Delhi District Court
M/S Modi Spinning & Weaving Mills Co. Ltd vs Smt. Krishna Wanti (Since Deceased) on 10 August, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
(i) ARCT No. 37/08
ID No.: 02403R0962602007
(ii) ARCT No. 38/08
ID No.: 02403R0962612007
M/s Modi Spinning & Weaving Mills Co. Ltd.
through its Chairman
Having its registered office at,
Modi Nagar101204 (U.P.) ... Appellant.
Versus
1. Smt. Krishna Wanti (since deceased)
now represented by Sh. Tejinder Singh,
s/o late Sh. S. Bahadur Sarup Singh,
R/o 3A, Sardar Patel Marg,
Chankayapuri, New Delhi
2. M/s Modi Overseas
through its Director,
G11, Maharani Bagh,
New Delhi 110065. ...Respondents.
Instituted on: 10.01.2007
ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 1 of 32
Judgment reserved on: 04.08.2011.
Judgment pronounced on : 10.08.2011.
J U D G M E N T
1. These two appeals under Section 38 of Delhi Rent Control Act (hereinafter referred to as "DRC Act") are directed against judgment dated 30.07.2005 governing two eviction petitions registered as E13/97 and E14/97 preferred by respondent no.1 respecting two different portions of property described as G11 (Old No. B18), Maharani Bagh, New Delhi 110065.
2. The eviction petition, E14/97 relates to tenanted portion comprising 2½ storeyed bungalow consisting of one drawing room, one dining room, one bed room, one kitchen with pantry, store and bathroom on the ground floor, three bed rooms with attached baths and verandah as also open terrace on the first floor and one bed room with attached bathroom and open terrace on the second floor along with the open front loan. The eviction petition no. E13/97 relates to tenanted portion described as one garage situated on the right hand side of annexe building, besides two quarters/rooms alongwith the bathroom and the verandah on the second floor of the annexe ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 2 of 32 building and the entire lawn at the back side of the bungalow, as also the tube well in the left hand corner near the northern boundary wall of this bungalow. It is admitted on both sides that the two portions separately shown as tenanted portions being subject matter of the two respective eviction petitions together constitute the property referred to as bungalow no. G11, Maharani Bagh, New Delhi.
3. It is undisputed that the tenancies in respect of the said two different portions were created through exchange of letters in the year 1974 by Major Deva Dutt, the late husband of original petitioner Krishna Wanti (respondent no.1 in these appeals). It is further undisputed that Major Deva Dutt, the original landlord died on 19.01.1993. It is also not disputed in these appeals that he was succeeded by his widow Mrs. Krishna Wanti who preferred the two eviction petitions on 28.01.1997 through her nephew and General Attorney Sh. Tajender Singh. It may be added here that the original petitioner Mrs Krishna Wanti died on 04.03.1998 during the pendency of the proceedings before ARC on 04.03.1998. Her nephew and attorney Sh. Tajender Singh through whom the said petitions had been filed, took over the said proceedings on the basis a ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 3 of 32 Will left behind by Smt. Krishna Wanti. His present status as that of landlord qua the disputed premises in respect of the tenancies in question is also not being disputed before this court.
4. Both the petitions were filed for an order of eviction on the grounds under Sections 14(1)(b)(h)&(j) DRC Act. The two petitions were contested and tried together. They were disposed of through a common judgment rendered on 30.07.2005 by the ARC. The prayers for eviction on the grounds under Sections 14(1)(b)&(j) DRC Act were not successful and the petitions to that extent were dismissed. The learned ARC, however, found that the petitioner had succeeded in bringing home the case for orders of eviction under Section 14(1)(h) DRC Act which was accordingly granted.
5. Since the landlord would not question the correctness of the findings and the result qua the prayer for eviction under Section 14(1)(b)&j) DRC Act, the judgment of ARC to that extent has attained finality. The eviction order under Section 14(1)(h) DRC Act, however, has been appealed against. In these circumstances, facts restricted to the said ground only need to be noticed for purposes of these appeals.
ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 4 of 32
6. The tenancies in respect of the two portions of the property in question are shown by the pleadings and material on record to have been created on the basis of letters dated 16.12.1974. It appears from the said material that the letters were sent for and on behalf of Modi Overseas ( a division of Modi Spinning and Weaving Mills Co. Ltd.), Modi Nagar, U.P. addressed to M/s E.R. Joseph & Pvt. Ltd. regarding lease of Bungalow No. G11, Maharani Bagh, New Delhi, on the terms and conditions set out therein including on the subject of the description of the premises, rent payable, period of tenancy etc. The letters sent under the signatures of Mr. Satish Kumar Modi, Director In charge for Modi Overseas (A division of Modi Spinning & Weaving Mill), called upon the addressee to sign the acceptance in duplicate copy of the lease deed, if he was agreeable to the terms stated and also receive the cheque offered therewith, the same representing the amount of deposit to enable the taking over of the demised premises under the terms and conditions. It is undisputed that Major Deva Dutt accepted the said offers by signing the said documents thereby creating the tenancies. It is also not disputed that the purpose of tenancies was residential.
ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 5 of 32
7. The appellant M/s Modi Spinning & Weaving Mills Co. Ltd. (hereinafter referred to in short as "Modi Spinning Company Ltd.") is admittedly a company duly incorporated under the Companies Act. Modi Overseas (respondent no.2 herein) is admittedly a division of Modi Spinning Company Ltd..
8. Modi Spinning Company Ltd. and its division Modi Overseas were impleaded in the eviction petitions as respondent no.2 and 1 respectively. It is clear from the record that both the respondents contested the eviction proceedings together, through a common reply.
9. The eviction on the ground under Section 14(1)(h) of DRC Act was sought on the pleadings that the respondents/tenants had acquired suitable alternative residences, interalia, at the following addresses:
"(i) 12, Friends Colony (West), New Delhi 100065
(ii) 46, Friends Colony (East), New Delhi 110065"
10.It was pleaded that both the said residences were acquired by the respondents/tenants in terms of proceedings under Section 21 DRC Act.
11.It may be mentioned here that reference to property nos. 11 Friends Colony, (West), New Delhi and 45 Friends Colony ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 6 of 32 (East), New Delhi was originally stated, the actual description of the properties in question being 12 Friends Colony (West), New Delhi, and 46 Friends Colony (East), New Delhi.
12.The fact that the said two properties had been taken on limited tenancy under the cover of orders of ARC under Section 21 DRC Act by the appellant (respondent no.2 before the ARC) is admitted. The impugned order shows, and the appellant does not dispute, that the permission under Section 21 of DRC Act qua property no. 12 Friends Colony (West) was granted on 17.08.1977 and similarly permission under Section 21 DRC Act qua acquisition of property no. 46 Friends Colony, (East) was granted on 31.10.1980. The appellants, however, add the fact that the limited tenancy under Section 21 DRC Act respecting 12 Friends Colony (West) came to end on 09.09.1995 when the vacant possession was handed over to the concerned landlord and further that the limited tenancy respecting 46 Friends Colony (East) came to an end on 31.07.1996 when the possession thereof was restored to the concerned landlord.
13.The contest to the prayers for eviction orders under Section 14(1)(h) DRC Act was on the ground that the two tenancies which are subject matter of this litigation were created by the ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 7 of 32 landlord in favour of Modi Overseas which was an entity separate from Modi Spinning Company Ltd. (appellant herein). It was contended that taking over of the aforementioned two residential properties in Friends Colony by Modi Spinning Company Ltd. could not give rise to a cause of action for ground under Section 14(1)(h) DRC Act in favour of the landlord in as much as the said company was not the tenant. It was submitted that acquisition of the said alternative residential premises by Modi Spinning Company Ltd. could not amount to acquisition of alternative residential premises by Modi Overseas, the tenant.
14.As mentioned above, the learned ARC at the end of the trial of the eviction petition, interalia, held that the case for eviction order under Section 14(1)(h) DRC Act had been proved. He thus, passed the eviction orders.
15.The eviction orders were challenged by Modi Overseas (respondent no.2 herein) by way of appeal RCA No. 201/2005. The appeal was heard and decided by Sh. M.C. Garg, the then Additional Rent Control Tribunal (ARCT), as Hon'ble Judge then was. The appeal along with applications under Order 41 Rule 27 read with Section 151 CPC were dismissed vide ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 8 of 32 judgment dated 06.12.2006 of ARCT, the final paragraph whereof would read as under: "The case filed by the respondent was, that the tenancy was created in favour of Modi Overseas as a division of M/s Modi Spinning & Weaving Mills Co. Ltd. They never accepted Modi Overseas as an independent entity. It is with these pleadings which was not disputed by the appellant, their case was accepted on the ground of sub letting vide impugned order in appeal. The appeal filed by the appellant through Shri Anil Khanna for and on behalf of M/s Modi Overseas Investment Ltd. is thus untenable in law. Thus, I do not find any merit in any of the applications filed by the appellant which are dismissed.
