Delhi High Court
Phool Wati vs Harsh Gogia on 2 May, 1996
Equivalent citations: 1996IIIAD(DELHI)473, 62(1996)DLT485, 1996(37)DRJ687, 1996RLR340, 1996 A I H C 5114, (1997) 1 RENCJ 432, (1996) 2 RENCR 185, (1996) 2 RENTLR 123, (1996) 62 DLT 485, (1996) 37 DRJ 687
JUDGMENT C.M. Nayar, J.
(1) The present appeal is directed against the judgment dated November 23, 1987 passed by Shri M.A.Khan, Rent Control Tribunal, Delhi affirming the judgment dated 20th August, 1985 of Additional Rent Controller.
(2) The brief facts of the case are that Shri K.L.Malik and eight others (of whom Shri K.L.Malik has died and his legal representatives were brought on record during the pendency of the case) jointly filed a petition for eviction against appellant Smt.Phool Wati and nine others from two shops bearing No.5593-5594. G.B.Road. Delhi under clauses (a), (b), (f), (g) and (j) of Section 14(1) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') alleging that the premises were let out to Sunder Lal who was the husband of appellant No. 1 and father of appellants Nos 2 to 8 in the year 1939. After his death appellants 2 to 8 became the tenants in the premises in dispute. The rent was RS.IIO.00 per month which was the standard rent fixed under the Delhi and Ajmer Rent Control Act, 1952. It was alleged that the appellants neither paid nor tendered the whole of the arrears of rent with effect from August 4, 1970 despite service of registered demand notice dated August 19, 1977. The next ground of eviction was that after 9th day of June, 1952 the appellants sub-let, assigned or otherwise parted with possession of whole or part of the premises in dispute to the sub-tenant, appellant No.9, without the consent in writing of the respondents. The said appellant was carrying on the work of transport under the trade name of Delhi Kanpur (Gondia) Transport Company. The other grounds of eviction were that the premises required major repairs which could not be carried out without the premises being vacated and that the appellants have caused or permitted to have caused substantial damage to the premises by making a Dochhati and also made other additions and alterations resulting in weakening of the structure of the property. The respondents also sought eviction of the appellants on the ground that the premises in dispute were required bona fide by them for the purpose of holding and/or re-building or making thereto substantial additions and alterations which could not be carried out without the premises being vacated.
(3) The appellants filed written statement denying the allegations of the respondents and stated that the respondents were neither the owners nor landlords of the premises in dispute and the petition was barred by the principles of resjudicata as the respondent had earlier filed eviction petition No.1106 of 1976 in the court of Shri P.S.Sharma, Rent Controller, Delhi, who dismissed the same vide his order dated September 7, 1977. It was further stated that after the death of Sunder Lal Jain, predecessor-in-interest of appellants 1 to 8, nobody accepted rent from the tenants nor accepted them as such. Therefore, the rent was deposited in the court. The respondents sent notice accepting Smt. Phool Wati alone as their tenant. The service of demand notice was denied. It was also denied that respondent No.9 was sub-tenant in the premises and was carrying on business in his own name.
(4) The learned Rent Controller after consideration of evidence on record and hearing the parties held that respondents 1 to 8 were the owners/landlords as the heirs and legal representatives of the deceased Lajwanti Devi who was the mother and previous owner/landlady; that the appellants 1 to 8 were the tenants and they availed of the benefit of Section 14(2) of the Act in the previous eviction case; that notice of demand was served upon them and they have failed to pay or tender the whole of the arrears of rent legally recoverable from them within two months of the dale of receipt of notice and that they have committed default in payment of more than three consecutive months and were liable to be evicted under clause (a); the tenants have also sub-let the premises to appellant No.9 without obtaining the written consent of the landlord and the ground under clause (b) is proved; that the premises were unsafe and unfit for human habitation and they were required by the respondents/landlords for carrying out repairs which could not be carried out without the premises being vacated by the tenants: that the respondents have failed to prove that the tenants caused substantial damage to the premises, therefore, the ground under clause (j) was not held proved. The respondents also failed to prove that they had made proper estimate for carrying out the re-construction or that they had the necessary funds for rebuilding and reconstruction of the building etc. and the ground under clause (g) was also not proved; that the petition was not barred by the principles of res judicata and it was held that the grounds under clauses (a) (b) and (!) were available and eviction order was passed against the appellants under these clauses. The appellants felt aggrieved by the order passed by the Rent Controller on August 20, 1985 and filed an appeal before the Rent Control Tribunal.
