Thursday, October 16, 2025
Latest:
delhihighcourt

S. BHAG SINGH & ORS. vs M/S HARISONS AND ORS.

Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 6th December, 2023
Pronounced on: 21st February, 2024

+ CS(OS) 60/2019, CRL.M.A. 17207/2020, I.A. 4261/2021
S. BHAG SINGH & ORS. ….. Plaintiffs
Through: Mr. Pranav Sachdeva and Mr. Jatin Bhardwaj, Advocates. Ms. Shweta Kapoor and Ms. Diksha Gulati, Advocates for all the LRs except Khosmendir Singh. Mr. Khosmendir Singh Gahunia, P-2 in person.

versus

M/S HARISONS AND ORS. …..Defendants
Through: Mr. Vivek B. Saharya, Advocate for D-1 to D-3.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A.6549/2019 (under Order XII Rule 6 read with Section 151 CPC 1908 on behalf of the plaintiff)

1. The plaintiff, Sh. K.S. Gahunia, has filed a suit for Decree of Possession of the suit property i.e. entire Ground Floor, built and open area constituted and inclusive of main hall, bath toilets etc. and open front space measuring about 18’ X 17-1/2’ frontage of property bearing No.A-11, South Extension, Part-I, Ring Road, New Delhi, as per the Site Plan annexed with the plaint. He has also sought Mesne Profits and Injunction for restraining the defendants from parting with the possession to third party. He has also sought damages after determining the mesne profits.
2. The plaintiff in his application has submitted that the defendant was inducted as a tenant in 1978 and that initially, they had agreed for a term of tenancy to be five years @ Rs.2,500/- per month. The litigation ensued from time to time under Delhi Rent Control Act, 195- from time to time to seek possession of the tenanted premises. Learned Court of the ARC, Delhi vide Order dated 08.03.2001 had directed the defendants to deposit an amount of Rs.3300/- per month w.e.f. 01.04.1996 and thereafter @ Rs.3630/- per month w.e.f. 01.05.1999 as monthly rent in respect of the suit property. The Order was assailed by the defendants, which was set aside by learned ARCT, Delhi vide Order dated 01.07.2003. The defendant was directed to deposit Rs.2750/- for three years prior to the filing of petition, thereafter @ Rs.3025/- per month w.e.f. 01.04.1996 to 31.05.1999; and @ Rs.3328/- per month from 01.06.1999 to 31.03.2001. Further liberty was granted to the parties to move an appropriate application if the applicant herein had any wish to enhance the rent after 31.03.2001.
3. The defendant has admitted these facts in paragraph 19 of the Written Statement and also admitted that they started paying rent @ Rs.3328/- per month w.e.f. 01.06.1999 in compliance of the orders of the learned ARC, Delhi.
4. The plaintiff has further asserted that defendants have admitted in paragraph 22 of the Written Statement about the passing of the Order dated 01.06.2004 by the then ARC, Delhi, whereby the defendants were directed to pay rent @ Rs. 3660/- per month. It is also a matter of record that the Appeal preferred by defendants against the said Order was allowed vide Order dated 20.08.2004 and the matter was remanded back with the observations that the appropriate orders may be made by the learned ARCT after evidence is recorded on the question of service of Notice. It is also a matter of record that the Order dated 20.08.2004 was assailed by the plaintiff in C.M (M) 1341/2004 but was disposed of vide Order dated 06.10.2004.
5. The plaintiff served another Notice dated 03.12.2005, for enhancement of the rent, upon the defendant. The plaintiff moved an application under Section 151 CPC, 1908 for the amendment of the Order so passed and the copy of the Notice was annexed along with the application. Though the defendants denied the service of Notice, but they admitted the filing of the reply to the said application.
6. Further, they also admitted passing of the Order dated 05.04.2010 whereby the learned ARC had observed that by way of Notice dated 03.12.2005 the petitioner had expressed his intention to increase the rent to Rs.3923/- per month w.e.f. 01.01.2006. The reply to the application included the copy of Notice dated 03.12.2005 which was admittedly sent by the plaintiff, and was annexed along with the reply by the defendant/respondent. Therefore, since the intention of the plaintiff to increase the rent was duly conveyed, the claim for lawful statutory increase of rent to Rs.3923/- per month w.e.f. 01.01.2006 could not be overlooked. In fact, such positive assertion on the part of the plaintiff qua the rate of rent only was to be considered in the said case. It was further observed by the learned ARC that after the statutory increase the rent of the tenanted premises is Rs.3,923/- per month w.e.f. 01.01.2006. Therefore, the jurisdiction of the Rent Court stood ousted to entertain the Eviction Petition in view of Section 3(C) of the Rent Act.
7. The plaintiff has further submitted that thereafter, he served a Notice dated 13.05.2010 to terminate the tenancy of the defendants, though the contractual tenancy already stood terminated. The service of the termination Notice is admitted by the defendants. They are, therefore, liable to hand over the possession of the suit property. Hence, a prayer is made that on the basis of the admissions of the defendants, the Decree of Possession be made in favour of the plaintiffs.
8. The application is contested by defendant No.1 to 4 who in their reply, have asserted that two independent applications under Order XXII Rule 3 read with Section 151 CPC on the basis of Wills, filed by two sets of alleged representatives of deceased Bhag Singh plaintiff No.1, is still subjudice and yet to be decided on merits.
9. It is further asserted that plaintiff No.2, Shri K.S. Gahunia alone has no right in law to file the application under Order XII Rule 6 CPC as there are other plaintiffs to the present suit and their names have not been deleted from the array of parties.
