Delhi District Court
Lifelong India Limited vs Mrs. Laxmi Aggarwal on 30 August, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT Appeal No. 41/2012
Unique ID No. 0240IC0261662012
IN THE MATTER OF:
Lifelong India Limited,
From Basement at
4/14 A, Asaf Ali Road,
New Delhi-110 002.
. . . Appellant
Versus
Mrs. Laxmi Aggarwal
W/o Late Shri S.L. Aggarwal,
Executrix of the Will of
late Smt. Sharbati Devi,
4/14 A, Asaf Ali Road,
New Delhi-110 002.
. . . Respondent
Date of institution of appeal : 02.06.2012
Date when final arguments were heard:22.08.2012
Date of pronouncement of judgment :30.08.2012.
JUDGMENT :-
Feeling aggrieved by the order dated 22.03.2012, an appeal under Section 96 read with Order XLI of the Code of Civil Procedure (hereinafter referred to as CPC) has been filed by the Appellant.
2- Notice of the appeal was given to the respondent and trial court record was summoned.
(RCT Appeal No.41/2012 ) (Page 1 of 32) 3- I have heard Shri Biswajit Das, Advocate for the
Appellant and Ms. Sobha Aggarwal, Advocate for respondent and have perused the record.
4- Before coming to the grounds of appeals, it will be in the fitness of things to narrate the factum matrix of the case giving rise to the filing of the present appeal.
5- Petitioner (Respondent herein) filed eviction petition under Section 14(1)(b)(d)(f)(g) & (j) of the Delhi Rent Control Act (hereinafter to be referred as "DRC Act") against M/s. Trading Engineers and M/s. Lifelong India Limited interalia on the allegations that front portion of basement of property No. 4/14-A, Municipal No.2540, Aggarwal House, Ward No.X, Asaf Ali Road, New Delhi- 110002 was let out to respondent No.1 (M/s. Trading Engineers - Appellant herein) on 01.02.1974. Respondent No.2 has sublet, assigned or otherwise parted with the possession of the whole of the premises to respondent No.2 (M/s. Lifelong India Limited) without the consent, written or otherwise, of the petitioner.
6- A joint written statement was filed by the respondents. It was averred that the premise in question was initially under the occupation and use for the business of partnership firm M/s. Trading Engineers, then comprising mainly of the members of one Raheja family. From 1989 onwards its associate M/s. Lifelong Appliances (RCT Appeal No.41/2012 ) (Page 2 of 32) Limited (now known as M/s. Lifelong India Limited) simultaneously started conducting its business from the premises in question. However, upon retirement of some partners of respondent No.1 firm in the year, 1992, the physical possession of the premises in question and its use was consciously, voluntarily and ultimately handed over to respondent No.2 company with the express knowledge, consent and authority of deceased landlady late Smt. Sharbati Devi. Respondent No.2 was voluntarily substituted in the position of respondent No.1 with all the then prevailing terms and conditions of tenancy agreement with landlady late Smt. Sharbati Devi. The other grounds of eviction were also denied.
7- During pendency of the proceedings, an application under Order I Rule 1 CPC was moved by respondent No.1 for deletion of its name from the array of parties. Respondent No.2 also moved an application under Order I Rule 10 CPC for deletion of name of respondent No.1 from the array of parties. Thereafter an application under Order XII Rule 6 CPC was moved by the petitioner for passing a decree on admission, on the ground of subletting. Vide order dated 22.03.2012, the application under Order XII Rule 6 CPC was allowed and an eviction order, in respect of the suit premises was passed under Section 14(1)(b) of the DRC Act. On the same day, vide separate order, applications under Order I Rule 10 CPC and under Order I Rule 1 CPC were dismissed. Feeling aggrieved by this (RCT Appeal No.41/2012 ) (Page 3 of 32) order, present appeal was filed.
8- At the outset, the maintainability of the appeal under Section 96 read with Order XLI CPC was challenged by the learned Counsel for the respondent on the ground that in view of specific provision embodied in Section 38 of the DRC Act, the appeal under the provisions of Code of Civil Procedure (CPC) is not maintainable.
