DH on the ground of bona fide requirement and court had to see what triable issue were raised by the tenant to contest the eviction petition. The JD who is brother of the objector had already raised several objections but the same were found without any substance and eviction order was passed, I am of the view that as the objector already surrendered his tenancy, therefore, he has no right to be heard in the present matter and...
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