10. On merits, it is submitted that all the contentions raised in the application have been correspondingly responded to by the defendants in their Written Statement and the Plaintiff No.2/ applicant may be put to strict proof to prove his averments. It is denied that there are any admissions made by the defendants. It is further denied that they ever paid rent @ Rs.3660/- per month as is alleged and never has the rent been more than Rs. 3328/- settled or paid by the defendants. It is asserted that Plaintiff No.2 is in fact, trying to refer to the Orders which have been set aside by the Appellate Court and also have been specifically so admitted in his later part of the application under reply. It is claimed that Plaintiff No.2 is trying to conceal the true facts and has tried to misrepresent the facts in order to create confusion and make false and frivolous allegations.
11. The defendant has further denied that any Notice dated 03.12.2005 was ever served upon him and further allegations of the application under Section 151 CPC being filed in the Court, is also not admitted to be correct. In any case all the averments made by the plaintiffs are required to be proved by way of evidence; there are no clear and unequivocal admissions made on behalf of the defendant and the application is liable to be dismissed.
12. It is submitted on behalf of the Defendants that the first aspect for consideration is whether there exists a relationship of landlord-tenant, between the parties. The plaintiffs themselves have stated in the plaint that the suit property was owned by Late Sh. S. Bhag Singh and his father Sh. S. Chhajja Singh, who were the owners of the suit property. Sh. S. Chhajja Singh had executed the last and final Will dated 24.10.1969, in favour of his daughter-in-law, Smt. Beant Kaur, wife of plaintiff No. 1. Smt. Beant Kaur, during her lifetime, executed her last and final Will dated 19.04.2004, bequeathing her share of the property, in favour of her two sons, Sh. K.S. Gahunia and Sh. Rajiv Singh Gahunia who plaintiff Nos. 2 and 3 respectively. They, on her demise on 02.08.2005, succeeded to her right, title, interest in the suit property and have filed the present suit for possession and mense profits.
13. During the pendency of the present suit, Sh. Bhag Singh died on 19.01.2012 and all his legal heirs dehors the inter se disputes, were impleaded as the plaintiffs vide Order dated 13.02.2013.
14. It is argued on behalf of the defendant that the inter se disputes amongst the legal representatives of Sh. Bhag Singh, the plaintiff No. 1, on the basis of Will as propounded during the pendency of Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure (CPC), 1908, are since subsisting and till those disputes are settled, it cannot be determined as to who all are the owners of the suit property.
15. Submissions heard and written submissions/synopsis perused.
16. At the outset, another objection has been taken on behalf of the defendants that the suit was initially filed in the year 2001, which was consigned sine die vide Order dated 07.07.2005, with liberty to either party to revive the same. The plaintiffs had filed a CM(M) 1341/2004, which was decided on 06.10.2004, wherein it was observed that even if the Notice dated 25.03.2002, is disputed, yet the copy of the Notice was filed along with the application filed for enhancement, which should be taken as the day of service of Notice of enhancement and the liberty was given to the Rent Controller, to decide accordingly and the Writ was dismissed.
17. In view of the outcome of this Writ Petition, the plaintiff withdrew his suit filed in 2001 with liberty to file afresh, which was allowed by the learned Civil Judge, Delhi vide Order dated 18.08.2009. Thereafter, the present suit has been filed by asserting that the rent is more than Rs.3,500/-. The present suit, is therefore, maintainable.
18. To be successful in getting a decree for possession, the plaintiffs are required to prove the following aspects:
(i) Existence of relationship of landlord tenant;
(ii) the rate of rent which should be more than Rs.3,500/-; and
(iii) The expiry/termination of the tenancy by efflux of time/service of legal Notice of termination of Tenancy.
I. Relationship of landlord tenant:
19. First and foremost, this is a suit not inter se the plaintiffs but between the plaintiff and defendants, inter se whom a relationship of landlord tenant, admittedly exists. It is a settled proposition of law that any of the co-owners can institute a suit for seeking possession from the tenant and the possession if so received by him, is held by him for and on behalf of all the owners. Therefore, in the present case, all the legal heirs of Sh. Bhag Singh, have already been impleaded as a party to the suit way back in February, 2013 and whatever be the disputes inter se the owners, it cannot be an impediment to the determination of the controversy in the present suit. The plaintiffs are the owners/Landlords from whom the suit property had been taken on rent be the defendants.
20. The next aspect is whether the defendants are the tenants in the suit property.
21. The defendants have admitted in their Written Statement that they were inducted as a tenant way back on 25.10.1978, in the suit premises and have continued to be in possession since then.
22. The defendant had taken an objection that Smt. Sheel Hari Hiranandani, who had been impleaded as defendant No. 4, had died on 03.06.2010, i.e. before the filing of the present suit and the suit was not maintainable. However, this Court on 23.10.2010, observed that the defendant No. 4 had been impleaded as a partner of defendant No. 1. Her name was therefore, directed to be deleted by observing that the defendant No. 1 which was a tenant was the Partnership firm and deletion of the name of Defendant No.4 Smt. Sheel Hari Hiranandani, would not cause any legal impediment to the pendency of the suit and the amended memo was taken on record.
23. The relationship of landlord tenant, is, therefore, established and admitted by the parties in their pleadings.

