KANTA RANI Vs. KISHAN LAL

JUDGEMENT

(1.) Aggrieved by the order dated 24th April, 2012 dismissing the application of the petitioner seeking grant of leave to defend in an eviction petition filed by Kishan Lal under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958 (in short the DRC Act) the petitioner prefers the present petition.

(2.) In the eviction petition Kishan Lal stated that the tenanted premises comprising of three rooms, one bathroom, one kitchen, one toilet, verandah and open gallery/ Court yard situated at ground floor of property bearing No.5846, Block No.4, Gali No.6, Dev Nagar, Karol Bagh, New Delhi was let out to the petitioner for residential purposes on a monthly rent of Rs. 200/- excluding water and electricity charges which was let out initially to the husband of the petitioner namely late Shri Mohinder Lal vide rent note/ agreement dated 30th January, 1969, however later in June 1973 the petitioner in connivance with her husband Shri Mohinder Lal by playing a fraud on Kishan Lal got the tenancy changed in favour of the petitioner in respect of the ground floor portion of the suit property whereas the first floor portion of the suit property was occupied by another tenant of Kishan Lal namely A. Mitra and second floor of the suit property was in possession of Kishan Lal. A. Mitra handed over the possession of the first floor of the premises to Kishan Lal in the year 1977 and since then the first floor, second floor and the third floor which has one store are in possession of Kishan Lal. It was further stated by Kishan Lal that he was a senior citizen aged 81 years old and had a large family comprising of four sons, Pyare Lal, Panna Lal, Hardwari Lal and Brij Mohan. Besides he had five married daughters who were also frequently visiting family but due to paucity of accommodation Kishan Lal was not in a position to accommodate them. It was further stated that Kishan Lal along with his son Panna Lal and Hardwari Lal and their families consisting of 20 persons were living in the said house on the first and second floor and third floor being store. Due to shortage of accommodation the other son of Kishan Lal namely Pyare Lal has been residing at Bapa Nagar. Pyare Lal and his family members also visit Kishan Lal often but due to shortage of accommodation Kishan Lal is not able to accommodate them. The fourth son of Kishan Lal i.e. Brij Mohan was posted at Bombay who also visit Shri Kishan Lal occasionally with his family members. It was further stated that Kishan Lal had no other reasonably suitable residential accommodation either in Delhi or elsewhere and thus the ground floor portion of the property was required for the bonafide requirement of Kishan Lal. In the eviction petition Kishan Lal also stated that redemption of mortgage suit against the husband of the petitioner herein was filed by Kishan Lal and after the death of Mohinder Lal, the petitioner herein was the contesting respondent in the suit. Further, Mohinder Lal, the husband of the petitioner had filed a suit for specific performance by forging signatures of Kishan Lal and that Kishan Lal had never entered into any agreement to sell in respect of suit property with Mohinder Lal. It was further stated that the petitioner has not paid rent in respect of the tenanted premises despite the fact that the mortgaged amount has already been adjusted long back. The petitioner herein also filed false and frivolous petition against Shri A. Mitra, the other tenant of Kishan Lal which was dismissed on 17th July, 1987 and the appeal against the said order was also dismissed by the Rent Control Tribunal on 19th September, 1989. Second Appeal against Order (SAO) of the Rent Control Tribunal was also dismissed on 8th August, 2010 where after A. Mitra handed-over the possession of the first floor to Kishan Lal.

(3.) In the leave to defend application, the petitioner contended that Kishan Lal was not the owner of the suit property and had mortgaged the entire suit property including the tenanted premises to the deceased husband of the petitioner on 4th June, 1973 for a sum of Rs. 33,000/-. The mortgaged amount was to carry an interest @ 7.5% which was payable every six months and the mortgage was for 5 years. The mortgage deed was duly registered and the original documents of ownership were in possession of the late husband of the petitioner. To get an interest on the mortgaged amount a registered rent note was executed in favour of the petitioner for the rent of Rs. 200/- per month and this arrangement had continued till the filing of the leave to defend application. So long as the property is not redeemed the tenancy of the petitioner would continue. Neither Kishan Lal was required to pay interest on the mortgaged amount nor the petitioner was liable to pay the rent of the suit property as the rent of the property was to be adjusted towards the loan amount and till the mortgage is subsisting, eviction petition was not maintainable. Further on 19th December, 1974 Kishan Lal agreed to sell the entire suit property which is 21/2 storied constructed building which includes the tenanted portion for a total sale consideration of Rs. 80,000/- and the husband of the petitioner paid a sum of Rs. 16,000/- on various dates in this regard. It was also agreed that at the time of registration of the sale deed the mortgaged amount was to be adjusted towards the sale price. Since Kishan Lal failed to transfer the suit property in the name of Mohinder Lal, the late husband of the petitioner, he filed a suit for specific performance bearing No. 871/1971 for enforcement of agreement to sell dated 19th December, 1974 and for registration of the sale deed. Kishan Lal was contesting the said suit which was listed for final arguments. It was further submitted that Kishan Lal filed an eviction petition under Section 14(1)(e) of the DRC Act against the deceased husband of the petitioner which was dismissed by the learned ARC vide order dated 24th December, 2001 wherein it was held that there is no relationship of landlord tenant between Kishan Lal and the deceased husband of the petitioner herein. Though Kishan Lal filed a revision petition before this Court, however the same was withdrawn. Further the dispute in respect of Mohinder Lal being the tenant and Kanti Rani i.e. the petitioner herein having no locus on the basis of rent note dated 4th June, 1973 was still pending adjudication before the Civil Court which decision would be binding on the learned ARC. It is further stated that the husband of the petitioner was inducted as a tenant in the suit property on 30th January, 1969 by virtue of a lease agreement and on the same date Kishan Lal executed a pro-note of Rs. 11,000/- in favour of late Mohinder Nath for the purpose of repaying the loan amount of Shri Ramesh Chander Gupta who had a money decree against Kishan Lal. The parties agreed that the rent of the premises which was Rs. 110/- per month would be adjusted towards the interest payable on the pro-note amount, therefore so long the pro-note existed no rent was paid by late Mohinder Lal to Kishan Lal. On 7th June, 1973 Kishan Lal mortgaged the property to Shri Mohinder Lal for a sum of Rs. 32,000/- @ 7.5% interest and the tenancy of late Mohinder Lal was surrendered and fresh tenancy in favour of the petitioner was created on the same day in respect of the entire building for the monthly rent of Rs. 200/-. The interest was to be adjusted against the rent; both being equal thus neither the interest was paid nor the rent was collected. Therefore, so long the mortgage exists, tenancy cannot be discontinued as the deed of mortgage as well as rent note being registered documents they are supplementary to each other and form an integrated document. Kishan Lal admitted having taken loan by writing a letter to the tenant of the first floor namely A. Mitra on 16th July, 1973. Though the deceased Mohinder Lal and the petitioner herein were inducted as tenant in the suit property, however till the amount of mortgage is repaid to Shri Mohinder Lal, the tenant was requested to pay the rent to the petitioner herein against the monthly interest on the mortgage amount. Therefore till the arrangement continues the tenancy cannot be terminated. Further, the eviction petition was not maintainable as the property was not let out for residential purpose and the same is being used for composite purpose since beginning. The petitioner was running the registered office of sole proprietorship of business of family from the tenanted premises. Regarding the sons of petitioner Pyare Lal and Brij Mohan it is stated that they are not part of family of Kishan Lal and the eviction petition be dismissed as premature and malafide.