9- There is substantial force in the submission of the learned Counsel for the respondent, inasmuch as, Rent Control Act is a code complete in itself. Entire procedure has been provided in the DRC Act itself. Section 38 of the DRC provides for appeal against the orders passed by Rent Controller/ Addl. Rent Controller. The relevant provisions of law is reproduced as under:-
"38. Appeal to the Tribunal. - (1) An appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal consisting of one person only to be appointed by the Central Government by notification in the Official Gazette:
[Provided that no appeal shall lie from an order of the Controller made under Section 21]"
10- Since a specific provision has been made in the DRC Act for preferring an appeal against the orders passed by the Rent Controller or Addl. Rent Controller, recourse to provisions embodied in CPC were not warranted.
(RCT Appeal No.41/2012 ) (Page 4 of 32) However, it is settled principle of law that procedural rules are handmaid of administration of justice and mere fact that the appeal has been preferred under a wrong provision of law that itself is not sufficient to dismiss the appeal because technicalities of law should not come in the way of administration of justice. When substantial justice and technical consideration pitted against each other, cause of substantial justice deserves to be preferred. Therefore, this appeal is taken to be an appeal under Section 38 of the DRC Act.
11- It was next submitted by the learned Counsel for the respondent that the appeal has been filed by the unauthorised sub-tenant and the original tenant has neither filed any appeal nor it was made party to the appeal. Therefore, the appeal preferred by sub-tenant is liable to be dismissed.
12- In this regard, it was submitted by learned Counsel for the appellant that since the appellant is the tenant and not a sub-tenant, therefore, the appeal is maintainable.
13- This submission of the learned Counsel for the appellant is devoid of merit inasmuch as, eviction petition was filed by respondent-petitioner on the allegations that the appellant is an unauthorised sub-tenant in the suit property. For filing an eviction petition under Section 14(1)(b) of the DRC Act, it is not even necessary to (RCT Appeal No.41/2012 ) (Page 5 of 32) implead sub-tenant as a party. However, as a matter of pre-caution, the petitioner had impleaded the sub-tenant as respondent No.2, but that ipso facto does not mean that sub-tenant will file the appeal without even impleading the tenant as a party. In 2000(2) RCJ 11 Sudha Rani v. Postmaster General it was held that the appeal filed by the sub-tenant against an order of eviction, without impleading the tenant a necessary party, is not maintainable. Substantially, similar view was taken by Hon'ble Supreme Court in AIR 1989 SC 1599 Arjun Khiamal Makhijani etc. Vs. Jamnadas Tuliani and others. In view of these authoritative pronouncement and keeping in view the fact that the present appeal has been filed by the appellant without impleading the tenant M/s. Trading Engineers (respondent No.1), the same is not legally maintainable and is liable to be dismissed on this sole account.
14- It was next submitted by the learned Counsel for respondent that there has been a delay of 34 days in filing the appeal and there is no sufficient explanation for such delay. As such, the appeal is liable to be dismissed. Reliance was placed on M/s. Krishna Continental Limited v. Shri Balkrishan Sharma, 143 (2007) DLT 518.
15- On the other hand, it was submitted by the Counsel for the appellant that delay had occurred, as the Counsel for appellant remained ill and subsequently suffered facial (RCT Appeal No.41/2012 ) (Page 6 of 32) paralytic attack. A fire had also broken out in the premises of appellant which resulted in delay in filing the appeal. Same is liable to be dismissed.
16- Sub section (2) of Section 38 of the DRC Act provides the period of limitation for filing an appeal against the order passed by the Rent Controller/ Addl. Rent Controller. This sub-section reads as under:
"(2) An appeal under sub-section (1) shall be preferred within thirty day's from the date of order made by the Controller:
Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty day's, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time."
A perusal of this sub-section goes to show that the limitation provided under this sub section is 30 days from the date of passing of the order. Although, it is stated that there is delay of 30 days in filing the appeal, however keeping in view the fact that impugned order was passed on 22.03.2012 and the present appeal was filed only on 02.06.2012, therefore, there is delay of about 40 days in filing the present appeal.
