Mela Ram Gugnani vs Goenka Dal Mills
1990 Latest Caselaw 308 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This second appeal is directed against the judgment and order of the Rent Control Tribunal, Delhi dated 22nd August 1988 and of the Additional Rent Controller, Delhi dated 25th May 1978 whereby the application for execution filed by the appellant under Section 21 of the Delhi Rent Control Act was dismissed and the objections filed by the respondent-tenant were allowed.

(2) The brief facts of the case are as follows : The appellant rented his house bearing no. 19/78, West Punjabi Bagh, Delhi to the respondent, a partnership firm for the resident of one of the partners Shri Nirmal Kumar for a limited period of two years on 1.9.1975. The respondent handed over the possession of the said premises to the appellant on 31.8.1977 before the expiry of two years period. The partner of the respondent issued a surrender slip Ext. OW1/A dated 31.8.1977. appellant-landlord however gave the premises again on rent for a limited period to the same firm for a period of two years but for the use of another partner Shri Gopi Ram Goenka on 1.11.1977. Before giving premises on lease again, an application under Section 21 of the Delhi Rent Control Act was made by the appellant and the permission was granted on 19.10.1977. The respondent continued to be in occupation of the said house all-through the period of lease however failed to vacate the premises on its expiry. The appellant, therefore, filed a petition for execution on 1.2.1980 i.e. within six months after the expiry of period of lease. On 20.2.1982 warrants of possessions were issued against the respondent. The Bailiff went for execution of the warrants of possession to the residence of the respondent on 18.5.1983 but the respondent offered resistance and gave a statement in writing that he wanted one month's time to vacate the house. The respondent however did not vacate the house as agreed but moved an application for setting aside the order of the Additional Rent Controller dated 20.2.1982 ordering exparte warrants of possession against the respondent. The respondent tenant also filed objections to the execution application. The Additional Rent Controller by order dated 22.3.1984 withdrew the order dated 20.2.1982 ordering ex-parte warrants of possession against the respondent and took the objections filed by the respondent on record and appellant-landlord was directed to file his reply. By order dated 25.5.1987 the Additional Rent Controller allowed the objections of the respondent and dismissed-the application for execution. The appeal filed by the appellant-landlord against the order to the Rent Control Tribunal was also dismissed by order dated 22.8.1888. The appellant, therefore, filed the present second appeal under Section 39 of the Delhi Rent Control Act challenging these two orders.

(3) It was contended by the learned counsel for the appellant that the premises were given on rent for a limited period to the respondent for the residence of its partner and since the respondent-tenant failed to deliver possession after the lease period had expired, the Additional Rent Controller ought to have ordered execution and ensured that possession is given back to the appellant. Learned counsel submitted that the Additional Rent Controller as well as the Rent Control Tribunal erred in entertaining the objections of the respondent-tenant field by him after the expiry of the lease period. Learned counsel submitted that the objections were belated and were without any basis inasmuch as there is no fraud played on the court and the Additional Rent Controller had rightly granted permission to the appellant to let out the premises for a limited period after considering all the aspects of the matter and on due consideration of the statement made by the appellant and also the statement made by the partner of the respondent-firm. Learned counsel submitted that in view of judgment of the Supreme in Yamuna Maloo v. Anand Swaroup, 1990(1) Rent L.R. 462 it is no more open to the tenant to urge that the permission granted by the Additional Rent Controller is vitiated because it was obtained by fraud if the objections were not filed during the currency of the tenancy. Learned counsel further submitted that the Additional Rent Controller as well as Rent Control Tribunal erred in holding that since the appellant had made a statement that the premises were not let out previously under Section 21 of the Delhi Rent Control Act the permission was obtained by fraud. Learned counsel submitted that the premises in dispute belong to the appellant but he had sought permission of the Additional Rent Controller to act. out the premises for a limited period because the house belonging to his son who lives in America was available to him for two years for his residence and thus he did not require the tenanted premises for these two years. Learned counsel submitted that it was specifically stated that the son of the appellant lives in America and he is likely to return after two years and the premises were thus not required by the appellant for two years. Learned counsel submitted that if the respondent-tenant wanted to raise any objection regarding any mis-statement made by the appellant landlord he ought to have done it during the currency of the lease and it is not open for him to raise this objection after the lease period had expired and after he had agreed to the Bailiff that lie will vacant the premises within one month.

