{"id":80480,"date":"1998-02-20T00:00:00","date_gmt":"1998-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bimla-wati-seth-vs-kastings-pvt-ltd-on-20-february-1998"},"modified":"2016-04-02T20:05:36","modified_gmt":"2016-04-02T14:35:36","slug":"bimla-wati-seth-vs-kastings-pvt-ltd-on-20-february-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bimla-wati-seth-vs-kastings-pvt-ltd-on-20-february-1998","title":{"rendered":"Bimla Wati Seth vs Kastings Pvt. Ltd. on 20 February, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Bimla Wati Seth vs Kastings Pvt. Ltd. on 20 February, 1998<\/div>\n
Equivalent citations: 1998 IIAD Delhi 785, 72 (1998) DLT 93, 1998 (44) DRJ 743<\/div>\n
Author: U Mehra<\/div>\n
Bench: U Mehra<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Usha Mehra, J. <\/p>\n
1.     Respondent\/tenant  is seeking review of the order of this Court  dated 13th February, 1997 primarily on the ground that while disposing the appeal this Court did not consider the effect of the partition of the property  in question. In the suit for partition filed by the respondent and other legal heirs the Civil Court granted a preliminary decree of partition. In view of the preliminary decree this respondent alone could not terminate the tenancy  nor could file the petition for ejectment. She being the  co-owner  and the rights having been determined in the preliminary decree other owner had to be joined in the petition. Having failed to do so eviction petition  was not maintainable.\n<\/p>\n
2.   I  have  heard Mr. C.K. Mahajan for the applicant\/respondent  and  Mr. R.K. Saini and Mr. Prag Chawla for respondent\/appellant.\n<\/p>\n
3.   In  order  to appreciate the contentions now raised, I would  like  to recapitulate  the  relevant facts of this case. Applicant\/  respondent  was inducted  as tenant by the late husband of the appellant. Since the  applicant  did  not pay the rent regularly and committed default in  payment  of rent the appellant Smt. Bimla Wati Seth terminated his tenancy and thereaf-ter  filed ejectment proceedings under Section 14(1)(a) of the Delhi  Rent Control  Act (in short ‘the Act’). The learned Additional  Rent  Controller (in  short  the ARC), Delhi, on the basis of evidence available  on  record
\nheld  that  Smt. Bimla Wati was the landlady of the premises  in  question. That  the rent had always been paid to her. The Managing Director  of  the applicant\/tenant appearing in the witness box admitted that rent used to be paid  to  Smt. Bimla Wati landlady of the premises in  question.  That  the cheques  used to be drawn in the name of Smt. Bimla Wati. On the  basis  of this  admission coupled with the fact that rent by cheques used to be  paid to Smt. Bimla Wati concluded that since after the death of her husband  she was receiving the rent from the tenant hence under Clause (e) of Section  2 of the Act she was the landlady of the premises. Moreover for an  ejectment petition  under Section 14(1)(a) of the Act the petitioner need not be  an owner  of the premises. Such a petition could be filed by  landlady  alone. Hence  petition filed by Smt. Bimla Wati was maintainable. The ARC  accordingly allowed her petition. That being first default the order was  treated to  be passed under Section 15(A) of the Act. However, on appeal  the  RentControl Tribunal (in short the Tribunal) reversed the finding of the ARC on the  ground  that though the rent was paid by way of cheques drawn  in  the name  of  Smt.  Bimla Wati even then petition filed by her  alone  was  not maintainable because some of the receipts and correspondence were issued by
\nher son Shiv Kumar. The Tribunal accordingly drew inference that Shiv Kumar being  legal heir and had been issuing rent receipts hence he was  co-land-lord  and  co-owner with Smt. Bimla Wati. Moreover, Smt. Bimla  Wati  being General  Power  of  Attorney of Shiv Kumar was acting as  landlady  on  his behalf  also, therefore, she alone was not the landlady of the premises  in question.  The Tribunal after drawing the presumption held that Smt.  Bimla Wati  being the widow inherited the property alongwith her son Shiv  Kumar. Since  her son was minor she being guardian was receiving the rent  on  his behalf  as well. Hence Shiv Kumar and Bimla Wati were co-landlord  and  coowner  of the property in question. Being co-landlady she alone  could  not file  eviction petition. Accordingly the Tribunal reversed the  finding  of the  learned  ARC. It is in this backdrop that Smt. Bimla Wati  filed  this Second Appeal.\n<\/p>\n
4.   At  the outset it must be mentioned that for an ejectment petition  on the  ground of non-payment of rent under Section 14(1)(a) of the Act,  the petitioner  need not be the owner of the premises. Such a petition  can  be filed by a landlord alone. Who is a landlord has been defined under Section 2(e) of the Act, to mean a person who, for the time being is receiving  the rent of any premises. The rent as admitted by the Managing Director of  the applicant  had always been paid by cheques drawn in the name of Smt.  Bimla Wati respondent\/appellant. The tenant through its Managing Director further admitted that after the death of Smt. Bimla Wati’s husband, Smt. Bimla Wati had been receiving the rent.\n<\/p>\n
5.   The point raised in this review petition is whether after the grant of preliminary  decree  in the suit for partition filed by the legal  heir  of Devi  Chand Seth i.e husband of Smt. Bimla Wati could she  alone  terminate
\nthe tenancy and file eviction petition.\n<\/p>\n
6.   Contention  of Mr. C.K. Mahajan Counsel for  respondent\/applicant  is that preliminary decree has to be treated as a final decision which  determeined  the shares and rights of legal heirs in the property  in  question. Hence Smt. Bimla Wati without impleading other co-owners\/co-landlords could not  by herself file the eviction petition. To support his  arguments  that preliminary  decree  of partition is a final decision, Mr.  Mahajan  placed reliance on the decision of Supreme Court in the case of Venkata Reddy  and Others  Vs. Pethi Reddy, AIR 1963 Supreme Court 1992. There cannot  be  any
