Delhi District Court
Sh. Jagdish Singh Arora vs Sh. Jaswant Rai on 28 April, 2007
1
IN THE COURT OF SH. GIRISH KATHPALIA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO.221/06
SH. JAGDISH SINGH ARORA
S/O LATE SH. WAZIR SINGH ARORA
R/O HOUSE NO.62, BLOCK-I,
GALI NO.3, RAJ NAGAR,
PALAM COLONY,
NEW DELHI. ....PLAINTIFF
versus
1. SH. JASWANT RAI
2. SH. JAGDISH CHAND ARORA
BOTH SONS OF LATE SH. BHAGWAN DASS
BOTH PARTNERS/PROP. OF
M/s CAPITAL BOOK STALL
IV/1/61, GOPI NATH BAZAR,
DELHI CANTT-110010.
3. SH. AJAY GUPTA
S/O SH. Y.N. GUPTA
R/O 39, SUNDER NAGAR,
NEW DELHI. ....DEFENDANTS
DATE OF INSTITUTION: 18/08/2006
ARGUMENTS CONCLUDED ON: 25/04/2007
DATE OF DECISION: 28/04/2007
Counsel for Plaintiff: Sh. Praveen Suri, Advocate
Counsel for Defendants: Sh. A.P. Aggarwal, Advocate
JUDGMENT
1. In this suit for recovery of possession of the tenanted property, damages and mesne profits, defendants no.1&2 CS/221/06 Page 1 of 17 pages 2 moved an application seeking rejection of plaint under Order VII Rule 11 CPC mainly on the grounds that rent of the demised premises being Rs.100/-, the jurisdiction of civil court is barred by section 50, Delhi Rent Control Act. Reply to the application was filed on behalf of plaintiff. I have heard ld. Counsel for both the sides at length and perused the records.
2. The background in which the present suit was filed would be relevant to record. The shop no.IV/1/61, Gopi Nath Bazar, Delhi Cantt, Delhi (hereinafter referred to as "the suit property") owned by Union of India was leased out to late Lala Gopi Nath, who inducted the defendants no.1&2 as tenants under him at a monthly rent of Rs.9/- which was subsequently enhanced to Rs.100/-. Vide letter dated 07/09/90, the Cantonment Executive Officer called upon the defendants no.1&2 to deposit the rent of the suit property with Delhi Cantonment under section 65(3) Cantonment Act 1924 since huge arrears of cantonment taxes were outstanding against Lala Gopi Nath. Complying with the demand, defendants no.1&2 started depositing rent with the Delhi Cantonment Board. Apparently on death of Lala Gopi Nath, CS/221/06 Page 2 of 17 pages 3 the suit property devolved upon Sh. Ajay Gupta, who has been impleaded in the present suit as the defendant no.3. Defendant no.3 sold the suit property to the present plaintiff.
3. In the year 1996, the present plaintiff filed an eviction petition against the defendants no.1&2 under the provisions of section 14(1)(a) of the Delhi Rent Control Act, 1958 on the grounds that despite demands and also an intimation of the erstwhile landlord about the present plaintiff having purchased the suit property the defendants were not paying rent. In their written statement before the ld. Additional Rent Controller, Delhi (ARC) defendants challenged the relationship of landlord and tenant between them and the plaintiff. Defendants described the above mentioned facts pertaining to their tenancy and clearly pleaded that in the absence of any letter of attornment or any other documentary evidence reflecting that the suit property had been sold away to the present plaintiff, they have no reason to recognise the plaintiff as their landlord. Defendants categorically pleaded that although they are tenants but plaintiff is not their landlord. Defendants also challenged the authority of Sh. Ajay Gupta to CS/221/06 Page 3 of 17 pages 4 sell away the suit property. They further pleaded that since copies of neither the agreement to sell nor the sale deed in favour of present plaintiff has been furnished to them, they have no reason to accept the plaintiff as their landlord. Defendants explained that in compliance with the letter of Cantonment Executive Officer, they have been depositing rent with the Cantonment Board and are not liable to pay any rent to the plaintiff.
4. The above said written statement was filed by defendants no.1&2 before the ARC on 20/03/97 and the eviction petition continued further. After completion of trial, at the stage of final orders before the ARC plaintiff moved an application under Order XXIII Rule 1 CPC seeking to withdraw the eviction petition. Para 2 of the said application dated 18/05/05 would be relevant to quote:
"2. That as disclosed by the respondent that he has paid the arrears of rent to Delhi Cantonment Board being amount attached towards house tax, the petitioner in these circumstances does not wish to proceed with the present petition without prejudice to his right to recover the arrears of rent by filing civil suit or CS/221/06 Page 4 of 17 pages 5 for filing eviction petition after issuing a separate notice for the subsequent period."
