CM (M) No. 1518 of 2009 Page 1 of 37 IN THE HIGH COURT OF DELHI AT NEW DELHI CM (M) No. 1518 of 2009 Reserved on: 13th May 2010 Decision on: 12th July 2010 SANJAY MEHRA & ORS. ..... Petitioners Through: Mr. Sanjeev Sindhwani with Mr.Sanjay Dua, Advocates. versus SUNIL MALHOTRA & ANR. ..... Respondents Through: Mr. Deepak Gupta and Mr. Gaurav Shanker, Advocates. CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes JUDGMENT 1. An order dated 3rd December 2009 passed by the learned Additional Rent Controller („ARC‟) in Eviction Petition No. 26 of 2008 granting leave to the Respondents/tenants to defend the Eviction Petition preferred by the Petitioners under Section 14 (1)(e) of the Delhi Rent Control Act, 1958 („DRCA‟) is challenged by the Petitioners/landlords by way of the present petition under Article 227 of the Constitution. Background facts 2. The tenanted premises, which forms part of the property at 34 Hanuman Road, New Delhi, was let out to Diwan Hukam Chand Sahni, CM (M) No. 1518 of 2009 Page 2 of 37 the Predecessor-in-interest of the Respondents/tenants by Shri R.S.Devi Dayal Mehra, the grandfather of Petitioner No.1 and father of Petitioner No.2 by way of a lease deed dated 23rd August 1941. The tenanted premises include three servant quarters and one garage. It appears that Shri Krishan Lal Malhotra and others came to occupy the tenanted premises as tenants and sometime in 1942 Shri Devi Dayal Mehra instituted proceedings in the court of the learned ARC against the extension of the tenancy for a period of 12 months from 1st August 1942. This application was rejected by an order dated 22nd November 1942 of the learned ARC. 3. On 10th August 1943 the learned ARC passed an order disallowing the objections raised by Shri Devi Dayal Mehra to the extension of the tenancy by a further period of one year on the ground that he was not satisfied that the tenanted premises was required by the landlord bonafide for occupation by himself and the members of his family. This order was affirmed by the order dated 28th October 1943 of the learned Chief Commissioner of Delhi („the Appellate Authority‟). Eviction proceedings till 1970 4. A petition filed by Shri Devi Dayal Mehra seeking eviction of Shri Krishan Lal Malhotra and others on the grounds of non-payment of rent and misuse was rejected by the learned ARC by an order dated 29th July 1946. A formal order was later passed on 2nd August 1946 by the learned ARC. CM (M) No. 1518 of 2009 Page 3 of 37 5. Shri Devi Dayal Mehra instituted Case No. 429 of 1960 against Shri Tilak Raj Malhotra, the predecessor-in-interest of the Respondents/ tenants under Sections 14(1)(b), 14(1)(e) and 14(1)(k) of the DRCA on three grounds. The first was that the tenanted premises was bonafidely required by the landlords for the residence of himself and his family. The second was that the tenant had misused the premises for non-residential purposes and the third was that the tenant had after 9th June 1952 sub let, assigned or otherwise parted with part of the tenanted premises to malis and dhobis without prior consent of the landlord. This petition was rejected by the learned ARC by an order dated 28th October 1963. The appeal against the said order was dismissed by the Rent Control Tribunal („RCT‟) by an order dated 13th May 1964. This was further confirmed with the dismissal on 28th May 1970 of the second appeal SAO No. 267- D of 1964 by this court. 6. The finding by this Court on Section 14(1) (e) DRCA was that the accommodation available with the landlord was more than sufficient for his needs and that he did not bonafide require the tenanted premises. As regards the ground urged in terms of Section 14(1)(a) DRCA, the parties entered into a compromise on 22nd May 1970. The second appeal qua that ground was disposed of by this Court in terms of the said compromise. The above compromise recorded the undertaking of the Appellant landlord that two tenants in the property would be removed and that an area of 1200 sq.ft. of the tenanted premises would continue to remain in possession of the landlord for which the landlord had compensated the CM (M) No. 1518 of 2009 Page 4 of 37 Respondent @ Rs.45 per month. It is further agreed that the tenant would “continue to remain contractual tenant, on the same old terms and conditions, as agreed to with Dewan Hukam Chand vide lease deed dated 23rd August 1941, except the term as regards period.” An application filed in the said second appeal by Shri Devi Dayal Mehra for placing on record a copy of the settlement deed was dismissed as not pressed. 