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P.N. Karkhanis Vs. P.N. Chopra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 406 of 1976
Judge
Reported in13(1977)DLT22
ActsDelhi Rent Control Act, 1958 - Sections 14A(1), 25B(1), 25B(5) and 49; Code of Civil Procedure (CPC), 1908 - Order 37, Rule 3(1); Registration Act, 1908 - Sections 17
AppellantP.N. Karkhanis
RespondentP.N. Chopra
Advocates: M.C. Bhandare,; B.R. Kohli,; F.C. Bedi and;
Cases ReferredOm Parkash v. Ram Nath and
Excerpt:
tenancy - eviction - sections 14a (1), 25b (1), 25b (5) and 49 of delhi rent control act, 1958, order 37 rule 3 (1) of code of civil procedure, 1908 and section 17 of registration act, 1908 - petition against order rejecting permission to contest eviction petition - no relationship of landlord and tenant between petitioner and respondent - contractual tenancy validly terminated - after death of tenant statutory tenancy did not devolve on heirs as such there was no non-joinder of parties - as per copy of lease deed premises let only for residential purposes - requirements of section 14a (1) not fulfillled - no need to implead all heirs of b - impugned order upheld. - - karkhanis hereinafter called the 'lessee'.as such the petitioner is completely a stranger to the parties to the.....yogeshwar dayal, j.(1) this is a revision petition on behalf of the tenant under provisio to sub-section (8) of section 25-b of the delhi rent control act, 1958, as amended by the delhi rent control (amendment) act, 1976 against the order dated june 4, 1976 passed by the rent controller, delhi rejecting her application seeking permission to contest the petition for eviction filed by the respondent against the petitioner under section 14-a read with section 14(1)(e) of the aforesaid act. (2) the respondent mr. p.n. chopra, son of mr. a.n. chopra, filed a petition for eviction of the petitioner, mrs. p.n. karkhanis on the ground that the premises in suit were let out to the tenant-respondent for residential purposes are required bonafide by the respondent landlord who is the owner thereof.....
Judgment:

Yogeshwar Dayal, J.

(1) This is a revision petition on behalf of the tenant under provisio to sub-section (8) of section 25-B of the Delhi Rent Control Act, 1958, as amended by the Delhi Rent Control (Amendment) Act, 1976 against the order dated June 4, 1976 passed by the Rent Controller, Delhi rejecting her application seeking permission to contest the petition for eviction filed by the respondent against the petitioner under section 14-A read with section 14(1)(e) of the aforesaid Act.

(2) The respondent Mr. P.N. Chopra, son of Mr. A.N. Chopra, filed a petition for eviction of the petitioner, Mrs. P.N. Karkhanis on the ground that the premises in suit were let out to the tenant-respondent for residential purposes are required bonafide by the respondent landlord who is the owner thereof for occupation as residence for himself and for members of his family, dependent upon him. It was further alleged that the respondent-landlord is a Chief Engineer, Metropolitan Transport Project Ministry of Railways and in that capacity had been allotted bungalow No. 28, Railway Colony, Sardar Patel Marg, New Delhi and the landlord has been notified by the Central Government to vacate and surrender possession of the Government accommodation by December 31, 1975 and that the petitioner has no accommodation in his possession. It was also alleged in the petition that Shri N.D. Karkhanis, husband of Mrs. P.N. Karkhanis, was a statutory tenant. His tenancy was determined by notice dated June 18, 1973 sent by registered A.D. post. A reply to this notice, dated June 28, 1973 was also received. It was also averred that under the Delhi Rent Control (Amendment) Ordinance, 1975 (No. 24 of 1975), only Mrs. P.N. Karkhanis had become the tenant in place of Mr. N.D. Karkhanis. It was also pleaded that a notice dated December 7, 1975 terminating the tenancy of Mrs. P.N. Karkhanis had been duly served on her and all other heirs have also been asked to deliver the possession.

(3) On summons being served on the petitioner in accordance with the form specified in the third Schedule of the Delhi Rent Control (Amendment) Act, 1976, the petitioner filed an application dated March 20, 1976 praying for leave to defend the petition being granted and the main petition being heard on merits. Along with the said application, an affidavit of the petitioner of the same date was also filed.