Observing the time taken in the litigation by the plaintiff, the ld. ARC granted permission to withdraw the petition after burdening the plaintiff with cost of Rs.3,000/- for having dragged the defendants in court for nine years.
5. After withdrawal of the said eviction petition, plaintiff filed the present suit against both the tenants, impleading Sh. Ajay Gupta as proforma defendant. Plaintiff pleaded in the plaint of this suit that by way of registered sale deed dated 15/09/95 he has purchased the suit property from defendant no.3 and when he called upon the remaining defendants to pay rent, the latter refused to recognise him. Plaintiff also pleaded that he had filed an eviction petition before the ARC "but on technical grounds the plaintiff withdrew the eviction petition". Since despite service of notice dated 22/05/05, defendants no.1&2 did not pay rent and rather refused to recognise the plaintiff as their landlord, as per plaintiff the defendants no.1&2 have become unauthorised occupant in the suit property. Hence, this suit.
6. In their application under Order VII Rule 11 CPC, CS/221/06 Page 5 of 17 pages 6 defendants no.1&2 sought rejection of plaint mainly on the grounds of bar created by section 50, Delhi Rent Control Act on the civil court. Besides, it was also contended that since plaintiff has not paid the cost of Rs.3,000/- imposed by the ld. ARC at the time of withdrawal of eviction petition, no further suit/proceedings could be taken by the plaintiff. Defendants also pleaded in the application under consideration that vide section 27 Limitation Act, right of plaintiff to institute the present suit has extinguished.
7. Plaintiff in his reply to the application contended that the issues raised by the defendants in their application are mixed questions of law and fact and plaint cannot be rejected on these issues under Order VII Rule 11 CPC. Plaintiff pleaded in the reply that question of title could not be decided in the eviction petition and since the defendants have denied title of plaintiff as well as defendant no.3, status of defendants no.1&2 is that of an unauthorised occupant, who are liable to be evicted by way of civil suit. As such, as per plaintiff the bar of section 50 Delhi Rent Control Act is not attracted in this case. Since the defendants have also been in permissive CS/221/06 Page 6 of 17 pages 7 possession of the suit property, as per plaintiff they are not entitled to protection of section 27, Limitation Act.
8. During arguments on the application under consideration, ld. Counsel for defendants no.1&2 laid emphasis mainly on the bar created by section 50 Delhi Rent Control Act on the jurisdiction of civil court in a case where the Rent Act is applicable. It was argued by ld. Counsel for defendants no.1&2 that they did not cease to be tenants merely by denying title of the plaintiff before ARC. Ld. Counsel pointed out that even before ARC plaintiff had withdrawn the petition seeking liberty to file fresh eviction petition after serving notice for the subsequent period, as such the present suit is only experimental in nature. Even the notice dated 23/05/05 issued by the plaintiff before filing the present suit does not allege the defendants to be unauthorised occupants, rather the notice called upon the defendants for enhancement of rent by 10%. Ld. Counsel argued that the issue of relationship of landlord and tenant between the parties could have been looked into by the ld. ARC in the eviction petition which was wrongly withdrawn. So far as the applicability of CS/221/06 Page 7 of 17 pages 8 section 27 Limitation Act is concerned, ld. Counsel for defendants fairly conceded and did not press on this argument.
9. On behalf of plaintiff, it was argued that since passing of title from Lala Gopi Nath to the plaintiff requires investigation by way of full dress trial, the present application is not maintainable. Ld. Counsel for plaintiff argued that since the defendants denied title of plaintiff before the ld. ARC, the eviction petition had to be withdrawn since the ARC is not competent to decide title. It was also argued by ld. Counsel for plaintiff that once the defendants denied title of plaintiff as their landlord, they became unauthorised occupants liable to be evicted through civil suit only. As per ld. Counsel for plaintiff, existence of relationship of landlord and tenant is the primary requirement of maintainability of eviction action under the rent control laws. Since the defendants denied relationship of landlord and tenant before the ARC, they cannot challenge the present suit by reprobating on their status.