Accordingly the appeal is also dismissed with no order as to cost."
16.The above event was followed by two developments. Modi Spinning Company Ltd. brought these two appeals before ARCT on 10.01.2007, while Modi Overseas took the matter further before Hon'ble High Court through CM (Main) 652 of 2007. The petition of Modi Overseas was disposed of by Hon'ble High Court vide order dated 09.09.2009 which needs to be quoted in extenso. It reads as under: "After some arguments on instructions from the ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 9 of 32 petitioner and the instructing counsel for the petitioner, Mr. Ravinder Sethi, learned Senior Advocate, states that the petitioner would withdraw this petition subject to the respondent/landlord not executing the eviction order against the petitioner on the ground that the appeal preferred by the petitioner has been dismissed and on the landlord undertaking that they shall await to decision of the appeals preferred by M/s Modi Spinning and Weaving Mills Limited which are pending before the Rent Control Tribunal. Mr. Sethi states that the petitioner shall henceforth not contend in any proceedings that the petitioner M/s Modi Overseas is a legally independent entity. He further states that the petitioner accepts the position that it is a division of M/s Modi Spinning and Weaving Mills Limited.
Learned counsel for the respondent/landlord Mr. Vasisht undertakes on behalf of his client that the respondent shall not execute the eviction order against the petitioner, which is only a division of M/s Modi Spinning and Weaving Mills Limited till such time as the eviction order passed against M/s Modi spinning and Weaving Mills Limited attains finality.
In view of the aforesaid statements, which shall continue to bind the parties, the petition stands disposed off. The appeals preferred by M/s Modi Spinning and Weaving Limited shall be heard by the Tribunal on their merits."
ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 10 of 32
17.These appeals of Modi Spinning Company Ltd. have been resisted by the respondent no.1/DH.
18.I have heard Sh. Ashwani Kumar Matta, senior advocate for appellant, Sh. Kalka Prasad Aggarwal, advocate for the DH and Sh. Ravinder Sethi, senior advocate for respondent no.2 Modi Overseas.
19.During the course of lengthy arguments all sides took me through the records. I have given my considered thoughts to the relevant contentions that have been urged during the arguments.
20.The first and foremost contention raised on behalf of the appellant in both the appeals is that the material on record shows that the tenancy was created by Major Deva Dutt in favour of Modi Overseas which was, thus, intended and treated to be tenant. It has been argued that this was how all sides understood the arrangement not only at the time of inception of the tenancy but even later during the litigation. In this context, the learned counsel referred at great length to the pleadings not only in the eviction petitions from which these appeals arise but also to those in civil suit no. 1869 of 1996 which had been preferred by respondent no.1, again through her ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 11 of 32 nephew and General Attorney Tejinder Singh, the same person through whom the eviction petitions herein had been filed.
21.As mentioned earlier, the tenancies of the two portions of the property in question were created on the basis of exchange of letters dated 16.12.1974 which were initiated by Sh. Satish Kumar Modi, for and on behalf of Modi Overseas. A mere perusal of the said documents would show that in the said communications, the sender would describe Modi Overseas as a division of Modi Spinning & Weaving Mills Co. Ltd. offering to take the tenancy from the addressee on the terms and conditions set out therein.
22.Major Deva Dutt, admittedly the landlord who inducted the tenant, died on 19.01.1983. In 1996, his widow Smt. Krishna Wanti (petitioner before ARC) sued the appellant and Modi Overseas besides Sh. Satish Kumar Modi, director of the Modi Overseas as mentioned above, impleading them as defendants no. 2, 1 and 3 respectively. It appears that the plaint in the said civil suit was signed and verified on 06.08.1996 by Sh. Tejinder Singh, the legal heir of Smt. Krishna Wanti, who took over the eviction proceedings after her death on 04.03.1998. It further appears that the said civil suit prayed for reliefs of prohibitory ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 12 of 32 injunctions, interalia, against carrying out of illegal unauthorised construction in, and damage to, the demised premises by, or at the instance of, the said defendants. It appears the said civil suit came to be dismissed vide judgment dated 15.11.2002 upon an application under Order 7 Rule 11 CPC, being allowed. It further appears that Mrs. Krishna Wanti preferred RFA(OS) 2/2003 against the said judgment.
