IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: August 21, 2007 + C.R.P.No.4 0 2/20 0 0 SHRI TULSI RAM ..... PETITIONER Through: Mr.Keshav Dayal, Sr.Advocate with Mr.Arun K.Beriwal, Advocate VERSUS SHRI RAM KISHAN DASS & OTHERS ..... RESPONDENTS Through: Nemo. CORAM: HON'BLE MR. JUSTIC E ANIL KUMAR 1. Whether reporters of Local papers may be YES allowed to see the judgment? 2. To be referred to the reporter or not ? YES 3. Whether the judgment should be reported YES in the Digest? ANIL KUMAR, J. * 1. The petitioner has challenged the order dated 18th November, 1999 of the Additional Rent Controller dismissing his application for leave to defend and contest the eviction petition filed by the respondents under Section 25B of the Delhi Rent Control Act, 1958. C.R.P.No. 4 0 2 / 2 0 0 0 Page 1 of 28 2. The respondents filed the eviction petition against the petitioner under Section 14(1)(e) read with Section 25B of Delhi Rent Control Act for eviction of petitioner on the ground that the respondents bona fide require the premises in dispute for their residence. The respondents contended that Smt. Rama Devi, predecessor-in-interest of respondents Nos.1 to 6 and respondent No.7, Smt. Shakuntala Devi had earlier filed another eviction petition being E-220/95 against the petitioner under Section 14(1)(e) read with Section 25B of Delhi Rent Control Act. During the pendency of earlier eviction petition filed by Smt. Rama Devi, she expired on 18th March, 1996 and her legal heirs, respondents Nos.1 to 6 did not file the application for substitution as the legal representatives in the eviction petition and consequently the petition abated and the petition was, thereafter, withdrawn on 29th January, 1997. The order passed while withdrawing the eviction petition on 29th January, 1997 is as under:- “29.01.1997 Present: Counsel for Petitioner L.R.Mohinder Kumar in person Shri Aggarwal, wants to make a statement. Let it be recorded. Statement of Shri O.P.Aggarwal, counsel for the L.Rs of the deceased petitioner and the other petitioners. I on behalf of the LRs of the deceased petitioner withdraw the petition as they C.R.P.No. 4 0 2 / 2 0 0 0 Page 2 of 28 want to file a fresh petition. Rama Devi died on 19.03.1996. Additional Rent Controller RO&AC In view of the statement of the counsel for the LRs, petition is dismissed as withdrawn. A.R.C” 3. The respondents Nos.1 to 6 contended that after the demise of Late Smt.Rama Devi they had become the co-owners along with respondents No.7. The eviction petition was filed by the respondents contending that respondent No.1 is an aged man and he requires one room and one kitchen for himself and for his married daughter Mrs. Suman, who usually comes and stays with the respondent No.1. The requirement of three rooms, one kitchen and one store was pleaded for respondent No.2, his wife and his two sons namely Navin aged 23 years and Anil aged 22 years and two daughters namely Ms.Anita and Savita alleged to be of marriageable age whose marriage had not been possible on account of paucity of accommodation. The requirement of respondent No.3 pleaded was of three rooms for himself, his wife and his three sons namely Sunil 21 years, Praveen 23 years and Nitin 18 years and one daughter Babita aged 24 years. Respondent No.3 pleaded that all the children are of marriageable age and they require premises urgently. The requirement of respondent No.4 Laxmi Narain was pleaded for three rooms, one kitchen for himself, his wife, two sons namely C.R.P.No. 4 0 2 / 2 0 0 0 Page 3 of 28 Amit 20 years and Nitesh 18 years and one married daughter who comes and usually resides with respondents No.4. The requirement of respondent No.5 Mahender Kumar was pleaded for two rooms and a kitchen for two daughters namely Neha and Kumari Sonal and one son namely Chintu aged 4 years. The requirement of respondent No.6 was pleaded for two rooms and one kitchen for himself, his wife and one son namely Vikalp and one daughter namely Kumari Khushboo. Two rooms were pleaded for respondent No.7 for herself and her husband and two more rooms for respondent No.7's married son namely Satish Kumar and his one son namely Tapan. 