Case Law on premises exempted from applicability of Delhi Rent Control Act, 1958
Meaning and scope of contractual and statutory tenancies
Atma Ram Properties (P) Ltd v. Federal Motors (P) Ltd. [2005 SC]
The suit premises are non-residential commercial premises admeasuring approximately 1000 sq. ft. and situated in Connaught Circus, New Delhi. The premises are owned by the appellant and held on tenancy by the respondent on a monthly rent of Rs. 371 per month. The tenancy had commenced sometime in the year 1944 and it appears that ever since then the rent has remained static. Admittedly, the provisions of the Delhi Rent Control Act 1958 are applicable to the premises.
Sometime in the year 1992, the appellant initiated proceedings for the eviction of the respondent on the ground available under Clause (b) of Sub-section (1) of Section 14 of the Act alleging that the respondent had illegally sublet the premises to M/s. Jay Vee Trading Co. Pvt. Ltd. and the sub-tenant was running its showroom in the premises. Vide order dated 19.3.2002, the Additional Rent Controller, Delhi held the ground for eviction made out and ordered the respondent to be evicted. The respondent preferred an appeal under Section 38 of the Act. By order dated 12.4.2001, the Rent Control Tribunal directed the eviction of the respondent to remain stayed but subject to the condition that the respondent shall deposit in the Court Rs. 15,000 per month, in addition to the contractual rent which may be paid directly to the appellant. The deposits was permitted to be made either in cash or by way of fixed deposits in the name of the appellant and directed to be retained with the Court and not permitted to be withdrawn by either party until the appeal were finally decided. Raising a plea that the respondent could not have been directed during the pendency of the proceedings at any stage to pay or tender to the landlord or deposit in the Court any amount in excess of the contractual rate of rent, the respondent filed a petition under Article 227 of the Constitution putting in issue the condition as to deposit Rs. 15,000/- per month imposed by the Tribunal.
By order dated 12.2.2002, which is impugned herein, the learned single Judge of the High Court has allowed the petition and set aside the said condition imposed by the Tribunal. The effect of the order of the High Court is that during the pendency of appeal before the Tribunal the respondent shall continue to remain in occupation of the premises subject to payment of an amount equivalent to the contractual rate of rent. Feeling aggrieved, the landlord (appellant) has filed this appeal by special leave.
Ordinarily this Court does not interfere with discretionary orders, more so when they are of interim nature, passed by the High Court or subordinate Courts/Tribunals. However, this appeal raises an issue of frequent recurrence and, therefore, we have heard the learned counsel for the parties at length. Landlord-tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. If the plea raised by the learned senior counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not lose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant.
The order of eviction passed by Rent Controller is appealable to the Rent Control Tribunal under Section 38 of the Act. There is no specific provision in the Act conferring power on the Tribunal to grant stay on the execution of the order of eviction passed by the Controller, but Sub-section (3) of Section 38 confers the Tribunal with all the powers vested in a Court under the Code of Civil Procedure, 1908 while hearing an appeal. The provision empowers the Tribunal to pass an order of stay by reference to Rule 5 of Order 41 of the Code of Civil Procedure 1908.
It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in the Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks to itself is: Why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.
Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be ‘substantial loss’ to the party applying for stay of execution within the meaning of Clause (a) of Sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made.
In our opinion, while granting an order of stay under Order 41 Rule 5 of the CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal in so far as those proceedings are concerned. Thus, for example, though a decree for payment of money is not ordinarily stayed by the appellate Court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the judgment-debtor to the decree-holder.
The following two issues arise: (i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate; and (ii) upto what point of time the tenant is liable to pay rent at the contractual rate and when does he become liable to pay to the landlord compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent?
Under the general law, and in cases where the tenancy is governed only by the provisions of Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant.
In the case of Chander Kali Bai the tenancy premises were situated in the State of Madhya Pradesh and the provisions of the M.P. Accommodation Control Act, 1961 applied. The suit for eviction was filed on 8th March 1973 after serving a notice on the tenant terminating the contractual tenancy w.e.f. 31st December 1972. The suit came to be dismissed by the trial Court but decreed in first appeal decided on 11th August, 1975. One of the submissions made in this Court on behalf of the tenant-appellant was that no damages from the date of termination of the contractual tenancy could be awarded; the damages could be awarded only from the date when an eviction decree was passed. This Court took into consideration the definition of tenant as contained in Section 2(i) of the M.P. Act which included “any person continuing in possession after the termination of his tenancy” but did not include “any person against whom any order or decree for eviction has been made”. The court, persuaded by the said definition, held that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the M.P. Act and on such termination his possession does not become wrongful until and unless a decree for eviction is passed. However, the Court specifically ruled that the tenant continuing in possession even after the passing of the decree became a wrongful occupant of the accommodation. In conclusion the Court held that the tenant was not liable to pay any damages or mesne profits for the period commencing from 1st January 1973 and ending on 10th August 1975 but he remained liable to pay damages or mesne profits from 11th August 1975 until the delivery of the vacant possession of the accommodation.
In Shyam Sharan v. Sheoji Bhai [1977 SC] this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord.
We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy.
In the Delhi Rent Control Act 1958, the definition of ‘a tenant’ is contained in Clause (I) of Section 2. Tenant includes ‘any person continuing in possession after the termination of his tenancy’ and does not include ‘any person against whom an order or decree for eviction has been made’. This definition is identical with the definition of tenant dealt with by this Court in Chander Kali Bai case. The tenant-respondent herein having suffered an order for eviction on 19.3.2001, his tenancy would be deemed to have come to an end with effect from that date and he shall become an unauthorized occupant. It would not make any difference if the order of eviction has been put in issue in appeal or revision and is confirmed by the superior forum at a latter date. The date of termination of tenancy would not be postponed by reference to the doctrine of merger.
That apart, it is to be noted that the appellate Court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the tenant-appellant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate Court to put the tenant-appellant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent.
To sum up, our conclusions are:-
(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable;
(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in Clause (I) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree;
(3) The doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a later date.
