Rakesh Kumar Vs. NitIn Garg and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1116140
CourtDelhi High Court
Decided OnJan-03-2014
JudgeMANMOHAN SINGH
AppellantRakesh Kumar
RespondentNitIn Garg and anr.
Excerpt:
* in the high court of delhi at new delhi % order pronounced on: january 03, 2014 + cm(m) no.1331/2012 & c.m. no.20431/2012 rakesh kumar through ..... petitioner mr.tanmaya mehta, adv. versus nitin garg & anr through ..... respondents mr.o.p.verma, adv. for r-1. respondent no.2 in person. coram: hon'ble mr. justice manmohan singh manmohan singh, j.1. by way of the present petition under article 227 of the constitution of india, the petitioner has assailed order dated 3rd november 2012 passed by the learned appellate court in an appeal filed by the petitioner against the respondents.2. brief facts for the purpose of adjudication of the present appeal are that respondent no.1 had filed an eviction petition against respondent no.2 under section 14 (1)(e) read with section 25b of the delhi rent control act (hereinafter referred to as “the act”). the matter was at the stage of petitioner’s evidence when the petitioner herein filed an application under order 1 rule 10 read with section 151 cpc for his impleadment as one of the respondents in the eviction petition on the premise that the suit property was taken on lease vide lease deed dated 1 st december 1987 from the previous owner by a firm, namely, m/s new heavens colour lab and that the petitioner was a partner thereof and thus, a co-tenant.3. the said application was contested by respondent no.1/landlord. the learned trial court dismissed the said application filed by the petitioner. aggrieved thereof the petitioner preferred an appeal. the learned appellate court on perusal of the application for impleadment filed by the petitioner noticed that the tenancy was originally created in favour of m/s new heaven colour lab (hereinafter referred to as “the said firm”), of which, the petitioner was one of the partners. however, on expiry of the term of partnership, which undisputedly was for a period of six years, in the year 1992, the affairs of the said partnership firm were wound up. the learned appellate court observed that on the winding up of the affairs of the partnership firm in the year 1992, the petitioner did not ever assert his tenancy rights in the suit property, and that except for the bald deposition of the petitioner that he continued to be a co-tenant in the suit property, nothing was pointed out. the petitioner was directed to file an affidavit alongwith the supporting documents in support of plea raised by him. however, only an affidavit was filed by the petitioner and a perusal thereof, it was found by the appellate tribunal that the petitioner was silent on the vital aspect of the petitioner continuing to be a partner of the said firm, after the expiry of the term of its partnership in the year 1992. it was opined by the learned appellate court that assuming that the petitioner continued to retain the tenancy rights in the suit property as a partner of the said firm, the other partner i.e. respondent no.2 was contesting the eviction proceedings instituted by respondent no.1.4. in the case of kanji manji vs. trustees of the port of bombay, air1963sc468 it was observed by the supreme court that “where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the suit against one of the joint tenant not impleading rest of the joint tenants was good and the suit cannot be dismissed on this ground. the plea of the petitioner that the petitioner was separately required to be served personally if therefore not tenable.” 5. in another case titled as rajender kumar sharma & ors. vs. leela wati & ors., 155 (2008) dlt383 it was observed by this court that “when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all joint tenants. it is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are living in the property or not. it is sufficient for the landlord to implead only those persons who are living in the property, as party. there may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those lrs who are in occupation of the property is sufficient for the purpose of filing eviction petition. an eviction petition against one of the joint tenants is an eviction petition against all the joint tenants and all joint tenants are bound by order of the rent controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. thus, the plea of the tenants on this count must fail.” 6. the main argument of mr.tanmaya mehta, learned counsel appearing on behalf of the petitioner is that it might be possible that the respondent no.2 who was the co-partner/tenant may collude with the landlord-respondent no.1 by surrendering the suit property which will hamper the interest of the petitioner thus his presence is necessary in the eviction proceedings. therefore, his application is liable to be allowed and both orders are liable to be set-aside.7. i do not agree with the arguments of the learned counsel; firstly on the reason that no such plea was taken by him in his application filed under order 1 rule 10 cpc. secondly, the said plea cannot be entertained in the jurisdiction of writ petition filed under article 227 of the constitution of india. thirdly, two courts below on the basis of averments made in the application did not accept the argument of the petitioner. the said findings cannot be interfered in the present petition.8. it is also pertinent to mention that as per earlier order passed by the court, both petitioner and respondent no.2 were given opportunity to file copy of the dissolution deed but none of them filed the same. the petitioner has informed that he was not sure as to whether the firm was dissolved or not. on the other hand, the respondent no.2 has taken the different stand by alleging that the firm was dissolved but he does not have the copy of dissolution deed. but it is denied by them that the partnership business was continued for six years only as per one clause of partnership deed. the said period expired in 1992. there is no iota of material, even prima facie placed on the record by the petitioner which may indicate that he has asserted his tenancy right in the tenanted property. thus, it appears that the application filed by the petitioner was not maintainable and it was rightly rejected by the learned trial courts below.9. the present petition in view of the reasons mentioned above is not maintainable, therefore, the same is dismissed. interim order stands vacated.10. no costs. (manmohan singh) judge january03 2014
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order Pronounced on: January 03, 2014 + CM(M) No.1331/2012 & C.M. No.20431/2012 RAKESH KUMAR Through ..... Petitioner Mr.Tanmaya Mehta, Adv. versus NITIN GARG & ANR Through ..... Respondents Mr.O.P.Verma, Adv. for R-1. Respondent No.2 in person. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.