23.In these appeals preferred by Modi Spinning & Weaving Mills Co. Ltd., Modi Overseas has been impleaded as respondent no.
2. During the hearing of these appeals on 19.09.2010, an affidavit of Sh. Anil Khanna, Manager of Modi Overseas Investment Ltd, was filed on behalf of Modi Overseas in the file of ARCT 38/2008 seeking to bring on record the copies of the pleadings and documents pertaining to civil suit no. 1869/96 and RFA(OS) 2/2003. The contention in the said affidavit of Sh. Anil Khanna is that Mrs. Krishna Wanti, petitioner before ARC, had been attempting to mislead the court and suppress material facts, in as much as, according to the affidavit, contrary to the case set up in the eviction proceedings, it had been specifically and repeatedly averred by Mrs. Krishna Wanti in the litigation before the civil court that the premises in question ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 13 of 32 had been let out to Modi Overseas. The deponent stated that Mrs. Krishna Wanti could not be permitted to approbate and reprobate. It was also contended in the affidavit that eviction order impugned in these appeals had been obtained fraudulently by patently erroneous representation of facts for which reason it stood vitiated and deserves to be quashed.
24.A reply to the said affidavit was filed by respondent no.1 Tejinder Singh (DH) on 24.04.2010. In the said reply, the DH would contend that the affidavit had been filed to delay the disposal of the appeals and, therefore, the effort was an abuse of the process of law. This submission was made with reference to the undertaking given on behalf of Modi Overseas before Hon'ble High Court in CM(Main) 652/2007 as incorporated in the order dated 09.09.2009 which has already been taken note of above in extenso and according to which Modi Overseas had solemnly submitted before Hon'ble High Court that it shall "henceforth not contend in any proceedings that the petitioner Modi Overseas is a legally independent entity" and further that M/s Modi Overseas "accepts the position" that it is a division of M/s Modi Spinning and Weaving Mills Co. Ltd.
25.While there is substance in the submissions of the DH that it ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 14 of 32 does not lie in the mouth of Modi Overseas to raise these contentions in the teeth of what was submitted before Hon'ble High Court leading to the order dated 09.09.2009 referred to above, I have nonetheless perused the pleadings of the civil suit and the RFA (OS), through which I was taken at length by the counsel for the appellant.
26. It does appear that in the said civil suit the plaintiff would describe Modi Overseas as the defendant no.1/tenant at several stages. But then, it cannot be lost sight of that Modi Overseas was referred even in those pleadings not as a separate entity but as a division of defendant no.2, i.e. appellant herein. This is how they were described in the cause title and also in para 4 of the plaint.
27.It is admitted on all sides that Modi Overseas is not a legal entity. It is a division of M/s Modi Spinning and Weaving Mills Co. Ltd., and out side and independent of M/s Modi Spinning and Weaving Mills Co. Ltd., it has no status of its own. For all intents and purposes, it is part and parcel of M/s Modi Spinning and Weaving Mills Co. Ltd. Even during his own submissions, the counsel for the appellant would state that the affairs of the division known as Modi Overseas are controlled by M/s Modi ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 15 of 32 Spinning and Weaving Mills Co. Ltd. So much so that, he would himself argue, all its accounts would find reflection in the account books and balance sheets of M/s Modi Spinning and Weaving Mills Co. Ltd. It cannot by any stretch of argument or reasoning be claimed to be treated as a "person" as is necessary to acquire status of a "tenant" under Section 2(l) of DRC Act. In order to be accepted as a "tenant", the "person" claiming such status must be a person "by whom or on whose account or behalf" rent of the premises is payable. The respondent no.2 Modi Overseas, thus, being a division would have been making the payment of rent but would be doing so for and on account of the appellant company of which it was a division.