(4) The petition came up for hearing on March 23, 1976 when it appears, another application dated March 20, 1976 under sub-section (5) of Section 25-B of the Delhi Rent Control Act, as amended, was also filed. It appears that copy of this second application filed on March 23, 1976, was supplied to the respondent. In the eviction application filed by the respondent which was in the prescribed form for applications under the unamended Delhi Rent Control Act, 1958 it was averred by the respondent against column No. 9 that 'the premises were let out to Shri N.D. Karkhanis, Senior Advocate, Supreme Court of India. He was a statutory tenant and he died in August, 1975. Under the Delhi Rent Control (Amendment) Ordinance, 1975 Smt. P.N. Karkhanis is the sole tenant'. In column No. 14 which required 'date on which the premises were let to the tenant and details of agreement, if any, with the landlord, (Attested copy of the agreement to be attached)', it was stated '14. 1-6-1962. The premises were let out for residential purposes'.

(5) In the application dated March 20, 1976 filed by the petitioner, the petitioner, inter alia, urged the following grounds for leave to contest the prayer for eviction from the premises in dispute. (1) that the opening para of the agreement to let reads as :

'This agreement made this 29th day of May 1962 to constitute the terms of the lease between Shri A.N. Chopra of 54, Sunder Nagar, New Delhi herein after called to 'Lesser'.................. and Shri N.D. Karkhanis s/o D.G. Karkhanis hereinafter called the 'lessee'.................................................................... As such the petitioner is completely a stranger to the parties to the afore- said agreement as well as to the petitioner and, thereforee, the petitioner had no locus standi to file this petition. In other words, relationship of landlord and tenant was denied ; (2) That there is no averment about the termination of tenancy of the contractual tenant, late Shri N.D. Karkhanis during his life time in the petition. Consequently the tenancy in the demised premises has devolved upon Mrs. P.N. Karkhanis and her children, in accordance with the general law of inheritance : (3) that in view of the above ground, the petition is had for nonjoinder of necessary parties : (4) that the respondent is neither the owner nor the landlord : (5) that since the respondent is neither the owner nor the landlord, the ground for eviction under section 14(1)(e) of the Act, as amended, is also not available to the petitioner.'

(6) Shri P.N. Chopra filed a reply dated April 27, 1976 to the application of the petitioner, for leave to defend and he challenged the right of the petitioner to be granted the leave to defend the eviction petition under section 14A of the Delhi Rent Control Act, as amended.