II. Whether the rate of rent is more than Rs.3,500/-p.m. at the time of filing the Suit:
24. The defendant No. 1 has admitted that the Eviction Petition under Section 14 (1) (a) of the Delhi Rent Controller Act, was filed against it by claiming the rate of rent to be only Rs.2,500/- per month and had been accepting the rent at the said rate from 01.11.1983 till 31.07.1990. Thereafter, the rate of rent was enhanced by the plaintiff by 10%, in terms of the Delhi Rent Control Act, @ Rs. 2,750, w.e.f. 01.08.1990 till 30.04.1993. It was further increased to Rs. 3,025/- w.e.f. 01.05.1993 and was again enhanced by 10%, @ Rs.3,328/- from 1996 onwards.
25. The defendant has admitted that an Eviction Petition under Section 15(1) and 15 (2) of the Delhi Rent Control Act, was filed against it and another Rent Petition under Section 14 (c ) & (k) of Delhi Rent Control Act, was filed.
26. The plaintiff then filed a Petition for recovery of the possession under Section 14 (1) (a) of the Delhi Rent Control Act, in the year 1987, claiming the rate of rent to be Rs.2,500/- per month only. Interestingly, though the plaintiff did not initially serve the defendant with any Notice of enhancement of rent, it is stated by the defendants in the Written Statement that initially in 1978, they had agreed for the term of tenancy to be five years @ Rs.2,500/- per month. However, defendant No. 1 opted to continue the lease, as per the agreed terms of lease and offered to pay the rent @ 3,000 per month (being 20% of the agreed rate of rent of Rs.2,500/-) but Sh. Bhag Singh refused to accept the enhanced rent by claiming that the rent as agreed was only Rs.2,500/- per month. The defendant as a law-abiding citizen and to avoid the controversy, tendered the arrears of rent by calculating them @Rs.3,000/- per month, for a period of five months i.e. w.e.f. 01.11.1983. The plaintiff, however, refused to accept the enhanced rent and defendant No. 1 filed a Petition Under Section 27 of the Delhi Rent Control Act and deposited an amount of Rs.15,000/- as rent of five months w.e.f. 01.11.1983, by giving an offer to the plaintiff to adjust the excess amount in the rent for future months, in case the rent was held to be Rs.2,500/- per month. The proceedings were disposed of by the Court with the liberty to the defendant No. 1 to withdraw and adjust the rent amount, as he desired.
27. It is therefore evident that the plaintiff had never served a Notice for enhancement of rent from Rs.2,500/- to Rs.3,000/-, but the defendants on their own had offered the enhanced the rent by 20% w.e.f. November, 1993. The enhancement of rent, therefore, w.e.f. 01.11.1983, was made in terms of the Lease Agreement by the defendants, though not accepted by the plaintiffs. During the said proceedings, the plaintiff No. 1 accepted the rent from the defendant No. 1 @Rs.2,500/- per month, for the period commencing from 01.11.1983 till 31.07.1990.
28. Thereafter, the rent was enhanced by 10%, in terms of the Delhi Rent control Act and the rent was being paid @Rs.2,750/- per month, for the period ending on 30.04.1993. Thereafter, w.e.f. 01.05.1993, the rent was enhanced by 10% and was being paid @Rs.3,025/- per month.
29. The plaintiff served the first Notice of termination of tenancy on 14.02.1996 and also served a separate Notice of enhancement of the same date i.e. 14.02.1996, and the rent became payable @Rs.3,328/- per month from 1996, which was being paid till the end of 31.07.2010, in compliance of the directions of the learned ARC under Section 15 (1) of the Delhi Rent Control Act.
30. The second Notice of demand of enhancement dated 22.03.1999 (26.03.1999) was also served during the pendency of the proceedings and consequently, the rate was enhanced to Rs.3,328/- w.e.f. 01.06.1999, as has been admitted by the defendant, in its Written Statement.
31. While the Petition was pending, the petitioner served third Notice dated 25.03.2002, upon the respondent seeking further enhancement of rent by 10% w.e.f. 01.05.2002. The rent was directed to be enhanced to Rs.3,660/- per month w.e.f. 01.05.2002, by the learned ARC.
32. It is not disputed that this Order was challenged by the defendant, before the learned Appellate Court, which set-aside the impugned order dated 01.06.2004 of learned ARC and remanded the case for proving the service of Notice dated 25.03.2002. The plaintiff herein then filed a Writ Petition CM(M) 1341/2004, challenging the Order of the learned Appellate Rent Control Tribunal. Admittedly, the said Writ was dismissed vide order dated 06.10.2004, by observing that the disputed question of Notice of enhancement dated 25.03.2002, may be agitated before the Additional Rent Controller. However, it was observed that the Notice annexed along with the application seeking enhancement by 10%, may be taken as the date of service of Notice.
33. Several applications, under Section 151 of the CPC, for payment of rent as per the enhanced rate, were admittedly preferred before the learned ARC, and along with them, the copy of this Notice was also annexed. As observed by this Court in its Order dated 06.10.2004, even if the contention of the defendant is accepted that this Notice was not served upon him, it came to be served when the application for enhancement along with the copy of the Notice was served upon him. The defendant is taking a technical objection of the Notice of enhancement dated 25.03.2002, not being served through post, but it is evident from the admissions and from the various orders of Ld. ARC and the Order of this Court dated 06.10.2004 that the copy of the Notice became available to the defendant along with the application of enhancement of rent, filed by the plaintiff, before the learned ARC. Once, this Notice dated 25.03.2002 is held to be served, the rent obviously would stands enhanced to Rs. 3,660/- w.e.f. 01.05.2002.
34. The plaintiff has claimed that it has served fourth Notice dated 03.12.2005, seeking enhancement of rent by another 10% w.e.f. 01.01.2006 to Rs.3,993/-. Even if the Notice dated 03.12.2005, is overlooked then too, it is established from the record as discussed above, that the rate of rent had become Rs.3,660/- w.e.f. 01.05.2002.
35. Pertinently, the defendant has also admitted passing of the Order dated 05.04.2010 whereby the learned ARC had observed that by way of Notice dated 03.12.2005 the petitioner had expressed his intention to increase the rent to Rs.3923/- per month w.e.f. 01.01.2006. The Eviction petition was dismissed as not maintainable since the rent had become more than Rs.3,500/-. This Order of the Ld. ARC has not been challenged ever.
36. It is clear from the facts as admitted and also borne out from the Order of this Court, that the rent got enhanced to Rs.3,660/- w.e.f. 01.05.2002, which is more than Rs.3,550/- at the time of filing of the present suit on 23.04.2001. The assertion of the defendant that the rent was below to Rs.3,500/- is clearly not tenable, in terms of the admissions made in the pleadings and the Orders of the Court. The suit for possession is, therefore, maintainable before this Court.

