Delhi District Court
Dr. C.P. Rai vs Sh. C.B. Vyas (Thr. Lrs ) on 23 June, 2020
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
Misc. Ex. No: 62394/2016
Dr. C.P. Rai
S/o Sh. Kailash Rai,
R/o A-3/126, Paschim Vihar,
Delhi-110063.
.... Applicant
VERSUS
1. Sh. C.B. Vyas (Thr. LRs )
S/o Sh. R.D. Vyas,
R/o 141A, Pocket A-3,
Mayur Vihar, Phase-III,
New Delhi-110096. .... Non-Applicant No. 1
2. Sh. Ashok Yadav,
S/o Sh. Jagat Singh,
R/o A-3/126, Paschim Vihar,
Delhi-110063.
Also at:-
324, Sayampur, Delhi. .... Non-Applicant No. 2
3. Sh. Beant Singh .... Non-Applicant No. 3
Date of Institution : 10.03.2005
Date of Judgment : 23.06.2020
JUDGMENT
1. Brief facts of the present case are that on 10.03.2005, Sh. C.P Rai (hereinafter referred to as "Applicant") filed the present application/Petition Under Section 19 of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC ACT") praying to Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 1 /14 this court to pass an order restoring the possession for occupation and re-entry in the tenanted premises which was let out to applicant by Non-applicant No.1 U/sec. 21 of DRC ACT and later on, got vacated through execution proceedings.
2. The contention of the applicant is that the Non-applicant No. 1 did not use the tenanted premises for the purposes for which it was got vacated and instead, it was handed over to Non- Applicant No. 2. On the other hand, Non Applicant No. 2 has denied the allegations and prayed for dismissal of present application/Petition.
3. Perusal of record shows that the present petition/application was filed by the applicant U/Sec. 19 of D.R.C. Act on 10.03.2005. Notice of such petition/application was issued to all the three Non- applicants. But, Non-applicant no. 2 only made the appearance before this court. Thereafter, on 27.05.2005, Non- Applicant No. 1 & 3 were proceeded Ex-parte but an application U/o 9 Rule 7 CPC was filed on 21.12.2005 on behalf of Non- Applicant no.1 which was ultimately dismissed by the Ld. Predecessor of this court on 30.05.2012.
4. Perusal of record further shows that on 12.10.2012, statement of Applicant Sh. C.P. Rai and Non-Applicant No. 2 Sh. Ashok Yadav were recorded. Thereafter, vide order dated 12.10.2012 Ld. Predecessor directed the leading of evidence in present case and the matter was fixed for Applicant's Evidence. But despite ample opportunity, no party led the evidence in the present case.
5. Perusal of record further shows that Non- Applicant No.1 got expired during the proceedings and one application U/o 22 Rule 4 Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 2 /14 CPC was filed by Applicant in July 2017 and Notice thereof was issued to LRs of Non- Applicant No. 1 which was served upon them but despite service of notice, none appeared on behalf of LRs of Applicant no. 1. Ultimately, LRs of Non-Applicant no. 1 were proceeded ex-parte on 01.02.2019.
Thereafter, on 01.02.2019 one application was filed by Applicant U/o 1 Rule 10 CPC to delete the name of Non- Applicant No. 2 from the array of the Non-Applicants. On 12.04.2019, one application was filed by the Non Applicant No. 2 for non compliance of the order of the court by Applicant.
On 22.02.2019, one application U/o 22 Rule 10 CPC was filed by Non-Applicant No. 2 Sh. Ashok Yadav. Reply thereto was also filed on record by Applicant.
6. All the applications as above and others were disposed of as not pressed. Amended Memo of parties was taken on record on 11.02.2020.
7. Moreover, Applicant and Non-Applicant No. 2, also made statement that they do not want to lead evidence in the present case. As such, No evidence was led. Arguments were heard advanced by all the parties.
8. Perusal of record shows that one eviction petition was filed U/Sec. 21 of DRC Act by Sh. C.B. Vyas Non Applicant No. 1 on 08.01.1987 and vide order dated 09.01.1987 passed by the then Ld. ARC, Section 21 of D.R.C. Act was allowed and the file was consigned to Record Room. Thereafter, on 13.09.2004, statement of Sh. C.B. Vyas Non- Applicant No.1 was recorded in respect of receiving of possession of his house consisting of two rooms, one Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 3 /14 drawing room, latrine, bathroom and kitchen.