In the case at hand, it has to be borne in mind that the tenant has been paying Rs. 371.90 p.m. rent of the premises since 1944. The value of real estate and rent rates has skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq. ft. have been recently let out on rent at the rate of Rs. 3, 50,000 per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs. 15,000 per month as charges for use and occupation during the pendency of appeal. The Tribunal took extra care to see that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the appellate Court consistently with the opinion formed by it at the end of the appeal. No fault can be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent could not have been made. We cannot countenance the view taken by the High Court. We may not place on record that it has not been the case of the tenant-respondent before us, nor was it in the High Court, that the amount of Rs. 15,000 assessed by the Rent Control Tribunal was unreasonable or grossly on the higher side.
For the foregoing reasons, the appeal is allowed. The order of the High Court is set aside and that of the Tribunal restored.
Case Law on section 14 (1), Proviso, Clause (a)
Non – Payment of Rent / Arrears of Rent
Kamla Devi v. Vasdev [1995 SC ]
This appeal is against an order passed by the Delhi High Court on 5-9-1989, declining to interfere with an order passed by the Rent Control Tribunal dated 30-5-1989.
The appellant, Smt. Kamla Devi, is the owner of Shop No. 408, Pandit Lila Ram Market, Masjid Moth, New Delhi. The shop was let out to the respondent. The respondent defaulted in payment of rent. The appellant sent a demand notice on 18-5-1981 upon the respondent for recovery of arrears of rent. The respondent neither paid nor tendered the arrears of rent within the period of two months after the service of the demand notice. On or about 2-8-1982, the appellant filed an eviction petition under clause (a) of sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958. It was admitted in the written statement that rent was due from 1-1-1980. On 27-1-1984 the Additional Rent Controller, Delhi, passed an order to the following effect:
“I direct the respondent to pay or deposit the entire arrears of rent @ Rs. 50 w. e. f. 1-1-1980 within one month of the passing of this order and continue to pay or deposit the subsequent rent month by month the 15th of each succeeding month. Case to come up for parties’ evidence on 18-3-1984.”
Thereafter the respondent paid a sum of Rs. 500 to the appellant promising to pay the arrears before expiry of the period stipulated in the order. The respondent, however, did not pay the arrears as promised. On 11-4-1984 the appellant filed an application under sub-section (7) of Section 15 of the Delhi Rent Control Act, 1958 for striking out the defence and to proceed with the hearing of the application on the ground that the tenant had failed to make payment or any deposit of the arrears of rent.
The Additional Rent Controller passed the following order:
“Since the respondent failed to comply with the order dated 27-1-1984 under Section 15(1), he was not entitled to benefit under Section 14(2) of the Act and as such he was liable to suffer straight eviction order. Accordingly, an eviction order is passed in favour of the petitioner and against the respondent in respect of shop bearing No. 408, situated at Lila Ram Market, Masjid Moth, New Delhi, as shown red in the site plan, Ex. RW 1/2.”
On appeal, the Tribunal remanded the case back to the Rent Controller to consider whether the delay in deposit of arrears of rent amounting to Rs. 2150 is liable to be condoned or not before deciding whether the appellant deserves to get the benefit of Section 14(2) or has rendered himself liable to be evicted.
On remand, the Additional Rent Controller held, inter alia, that there was some compromise between the parties. In any case, the delay in depositing Rs. 2150 could not be termed as wilful, deliberate and contumacious non-compliance of order under Section 15(1) passed on 27-1-1984. The landlord was entitled at the most to some compensation. In the premises, the Additional Rent Controller condoned the delay in depositing Rs. 2150 by the tenant. It was held that the respondent was entitled to get the benefit of the provisions of Section 14(2) of the Act.
Kamla Devi appealed to the Tribunal. The only ground urged before the Tribunal was that there was no reason for condonation of the delay and the Additional Rent Controller should have struck out the defence of the respondent. The Tribunal held after review of the facts that the order of striking out the defence was uncalled for. The tenant was rightly given the benefit of Section 14(2) of the Act, it being a case of first default.
Kamla Devi made a further appeal to the High Court which was dismissed. She has now come up to this Court. It has been contended on her behalf that in view of the fact that the respondent neither took any step to deposit arrears of rent nor for the extension of time within one month of the order of the Rent Controller under Section 15(1) of the Act, the Rent Controller did not have any discretionary power to condone the delay under Section 15(7) of the Delhi Rent Control Act. It was obligatory for the tenant to deposit the arrears of rent within one month from the date of passing of the order of the Rent Controller. It was contended that the provisions of Section 14(1) (a), Section 15(1) and Section 15(7) of the Delhi Rent Control Act have been misconstrued and misunderstood.
The scheme of the Act appears to be that a tenant cannot be evicted except on any one of the grounds set out in clauses (a) to (l) of Section 14(1). If a tenant is a defaulter in payment of rent, even then an order for recovery of possession of the tenanted premises shall not be made straightaway. The requirement of Section 15(1) is that the Controller will make the order directing the defaulting tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, the amount of rent in arrear and continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. If the tenant, even after this order under Section 15(1), fails to carry out the direction of the Controller, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.
It has been contended on behalf of the appellant that once there is a failure on the part of the tenant to carry out the direction given by the Controller under Section 15(1) of the Act, the tenant is not entitled to any further opportunity to pay in terms of the order passed under Section 15(1) and the landlord is entitled straightway to an order for striking out the defence of the tenant and consequently an order for eviction of the tenant.
In our view, it is not obligatory for the Rent Controller to strike out the defence of the tenant under Section 15(7) of the Delhi Act, if the tenant fails to make payment or deposit as directed by an order passed under Section 15(1). The language of sub-section (7) of Section 15 is that “the Controller may order the defence against eviction to be struck out“. That clearly means, the Controller, in a given case, may not pass such an order. It must depend upon the facts of the case and the discretion of the Controller whether such a drastic order should or should not be passed.
In our view, sub-section (7) of Section 15 of the Delhi Rent Control Act, 1958 gives discretion to the Rent Controller and does not contain a mandatory provision for striking out the defence of the tenant against eviction. The Rent Controller may or may not pass an order striking out the defence. The exercise of this discretion will depend upon the facts and circumstances of each case. If the Rent Controller is of the view that in the facts of a particular case the time to make payment or deposit pursuant to an order passed under subsection (1) of Section 15 should be extended, he may do so by passing a suitable order. Similarly, if he is not satisfied about the case made out by the tenant, he may order the defence against eviction to be struck out. But, the power to strike out the defence against eviction is discretionary and must not be mechanically exercised without any application of mind to the facts of the case.
In that view of the matter, this appeal fails and is dismissed.