4. The respondent No.2 also pleaded two rooms for her other married son namely Sunil Kumar and his wife and his two daughters namely Kumari Mrinal aged 8 years and Kumari Deepika aged about 5 years and respondent No.7 also pleaded for one room for her married daughter namely Smt.Anita. The respondents, therefore, pleaded at least 14 rooms, 6 kitchens and one store for respondents Nos.1 to 6 and seven rooms and a kitchen for respondents No.7 and thus total requirement of 21 rooms, three kitchens and two stores was pleaded, whereas respondents Nos.1 to 6 have only six rooms, one kitchen and respondents No.7 has only seven rooms and one kitchen. The portion shown in yellow colour in the plan filed by the C.R.P.No. 4 0 2 / 2 0 0 0 Page 4 of 28 respondents is with respondents Nos.1 to 6 and the portion in green colour was stated to be in possession of respondents No.7 and the portion in possession of the petitioner was shown in red colour. The petitioner is stated to be in possession of one room, one kitchen and a small verandah on the ground floor. 5. The application for leave to defend was filed by the petitioner who also filed an affidavit along with an application under Section 25B contending inter-alia that he had always been a tenant under Smt. Shakuntala and there is no relationship of landlord and tenant between the petitioner and respondents Nos.1 to 6. The petitioner also raised an issue that sons and husband of respondents No.7 are the necessary parties. The ownership of the respondents was not admitted and it was contended that the respondents have concealed the facts in as much as the date of death of Smt.Rama Devi was not disclosed and the name of the person who had withdrawn the earlier eviction petition filed by Smt. Rama Devi had also not been given. 6. The petitioner disclosed in the affidavit seeking leave to defend and contest the eviction petition that he is a tenant only under the respondent No.7 on a monthly rent of Rs.35/- per month in respect of one big room, one C.R.P.No. 4 0 2 / 2 0 0 0 Page 5 of 28 small room, one kitchen, verandah with other common amenities. According to the petitioner the property was partitioned during the life time of Smt.Rama Devi between her and Smt.Shakuntala Devi, respondents No.7 in presence of the petitioner. Relying on the fact that there are two chowks and four stair cases in the property, it has been contended that in the portion which has fallen in the share of Late Smt.Rama Devi now there is one chowk and in the portion of Smt.Shakuntala Devi there is another chowk and two staircases. In the circumstances it was contended that the portion under the tenancy of the petitioner, lies exclusively in the portion which is of Smt.Shakuntala Devi. 7. In support of the plea of partition of the property between Smt.Rama Devi and Smt. Shakuntala Devi, the petitioner contended that there was another tenant namely Sh. Naurang Lal who is in the portion which has fallen to the tenancy of Smt.Rama Devi and after her demise he is paying rent exclusively to respondents Nos.1 to 6 and not to Smt.Shakuntala Devi and rent receipts were issued by Sh.Ram Kishan Dass, husband of Smt.Rama Devi, respondents No.1. The petitioner also disclosed on affidavit that another tenant Sh.Ram Lal who is in the portion which has fallen in the share of Smt.Shakuntala Devi is paying rent exclusively to Smt. Shakuntala Devi and rent receipts are being issued to him by her husband and not by C.R.P.No. 4 0 2 / 2 0 0 0 Page 6 of 28 respondents Nos.1 to 6. The petitioner also produced photocopies of six rent receipts and he contended that all the rent receipts are signed by the husband and sons of Smt. Shakuntala Devi, respondent no.7 and not by respondent nos. 1 to 6. 8. The petitioner also disclosed the fact that earlier the property was having only two floors that is ground floor and first floor and later on the mezzanine floor and second floor were added by Smt.Shakuntala Devi, respondents No.7 in her portion at her cost and expense and Smt.Rama Devi had also constructed another mezzanine floor in her portion and she had also fixed an iron staircase to reach the mezzanine floor. According to the petitioner the plan of the property filed by the respondents is incomplete and does not disclose the full accommodation. The petitioner also filed another plan of the entire property bearing No.1734, Nai Basti, Naya Bazar, Delhi showing the portion in possession of respondent Nos.1 to 6 in yellow and the portion occupied by Smt.Shakuntala Devi, respondent No.7 in green. The petitioner categorically contended that a person living in the portion of Smt. Shakuntala Devi, respondents No.7 cannot go to the portion of respondents Nos.1 to 