7. In August 1963 Shri Devi Dayal Mehra instituted a further eviction petition against Shri Tilak Raj Malhotra under Section 14(1)(g) of the DRCA. In terms of a compromise between the parties, the said suit was disposed of by an order dated 25th May 1971. The terms of this compromise, inter alia, that the landlord had abandoned the idea of reconstruction that he could retain 1200 sq. ft. of the tenanted premises which the tenant would not reclaim and for which the landlord had compensated the tenant at Rs.45 per month; that he would in future give a corresponding deduction in rent and that the Respondent would continue to remain a contractual tenant on the same terms and conditions as set out in the Agreement dated 23rd August 1941 except the term as regards period. The settlement deed, the 1971 declaratory decree and the Will 8. During the pendency of the above proceedings, on 25th September 1968, a settlement was entered into between Shri Devi Dayal Mehra and his son Shri Jai Dayal Mehra in respect of the suit property. The said settlement deed recorded the fact that the land on which the building at CM (M) No. 1518 of 2009 Page 5 of 37 34, Hanuman Road stood was a leasehold property originally purchased by the father of Shri Devi Dayal Mehra and transferred to him for construction of the main building and four residential independent flats. By way of the said settlement Shri Devi Dayal Mehra settled half of the plot on Shri Jai Dayal Mehra “to be enjoyed by him as owner like party No. 1”. Shri Jai Dayal Mehra and his successors were to be co-lessees along with Shri Devi Dayal Mehra in respect of the suit property. 9. Shri Devi Dayal Mehra filed Suit No. 181 of 1971 in the court of learned Sub-Judge Delhi for a declaration that the portion marked red in the site plan appended to the plaint belonged to Shri Devi Dayal Mehra and the portion marked yellow belonged to Shri Jai Dayal Mehra. On 17th March 1971, Shri Jai Dayal Mehra filed a written statement admitting that his father was the co-lessee of the land in which the suit property stood and further prayed that the suit may be decreed as prayed for. On 30th April 1971, a Suit No. 181 of 1971 was decreed by the learned Sub Judge, Delhi as prayed for in respect of the deed of settlement dated 25th September 1968 and the site plan appended to the plaint. 10. On 12th May 1976, Shri Devi Dayal Mehra executed a Will, the relevant portion of which reads as under: “And whereas making this my last Will I deem it prudent to make the following provisions about my property and assets which are singly and exclusively owned by me and in which I have exclusive right and power of disposal and transfer. CM (M) No. 1518 of 2009 Page 6 of 37 A. Immovable Assets Premises known as 34 Hanuman Road The front half portion of this plot mines the left approach from the main road of which I am the owner as per the orders dated 30/4/71 of Shri R.K. Sain J.I.C. Delhi in suit for declaration No. 181/71, I bequeath to my grandson Sanjay Mehra S/o Dr. Jai Dayal Mehra who would own it for his own good. 2. Premises known as 21 Ratendon Road, N.D. Half the portion of this of which I am the owner as per orders of Shri R.L. Gupta Sub-Judge 1st Class Delhi, in suit for declaration NO. 711/70 dated 30th November 70 I bequeath to my grand-daughter K. Jaishree Mehra Daughter of Dr. Jai Dayal Mehra who would own it exclusively for her own good. Mutation for these two properties is under correspondence with the concerned authorities.” Eviction petitions between 1976 and 1982 11. On 28th April 1976 Shri Devi Dayal Mehra and Shri Jai Dayal Mehra filed an eviction petition E-273 of 1970 against Shri Tilak Raj Malhotra under Section 14(1)(e) of the DRCA pleading bonafide requirement. It appears that Shri Tilak Raj Malhotra filed a suit on 14th October 1976 against Shri Devi Dayal Mehra and Shri Jai Dayal Mehra for a declaration that the decree dated 30th April 1971 passed by the learned Sub Judge in Suit No. 181 of 1971 was a nullity. CM (M) No. 1518 of 2009 Page 7 of 37 12. The eviction petition E-273 of 1973 was dismissed by the ARC on 9th October 1980. Thereafter, on 22nd September 1981 Shri Tilak Raj Malhotra withdrew the suit filed by him seeking a declaration that the decree dated 30th April 1971 passed in Suit No. 181 of 1971 was a nullity. The suit was thereupon dismissed as withdrawn. 