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Advocates
  • P.N.Talwar
  • S.P.Mahajan
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  • Mr. D.K Kapur, J.
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Advocates
  • P.N.Talwar
  • S.P.Mahajan
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  • Mr. D.K Kapur, J.
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Smart Summary

Factual and Procedural Background

This appeal was filed by the tenant, Parmeshwan Dass, in relation to House No. 117-A, Defence Colony, New Delhi. The Late G.R. Kohli (the landlord) instituted an eviction petition claiming eviction on the ground of bona fide personal requirement. The tenant asserted that he was in military service outside Delhi and was later transferred to Delhi on 5 August 1968 and was due to retire on 1 March 1969. The tenancy was terminated by a notice dated 12 October 1968 and the eviction petition was instituted on 23 November 1968.

The tenant contested the petition on grounds including absence of cause of action, prematurity, that the respondent was not the owner of the premises, and that the premises were let for both residential and commercial purposes. The landlord succeeded before the Additional Rent Controller and the Rent-Control Tribunal. The tenant appealed to this Court under Section 39 of the Delhi Rent Control Act, 1958.

The respondent landlord died on 26 March 1971 during the pendency of the appeal and his heirs (widow Mrs. Savitri Devi and sons Ashwani Kumar Kohli and Anjani Kumar Kohli) were impleaded as legal representatives. A central procedural and substantive question became what effect the landlord's death has on a case founded on bona fide personal requirement when the death occurs during the pendency of a second appeal.

Legal Issues Presented

  1. Whether the landlord's ownership of the premises was proved sufficiently for the purpose of an eviction claim under Section 14(1)(c) of the Delhi Rent Control Act, 1958, when certified copies and subsequently the original lease-deed were placed on record.
  2. Whether the premises were let for residential purposes (as alleged by the landlord) or for both residential and commercial purposes (as alleged by the tenant), and whether findings on this factual issue can be upset in a second appeal.
  3. What is the legal effect, at the stage of a second appeal, of the landlord's death upon a decree or pending claim based on bona fide personal requirement — specifically whether the bona fide requirement dies with the landlord or survives in the hands of his legal representatives.
  4. Whether an appellate court (in second appeal) can take subsequent events into account (including the landlord's death and affidavits about present requirements) and decide the matter without remanding for amendment or retrial.

Arguments of the Parties

Appellant's (Tenant's) Arguments

  • The petition lacked cause of action and was premature.
  • The respondent was not the owner of the premises; ownership was not proved adequately.
  • The premises had been let for both residential and commercial purposes; therefore the claim based solely on residential requirement was not tenable.
  • On ownership proof: reliance on a certified copy of a government lease exhibited without objection was insufficient; secondary evidence is inadmissible when original exists. Section 67 of the Evidence Act was cited to argue that signatures/writing on the lease should have been proved and the original produced for proof of execution.
  • On use: courts below misread evidence and tenant produced oral evidence to show business was carried out in the premises.

Respondent's / Legal Representatives' Arguments

  • The landlord had produced a certified copy of the lease and later produced the original lease-deed; there were receipts of house tax and an oath by the landlord that he was the owner — sufficient to prove ownership.
  • The lease had been executed by the Government and section 60(2) of the Indian Registration Act created a presumption about endorsements; objections to mode of proof should have been raised earlier.
  • The premises were constructed and let for residential purposes as per the landlord's oral testimony and the government lease; the tribunal accepted the landlord's evidence and rejected the tenant's oral evidence as unsatisfactory.
  • After the landlord's death, the legal representatives asserted that there was no material change in circumstances and that the family's need for accommodation "still remains"; they relied on affidavits about the present family composition and lack of suitable accommodation, and said the portion of the same building recently vacated was not sufficient for their requirements.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gopal Dass v. Siri Thakurji, A.I.R. 1943 Privy Council 8 An objection to the mode of proof as to a document should be taken before the document is admitted on the record (presumption as to correctness of endorsements under section 60(2) Registration Act). The court followed this authority to hold that ownership was proved sufficiently for the purposes of the case because no dispute about signatures/writing was raised when the document was exhibited and the original was later produced.
Naubat Rai Ahluwalia v. Smt. Phool Rani & Others, S.A.O. No. 178 of 1970 (decided 24 May 1971) When the landlord dies before adjudication by the Rent Controller, the bona fide personal requirement of the deceased landlord is treated as having died with him; family requirement is regarded as the landlord's requirement and not the legal representatives'. The court distinguished that decision on its facts because in Naubat Rai the landlord died before trial completion. The court limited that prior decision to cases where death occurs before trial adjudication and indicated it did not apply to the present situation where a decree had been obtained and upheld by the Tribunal prior to the landlord's death.
Anil Kumar v. Jai Narain Gautam, 1870 RCR 767 In similar circumstances where death occurs after adjudication, the court held that the matter should be decided after death on an ascertainment of the bona fide requirements of the legal representatives. The court applied and followed this authority to justify deciding the present appeal on the basis of existing facts together with subsequent events (affidavits assessing present requirements), permitting legal representatives to enjoy the fruits of the decree.