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Case Law on section 14 (1), Proviso, Clause (b)
Sub– letting the rented premises
G.K. Bhatnagar v. Abdul Alim [2002 SC]
Late G.K. Bhatnagar, who has expired during the pendency of these proceedings and whose legal representatives have been brought on record in his place as the appellants, owned a suit shop let out to the tenant-respondent on 1/5/1966 on payment of Rs. 50/- by way of rent and Rs. 6/- by way of electricity charges. For the purpose of convenience we would refer to Late G.K. Bhatnagar as ‘landlord’ and the respondent as ‘tenant’. On 28/5/1979 proceedings for eviction were initiated by the landlord by filing a petition before the Rent Controller on the ground under clause (b) of sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter ‘the Act’, for short) alleging that the tenant had, without the permission of the landlord, sub-let the premises and parted with possession of the whole of the premises in favour of one Jagdish Chander. According to the tenant-respondent, there was no sub-letting: Jagdish Chander was taken into partnership by him in his pre-existing business run in the suit shop under ‘deed of partnership’ dated 13/10/1978.
The Rent Controller found that there has been no sub-letting of the premises and, therefore, directed the petition to be dismissed. The landlord preferred an appeal which was allowed by the appellate authority, which reversed the finding of the Rent Controller and directed the petition for eviction to be allowed. The tenant preferred a second appeal before the High Court under section 39(2) of the Act. The appeal has been allowed. The High Court has set aside the judgment of the appellate authority and restored the one by the Rent Controller.
In the evidence adduced by the parties on behalf of the landlord, the landlord alone (late G.K. Bhatnagar) appeared in the witness box and produced no other witness. The respondent-tenant examined himself and also produced Jagdish Chander, the alleged subtenant, in the witness box deed of partnership dated 13/10/1978 was ex hibited in evidence by the respondent-tenant. This Deed of partnership when tendered in evidence before the Rent Controller was accompanied by a general power of attorney of the same date executed by the respondent-tenant in favour of Jagdish Chander. This power of attorney, though not formally tendered in evidence and neither formally proved nor exhibited, has nevertheless been taken into consideration and read in evidence inasmuch as the same was produced in court by the respondent-tenant and could have been, in the opinion of the appellate authority, relied on by the landlord for the purpose of substantiating his case.
Clause (b) of sub-section (1) and subsection (4), of section 14 of the Act are relevant for our purpose.
A conjoint reading of these provisions shows that on and after 9th June, 1952, subletting, assigning or otherwise parting with the possession of the whole or any part of the tenancy premises, without obtaining the consent in writing of the landlord, is not permitted and if done, the same provides a ground for eviction of the tenant by the landlord. However, inducting a partner in his business or profession by the tenant is permitted so long as such partnership may ostensibly be to carry on the business or profession in partnership, but the real purpose be sub-letting of the premises to such other person who is inducted ostensibly as a partner, then the same shall be deemed to be an act of sub-letting attracting the applicability of clause (b) of sub section (1) of section 14 of the Act.
In the present case, the partnership is evidenced by written deed. According to the contents of the partnership deed it was the tenant who was carrying on business under the name and style of M/s DP. Zenith Sanitary & Engg. Works in the suit premises. He was short of finance and other resources and on his request Jagdish Chander, has agreed to join the tenant as a partner. The share in the profit and loss of the partnership is 50% for each of the two partners. The partners shall maintain a bank account which can be operated by either of the two partners. The possession over the tenancy premises shall continue with the tenant and on the determination of the partnership, the possession shall revert back to the tenant alone with no right or interest left in Jadgish Chander. Both the partners agreed to look after the business diligently. The general power of attorney, accompanying the deed of partnership, recites the tenant having authorised the other partner to do several acts relating to tenancy premises and the business run therein in partnership with the tenant. It appears that prior to the filing of the present eviction proceedings, the two partners had filed a suit for injunction against the landlord seeking a permanent injunction restraining the landlord from constructing a wall and therein both the partners had stated themselves to be the tenants. It appears that at least at two stages of the proceedings, one before the Rent Controller and the other before the High Court, the landlord had sought for the assistance of the court for the production of the passport of the tenant-respondent so as to find out for how many times and for what duration the tenant-respondent had remained away from the country and gone to Iraq. However, this passport was not produced on the plea that it was lost. An adverse inference against the tenant-respondent from non-production of passport cannot be drawn unless it is held that the same was held back, that is, not produced though available. None of the authorities below nor the High Court has held so. It cannot be held, on the material available, that the tenant had left the country and parted with possession in favour of Jagdish Chander outwardly projecting him as partner.
The learned Rent Controller and the High Court have believed the testimony of the tenant-respondent and Jagdish Chander, the alleged sub-tenant. So far as the landlord himself is concerned, his testimony is practically of no assistance. He admitted during the course of his deposition that he had not made any inquiries of himself to find out who the partners in the business were and how and in what manner the business was being carried on in the suit premises. He stated that it was from the wife of the respondent that he had learnt about the respondent-tenant having left India for going abroad and then having returned. No inference relevant to the issue arising in the suit could have been drawn from the statement of the landlord.
The learned Rent Controller discussed all the evidence and recorded the finding of fact. With the assistance of the learned counsel for the appellant we have gone through the judgment of the learned Rent Controller, of the appellate authority, as also of the High Court and we find that the approach adopted by the appellate authority was very superficial in nature and mostly the appellate authority went by surmises and conjectures for the purpose of reversing the judgment of the Rent Controller. At least at one place the appellate authority has belaboured under a factual misapprehension when it stated that on the very date of entering into partnership the respondent-tenant had left India for Iraq. In fact the respondent-tenant did not leave India on the date of partnership; he left much later thereafter and actually on the date on which his statement was recorded by the Rent Controller. In such facts and circumstances, the High Court has not erred in reversing the judgment of the appellate court and restoring that of the trial court.
It is true that an appeal under section 39(2) of the Act before the High Court lies only on the substantial question of law. However, the appellate authority in this case reversed the well considered and well reasoned judgment of the Rent Controller by resorting to conjectures and surmises. There is no material available to hold the partnership a sham or nominal one and to hold that the partnership was brought into existence for disguising a sub-letting in reality. A substantial question of law, therefore, arose before the High Court justifying interference in second appeal with the judgment of reversal recorded by the appellate authority. In addition, the case involved interpretation of the partnership deed and general power of attorney so as to see whether on a totality of the interpretations of recitals contained therein, read in the light of the other facts and circumstances, a case of sub-letting disguised as partnership was made out and needless to say, such interpretation of deeds is a question of law – substantial one in the facts and circumstances of the case.