13. With the death of Shri Devi Dayal Mehra on 17th February 1978, his portion of the suit property devolved upon his grandson Shri Sunil Mehra, Petitioner No.1 herein in terms of the Will dated 12th May 1976. Shri Devi Dayal Mehra expired on 17th February, 1978. It must be mentioned here that under the said Will Shri Devi Dayal Mehra had also bequeathed certain movable assets in favour of his son Shri Jai Dayal Mehra, Petitioner No.2 herein. In relation thereto Shri Jai Dayal Mehra filed a petition under Section 372 of the Indian Succession Act, 1925 for a succession certificate in respect of the debts and securities of late Shri Devi Dayal Mehra. This petition was allowed by an order dated 2nd February 1981 of the learned Sub Judge. 14. A further eviction petition being E-381 of 1982 was filed jointly by Shri Jai Dayal Mehra and Shri Sanjay Mehra against Shri Tilak Raj Malhotra under Section 14(1)(a) of the DRCA on the ground of non- payment of rent. This eviction petition was allowed by the learned ARC by the order dated 13th October 1987. This was affirmed by the RCT on 7th January 1988 with the dismissal of the appeal filed by Shri Tilak Raj Malhotra. This was further challenged by him by filing SAO No. 27 of 1988 in this Court. Ultimately, when the proceedings were pending in CM (M) No. 1518 of 2009 Page 8 of 37 this Court a compromise was arrived at between the parties on 21st August 1995, in terms of which the aforementioned Eviction Petition No. 381 of 1982 was disposed of. In terms of the compromise, a statement was made by Shri Tilak Raj Malhotra that he would pay future rent to the Petitioners by the 15th day of every month. On the basis of the above statement, the eviction petition was dismissed as withdrawn. Present eviction petition 15. Thereafter the present Eviction Petition No. 26 of 2008 under Section 14(1)(e) DRCA was jointly filed by Shri Sanjay Mehra, Shri Devi Dayal Mehra as well as other children of Shri Devi Dayal Mehra including Group Captain Har Dayal Mehra, late Shri Basant Dayal Mehra through his legal representatives, Major General Roop Dayal Mehra, Smt. Durga Khanna and Smt. Savitri Kaicker on 13th September 2006. The site plan of the suit premises was filed thereafter on 7th March 2007. It was specifically urged in the petition that the eviction was being sought “on account of bonafide necessity of Petitioner No.1 (Sanjay Mehra) and his family members which include his wife and minor daughter”. It was stated that “Petitioner No.1 & 2 are the only owners/landlords of the suit premises.” Further in para III in Clause 18 (a) of the Form, it was stated as under: “The Petitioners No. 3 to 7 who are the other relations of Petitioner No.1, being his uncles and aunts (brothers and sisters of Petitioner No.2), have no right, title or interest in the suit property they have only been made parties to avoid any technical objection and no relief is sought by them. CM (M) No. 1518 of 2009 Page 9 of 37 It is submitted that the father of the respondents, Late Shri T.R. Malhotra, had in the past, with malafide reasons and oblique motives, sought to tender rent to Petitioners Nos. 3 to 7 also on the false pretext of their being landlords and owners along with the Petitioners Nos. 1 & 2. The Petitioners Nos. 3 to 7 have in fact in earlier litigation under Section 14(1)(a) of the Delhi Rent Control Act, titled Shri Jai Dayal Mehra and another vs. Tilak Raj Malhotra & others, bearing Eviction No. 381/82, made statements/given no objections in the Court saying that they have no interest in the suit property. Petitioners Nos. 3 to 7 have been made parties only to avoid any technical objection being raised by the respondents and as stated, in fact and law the Petitioners Nos. 3 to 7 have no right, title or interest in the entire property. Petitioners Nos. 3 to 7 have along with this petition have sworn and given independent affidavits declaring that they have no right, title or interest in the property and there exists no relationship of landlord(s) and tenant between them and the Respondents.” 