Court's Reasoning and Analysis

The court structured its analysis in two parts: (A) the merits on ownership and residential use, and (B) the legal effect of the landlord's death at the stage of a second appeal.

(A) Ownership and Nature of Tenancy — factual findings)

  • The Additional Rent Controller had relied upon a certified copy of the lease-deed, receipts of house tax and an oath by the landlord to find ownership proved. The landlord later produced the original lease when asked in cross-examination.
  • The court noted section 60(2) of the Indian Registration Act creating a presumption as to the correctness of endorsements on government-executed documents and referred to Gopal Dass v. Siri Thakurji to stress that objections to mode of proof should have been raised when the document was admitted. Consequently, ownership was found proved "as far as is necessary for this case."
  • The court explained that Section 67 of the Indian Evidence Act would only become relevant if there were a dispute about signatures or writing on the lease-deed; no such dispute was raised when the document was exhibited, removing the necessity to produce the government officer who executed the lease-deed.
  • On the question of whether the premises were let for residential use, the court treated this as a question of fact. The landlord's oral evidence that he constructed and let the premises for residential purposes, together with the written government lease permitting residential use and the nature and location of the premises (Defence Colony), led the Tribunal to accept the landlord's version. The tenant's oral evidence that business was conducted on the premises was rejected as unsatisfactory. The court held that these findings of fact are not open to attack in a second appeal.

(B) Effect of the Landlord's Death and Appellate Jurisdiction)

  • The court reviewed an earlier decision it had given (Naubat Rai Ahluwalia) that when the landlord dies before the trial court adjudicates, the bona fide personal requirement dies with him and the legal representatives must bring a fresh application if they have their own requirement. The court distinguished that decision because in the earlier case the landlord died before the Rent Controller had completed adjudication.
  • Here, by contrast, the landlord had obtained a decree that was upheld by the Rent Control Tribunal before his death; death occurred at the stage of the second appeal. The court cited Order 41 Rule 33 of the Code of Civil Procedure and noted that appellate courts can take cognizance of subsequent events and pass such orders as the case may require.
  • Relying on the precedent Anil Kumar v. Jai Narain Gautam, the court held that where the landlord dies after decree/trial-stage adjudication and death occurs during an appeal, the appellate court may determine the rights of the legal representatives by assessing subsequent events and the present requirements rather than ordering amendment or remand necessarily. The court therefore directed that affidavits be filed to ascertain the present needs of the legal representatives and the nature/extent of the portion of the premises that had become vacant and been taken into possession by them.
  • After evaluating the affidavits and materials filed (family composition, accommodation available at House No. 484 New Rajinder Nagar, size and nature of the vacated portion at A-117 Defence Colony, and counter-affidavits by the tenant challenging residency of some family members), the court concluded that the legal representatives had, at most, transient or licensee accommodation elsewhere and no suitable legal accommodation to meet their needs. The court considered the factual matrix — including that the vacated portion at A-117 was a small "barsati" (12' x 15' with open lavatory and bathroom) — and concluded it would not meet the needs of the widow and family.
  • On this basis, and because there appeared to be no legal impediment to granting relief to the legal representatives, the court held that they were entitled to the fruits of the decree obtained by the deceased landlord and that the ejectment claim could be continued and sustained in their favour at the stage of the second appeal.

Holding and Implications

Core Ruling: The appeal is DISMISSED. The legal representatives of the deceased landlord are entitled to the benefits (the fruits) of the ejectment decree obtained by the deceased landlord.