17- Proviso appended to this sub-section however, provides that on showing "sufficient cause", the Tribunal may condone the delay in filing the appeal.
(RCT Appeal No.41/2012 ) (Page 7 of 32) 18- So the question for consideration is that whether Appellant has been able to assign "sufficient cause" for condonation of delay in filing the appeal ?
19- It is alleged in the application that Counsel for the applicant who is well versed with the entire issue and representing the applicant right from the beginning of the trial, became ill as he suffered from the contraction of herpes and subsequently facial paralytic attack. He was advised by Doctor for complete rest for one month. On account of illness of Counsel, the appeal could not be drafted in time. Moreover, the case file was in the custody of the Counsel for the applicant and same could not be retrieved from his office to enable the applicant to file the appeal through another Counsel. In the meantime, fire also broke-out in the premises of the appellant company as a result, the company suffered a lot of loss, which also contributed to the delay in filing the appeal.
20- As regards the illness of the Counsel for the Appellant, in support of the application photocopies of medical prescriptions dated 03.03.2012, 05.03.2012 and 06.03.2012 have been filed. A perusal of these prescriptions goes to show that the same are two weeks prior to the order dated 22.03.2012 passed by the Addl. Rent Controller. Therefore, these prescriptions does not help the applicant for condonation of delay in filing the (RCT Appeal No.41/2012 ) (Page 8 of 32) appeal. In fact, it was submitted by the learned Counsel for respondent which was not disputed by the learned Counsel for the appellant that the same Counsel had addressed arguments before the Addl. Rent Controller on 14.03.2012. Moreover, although in the application it is alleged that the Counsel was advised complete rest for one month by the Doctor, however, there is no such observations in the medical prescriptions filed alongwith the application.
21- As regards the plea that a fire had broke-out in the premises of appellant company as result of which, company suffered a lot of loss, there was no mention in the application as to when the fire had taken place and the place where the alleged incident took place or the extent of damages. Even during the course of arguments, no such document was filed. However, after the case was reserved for orders, on 25.08.2012, photocopy of the FIR dated 04.06.2012 has been filed which goes to show that a complaint was made to SHO, PS: Manesar, Gurgaon (Haryana), stating that a fire occurred due to short-circuit on 27.05.2012 at 05.30 p.m. in the Manesar plant situated at plot No.93, Sector-V, IMT, Manesar, Gurgaon (Haryana). As such, even if the fire broke-out at Manesar, Gurgaon on 27.05.2012, the FIR was not lodged on the same day or thereafter. It was lodged only on 04.06.2012. That cannot be a reason for not filing the appeal within time.
(RCT Appeal No.41/2012 ) (Page 9 of 32) 22- In M/s. Krishna Continental Limited (supra) it was held as under:
"For the purpose of condonation of delay, there must be some cause which can be termed as "sufficient cause".
Condonation of delay can not be allowed only because the delay is unintentional and there are sufficient attending circumstances to bolster up the same.
Crux of the problem is as to whether there is some plausible and reasonable explanation given by the appellant in his application for condonation of delay, caused in preferring the appeal and that the impugned order is liable to be interfered with on the ground that it is perverse or patently erroneous. There should be some extenuating circumstances justifying the condonation of delay under Section 5 of the Limitation Act/ There must be some compelling reasons for the Court to condone the delay"
23- Reliance was also placed on Sow.Kamla w/o Narasaiyya Shrimal & Narsaiyya s/o. Soyanna Shrimal Vs. Ganpat s/o. Vithalrao Gavare, 2007(1) Mh.L.J.807 wherein it was held that :-
"The Expression "sufficient cause" can not be erased from Section 5 of the Limitation Act, by adopting excessive liberal approach which would defeat the very purpose of Section 5 of the Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation............"
(RCT Appeal No.41/2012 ) (Page 10 of 32) 24- In view of these authoritative pronouncements, it was incumbent upon the appellant to show "sufficient cause" for delay in filing the appeal, which the appellant has failed to assign. As such, there is no ground for condonation of delay in appeal the appeal. Therefore, application under Section 5 of the Limitation Act is dismissed.