9. Perusal of testimony of Applicant shows that in the statement recorded on 12.10.2012, the applicant has himself admitted that he is in lawful possession of entire first floor, one room on the ground floor and back courtyard and he has further deposed that Non- Applicant No. 2 is trying to illegally dispossess him from this portion.
On the other hand, Non-Applicant No. 2 has also deposed that the applicant entered into unauthorised possession of said area in December, 2010 and he has also deposed that neither he nor anyone else on his behalf is in possession of tenanted premises and Applicant is continuing with present proceedings with ulterior motives.
10. It is expedient to reproduce Sec. 19 of the D.R.C. Act, which is as under:-
"19. Recovery of possession for occupation and re-entry. -
(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (e) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 14D and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.
(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 4 /14 than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit."
11. As such, statute clearly lays down that the petitioner/ landlord has to occupy the vacated tenanted premises within two months and the landlord cannot re-let to any person other than the evicted tenant within three years from the date of obtaining possession and in case he does so, the evicted tenant may approach the Rent Controller seeking direction to the landlord to put the tenant in possession of the premises.
12. It is expedient to reproduce the relevant portion of case law which is as under:-
In the case titled as Vidhya Dhari Bhagat Vs Allahabad Law General Co. Ltd. 1990 AIR 1015, the Hon'ble Apex Court inter-alia observed as under:-
"This sub-section again operates in favour of the tenant who has suffered an order of eviction under section 14(1)(e) or under Section 14-A to 14-D and 21. The landlord after recovering possession of the premises does not occupy the same or it is not occupied by the person for whose benefit the premises are held, within 2 months of obtaining such possession, the tenant may move the Controller for a direction against the landlord to put him in possession of the premises or to pay him such compensation as the Controller thinks fit. Not merely that, the tenant has a further right to move the Controller for such reliefs if the landlord has at any time within three years from the date of obtaining possession, re-let the premises to third party without obtaining permission of the Controller under sub-section (1) of section 19, or the possession of such premises is transferred to another person not bona fide. This right of the tenant to re-enter the premises is, however, restricted only in cases where the tenant is ordered to be evicted either under section Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 5 /14 14(1)(e) or under sections 14-A to 14-D and 21. If the possession is recovered under any order other than those referred to in sub-section (1) the tenant has no right to invoke the provisions of sub-section (2) of section 19. With these requirements of the statute, it may now be examined whether the tenant has a right to seek re- induction into the premises under sub-section (2) of section 19."
In the case titled as Ramnik Lal Pitambar Dass Mehta Vs Indra Daman 1964 AIR 1676, the Hon'ble Apex Court inter-alia observed as under:-
"We may mention that the provisions of clauses similar to cls. (g) and (hh) of sub-s. (1) of s. 13 of the Act have been construed in this way in Krishna Das v. Bidhan Chandra('), McKenna v. Porter Motors Ltd.('), and Betty's Cafes Ltd. v. Phillips Furnishing Stores Ltd.('). The appellant has referred us to two cases of the Bombay High Court which tend to support him in so far as it is held in them that in circumstances similar to the present one, the case would come under cl. (hh) of s. 1 3 (I) and not under cl. (g). They are : Manchharam Ghelabhai Pittalwala v. The Surat Electricity Co. Ltdt. (4 ) and Allarkha Fakir- mahomed v. The Surat Electricity Co. Ltd. (5). The latter case followed the previous one. In the former case the High Court said:
"Indeed the expression 'occupation' occurring in clause
(g) means 'possession followed by actual occupation', while for the purpose of clause (hh) what is necessary is 'possession for the purpose of demolition'. 'Occupation' within clause (g) would include 'possession', as it is obvious that one cannot occupy unless one is able to possess. But in the case of clause (hh) it is clear that it is not necessary to occupy for the purpose of demolition.
What is necessary is that the land-lord must possess in order to enable him to demolish and erect a new building."
Demolition of the existing building and subsequent erection of a new building are only intermediate steps in order to make the building fit for occupation by the landlord; In Krishanlal Iswarlal Desai's case(') this Court said in connection with the provisions of s. 17(1) of the Act: "What is, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf...... "
'Occupation' of the premises in cl. (g) does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. In a case like the present, if the plaintiffs on getting possession start their work of Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 6 /14 demolition within the prescribed period, they would have occupied the premises in order to erect a building fit for their occupation. We therefore hold that the respondent's case came within cl. (g) of sub-s. (1) of s. 13 of the Act and therefore dismiss the appeal with costs. Three months allowed for vacating the premises on the defendant tenant undertaking to vacate the premises himself during this period.