Implications and consequences as stated by the court:

  • The court affirmed that ownership and the residential nature of the tenancy were sufficiently proved for the purposes of this case and that the factual findings of the Rent Controller and the Rent Control Tribunal were not open to be disturbed in this second appeal.
  • The court held that where a landlord dies after adjudication at trial and a decree exists which is under second appeal, the appellate court may take subsequent events into account and determine the rights of the legal representatives without mandatorily ordering amendment or remand. The court limited its prior decision (S.A.O. No. 178 of 1970) to cases where the landlord dies before trial adjudication by the Rent Controller.
  • The direct practical effect is that the landlord's legal representatives were found to require the accommodation and have no other suitable accommodation; they are entitled to continue (and enjoy the fruits of) the ejectment decree. The appeal by the tenant was therefore dismissed and the parties were left to bear their own costs in this Court.

Note: This summary has been prepared exclusively from the content of the provided opinion and does not add or infer facts beyond what the opinion itself states.

Show full summary ...

    Parmeswari Das v. G.R Kohli(Deceased) By His Legal Representative

    D.K Kapur, J.:— This appeal is at the instance of the tenant, Parmeshwan Dass and relates to House No. 117-A, Defence Colony, New Delhi. An eviction petition was instituted by the Late G.R Kohli, Landlord, claiming eviction on the ground of bona fide personal requirement. The case of the respondent was that he was in military service outside Delhi but was later transferred to Delhi on 5th August, 1968 and was due to retire on 1st March, 1969. It was further stated that the landlord was staying with a relative but the landlord of of that relative had also initiated eviction proceedings. The petitioner claimed that he required the premises bona fide for his own residence and the residence of his family. The tenancy of the appellant was terminated by a notice dated 12th October, 1968 and this eviction petition was instituted on 23rd November, 1968. The appellant contested the petition on the ground that there was no cause of action and the petition was premature and also on the ground that the respondent was not the owner of the premises. It was also contended that the premises were let for both residential and commercial purposes and, hence the claim was not tenable. The landlord was successful before both the Additional Rent Controller and the Rent-Control Tribunal. The tenant then appealed to this Court under Section 39 of the Delhi Rent Control Act, 1958. The respondent landlord died during the pendency of this appeal on 26th Mar ch, 1971 and his heirs namely his widow Mrs. Savitri Devi, and his sons Ashwani Kumar Kohli and Anjani Kumar Kohli, have been impleaded as his legal representatives. One of the questions which arises in this appeal is as to what is to happen in a case based on bona fide personal requirement when the landlord dies daring the pendency of a second appeal under the Act in this Court.

    2. I shall first deal with the appeal without reference to the altered circumstances resulting from the death of the landlord. As far as the case on merits is concerned, the claim of the appellant is that there is no proof of the ownership of the property and without proof of the ownership no claim under Section 14 (1) (c) is maintainable, The case regarding the lack of proof of ownership is based on the fact that a certified copy of the lease granted by the Government was exhibited without objection in the absence of the counsel of the appellant. It was submitted that secondary evidence was not admissible when the original document was available. However, there is no doubt that the original lease-deed was also filed on record subsequently. The appellant's counsel urges that this evidence is not sufficient for the purpose of proving that the deceased respondent was the owner of the premises. It is submitted that the landlord had necessarily to prove the execution of this lease-deed before he could be held to be the owner. Reliance for this proposition is placed on Section 67 of the Evidence Act. It is submitted that the lease-deed cannot be treated as proved unless the original lease deed is produced and signatures on it are also proved. Though the original lease-deed has been filed, it is submitted that the signature on it have not been proved. The next submission on the merits is that it has not been established that the premises were let out for residence. On this aspect oi the case, it is submitted that the courts below have misread the evidence.

    3. On the question of ownership, the Additional Rent Controller held that a certified copy of the leasedeed had been produced as well as receipts of payment of house tax. There was also a statement on oath by the landlord himself stating that he was the owner. This evidence was treated as sufficient to prove ownership. On appeal before the Rent Control Tribunal, it was held that as no objection had been taken to the mode of proof when the certified copy of the leasedeed was exhibited, no objection regarding the mode of proof could be taken Tater. I may mention that in cross-examination, the landlord was asked to produce the original lease-deed which he did.

