IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR CIVIL JUDGE CUM JUDGE, SMALL CAUSES COURT CUM GUARDIAN JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI. Suit No.378/12. [PRECEDENT]. ORDER
1. This order shall decide the application under [SECTION] of [ACT] filed on behalf of plaintiff. By the said application, the plaintiff has prayed for passing judgment and decree for the relief of possession on the basis of admissions of the defendant.
2. The plaintiff has filed the present suit stating in the plaint that he is owner and landlord of two premises. The premises are described as one room bearing private no.D3/8 measuring 250 sq. feet and one room bearing private no.D3/7/1 measuring 400 sq. feet in the property bearing no.D3, [ENTITY], Delhi110009. The said two units are collectively referred to as "the suit premises". It is stated in the plaint that the defendant was inducted as a tenant in the suit property no.D3/8 at rent of Rs.175/ per month, which was later enhanced to Rs.500/ per month. It is further stated in the plaint that the defendant was separately inducted as a tenant in the suit property no.D3/7/1 at rent of Rs.500/ per month. It is averred in the plaint that the rent was enhanced from time to time and at present the rate of rent is Rs.1417/ per month for the suit premises. It is further stated in the plaint that the father of the plaintiff used to collect rent [PRECEDENT] 1/17 and that he has expired. After his death, the plaintiff started collecting rent. It is further stated in the plaint that the suit premises are not being used by the defendant and are lying under his locks. It is averred that tenancy of the defendant stood terminated by legal notice dated 26.07.2012. Yet the defendant failed to hand over vacant possession of the suit premises. The plaintiff has averred that under wrong advice, the father of the plaintiff filed an eviction petition under [ACT]. It is averred that the area in which the suit premises is situated has not been notified under the [ACT] and therefore the said Act is not applicable to the property. The plaintiff has, by the suit, prayed for recovery of possession of the suit premises and other reliefs.
3. The defendant filed written statement. The defendant, in his written statement, admitted that he has been inducted as a tenant in the suit premises. He has stated that the plaintiff is one of the landlords but he is not competent to file the suit in absence of authorization by other landlords. The defendant admitted the receipt of legal notice but questioned its validity on the ground that a common notice cannot be issued in respect of two properties governed by separate tenancy agreements. The defendant stated that a composite suit is also not maintainable since there are two properties involved and that the plaintiff ought to have filed separate suits.
4. The defendant disputed the genuineness of the documents relied upon by the plaintiff. He admitted that he was inducted as tenant in the suit premises by father of the plaintiff. The defendant disputed [PRECEDENT] the ownership of the plaintiff and stated that the suit property is governed by the [ACT].
5. In the application under [SECTION] of [ACT], the plaintiff has stated that the defendant has admitted the existence of landlord tenant relationship and therefore the suit is liable to be decreed in favour of the plaintiff for the relief of possession.
6. In his reply to the application under [SECTION] of [ACT], the defendant stated that tenancy has not been terminated. It is stated that the plaintiff is not competent to file the suit and that the suit is barred by [SECTION] of [ACT].
7. I have heard submissions advanced by Ld. counsels for the parties and have perused the record.
8. In order to recover possession of the suit premises, the plaintiff needs to establish the following:
A. That the plaintiff is landlord and the defendant is tenant in the suit premises.
B. That the [ACT] does not apply to the suit premises.
C. That the tenancy of the defendant has been terminated.
D. That a common notice and a composite suit in respect of two separate tenancies are valid and maintainable.
9. It is examined hereinafter whether the said ingredients stand proved by admissions of the defendant so as to entitle the plaintiff to a decree.
[PRECEDENT] 3/17 A. Whether the plaintiff is landlord and the defendant is tenant in the suit premises?
10. The plaintiff has stated in paragraph no.2 of the plaint that the defendant was inducted as a tenant in the suit premises. The defendant has, in paragraph no.4 of preliminary objections of written statement and in paragraph no.2 of reply on merits of written statement, admitted that he is a tenant in the suit premises. It thus stands proved by admission that the defendant is a tenant in the suit premises.