25- Even if it is taken that a liberal approach is required to be taken and delay in filing the appeal be condoned, even then, it is to be seen whether the appeal has any merits or not 26- It was submitted by the learned Counsel for the Appellant that appellant was in possession of suit premises which fact was in the knowledge of respondent which is clear from the fact that from 1989, the appellant started operating its business from the premises pursuant to the exercise of its right in 1974 lease deed. From 1993, Appellant started paying rent to the original landlady for its exclusive use and occupation and from 1995, respondent started receiving monthly rent from the Appellant. After 1995, the appellant continued to pay monthly rental regularly even after the death of original landlady. The appellant is the original tenant who derived its tenancy from the lease deed dated 01.02.1974 and this locus was never challenged till filing of the eviction petition. Reference was made to the notice dated (RCT Appeal No.41/2012 ) (Page 11 of 32) 06.12.2008 sent by respondent to the appellant whereby notice to quit was given, meaning thereby the appellant was admitted to be a tenant by the respondent. Thereafter, the respondent sent another letter dated 09.04.2009 whereby she asked the appellant to keep the premises open for the purpose of inspection. Under these circumstances, the appellant was holding the property under the lease deed as a tenant under the respondent and there was no question of subletting of the premises.
27- Per contra, it was submitted by learned Counsel for respondent that the letters referred by the learned Counsel for appellant do not mean that at any point of time, the appellant was admitted to be a tenant by the respondent. Admittedly, the lease deed was executed between the predecessor in interest of respondent and M/s. Trading Engineers. The mere fact that in these letters, the appellant was admitted to be in occupation of premises, does not mean that it was admitted to be a tenant by the respondent. Moreover, the subletting has to be in writing and that too for a specific sublettee. Mere payment/ acceptance of rent does not constitute tenancy. Reliance was placed on
- AIR 1988 SC 145, M/s. Shalimar Tar Product Limited v. H.C. Sharma & Ors.;
- AIR 1976 SC 2361, Ram Saran v. Pyare Lal.
- 79 (1999) DLT 52, Satjit Singh v. Skipper Towers (P) Ltd & Anr., (RCT Appeal No.41/2012 ) (Page 12 of 32)
- (1993)1 SCR 472, Pulin Behari Lal v. Mahadev Dutt & Ors, 28- It is undisputed case of the parties that late Smt. Sharbati Devi had let out the suit premises to M/s. Trading Engineers through its registered partner Shri A.P. Raheja by virtue of rent deed dated 01.02.1974. The relevant clause is clause "f" which reads as under:
"That the demised premises will not be sublet, assigned or parted with possession, but the tenant may use the demised premises for running the offices of business of any of its associate or allied concern"
29- According to the Appellant, it is the Associate concern of M/s. Trading Engineers and therefore, the appellant is in occupation of property as a tenant.
30- Section 14(1)(b) of the DRC Act reads as under:
"14. Protection of tenant against eviction:- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant :
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds :-
(RCT Appeal No.41/2012 ) (Page 13 of 32)
(a) ..........................
(b) that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
........................
31- When eviction is sought on the ground of sub- letting, the initial onus is on the landlord to prove the same. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises is not the person who was inducted as tenant, then the onus shifts on the tenant to rebut the same. The rationale behind, as held by Hon'ble Supreme Court in AIR 1998 SC 11240, M/s. Bharat Sales Limited v. Life Insurance Corporation of India is that such arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. In such a situation, it would be difficult for the landlord to prove, (RCT Appeal No.41/2012 ) (Page 14 of 32) by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.
32- In the instant case, admittedly the original tenant was M/s. Trading Engineers and premises are now in exclusive possession of appellant therefore, in order to avoid eviction on the ground of subletting, it was incumbent upon the appellant to prove (i) that there was no subletting or parting with possession by the original tenant in favour of Appellant; and (ii) if there was subletting, it was with the consent of the landlady so was not objectionable.