10. Ld. Counsel for plaintiff placed reliance on the CS/221/06 Page 8 of 17 pages 9 following judgments:
1. SHRI LAKSHMI VENKATESHWARA ENTERPRISES PVT. LTD vs SYEDA VAJHIUNNISSA BEGUM, (1994) 2SCC 671
2. J.P. ANAND vs DG BAFFNA, AIR 2002 SC 141
3. JOGINDER SINGH vs NIRMAL NAINI MEHRA, 28 (1985) DLT 418 and
4. KAUSHALYA DEVI vs K.L. BANSAL, AIR 1970 SC 838
11. In the case of SHRI LAKSHMI (supra) while dealing with section 21 of the Karnataka Rent Control Act, 1961 the question before Hon'ble Supreme Court was as to whether during the subsistence of contractual tenancy, it is open to the landlord to resort to proceedings under the Rent Control Act. Hon'ble Supreme Court, after making a reference of judicial precedents reaffirmed that provisions of Rent Control Act would apply notwithstanding the contract and even if the lease is determined by a forfeiture under the Transfer of Property Act, the tenant continues to be a tenant, who would be liable to be evicted and forfeiture comes into play only if the tenant has incurred the liability to be evicted under the rent control law, not otherwise. The observation of Hon'ble Supreme Court in this case relied upon by the counsel for plaintiff is that it is CS/221/06 Page 9 of 17 pages 10 not correct to hold that the Rent Control Act is a beneficial enactment only to the tenant.
12. In the case of J.P. ANAND (supra) Hon'ble Supreme Court dealt with the provision of sections 14(1)(e) and 25B(5) of the Delhi Rent Control Act, 1958 where leave to defend the eviction petition on the grounds that tenant had purchased the demised property under oral agreement and his possession was as owner was rejected by the trial court as well as the Hon'ble High Court. The appeal was dismissed by Hon'ble Apex Court observing that for entertaining a petition under section 14 of the Act, existence of relationship of tenant and landlord between the parties is a condition precedent. Ld. Counsel for plaintiff draws support to his case from this judgment to contend that since in the present case defendants no.1&2 denied the relationship of landlord and tenant before the ARC, eviction proceedings under the rent control law could not be maintained. I fail to agree with this contention. Even in the said judgment, the eviction proceedings not only continued despite denial of relationship of landlord and tenant, the eviction order passed by the ld. ARC was upheld by the CS/221/06 Page 10 of 17 pages 11 Hon'ble High Court as well as Supreme Court with the findings that the defence set up by the tenant was unfounded and thereby he was not entitled to leave to defend the eviction proceedings. Even otherwise, denial of relationship of tenancy in that case was on the grounds that the tenant had allegedly purchased the demised premises and was occupying the same in his capacity as owner and not tenant, which plea was found frivolous by all the courts. In contrast, the defendants no.1&2 in present case do not deny their status as tenant, they only deny status of the plaintiff as landlord.
13. In the case of JOGINDER SINGH (supra), Hon'ble Delhi High Court held that a directory provision can obviously be waived but a mandatory provision can only be waived if it is not conceived in public interest but in the interest of party that waives it, as such section 14(10), Delhi Rent Control Act being based on public policy cannot be waived.
14. In the case of KAUSHALYA DEVI (supra) the eviction petition came on three grounds viz bonafide requirement of landlord, acquisition of a house by the defendant and non payment of rent. After completion of pleadings, parties entered CS/221/06 Page 11 of 17 pages 12 into a compromise wherein the tenant undertook to vacate by a particular date. Tenant did not vacate in time and rather sought review of the compromise decree. Having failed before the sub judge and also in appeal before the senior sub judge tenant went to High Court in revision, where Hon'ble Delhi High Court held the decree as nullity since the same was passed by the court without satisfying itself that grounds of eviction existed. Order of Hon'ble High Court was upheld by the Hon'ble Supreme Court.
15. Falling back to the present case, admittedly what was challenged before the ld. ARC by the present defendants was not their status as tenants but status of the present plaintiff as their landlord. The issue of relationship of landlord and tenant between the parties could have been looked into by the ld. ARC in eviction proceedings itself. Merely by denying title of the plaintiff and that too with the specifically pleaded reason that they were never furnished any documentary evidence of sale of the suit property to the plaintiff, defendants no.1&2 did not cease to be tenants. Even in his application of withdrawal of eviction proceedings the plaintiff did not contemplate CS/221/06 Page 12 of 17 pages 13 approaching the civil court for eviction. Rather, the eviction petition was withdrawn clearly in view of defence that the defendants had been paying rent to the Cantonment Board in terms with orders of Cantonment Executive Officer towards house tax liability on the suit property. In the presuit notice dated 23/05/05 also, the plaintiff did not challenge status of the defendants as tenants in the suit property and rather called upon them for enhancement of rent by 10%. Till that stage also, plaintiff did not contend that the defendants are unauthorised occupants in the suit property. It is only in the suit for the first time that the plaintiff denied status of the defendants as tenants.