(7) In reply, it was submitted that 'ate Shri N.D. Karkhanis had throughout been receiving receipts from him through his general attorney Shri A.N. Chopra. All notices had been issued on his behalf through his general attorney, Shri A.N. Chopra 'The contents of the alleged agreement were not admitted. It was also pleaded that the agreement is not admissible and is unregistred. Late Shri N D. Karkhanis had been regularly paying rents to the petitioner. It was also pleaded that the respondent is the owner of the property in dispute and the property was constructed on land leased out by the President of India vide registered perpetual lease-deed dated September 9, 1955. The said property is also mutated in the name of the respondent Shri P.N. Chopra in the house tax records and other municipal records. The respondent Shri P.N. Chopra had granted a general power of attorney in favor of his father Shri A.N. Chopra as he himself had been posted out of Delhi. It was further submitted that the tenancy of Shri N.D. Karkhanis the contractual tenant, was determined by a notice dated June 18, 1973 and it was replied to by Shri N.D. Karkhanis by his reply dated June 28, 1973. A copy of this notice dated June 18, 1973 sent on behalf of the respondent to Shri N.D. Karkhanis and the reply of Shri N.D. Karkhanis dated June 28, 1973 were also filed. It was denied that any other heir except Mrs. P.N. Karkhanis is a tenant after the death of N.D. Karkhanis. It was submitted that there was thus no non-joinder of any party. It was further pleaded that the premises had been let out by the responded through his general attorney, Shri A.N. Chopra and a photostat copy of the general power of attorney dated July 8, 1954 was also filed, lt was further stated that the respondent has been mostly serving outside Delhi as an employee of the Government of India Ministry of Railways and the tenancy of Mrs. P.N. Karkhanis had also been determined. In reply, the respondent also placed on record a photostat copy of the registered perpetual lease-deed dated September 9, 1955 in favor of the respondent granted to him by the President of India. The respondent also placed on record the original counter-foils of the receipts issued to Shri N.D. Karkhanis for and on behalf of the respondent. It was also submitted that Shri N.D. Karkhanis has throughout been paying rents to the respondent and neither he nor his widow and his heir can deny the title of the respondent. It was further submitted that the Government of India had been originally charging Rs. 144.15 per month for the accommodation allotted to the respondent No. 28, Railway Conloy, Sardar Patel Marg, New Delhi but after the enforcement of the new rules and orders, the provisional rent of the accommodation in his possession had been raised to Rs. 864.90 per month though officially the market rent would be Rs. 1,415.37 per month. This rent of Rs. 1,415.37 is now being deducted out of the salary of the respondent and is being realised by the Railways. A certificate of this effect issued by the Office of the Chief Administrative Officer, Metropolitan Transport Project, dated March 5, 1976 was also filed. This reply was also supported by an affidavit of Shri P.N. Chopra and Along with the affidavit the respondent also filed the postal registration receipt and postal A.D. card of the notice dated June 18, 1973. The original counter-foils of the receipts issued were also filed and it was stated that the last counterfoil receipt for the month of May, 1975 was signed by Anil Karkhanis son of late Shri N.D. Karkhanis. This reply in affidavit on behalf of the respondent was filed on April 27, 1976 which was the date fixed by the Rent Controller for filing of his reply, documents and arguments. This case was, thereafter adjourned to April 29, 1976 for arguments. On the date of arguments, the petitioner filed an application under Order Vi, rule 17 Civil Procedure Code for amendment of her application filed under section 25-B(5) of the Delhi Rent Control Act, as amended :

In the aforesaid application under Order Vi, rule 17 Civil Procedure Code the petitioner sought leave to add three more grounds to her original application seeking leave to defend the eviction petition. The first additional plea sought to be raised was that the notice dated December 7, 1975 was illegal because instead of terminating the tenancy after Japs of six months, it tends to terminate the tenancy after a few days of its service. The second ground sought to be added was that the premises were let for office-cum-residential purposes and as such the ground of bonafide necessity as per section 14(1)(e)oftheActisnot available to the respondent. The third ground was that the notice dated December 7, 1975 does not describe the premises completely and, thereforee, it is ineffective, ft was also submitted in this application for amendment that according to the plea of the respondent the agreement to let is inadmissible in evidence and because of the fact that according to the agreement to let dated May 29, 1962, the tenancy was from year to year and the same was not registered the notice dated December 7, 1975 ought to have been for six months.

(8) On the same date, the petitioner filed a rejoinder to the reply filed on behalf of the respondent to her application for leave to defend the eviction petition. The respondent also filed his reply to petitioner's application for leave to amend her application for contesting the eviction petition. It was submitted that the plea have no substance and the application ought to be rejected.

(9) Before the arguments could be heard, the petitioner filed an application under section 151 of the Code of Civil Procedure for filing certain documents as additional evidence supporting her contentions. Along with this application, the petitioner filed a bunch of correspondence between Shri N.D. Karkhanis and Shri A. N. Chopra, father of the respondent as well as certain rent receipts issued to Shri N.D. Karldianis by Shri A.N. Chopra right from July, 1962 to December, 1968.

(10) As stated above, the Rent Controller dismissed the application of the petitioner seeking permission to contest the eviction proceedings and deeming the allegations in the eviction petition of the respondent to be correct the Rent Controller passed an order for eviction under section 14A(1) of the Act in favor of the respondent and against the petitioner and directed the petitioner to deliver vacant possession of the premises in dispute to the respondent within two months from the date of this order.