III. Termination of Tenancy:
37. On the aspect of Termination of tenancy by Notice/efflux of time, it emerges that the first Notice of termination of tenancy was served on 14.02.1996, which is not in dispute. Thereafter, another Notice of termination has been served on 26.03.2001, before the institution of the present suit. The tenancy, therefore, stood terminated in 1996 and also in 2001, at the time of filing of the suit.
Conclusion
38. From the above analysis, it is established from the pleadings and the admissions made by the defendant coupled with the Orders of the Court that there exists a relationship of landlord tenant with the rate of rent between the parties being more than Rs.3,500/- per month and the tenancy stands terminated. The plaintiff, is therefore, entitled to the possession of the suit property.
39. The application under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure, 1908, is allowed and the defendant is directed to hand over the peaceful and vacant possession of the suit premises to the plaintiff within three months of this Order, failing which the plaintiff shall be at liberty to seek possession through the execution of this Order.
40. Decree Sheet be prepared accordingly.
CS(OS) 60/2019 & I.A. 4261/2021
41. Be listed on 04.03.2024 for determination of mesne profits and consideration of I.A. 4261/2021 (under Order 39 Rule 10 read with Section 151 CPC on behalf of Plaintiff No.2 for Appropriate Directions).

(NEENA BANSAL KRISHNA)
JUDGE

FEBRUARY 21, 2024
va/RS/JN

CS (OS) 60/2019 Page 13 of 13