11. The plaintiff has, in paragraph no.1 of the plaint, claimed to be the owner of the suit premises. In paragraph nos.2 and 3 of preliminary objections of the written statement, the defendant has admitted that the plaintiff is a landlord and that there is a landlordtenant relationship between the parties.
12. The plaintiff has, in paragraph no.7 of the plaint, claimed that he has been collecting rent from the defendant. In paragraph no.5 of preliminary objections and paragraph no.7 of reply on merits of the written statement, the defendant has admitted that he has been paying rent to the plaintiff. The payment of rent to the plaintiff implies an acknowledgment by the defendant of the fact that the plaintiff is his landlord.
In the case of [PRECEDENT], the Hon'ble Punjab and Haryana High Court held:
"Rent is a usual, though not an essential, incident of the relationship of landlord and tenant and payment of rent by the occupier to the [PRECEDENT] 4/17 owner of premises raises a presumption that the relationship of landlord and tenant has come into existence."
13. The defence of the defendant is that the plaintiff has not been authorized to file the present suit. Admittedly, the plaintiff is one of the landlords and is collecting rent. Even if it is assumed that the plaintiff is not the exclusive landlord and that there are other such persons who succeeded to the estate along with the plaintiff, that would not disentitle the plaintiff from filing the present suit. To enforce the rights arising out of the tenancy and to recover possession, the plaintiff need not join other landlords. It is not the case of the defendant that there has been partition of the suit premises between the coowners. Till partition takes place, all co owners remain owners of the entire estate. As such, any of them can exercise ownership rights over the entire property. One such right is the right to terminate tenancy and recover possession. The proposition of law that a coowner need not join other coowners in order to evict a tenant finds support from the decision of Hon'ble Supreme Court in the case of [PRECEDENT], wherein the Hon'ble Supreme Court has held that a coowner can maintain a suit for eviction for tenant without joining other co owners as plaintiffs in the suit.
In the case of [PRECEDENT] the Hon'ble Supreme Court observed as under :
"Where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one coheir to whom the rent is being paid by the tenant and who receives it on behalf of the [PRECEDENT] 5/17 estate of the Act. The coheirs constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the landlord, and was therefore entitled to institute proceedings for eviction against the tenant qua landlord."
Similarly, in the case of [PRECEDENT] the Hon'ble Supreme Court noted as under :
"When the property forming subject matter of eviction proceedings is owned by several owners, every coowner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner of a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other coowners if such other coowners do not object."
In the case of [PRECEDENT] decided on 10.08.2001, the Hon'ble High Court of Delhi held that a coowner can sue and evict the tenant without joining other coowners. It was held that this proposition of law applies to cases not covered by the [ACT] as much as to those so covered (paragraph nos.15, 16 and 17 of the judgment).
14. The aforesaid decisions are squarely applicable to the facts of the present case. In the present case too, it is admitted by the defendant that the plaintiff has been collecting rent from the defendant and that the plaintiff is one of the landlords. As such, the plaintiff is entitled to exercise the rights of the landlord and can sue for eviction of the tenant without joining other landlords.
15. Hence, the contention of the defendant that the suit is not [PRECEDENT] maintainable as the other landlords have not been added as parties to the suit, is not tenable.