For the foregoing reasons, we do not find any infirmity in the judgment of the High Court.
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Case Law on Section 14 (1), Proviso, Clause (c)
Impermissible use of rented premises
Santram v. Rajinder Lal [1979 SC]
The appellant, a Harijan by birth and a cobbler by vocation, was a petty tenant of the eastern half of a shop in Ram Bazar, Simla. The original landlord passed away and his sons, the respondents, stepped into his shoes as legal representatives. He filed a petition for eviction of the appellant-tenant under S.13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949, as applied to Himachal Pradesh on the ground that the premises were being used for a purpose other than the one for which they were let out. The Rent Controller having held in favour of the land-lord, an eviction order ensued. The appellate authority reversed this finding and dismissed the petition for eviction. The High Court, in revision, reversed the appellate decision and restored the Rent Controller’s order. The cobbler-appellant, in the last lap of litigation, has landed in this Court. The poverty of the appellant is reflected in the chequered career of the case in this Court where it was dismissed more than once for default in payment but ultimately, thanks to the persistence of the appellant, he got this Court’s order to pay the balance amount extended. He complied with that direction and thus could not be priced out of the justice market, if we may use that expression.
The short point for adjudication is as to whether the respondent landlord made out the statutory ground for eviction, of having diverted the building for a use radically different from the one for which it was let, without his consent. There is no case of written consent put forward by the tenant. But he contested the landlord’s claim by asserting that there was no specific commercial purpose inscribed in the demise and, therefore, it was not possible to postulate a diversion of purpose. Secondly, he urged that, even assuming that the letting was for a commercial purpose, the fact that he had cooked his food or stayed at night in the rear portion of the small shop did not offend against S. 13(2)(ii)(b) of the Act.
S.13 (2) (ii) (b) reads:
“Used the building for a purpose other than that for which it was leased.”
The factual matrix may be shortly projected:
A cobbler-the appellant-was the lessee of a portion of a shop in Ram Bazar, Simla, since 1963, on an annual rent of Rs. 300 (i.e. Rs.25 per month). Ex.P.1, the lease deed, disclosed no purpose; but inferentially it has been held by the High Court that the lease being of a shop the purpose must have been commercial. Possible; not necessarily sure. The actual life situations and urban conditions of India, especially where poor tradesmen like cobblers, candle-stick makers, cycle repairers and Tanduri bakers, take out small spaces on rent, do not warrant an irresistible inference that if the lease is of a shop the purpose of the lease must be commercial. It is common knowledge that in the small towns, why, even in the big cities, little men, plying little crafts and possessing little resources taken on lease little work places to trade and to live, the two being interlaced for the lower, larger bracket of Indian humanity.
You struggle to make a small income and work late into the right from early in the morning and, during intervals, rest your bones in the same place, drawing down the shutters of the shop for a while. The primary purpose is to ply a petty trade, the secondary, but necessary incident, is to sleep in the same place since you can hardly afford anything but a pavement for the creature needs of cooking food, washing yourself, sleeping for a time and the like.
The life style of the people shapes the profile of the law and not vice-versa. Law, not being an abstraction but a pragmatic exercise, the legal inference to be drawn from a lease deed is conditional by the prevailing circumstances. The intention of parties from which we spell out the purpose of the lease is to be garnered from the social milieu. Thus viewed, it is difficult to hold, especially when the lease has not spelt it out precisely, that the purpose was exclusively commercial and incompatible with any residential use, even of a portion.
Two rules must be remembered while interpreting deeds and statutes. The first one is:
“In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible a degree of precision which a person reading in bad faith cannot misunderstand.”
The second one is more important for the third world countries. Statutory construction, so long as law is at the service of life, cannot be divorced from the social setting. That is why, welfare legislation like the one with which we are now concerned, must be interpreted in a third world perspective. We are not on the Fifth Avenue or Westend of London. We are in a hilly region of an Indian town with indigents struggling to live and huddling for want of accommodation. The law itself is intended to protect tenants from unreasonable eviction and is, therefore, worded a little in favour of that class of beneficiaries.
If we remember these two rules, the conclusion is easy that there is no exclusiveness of purpose that can be spelt out of the lease deed. That knocks at the bottom of the case of the land-lord.
The circumstances are clearer as we proceed further. For well over a decade the tenant have been in occupation, cobbling and sleeping, in the same place on working days, but going home on days when the shop is closed. Indeed, the pathetic genesis of the residential user cannot be lost sight of. The cobbler’s wife became mentally deranged and he could not leave her at home lest she should prove a danger to herself and to others around. Being a Harijan cobbler he could not hire servants and so, in despair, he took his insane wife to the place where he was tailing on leather. He worked in the shop, cooked food for his wife, slept there at night and thus managed to survive although she died a little later. “A bed by night and a chest of drawers by day” is not unusual even in England, as those who have read Goldsmith. The dual uses of accommodation are common enough and, in this case, the landlord himself appears to have understood it that way. The evidence shows that the sympathetic father of the respondents had not objected to the petitioner living in the premises and had even provided a sink in the shop to facilitate such user. Not that oral permission to divert the user to a different purpose is sufficient in the face of the statutory requirement of written consent but that circumstance of the landlord’s acquiescence over a long stretch of time reinforces the case of the tenant that the purpose was two-fold. The common experience of life lends credence to this case and none but those who live in ivory towers can refuse to look at the raw realities of life while administering justice. We are in the field of Poverty Jurisprudence.
It is impossible to hold that if a tenant who takes out petty premises for carrying on a small trade also stays in the rear portion, cooks and eats; he so disastrously perverts the purpose of the lease. A different ‘purpose’ in the context is not minor variations but majuscule in mode of enjoyment. This is not a case of a man switching over to a canteen business or closing down the cobbler shop and converting the place into a residential accommodation. On the other hand, the common case is that the cobbler continued to be cobbler and stayed in the shop at night on days when he was running his shop but left for his home on shop holidays. A sense of proportion in social assessment is of the judicial essence.
