Delhi District Court
Mr. V. Chacko (Deceased) vs Dr. P.N. Chuttani (Deceased) on 21 August, 2007
1
IN THE COURT OF SHRI M.C.GARG, ARCT, DELHI
RCA:104/06
Mr. V. Chacko (Deceased)
Through Ms. Ponamma Chacko
W/o Late Mr. V. Chacko,
E7, Defence Colony,
New Delhi.
Through Mr. M.G. George (Attorney)
APPELLANT/JD
VS.
1. Dr. P.N. Chuttani (Deceased)
Through legal representative/brother
Sh. D. Dutt
S/o Late Sh. Roop Narayan,
N15, Panchsheel Park,
New Delhi.
RESPONDENTS/DH
Now represented by:
Smt. Anjali Gupta
W/o Sh. Kuldeep Gupta
R/o S196, Panchsheel Park,
New Delhi.
2
Smt. Prema J. Banan
W/o Sh. Jaya Ram Banan
R/o R1/32, Raj Nagar,
Ghaziabad, UP.
Smt. Jaya Ram Banan
S/o Sh. Saroopa Banan
R/o R1/32, Raj Nagar,
Ghaziabad, U.P.
Smt. Shabnam Joon
W/o Sh. Rajinder Singh Joon,
R/o P19, Malviya Nagar,
New Delhi110017.
Sh. Rajinder Singh Joon,
S/o Sh. Chaudhary Suraj Mal
R/o P19, Malviya Nagar,
New Delhi110017.
Smt. Monica Kumar
W/o Sh. Bharat Bhushan Kumar
R/o C275, Defence Colony,
New Delhi110024.
......The Subsequent Purchasers
through Sh. Kuldeep Gupta (Attorney)
Date of Institution : 15.9.2006
Judgment Reserved:17.8.2007
Date of Judgment:21.8.2007
3
ORDER
1. By this rent control appeal the appellant/JD has assailed the validity of the order of eviction dt. 6.9.2006 passed by ARC in Execution Case No.74/04(M. No.16/2004) whereby the controller has passed an order of eviction in respect of the suit property subject matter of an Eviction Suit No. E335/85 which was filed by the Predecessor of the respondent u/s 14(1)(k) of Delhi Rent Control Act. By the impugned order warrant of possession has been issued against the appellant in respect of the property bearing no. E7, Defence Colony, New Delhi.
2. The facts in brief giving rise to the filing of present appeal are:
a) The eviction petition u/s 14(1)(k) of Delhi Rent Control Act was filed by the predecessor of the respondent against the appellant for eviction in respect of property No. E7, Defence Colony, New Delhi which is being used for running a School on the ground floor by alleging that such user was contrary to the terms of the lease deed for the land, granted by the L&DO.
b) The petition was allowed and enquiry was held u/s 14 (11) of the Act to find out if L&DO was ready and willing to 4 condone the misuse. L&DO gave its response and raised a demand of damages to condone the misuse temporarily, vide letter dt. 12.12.88. Consequently, Ld. Addl. Rent Controller directed the appellant/JD to deposit the misuse charges within a period of 60 days and further to continue paying the same as and when intimated.
Appeal filed against the aforesaid order was dismissed on 31.10.2002 by Addl. Rent Control Tribunal on the ground that it stood abated.
c) The order of abatement was challenged before the Hon'ble High Court by filing a petition under Article 227 of the Constitution of India by the JD. It was registered as CM(M): 601/02 and was disposed of by Hon'ble Mr. Justice R.S. Sodhi by His Lordships order dt. 14.7.2004 with the following observations: "Accordingly, I modify the order dt. 21.10.2002 to read that the appeal RCA No. 9/2001 s dismissed as having abated. Any misuser charges as directed by the trial court are permitted to be deposited within two weeks from today.