(RCT Appeal No.41/2012 ) (Page 15 of 32) 33- A perusal of written statement filed by the Appellant goes to show that it was averred in para "F" as under:
"That the premises in question was initially under the occupation and use for the business of a partnership firm namely M/s. Trading Engineers (Respondent No.1) then comprising mainly of the members of one Raheja family. In the meantime, from 1989 onwards its associate M/s. Lifelong Appliances Limited (now known as M/s. Lifelong India Limited, the Respondent No.2) simultaneously started conducting its business and/or its operation from the premises in question. Similarly M/s. Creative Appliances Ltd., an associate of the Respondent No.1 also occupied the premises and operated its business as its registered office and commercial office. However, upon retirement of some partners of the respondent No.1 firm in the year, 1992, the physical possession of premises in question and its use was consciously, voluntarily and ultimately handed over to the Respondent No.2 company with the express knowledge, consent and authority of deceased landlady late Smt. Sharbati Devi. Respondent No.2 was voluntarily substituted in the position of the Respondent No.1 with all the then prevailing terms and conditions of tenancy agreement with the deceased landlady late Smt. Sharbati Devi. Despite the knowledge of the aforementioned facts, the petitioner wilfully concealed this fact from this Hon'ble Authority with obvious ulterior intention to drive an illegal and frivolous point that the Respondent No.2 is occupying unauthorisedly."
(RCT Appeal No.41/2012 ) (Page 16 of 32) 34- A bare perusal of these averments made in the written-statement goes to show that it was admitted by the Appellant that the original tenant M/s. Trading Engineers is no more in occupation of the premises and possession has been handed over to the Appellant. Although it is alleged that this handing over of the possession by the original tenant in favour of the appellant was with the express knowledge, consent and authority of deceased landlady late Smt. Sharbati Devi but there is no averment that any such "consent in writing" was given by the landlady to surrender the possession in favour of the appellant. Moreover, as per clause "f" of the rent deed, it was specifically stipulated that the demised premises will not be sublet, assign or parted with possession. The tenant was however permitted to use the demised premises for running the office of any associates or allied concerned. No permission was granted that the tenant may divest itself of the possession of the suit premises and the business in the suit premises be run by its associates or allied concerns. The facts of the present case are substantially similar to that of M/s. Shalimar Tar Products (Supra). In that case, a clause of lease deed stipulated that the lessee will not sublet the premises or any part to any party without the written permission of the lessor except that the lessee's contractor, a Private Limited Company will share the premises with the permission of the lessor.
(RCT Appeal No.41/2012 ) (Page 17 of 32) A suit for eviction was filed on the ground of subletting. The lessee alleged that there was no subletting of the premises to private limited company and if at all, there was subletting, it was with the consent of landlord. It was held that it is necessary for the tenant to obtain the consent of the landlord in writing to subletting of the premises. Mere permission or acquiescence will not do. The consent must be to the specific subletting and must be in writing. The requirement that consent should be in writing cannot be regarded as directory as the requirement of consent to be in writing is intended to serve a public purpose i.e. to avoid dispute as to whether there was consent or not. As this requirement of the statute is in public interest, there cannot be any question of waiver of a right, dealing with the rights of the tenant or the landlord. On the factual matrix of the case, it was held that there was a right of possession in favour of the company and right to exclude indeed as was evident from the fact that the company had gone into liquidation and official liquidator had taken possession of the premises on behalf of liquidator which must be on the basis that it was the asset belonging to the Company. There was, therefore, subletting by lessee. The permission of the lessor under the clause in the lease deed was only for the purpose of sharing the premises by the lessee with the private limited company. The permission was not for leasing the premises to any other entity. As the subletting was done by lessee without the consent of (RCT Appeal No.41/2012 ) (Page 18 of 32) landlord, there was inevitably breach of covenant. In that view of the matter, the order directing eviction of lessee was proper.
35- In the instant case, admittedly, there is no written consent by the deceased landlady late Smt. Sharbati Devi to sublet the premises in favour of the appellant and at the cost of repetition, it may be mentioned that clause "f" of the rent deed cannot be a consent by the landlady to sublet the premises in favour of appellant inasmuch as the only concession given to the tenant was that it may use the premises for running the office of any of its associate or allied concerns. By no stretch of imagination this clause can be considered to be that the tenant may extinguish from the scene and in its place the business be carried on by the allied or associate concern.