    4. The lease deed in question was executed by the Government in fovour of the landlord. There is a presumption under section 60 (2) of the Indian Registration Act, 1908 about the correctness of the endorsements made on the document. It has been held by the Privy Council in Gopal Dass v. Siri Thakurji . A I.R 1943 3 Privy Council 8., that an objection like the present should be taken before the document is admitted on the record. Following the said judgment, I hold that the ownership of the landlord has been proved as far as is necessary for this case. Section 67 of the Indian Evidence Act would only apply if there was a dispute about the signatures or the writing on the lease-deed. As no dispute was raised at the time of exhibiting the document, there was no necessity for the landlord to produce the officer of the Government who executed the lease-deed. I thus affirm the decision of the Tribunal holding that the ownership of the landlord has been established. This question is basically one of fact which is not open to attack in second appeal.

    5. On the second submission, namely, that there is no proof that the property in question was let out for residential purposes, I come to the conclusion that this question is also one of fact which is not open to challenge in this appeal. The landlord himself has appeared in the witness tox and stated that he constructed the premises in question for residential purposes and also let out the same to the appellant for such purposes On the other hand, the tenant examined witnesses to show that when he took the property he made it clear that business would be done in the premises. The learned Kent Control Tribunal accepted the evidence of the landlord, (a) because of the nature of the premises let to the tenant and (b) because the Government of India had only permuted the premises to be used for a residence as per the lease-deed. The oral evidence led by the tenant to show that business was actually done in the premises was rejected as being unsatisfactory. Even if business had been done in the premises, this would not show that this had been done by reason of the premises being let for business. The entire evidence was oral and therefore had to be read consistently with the lease of the Government which was in writing. The premises are residential and are situated in the Defence Colony Area and I see no legal ground for setting aside the conclusions of the Controller and the Tribunal that the premises were let out only for residence. My conclusions on these two submissions made on the merits by the appellant, would have normally been sufficient to dispose of this appeal. However, in view of the death of the landlord during the pendency of this appeal another controversy has arisen, as to whether the bona fide personal requirement of the landlord, which was the basis of the ejectment application, has come to an end with his death.

    6. On the question of the rights of the legal representatives, I have been referred to the conclusions of both the Additional Rent Controller as well as the Tribunal to the effect that the deceased landlord required the premises bona fide for himself and for his family. 1 have also been referred to the various affidavits filed before me regarding the requirements of the parties. The appellant's contention is that I should hold that the cause of action has come to an end the landlord's legal representatives should institute fresh proceedings if they still require the premises bona fide Alternatively, it is submitted that I should remand the case for re decision so that the present requirements of the landlord's legal representatives might be determined. Reference has also been made to the fact that part of the same building which was formerly with another tenant has been vacated and possession thereof has been delivered to the legal representatives. The case of the legal representatives, however, is that no material difference has taken place in the circumstances of the case on account of the landlord's death. According to them the requirement of the landlord was for his own use and also for the use of this family and the latter “need still remains. As regards the vacation of a part of the premises, it is stated that portion vacated is a very small portion and is not sufficient for the requirements of the legal representatives I have, therefore to determine the legal principles to be applied at the stage of second appeal/in these altered circumstances.

    7. It has been held by me in Naubat Rai Ahluwalia… v. Smt. Phool Rani & Others…S . S A.O No. 178 of 1970. decided on 24th May. 1971. that when the landlord dies, his bona fide personal requirement dies with him. I also held that the bona fide requirement of the landlord's family is a requirement of the landlord and not of the legal representatives themselves. If that decision is applied to the present case I would have to hold that the claim of the landlord's legal representatives should fail. However, there is a marked difference between that case and this case. In that case, the landlord had died before the case was adjudicated upon by the Rent Controller. In other words, the cause of action had disappeared before the trial was completed. The trial court had no jurisdiction to take subsequent events into consideration. I there held that it was necessary for the ejectment application to be amended so as to introduce the new cause of action which was provided by the personal requirement (if any) of the legal representatives. The legal representatives in a given case may have the same requirement as the landlord or they may have different requirements. Instead of remanding the case for re-trial I held that it was better that the new landlords should institute a fresh application according to their own requirements. In the present case the deceased landlord's requirements have fructified into a decree which has been upheld by the Rent Control Tribunal. The landlord has died at the stage of second appeal before this Court. In a second appeal and indeed in a first appeal. Order 41 R. 33 of the Code of Civil Procedure enables an appellate Court to pass such order as ought to have been passed or to pass such further decree or other order as the case may require. This provision has been interpreted to mean that an appellate Court can in suitable cases take cognizance of subsequent events and give its judgment accordingly.