(11) While refusing the application for leave to defend the eviction application, the Rent Controller held that the plea of the petitioner that the respondent landlord is not the owner or the landlord is without force. The Rent Controller further held that the respondent was the landlord and the owner that Shri A.N. Chopra was the attorney of the respondent and has been issuing rent receipts and has been corresponding with Shri N.D. Karkhanis and the printed receipts were issued in the name of the respondent as is evident from the counterfoils of the receipts on record, which are signed by late N.D. Karkhanis for the period from 1971 to 1975. The Rent Controller also held that in view of the photostat copy of the registered general power of attorney executed by the respondent in favor of his father Shri A.N. Chopra, registered in fiftees, Shri A.N. Chopra was patently acting on behalf of the respondent. The Rent Controller also held that since the respondent was the landlord, the contractual tenancy of Shri N.D.Karkhanis was validly terminated by the-respondent and, thereforee, after the death of Shri N.D. Karkhanis the statutory tenancy did not devolve on all the heirs but only on Mrs. Karkhanis the petitioner in view of the provisions of the Delhi Rent Control (Amendment) Act and thus there is no non-joinder of necessary parties. The Rent Controller further held that the plea that the premises was let for residential-cum-commercial purposes is untenable because as per copy of the lease-deed produced on the record the premises were let out to Shri N.D. Karkhanis only for residential purposes. The Rent Controller also held that it is not disputed that the respondent is allottee of the government accommodation which he has been called upon to vacate and on his failure to vacate he is being charged Rs. 1,415.57 per month.

(12) Shri Bhandare, learned council appearing on behalf of the petitioner, submitted that it was a fit case where the Rent Controller ought to have granted the petitioner's prayer for leave to contest the eviction petition. In this connection, the learned counsel urged only three following grounds which he had taken before the Rent Controller :

(1) The first ground was that there is no relationship of landlord and tenant between the petitioner and the respondent. (2) The second ground is that the notice dated June 18, 1973 sent by the respondent to Shri N.D. Karkhanis was defective and the contractual tenancy of Shri Karkhanis continued till his death and since all the heirs of Shri N.D. Karkhanis have not been imp leaded, the eviction petition was liable to be dismissed on account of non-joinder of necessary parties. (3) The third ground is that the purpose of letting of the premises in dispute was not merely residential, but was both residential and commercial. It will be noticed that though initially the application for eviction was both under section 14(1)(e) and Section 14A(1) of the Act, but Rent Controller passed the order of eviction only under section 14(1). The requirements of Section 14A(1), without its proviso, are as under : (i) There should be relationship of landlord and tenant between the petitioner and the tenant. (ii) Such landlord should be a person in occupation of residential premises allotted to him by the Central Government or local authority. The allotment and the occupation by the landlord are both essential ingredients. (iii) Such landlord should be required by the Central Government or any local authority who has allotted such accommodation to vacate such residential accommodation by general or special order or in default to incur certain obligations on the ground that landlord owns in the Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child and (iv) From the date of the aforesaid order, the cause of action accrues to such landlord as mentioned above.

(13) During the hearing of the revision petition the ownership of the premises in dispute by the respondent was not contested on behalf of the petitioner.

(14) What was contested, as stated above, was the relationship of landlord and tenant between the parties out of the aforesaid essential prerequistes for the application being made under section 14A(1). I shall deal with this ground a little later. I propose to deal first with ground reiterated before this Court, namely, the alleged defect in the notice dated June 18, 1973 for the purpose of showing that the contractual tenancy not having been properly determined, the petition was had for nonjoinder of other heirs of late Shri N.D. Karkhanis and the ground relating to the purpose of letting being Residential-cum-commercial