16. The defendant has questioned the title of the plaintiff. In this behalf, three points need to be noted. Firstly, the defendant has admitted the plaintiff to be his landlord. Having accepted the plaintiff as the landlord, the defendant is estopped from questioning his title, in accordance with [SECTION] of the [ACT]. Secondly, the denial of ownership of the plaintiff is not specific. The defendant has not stated in his written statement as to who is the owner of the property if not the plaintiff. The denial of title of the plaintiff is bald. The defendant has claimed to be the tenant in the suit property. He ought to know who the owner of the property is. Unless he knows the identity of the owner, he cannot contend that the plaintiff is not the owner. Since the defendant has not disclosed the name of the owner, the irresistible conclusion is that the said denial of ownership is without any basis and the defendant has actually no knowledge of ownership of the property. Hence, the denial of ownership of the plaintiff is not specific. As per [SECTION] of the [ACT] and [SECTION] of [ACT], such a bald denial is of no effect and amounts to an admission of fact. Reference may be made to the cases of [PRECEDENT] and [PRECEDENT]. The defendant is therefore deemed to have admitted that the plaintiff is the owner of the suit premises. Thirdly, the plea of the defendant is itself queer. The defendant has accepted the plaintiff as his landlord and has yet disputed the title of the plaintiff. It is not [PRECEDENT] the case of the defendant that he was inducted into the suit property by the plaintiff. Yet, the defendant admits that he has been making payment of rent to the plaintiff which the plaintiff is accepting on behalf of himself and his brothers. There is no reason for the defendant to pay rent to the plaintiff if the plaintiff is not the owner of the property. The defendant ought to pay rent to the person who either inducted him as a tenant or who is the owner. Going by the plea of the defendant, the plaintiff is neither of them, and if that is so, the defendant would not have been paying rent to the plaintiff. The defendant has not explained as to how the plaintiff became landlord if not by devolution of ownership of the property. Without ownership, the plaintiff would not have become landlord. The stand of the defendant is contradictory. From the pleadings it can be safely concluded that the plaintiff is not only colandlord but also coowner of the suit property.
17. This is a suit for ejectment by a landlord of his tenant. It is not a title suit. In such a suit, it is sufficient that the plaintiff is landlord of the suit premises. He need not prove his title. In this regard, it would be apt to refer to the following observations of Hon'ble High Court of Delhi in the case of [PRECEDENT]:
"A suit for ejectment is different from a title suit for possession against a trespasser. In a suit for possession against a trespasser, title can be in dispute but in a suit for ejectment against an erstwhile tenant, ordinarily there is no dispute of title as the tenant is estopped from denying the landlord's title under [SECTION] of the [ACT]. The dispute is generally on two counts; one, about the assessment to continue after the expiry of the fixed term least by [PRECEDENT] 8/17 efflux of time and second, about the valid termination in case of monthly lease. The tenant resisting the claim for possession has to plead with sufficiently detailed pleadings, particulars and documents why he must not be ejected and what right he has to continue in possession. There is really nothing else to be tried in such a suit. A suit of this nature can ordinarily be decided on first hearing itself either on the pleadings and the documents or, if need be, by examining the parties under [SECTION] of [ACT] or [SECTION] of the [ACT]."
In that case, the Hon'ble High Court of Delhi further observed as under:
"Howsoever defective the title of the landlord may be, a tenant is not permitted to dispute the same unless he has surrendered the possession of his landlord. It is based upon the salutary principle of law and justice that a tenant who could not have got the possession but for his contract of tenancy admitting the right of the landlord."
It was further observed that the onus is on the person resisting the claim for recovery of possession to establish that he has a right to continue in possession.
18. From the aforesaid, it is concluded that the plaintiff is landlord and the defendant is tenant in the suit premises. It is also concluded that the plaintiff is competent to file the present suit and to recover possession from the tenant without joining other persons in the suit. B. Whether the [ACT] applies to the suit premises.
19. The defendant has contended that the suit premises is governed by the [ACT].
20. The plaintiff has stated in the plaint that the [ACT] does not apply to the suit premises since there is no notification extending the applicability of the Act to the locality in which the suit premises is situated. The defendant has disputed this but has not specifically pleaded about the existence of such a notification and has also not provided particulars of any such notification. Under [SECTION] of [ACT], if a defendant relies on a document he must produce the same with his written statement. In the present case, no such notification has been filed by the defendant. Had such a notification existed, its copy would have been filed by the defendant. This shows that there is no such notification. Further, the defendant, during trial, would not be able to rely on any such document since he has not filed it with his pleadings and no purpose would be served by subjecting the case to trial merely because the defendant might choose to cover up this omission, particularly when the defendant has not even made any attempt to produce the said notification or to plead its existence during the hearing of the case.