    8. I consider that the present case is one which should be decided on the basis of the existing facts as varied by subsequent events. There is no necessity in a case like the present for an amendment of the ejectment application. It will be noticed that if the case was at the trial stage, the Rent Controller would have had to ask for an amendment of the ejectment petition. However, at the appellate stage, evidence which has been recorded already can be considered as well subsequent events and the rights of the parties determined accordingly. I, therefore, come to the conclusion that may previous decision in S.A.O No. 178 of 1970 has no application to this case and has to be restricted only to a case where the landlord dies at the stage when the case is still pending before the Rent Controller. The present case is covered by the decision in Anil Kumar v. Jai Narain Gautam . 1870 RCR 767., where in similar circumstances, this court held that the case had to be decided after the death of the landlord on an ascertainment of the requirement and bona fide necessity of the legal representatives. I, therefore, proceed to analyse the changed facts.

    9. What are the subsequent events in the present case? The landlord has died. Possession of a portion of the same building has also been obtained by the legal representatives. What is that portion? In connection with the subsequent events, I had passed an order on 19th August, 1971, calling upon the parties to file affidavits in relation to the events arising after the institution of the appeal. The facts to be ascertained were: (1) the present requirements of the legal representative: (2) of nature and extent of the premises i.e, the upper flat in the premises which had fallen vacant and of which possession had been obtained by the legal representatives.