36- As regards the plea that the landlady late Smt. Sharbati Devi was having knowledge of occupation of the appellant and was receiving rent, this fact also does not help the appellant, inasmuch as it is settled principle of law that mere payment of rent does not confer status of tenant. Ram Saran (supra) was a case where tenant surrendered his tenancy right in favour of registered society without consent of the landlord. There also a plea was taken that the rent was paid in the name of registered society and therefore landlord is estopped from seeking eviction on the ground of unauthorised sub-letting.
(RCT Appeal No.41/2012 ) (Page 19 of 32) Repelling the contentions, it was held by Hon'ble Supreme Court that the tenancy of respondent No.1 was not surrendered and such surrender of tenancy has not been accepted by the landlord. If upon, accepting the surrender of tenancy of said tenant, occupation of a new tenant is acknowledged by the landlord by accepting payment of rent from the new tenant, then by such payment and acceptance of rent between tenant and landlord, a new tenancy may be created. By a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises, tendered by the tenant in the name of the registered society, neither a new tenancy nor a valid sub-tenancy is created in favour of the said registered society. It was further held that the Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of registered society, will not create a sub-tenancy, unless induction of a subtenant is made with the written consent of the landlord. In that (RCT Appeal No.41/2012 ) (Page 20 of 32) case also, it was nobody's case that the landlord had given any written consent for induction of sub-tenant. It was held that there was no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub- tenancy in favour of the registered society. Consequently, landlord will not be estopped from claiming eviction of unauthorised sub-tenant alongwith the tenant for indulging in inducting sub-tenant without lawful authority.
37- Substantially similar view was taken by Hon'ble High Court in Satjit Singh (supra). In that case, the property was let out to Skipper Sales Pvt. Ltd. under Section 21 of the DRC Act. The eviction petition was filed and an eviction order was passed. When that order was to be executed, objections were filed - claiming that in 1986, the tenancy had been transferred by Skipper Sales Pvt. Ltd.. It was held by Hon'ble High Court that in view of the fact that as per the admission that the property was let out to Skipper Sales Pvt. Ltd. under Section 21 of the DRC Act, how in the absence of any written instrument, can it be construed that mere acceptance of rent by the landlord would create relation- ship of landlord and tenant? In view of the specific mandate of Section 14(1)(b) of the DRC Act, in the absence of any written consent, respondent cannot claim (RCT Appeal No.41/2012 ) (Page 21 of 32) any independent right in the tenancy of Skipper Sales Private Limited. There is no estoppel against the statute.
38- To the same effect is the law laid down in Pulin Behari Lal (supra) where it was held that mere knowledge or acknowledgement of rent cannot defeat the landlord's right to get a decree for ejectment on the ground of subletting.
39- These observations are squarely applicable to the facts of the case in hand inasmuch as, it is not even the case of appellant that the tenancy was surrendered by M/s. Trading Engineers and after such surrender of tenancy, occupation of appellant was acknowledged by the landlady by accepting payment of rent from the appellants. It is unilateral act of M/s. Trading Engineers to part with possession of the suit premises in favour of the appellant but no new tenancy was created which may be legally bind the landlord. Even if rent was accepted by the erstwhile landlady late Smt. Sharbati Devi or thereafter, by her successor in interest, that does not mean that a new tenancy was created or a valid subtenancy in favour of appellant was created. The letter referred by the Counsel for the appellant also does not help him inasmuch as the letter, at the most shows that the appellant was in possession of the suit premises, but there is no acknowledgment on the part of the respondent that it ever accepted the appellant as a tenant. Under the (RCT Appeal No.41/2012 ) (Page 22 of 32) circumstances, it was a case where there was an admission on the part of appellant that he, the original tenant has vanished from the scene and now the premises are in exclusive occupation of the appellant. 40- A plea was also sought to be taken by the appellant that since the respondent has been receiving rent and it is in occupation for a substantial period, therefore, the eviction petition is otherwise, barred by limitation. Learned Counsel for respondent relied upon Sadanandan v. Pradeepan 2001 Lawsuit (Ker.) 174 where Hon'ble High Court of Kerala had considered Kerala Buildings (Lease and Rent Control) Act, 1965, provisions of which are para materia to that of DRC Act. There also a plea was taken regarding limitation, it was held that Rent Control Act does not prescribe any period of limitation for making an application for eviction under that Act but it does prescribe period of limitation for filing an appeal. It was held that where a subletting is involved, the landlord gets a cause of action, which can only be described as a recurring cause of action. Every moment, the objectionable sub-tenancy continues, the landlord gets right to apply for eviction under the Act after complying with the provisions of the DRC Act. The right to apply for eviction will continue so long as objectionable subletting subsists. In view of this authoritative pronouncement, firstly no period of limitation is prescribed under the DRC Act for filing eviction petition and moreover, since appellant continues (RCT Appeal No.41/2012 ) (Page 23 of 32) to be in occupation of the suit premises, therefore, it is a recurring cause of action. It can not be said that petition was barred by limitation.
