Veena Gael vs Pawan Kumar
1987 Latest Caselaw 423 Del

JUDGMENT

P.K. Bahri, J.

(1) This Second appeal has been brought u/s 39 of the Delhi Rent Control Act against the order of Shri V.S. Aggarwal, R.C Tribunal by which he dismissed the appeal preferred by the appellant against the order dated 28.8.84 of Shri I.C. Tewari, A.R.C., vide which he had dismissed the petition brought by the appellant seeking possession of the premises in question in execution of the order made u/s 21 of the Act.

(2) The facts, in brief are that after constructing a new house at E-31, Kalindi Colony, in 1973, the landlady appellant applied for permission u/s 21 of the said Act for creating a tenancy in favor of Vinod Kumar for three years mentioning that the premises are not needed by the landlady for 3 years in as much as her son was studying in Calcutta and after 3 years her son would come and reside in the said house and her daughter is also living in Veena Goel vs. Pawan Kumar Calcutta, she would also come and live in the house in question and that son of the appellant was also to be married after 3 years and the appellant does not have any other house or property in Delhi, and a loan had been taken from the L.I.C. for building the house and the same has to be paid back.

(3) After the expiry of 3 years period for which the limited tenancy was created in pursuance to permission granted by the Arc, another petition u/s 21 of the said Act was given by the appellant through her attorney on 12.4.77 seeking permission to create limited tenancy for a period expiring 31.12.79 in favor of Pawan Kumar-respondent. The reasons given for creating this limited tenancy were the same except that any daughter of the appellant is to come and stay in the house in question. It may be mentioned that Pawan Kumar is the real brother of Vinod Kumar.

(4) After the expiry of the limited tenancy appellant filed a petition for getting possession of the premises. Objections were filed by the respondent pleading that the order of the Controller granting permission for creating limited tenancy is illegal and void in as much as the appellant had concealed the factum of having already created a limited tenancy in favor of Vinod Kumar from the Court and thus has practiced a fraud on the court. It was mentioned that in case this fact had been disclosed by the appellant to the Controller concerned, the Controller would not have granted the permission for creating any further limited tenancy. It was also pleaded that in fact the appellant and her family members have been residing in Calcutta and they did not at all require the premises in question for their own residence after any period of time. It was also pleaded that the reasons given in the application for creating the limited tenancy were imaginary a

(5) This objection petition was contested by the appellant pleading that in fact genuine reason has been given for creating the limited tenancy and no fraud had been practiced on the Controller by the appellant. It was pleaded that earlier the appellant's son Pradeep Goel was studying in St. Xaviour School, Raj Niwas Marg, but he had gone to Calcutta to spend holidays & his grandmother got him admitted in a school at Calcutta and thus the appellant and her husband also shifted to Calcutta and so necessity arose for creating the limited tenancy for a period of three years initially as it was planned that after the appellant's son was to complete his higher secondary education the family would shift to Delhi and reside in the house in question. It is pleaded that after the appellant's son had completed higher secondary education at Calcutta, it was found useful for him to do B.Com. course and C.A. course simultaneously and so necessity arose for letting out premises again for a limited period at the expiry of which the appellant and her family members intended to shift to Delhi and live in the house in question. The parties led evidence before the Arc who gave the finding that permission had been obtained by the appellant by concealing the facts and thus that order is vitiated on that score. He also held that it was not true that the reason given for creating limited tenancy existed at the time petition was filed for creating the limited tenancy.

(6) Before I deal with the main paints, I may mention that counsel for the appellant has vehemently argued that since the grant of permission, new developments have taken place inasmuch as the appellant's son has been married in Calcutta in 1980 and a shop bearing No. 87 had been taken on rent in Lajpat Rai Market and a deal has been finalised to take a house bearing No. E-l13, Masjid Moth at the rental of Rs. 4,500.00 p.m. with effect from the 1st May 1983. Counsel for the appellant has argued that even if the reasons given in the petition seeking creation of limited tenancy for one reason or the other are found to be not valid, even then the Additional Rent Controller ought to have gone into new facts and come to the finding that the appellant at least presently required the premises in question bonafide for 1987 Rajdhani Law Reporter 646 her residence and for residence of her family members.