28.In above facts and circumstances, the submissions of the appellant that the tenancy had been created in favour of Modi Overseas in its independent rights, bereft of its connection with the appellant which owns and control it, cannot be accepted. In fact, in view of what was submitted on its behalf before Hon'ble High Court in CM(M) 652/2007, it does not lie in its mouth to so contend. Submissions to this effect through the affidavit filed on behalf of Modi Overseas by Mr. Anil Khanna in these ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 16 of 32 appeals are clearly an abuse of the process of law designed to cause delay. It is apposite to add here that Modi Overseas having not pressed its own challenge against the eviction order and having let it result in dismissal of its CM(Main) 652/2007 seems to have joined hands with the appellant to continue creating confusion, which needs to be only condemned.
29.It needs to be mentioned here that when Modi Overseas had filed its appeal (RCA No. 401/2005), another confusion was sought to be created by Mr. Anil Khanna (the same very person who has now filed affidavit) seemingly at the instance of the appellant here, claiming that Modi Overseas was a separate legal entity, having its "separate existence" and "separate name" M/s Modi Overseas Investment Ltd.", duly registered with Registrar of Companies under Memorandum and Article of Association. Ld. RCT threw out the said move, interalia, with reference to admission of RW1 in his deposition to the effect that it is the appellant company which is the owner of Modi Overseas. To say the least, the submissions now made are also actuated by the same ulterior motive as was earlier repelled.
30.The Decree Holder had brought the two eviction cases impleading appellant and Modi Overseas as respondents ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 17 of 32 describing the latter as a division of the appellant. The appellant and Modi Overseas put in a contest to the eviction proceedings through joint reply. The initial challenge to the eviction order that came to be passed was only for and on behalf of Modi Overseas. When Modi Overseas was unable to show to the Hon'ble High Court an independent status, it was submitted on its behalf that Modi Overseas shall not thereafter contend that it was a legally independent entity, it having accepted the position that it was only a division of M/s Modi Spinning and Weaving Mills Co. Ltd. With that background, attempt through Modi Overseas to bring on record the aforementioned material with affidavit of Anil Khanna, a person connected with Modi Overseas Investment Ltd. (still another unit of the appellant company) is undoubtedly yet another effort improperly made to raise the same very issue which had been put to rest when Hon'ble High Court disposed of CM(Main) 562/2007 on 09.09.2009.
31.The fact that the aforementioned material has been actually used by the appellant to argue that the tenancy was in the name of Modi Overseas and not in the name of the appellant exposes the design of the appellant and its division (respondent no.2 ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 18 of 32 herein). The very submission on behalf of the appellant that it was not the tenant qua the demised premises gives rise to the moot question as to its interest in these proceedings. If it was not a tenant respecting the premises in question, it should not have any grouse about the eviction order passed in respect of such tenanted premises.
32.The contention of the appellant on the strength of Gantusa H. Baddi (dead) by LRS Vs. Meerabai G. Pai & Ors [JT2000(5) SC 277] and V. Subramaniam Vs. Rajesh Raghuvandra Rao [JT 2009(4) SC 212], that the tenant need not be a juristic person is devoid of substance for the reasons that the said judgments do not lay down any such law and further the definition of expression "tenant" in Section 2(l) DRC Act shows otherwise. The anology of "firm" cannot help the appellant in as much as it is well settled that the firm is nothing but a compendium name of the partners who constitute the same. It is the partners (necessarily individuals) who are the tenants though they may have taken the tenancy in the name of the partnership firm. As observed in Gantusa H. Baddi (supra) the expression "tenant" as defined in the law will not bring ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 19 of 32 within its scope a partnership firm of which tenant himself may a partner. Strength may also be drawn from the view taken in M/s Sunder Industries & anr. Vs. M/s General Engineering Works New Delhi [AIR 1982 Delhi 220].
33.For the foregoing reasons, the contention of the appellant to the above effect is rejected. For the same reasons, the connected submission of the appellant that an eviction order under Section 14(1)(h) DRC Act cannot be passed in the case because the tenancies in respect of two properties in Friends Colony were not in the name of Modi Overseas also cannot be accepted.