    10. An affidavit has been filed by Shrimati Savitri Kohli, widow of Shri G.R Kholi, the landlord, stating that the family now consisted of herself, her two sons. Ashwani Kumar Kohli and Anjani Kumar Kohli, Smt. Sudesh Kohli and Manish Kohli, wife and son of Aswani Kumar Kohli and Shrimati Rukmani Devi mother of Shrimati Savitri Kohli. It was also stated that Ashwani Kumar was formerly at Kuwait but had returned to India in October, 1970, and further it was claimed that all these persons had no other residential accommodation but were living in House No. 484. Double Storey, New Rajinder Nagar, New Delhi, along with the deponent. It was further stated that an ejectment decree had been passed with respect to, that House No. 484 against Joginder Pal Tandon the deponent's brother; It was also stated that the family had staved for one week with Rajinder Pal Bhalla her cousin, in 18/17, Old Rajinder Nagar, New Delhi, as his guest but had no legal right to reside there. It was also stated that the ejectment decree passed against Joeinder Pal Tandon eranted him time till 31st October, 1971 to vacate the house As regards the first floor accommodation that had fallen vacant A 117, Defence Colony, NewDelhi.it was stated that the tenant, A.N Roy Chowdharv, had vacated the same and gone to the United Kingdom. These premises were described as a Barsati measuring 12′X15’ with an open lavatory and a bath room. An affidavit was also filed bv Joeinder Pal Tandon statine that he was the brother of Shrimati Savitri Devi, widow of the landlord and he was posted in Chandisarh. It was stated than an ejectment order had been passed against him bv the Rent Controller and he had gone in appeal to the Rent Control Tribunal but had withdrawn the appeal on beins granted time to vacate the premises till 31st October, 1971-A certified copy of the order of the Rent Control Tribunal was filed. A copy of the ejectment petition was also filed, showins that the eround of ejectment against Joginder Pal Tandon was that he had been transferred to Chandigarh. Tt was alleged therein that the tenant, i.e, Josinder Pal Tandon had built his own house in Kirti Nagar Another affidavit filed by the legal representatives, is of Rajinder Pal Bhalla to show that Shrimati Savitri Kohli was his cousin sister and he had permitted the famitv to stav at his suests in his house for a short time i.e, a week. The affidavit of Ashok Negpal, resident of House No. 486. New Rajinder Nagar. New Delhi has also been filed in which it is stated that Joginder Pal Tandon had shifted to Chandigarh and the legal representatives of Shri G.R Kohli were living in house No. 484, as licensees of Joginder Pal Tandon. Anjani Kumar Kohli one of the sons of the landlord has stated that “he is employed in Delhi and has been livine in House No. 484, Double Storey, New Rajinder Nagar with his maternal uncle. Joginder Pal Tandon. On account of the eviction decree it is stated that now there is no accommodation available with the family. Other documents have been filed to show that Anjani Kumar was employed as a sales representative of M/s. Weikfield Products Company (India), New Delhi and he has been so employed from December, 1965 to July. 1969. Tt was further shown that after that the said Anjani Kumar joined the service of M/S. Industrial Cables India) Ltd., New Delhi, as sales representative. Subsequently. Anjani Kumar had set up his own business under the name of M/S. Kohli Electric Store in Bhagirath Palace Chandni Chowk. Delhi. An affidavit of Ashwani Kumar Kohli, the other son of the deceased landlord has been filed to show that he is married and has a son. It is stated that he was earlier employed at Kuwait but is now living in India since October, 1970. An affidavit of Shrimati Rukmani Tandon, mother-in-law of the deceased landlord has also been filed to show that she has always been living with her daughter. Affidavits in reply have also been filed on behalf of the tenant consisting of his own affidavit and the affidavits of Harjeet Singh and Rajinder Singh. One of the Chief points taken up on behalf of tenant is that Ashwani Kumar is not living in Delhi at all but lives in Bombay. It is claimed that he came from Kuwait only to get films for exhibition in the Persian Gulf area. Further, it is claimed that the litigation with respect to Joginder Pal Tandon's house in New Rajinder Nagar is a collusive one and he has nothing to do with House No. 484. According to the Affidavit of Harjeet Singh, who claims to be running a shop in House No. 478, New Rajinder Nagar, only Shrimati Savitri Devi and her son Anjani Kumar reside in House No. 484, and Ashwani Kumar does not reside there. Farlier some other affidavits had been filed on behalf of the tenant. There was an affidavit of Rajinder Singh showing that even Anjani Kumar did not reside with his mother at House No. 484, Double Storey, New Rajinder Nagar. According to him Anjani, Kumar only occasionally came to New Rajinder Nagar. An earlier affidavit of the tenant himself stated that the first floor in A-1 17, Defence Colony consisted of a room measuring 16’ × 10’, a kitchen, a bath, and lavatory and a terrance. It was also stated that a store measuring 8′×8′is also in possession of the landlord. From these various affidavits it quite clearly emerges that the legal representatives have at the most an illusory and transient accommodation in House No. 484, Double Storey, New Rajinder Nagar. They are either licensees or guests. They have no legal right to live there. Even if Ashwani Kumar was not residing in Delhi and was at Kuwait or in Bombay, the needs of the widow and her son Anjani Kumar could, in my opinion, not be met by the vacation of the Barsati on the first floor of A-117, Defence Colony. After all, they are now the owners of the property as heirs of the landlord of the house, they cannot be expected to live in one room especially in view of the fact that the son seems to have his own firm in Chandni Chowk and was even otherwise quite decently employed previously. The fact that the other brother has been working in Kuwait and is engaged, even according to the tenant, in exporting films for exhibition to the Persian Gulf area would indicate that the legal representatives are people of substance. It is indicated from the affidavit of Joginder Pal Tandon that he is a Superintendent of Central Excise. The landlord was in military service and was the owner of a house in Defence Colony. Unfortunately, he died before the appeal could be decided in this Court. I am of the view that unless there is some legal impediment preventing this Court from granting relief to the legal representatives, they should be entitled to enjoy the fruits of the decree obtained by the deceased landlord for himself and his family. As the ejectment was based on personal requirement as well as the requirement of the family, I come to the conclusion that the legal representatives are entitled to continue the ejectment case at the stage of second appeal for reasons, I have already set out above. From the facts set out above, I come to the conclusion that the legal representatives do require the accommodation in question and have no other suitable accommodation. They are, therefore, entitled to the fruits of the order of ejectment passed in favour of the deceased landlord. This appeal has, therefore, to be dismissed.

    11. In the circumstances of this case, however, I leave the parties to bear their own costs in this court.

    12. Appeal dismissed.

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    Comments

    Parmeswari Das v. G.R Kohli(Deceased) By His Legal Representative
    (Nov 24, 1971)