41- In view of the plea taken by appellant-respondent and original tenant, an application under Order XII rule 6 CPC was moved by the petitioner-respondent for passing a decree on the basis of admission.
42- Order XII Rule 6 CPC reads as under:-
"6. Judgment on admissions. - (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
43. In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, the Hon'ble Supreme Court had observed as under:
"Admissions, if true and clear, are by (RCT Appeal No.41/2012 ) (Page 24 of 32) far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
46- In Uttam Singh Duggal & Co. Ltd. v. United Bank of India & Ors (2000) 7 SCC 120, the Hon'ble Supreme Court has held as under:
"As to the object of the Order XII Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain (RCT Appeal No.41/2012 ) (Page 25 of 32) admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."
47- In Karam Kapahi v. Lal Chand Charitable Trust 2010(3) Scale 569, the Hon'ble Supreme Court has discussed in detail the ambit and scope of Order 12 Rule 6 CPC and held as under:
"In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right, However, the Court always retains its discretion in the matter of pronouncing judgment."
It was further held that admissions can either be oral or in writing. They can also be inferred from the facts and circumstances of the case.
48- It was further observed in Karam Kapahi's case (supra) that that Order XII rule 6 CPC was amended to enable the Court to give a judgment not only on the application of a party but on its own motion. The amendment was brought about to further serve the ends of justice and to give these provisions a wider sweep by empowering Judges to use it 'ex-debito Justitiae', a Latin term, meaning a debt of justice. The thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a (RCT Appeal No.41/2012 ) (Page 26 of 32) matter of legal right. Relevant portion of this judgment is reproduced as under:
"46. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about 'which there is no controversy'. ...........
47. Prior to amendment the Rule reads thus:-
"6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either, on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting of the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just."
49- Purpose and objective of enacting provisions under Order XII Rule 6 CPC was summarised by Hon'ble High Court in Vijay Myne v. Satya Bhushan Kaura, 142 (2007) DLT 483, as under:
"..... the purpose and objective in enacting the provisions like Order XII Rule 6 CPC is to enable the Court to pronounce the judgment on admission when admissions are sufficient to entitle the plaintiff to get a decree, inasmuch as such a provision is enacted to render speedy judgment and save the parties from going through the rigmarole of protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. This can be orally or in writing. The admission can (RCT Appeal No.41/2012 ) (Page 27 of 32) even be constructive admission and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admission can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal and unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies."