21. It would also not be out of place to refer to certain documents filed by the plaintiff. The order dated 15.03.2012 in [CASE NUMBER] passed by the Ld. ARC, Delhi holds that the colony of [ENTITY] (in which the suit premises is located) is not governed by the [ACT] and there is no notification extending operation of the Act to the said colony.
22. The notification no.S.O.1991 dated 20.02.1986 also does not extend the provisions of the Act to the colony of [ENTITY].
23. The information furnished by Government of India under [PRECEDENT] by letter dated 27.12.2012 also makes it clear that the operation of [ACT] has not been extended to [ENTITY].
24. In light of the above, and the failure of the defendant to produce any such notification, it is concluded that there is no such notification extending the provisions of the [ACT] to the area in which the suit premises is situated.
25. [SECTION] of the [ACT] provides as under:
"It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the [SECTION]:
Provided that the Central Government; may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi or exclude any area from the operation of this Act or any provision thereof."
From the aforesaid provision, it is clear that the [ACT] applies to areas under the New Delhi Municipal Committee, the Delhi Cantonment Board, and to such urban areas of the Municipal Corporation of Delhi as are specified in the [SECTION] or are subsequently included in the limits of the Corporation and notified by the Central Government.
26. The area of [ENTITY] is not under the jurisdiction of New Delhi Municipal Committee or the Delhi Cantonment Board. It also does not find mention in the [SECTION] of the Act. The question that arises is whether the area, having been urbanized and included within the jurisdiction of the Municipal Corporation of Delhi, is [PRECEDENT] 11/17 brought within the folds of the Act.
27. The [SECTION] of the Act provides that the Act would govern a locality subsequently included under the Municipal Corporation of Delhi only if the said area has been notified for this purpose by the Central Government. The Hon'ble Supreme Court has underlined the need for such a notification, in the case of [PRECEDENT]. This has been reiterated by Hon'ble High Court of Delhi in the case of [PRECEDENT]. In the case of [PRECEDENT] 30.3.2011, the Hon'ble High Court of Delhi emphasized that the defendant ought to prove the said notification in his defence so as to rely on it.
28. In the present case, the defendant has made no attempt to produce such a notification whereby the operation of the Act may have been extended to the area within which the suit premises is located. The defendant has not given particulars of any such notification. This shows that there is no such notification in existence and resultantly the suit premises is not governed by the [ACT].
29. It is inferred that the [ACT] does not apply to the suit premises. Consequently, the present suit is not barred by [SECTION] of the [ACT].
30. The written statement has referred to certain proceedings carried out invoking the provisions of the said Act.
The plaintiff has contended that the proceedings under the [ACT] were instituted by his father under wrong advice. [PRECEDENT] 12/17 The mere fact that earlier proceedings were initiated by father of the plaintiff under the [ACT] does not imply that the said Act applies to the suit premises. There is no estoppel against the law. The applicability of the said Act is dependent on the notification and if no notification exists, the Act would not govern the suit premises, even if the plaintiff chooses to invoke its provisions. The father of the plaintiff was under a misconception as to the applicability of the [ACT]. This is a matter of law and does not bind the father of the plaintiff or the plaintiff. In the case of [PRECEDENT] (para no.11), the Hon'ble Supreme Court held that one's assertion as to the legal effect of facts is not binding on him and does not estop him.
In the case of [PRECEDENT], it was noted as under:
"A status of control of premises under the [ACT] cannot be acquired either by estoppel or by res judicata. The principle is that neither estoppel nor res judicata can give the court jurisdiction under the Acts which those Acts say it is not to have. The [ACT] operate in rem. These Acts give a status to the house from which certain legal consequences follow.
In the present case, the building in question is beyond doubt outside the protection of [ACT]. The foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mere intention (See [PRECEDENT]. There must be a statement of fact and not a mere promise to do something in future.
The appellant proved that the appellant made a mistake of fact in regard to the building, being outside the mischief of the Act. The appellant instituted thesuit before the Rent Controller in mistake about the underlying and fundamental fact that the building was [PRECEDENT] 13/17 outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit Which is the subject of this appeal. The appellant is not disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot confer jurisdiction by consent similarly one cannot by agreement waive exclusive jurisdiction of courts. The Civil Court and not the Rent Control possesses jurisdiction over the building in question."