16. A reference was made specifically to the settlement deed dated 25th September 1968, the declaratory decree dated 30th April 1971, the Will dated 12th May 1976 and the grant of succession certificate by order dated 2nd February 1981. It was mentioned that on the basis of the declaratory decree dated 30th April 1971 and on the basis of the Will dated 12th May 1976, the Land & Development Office („L&DO‟) had CM (M) No. 1518 of 2009 Page 10 of 37 mutated/transferred the leasehold rights in respect of the suit property in favour of Petitioners 1 and 2. It is mentioned that Petitioner No.1 was at that time living with Petitioner No.2 in the portion behind the tenanted premises which is owned exclusively by Petitioner No.2. It was mentioned that “Petitioner No.1 has no right, title or interest in the said portion and in fact had been granted permissive user by Petitioner No.2.” 17. As regards the bonafide need, it was pleaded as under: “Lately, there have developed differences of opinion between the Petitioner No.1 and his wife on one side and the Petitioner No.2 on the other side, as a result of which the Petitioner No.2 has been repeatedly requesting the Petitioner No.1 to leave his portion of the premises, which the Petitioner No.1 as of now is occupying. As such the Petitioner No.1 is no more interested in continuing to live with Petitioner No.2 and left with no alternative, but to seek back his own portion occupied by the Respondents. Petitioner No. 1, therefore, bonafidely requires the suit premises for occupation for himself and the family members dependent upon him. Petitioner No.1 submits that in case he continues to live with Petitioner No.2, their relations are likely to deteriorate further to the extent of it becoming unpleasant to live with each other. Hence, the immediate need of getting the tenanted premises vacated. The Petitioner No.1 has no legal right, title or interest to stay in the portion owned by Petitioner No.2. CM (M) No. 1518 of 2009 Page 11 of 37 Petitioner No.1 submits that he has no other suitable accommodation in Delhi and is therefore left with no other alternative but to file the present eviction petition on the ground of bonafide necessity.” 18. An application was filed on behalf of Respondents under Section 25 B (4) and (5) of the DRCA seeking leave to contest the proceedings. The application was accompanied by the affidavit of Mr. Sunil Malhotra Respondent No.1. A reply was filed to the said petition by Petitioners 1 and 2 herein to which a rejoinder was filed by Mr. Sunil Malhotra. 19. By an order dated 6th June 2009, the learned ARC allowed the application filed by the Petitioners for bringing on record a certified copy of the site plan that was enclosed with the decree dated 30th August, 1971. Thereafter, an affidavit of Mr. Sunil Malhotra was filed raising, inter alia, objections to the genuineness of the certified copy of the site plan. On 8th October 2009, an application filed by the Respondents for bringing on record the institution register was dismissed by the learned ARC. Impugned order of the learned ARC 20. By the impugned order dated 3rd December 2009, the learned ARC allowed the application of the Respondents for leave to defend. The summary of the findings of the learned ARC is as under: (a) A bare perusal of the site plan filed on 7th March 2007 CM (M) No. 1518 of 2009 Page 12 of 37 suggested that three servant quarters, one garage and some space near the garage is not “in the ownership/landlordship of the Petitioner No.1 for whose bonafide the present eviction petition under Section 14(1)(e) has been filed.” (b) There was a dispute with regard to existence of the tenancy in favour of the Respondents/tenants with regard to one room shown in green colour in the yellow shaded area shown in the site plan filed on 7th March 2007. The Petitioners were not accepting the claim of the Respondents with regard to the tenancy of the said room in question unconditionally. (c) The deed of settlement dated 25th September 1968 did not specifically point out as to which portion of the suit property belonged to Shri Devi Dayal Mehra and which portion came to the share of Petitioner No.2. (d) Initially the site plan referred to in the decree dated 30th April 1971 was not produced by the Petitioner. It was filed only on 25th September 2008. The certified copy of the same was challenged by the Respondents as not being a genuine document. It was alleged that a certified copy of the site plan was not in conformity with the site plan filed on 7th March 2007. The learned ARC held as under: “As per the said certified copy of the site plan, three servant quarters and the space near garage has come to the ownership of the Petitioner No.2 and further some portion of the tenanted, near the CM (M) No. 1518 of 2009 Page 13 of 37 gate on the front portion of the property in question has also come to the