Appeal dismissed."
In the case titled as P.C Badwar Vs Lajwanti Malik AIR 1977 Delhi 63, the Hon'ble Delhi High Court inter-alia observed as under:-
"It is obvious from the plain reading of the provision that the law requires the landlord, who recovers possession of the tenanted premises from a tenant on the ground of bona fide personal necessity under clause
(c) of the proviso to sub-section (1) of section 14 of the Act not to re-let the premises within the period of three years from the date of obtaining possession except with the permission of the Controller obtained in the prescribed manner. Sub-section (2) provides that if the landlord recovering possession of the premises fails to occupy the same within a period of two months or re-lets to any person other than the evicted tenant without obtaining the permission of the Controller or transfers to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made to him in the- prescribed manner, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.
(3) The word "bona fide", in my opinion qualifies the expression "or possession of such premises is transferred to another person fur reasons which do not appear to the Controller to be bona fide". So far as re-
letting is concerned, the bar is absolute and no question of bona fide arises and the landlord is prohibited from re- letting the whole or part of the premises for a period of three years, except with the previous permission of the Controller, which is to be granted on an application moved for the purpose in accordance with Rule 3 of the statutory Rules framed under the Act. The provision of law is very salutory. Under clause (e) of the proviso to sub-section (1) of section 14 of the Act, the landlord is entitled to obtain eviction on his showing to the satisfaction of the Controller that the bona fide needs the premises for residence of himself and members of his family. Often the defense is raised that the landlord does not need the premises bona fide, but his intention is to increase rent or let it out to another tenant on a higher Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 7 /14 rent. This defense is often met by reliance on the provisions which are now under consideration and should the landlord be found not to occupy the premises within two months or to let them out to transfer them within a period of three years without the permission of the Controller, then the tenant becomes entitled to obtain restitution of the possession of the premises, provided the tenant makes an application in accordance with the statutory Rules 4 within a period of six months from the date of cause of action. The existence of section 19 is therefore, a wholesome, safeguard against the abuse of the right of the landlord to obtain eviction on the ground of bona fide personal necessity. Moreover, sub-section (3) of section 48 of the Act has prescribed that if any landlord relates or transfers whole or any part of the premises in contravention of the provisions of sub- section (1) or sub-section (2) of section 19, he shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. This offence is friable by a Magistrate of the First Class who has been empowered to impose fine of more than Rs. 2000 under the Act, provided the complaint has been lodged within a period of three months from the date of the commission of the offence.
(4) This shows how zealously the parliament has safeguarded the interests of the tenant against the abuse of the right of the landlord and by making the breach of section 19, an offence and element of public interest has been introduced in the statute. In my opinion, the provision, of law is mandatory and does not admit of any exceptions, save as is ingrained in the statute. The respondent landlady has made a clean breast of her circumstances. She has admitted the re- letting of the premises and has shown her dire necessity of earning rent as income for her family. She has gone to the extent of submitting that she had originally needed only a part of the tenanted premises and not the whole, the possession of which obtained from the tenant. These circumstances do, in my opinion, not excuse the respondent landlady from obeying the provisions of law, though they could have sympathetically been taken into consideration by the Controller had she applied to him for permission to re-let. Upon failure to obtain permission they cannot afford a valid excuse for the landlady to take the law in her own hands and commit flagrant breach of section 19 of the Act. The Rent Control Tribunal has taken a lenient view, but I am unable to agree that no compensation is to be paid to the appellant.
(5) The order for eviction had been passed against the appellant tenant on 13th May, 1966 and normally he would have been entitled lo six months time to vacate Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 8 /14 the premises, but on compromise he took two years time which expired on 12th May, 1968, but he vacated the tenanted premises on 19th November, 1967 and shifted to his own house which he had constructed. The Tribunal in the impugned order has observed that on the construction of the house, the tenant was further liable to eviction on the grounds mentioned in clause (h) of the proviso to sub-section (1) of section 14 of the Act, but this proceeding would have taken sometime. Indeed the proceedings would have taken time, but it could not be less than three months that the landlady could obtain eviction on the ground mentioned in clause (h) of the relevant proviso. The Tribunal was therefore, right in refusing restitution of possession, but ought to have awarded compensation and its order must be set aside.