In the case of [PRECEDENT], the Hon'ble Supreme Court reiterated that in matters of jurisdiction to entertain the suit, doctrine of estoppel could not be invoked. Hence, the mere fact that the father of the plaintiff had earlier filed an eviction petition under [ACT] does not imply that the suit premises is governed by the said Act. Further, it is not the case of the defendant that the issue of applicability of the [ACT] was decided in those proceedings.
31. Further, the defendant has chosen to challenge the competence and title of the plaintiff. That being so, as per the case of [PRECEDENT] and [PRECEDENT], a civil suit would lie.
32. It is inferred that the suit premises is not governed by the provisions of [ACT].
C. Whether the tenancy has been terminated.
33. The plaintiff has stated in the plaint that tenancy of the defendant has been terminated by the service of legal notice dated 26.07.2012.
[PRECEDENT] 14/17
34. The defendant has, in the written statement, admitted the receipt of legal notice. He has even sent reply to the notice.
35. Applying [SECTION] of the [ACT], the tenancy is treated as a month to month tenancy and is terminable by fifteen days' notice. By way of the said legal notice, tenancy of the defendant stood terminated, in keeping with [SECTION] of the [ACT]. Hence, the defendant stood liable to vacate the property after fifteen days from the date of service of notice.
D. Whether a common notice and a composite suit in respect of two separate tenancies are valid and maintainable.
36. The defendant has contended that suit premises comprise of two different properties which were leased to the defendant on different occasions and as such constitute separate tenancies. According to the defendant, a common notice cannot be issued to terminate separate tenancies and similarly a common suit for eviction cannot be filed for the properties.
37. It is correct that the suit premises comprise of different properties and constitute separate tenancies. That however is no impediment to the issuance of common notice of termination of tenancy or to the filing of a composite suit for recovery of possession of the premises. Once a notice fulfills the conditions laid down in [SECTION] of [ACT], it cannot be defeated merely because it relates to two different properties. The purpose of the notice is to inform the tenant of the termination of tenancy. This [PRECEDENT] purpose is fully served by issuance of a common notice as well. The notice was thus valid and effective.
38. Similarly, there is no infirmity in the filing of a composite suit in respect of different tenancies. The landlord and tenant are the same in the two properties. One can validly file a common suit joining different causes of action against the same defendant. This proposition directly is expressly laid down in [SECTION] of [ACT]. This principle has also been recognized and upheld in the case of [PRECEDENT].
39. It is concluded that the notice of termination of tenancy served upon the defendant is valid and that the suit, in its present form, is maintainable.
40. All the aforesaid ingredients being fulfilled, the plaintiff is entitled to a judgment and decree on admissions. Reference be made to the judgment of the Hon'ble High Court of Delhi in case titled as [PRECEDENT] dated 13.12.2011 in [CASE NUMBER] in [CASE NUMBER]. It is laid down in the case that in order to expedite the trial, if there is any admission on behalf of the defendant or if an admission can be inferred from the facts of the case, such admission can be acted upon by the Court and the suit may be decreed. Similar observations have been made in the case of [PRECEDENT].
41. The application filed by the plaintiff under [SECTION] of [ACT] is allowed. A decree of recovery of possession is passed in favour of the plaintiff and against [PRECEDENT] the defendant. The defendant is directed to hand over peaceful and vacant possession of the suit premises i.e. one room bearing private no.D3/8 measuring 250 sq. feet and one room bearing private no.D3/7/1 measuring 400 sq. feet in the property bearing no.D3, [ENTITY], Delhi110009 as shown in red colour in the site plan filed with the plaint, to the plaintiff forthwith. Decree sheet shall be prepared.
Announced in the open Court on 31 August 2013.
st ([ENTITY]) ASCJcumJSCCcumGJ NorthWest District, Rohini Courts, Delhi.
[PRECEDENT] 17/17