6 either on the first floor or on the second floor or on the roof of the second floor, as the two portions are separate and similarly no person can C.R.P.No. 4 0 2 / 2 0 0 0 Page 7 of 28 come from the portion which is in occupation of respondents Nos.1 to 6 to the portion which is in occupation of respondents No.7 to substantiate his plea that there had been partition between Smt.Rama Devi and Smt.Shakuntala Devi and that the petitioner is a tenant only under Smt.Shakuntala Devi. 9. The petitioner contended that respondent Nos.1 to 6 have been impleaded as a party with a view to create paucity of accommodation and to make out a false case of bona fide requirement and the need of respondent Nos.1 to 6 cannot be considered and the accommodation available with respondent No.7, landlord of the petitioner, is more than sufficient for herself and her family members dependant on her. The petitioner also filed the copies of rent receipts of Sh.Naurang Lal who is a tenant in the portion of respondents Nos.1 to 6 and all the rent receipts are signed by Sh.Ram Kishan Dass. The petitioner also filed the copies of the rent receipts issued to him which are signed exclusively by Smt.Shakuntala Devi or her husband or by sons to contend that there have been partition between respondent Nos.1 to 6 and respondent No.7. 10. The petitioner in his application for leave to defend and contest the eviction petition contended that a lease deed was duly got signed from the C.R.P.No. 4 0 2 / 2 0 0 0 Page 8 of 28 petitioner by the previous owner and the lease deed was kept by the previous owner and no copy thereof was given to the petitioner and according to the said lease deed the premises was let out for residential cum commercial purpose. 11. The petitioner also sought leave to defend and contest the eviction petition on the ground that there has been no change in circumstances when the earlier eviction petition was filed by Smt.Shakuntala Devi and Smt. Rama Devi and after the demise of Smt. Rama Devi the present eviction petition, thereafter, had been filed by respondents Nos.1 to 6 & 7 without the permission of the rent controller to file another eviction petition on the same cause of action. 12. The respondents contested the leave to defend and contest the eviction petition on the ground that neither the petitioner nor any member of his family is residing in the suit premises and only the servant of the petitioner and his paying guest are residing in the suit premises. Regarding the petition of the respondents being barred by res judicata it was contended that after the death of Late Smt. Rama Devi, respondents No.7, Smt. Shakuntala Devi had withdrawn the petition for filing the fresh petition as the legal C.R.P.No. 4 0 2 / 2 0 0 0 Page 9 of 28 representatives of Late Smt. Rama Devi, present respondent Nos.1 to 6 were not impleaded as a party in the earlier eviction petition bearing No.E- 220/1995. 13. Regarding the accommodation with respondent Nos.1 to 6 and respondent No.7 they contended that they have only one chowk in the property and the two staircases are present since the date of purchase of the property and they are used jointly and there is no separation in the property. The respondents also pleaded that they are collecting the rent jointly and there is no division of the property between the respondents Nos.1 to 6 on one side and respondents No.7 on the other. The respondents admitted that construction was raised by them, however, they stated that joint construction was raised due to great paucity of accommodation and all the respondents are struggling hard due to the paucity of the accommodation. Regarding the plan filed by the petitioner it was stated that a copy of the plan filed by the petitioner has not been supplied and the plan filed by the respondents was reiterated. 14. The respondents opposed the application for leave to defend and contest also on the ground that all the respondents are the co-owners/ C.R.P.No. 4 0 2 / 2 0 0 0 Page 10 of 28 landlord of the property and the premises is purely residential and the same was let out only for residential purposes. It was also contended that the ground in the previous petition was the same as in the present petition. 