The irresistible inference, despite the ingenious argument to the contrary, is that the provision of S. 13(2)(ii) has not been attracted. We are comforted in the thought that our conclusion is a realistic one, as is apparent from a subsequent amendment to the definition of non-residential building which reads thus:
(d) “non-residential building” means a building being used,-
(i) mainly for the purpose of business or trade; or
(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there;
Explanation.- Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence.”
In this view, the appeal is allowed with costs.
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Case law for Section 14 (1), Proviso, Clause (e) read with Section 25-B
Bona fide requirement of the rented premises by the landlord
Ramesh Ahuja v. Ram Nath Jain [2009 DLT]
Present civil revision petition has been filed by petitioners/tenants under Section 25B(8) of Delhi Rent Control Act, 1958 seeking to set aside order dated 25th September, 2008 passed by Additional Rent Controller whereby petitioners’ leave to defend application has been dismissed and an eviction order in favour of respondent/landlord has been passed.
Learned Counsel for petitioners contended that respondent/landlord is not the owner of premises in question and sale deed relied upon by respondent is a forged and fabricated document. He further stated that ARC had wrongly concluded that respondent was owner of property in question on the basis of a judgment rendered by a Judge of Small Causes Court. He submitted that said judgment cannot be relied upon to conclude the ownership issue as a Court of Small Causes has limited jurisdiction.
He further submitted that ARC could not have relied upon the principle of res judicata as decision on question of jurisdiction was purely a question of law, unrelated to rights of parties to previous suit. In this context, he relied upon a judgment of Hon’ble Supreme Court in Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy [1971 SC] wherein it has been held as under:-
“It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in S.11 Code of Civil Procedure, means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.
Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.
Undoubtedly, a Court of Small Causes has limited jurisdiction, but in my opinion, on the principles of res judicata, finding of Court of Small Causes that respondent was owner of tenanted premises, would disentitle petitioners from raising this plea in their leave to defend application. The finding rendered by Small Causes Court with regard to respondent’s ownership of suit premises is reproduced hereinbelow for ready reference :
From the pleadings of the parties it is admitted case of the parties that Heera Lal was the previous owner and Ram Lal deceased husband of the defendant was the tenant. The defendant herself has not come forward to enter in the witness box. Her son appearing as DW has not stated a word about having become owner by way of adverse possession. It is settled law that once a tenant always a tenant. Succession of tenancy rights is governed by the provisions of Delhi Rent Control Act, 1958 and on the demise of a tenant tenancy rights are inherited by his spouse, son or daughter provided they were living with the deceased on the date of his death, as laid down in sub Sec. (L) of Sec. 2 of the Act. This provision is further subject to explanation (I) and in the order of succession provided therein the tenancy rights devolved firstly upon the surviving spouse and if there is no surviving spouse then upon son or daughter of that deceased. Since the deceased Ram Lal is survived by his wife presently living in the tenanted premises tenancy rights cannot be said to have devolved upon the son or daughter of the deceased. Therefore, other LRs of the deceased are not necessary to be impleaded. It has not been explained as to how DDA is a necessary party. Even if rent of the premises was once attached by the DDA for nonpayment of lease money unless possession is taken the ownership does not comes to end.
Regarding ownership of the plaintiff he has proved on record sale deed Ex. PX and PW-1/A and copies of mutations Ex. PW1/B&C. A bare perusal of these sale deeds shows that Heera Lal the previous owner, sold the property to Sh. Ram Kumar and others who in turn later on sold the same to the plaintiff. It was contended by the learned Counsel for the defendant that the Sale Deed has to be properly proved. In this connection PW3 Shri G.R. Chopra, Advocate has identified his signature as well that of executants before the Sub- Registrar and has thus proved the sale deed, from the record brought by clerk of Sub-Registrar Office, certified copy of which is Ex. PX. Other sale deed Ex. PW-1/A was proved by the plaintiff himself. Copies of mutation placed on record and proved as Ex. PW-1/B & C further show that first property was mutated in the name of Ram Kumar and therein the name of the plaintiff. In my opinion this is sufficient proof of ownership.
In his deposition the defendant’s son himself stated that if rightful owner claims the rent the defendant is willing to pay the same. Since there is no dispute regarding rate of rent and the period and it stands proved on record that the plaintiff is the rightful owner to recover the rent, I find the plaintiff entitled to claim the same. Suit is thus, liable to be decreed against the defendant…….”
Admittedly, aforesaid finding has attained finality as the same was never challenged by petitioners’ predecessor in interest -through whom petitioners claim tenancy. Moreover, on a perusal of judgment of Court of Small Causes, it is apparent that the same dispute with regard to ownership of tenanted premises was raised in the said proceedings, as is being sought to be done in the present case, and further that finding of Court of Small Causes was in fact a finding of fact and not of law. Even the judgment of Mathura Prasad Sarjoo Jaiswal relied upon by petitioners’ Counsel is inapplicable to the present case.
It is pertinent to mention that petitioner no. 1 had deposed as a witness in support of his mother -who was the defendant before Court of Small Causes. It is rather unfortunate that judgment of Court of Small Causes was not disclosed by petitioners in their leave to defend application. The tendency of not making full disclosure in pleadings is unfortunate and largely responsible for delay in the judicial system. Unless this practice of making incomplete disclosure is curbed with a heavy hand, courts will not able to dispense speedy justice. Consequently, petitioners’ conduct of making incomplete disclosure is deprecated and present petition along with application are dismissed with costs of Rs. 15,000 to be paid to Prime Minister Relief Fund.
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Case Law on Section 14 (1), Proviso, Clause (e) read with Section 25-B
Bona fide requirement of the rented premises by the landlord
Miss S. Sanyal v. Gian Chand [1968 SC]
The appellant Miss Sanyal has since 1942 been a tenant of a house in Western Extension Area, Karol Bagh, New Delhi, a part of which is used for a Girls’ School and the rest for residential purposes. The respondent Gian Chand purchased the house from the owners by a sale deed dated September 19, 1956, and commenced an action in the Court of the Subordinate Judge Ist Class, Delhi against the appellant for a decree in ejectment in respect of the house. Numerous grounds were set up in the plaint in support of the claim for a decree in ejectment, but the ground that the respondent required the house bona fide for his own residence alone need be considered in this appeal. The Trial Court dismissed the suit and the Senior Subordinate Judge, Delhi dismissed an appeal from that order holding that the house being let for purposes non-residential as well as residential, a degree in ejectment could not be granted under Section 13 (1) (e) of the Delhi and Ajmer Rent Control Act, 1952. The High Court of Punjab (Delhi Bench) in a revision petition filed by the respondent held that on the finding recorded by the First Appellate Court a decree in ejectment limited to that portion of the house which was used for residential purposes by the tenant could be granted, and remanded the case to the Rent Controller “for demarcating those portions which were being used for residence” and to pass a decree in ejectment from those specific portions of the house. Against that order the tenant has appealed to this Court.