50- The present case meets all the requisite attributes required to act upon the admissions. It was the case of the respondent that the suit property was let out to M/s. Trading Engineers by virtue of rent deed dated 01.02.1974 and it was alleged that respondent No.1 has sublet, assigned or otherwise parted with possession of the whole of the premises to respondent No.2 without the consent, written or otherwise, of the petitioner. The respondent No.1 had taken the premises on rent as a partnership firm through its registered partner Shri A.P. Raheja. Respondent No.1 is no more in possession of the suit premises and the premises are in actual, physical and otherwise possession of respondent No.2 unauthorisedly. Neither the suit premises nor any part thereof is in possession of respondent No.1 who has divested itself or and abandoned all its rights in the suit premises. The (RCT Appeal No.41/2012 ) (Page 28 of 32) respondent No.1, which is a partnership concern and the respondent No.2, which is a public limited company are two separate and distinct legal entities. Even the remote common link between the two entities i.e. Shri Suraj Prakash Raheja who was both a partner in M/s. Trading Engineers and a Director in M/s. Lifelong India Limited also retired from M/s. Trading Engineers (respondent No.1) w.e.f. 01.04.1992. In the written statement, it was pleaded that the premises in question was originally and initially under the occupation and use for the business of partnership firm namely M/s. Trading Engineers (respondent No.1) then comprising mainly of the members of Raheja family. In the meantime, from 1989 onwards, its associates M/s. Lifelong Appliances Limited (now known as M/s. Lifelong India Limited) (respondent No.2) simultaneously started conducting its business from the suit premises. Similarly M/s. Creative Appliances Limited, an associate of respondent No.1 also occupied the premises and started operation of its registered office and commercial office. However, on retirement of some partners of respondent No.1 firm in the year, 1992, the physical possession of the premises in question and its use are consciously, voluntarily and ultimately handed over to respondent No.2 company with the express knowledge, consent and authority of landlady late Smt. Sharbati Devi. Respondent No.2 was voluntarily substituted in the position of respondent No.1 with all the then prevailing terms and conditions of (RCT Appeal No.41/2012 ) (Page 29 of 32) tenancy agreement with the deceased landlady late Smt. Sharbati Devi. Since 1989, the respondent No.2 is inter alia using the demised premises for running the godown/ stockyards and other purpose with express permission and implied knowledge of the landlady including the applicant. Thus, there is a clear unequivocal and unambiguous admission made by the appellant that possession of the premises in question handed was over by respondent No.1 in the year, 1992 to respondent No.2.
51- This is not the end of matter. Record reveals that an application under Order I Rule 1 CPC was moved by respondent No.1 for its deletion from the arrays of parties on the ground that partnership firm M/s. Trading Engineers have handed over possession of the suit property to M/s. Lifelong Appliances Limited (now known as M/s. Lifelong India Limited) in the year, 1992 and that the partnership firm of M/s. Trading Engineers has nothing to do with the suit property. Another application under Order I Rule 10 CPC was moved by appellant/ respondent No.2 for deletion of respondent No.1 as a party to the eviction petition on the same ground. Under the circumstances, not only in the written statement but by filing application under Order I Rule 1 CPC by M/s. Trading Engineers and application under Order I Rule 10 CPC by the Appellant, there was unambiguous and unequivocal admission on the part of the appellant and original tenant that the tenant has (RCT Appeal No.41/2012 ) (Page 30 of 32) parted with possession of the suit premises to the appellant. Although, it was alleged that this was with the knowledge and consent of landlady late Smt. Sharbati Devi however, it is not even the case of appellant that any "consent in writing" was ever given either by landlady late Smt. Sharbati Devi or the present petitioner. There is a statutory requirement embodied in Section 14(1)(b) of DRC Act that the subletting has to be in writing which in the instant case is missing. Therefore, no further evidence was required on this issue and the learned Trial Court rightly passed the decree of eviction on the basis of admission under Order XII Rule 6 CPC qua the ground under Section 14(1)(b) of DRC Act. There is no infirmity in the impugned order which calls for interference.
52- Lastly, it must be mentioned that the appeal has otherwise, become infructuous as it has come on record that possession of suit premises has already been taken by respondent in execution of the decree.
53- The result of the aforesaid discussion is that appeal is legally not maintainable in the absence of impleading the original tenant; it is barred by limitation and no sufficient cause has been assigned for condonation of delay in filing appeal. Even otherwise, the impugned order is neither perverse nor patently erroneous which deserves interference. As such, the appeal is dismissed.
(RCT Appeal No.41/2012 ) (Page 31 of 32) Parties are left to bear their own costs.
Copy of the order be sent to the trial Court alongwith record. Parties are directed to appear before the learned Trial Court on 05.09.2012. Appeal file be consigned to record room.
Announced in open
court on 30.08.2012 (SUNITA GUPTA)
Rent Control Tribunal:
Delhi
(RCT Appeal No.41/2012 ) (Page 32 of 32)