15. The learned Additional Rent Controller considered the pleas and contentions of the petitioner and the respondents and dismissed the application for leave to defend and contest the eviction petition on the ground that the seven respondents are co-owners of the suit premises and reliance was placed by the Controller on the photocopy of the sale deed in respect of the property where the premises in dispute is situated which is in favour of Smt.Rama Devi and Smt.Shakuntala Devi. The learned Additional Rent Controller also relied on the fact, in disbelieving partition between respondents Nos.1 to 6 and respondents No.7, that not a single document in support of the partition between them has been filed. Regarding the purpose of letting it was contended that there is a bald statement by the petitioner that the premises was let out for residential-cum-commercial purposes, however, what commercial activity has been carried out by the petitioner from the premises in dispute, has not been spelt out and, therefore, it was held that the premises was let out for residential purpose only. Disregarding the plan filed by the respondents and considering the plan filed by the petitioner, it C.R.P.No. 4 0 2 / 2 0 0 0 Page 11 of 28 was inferred that there are 23 rooms which include mezzanine floor. Out of the said 23 rooms, two rooms are with the petitioner even according to the allegation of the petitioner there are two more tenants namely Sh.Naurang Lal and Sh.Ram Lal, therefore, for the minimum requirement of the respondents for 21 rooms, the respondents have 19 rooms only and the accommodation available with the respondents is insufficient. 16. The petitioner filed the present petition aggrieved by the order of the learned Rent Controller dated 18th November, 1999. Notice was issued to the respondents. Initially Mr.O.P. Aggarwal, Advocate appeared on behalf of the respondents. The matter was adjourned from time to time for the arguments. For last number of hearings none had appeared on behalf of respondents. 17. The petitioner also filed an application dated 21st November, 2005 for taking into consideration the subsequent facts. According to the petitioner the respondents have constructed a portion of the second floor of the suit premises during 2004-2005 and with the present accommodation constructed on the second floor the total accommodation available with the respondents is 22 rooms, one open Courtyard, two terraces comprising of 8 rooms and one open Courtyard on ground floor, seven rooms and open terrace on the C.R.P.No. 4 0 2 / 2 0 0 0 Page 12 of 28 first floor and seven rooms and one open terrace on the second floor out of which five new rooms were constructed in 2004-2005. The petitioner also filed the photograph showing the newly constructed five rooms on the second floor. The petitioner also filed another plan showing the five new rooms constructed on the second floor and showing the entire accommodation available with the respondents. Accommodation available with the respondents Nos.1 to 6 was shown in yellow colour and accommodation available with respondents No.7 was shown in green colour. During the pendency of the petition, petitioner also expired and it has been pleaded that after the demise of the petitioner, Tulsi Ram his wife Smt. Sumitra Devi who is aged about 70 years is staying in the premises in dispute comprising of only one room and one small room in front thereof and a small kitchen along with a domestic help. 18. The application filed by the petitioner for taking into consideration the subsequent facts has not been contested and no reply to the application has been filed. No one has appeared on behalf of the respondents. 19. I have heard the counsel for the petitioner in detail. The application filed by the petitioner for taking into consideration the subsequent facts has C.R.P.No. 4 0 2 / 2 0 0 0 Page 13 of 28 not been contested by the respondents. Whether the subsequent facts about the construction on the second floor of five more rooms can be taken into consideration or not, for deciding whether the petitioner is entitled for leave to defend and contest the eviction petition. Though the basic rule is that the rights of the party should be determined on the basis of the facts as disclosed on the date of the institution of the petition and the proceedings and the peti- tion should be tried at all stages on the cause of action as it existed at the time of commencement of the petition. This, however, does not mean that the events happening after institution of a petition cannot be considered at all. The court has the power and duty to consider changed circumstances. This would