(4) On the order hand, it was contended by the learned counsel for the respondent that the appellant had obtained the permission by making misstatement before the Additional Rent Controller. He concealed two important facts which, if disclosed, would have influenced the decision of the Additional Rent Controller at the time of granting the permission. Firstly, that the appellant wrongly stated to the court that the premises were not Jet out to anybody under Section 21 of the Delhi Rent Control Act; and secondly that the premises were vacant when they were let out again for the second time to the respondent. Learned counsel further submitted that the son of the appellant has settled down in U.S.A. and lies no intention of coming back and the appellant had wrongly stated that he was to return after two years and obtained the permission for a limited period by making this false statement before the Add'. Rent Controller. He submitted that the son of the appellant has obtained green card in U.S.A and he is not likely to return to India. Learned counsel further submitted that there were negotiations between the appellant and the respondent for re-letting the premises to the respondent once again for the third time and because of these negotiations the respondent did not move the Addl. Rent Controller during the currency of the limited tenancy.

(5) The Supreme Court in Yamuna Maloo's case (supra) has compared the scope of Sec. 14 and Sec. 21 of the Delhi Rent Control Act and has observed as follows :-

"SECTION 14 of the Act dates with a. normal tenancy and protects the tenants against unreasonable eviction. Section 21 of the Act, on the other hand, places the tenant outside the purview of Sec. 14 and provides for an order of eviction at the time of creation of the tenancy. There is a purpose behind enacting Sec. 21 of the Act. The Legislature considered it appropriate that should a landlord not need his residential premises for a period, instead of keeping the same vacant, the same could be available for a tenant's use on being let out for a limited period conditional upon the tenant's surrendering possession as soon as title tenancy terminates by efflux of time and the need of the landlord revives. The conditions to be fulfillled at the time of creation of such a tenancy arc three, namely, (i) the landlord would not require the premises for a particular period, (ii) the Controller must be satisfied about the position, and (ii) the tenant agrees to vacate at the end of the period."

"Both in Vohra's case and in Shiv Chander Kapoor's case though not arising for determination in either it has been stated while laying down the rule the that proceeding to challenge limited tenancy has to be taken during the currency of the tenancy, an objection filed by the tenant could be looked into is indeed an obiter. We would like to make it clear that the rule having been stated to the contrary in Vohra's case, there was indeed no warrant to indicate the contra situation. Perhaps to meet the eventuality which might arise in a particular case, neither of the two Benches of this Court wanted to close the avenue of enquiry totally, and that is why in both the cases decided by coordinate Benches the exception has also been indicated. It must be understood on the authority of the said two decisions and our judgment now that if the tenant has objection to raise to the validity of the limited tenancy, it has to be done prior to the lapse of the lease and not as a defense to the landlord's application for being put into possession We would like to reiterate that even if such an exercise available that must be taken to be very limited and made applicable to exceptional situations. Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then, should such an objection be entertained".

(7) From the above observations of the Supreme Court it is clear that if the tenant wants raise objection to the validity of limited tenancy he has to do so during the currency of the limited tenancy and only in exceptional situations the Controller can consider the validity of the limited tenancy after the expiry of the period if the tenant is able to satisfy the Controller that he had no opportunity to know the facts earlier and had come to know the facts only after the application for execution was filed.

(8) In the light of the above observations of the Supreme Court, let me know deal with the various objection raised by the respondent-tenant.

(9) Objection regarding mis-statement of the landlord that premises were not let out previously under Sec. 21 of the Delhi Rent Control Act : Ido not think it is open to the respondent-tenant to raise this objection at this belated stage. The respondent itself was the tenant of the premises even previously. The premises had been taken on rent by the respondent for the use of its other partner namely Shri Nirmal Kumar for period of two years. Therefore, it was within the knowledge of the respondent that the premises were let out even previously under Section 21 of the Delhi Rent Control Act. The partner of the respondent firm was present when the statement was made by the landlord in court. In fact, the partner of the respondent-firm has also made a statement before the Addl. Rent Controller while obtaining permission lor limited tenancy. This is not a fact which has come to the knowledge of the respondent only later on.

(10) Objection that the premises were not vacant when they were let out again for the second time to the respondent :- This objection cannot able be taken at this belated stage because it is the respondent who had given the surrender slip Ext.OW1/A and the respondent all-through knew for what purpose the surrender slip was obtained by the appellant. If the respondent wanted to contend that this surrender slip was given under certain pressure or because of coercion, the respondent ought to have made such a plea before the Addl. Rent Controller during the currency of the limited tenancy. This is not a fact which has come to the knowledge of the respondent after the appellant filed the application for execution and after the period of limited tenancy had expired.