(6) The Additional Controller had awarded a compensation of Rs. 5000.00 considering the benefit accrued to the respondent landlady by earlier vacation of the premises by the appellant. This was clearly contrary to law. As held in Pannalal Jankidas v. Mohanlal and Rattan Lal v. Girdharilal, Air 1972 Delhi 11(2) the compensation is to be determined on account of the loss suffered by the injured party and not the benefit derived by the opponent. The appellant was well omitted to remain in possession of the premises for a period of six months more up to May, 1968 and during that period he could make a reasonable profit out of his own house or may not have spent any extra amount in early completion of the construction of his house. Therefore, although it is not necessary to order restitution and he has failed to prove any special damage, still a substantial amount by way of nominal damage must be awarded for breach of the statutory provision. As observed in Rookes v. Barnard and others, 1964 Ac 1129(3), it is necessary for the law to show that it cannot be broken with impunity.
(7) The question of quantum of compensation has engaged my careful attention. Section 19 gives the Controller the discretion to direct restitution or to pay to the tenant such compensation as the Controller thinks fit. Section 48(3), in a conviction by a Magistrate, makes provision for three months imprisonment or fine or both, Section 63 of the Indian Penal Code provides that where no sum is expressed lo which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. There are other provisions in the Act which require compensation to be paid as the Controller may think fit, e.g. section 20. In section 27(5), the statute has, however, provided an amount of fine to be levied on the tenant which may extend to two months rent out of which compensation is to be paid to the Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 9 /14 landlord for false statement in an application for deposit of rent. Section 45 provides for compensation up to Rs. 50.00 for breach of section 45 of the Act.
(8) The appellant in the instant case was occupying the premises on a rent of Rs. 650.00 per month.
I would therefore, consider it reasonable that in the circumstances of she case a compensation amounting to a multiple of the rent must be paid to the appellant for his loss and injury arising out of the breach of the legal obligation by the respondents. In Brahmdco Narain Singh v. Members of the Notified Area Cimmittee , the Division Bench of the High Court observed that breach of covenant under section 188(c) of the Transfer of Property Act entitled a lessee to claim damages and measure of compensation would depend upon the circumstances of the case. The burden of proof was on the plaintiff to show how much loss he had suffered, but when it was not possible to calculate accurately or in a reasonable manner the actual amount of loss incurred or when the plaintiff had not been able to prove the actual loss suffered, he would be entitled to recover nominal damages for a breach of contract and the court has to assess damages as best as it could on the materials available and should not decline to estimate them merely because the plaintiff could not adduce the best evidence. The court further observed that even in a case where nominal damages were only to be awarded, the extent of the same should be estimated with referenee to the facts and circumstances involved and the general principle to be borne in mind was that the injured party might be put in the same position as that he would have been if he had not sustained the wrong.
Division Bench then following Rolin v. Steward, (1854) 14 C.B. 595(5) and Wilson v. United Counties Bank Ltd. (1920) Ac 102(6) held that nominal damages did not connote that a trifling amount was always to be assessed, but a substantial amount may be awarded as nominal damages.
(9) In the instant case, compensation has been ordered to be paid not lor breach of the contract, but for breach of statutory provision and even nominal damages in the absence of actual loss would have to be a substantial amount. I have found from a large experience of cases between the landlord and tenant, both as a. lawyer and as a Judge, that one or two months rent as compensation is considered to be too small, while six months rent or more rent is too high and normally three months rent is regarded as reasonable and good panacea to heal the sears in a dispute between the Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 10 /14 landlord and tenant unless there be some special circumstances established on the record justifying the award of a higher or a lower amount as permitted by law. In the facts and circumstances of the case, I consider it reasonable that three months' rent, that is to say, Rs. 1950 be paid to the appellant as compensation. This would incidentally also take into account the time the landlady would have been to conclude proceedings for eviction against the tenant on the ground of alternative accommodation mentioned in clause (h) of the proviso which fact had weighed with the Rent Control Tribunal.
(10) As a result, both the appeals ARC allowed and in place of the order of the Rent Control Tribunal the order is substituted that the respondents will pay a sum of Rs. 1950 as compensation to the appellant with one set of costs of these appeals."
13. Perusal of Sec. 19 of D.R.C. Act shows that the tenant may approach the Rent Controller for the purposes of re-entry in the tenanted premises which was vacated U/Sec. 14(1)(e) or 14-A, or 14-B, 14-C, 14-D or 21 of the D.R.C. Act in case the tenanted premises is not occupied by the landlord or the person for whom the tenanted premises was vacated within two months of such vacation of tenanted premises. Tenant may also approach the Rent Controller when the tenanted premises is re-let by the landlord within three years of getting the possession thereof.