(15) The respondent had filed a copy of his notice dated June 18, 1973 as well as reply received from Shri N.D. Karhhanis dated June 28, 1973. This fact was alleged in paragraph 19(1) of the eviction petition. In spite of this averment in the eviction plea taken in the application for leave to defend was that there was no averment about the termination of the tenancy of the contractual tenant. There was no plea that the notice dated June 18, 1973 was in any way defective. In fact, no affidavit was filed in support of the second application for leave to defend, dated March 20, 1976, but filed on March 23, 1976. An affidavit dated March 20, 1976 was filed in support of the first application for leave to defend filed on March 20, 1976 and even in that the notice dated 12-6-1973 (apparently referring to notice dated 18-6-1973) allegadly terminating the contractual tenancy is illegal on the face of it because it merely tends to create some illegal piece of evidence for use in further litigation and as such the notice is illegal and ineffective. In this notice it is expressly mentioned that the contractual tenancy is terminated with effect from 31st July, 1973. This notice clearly complies with the provisions of the Section 106 of the Transfer of Property Act. The portion of the notice objected to is the later part thereof which states as under :

'This notice is being given to you to ensure that your tenancy does not become heritable and that you continue to remain in possession of the premises only as a statutory tenant with no heritable rights. It is specifically made clear that after termination of your tenancy, if you stick to the demised premies, you will purely be a statutory tenant i.e. you will simply be continuing as a tenant because of the protection afforded to you under the Rent Control Legislations in force in Delhi & New Delhi.'

This averment in the notice does not in any way render the termination of tenancy either as illegal or ineffectual. It clearly called upon Shri N. D. Karkhanis to vacate the tenancy premises and in no way gave a license to the tenant to continue in possession. The mention of the tenancy ceasing to be heritable appears to have been made by way of abundant caution.

(16) I have gone into the question of validity of the notice, not with the idea of probing whether it is essential or not to give such a notice for a petition under section 14A(1) but only because of the point that unless the contractual tenancy is determined it is heritable and if it is determined it becomes statutory and is heritable only as per the provisions of section 2(L) of the Act which defines 'tenant.' The notice of termination of tenancy being valid, the petitioner only inherited the tenancy after the death of Shri N. D. Karkhanis : and there is no merit, whatsoever, in the submission of the learned counsel for the pertioner that the petition is bad for non-joinder of proper parties. There is no dispute about the receipt of this notice or sending the reply thereto by Shri N. D. Karkhanis, dated June 28,1973.

(17) Coming to the question of the purpose of letting, this plea was raised on behalf of the petitioner in her application dated April 29, 1976 for amending the application filed on her behalf for leave to contest the application. The plea, as stated above, was that the premises were let out for and were being used for office-cum-residential purpose by the late Shri N.D. Karkhanis as such the ground of bona fide necessity as per section 14(l)(e) of the Delhi Rent Control Act is not, available to the petitioner. There was no plea regarding the purpose of letting for purposes of the application under section 14A(1). Even if the argument of the learned counsel for the petitioner that the premises were let to the tenant for residential-cum-commercial purpose is conceded for the sake to argument it is of no consequence. The phrase 'residential accommodation' as used in section 14A(1) simply means that the accommodation should be capable of being used as a residence or should have been built as a residence. It is not disputed that the premises occupied by the tenant are capable of being used as a residence as they are a part of residential house. Even if a portion of it was been used by Shri N. D. Karkhanis as his office, this would merely mean the purpose being other than residential but would not convert a residential accommodation into a non-residential accommodation. To the same effect are the observations of Desphande, J. in Om Parkash v. Ram Nath and others.

(18) The main ground on which the learned counsel for the petitioner laid stress was the first ground, namely, that there was no relationship of landlord and tenant between the petitioner and the tenant and it was Shri A.N. Chopra who was the landlord vis-a-vis the premises in dispute. It was submitted by learned counsel for the petitioner that the Rent Controller, while giving a finding about the relationship of landlord and tenant, apart from ignoring the mass of documentary material filed by the petitioner, has wrongly approached the question and declined the application for leve to defend, ft was submitted that for purposes of the grant of leave to defend, all that the petitioner-tenant was required to do was to disclose in the affidavit such facts as would disentitle the landlord from obtaining an order of recovery of possession of the premises on the ground specified under section 14-A. At this stage, the court is not supposed to go into the trial. That stage will arise only after the leave to defend is granted and the petitioner-tenant is given opportunity to lead evidence. For purposes of grant of leave, all that is required is to see if there was a triable issue. It was urged that one of the pleas raised by the petitioner was the existence of relationship of landlord and tenant between the parties and even if all the conditions of section 14-A(1) are satisfied, it would be of no avail to the respondent unless he was landlord of the premises, apart from being owner, vis-a-vis the tenant.