1. By way of the present petition under Article 227 of the Constitution of India, the petitioner has assailed order dated 3rd November 2012 passed by the learned Appellate Court in an appeal filed by the petitioner against the respondents.

2. Brief facts for the purpose of adjudication of the present appeal are that respondent No.1 had filed an eviction petition against respondent No.2 under Section 14 (1)(e) read with Section 25B of the Delhi Rent Control Act (hereinafter referred to as “the Act”). The matter was at the stage of petitioner’s evidence when the petitioner herein filed an application under Order 1 Rule 10 read with Section 151 CPC for his impleadment as one of the respondents in the eviction petition on the premise that the suit property was taken on lease vide lease deed dated 1 st December 1987 from the previous owner by a firm, namely, M/s New Heavens Colour Lab and that the petitioner was a partner thereof and thus, a co-tenant.

3. The said application was contested by respondent No.1/landlord. The learned Trial Court dismissed the said application filed by the petitioner. Aggrieved thereof the petitioner preferred an appeal. The learned Appellate Court on perusal of the application for impleadment filed by the petitioner noticed that the tenancy was originally created in favour of M/s New Heaven Colour Lab (hereinafter referred to as “the said firm”), of which, the petitioner was one of the partners. However, on expiry of the term of partnership, which undisputedly was for a period of six years, in the year 1992, the affairs of the said partnership firm were wound up. The learned Appellate Court observed that on the winding up of the affairs of the partnership firm in the year 1992, the petitioner did not ever assert his tenancy rights in the suit property, and that except for the bald deposition of the petitioner that he continued to be a co-tenant in the suit property, nothing was pointed out. The petitioner was directed to file an affidavit alongwith the supporting documents in support of plea raised by him. However, only an affidavit was filed by the petitioner and a perusal thereof, it was found by the Appellate Tribunal that the petitioner was silent on the vital aspect of the petitioner continuing to be a partner of the said firm, after the expiry of the term of its partnership in the year 1992. It was opined by the learned Appellate Court that assuming that the petitioner continued to retain the tenancy rights in the suit property as a partner of the said firm, the other partner i.e. respondent No.2 was contesting the eviction proceedings instituted by respondent No.1.

4. In the case of Kanji Manji vs. Trustees of the Port of Bombay, AIR1963SC468 it was observed by the Supreme Court that “Where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the suit against one of the joint tenant not impleading rest of the joint tenants was good and the suit cannot be dismissed on this ground. The plea of the petitioner that the petitioner was separately required to be served personally if therefore not tenable.”

5. In another case titled as Rajender Kumar Sharma & Ors. vs. Leela Wati & Ors., 155 (2008) DLT383 it was observed by this Court that “When original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are living in the property or not. It is sufficient for the landlord to implead only those persons who are living in the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those LRs who are in occupation of the property is sufficient for the purpose of filing Eviction Petition. An eviction petition against one of the joint tenants is an Eviction Petition against all the joint tenants and all joint tenants are bound by order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.”

6. The main argument of Mr.Tanmaya Mehta, learned counsel appearing on behalf of the petitioner is that it might be possible that the respondent No.2 who was the co-partner/tenant may collude with the landlord-respondent No.1 by surrendering the suit property which will hamper the interest of the petitioner thus his presence is necessary in the eviction proceedings. Therefore, his application is liable to be allowed and both orders are liable to be set-aside.

7. I do not agree with the arguments of the learned counsel; firstly on the reason that no such plea was taken by him in his application filed under Order 1 Rule 10 CPC. Secondly, the said plea cannot be entertained in the jurisdiction of writ petition filed under Article 227 of the Constitution of India. Thirdly, two Courts below on the basis of averments made in the application did not accept the argument of the petitioner. The said findings cannot be interfered in the present petition.

8. It is also pertinent to mention that as per earlier order passed by the court, both petitioner and respondent No.2 were given opportunity to file copy of the dissolution deed but none of them filed the same. The petitioner has informed that he was not sure as to whether the firm was dissolved or not. On the other hand, the respondent No.2 has taken the different stand by alleging that the firm was dissolved but he does not have the copy of dissolution deed. But it is denied by them that the partnership business was continued for six years only as per one clause of partnership deed. The said period expired in 1992. There is no iota of material, even prima facie placed on the record by the petitioner which may indicate that he has asserted his tenancy right in the tenanted property. Thus, it appears that the application filed by the petitioner was not maintainable and it was rightly rejected by the learned Trial Courts below.

9. The present petition in view of the reasons mentioned above is not maintainable, therefore, the same is dismissed. Interim order stands vacated.

10. No costs. (MANMOHAN SINGH) JUDGE JANUARY03 2014