14. Perusal of record shows that the applicant has claimed that the possession of the tenanted premises was taken by Non- Applicant No. 1 on 12.09.2004 but on 19.11.2004, Non- Applicant No.2 entered the tenanted premises and occupied the same. And he has further claimed that Non Applicant no. 2 is in possession of one room as shown in blue in the site plan.
Further stand of the applicant is that in the mid of February 2005, Non- applicant No. 3 started residing in one room shown in green in the site plan who was inducted as tenant by Non applicant no. 1 & 2. Further stand of the applicant is that Non applicant No. 1 Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 11 /14 has let out the tenanted premises after taking the possession of the same from the applicant in execution and parted with the possession of the same to non applicant No. 2 & 3.
Lastly, it is prayed by the applicant to direct the Non applicant No. 1 to put the applicant in the possession of afore-mentioned premises as tenant and further directions may be made to Non applicant no. 2 & 3 to vacate the premises in question.
15. On the other hand, Non- applicant No. 2 has filed the reply to the present application U/Sec. 19 of the D.R.C. Act.
Perusal of petition filed U/Sec. 21 of D.R.C. Act by Non- Applicant No. 1 shows that the tenanted premises consisted of one room, one drawing room, one kitchen, bathroom, latrine as shown in the site plan filed in the petition. As such, it is clear from the record that the tenanted premises consisted of above portion.
Whereas the Execution Petition bearing No. 95/2003 shows that Sh. C.B. Vyas Non-Applicant No. 1 received the possession of two rooms, one drawing room, kitchen, bathroom, latrine in the year 2004. As such, statement dated 13.09.2004 of Sh. C.B. Vyas shows that he received the possession of tenanted premises, as above.
Statement dated 12.10.2012 shows that the applicant Sh. C.P. Rai has deposed that he is in lawful possession of the entire first floor, one room on the ground floor and back courtyard.
16. Perusal of record shows that the applicant has no where stated in his present petition/application, the fact of possession of entire first floor. It appears that the applicant has not come to the court with clean hands and he has concealed the material facts from the court.
. As per record, the tenanted premises consisted of merely Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 12 /14 ground floor but he is in possession of first floor and now claiming to be in lawful possession of the first floor. Moreover, his statement shows that he is also in possession of one room and courtyard on the ground floor.
17. The applicant has no where mentioned in his present petition U/Sec. 19 of D.R.C. Act that he has already received the portion of ground floor of the property. Although, he has claimed in his statement that he is in lawful possession of ground floor and first floor. but he has not disclosed the fact how he got the possession of portion at ground floor and entire first floor.
18. The petition U/Sec. 21 of D.R.C. Act clearly shows that the tenanted premises consisted of only ground floor and then how he got the legal possession of the first floor and portion of ground floor.
On the other hand, the Non-applicant no. 2/ Sh. Ashok Yadav has deposed in his statement that the applicant entered into the unauthorized possession of the said area in December 2010 and the applicant is continuing with this petition with ulterior motive.
19. Since this petition U/Sec. 19 of D.R.C. Act has been filed by the applicant Sh. C.P. Rai, it is the duty of the applicant to prove his case but he has not been able to discharge his duty. Moreover, no evidence has been led by the applicant to prove his case U/Sec. 19 of D.R.C. Act despite opportunity given by this court. Moreover, as stated earlier, the applicant has not come with clean hands and has concealed the material facts from the court. It is well settled law that parties must come to the court with clean hands to get relief.
20. I have perused the entire record minutely including the case Misc. Ex. 62394/2016 Dr. C.P. Rai Vs. Sh. C.B. Vyas Page 13 /14 law relied upon in the present petition U/Sec.19 of D.R.C. Act, Execution petition bearing No. 95/2003, statements of parties, documents and material on record, which show that the applicant has not been able to satisfy all the ingredients of Sec. 19 of D.R.C. Act. Hence, the applicant is not entitled to the relief as claimed by him in the petition/application U/Sec. 19 of D.R.C. Act.
21. In consequence thereof, the present petition U/Sec. 19 of D.R.C. Act filed by the Applicant Sh. C.P. Rai is hereby dismissed.
22. This File as well attached files be consigned to Record Room after due compliance.
Announced in open court on 23rd June 2020 (This Judgment contains 14 pages) (Ajay Nagar) Additional Rent Controller, West District, THC, Delhi.
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