(7) Counsel for the respondent has, on the other hand, vehemently argued that the scope of inquiry in proceedings brought u/s 21 of the said Act for getting delivery of possession of a premises after the expiry of limited tenancy granted u/s 21 is very much limited and the Arc could go into the only question whether grounds or reasons given for creating of limited tenancy were genuine or not. The Scope cannot be widened to include a ground of bonafide requirement as is available to the landlady in bringing a petition for eviction u/s 14(1)(e) of the Act. It is true that certain observations have been made in Vinod v. Maha Prabhu by Wad, J. which support the contention of the learned counsel for the appellant. However, in the cited case it was found that the permission originally granted for creating the limited tenancy was valid inasmuch as the reasons given for letting out the premises for limited period were genuine. But in that case there occurred certain subsequent events showing, that need of the appellant was bonafide. However, this judgment came to be considered by G.C. Jain, J. in Ms. V.W. Baggu v. Janak Raj Sharma, 1987 (1) Rcr 534 and a doubt was expressed regarding the broad proposition laid down in Vinod's case (supra) regarding the scope of the inquiry contemplated u/s 21 of the said Act. It was observed as follows : "I have carefully examined this decision. If the observations quoted above mean that in execution of an order granting permission to create limited tenancy, which order is a nullity, the possession can be delivered on the ground that long after the making of that order actual need has arisen, then most respectfully, I cannot subscribe to this view. Special reason, in my judgment for creating the limited tenancy, though can be proved in the proceedings at the second stage i.e. the execution proceedings, but roost relate back to the date of initial order. The execution proceedings cannot be converted into an application for recovery of possession u/s 14(l)(e) (bonafide requirement). However, in Vinod Bedi's case, there was no finding by the learned Judge that initial order was a nullity as is the case here. This judgment, therefore, is of no help." 7 a. I entirely agree with the observations made by G.C. Jain, J. If it is shown that the permission granted for creating limited tenancy is a nullity and void, then there could be no occasion for looking into the subsequent events and developments in order to see whether need of the landlord is bonafide or not. As I will presently show that the permission granted by the Controller cannot be held to be legal because there has been suppression of material fact by the appellant when an application was given for seeking the permission of the Controller for creating the limited tenancy. The appellant has admittedly suppressed the material fact regarding having let out the the premises in question to Vinod Kumar earlier after obtaining permission of the Controller u/s 21 of the said Act. If these facts had been disclosed in the application or in the statements made before the Controller, it is possible that the Controller might not have agreed to grant another permission for creating the limited tenancy. As held in Vijay Kumar v. Inder Sam etc., 1982. Rajdhani LR. 1 there is no legal bar in landlord's seeking fresh permission u/s 21 of the Act for creating a further limited tenancy in respect of the same premises after the expiry of the period of tenancy created u/s 21 earlier, but that does not mean that the landlord should conceal the material facts from the Controller while seeking to create another limited tenancy in the same premises. In the present case not only that in the petition the fact was not disclosed regarding the creation of earlier limited tenancy but also in the proposed agreement filed along with the petition it was wrongly mentioned in clause 7 that the letting is being made for the first time. While dealing with such a case of suppression of material fact of letting out the premises earlier u/s 21 of the Act, it was held in Lt. Col. S.L. Sehgal v. Om Perkash, 1987 Rajdhani LR. 1 that concealment of such a fact amounts to playing a fraud on the court of Controller and permission obtained u/s 21 of the said Act by suppressing such material fact is void. Counsel for the appellant tried to distinguish this judgment by arguing that in the cited case the limited tenancy had been created in favor of same tenant in whose favor again further limited tenancy was created after taking permission and the fact was concealed from the Controller that this was a case of extension of already created limited tenancy. I do not understand how the 651 case becomes distinguishable. The material fact to be seen in both the cases is as to whether the landlord had concealed the factum of having created a limited tenancy in respect of the same premises earlier- Whether the limited tenancy earlier had been created in favor of same tenant or different tenant hardly makes any difference as far as the effect of concealment of the fact is concerned from the Controller. In V.S. Rani v. Ram Chambeli, 25(1984) Dlt 106 [1984. Rajdhani LR. 68] the facts were that the landlady had stated half truths in her petition seeking to create limited tenancy u/s 21 of the Act and the Hon'ble Supreme Court held that but for the wrong statements the permission would not have been granted by the Controller and as such the permission obtained was held to be bad. It is true that in the latest pronouncement of the Supreme Court in Inder Mohan Lal v. Ramesh Khanna, ratio has been laid down that if no reasons are given in the petition or in the statements seeking creation of limited tenancy u/s 21 of the Act, the landlord can be allowed to lead evidence to show that there existed certain facts at the time the permission was granted which could entitle the landlord to get the permission for creating the limited tenancy. This judgment has considered all the basic judgments given earlier on the subject and has given the ratio now that such reasons can be established even at the stage when the recovery of possession is sought and petition is opposed by the tenant. However, in the present case the appellant has to fail on the short ground that she had concealed the material fact from the Controller while seeking permission to create limited tenancy in favor of the respondent. Counsel for the appellant has vehemently argued that even if petitioner had disclosed this particular fact to the Controller it would not have made any difference and the Controller would have granted the permission. I do not agree because it would be too conjectural to hold that even if a particular material fact had been disclosed to the Controller, what could have been the decision of the Controller. It was the duty of the appellant to have disclosed the material fact of having created limited tenancy earlier while seeking the permission from the Controller for creating another limited tenancy in favor of the respondent. Having not done so, the appellant is guilty of suppressing the material fact which amounts to playing a fraud on the court of the Controller and so any permission obtained from the Controller in this manner has to be treated to be nullity as it is vitiated by fraud being practiced on the Controller. It is not necessary to go into the merits of the case as to whether the appellant in fact had been able to prove in evidence that the grounds stated by her in the petition seeking permission to create limited tenancy were genuine or not. I am told that the appellant has already now filed eviction petition u/s 14 of the Act and the subsequent events which were sought to be relied upon in the present case are now subject-matter of the said eviction petition.

(8) In view of the above reasons, I find no merit in this appeal which I hereby dismiss, but in view of the peculiar circumstances of the case I leave the parties to bear their own costs throughout.