However, it is made clear that in the event any other demand 5 is made by the L&DO on account of misuse, the same shall also be deposited by or on behalf of Mrs. Chacko, wife of the deceased tenant".
d) Decree Holder filed execution on 15.9.2004 to execute the order dt. 16.1.90 and sought eviction of the appellant/JD from the suit property by alleging : "To the best of the knowledge of the Decree Holder the Respondent/JD has not yet complied with the orders of the Hon'ble High Court and hence the petitioner/DH is entitled to executed the order dt. 16.1.90 and to recover the possession of the property from the Respondent/JD or any other person claiming for and on behalf of the Respondent/JD."
3. Appellant/JD filed objections and stated that no demand was raised upon the JD by L&DO after the demand made in 1988 which was met in terms of the directions of the Hon'ble High Court vide order dt. 14.7.2004 till the filing of the execution application and thus the application was without any cause of action. Before 6 this Tribunal the appellant also submitted that during the course of execution proceedings one clerk from L&DO did appear after notice was issued by the executing Court who produced copy of a letter dt. 13.1.2005 which contained some details about damages payable for the subsequent period besides other charges which was addressed to the respondent. No copy thereof was endorsed to the appellants either by L&DO or by the respondents. Moreover, the letter had contradictions and overlapping entries. Thus the appellant sent a letter dt. 18.5.2005 to the L&DO seeking clarification of demand and also sent a sum of Rs.1,50,000/.
However, no such clarification was received. The fact that there were overlapping and contradictions were admitted by the witness of L&Do in his crossexamination. Yet the trial court passed the impugned order without giving any opportunity to the appellant to clear the liability. Hence, this appeal.
4. The appellant also drew my attention to the statement made by L&DO witness who deposed :
" I have brought the record pertaining to the suit property i.e., E7, 7 Defence Colony, New Delhi. Ex.CW1/1 is the correct copy of letter dt. 3.5.1978 issued by our office. Ex.CW1/2 is the copy of the letter dt. 12.12.88 as filed before the trial court. Ex.CW1/3 is the correct copy of the letter dt. 13.1.2005 issued by our office. Ex.CW1/4 is the copy of letter dt. 12.5.2006 issued by our office. There appears to be an over lapping in entry no. 2 and 4 in document Ex.CW1/3. There is the typing error in entry no. 4 the amount mentioned as Rs.1,35,909/ the portion encircled A should be read as Rs.8,28,472/.
Q. Whether after payment of 11,20,007/ by the JD, whether there were any dues of the said property if so, how much ?
Ans. There were left out dues of Rs.18,40,842/ as per letter dt. 13.1.2005. XXXXXX by Sh. Ajay Kohli, Advocate for respondent.
It is correct that the demand raised vide Ex.CW1/2 i.e., letter dt. 12.12.88 has been met and paid by the JD. The figure of Rs.1,35,909 in Ex.CW1/3 depicts only the principle misuse charges as mentioned in item no 1 to 7 in Ex.CW1/1. It is incorrect that misuse charges, damages, ground rent are three distinct recoveries. It is correct that the figure of 18,40,842/ as stated by me above includes the ground rent as well as the damages. It is correct 8 that no intimation what ever was given of Ex.CW1/3 to the JD. It is correct that what ever claims made by letter Ex.CW1/1 were included in letter i.e., Ex.CW1/2 and it is correct that those dues have been paid. It is correct that the JD has further paid the sum of Rs.1,50,000/ on 25.5.2005. It is correct that the JD had deposited the said sum of Rs.1,50,000/ vide its letter dt. 18.5.2005 which was received by us on 19.5.2005. The copy of the said letter bearing the acknowledgment of L&DO is Ex.CW1/X. It is correct that no demand letter Ex.CW1/4 was given to the JD. It is correct that from 12.12.88 till 13.1.2005 no demand was raised by the L&DO on account of misuse.
Court Question: Can you tell the definition of misuse charges ?
Ans. Misuse charges includes the charges imposed by the concerned authority in case of change (change of user) of premises from residence to commercial purposes. And does not include any other kind of violation or levy.
