Ravi Nath Sharma v. Jagdish Prasad Sharma Decd. Th R.Lr'S Ramesh Sharma & Ors

RAJIV SAHAI ENDLAW, J. AUGUST 28, 2017 R (corrected & released on 4th January, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 28th August, 2017 + RAVI NATH SHARMA (DECEASED) THROUGH LRS .....Petitioner Through: Mr. Arun Batta, Adv. Versus JAGDISH PRASAD SHARMA (DECEASED) THROUGH LRS & ORS. ..... Respondents Through: Mr. D.N. Goburdhan, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition under Article 227 of the Constitution of India impugns the order (dated 13th November, 2007 in RCA No.266/02 of the Court of Additional Rent Control Tribunal (ARCT), Delhi) allowing the appeal preferred by the respondent No.1 and setting aside the order (dated 2nd March, 2002 in E-113/2000 of the Court of Sh. V.K. Khanna, Additional Rent Controller (ARC), Delhi) allowing the petition for eviction filed by the petitioner under Section 14(1)(a) and (h) of the Delhi Rent Control Act, 1958. 2. The petition was admitted for hearing and notice thereof ordered to be issued to the respondents. The counsel for the respondent No.1 has been appearing. The respondents No.2 (Smt. Santosh), 3A (Sh. Ajeet Singh), 3B (Sh. Manjeet Singh) and 4 (Smt. Gyatri Devi) failed to appear despite service. The Trial Court record was requisitioned but only the record of the ARCT has been received and the record of the ARC has not been received. However, the matter being already old, it is now not deemed appropriate to adjourn the hearing for the said purpose. The counsel for the petitioner and the counsel for the respondent No.1 have been heard. 3. The petitioner, on 27th August, 1987 instituted the petition for eviction (from which this petition under Article 227 arises) under Section 14(1)(a) and 14(1)(h) of the Delhi Rent Control Act, 1958 for eviction of the respondent No.1 from property No. 51-B, Main Bazar, Pahar Ganj, New Delhi comprised of four rooms, latrine, bath and chajja on the first floor of the property, pleading (i) that the respondent No.1 was an old tenant in the property at a rent of Rs.42.50 paise per month and had become a tenant of the petitioner and the respondents No.2 to 4 by operation of law, after purchase of the property by the petitioner and the respondents No.2 to 4; (ii) that the respondent No.1 had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within the two months from the day which the notice of demand for arrears of rent was served on the respondent No.1; (iii) that the respondent No.1 had not paid the rent since 1st January, 1982 to 30th April, 1987; (iv) that a demand notice dated 15th December, 1983 was forwarded to the respondent No.1 under registered cover, AD; (v) that the respondent No.1 refused to accept the same; (vi) that the respondent No.1/ tenant had built, acquired vacant possession of or been allotted residence at E-67, Greater Kailash-II, New Delhi. 4. The respondent No.1 contested the petition for eviction aforesaid pleading (i) that the alleged legal notice dated 15th December, 1983 was only in respect of "the portion in the ownership that is the part of the rent that is rent @ of Rs.13.05 paise was demanded in the legal notice" "since no legal notices have been given for arrears of entire first floor by or other owners, the eviction petition is not maintainable"; (ii) that there was no mention in any of the previous legal notices that the premises was let out for residential purposes; (iii) that the petitioner is estopped from raising the plea of residential letting; (iv) that the respondent No.1 is carrying on business right from the inception of the tenancy as the same was let out for residential-cum-commercial purpose; (v) "that the petitioner has no cause of action against the respondent as the petitioner is neither the landlord nor the owner nor has any cause of action in his favour to file eviction in respect of whole first floor and second floor, of which he is neither owner nor any documentary proof to establish his right to pursue the case for eviction in respect of shop No.55 and 57 of which" the petitioner claims t