(19) The provision of Section 25B(5) of the aforesaid amending Act are in some way similar to the provisions of Order 37 rule 3(1) Civil Procedure Code Under rule 3(1) of Order 37 of the Code, the court is required to grant the application for leave to defend the suit based on a negotiable instrument, if the affidavits disclose such facts as would make it incumbent on the holder to prove consideration or to give such other facts as the court may deem sufficient to support the application. Under the provisions of sub-section (5) of Section 25B the Controller is required to give leave to the tenant to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises. In this way, if the language of the provisions of rule 3(1) of Order 37 and subsection (5) of Section 25B is compared, the latter part of Rule 3(1), namely 'or such other facts as the court may deem sufficient to support the application' are missing from section 25B(5). Again, under rule 3(2) of Order 37 Civil Procedure Code , leave prayed, in the discretion of the court, may be given unconditionally or subject to such terms as to payment into court or giving security. But there is no such provision in section 25B of the amending Act. The requirement of sub-section (5) is that the affidavit filed by the tenant must disclose facts as would disentitle the landlord from obtaining an order for recovery of possession. The affidavit is not supposed to contain merely the grounds for obtaining leave. It must contain detailed specific facts to substantiate the ground on which the application is opposed.

(20) It will be noticed that in the first application for leave to defend, apart from raising the plea that there was no relationship of landlord and tenant between the parties no other fact was pleaded. The first application was supported by affidavit. The second application which was filed for leave to contest on March 23, 1976 was not supported by an affidavit at all. The pleas in this application are already extracted above and here the reliance was placed on an agreement of lease dated 29th day of May, 1962 between Shri A.N. Chopra and Shri N.D. Karkhanis. No other facts were averred. Even if I ignore the fact that there was no affidavit in support of this application, the alleged agreement dated 29th May, 1962, copy whereof has been placed on record ; is wholly inadmissible in evidence as it purports to be a lease for one year. It is not a registered document. The document of lease relied upon is thus wholly in admissible in evidence and there can be no two opinions about it. The document was compulsorily registerable under the provivisions of Section 17 of the Registration Act and its admissibility is completely barred under section 49 of that Act. This document cannot be looked into for purposes of creation of a lease or any interest in the property. It can only be looked into for a collateral purpose of finding out the nature of possession of the petitioner. No other fact showing the creation of tenancy in favor of Shri A.N. Chopra or how the petitioner was claiming as a tenant of Shri P.N. Chopra was disclosed in the affidavit. It was not even stated that the rent was being paid by the petitioner to Shri A.N. Chopra as the landlord or that Shri P.N. Chopra was receiving the rent as landlord. Strictly speaking, the court could not look into any other fact except those which are disclosed by the tenant in her affidavit in support of application for leave to contest the eviction application.

(21) In spite of the aforesaid difficulty, learned counsel for the petitioner, referred me to the moss of correspondence exchanged between late Shri N.D. Karkhanis and Shri A.N. Chopra, father of P.N. Chopra and the various receipts passed on by Shri A.N. Chopra towards rent. It was submitted on the basis of these documents that Shri A.N. Chopra was the landlord and it was only with Shri A.N. Chopra that late Shri N.D. Karkhanis dealt with and the present respondent was a complete stranger to him or to the petitioner and these facts are sufficient for grant of leave to defend the eviction petition. In this connection, learned counsel also pointed out that the cheques for payment of rent were all being sent in the name either of Shri A.N. Chopra, father of the respondent or Shrimati Matwali Devi, mother of the respondent. It was submitted that had the respondent been the landlord of the premises, all these payments would have been made in the name of Shri P.N. Chopra, the respondent and not in the name of Shri A.N. Chopra or the mother of the respondent. One difficulty in considering these documents is already pointed out above, namely, that these facts were not stated in the affidavit. In none of the letters exchanged between Shri A.N. Chopra and Shri N.D. Karkhanis, Shri A. N.Chopra described himself as the landlord. In the receipts also Shri A.N. Chopra does not describe himself as the landlord though he signs them.