RO&AC ARC/Delhi/7.8.2006"
5. According to the appellant the appeal raises the following substantial questions of Law: 9
1) Whether the Appellant can be considered to be in default of payment where admittedly such charges were not communicated to her as on the date of filing of the execution petition after meeting the initial demand,
2) What is the effect of the admission on the part of the officer/witness appearing on behalf of Land and Development Officer that the demand letter produced before the Court is vague and incorrect.
3) Whether the direction of the Hon'ble High Court in its order dt. 14.7.2004 stood complied with by deposit of Rs.11,20,007/ by the Appellant on 22.7.2004, especially in light of no further demand being raised on the Appellant thereafter at least till the filing of the execution petition ?
4) Whether the direction of the Hon'ble High Court in its impugned order to deposit any future demand raised by the L&DO, without specifying the time within which such demand is to be deposited mean that such demand can be met within a reasonable time and not confined to two weeks as was applicable in the case of the demand raised by the L&DO and pending as on the date of the order ?
5) Whether the default in compliance with the direction passed by the Hon'ble High Court needs to be intentional and not a 10 mere bonafide misunderstanding in order to justify an order of eviction in the execution proceedings ?
6) Whether the Appellant can be held to be guilty of default even though she had admittedly deposited a sum of Rs.1.50 lakhs immediately on being apprised of the demand during the Court proceedings with a further undertaking to deposit the balance on receiving clarification on the demand ?
7) Whether the Ld. Addl. Rent Controller erred in law and fact in not allowing the prayer made by the appellant to deposit the amount found payable by the Hon'ble Court to L&DO within a reasonable period of time, not exceeding four weeks ?
6. It is submitted that despite admission of discrepancies in the letter dt. 13.1.2005 and the undisputed fact that till such time the execution application was filed, no further demand was communicated to the appellant either by L&DO or by the respondent, the trial court dismissed the objections and passed the eviction order based upon the following inferences, i.e., :
i) Admission of the witness of L&DO that no demand was made upon appellant before filing the execution application was not a bar to the filing of execution petition in view of the Judgment delivered in the 11 case Pandit Dhara Dutt Vs. P.N. Nagpal 126(2006) Delhi Law Times 293.
ii) That as per letter dt. 13.1.2005 filed during executing proceeding a sum of Rs.18,40,842/ was shown payable by the appellant towards misuse charges and against the said demand only a sum of Rs.1,50,000/ was paid by the appellant. Hence, they were defaulters.
7. It is submitted that trial court failed to appreciate the objections of the Appellant/JD in correct perspective in as much as, A. The order passed by the Ld. Addl.
Rent Controller dt. 16.1.90 is a composite order and in executable. Reference has been made to the Judgment delivered by the Hon'ble Supreme Court in the case titled as B.R. Mehta Vs. Smt. Atma Devi (1989) (2) RCR 178, where it is held "that a composite or conditional order of eviction to take effect on a default to occur in future can not be passed".
12B. The Judgment/Order of the Ld. Addl. Rent Controller dt. 16.1.90 was per incuriam and was not binding in view of the Judgment of the Hon'ble Supreme Court in the case of Shiv Dayal Soin Vs. U.O.I 2003 (4) SCC 695 holding that if the lease deed mandated the construction of a residential building and had nothing to do with the user of the building there of for commercial purpose and as such no ground could be made u/s 14 (1)(k) of the DRC Act.
C. No demand was raised by L&DO upon the appellant after the compliance of the order passed by Hon'ble High Court. This fact has been admitted by CW 1.
D. The letter of L&DO during execution proceedings was even otherwise not final and binding in view of the Judgment of the Hon'ble Supreme Court in the case of M/s Curewell (India) Ltd. Vs. Sahib Singh (dead) by LRs reported as 1993 Supplementary (1) Supreme Court Cases 507.
E. Additionally, it was also submitted that trial court failed to appreciate that the Demand Ex.CW1/3 had overlapping entries in as much as item no. 2 to 4 raised duplicate demands. The statement made by the witness who appeared from L&DO clearly accepted the mistakes.