34.It was then argued by the appellant that even if it be held that the appellant was the tenant in respect of two portions, the eviction order under Section 14(1) h) DRC Act cannot be sustained because tenancies in respect of two properties in Friends Colony, taken out through permissions under Section 21 DRC Act in 1977/1980 had come to an end on 09.09.1995 and 31.07.1996 respectively when the possession thereof was returned to the respective landlords. The counsel argued on the strength of Shakuntala S. Tiwari Vs. Hem Chand M. Singhania [(1987)3 SCC 211], Mansa Ram Vs. S.P. Pathak ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 20 of 32 & ors [(1984) 1 SCC 125], Ved Praksh Vs. Chuni Lal [Vol. VII. 1971 DLT 60] and Ganpat Ram Sharma and ors. Vs. Gayatri Devi [(1987) 3 SCC 576] that a petition under Section 14(1)(h) DRC Act can be maintained only if the tenant continues to be in possession of the alternative accommodation on the date the petition is filed and also on the date eviction order is passed. He submitted that the period of limitation for filing the said petition on this ground is 12 years. According to him, the petitions filed in 1997 with reference to tenancies under Section 21 DRC Act respecting the other two properties taken in 1977/1980 are barred by law of limitation, as also on the principle of laches. His further argument is that the tenancies under Section 21 DRC Act had been created during the life time of Major Deva Dutt who, despite knowledge, did not initiate any action for eviction under Section 14(1)(h) DRC Act. He submitted that Major Deva Dutt having died on 19.01.1993, even there after his widow Mrs. Krishna Wanti did not prosecute any such claim for almost four years and filed the eviction petitions only in Jan. 1997. His argument is that, in these facts and circumstances, the landlord must be deemed to ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 21 of 32 have forfeited his right to claim eviction order under Section 14(1)(h) DRC Act. In developing this line of arguments, he also pressed in aid the principles of laches.
35.The further contention of the appellant is that the tenancies in respect of the two properties in Friends Colony under Section 21 DRC Act having been determined in 1995 and 1996 before the filing of the eviction petitions, there could not be a cause of action with their reference in January, 1997 under Section 14(1)(h) DRC Act. He argued that reliance by the Decree Holder on the judgment in Mohini Badhwar Vs. Raghunandan Saran Ashok Saran [AIR 1989 SC 1492] is not correct in as much as the said judgment of Hon'ble Supreme Court, in his submission, did not lay down the correct law. His submission is that the law laid down by Hon'ble Supreme Court in the case of Ganpat Ram Sharma & others Vs. Gayatri Devi [(1987) 3 SCC 576) and B. R. Mehta Vs. Atma Devi & ors [(1987) 4 SCC 183] had laid down the law which applies to the cases at hand and the said law having not been referred in Mohini Badhwar (supra), the view taken in Mohini Badhwar (supra) is per incuriam.
ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 22 of 32
36.I would deal with the issue of limitation and laches first. This submission is mainly developed on the theory that the tenancies under Section 21 DRC Act in respect of the two properties in Friends Colony relate to the year 1977/1980. The appellant has argued that the said tenancies would have given rise to a cause of action, if they did, for eviction petition under Section 14(1)
(h) DRC Act in 1977/1980 only. It is submitted that the Decree Holder has admitted, as PW1 (through his affidavit filed on 28.05.2003 on which he was crossexamined on 17.11.2003) by stating that he had come to know about the acquisition of the two properties in Friends Colony about 10 years ago. The counsel argued that this stand of the Decree Holder in the evidence was not correct in as much as in para 10 of the plaint of civil suit no. 1869 of 1996, he had himself averred that it was "common knowledge" that the appellant company was a tenant in respect of the said properties. It is his argument that this averment in the plaint filed in 1996 in the civil suit would show that the landlord had all along been aware of the tenancies of the two properties in Friends Colony.
37. The learned counsel for the respondent has placed reliance on Subhash Chander Vs. Rehmat Ullah [1972 RCR 977(Delhi)] ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 23 of 32 which followed the judgment in Kerala State Electricity Board Vs. T. P. Kunhaliumma [AIR 1977 SC 282] to argue that the Rent Controller, not being a civil court, the Limitation Act would not apply to proceedings before him. He referred to Devender Singh Vs. MCD [ 1996 RLR 101(Delhi)], Mohd. Qureshi Vs. Roopa Photedar [1990 RLR 112(Delhi)] and Jagdish Prasad Vs. Phoolwati Devi [1980 RLR 376] which took the same view as in Subhash Chander (supra). But then, even if it be said that Limitation Act does apply to such proceedings under DRC Act in view of the observations in Ganpat Ram Sharma (supra), the fact remains that limitation runs from the date of knowledge.