(22) On the other hand, the case of Shri P.N. Chopra, respondent in his reply affidavit, was very clear. It was stated that Shri A.N. Chopra is his father and general attorney vide registered general power of attorney dated July 8, 1954, a photo-stat copy of which was placed on record, and this power of attorney gave authority to Shri A.N. Chopra to let out the property, to receive rents etc. from the tenants on behalf of Shri P.N. Chopra, the respondent.

(23) If the matter had rested merely on that, one could see that the case involved disputed questions of fact and would raise triable issue but I find during the life time of Shri N.D. Karkhanis the contractual tenancy of Shri N.D. Karkhanis was determined vide notice dated June 18,1973 mentioned above. This notice was sent on behalf of Shri P.N. Chopra, the respondent specifically mentioning Shri P.N. Chopra as the landlord through his general attorney Shri A, Chopra. This notice was replied to by Shri N.D. Karkhanis by his admitted reply dated June 23, 1973 : though the reply was addressed to Shri A.N. Chopra it nowhere disputed Shri P.N. Chopra on whose behalf the notice was sent as being stranger or having no authority to describe himself as the landlord. This really clinches the issues.

(24) Apart from this, the respondent also placed on record counter foils of six rent receipts signed by Shri N.D. Karkhanis which show Shri P.N. Chopra as the owner, by way of sample receipts for the period April, 1971 to May 22, 1975. These rent receipts were filed on behalf of the respondent along with his affidavit as Annexure A-7 to A-12. The last receipt Annexure A-12 is signed by the son of the petitioner. It is true that in these counter-foils of the rent receipts, Shri P.N. Chopra is described as an owner and not as a landlord but for reasons best known to her, the petitioner did not choose to file the original receipts to which these counterfoils related though she chose to file rent receipts right from August, 1962 to December, 1968. Even no Explanationn was given in the re-joinder filed on her behalf to the reply affidavit of the respondent to these counter-foils of rent receipts. The counter-foil rent receipts were not even denied.

(25) Shri Bhandare, learned counsel for the petitioner, however, submitted that these counter-foil receipts, if at all, merely show that the respondent became landlord for the first time since April 1, 1971 and that is not the case of the respondent. It was submitted that the application for eviction in column No. 14, the date on which the premises were let out was described as 1-6-62 and, thereforee, these counter-foil receipts from 1-4-1971, if at all, merely show a case of novation of original letting contract between Shri A.N. Chopra and Shri N.D. Karkhanis to between Shri N.D. Karkhanis and Shri P.N. Chopra, the respondent. I am afraid this is a new point which is being urged in the revision petition. The case of the respondent has always been that he is the landlord from the very beginning when the premises were let out. It was not his case that the tenancy charged in his favor in 1971. This argument, in fact, was a sort of defense which was sought to be taken up for the first time in the revision petition and was not the case of either party in the court below. The argument of Shri Bhandare was that the counter-foil rent receipts from 1971 to 1975 show a novation and the petition must fail as novation is not pleaded by the respondent in the eviction petition. As stated earlier, this was never the case of the respondent. The respondent filed the counter-foils merely to re-enforce his case that he was always treated as owner landlord of the premises, by shri N.D. Karkhanis and the notice sent oil his behalf dated June 18, 1973 supported the same and was not disputed even by Shri N.D. Karkhanis. Shri N.D Karkhanis would have the best person and the first person to straightway deny his relationship as a tenant of the respondent in reply to the notice dated June 18, 1973 sent by the respondent.

(26) For all these reasons, I find no cogent ground to interfere in revision with the discretionery order passed by the lerrned rent Controller, declining leave to the petitioner to contest the eviction petition.

(27) The revision petition, thereforee, fails and dismissed. However, the parties are left to bear their owen costs.

(28) The learned counsel for the petitioner wants time to vacate the premises by November 30, 1976 and undertakes to vacate the same by that date. In view of this undertaking, learned counsel for the respondent has no objection to the time being granted to the petitioner to vacate the premises by November 30, 1976.


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