ownership of Petitioner No.2. Keeping in view the said certified copy of the site plan, it cannot be concluded that Petitioner No.1 is the owner and landlord of the complete tenanted premises in use and occupation of Respondents as tenants.” (e) The Will dated 12th May 1976 also created certain doubts as to the site plan. (f) There was no need for the Respondents to file any site plan as to their version because there appeared to be no dispute as regards the extent of the tenanted premises but only as regards the ownership/landlordship of Petitioner No.1 qua the whole tenanted premises. (g) If Petitioners 1 and 2 were to be taken to be owners/landlords of every portion of the suit property as depicted in the site plan then it could not be said that Petitioner No.1 bonafide required the tenanted premised for occupation as a residence for himself. As far as the requirements of the Petitioners as to accommodation was concerned, there was no change since 1976 when the earlier petition under Section 14(1)(e) DRCA was dismissed. (h) Given the history of the litigation, the possibility of the Petitioners‟ version as regards the need for Petitioner No.1 to shift to his own portion in the premises being not bonafide and genuine “cannot be ruled out altogether.” CM (M) No. 1518 of 2009 Page 14 of 37 21. The impugned order held that there existed triable issues and accordingly granted the Respondents leave to defend. 22. This Court has heard the submissions of Mr. Sanjeev Sindhwani, learned counsel for the Petitioner and Mr. Deepak Gupta, learned counsel for the Respondents. Preliminary Objections as to maintainability 23. At the outset, a preliminary objection was raised by the Respondents/tenants that the remedy of the Petitioners/landlords against the order granting leave to defend was to file a revision petition under Section 25 B (7) of the DRCA and not under Article 227 of the Constitution. 24. Mr. Sindhwani has countered the preliminary objection referring to the proviso to sub-section (8) of Section 25 B DRCA which empowers the High Court to call for the record of the case and pass such orders in regard to any order made by the learned ARC as it thinks fit. Reference is made to the decisions in R.S. Bakshi v. H.K.Malhari 2002 (62) DRJ 272 (DB) and Vinod Kumar Chowdhry v. Narain Devi Taneja AIR 1980 SC 2012. 25. In Vinod Kumar Chowdhry a three-Judge Bench of the Supreme Court negatived the contention that the landlord could not have filed a revision petition against an order granting leave to defend thus negativing her right to recover possession. In other words, it was held that a CM (M) No. 1518 of 2009 Page 15 of 37 landlady could file a revision petition where the learned ARC had refused recovery of the possession of the premises. The above decision was, however, not noticed by a subsequent two-Judge Bench of the Supreme Court in Major D.N. Sood v. Shanti Devi (1997) 10 SCC 428 where it was held that a revision petition cannot be filed by the landlord against an order granting leave to defend. 26. A Division Bench of this Court considered the question whether the judgment in Major D. N. Sood prevailed, and answered the question in negative in R.S. Bakshi by explaining that the judgment in Major D. N. Sood, which was by a Bench of two Judges, failed to notice the earlier judgment of a Bench of three Judges in Vinod Kumar Chowdhry and therefore the judgment in Major D. N. Sood was clearly per incuriam. The law settled by the Supreme Court in Vinod Kumar Chowdhry was explained by the Division Bench of this Court by holding that a writ petition can be filed by a landlord against an order granting the tenant leave to defend in terms of the proviso to Section 25 B (8) of the DRCA. 27. The present petition under Article 227 of the Constitution could be treated by this Court as a revision petition in terms of the proviso to Section 25 B (8) of the DRCA. In that event, the scope of the jurisdiction of this Court could not be very different. In any event, this Court cannot act as an Appellate Court to scrutinise findings of fact. At the stage of granting leave to defend, the learned ARC was expected to form only a prima facie view and, therefore, the scope of the power of this Court to interfere whether in the revision petition in terms of the proviso to CM (M) No. 1518 of 2009 Page 16 of 37 Section 25 B (8) of the DRCA or Article 227 of the Constitution is not very different. 28. In the above view of the matter, this Court