13It was submitted that in these circumstances, the trial court committed an error in Law in passing the impugned order.
8. On the other hand, Ld. Counsel for the respondent submitted that once a demand was raised by L&DO which came to the notice of the appellant, even during execution proceedings and the appellant having failed to comply with the same, she became liable to be evicted in view of the ratio laid down in the case of Pandit Dhara Dutt Vs. P.N. Nagpal (supra). It is submitted that even though L&DO filed the copy of the demand letter dt.
13.1.2005 along with calculation sheet on the record of executing court, the said demand was not complied with by the appellant even till date in as much as making payment of Rs.1,50,000/ proves that the appellant is a defaulting party. Reference has also been made to the case of M/s Roneo Vickers India Ltd. Vs. Union of India & Anr. 85 (2000) Delhi Law Times 337, as well on a judgment of the Hon'ble High Court of Punjab and Haryana titled as Dashmesh Rice Mill & others Vs. Govind Ram Anil Kumar Civil Revisions no. 2571/2003 reported as (2003) 135 PLR 514 . In that case vide decree dt. 12.11.2001 the judgment debtor was directed to deposit the decreetal sum within a period of 4 months from the date of 14 decree. However, the decree holder instituted the execution petition on 25.2.2002 itself i.e., before expiry of 4 months. The objection was taken that the execution was premature. The Hon'ble High Court has rejected the said contentions saying that the principles applicable to the suit would not be applicable to the execution.
9. As regard the ratio laid down in the case of Shiv Dayal Soin Vs. UOI (supra) it is submitted, that the order of Ld. Addl.
Rent Controller dt. 16.1.90 was challenged in appeal, and then before Hon'ble High Court, in CM(M) 601/02. It became final as no SLP was filed against the said order. It is submitted that scope and ambit of the power of this Tribunal while deciding the execution appeal does not authorize this Tribunal to review whether there was misuser or not. As a matter of fact the executing court can not go behind the decree, or to refuse execution of a decree unless the same was without jurisdiction or void vide ab initio or there was subsequent change of Law making decree unenforceable.
Reliance has been placed upon the Judgment of Hon'ble Supreme Court in the case of Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman & Ors. AIR 1970 SC 1475, wherein, it has been held that even if a decree is erroneous it is still binding between the parties.
1510. On merits it is submitted that once the appellant came to know about the demand of the L&DO they were bound to have complied with the same. However, she failed to comply with the demand and therefore the legal right vested in the DH in the pre emptive order dt. 16.1.90 stood crystalized entitling them to execute the said order. It is submitted that the legal rights of the respondent can not be allowed to be defeated at mere whims and conveniences of the appellant/tenant. Reference has been made to the Judgment delivered in the case of Madan Mohan & Another Vs. Krishan Kumar Sood 1994 Supp (1) SCC 437 wherein it is held that protection given in the Acts does not give a license to the tenant for continuous litigation.
11. I have considered the arguments of both the sides including their written submissions. I also perused the record.
12. The order u/s 14 (1)(k) of the DRC Act was passed against the appellant/JD after on 16.1.90 after holding an enquiry u/s 14(11) of the Act. Appeal against the said order was dismissed as it stood abated. The order was upheld by Hon'ble High Court of Delhi when time was also granted to the appellant to make the payment. The said payment has been made. The order of Hon'ble High Court has not been challenged by the respondent before any 16 higher court. After 1988 admittedly no demand was raised by the L&DO upon the appellant to pay/deposit misuser charges for subsequent period till letter dt. 13.1.2005 was brought on record during the course of execution. A bare perusal of the letter goes to show that this letter was not addressed to the appellant but was addressed to the respondent in response to their request for mutating the property in their name. It may be of relevance to take note of the aforesaid letter which reads as under: "No. L&DO/PSIII/05 dt. 13.1.2005 To Tirlok Tirath Vidyavati Chhuttani Charitable Trust, Though authorized Trustee Sh. Brij Mohan Khurana R/o 349, Sector 9 D, Chandigarh.