38. I am afraid the submissions of the appellant are based on distorted reading of the pleadings and the evidence. When the Decree Holder in the civil suit pleaded "common knowledge"
respecting the other tenancies, the averment was through a sentence in the "present tense". It no where states, as is being submitted, that the landlord had been aware about the other tenancies since beginning, i.e. 1977/1980. If at all, it would show the "common knowledge" related to August, 1996 when ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 24 of 32 the said plaint was verified. The Decree Holder was cross examined on 17.11.2003, when he would talk about the knowledge about the acquisition of these properties around ten years ago. It would mean that the knowledge had been acquired some time in 1993. Thus, the knowledge cannot be attributed for any period antecedent to 1993. In this view, the arguments of limitation and laches fall to the ground.
39.The counsel for the appellant referred to (i) Revti Devi Vs. Kishan Lal [1970 RCR 71], (ii) Ved Prakash Vs. Chuni Lal [1971(7) DLT 59], (iii) Ganpat Ram Sharma & Ors Vs. Gayatri Devi [(1987) 3 SCC 576], (iv) B. R. Mehta Vs. Atma Devi & Ors [(1987) 4 SCC 183 and (v) Anandi D. Jadhan (dead) by Lrs Vs. Nirmala Ramchandra Kore & Ors [(2000) 3 SCC 704] in support of his submission that the law laid down in Mohini Badhwar (supra) is not a good law it being per incuriam and cannot be applied and, therefore, deserves to be ignored.
40.I do not find the submissions of the learned counsel for the appellant correct. While it is true that in Mohini Badhwar (supra), Ganpat Ram (surpa) and B. R. Mehta (supra) have ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 25 of 32 not been referred, it cannot be said that this judgment has been rendered as one "without giving any reason whatsoever".
41.The case of Hem Chand Baid Vs. Prem Wati Parekh [1979(2) RCR 328(Delhi) : AIR 1980 Delhi 1] presented a similar factual background. In the context of a claim for eviction order on the ground under Section 14(1)(h) DRC Act, Hon'ble High Court observed as under: X X X ".....Once it is found that a tenant does not need any protection of law, there is no rationale left in continuing an impediment in the way of the landlord to evict the tenant. In this setting the word "has" imports concluded default and not a continuing default. It is only reasonable that a tenant who voluntarily gives up the original premises and disentitles himself to the protection of the Delhi Rent Control Act, cannot revive the protection of law by relinquishing the new accommodation and reverting to the original accommodation. The Act does not contemplate unilateral revival of the protection by a tenant or recreation of an impediment for the landlord.
(Para11) X X X "........Once a default is committed by a tenant he ceases to enjoy the protection of law permanently and at no point of time and under no circumstances, the protection of law is revived. In view of this answer, in regard to the interpretation of clause (h) of subsection (1) of Section ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 26 of 32 14, the stage in the litigation at which the default should continue, became irrelevant." (Para14)
42.In para 3 of the judgment in Mohini Badhwar (supra), Hon'ble Supreme Court noticed that the High Court of Delhi (while dismissing the appeal of the tenant who had suffered an eviction order under Section 14(1)(h) DRC Act) had endorsed the view taken by it earlier in Hem Chand Baid (supra). The tenant in that case had acquired possession of her own house during the currency of the tenancy. Within four days, she had handed over vacant possession thereof, selling it to another person. She had resisted the eviction petition [on the ground under Section 14(1)(h) DRC Act] on the plea that she was not in a position to shift to the said alternative accommodation. Her plea was rejected by the court of ARC for the reason that even though on the date of filing of the eviction petition, the other accommodation was no longer in her occupation, it was sufficient for purposes of Section 14(1)(h) DRC Act, that some time prior to the filing of eviction petition, the appellant had "obtained possession of the house". The appeal of the tenant was dismissed by Hon'ble Supreme Court in Mohini Badhwar ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 27 of 32 (supra) holding that "the circumstance that she lost possession on the date when the eviction petition was filed does not protect" the tenant against Section 14(1)(h) of DRC Act.
43.In view of the above, it cannot be said that the view taken in Mohini Badhwar (supra) is not binding. Even in Gangadhara Palo (supra) referred to by the appellant, it has been observed in para 8 that when the Hon'ble Supreme Court dismisses a petition "by giving some reason, however, meagre (it can be even of just one sentence) there will be a merger of the judgment of the Hon'ble High Court into the order of the Supreme Court".
