Onkar Nath Bajpai vs Purolator India Ltd.
1988 Latest Caselaw 22 Del

JUDGMENT

N.N. Goswamy, J.

(1) This second appeal by the landlord is directed against the order dated 23-1-1986 passed by the Rent Control Tribunal whereby his first appeal against the dismissal of the petition for recovery of possession under Section 21 of the Delhi Rent Control Act was also dismissed.

(2) The premises in dispute i.e. first floor of house No. 32, Paschimi Marg, Vasant Vihar, New Delhi was leased out by the appellant to the respondent-company for residential purpose for a limited period of three years under Section 21 of the Act. The said period of three years was to expire on 18-12-1981. The execution of the order could be taken out within a period of six months, from the expiry of the period of tenancy. Instead of taking out the execution, a joint application was filed by the parties under Order 21 of the Code of Civil Procedure on 15-3-1982 i.e. within the period of six months. In the said application it was mentioned that the limited tenancy which was granted, was to expire on 18-12-1981 and that the execution of the same has to take place thereafter. It was further mentioned that the landlord had three sons, out of which the eldest son is working in Central Government Department and is married while the remaining two sons though adult are still unmarried but will get married after a period of three years and would thus require the aforesaid tenanted premises after the expiry of limited period of three years for settling down separately along with their families. It was also stated that in the situation the landlord not requiring the premises till 19th December, 1984, he has consented to allow the respondent-tenant to retain the said premises for another period of three years under the old terms and conditions of the limited tenancy already granted by the Court. In support of this joint application, affidavits were also filed by both the parties. In the affidavit filed by Mr. K.S. Natrajan, Secretary of the respondent-company, on behalf of the respondent, it was specifically stated that the premises had been taken only for residential purpose and that the possession thereof will be delivered to the landlord directly on the expiry of the lease of three years. In the last paragraph of the affidavit, it was stated that the deponent had read and understood the terms. and conditions of the lease agreement filed in the said case and that the respondent shall be bound and abide by the same. He also admitted as correct the other facts stated in the application. On this joint application filed by the parties, the learned Addl. Rent Controller passed the following order:-

"In view of the statements made by the parties, the proceedings are- sine die. The parties may get the proceedings revived in case the need arises. File be consigned to the record room."

(3) After the expiry of the next period of three years, the landlord filed an application for reviving the proceedings and for taking possession of the premises in dispute. This application was resisted by the respondent- company on various grounds. It was pleaded that the application was not maintainable inasmuch as the tenancy under Section 21 of the Act had come to an end on 18-12-1981 and a fresh tenancy had been created between the parties. It was further pleaded that even the original permission under Section 21 of the Act was granted without application of mind and in fact the landlord had no requirement of the premises. The learned Addl. Rent Controller as also the Tribunal came to the finding that the limited tenancy had come to an end on 18-12-1981 and since no application for execution was filed and instead a compromise application was filed, the landlord was not entitled to take the benefit of Section 21 and as such the execution application was not maintainable.

(4) In this appeal, the contention of the learned counsel, for the appellant, was that the joint application filed by the parties had to be taken as an application for execution or in any case a fresh application under Section 21 of the Act. I have considered the entire aspect carefully and I am of the opinion that the contention of the learned counsel for the appellant must prevail. The joint application was filed within a period of six months from the expiry of the limited tenancy. No doubt it is not labelled either as an execution application or as a fresh application under Section 21 of the Act, but it has all the ingredients of an application under Section 21 of the Act. The necessary ingredients of Section 21, are :- 1. Purpose of letting which should be residential (2) the period of tenancy and 3. the reason for creating a limited tenancy. All these three ingredients find place in the application inasmuch as the" period of tenancy is three years, the purpose of letting is residential and the reason for creating a limited tenancy is mentioned as the forthcoming marriage of the two sons who are admittedly of marriageable age. It is not disputed that those two sons are aged 29 and 27 years and are residing with the appellant in Delhi. The Supreme Court had the occasion to consider the: question of compromise in rent cases in Konchada Ramamurthy Subudhi & Anr. v. Gopi Nath Naik, 1968 (2) S.C.R. 559 and again in Smt. Kalo & Others v. Dhaka Devi & Others, Air 1982 Supreme Court 813, it was held that where the parties had entered into a compromise, the Court has to consider the actual intention of the parties to the compromise and it is from the actual intention that the Court has to gather as to whether the compromise was to extinguish the decree and create a fresh lease or that the compromise may provide a mere mode for discharge of the decree, applying this principle laid down by their lordships of the Supreme Court, it has to be seen as to what was the intention of the parties in entering into a compromise. If the intention was to create a fresh tenancy there was no need for the parties to come to the Court and file a joint petition duly supported by the affidavits. Admittedly, the appellant had filed the application within the statutory period of six months from the expiry of the limited tenancy, and if for any reason the respondent was not agreeable to the extension of time, he would not have signed the application or filed his affidavit which impliedly gives an undertaking to the Court to the effect that vacant possession will be delivered after the period of three years i.e. on or before 18-12-1984. The contention of the learned counsel for the respondent was that the parties had already entered into a fresh agreement before filing the application. This contention, in my opinion, has no merit, for the simple reason that the fresh agreement was only a proposed agreement which has necessarily to be filed along with an application under Section 21 of the Act. The fresh agreement is in terms of previous agreement and there is no change from the same. In fact it is only a continuation of the old agreement. In case the respondent-company had refused to be a party to the joint application, it was still open to the appellant to file an application for execution as he would have been within the period of limitation and he could seek eviction of the respondent even in 1982 but he thought it proper to extend the period of tenancy since his requirement was not immediate and was to arise after a further period of three years. This only shows the honest intention of the appellant and no mala fides can be attributed to the appellant for this act.

(5) The respondent-company having given a solemn undertaking by way of affidavit, to hand over the vacant possession of the premises to the appellant is in any case estopped from challenging the same in these proceedings. The respondent is not a lay man and it very well knew that it was entering into a solemn transaction and was gaining time from the landlord to hand over vacant possession of the premises. In these circumstances, it has to be held that the appellant-landlord is entitled to the recovery of possession of the premises under Section 21 of the Act.

(6) For the reasons recorded above, the appeal is allowed and the impugned orders passed by the Addl. Rent Controller and the Tribunal are hereby set aside. The appellant will be entitled to possession of the premises. The respondent will have six months' time to hand over vacant possession of the premises in dispute provided it files an affidavit of undertaking to the effect that it will hand over peaceful and vacant possession of the premises in dispute after the period of six months, within two weeks from to-day. The appellant will also be entitled to his costs. Counsel's fee Rs. 500.00 .