be more appropriate in cases where the relief originally claimed has by reason of subsequent change of circumstances has become in appropriate. In order to shorten litigation, it is required and considered necessary to take into consideration subsequent event which is also necessary to do complete justice between the parties. The Supreme Court considered about considera- tion of changed circumstances and subsequent facts considering various pre- vious judgments in Kedar Nath Agrawal v. Dhanraji Devi,(2004) 8 SCC 76 ,and held at page 83 at under : 18. Before about a century in Ram Ratan Sahu v. Bishun Chand, 11 CWN 732 the High Court of Calcutta observed that there are certain exceptions to the general rule that a suit must be tried in all stages on the cause of action as it existed at the date of its commencement. In C.R.P.No. 4 0 2 / 2 0 0 0 Page 14 of 28 Lachm e s h w a r Prasa d Shukul v. Kesh w ar Lal Chaudhuri (AIR 1940 FC 5) the Federal Court took into account the provisions of the new Act which came into force during the pendency of appeal before the Fed- eral Court. 19. In the leading decision of Pasup uleti Venkate s w arlu v. Motor & General Trader s ( 1975) 1 SC C 770, this Court considered a subse- quent event. The plaintiff filed a suit for possession on the ground of personal requirement for starting business and an order was passed in his favour. An appeal against the said order was also dismissed. The tenant filed a revision petition in the High Court. During the pendency of revision petition, the plaintiff acquired possession of another non- residential building. An application for amendment, therefore, was made by the tenant. The High Court allowed the amendment. The landlord challenged the order in this Court. It was contended by the landlord that the High Court had committed an error in taking cog- nizance of subsequent event which was “disastrous”. This Court, how- ever, held that the High Court did not commit any illegality in consider- ing the subsequent event. 20. Following Lachm e s h w a r Prasa d 4 law of “ancient vintage”, Krish- na Iyer, J. stated: (SCC pp. 772-73, para 4) “ 4 . We feel the submissions devoid of substance. First about the jurisdiction and propriety vis- is circum- stances which come into being subsequent to the com- mencement of the proceedings. It is basic to our proces- sual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal pro- ceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial pro- cess. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specif- ic provision or fair play is not violated, with a view to pro- mote substantial justice — subject, of course, to the ab- sence of other disentitling factors or just circumstances. Nor can we contemp late any limitation on this power to C.R.P.No. 4 0 2 / 2 0 0 0 Page 15 of 28 take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other spe- cial circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situa- tions for applications of this equitable rule are myriad. We affirm the propo sition that for making the right or rem e dy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cas e s must, take cautious cognizanc e of events and develop m e nt s sub s e q u e nt to the institution of the proce e ding provided the rules of fair- nes s to both side s are scrupulously obey e d .” (empha- sis supplied) 21. Pasup uleti Venkate s w arlu was followed in many cases. In Gulab - bai v. Nalin Narsi Vohra (1991) 3 SC C 483, an order of eviction was passed against the tenant on the ground of bona fide need of the land- lord. Subsequent event of shifting family of the landlord to a spacious bungalow constructed by him during the pendency of appeal, was con- sidered by this Court. 22. In Ram e s h Kumar v. Kesho Ram(AIR 1992 SC 700) this Court ob- served that a court can mould relief taking “cautious cognizance” of subsequent events. The Court also observed that all these depend on factual and situational differences and “there can be no hard-and-fast rule governing the matter”. 23. In Shadi Singh v. Rakha (1992) 2 SCC 55 a landlord sued a ten- ant for ejectment on the ground that the building required thorough re- pair. During the pendency of the suit, the tenant carried out necessary repair. Taking note of the event, this Court dismissed the suit of the landlord. 24. In Super Forgings & Steels (Sale s) (P) Ltd. v. Thyabally Rasuljee (1995) 1 SC C 410 dealing with power of this