(11) Objection that the son of the appellant has settled down in U.S.A. and has no intention of coming back and misrepresentation was made by the landlord before the Controller while obtaining permission for giving the premises for a limited period, that the son was going to return after 2 years :- It is difficult to believe that the respondent who has been in occupation of the premises 1975 and dealing with the landlord since then had no opportunity to know whether the son of the appellant- landlord has settled in U.S.A. It is true that the appellant did not examine himself but the son namely Sh. H.P. Gugnani who lives in U.S.A. was examined before the Addl. Rent Controller. He has stated on oath' before the Addl. Rent Controller that when the premises were given to the respondent for a limited period in the October 1977 he had expected to come back to India. In fact, he further stated that he still intends to come back to India but he cannot do so because lie has no accommodation to live. The appellant-landlord at present lives in the premises belonging to his son. What is important to be seen is whether the son had the intention of returning to India on the day the limited tenancy was created. If the conditions changed subsequently, that is not a factor to be considered after the period of limited tenancy has expired. Thus, even if the son has now obtained the green card that would be of no consequence. The son of the appellant had produced his passport before the Addl. Rent Controller, however the respondent did not put any question in cross-examination to him to being on record the date on which he obtained the green card. In fact in the examination-chief A.W.1 H.P. Gugnani has stated that he did come to India for three years but then returned and now he has changed the job and he wants to come back with advance technology which he has obtained and start a business in India.

(12) On going through the statement of AW1H.P. Gugnani, the son of the appellant, it cannot be said that on the date the limited tenancy was created, he had no intention of coming back to India. Thus, it cannot be said that at the time when the permission was obtained any mis-statement was made or there was any fraud played on the court.

(13) The Supreme Court in Smt. Dhanwanti v. D.D. Gupta has observed as follows :- "It is not always that a man can plan his life ahead with any degree of definiteness. Prevailing uncertainty in the circumstances surrounding him may not permit clear-sighted vision into the future. The circumstances may justify his envisioning his need for the premises two or three years later, and therefore applying for permission under Section 21 of the Act to let out the premises accordingly. And yet thereafter, on the expiry of that period he may find that the circumstances have changed and his use of the premises has now to be post pond by the another few years.....................What was material was the expectation that the son and his family would be in Delhi after two years. The central issue in the case has been clouded by a circumstance which has no bearing on it. Furthermore, I find that the respondent had not taken this plea in the objections filed by him before the Addl. Rent Controller but has only tried to prove it in the evidence. It seems to be a clear after-thought and, therefore, the Addl. Rent Controller should not have entertained this objection at the belated stage.

(14) Objection that the negotiations were going on and, therefore, the respondent did not make an application before the Controller during the currency of the limited tenancy: The permission to let out the premises for a limited period of two years to the respondent was granted by the Addl. Rent Controller on 19.10.77 and the respondent was put in possession of the premises on 1.11.1977. Thus, the period of limited tenancy expired on 31.10.1979. The appellant filed the application for execution on 1.2.1980. The warrants of possession were issued against the respondent on 20.2.1982 and the Bailiff went to execute the decree to the residence of the respondent on 18.5.1983. When the Bailiff reached the residence of the respondent he gave a statement in writing in his own hand before the Bailiff that he be given one month's time to vacate the house. The respondent not only did not vacate the house within one month but also did not take any steps for getting the ex-parte order of warrants of possession against him set aside till 24.5.1983. In the process, another one year passed in between.

(15) The respondent has examined OW5 Shri Manohar Lal Gusani and OW7 Shri Shiv Kumar, the property dealers to show that the appellant now again wants to let out the premises but on a higher rent. In my view, even if the appellant wants to let out these premises again now, that does not vitiate the earlier permission. In any event, these are facts which relate to a period after the limited tenancy had expired. On perusal of the evidence of OW5 Sh. Manohar Lal Gusani and OW7 Shri Shiv Kumar, the alleged property dealers it appears that they did not involve themselves in negotiation between the appellant and the respondent. In any event, these fact that the appellant may be wanting to give the premises again on rent to another person does not in any manner proves that the original permission which was granted was bad. It may show that the appellant does not require the premises bona fide for his own use and it may be a good ground for refusal of a petition for eviction under Section 14(1 )(e) of the Delhi Rent Control Act but it is not a relevant ground under Section 21 of the Delhi Rent Control Act.

(16) For the aforementioned reasons, the appeal is allowed. The orders of the Addl. Rent Controller dated 25.5.1987 and of the Rent Control Tribunal dated 22.8.1988 are set aside. However, the respondent is given four months' time to vacate the premises. No. costs.