44.The law laid down in Mohini Badhwar (supra) has been treated as binding and consistently followed ever since, not only by the subordinate courts but even by Hon'ble High Court of Delhi. The learned counsel for the appellant fairly conceded that there has been no judgment of Hon'ble High Court post Mohini Badhwar (supra), wherein the said judgment may have been distinguished or a view contrary to the said law may have been adopted.
45.In above facts and circumstances, there is no escape for the ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 28 of 32 appellant from the application of the principle of law laid down in Mohini Badhwar (supra).
46.The next submission of the learned counsel for the appellant is that while adjudicating upon a petition under Section 14(1)(h) DRC Act, the Rent Controller is called upon to also address the issue of alternative accommodation referred by the landlord to be reasonably suitable for purposes of the tenant so as to be treated as a substitute for the place he is using in the tenancy. In this context, he relied on B. R. Mehta (supra) and Anandi D. Jadhav (supra). While the case of B. R. Mehta (supra) arose out of DRC Act, the case of Anandi D. Jadhav relates to Bombay Rents, Hotels and Lodging House Rate Control Act, 1947, section 13(1)(1) whereof is similar to Section 14(1)(h) of DRC Act. The argument of the appellant is that the issue of suitability having not been addressed, the impugned judgment is deficient. It is also contended that the ground under Section 14(1)(h) DRC Act cannot be applied to companies with same rigour as is done in the case of individual tenants, for the reason a company may need more residential accommodation for its Directors, Officers etc. ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 29 of 32
47.I am unable to accept the above submissions for the basic reason that appellant and respondent no.2 herein, in the contest to the eviction petitions, did not raise any issue of the accommodations acquired in Friends Colony not being suitable or reasonably placed to be treated as alternative accommodation. In Ganpat Ram Sharma (supra) Hon'ble Supreme Court has held that the burden of the landlord in such cases is to establish one of the alternative facts positively, viz. that the tenant has either built or acquired vacant possession of or has been allotted a residence. Once the landlord has discharged his burden to prove this essential ingredient, the burden of showing that the alternative accommodation is not suitable or whether the same cannot be rendered as an alternative accommodation is that of the tenant who must prove and establish the same since they are facts which pertain to his "special knowledge".
48.In the case at hand the tenant not having even raised such issues at the trial either in the pleadings or evidence, cannot now be allowed to argue to such effect.
49.Following the law in Mohini Badhwar (supra) which ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 30 of 32 affirmed the view to similar effect in Hem Chand Baid (supra), the fact that the tenant here had lost the possession of the alternative accommodation is of no consequence.
50.As mentioned earlier, it is also an argument of the counsel for the appellant that the law in Section 14(1)(h) DRC Act cannot be applied to Limited companies using the premises for the purposes of its employees and officers with the same rigour as would apply to cases of individual. This submission only needs to be mentioned and rejected with reference to settled law on the subject. In this context, reference may be made to Indian Cable Company Ltd. Vs. Prem Chandra Sharma [1989(2) RCR128(Delhi)], Gujarat State Fertilizers Vs. S.M. Aggarwal [1999 RLR 249 (Delhi)], and Continental Profiles Ltd. Vs. Gopal Bali [92(2001) DLT 204].
51.In the case of Indian Cable Company (supra), it was clearly held that there is nothing in the context of Section 14(1)(h) DRC Act for exclusion of a company from its ambit. It was further observed in that case that any such interpretation to exclude a company from the said clause would undermine the object of the provisions and upset the scheme of DRC Act. ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 31 of 32 Hon'ble High Court held that Section 14(1)(h) DRC Act applies to all residential premises irrespective whether such premises are let out to a company or to a natural person as a tenant. The cases of Gujrat State Fertilizers Vs. S.M.Aggarwal (supra) and Continental Profiles Ltd. Vs. Gopal Bali (supra) only reiterated and took the said law further.
52.In above facts and circumstances, the appeals are found devoid of merits and are dismissed upholding the orders of eviction in both the cases.
53.The Reader is directed to place an attested copy of this judgment in file of ARCT No. 38/2008.
54.The trial court record be returned with copy of this judgment.
55.Files of the appeals be consigned to Record Room. Announced in open Court today on this 10th day of August , 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
ARCT Nos. 37 & 38/08 M/s Modi Spinng. & Weag. Mills Co. Ltd. Vs. Krishna Wanti & anr. 32 of 32