Sub: Property No. E7, Defence Colony, New Delhi. Sir, I am to refer to your letter dt. 9.9.2004 and to say that the following documents/dues are recoverable
1. Demanded vide this office letter dt. 3.5.78 138997/
2. 10% interest on amount Rs.135909/ w.e.f 3.5.78 to 28.2.2005 364608/
3. Terms offered before court on 12.12.88 835062/
4. 10% interest on amount Rs.135909/ w.e.f 12.12.88 to 28.2.05 1343487/
5. Interest on G/Rent on Rs.4262/ w.e.f 1.1.89 to 28.2.05 @10% p.a 6888/
6. Misuse Charge w.e.f 1.4.89 to 18.12.89 on Rs.1484/ 107912/
7. R/Rent w.e.f 15.1.89 to 14.7.05 @ Rs.409.68 pa 6760/
8. Interest on above G/Rent w.e.f 15.1.89 to 28.2.05 5681/
9. Difference of damage charges w.e.f 27.9.88 to 31.3.89 @ Rs.2826/ pa 1940/
10.Damage Ch. w.e.f 1.4.89 to 31.7.90 @ Rs.8888/ 11859/
11.Damage Ch. w.e.f 1.8.90 to 31.3.91 @ Rs.6667/ 4439/ 17
12.Damage Ch. w.e.f 1.4.91 to 31.3.98 @ Rs.8000/ 56000/
13.Damage Ch. w.e.f 1.4.98 to 31.3.00 @ Rs.8799/ 17598/
14.Damage Ch. w.e.f 1.4.00 to 18.3.04 @ Rs.8799/ 34907/
15.Damage Ch. w.e.f 19.3.. to 14.7.05 @ Rs.18674/ 24711/
16.Paid on 23.7.04 by Smt. Ponamma Chacko 1120007/
17.Furnished an under taken that he/she will pay the difference of misuse/damage charge in case land rates are revised w.e.f 1.4.2000.
18.Certified Copy Trust Deed.
19.Attested copy of resolution.
20.List of Trustee.
21.Memorandum of Articles.
22.Attested copy Attorney of Sh. Parduman Lal Kumar.
You are requested to furnished the above document/amount in favour of Land & Development Officer Nirman Bhawan within 30 days failing 10 % interest will be charged and further action under terms of lease deed will be taken.
Yours Faithfully, (A. Bhattacharyya) Dy. Land & Development Officer"
13. A witness who appeared for L&DO has admitted that the aforesaid letter was vague and also had duplicate entries. He also admitted that letter was written by the appellant seeking clarification on 18.1.2005 which is yet to be replied by L&DO. Ex.CW3/1 was never endorsedon to the appellant. The appellant has also deposited under the order of this Tribunal a sum of Rs.10 lakhs towards the damage charges. The letter dt.13.1.2005 allowed payment along with interest in case the said payment was not cleared within 30 days. It is also a matter of record that no adverse action has been taken by L&DO on account of nonpayment of 18 damages even till date nor any threat was extended. Before this Tribunal clarification has been made by the L&DO about the demand towards damages payable on 23.1.2007. As per the aforesaid letter the demand of the damages is to the tune of Rs.4652868/ as on 31.12.2006. Nowhere in the aforesaid letter it is written that if this demand is not met the L&DO would reenter the suit premises. No such threat has been given to the respondents also at any point of time.
