RSA No.23/2011 Page 1 of 4 A-12 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 04.02.2011 + RSA No.23/2011 & CM No.2258-2259/2011 SMT.SUDHA AGGARWAL & ORS. ………..Appellant Through: Mr.J.C.Mahindro, Advocate. Versus SHRI SUNIL KUMAR JAIN ……….Respondent Through: Nemo. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 1. This appeal has impugned the judgment and decree dated 01.11.2010 which had endorsed the finding of the trial judge dated 17.8.2010 whereby the suit for possession, permanent injunction and damages filed by the plaintiff Nirmal Kumar qua the suit property bearing No.1715, Pilli Kothi, Nahar Sada Khan, S.P.Mukherjee Marge, Delhi had been dismissed. 2. The contention of the is plaintiff that he was the owner of the suit property and the defendant Sunil Kumar Jain is a trespasser. Admittedly, father of Sunil Kuma Jain, Inder Kumar was his tenant but after his death on 19.2.2005 and thereafter the death of his wife Memo Devi on 9.3.2008, the defendant had become a mere RSA No.23/2011 Page 2 of 4 trespasser and was liable to be evicted. 3. The defence of the defendant was that he was a tenant n his legal right and he had inherited the tenancy from his father; he could not be evicted by way of the present suit. Bar of Section 50 of the Delhi Rent Control Act (hereinafter referred to as „the DRCA‟) was in operation as the suit property was admittedly rented out for less than `3500/- per month. 4. The trial judge had framed seven issued. Issue no.3 was the contentious issue; it reads as follows: “Whether the suit is barred Under Section 50 of the DRC Act? OPD” 5. The trial judge had examined the judgment of the Apex Court reported in 1985(1) RCR 459 Gian Devi Anand Vs. Jeevan Kumar & Ors.. It was held that the tenancy had devolved upon the defendant being the legal heir of his father. The judgment reported in 148(2008) DLT 705 (SC) Satyawati Sharma (dead) by LRs Vs. Union of India had been distinguished. It was held that the said judgment had not in any manner overruled the proposition of Gian Devi‟s judgment; what was under examination before the Apex Court in the case of Satyawati was the vires of Section 14(1)(e) of the DRC Act and the Court had held that no distinction can be drawn between a non-residential or a residential property as far as the bonafide need of the landlord is concerned under Section 14(1)(e) of the Act. 6. This is a second appeal. At the first hearing it had been pointed out that the judgment of Satyawati (supra) had overruled the judgment of Gian Devi (supra). This is incorrect. The judgment of Satyawati (supra) which was pronounced more than two decades later had referred Gian Devi judgment although RSA No.23/2011 Page 3 of 4 noting that with lapse of time and change of circumstances certain legislations become unreasonable and violative of the doctrine of equity. In the judgment of Satyawati the Court had held that part of Section 14(1)(e) of DRCA which is violative of the doctrine of equity as it discriminates between premises let out for a residential or non-residential purpose but the same are required by the landlord bonafide as an accommodation for himself or any member of his family dependent upon him was struck down. The distinction between residential and commercial premises under Section 14 (1) (e) was struck down. 7. The suit filed by the plaintiff was seeking possession of the suit land; it was a commercial property. Gian Devi (supra) had decided the issue of heritability of the tenancy rights of commercial premises and which proposition was not in challenge in the case of Satyawati. 8. The oft quoted paragraph of the judgment of Gian Devi is reproduced herein below and reads as follows: “In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in Section 2(1)(iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision………….. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. …… We are of the opinion that in cases of commercial premises governed by the Delhi Act, the Legislature has not though it fit in the light of situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. In the absence of any provision restricting the heritability of tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determinate of the contractual tenancy will devolve on the heirs in accordance with law and the heirs who steps into the position of the deceased tenant will continue to enjoy in the protection afforded by the Act and they; can be only be evicted in accordance with the provisions of the Act.” 9. Both the Courts below had rightly held that the bar of Section 50 of the DRCA is applicable. Admittedly the rent in terms of the rent receipts Ex. PW-1/3 to Ex. PW-1/5 show that the rate of rent was less than Rs.3500/-. Defendant was protected as a tenant RSA No.23/2011 Page 4 of 4 as he has inherited this tenancy ; suit was rightly dismissed. No question of law has arisen. Appeal as also pending applications are dismissed. INDERMEET KAUR, J. FEBRAURY 04, 2011 nandan