It is necessary in the first instance to read the material provisions of the Delhi and Ajmer Rent Control Act, 1952. The expression “premises” is defined in Section 2 (g) of the Act as “any building or part of a building which is, or is intended to be let separately for use as a residence or for commercial use or for any other purpose”, and includes Section 13 of the Act which grants protection to tenants against eviction provided insofar as it is material.
Section 13 (1)
“(1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied-
(e) that the premises let for residential purposes are required bona fide by the land-lord who is the owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation;
Explanation- For the purposes of this clause, “premises let for residential purposes” include any premises which having been let for used as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes.”
It is clear that Section 13 (1) imposes a ban upon the exercise of the power of the Court to decree ejectment from premises occupied by a tenant. The ban is removed in certain specific cases, and one such case is where the premises having been let for residential purposes the landlord requires the premises bona fide for occupation as a residence for himself or the members of his family and he has other suitable accommodation. It is plain that if the premises are not let for residential purposes, Clause (e) has no application nor on the express terms of the statute does the clause apply where the letting is for purposes residential and non-residential.
In the present case the First Appellate Court held that the house was “let out for running a school and for residence.” The High Court held that where there is a composite letting, it is open to the Court to disintegrate the contract of tenancy, and if the landlord proves his case of bona fide requirement for his own occupation to pass a decree in ejectment limited to that part which “is being used” by the tenant for residential purposes. In so holding, in our judgment, the High Court erred. The jurisdiction of the Court may be exercised under Section 13 (1) (e) of the Act only when the premises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purposes residential and non-residential. The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts-one of letting for residential purposes, and the other for non-residential purposes, and to grant relief under Sec. 13(1)(e) of the Act limited to the portion of the demised property which “is being used” for residential purposes.
In Dr. Gopal Das Verma v. S. K. Bhardwaj [1962 SC], the premises in dispute were originally let for residential purposes, but later with the consent of the landlord a portion of the premises was used for non-residential purposes. It was held by this Court that “where premises are let for residential purposes and it is shown that they are used by the tenant incidentally for commercial, professional or other purposes with the consent of the landlord, the landlord is not entitled to eject the tenant even if he proves that he needs the premises bona fide for his personal use, because the premises have by their user ceased to be premises let for residential purposes alone:” It was, therefore, clearly ruled that if the premises originally let for residential purposes ceased, because of the consent of the landlord to be premises let for residential purposes alone, the Court had no jurisdiction to decree ejectment on the grounds specified in Section 13(1)(e) of the Act.
If in respect of premises originally let for residential purposes a decree in ejectment cannot be passed on the grounds mentioned in Section 13(1)(e), if subsequent to the letting, with the consent of the landlord the premises are used both for residential and non-residential purposes, the bar against the jurisdiction of the Court would be more effective when the original letting was for purposes- non-residential as well as residential. It may be recalled that the condition of the applicability of Section 13(1)(e) of the Act is letting of the premises for residential purposes.
In this case the letting not being solely for residential purposes, in our judgment, the Court had no jurisdiction to pass the order appealed from. We may note that a Division Bench of the Punjab High Court in Kanwar Behari v. Smt. Vindhya Devi [l966 Punj] has held in construing Section 14(1)(e) of the Delhi Rent Control Act 59 of 1958, material part whereof is substantially in the same terms as S. 13(l)(e) of the Delhi and Ajmer Rent Control Act, that “where the building let for residence is the entire premises, it is not open to the Court to further sub-divide the premises and order eviction with respect to part thereof’. In our view that judgment of the Punjab High Court was right on the fundamental ground that in the absence of a specific provision incorporated in the statute, the Court has no power to break up the unity of the contract of letting and attribute incidents and obligations to a part of the subject matter of the contract which are not applicable to the rest.
In our view the order passed by High Court of Punjab remanding the case for determination of the residential portion of the house occupied by the appellant and for passing a decree in ejectment in respect of that part is without jurisdiction and must be set aside.
The appeal is allowed and the decree passed by the Senior Subordinate Judge is restored.
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Case law on section 21
Recovery of possession in case of limited period tenancy
Pukhraj Jain v. Padma Kashyap [1990 SC]
Tenant inducted in 1979, for three years, by the landlord under a written agreement, in C-4/33, Safdarjang Development Area, New Delhi, with permission of Controller under Section 21 of Delhi Rent Control Act seeks leave of this Court on limited question of law if proceedings for recovery of possession under Section 21 of the Act could be initiated and continued by legal representatives of the landlord who had obtained permission but who died before expiry of period of tenancy.
Answer of it shall depend, primarily, on construction of word ‘landlord’ used in Section 21, a provision held to be self-contained code, and also the purpose and objective of its enactment as provision of short duration tenancy or periodical tenancy in Rent Control Act of Delhi right from 1952, is unique amongst such legislations and is probably non-existent in any other State.
What it, undoubtedly, projects is the legislative awareness of acute crisis of houses in the State. To resolve the paucity of accommodation, on one hand, due to enormous influx of office personnel and business class as a result of rapid growth of social, economic and political activity and apprehension of house owners, on other, bulk of whom hail from middle class or service class, of losing their houses if not for good then for substantial period due to development of strange phenomenon in big cities that allotted or rented houses are more economical than even own, the legislature which is the best judge of need of its people carved out an exception to usual rent control provisions of protecting tenants from eviction. What was unique of it was not short duration tenancy but a fresh look on eviction. Vacant possession was ensured, statutorily, without any notice, or termination of tenancy or the hazard of establishing bona fide need and comparative hardship etc.