(5) The first submission before the Tribunal Ok behalf of the appellants was that the premises were situated in slum area and the requisite permission under Section 19 of the Slum Areas (Improvement and Clearance Act) 1956 had not been obtained before filing the petition and the same was not maintainable. The Tribunal rejected this submission and held as follows: "THE first and foremost submission of the learned counsel for the appellants is that the premises situate in slum area and the requisite permission under section 19 of the Slum Areas (Improvement and Clearance)Act has not been obtained before filing the petition, so the petition is not maintainable. The argument has no' force. The appellants have failed to lead any evidence to prove that the premises situate in slum area. Even before this court, they have simply filed the copy of the notice of the Competent Authority (slums) showing that the matter was fixed for hearing before him on 21.5.1986. The date of the issue of the notice is not written but the matter was pending before the Competent Authority (slums) was fixed on 21.5.1986. Almost six months have passed since then but the appellants have not been able to procure any certificate from the slum authorities showing that the premises situate in slum area. Even otherwise, the appellants have not been able to show the notification under which the premises or the area where they situate was declared slum area. Reliance on the oral statement of Gurbax Singh R10W1 who stated that the premises situate in slum area is wholly misplaced. The appellant by mentioning of the government notification could have proved this allegation before the trial court or even before this court. They have failed to prove it. The contention is, therefore, rejected."
(6) Similarly, the plea that the petition was barred by res judicata or the constructive resjudicata was rejected as it was held that there was no bar to filing of petition for eviction when the landlord based his eviction petition on separate and distinct causes of action. Each ground of ejectment mentioned is a different and distinct cause of action. They can be considered to be the same if in substance they are identical. This finding is not assailed before me and it will not be necessary to discuss the same. The finding in this regard is, accordingly, affirmed. Similarly, there is no serious challenge to the finding of the Controller as well as of the Rent Control Tribunal that the appellants were liable to eviction on the basis of committing default in payment of rent for more than three consecutive months and the ground of eviction was held to be made out and the appellants were not entitled to the benefit of Section 14(2) of the Act for the 'second time as they had already availed the benefit once. The ground of eviction under Section 14(l)(a) of the Act was, accordingly, held lobe made out as the appellant did not pay or tender arrears of rent within two months of the date on which the notice of demand was served. This finding of the' Rent Controller as well as of the Rent Control Tribunal was based on appreciation of evidence on record and no cogent grounds have been made out to disturb the same.
(7) The next ground of eviction arising under Section 14(1)(b) of the Act may now be discussed. Gurbax Singh appellant No.9 was allegedly in possession of the premises which were, therefore, sublet, assigned or otherwise parted with possession in his favour and it was further stated that he had-no concern with the Delhi Kanpur (Gondia) Transport Co. which was working in the premises. Firstly, the appellants 1 to 8 denied that appellant No.9 was in -possession and that the premises have been sub-let, assigned or parted with possession in his favour and secondly, at a later stage they wanted to plead that they had written permission from the landlords to sub-let the premises. It was submitted that this plea was based on a compromise petition filed in a proceeding before the High Court copy of which was tendered before the Tribunal as Ex.R.1. The appellants, as a consequence, also moved an application for amendment in the original written statement to incorporate the details of the alleged compromise. The sand application was not allowed and was dismissed by the Tribunal as it was held that the parties should not be permitted to substitute a new cause of action or change the nature of suit except where the court thought it just and necessary and the amendment would be refused if it "were made that would result in prejudice or injury which could not be properly compensated by costs. The alternative plea was also taken that the disputed premises were in possession of the tenants. They were given on licence basis to M/s Delhi Kanpur (Gondia) Transport Company. According to D.K.Jain, R.W.2 the licence to the transport company for functioning in the disputed premises was given by his father and he also renewed the same. The Tribunal, however, rioted that the licence which was allegedly executed by Sunder Lal or which was renewed by D.KJain one of the appellants had not been proved. No other documentary evidence had been produced. The evidence of the appellants was held contradictory to their pleas raised in the written statement and it was, accordingly, not believed by the Rent Controller. The Tribunal affirmed the findings as recorded under clause 14(1) (b) and on the basis of evidence on record-held that the alleged written permission of the landlady Smt.Lajwanti to sub-let the premises by virtue of compromise petition would be of no consequence as she had already died when the premises were sub-let to appellant No.9. 'The alleged permission of the previous landlady was of no consequence as the written permission of the present landlords/respondents was not obtained.