\nquarrel  with  the proposition of law laid down by the Apex Court  in  this case. But I am afraid the ratio of Supreme Court decision is of no help  to Mr.  Mahajan.  The facts of that case are quite  distinguishable  from  the facts  of this case. In Pethi Reddy’s case (supra) the Apex Court was  concerned  with  the meaning to be given to the  expression  “final  decision” occurring in the first proviso to Section 28-A of the Provincial Insolvency Act, 1920. In that case Venkata Reddy & Others filed suit for the partition of the joint family property claiming 2\/3rd share in the property purchased by Pethi Reddy and sold by Official Receiver. Preliminary decree for partition was passed by the Trial Court. The same was affirmed in appeal by  the District  Judge  and eventually by the High Court in  Second  Appeal.  Even
\nfinal decree was granted ex-parte. Ex-parte decree was, however, set aside. In  was in context of the proviso one to Section 28-A, the Apex  Court  was considering whether preliminary decree which was upheld upto the High Court should  be treated as a final decision. But that is not the case  in  hand. Even  in Pethi Reddy’s case (Supra) the Apex Court in para 6 observed  that “No  doubt in suits which contemplate the making of two decrees a  prelimi-nary decree and a final decree, the decree which would be executable  would be  the final decree. The legislature in its wisdom thought that  suits  of certain types should be decided in stages and though the suit in such cases can  be regarded as fully and completely decided only after a final  decree is  made the decision of the Court arrived at the earlier stage also has  a finality  attached  to it”. This observation of the Apex Court are  in  the
\ncontext if the preliminary decree determines the right. In that case finality has to be attached.\n<\/p>\n
7.   In the case in hand, the suit for partition was filed by the  daughter of late Shri Devi Chand Seth i.e. the late husband of Smt. Bimla Wati Seth. Plaintiff  claimed 1\/7th share in the estate of late Shri Devi Chand  Seth. His estate consisted of various immovable properties including the property in question. The Sub-Judge First Class, Delhi, in Suit No. 368\/71 passed  a preliminary decree holding that the plaintiff was 1\/7th share holder of the properties  of the deceased as mentioned in the plaint. Thus  according  to Mr.  R.K.  Saini the preliminary decree only determined the shares  of  the
\nlegal heirs of the deceased in his total estate and not in the property  in question  only. The plaintiff in the partition suit was held to have  1\/7th share  in  the undivided property of the deceased. What  that  1\/7th  share would  be  has yet not been identified nor the estate of the  deceased  has been  divided  by metes and bounds. What would be the 1\/7th  share  and  in which property has not yet crystalised nor identified, therefore, till that is  done all legal heirs of deceased Shri Devi Chand Seth are co-owners  in the properties left by him. Smt. Bimla Wati being co-owner did not automatically  became co-landlady. As per Section 2(e) of the Act landlord is  the one who receives the rent. Smt. Bimla Wati had been receiving the rent  and this  fact  had been admitted by both the Courts below as well  as  by  the tenant through its Managing Director. Therefore, Smt. Bimla Wati alone  was competent  to file eviction petition under Section 14(1)(a) of the Act.  To this  argument of the respondent\/appellant Mr. Mahajan had no  answer.  Mr. Mahajan could not contradict the fact that the rent was paid to Smt.  Bimla Wati  Seth and it was she who had been receiving the same. In view of  this admission  on  the part of the tenant that the rent was  received  by  Smt. Bimla Wati Seth, the learned ARC rightly declared her to be the landlady of the  premises  in  question. The Tribunal fell in error  in  comparing  the definition  of “landlord” with co-owner. Since she alone was receiving  the rent  hence  landlord simply because some receipts were issued by  her  son would not make her co-landlady. Being the landlady of the premises she  was within  her right to file eviction petition under Section 14(1)(a) of  the Act.  Moreover,  as  already pointed out above the shares  have  only  been indicated  by the preliminary decree, those shares have yet to  be  identified,  hence the preliminary decree in the present form is not  executable. Final decree will determine as to who would get his share in which  proper-ty.  On the facts of this case it cannot be said that legal heirs  of  Devi Chand Seth have acquired any specified interest in any particular  property of the deceased. They have 1\/7th share in the undivided property. They  are still co-owners. It was in this background that the judgment of this  Court in  the  case  of Holkar Mal Vs. Munshi Lal, 1976 RCR 540,  relied  by  the present applicant\/tenant was distinguished. Decisions of the Apex Court  in the  cases of Smt. Kanta Goel Vs. B.P. Pathak & Ors., 1977 SC  1599],  Shri Ram  Pasricha Vs. Jagannath & Ors., 1976 SC 2335, and S.K. Puri  Vs.  Sarla Chawla, 1995 (1) Apex Decisions (Delhi) 485, squarely apply to the facts of this case.\n<\/p>\n
8.   For  the reasons stated above I find no merit in the review  petition. the same is accordingly dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Bimla Wati Seth vs Kastings Pvt. Ltd. on 20 February, 1998 Equivalent citations: 1998 IIAD Delhi 785, 72 (1998) DLT 93, 1998 (44) DRJ 743 Author: U Mehra Bench: U Mehra JUDGMENT Usha Mehra, J. 1. Respondent\/tenant is seeking review of the order of this Court dated 13th February, 1997 primarily on […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-80480","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nBimla Wati Seth vs Kastings Pvt. 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