14. In the case of Pandit Dhara Dutt Vs. P.N. Nagpal (supra) on which heavy reliance has been placed by the appellant the tenant despite having full knowledge about the exact demand raised by the L&DO did not deposit the full amount and in fact deposited only a fraction thereof which is not the case in hand and therefore the said Judgment is not applicable to the present case. The relevant observations is reproduced here under: "I have heard Counsel for the parties and with their assistance gone through the record of the case. It appears to me that the tenant was very much put to notice that the L&DO has demanded a sum of Rs.27,657/ as penalty for misuse of the premises in question and also the tenant had acknowledged the demand so raised by the L&DO in his reply where he admits 19 that the penalty is of Rs.2515/ and that he will be depositing the same. This was again replied to by the landlord to say that he had misread the amount claimed by the L&DO as it was Rs.27657/ as penalty for misuse of the premises in question and also the tenant had acknowledged the demand so raised by the L&DO in his reply where he admits that the penalty is of Rs.2515/ Rupees two thousand five hundred and five) and that he will be depositing the same. This was again replied to by the landlord to say that he had misread the amount claimed by the L&DO as it was Rs.27,657/ (Rupees twenty seven thousand six hundred and fiftyseven). With all these communications, it can hardly be said that the tenant had no notice or was not put to notice of demand raised by the L&DO".
In Roneo Vickers India Ltd. Vs. Union of India & Ors (supra), the misuse charges was deposited by the tenant after five years despite directions of the Addl. Rent Controller to make the payment after the demand was raised by L&DO by serving a notice upon the tenant. Thus the said Judgment is also not applicable to the facts of this case.
15. In so far as the submissions made by the appellant that the order was per incuriam in view of the Judgment delivered in Shiv 20 Dayal Soin Vs. UOI (supra), is of no consequence for the reasons that the order which became final in 2004 has not been challenged by the appellant before the Apex Court till filing of this appeal or filing of objections before the executing court. Moreover as held by Hon'ble Supreme Court in the case of Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman & Ors.,(supra) even if decree is erroneous it is still binding upon the parties and Executing Court can not go behind the decree.
16. Taking all these facts into consideration, I am satisfied that there was no cause of action for the respondent to file the execution application in as much as at the time of filing of the execution application neither there was any outstanding demand conveyed to the appellant which he failed to comply with nor there was any threat to the respondents about any reentry. The appellants after having come to know the letter dt. 13.1.2005 which was vague deposited a sum of Rs.1,50,000/ which shows their intention to pay their damages and not to avoid the same. Moreover they also sought clarification about the discrepancies with a view to enable them to understand the liability so as to pay the same. The clarification was not given to the appellant till the filing of the execution or even till the filing of this appeal, despite admissions of 21 discrepancies and overlapping in the letter dt. 13.1.2005 by the witness who appeared from L&DO.
17. In view of the aforesaid the order of Addl. Rent Controller can not be sustained and the same is set aside. Since L&DO has clarified the demand before this Tribunal on 23.1.2007 categorically stating that damages payable by the appellant towards misuse charges up to 31.12.2006 are payable to the tune of Rs. 4652868/ which is also clarification sought for by the appellant vide their letter dt. 18.1.2005, I direct them to meet the aforesaid demand within 4 weeks from today after adjusting sum of Rs.10 lakhs or any other amount paid by the appellant earlier towards this demand.
In case the amount stands deposited in the trial court it shall be released to L&DO. It is however made clear that in future also as and when the demand is made by the L&DO upon the appellant which shall be met within 4 weeks thereafter. If demand is made upon the respondent then they shall endorse a copy thereof to the appellant who would then make the payment within next 4 weeks.
2218. With these observations, the appeal is disposed off. A copy of the order be sent to the trial court along with trial court record.
Appeal file be consigned to the recordroom.
Dated: 21.8.2007 (M.C.GARG) ADDL. DISTRICT JUDGE, DELHI.
2321.8.2007 Present: None.
Vide separate order passed today, the impugned order of the trial court is set aside. Appeal is allowed with directions to the appellants to make the payment of mis-use charges as demanded by L&DO in their letter dt. 23.1.2007 filed in this Tribunal within 4 weeks after adjusting the amount already deposited in the court or in the trial court or before the L&DO and also to keep on paying future damages as and when demand is raised by the L&DO within 4 weeks thereof. Copy of the order be sent to the trial court along with trial court record.
Appeal file be consigned to the record-room.
(M.C.GARG) ADDL. DISTRICT JUDGE, DELHI.