Since Section 21 is an exception to Section 14 and it mandates restoration of possession, “notwithstanding any other law” it has to be construed strictly and against any attempt to frustrate it. Intensity of it can be appreciated better, if its language is compared with other provisions of recovery of possession even though those provisions, namely, Sections 14-A, 14-B, 14-C and 14-D, were introduced later. They also provide speedy remedy to recover possession. But the landlord cannot succeed unless he is able to prove circumstances mentioned in it. More than this the tenant has been given right to contest under Section 25-B. Import of Section 21 on the other hand is altogether different. It enjoins Controller to place landlord in vacant possession after expiry of time without any right to tenant to contest it except to the limited extent that permission was vitiated by fraud or misuse of the provision by landlord taking advantage of helpless situation of the tenant or the permission really did not create genuine tenancy. Recovery of possession under Section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of those exceptions which have been carved out by courts, obviously, to uphold fairness and honesty the core of our jurisprudence. Right to get vacant possession is, thus absolute.
Purpose and objective of the section having been ascertained, it may now be examined if the word “landlord” used in the second part of the section which empowers landlord to make an application for recovery of possession is to be understood as the same landlord who made the application or his legal representatives as well. In other words, is there any justification for construing the word “landlord” in a narrow sense so as to restrict it, only, to the person who made the application and obtained permission. “Landlord” has been defined in Section 2(e).
Expression, “for the time being” makes it clear, that landlord has to be understood in praesenti. That is anyone entitled to receive rent is the landlord. It does not visualise past or future landlord. Therefore, the word “landlord”, on plain reading of Section 21 does not warrant construction of the word in any other manner. Basis for submission, however, that landlord in second part of Section 21 entitling him to claim vacant possession should be confined to the person who obtained permission was founded on use of expression, “who does not require the whole or any part of the premises for a particular period”. Attempt was made to personalise eviction proceedings by linking it with the person, due to whose non-requirement the permission was granted resulting in automatic exclusion of legal representatives. To put it interpretationally, the word “landlord”, in second part was urged to be understood in a manner different than it is defined in Section 2(e).
Can it be said that context or setting of Section 21 is such that the word “landlord” in second part of it should be understood in a different sense than that in definition clause? Not on prima facie reading of it which has already been adverted to. Nor on close analysis. What is visualised is occasion for short duration tenancy due to non-requirement of whole or part of premises by landlord for time being; method of its creation by written agreement entered with tenant, statutory status to it by permission obtained from Controller and execution by restoration of vacant possession if the tenant does not vacate after expiry of period. All condensed in one. Constructionally it is in two parts one creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate independently. Non-requirement of premises for time being furnishes basis for entering into agreement for periodical tenancy. Truth of it or its genuineness is relevant considerations for granting permission. But it exhausts thereafter except to the limited extent pointed out in decisions referred earlier. And the permission granted continues unabated, unaffected irrespective of variation in requirement. Necessity of landlord, again, does not entitle him to seek its revocation. Even his death cannot shorten the period. Similarly once period expires the agreement, the permission all ceases to operate by operation of law. Nothing further is required. Vacation is not linked with landlord but with time. Expiry of it obliges tenant to vacate. If he does not then the landlord may approach Controller for putting him in vacant possession. Which landlord? Obviously whosoever is the landlord at the time of efflux of tenancy. Death of landlord does not either shorten or enlarge period nor are the consequences envisaged altered or affected.
Use of expression “notwithstanding any other law” renders it obligatory on tenant to vacate without questioning authority of landlord. Any other construction, may, as rightly observed by the High Court lead to disastrous consequences. Even on principle of civil law the provision for recovery of possession being in nature of execution it could not be successfully resisted on the death of landlord due to whose non-requirement the permission was granted. Such narrow and unrealistic construction of the word ‘landlord’ shall frustrate entire purpose of Section 21.
Maxim of actio personalis moritur cum persona cannot apply, either, on principle or on facts. In Shantilal Thakordas v. Chamanlal Maganlal Telwala [1976 SC] it was observed that doctrine of actio personalis moritur cum persona did not apply to Rent Control Acts.
Even otherwise an action for eviction abates only if the cause of action does not survive. What is the cause of action for an application for vacant possession in Section 21: death of landlord or expiry of time for which tenancy was created. Obviously the latter, the failure of tenant to honour his commitment to vacate the premises after expiry of time for which he was inducted with permission of Controller. Death of the person who obtained the permission has nothing to do with it. Permission was obtained because the landlord did not require the premises on the date when it was let out to tenant. That does not continue on the date when the tenant does not vacate the premises. The necessity of not requiring the premises, for some time, or for the duration the tenant was inducted was confined to the date when the permission was granted. It could not be taken further to the time when the question of vacation arose. The cause of action for granting permission was the non-requirement by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non-vacation by the tenant after the expiry of period. Therefore, it is immaterial who the landlord is at the time when the action for vacation arose.
Even on facts permission was applied for by the landlord as premises was surplus to his need for a limited period of three years due to the reason that his son had gone abroad and he was expected to return after three years. Permission was granted for this reason on statement of parties. Such necessity to let out or non-requirement by the landlord could not be brought into those exceptions which invalidate permission. Therefore death of the landlord was immaterial, as even the reason for letting out did not die with death of landlord. In the result this petition for special leave fails and is dismissed.
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Case Law on Section 14 (1), Proviso, Clause (k)
Use of rented premises in violation of conditions of lease stipulated by D.D.A./ M.C.D.
Shri Munshi Ram v. Union of India [2000 SC]
The appellants are tenants. The tenanted premises are situated in Karol Bagh Area, Delhi. The landlord is respondent No. 3 whereas Union of India and the Delhi Development Authority are respondents 1 and 2 respectively.
The tenanted premises are part of building constructed on the land leased to the original lessee by Delhi Improvement Trust. The DDA succeeded the said Trust. The perpetual lease, inter alia, provides that the lessee will not use the land and building that may be erected thereon during the terms of the lease for any other purpose than for the purpose of residential house without the consent in writing of the lessor. Admittedly the premises are being used by the appellants for commercial purposes.
By notice dated 4th January, 1982 issued by DDA, respondent No. 3 was informed that the premises were being used for the purpose of commercial-cum-residential which is contrary to the terms of the lease and the lease has become void and the lessor has right to reenter after cancellation of lease. It was further stated in the said notice that the lease has been cancelled by DDA on 23rd December, 1981 for breach of Clause I(VI) and the possession of the plot together with the building and the fixtures standing thereon will be taken over by DDA. In a suit filed by respondent No. 3 against DDA for grant of permanent injunction, interim injunction was granted by civil court inter alia noticing in the order that the owner had instituted eviction proceedings as far back as in 1974 against the tenants who were running their shops even at the time of the purchase of premises in question by the owner from its erstwhile owner.