(8) The matter was argued at length. The main contention raised by learned counsel for the appellants was that (a) no sub-letting was proved on record as the tenants as well as the alleged sub-tenants were doing business in the same premises and where legal possession is retained by the tenant, there was no parting with possession and mere user is of no consequence. Reference is made to the judgments as reported in HazariLal and Ram Babu v. Shri Gian Ram and others 1972 (4) R.C.R. 75; A.S.Sulochana v. C.Dharemalingam 1987(1) R.C.R. 213;DipakBanerjee v. Smt.Lilabati Chakraborty and United Bank of India v. Cooks and Kelvey Properties (P) Ltd. . All these judgments lay down the well settled proposition that where the alleged sub-tenant was not in exclusive possession of portion of the premises and there was no evidence that the sub-tenant was in exclusive possession and that he paid any rent, there was no creation of sub tenancy. These facts are not proved in the present case where it is reiterated and concurrently held that sub-letting is proved in favour of respondent No.9 and particularly when a plea has been raised by the appellants that this is with the consent of the former landlord of the premises. In this background, it cannot be said that the appellants, in any manner, retained possession of the premises. On the contrary, it is established from record that they had inducted respondent No.9 as a sub-tenant and had nothing to do with the premises. This obviously was done without the written consent of the respondents. The provisions of section 14(l)(b) of the Act lays down that the tenant shall not sub-let, assign or otherwise part with possession of whole or any part of the premises without obtaining the consent in writing of the landlord. The interpretation of law has clearly settled so in the judgments of the Supreme Court as reported in M/Shalimar Tar Products Ltd. v. H.C.Sharma and others ; Shantilal Rampuria and others v. M/s Vega Trading Corporation and others ; M/s Bajaj Auto Limited v. Behari Lal Kohli ; Duli Chand (Dead) By L.Rs v. Jagmender Dass 40 (1990) D.L. T page 1; M/s Bhoolchand and another v. M/s Kay Pee Cee Investments and another and Rajinder Singh (dead) and another v. Dalip Chand and others 1995 (2) Rent Law Reporter 304.
(9) Faced with the situation that the appellants were liable to eviction under Section 14(l)(a) and 14(l)(b), the learned counsel for the appellants offered to settle the matter and stated that the rent/damages for use and occupation of the premises may be increased and some time may be granted to the appellants to vacate the premises. The matter was adjourned on different dates on the request of counsel for the parties that as they have settled the matter sometime may be granted to move an appropriate application along with respective affidavits. Then, suddenly the appellants reversed their stand and moved two separate applications on 9th April, 1996, C.M. Nos.672-A/96 and 703/96. The first application was moved for leave to amend the memorandum of appeal and urge the additional grounds and the second application was moved for leave to place on record additional documents for additional evidence. The appellants' obviously used the period to place on record the documents to the effect that the suit premises were situated in slum areas and as the requisite permission under Section 19 of the Slum Areas (Improvement and Clearance) Act had not been obtained before filing the eviction petition the same was not maintainable. This subsequent moving of the application is obviously an abuse of process of Court and, therefore, the pica as now raised cannot be entertained. The Tribunal clearly held that the appellants failed to lead any evidence to prove that the premises were situated in slum areas and the petition was held to be maintainable. The matter has been pending in this court since 1987 and no steps were taken by the appellants to amend the pleadings till the above applications were moved. The averments now raised cannot be permitted at this belated stage when the matter was argued at length and counsel for the appellants had been seeking time to place respective affidavits of undertaking of the appellants before the Court for their acceptance. At one stage, the counsel for the appellants clearly made an averment that the affidavit of undertaking to vacate the premises is now to be filed by one Khem Chand who is presently in possession of the tenancy premises. This will also establish that the appellants have not, at any stage, retained possession of the premises and are liable to eviction under the provisions of Section 14(1)(b). The applications, being C.M.Nos.672-A/96 & 703/96 are accordingly frivolous and rejected as devoid of force.
(10) The plea, however, may be noticed as to whether the benefit of the provisions of Slum Areas (Improvement & Clearance) Act could be available to the sub-tenant who admittedly is in possession of the premises. It has been argued by learned counsel for the respondents that even the legal representatives of the tenant are not protected under Section 19 of the Slum Areas (Improvement & Clearance) Act. Reference is made to the judgments as reported in Ram Chand Sin Ram and another v. Mongol Kumar (dead) & L.Rs. 1971 Rajdhani Law Reporter (Note 1); Smt.Raj Rani v. Smt.Moolan Bai and others and Smt.Bhagwati v. J.M.Malik and others Air 1987 Delhi 184. The appellants, therefore, cannot succeed even on the submissions as made above at this belated stage.
(11) The learned counsel appearing for the appellants has lastly made a faint attempt to justify the conduct of the appellants by contending that where the court was merely proceeding on the basis of compromise between the parties, the court was not competent to pass the decree under the provisions of law. The same must be held to be nullity. This averment cannot be of any consequence in the facts of the present case. Firstly, the Rent Controller as well as the Rent Control Tribunal have concurrently held that the eviction order was liable to be passed under the provisions of Section 14(1)(a) for non payment of arrears of rent and secondly under the provisions of Section 14(l)(b) for subletting of the premises. These concurrent findings are based on appreciation of evidence on record and cannot, in any manner, be assailed in the present proceedings.
(12) The Second Appeal, as a consequence, is dismissed with costs which are quantified at Rs.10,000.00 .