16. So far as status of tenants in the eyes of rent control laws is concerned, following portion from the judgment of Hon'ble Delhi High Court in the case of JOGINDER SINGH (supra) relied upon by plaintiff himself needs to be noted:
"22. The Act, as is clear from its preamble, has been enacted to provide "for the control of rents and evictions and rates of hotels and lodging houses, and for the lease of vacant premises to Government in certain areas in the Union Territory of Delhi. It was enacted in view of the shortage of accommodation and high rents demanded by the landlords. "The strain of the CS/221/06 Page 13 of 17 pages 14 last world war, Industrial Revolution, the large scale exodus of the working people to urban areas and the social and political changes brought in their wake social problems of considerable magnitude and complexity and their concomitant evils. The country was faced with spiralling inflation, soaring cost of living, increasing urban population and scarcity of accommodation. Rack renting and large scale eviction of tenants under the guise of the ordinary law, exacerbated those conditions making the economic life of the community unstable and insecure. To tackle these problems and curb these evils, the legislatures of the States of India enacted Rent Control Legislations" (see Nagindas Ramdas vs Dalpatram & others, AIR 1974 SC 471) "This is understandable where the city population swells and the city accommodation stagnates, the people suffocate for space and landlords make bay playing the game of each according to his ability to grab"(see S.B. Noronah vs Prem Kumari Khanna (1980) I SCC 52). Thus the main object of the Act is to control and regulate rents and to afford protection to the tenants against eviction except in the manner provided by the Act. This is a beneficial and remedial piece of legislation. It has been enacted to render socio economic justice to the public and is thus based on grounds of public policy.
23. Section 14 of the Act appears under the heading "Protection of tenant against eviction". Section 14(1) prohibits the eviction of a tenant except on the grounds given in the proviso. Sub section (2) to (11) of section 14 of the Act further prohibit the eviction even on the grounds contained in the proviso. These provisions do not deal with any personal benefit given to an individual but they deal CS/221/06 Page 14 of 17 pages 15 with the public at large. This section is not confined to affording a party protection who may avail of it or not, as he pleases. The advantage conferred by these provisions, enacted for the public at large, therefore, cannot be waived".
17. The proceedings before the ld. ARC would show that denial of status of plaintiff as landlord by the defendants was for the explicit reasons that they were never furnished any documentary evidence of change of hands of the suit property. That in itself, would not take away from the defendants their status as tenants of the suit property. Putting it simply, plaintiff approached the ARC claiming himself to be landlord of the defendants and that claim of plaintiff having been challenged, nothing prevented the plaintiff from proving the same before the ld. ARC. It is also not a situation where plaintiff did not try to do that. As reflected from records, the entire trial before the ld. ARC had been concluded when the eviction petition was withdrawn. Ld. Counsel for defendants rightly contends that the eviction petition was wrongly withdrawn from the court of ld. ARC.
18. As reflected from the judicial precedents relied upon by plaintiff himself, rent control laws have been enacted to CS/221/06 Page 15 of 17 pages 16 protect the tenant of a specific category from eviction through civil courts. The specific category of tenants covered by the rent control laws can be evicted only and only when the grounds for eviction exist and not otherwise, even by way of a compromise. Defendants have throughout claimed themselves to be tenants and even plaintiff, throughout till filing of this suit recognised the defendants as tenants in the suit property. Protection of rent control law afforded to the defendants cannot be taken away merely on the grounds that the defendants dispute (that too for want of documentary evidence) status of the plaintiff as a landlord, which the plaintiff ought to have proved before the ld. ARC in eviction proceedings earlier filed.
19. Since, admittedly the monthly rent being paid by the defendants no.1&2 is Rs.100/-, they are entitled to protection under the Delhi Rent Control Act and can be evicted only if the grounds specified under section 14 of the Act exist. Consequently, jurisdiction of this court to entertain the present suit is barred by virtue of section 50 of the Delhi Rent Control Act and the plaint is liable to be rejected under the CS/221/06 Page 16 of 17 pages 17 provisions of Order VII Rule 11(d) of the Code of Civil Procedure.
20. Application dated 26/09/06 of defendants no.1&2 under Order VII Rule 11 CPC is allowed and the plaint is rejected. No costs.
ANNOUNCED IN THE OPEN
COURT ON 28th April 2007 (GIRISH KATHPALIA)
ADDL. DISTRICT & SESSIONS JUDGE
DELHI
CS/221/06 Page 17 of 17 pages