In 1974, respondent No. 3 instituted eviction petitions against the appellants seeking their eviction under Clause (k) of proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (‘the Act’). The said clause stipulates an order of eviction being passed against the tenant who has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate. The tenant cannot resist his eviction when sought under Section 14(1)(k) of the Act merely on the ground that the landlord had himself let out the premises for commercial use. Under Sub-section (11) of Section 14 of the Act, before an order for recovery of possession of any premises on the grounds specified in Clause (k) of the proviso to Subsection (1) of the said section is made, the Controller is required to give to the tenant time to comply with the conditions imposed on the landlord by any of the authorities referred to in Clause (k) or pay to that authority such amount by way of compensation as the Controller may direct.
The Additional Rent Controller by order dated 6th September, 1988 after coming to the conclusion that the DDA is not interested in permitting the misuse permanently or even temporarily and has threatened to re-enter the premises, directed the appellants to pay within two months the past mis-user charges to respondent no. 3 for being deposited with the DDA. The appellants were also directed to pay further compensation/charges as may be demanded by DDA in this regard. The appellants were directed to stop mis-user of the premises within two months from the date of the order and in the event of non-compliance of any of these conditions, it was directed that the order of eviction under Section 14(1)(k) of the Act shall be deemed to have been passed against the appellants for their eviction from the premises in question. This conditional order of eviction has been upheld by the Rent Control Tribunal in appeal as also by the High Court.
Challenging the aforesaid orders, Mr. D.D. Thakur submits that since the appellants are prepared to pay such amount of penalty as compensation as may be determined by the Controller to be payable to DDA till the matter of regularisation of user is finally decided by the said authority, the case be remanded to the Rent Controller for such a determination.
In the present case the DDA has been insisting to act upon the notice dated 4th January, 1982 sent to respondent No. 3. That has been the clear stand of DDA in proceedings before the Additional Rent Controller. The stand of the DDA is that after due payment for past misuser, the lessee is bound to discontinue the misuse in future. A statement showing action taken by DDA against misuser of premises in the vicinity of the premises in question has also been filed. Mr. Kirti Rawal learned Addl. Solicitor General appearing for DDA submits that the DDA is not contemplating to regularise the misuser and in case the misuser is not stopped, the DDA will act upon the notice and re-enter the premises. In this state of affairs, the decision in Narain Das case can be of no assistance to the appellants.
Next, Mr.Thakur relies upon (i) the order dated 3rd January, 1983 passed by Lt. Governor of Delhi inter alia stating that the issue of notices and further action under misuser clause in the various areas of Delhi may be suspended till the matter has been reviewed at a high level or in the next meeting of DDA; (ii) the affidavit of the Secretary of Delhi Development Authority of February 1983 filed in the High Court of Delhi in another case in a second appeal inter alia stating that the further show cause notice has been suspended for the time being and even the prosecution for the misuse has been suspended for the time being as per the order of the Lt.Governor as there is a likelihood of permission being granted for commercialisation of the area in accordance with the provisions of the master plan/zonal plan after charging certain dues, and (iii) to a somewhat similar statement as in (ii) given in another case by the Commissioner (Land), DDA. Reliance on these documents is wholly misplaced for more than one reason. Firstly, these documents pertain to 1980s whereas in the present case the Commissioner (Land Disposal), DDA has filed an affidavit even in September, 1998 inter alia stating that though a scheme dated 12/17 September, 1996 has been forwarded by DDA to the Ministry of Urban Affairs and Employment for approval of the Government of India for promotion of Karol Bagh area as special area and for promotion of commercial use on ground floor on the basis of location but the examination of the plan of the premises in question shows that the disputed area falls outside the area of the scheme which is under consideration with DDA and the Union of India. In nutshell, the affidavit is that in respect of the area in question there is no proposal under consideration to allow commercial user. Secondly, we do not have the facts of cases in which the abovenoted affidavit was filed by the Secretary of DDA or statement was given by Commissioner (Land Disposal), DDA. Thirdly, we are considering not a violation of master or zonal plan but breach of a term of lease, which paramount lessor is unwilling to condone. In the present case, it is not necessary to decide as to the effect of the proposal sent by DDA to Central Government to allow commercial user since the ground of eviction is Clause (k) as aforesaid where the question is about breach of a term of lease and the lessor has declined to regularise the misuser for future.
Mr. Thakur also referred to the provisions of the Delhi Development Act, 1957 to contend that plans thereunder have not specified any particular use of the area where the building is situate. Reference has also been made to Section 14 which inter alia provides that after the coming into operation of any of the plans in a zone, no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan. None of the aforesaid provisions have any applicability to the present case. We are not concerned with the contravention as postulated by Section 14 of the DD Act. The question whether master plan and/or zonal plans provide or not for any use is not relevant for this matter. As already noted, we are concerned with the breach of the terms of the lease. It is not in dispute that the commercial use is contrary to the use permissible under the lease. The paramount lessor has taken action to terminate the lease for contravention of the terms thereof. It cannot be held that despite contravention of the lease, the paramount lessor is debarred for exercising its rights under the terms of the lease for absence of providing a user under Section 7 in the master plan or under Section 8 in the Zonal Development Plan.
In Dr. K. Madan v. Krishnawati (Smt.) [AIR 1997SC 579] any condition imposed on the landlord by the Government or the Delhi Development Authority or Municipal Corporation of Delhi, then the landlord will be entitled to recovery of possession under Section 14(1)(k) of the Act and that Sub-section (11) of Section 14 of the Act enables the Controller to give another opportunity to the tenant to avoid an order of eviction. The first opportunity to the tenant is given when the notice is served on him by the landlord and the second opportunity is given when a conditional order under Section 14(11) of the Act is passed directing the tenant to pay the amount by way of compensation for regularisation of user up to the date of stopping the misuser and further directing stoppage of unauthorised user. The continued unauthorised user would give the paramount lessor the right to re-enter after the cancellation of the lease deed. As already noticed, the DDA is insisting on stoppage of misuser. The misuser is contrary to the terms of lease. The DDA cannot be directed to permit continued misuser contrary to the terms of the lease on the ground that zonal development plan of the area has not been framed.
For the aforesaid reasons, we find no merit in the appeal and it is accordingly dismissed.
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